1

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

MUNNI ALI, 

 Plaintiff, 

v. 

COMMISSIONER OF 

SOCIAL SECURITY, 

 Defendant. 

 

Case No. 5:14-cv-13939 

Magistrate Judge Anthony P. Patti 

___________________________________/ 

OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR 

SUMMARY JUDGMENT AND/OR REMAND (DE 11), GRANTING 

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (DE 13) 

and AFFIRMING THE DECISION OF THE COMMISSIONER OF 

SOCIAL SECURITY 

I. OPINION

 Plaintiff, Munni Ali, brings this action under 42 U.S.C. § 1383(c) for 

review of a final decision of the Commissioner of Social Security 

(“Commissioner”) denying her application for supplemental security income 

benefits (SSIB). The parties have consented to my authority (DE 15), and 

this matter is before me for determination of Plaintiff’s motion for summary 

judgment and/or remand (DE 11), the Commissioner’s cross-motion for 

summary judgment (DE 13), and the administrative record (DE 8). 

A. Background 

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 Plaintiff filed her application for SSIB on May 14, 2012, at twentyone years of age, alleging that she has been disabled since January 1, 1993, 

at age one. (R. at 123-128.) According to her disability report, Plaintiff’s 

ability to work is limited by a seizure disorder and polio at birth, specifically 

noting that she cannot hold with her left hand and cannot lift her leg. (See R. 

at 141-148.) On July 25, 2012, disability examiner Biancia Watson 

determined that Plaintiff was not disabled at the initial level. The disability 

determination explanation included a physical RFC assessment by Tariq 

Mahmood, M.D. (See R. at 82-91, 92; see also R. at 93-96.) 

Plaintiff requested a hearing before an Administrative Law Judge 

(ALJ). (See R. at 97-99.) ALJ J. William Callahan held a hearing on May 1, 

2013, at which Plaintiff was represented by attorney Mark Greenman and 

vocational expert (VE) Scott Silver testified. (R. at 27-81.)1

 On June 28, 

2013, the ALJ determined that Plaintiff was not disabled within the meaning 

of the Social Security Act, § 1614(a)(3)(A). (R. at 11-26.)2

 

 Plaintiff requested review of the hearing decision. (R. at 7-10, 175-

178.) On August 26, 2014, the Appeals Council denied Plaintiff’s request 

 

1 See also R. at 100-102, 118-119, 122. 

2 See 42 U.S.C. § 1382c. 

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for review. (R. at 1-6.) Thus, ALJ Callahan’s decision became the 

Commissioner’s final decision. 

Plaintiff timely commenced the instant action on October 13, 2014. 

(DE 1.) The Commissioner filed an answer on December 19, 2014, along 

with a copy of the administrative record. (DE 7, DE 8.) 

B. Plaintiff’s Medical History 

Plaintiff alleges that she has been disabled since January 1, 1993, 

when she was approximately two months shy of her second birthday. (R. at 

123.) Her medical records span the period of time from August 2009 to 

February 2013, when she was eighteen to nearly twenty-two years of age. 

(See R. at 180-222 (Exhibits 1F - 5F).) 

Of particular significance to the issues before the Court are her 

neurological records. For, example, on August 17, 2009, Plaintiff was seen 

by Randall R. Benson, M.D. of the Harper Neurology Clinic for evaluation 

of her seizures. With respect to gait, Dr. Benson noted that Plaintiff was 

able to walk but had to lift her left foot while walking. She was able to do 

tandem heel and toe with some difficulty. Her muscle strength was 5/5 in 

the right upper and lower extremity. However, on the left side, the upper 

proximal extremity was 4/5, the upper and distal extremities were 3/5, and 

the fingers distal were 3/5. As for left-side reflexes, Dr. Benson noted 

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Plaintiff’s biceps, triceps and brachial radialis were 1+, somewhat lesser 

than on the right side. He also noted that bulk was decreased on the left 

upper extremity. Dr. Benson sought to assess her carbamazepine level, as 

well as to obtain an electroencephalogram and MRI. (R. at 205-207.) 

An August 31, 2009 Brain/Stem MRI revealed “[n]o acute intracranial 

process[,]” but also revealed “[a]n area of the encephalomalacia of the right 

frontal lobe adjacent to the right sylvian fissure representing old infarct.” 

(R. at 211-212.) A September 3, 2009 EEG was abnormal, revealing 

waveforms that were not considered epileptiform in nature and a 

constellation of findings consistent with a possible structural lesion in the 

left hemisphere. (R. at 208-209.) 

On January 8, 2011, Plaintiff was seen at Family Care Center, P.C., 

for a checkup.3

 It seems she was diagnosed with seizure disorder and acne 

vulgaris and prescribed Carbatrol4

 and benzoyl peroxide. (R. at 192.) Notes 

dated April 15, 2011, indicate that Plaintiff was undernourished / 

underweight. (R. at 195.) On November 15, 2011, Plaintiff was seen for 

blood work and a general checkup. Although difficult to read, the notes 

 

3 It appears that there are two Dr. Sharma’s at Family Care Center, P.C. - 

Bhupesh Sharma, M.D., and Meenakshi Sharma, M.D. (R. at 193.) 

4 Carbatrol is used to treat certain types of seizures and nerve pain. See 

http://www.fda.gov/downloads/drugs/drugsafety/ucm241639.pdf. 

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indicate a hand deformity and seem to include diagnoses of hair loss, seizure 

disorder and polio. (R. at 199.) 

The July 9, 2012 consultative internal medicine report provided by 

Cynthia Shelby-Lane, M.D., notes, among other things, that Plaintiff “has a 

mild foot drop on the left with a limp on the left side[,]” includes 

impressions of seizure disorder and polio, and notes “slight difficulty with 

the use of her left side . . . .” (R. at 182, 184.) On the same date, Plaintiff 

had x-rays of the left humerus, the left radius and ulna, and the left hand. 

(R. at 185.) Range of motion was largely normal. (R. at 186-187.) A 

neurologic and orthopedic supplemental report did not indicate limitations 

on her current abilities (such as sitting, standing, bending, etc.), nor did it 

indicate abnormality in reflexes of the affected extremity. (R. at 188.) As to 

ambulation, the same report indicated that Plaintiff was able to walk on her 

heels and toes, was able to walk tandem, and her gait was stable and within 

normal limits. Moreover, clinical evidence did not support the need for 

walking aid. (R. at 189.) Grip strength was 42.1 on the right and 6.2 on the 

left. (R. at 190.) 

Notes from November 5, 2012, apparently by her treating physician, 

Dr. Bhupesh Sharma, note a left hand claw deformity among “abnormal 

exam findings.” (R. at 202.) On February 25, 2013, Dr. Bhupesh Sharma 

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completed an RFC medical questionnaire, listing diagnoses of seizure 

disorder, something illegible, atopic dermatitis and polio of the left arm and 

leg. Dr. Sharma left blank the question seeking signs, symptoms, and tests 

supporting his diagnoses. (R. at 220.) Still, he opined that Plaintiff could 

lift 10 pounds while working and could walk for approximately 30 minutes 

while performing occupational duties in an 8 hour day. (R. at 220-221.) 

While Dr. Sharma opined that Plaintiff had limitations in the full use of her 

left hand due to the residuals from polio, he also opined that she could use 

the left hand occasionally and minimally. (R. at 221.) Also, he indicated 

that Plaintiff walks with a limp, due to weakness in her left leg. (R. at 222.) 

Additionally, in SOAP (subjective, objective, assessment and plan) notes 

from the same date, Dr. Bhupesh Sharma diagnosed “other convulsions” and 

recorded acute poliomyelitis (affecting the left arm and the left leg). (R. at 

204.) 

In addition, I note (a) a May 30, 2012 seizure form, which was signed 

and completed by Plaintiff’s father, noting that Plaintiff’s last seizure 

occurred on November 20, 2011 (R. at 149-152) and (b) a list of 

medications, seemingly dated April 4, 2013, which includes Carbatrol as an 

anticonvulsant and Cyproheptadine to help with weight gain. (R. at 173, 

170-172). Further, when asked in her function report whether she suffered 

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from any medication related side effects, Plaintiff answered, “No.” (R. at 

160.) 

C. Hearing Testimony (May 1, 2013) 

 1. Plaintiff’s Testimony 

 Plaintiff was 22 years old on the hearing date. (R. at 31.) She writes 

with her right hand. (R. at 34.) She is 5 feet 1 inch tall and weighs 78 

pounds. (R. at 57-58.) 

As a child, Plaintiff underwent therapy at Children’s Hospital for her 

left knee pain, but it did not help. (R. at 37.) She has not had any therapy in 

the last ten years. (R. at 38.) Plaintiff testified that, for 12 years, whenever 

she went to gym class, she just stood. (R. at 52.) She received her high 

school diploma in 2009 from Cleveland High School in Hamtramck, 

Michigan. (R. at 31, 34.) She did not have any special accommodations in 

high school. (R. at 34.) She was planning to attend Wayne State University, 

but did not go, because she “had the ride problem” and does not drive. (R. at 

32.)5

 During 2011, she tried to ride a bike; however, she fell down. (R. at 

52.) 

She has not applied for a driver’s license, because she has a left hand 

and foot problem. (R. at 33.) According to Plaintiff, Dr. Sharma told her 

 

5 As it turns out, she was not admitted in any case, because she also has a “ 

reading problem.” (R. at 31.) 

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not to drive. (R. at 34, 36.) Plaintiff also testified that Dr. Sharma told her 

not to walk much, because of her left knee pain which was caused by polio, 

and “[n]ot to work much, like touch my left hand--with left hand.” (R. at 

36-37.) In other words, he told her not to use her left hand. (R. at 37.) 

Plaintiff stated that Dr. Sharma did not tell her there was anything else she 

should not do. (Id.) Additionally, Plaintiff testified that, if she walks too 

much, it bothers her knee and her toes swell; generally, she can walk a block 

or less before she has to stop. (R. at 53-54.) Plaintiff explained that she has 

problems standing up, due to her left knee pain. (R. at 37.) The pain in her 

left knee is helped when her mother massages her left foot. (R. at 38.) 

Plaintiff lives with eight people, including her mother, father and five 

siblings. (R. at 34-35.) Her father prepares her food. (R. at 45.) Her 

mother helps her get dressed, as it hurts her left hand to get dressed by 

herself. (R. at 49, 55.) Her siblings change the television channel for her. 

(R. at 49-50.) 

During the day, she watches television, lying down, because it is the 

most comfortable position for her. (R. at 40, 45.) She testified there is no 

reason why she could not sit up while watching television, but could not do 

so for 11 hours, because sitting in a chair causes knee pain, and 

acknowledged that she was not having any problems sitting in the chair for 

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the administrative hearing, other than the fact that her knee was hurting. (R. 

at 37, 45-46.) According to Plaintiff, it helps to raise her left foot off of the 

floor and put it on a small stool, elevated about ten inches. (R. at 47.) She 

might leave the house to go to the mall, but her parents drive her and stay 

with her. (R. at 50-51.) She testified that on the previous Sunday she was at 

the mall for one hour. (R. at 52.) While she initially testified that she 

walked around the whole hour, she later estimated that she stood for 20 

minutes, walked for 20 minutes and sat down for 20 minutes. (R. at 53-54.) 

There is nothing wrong with Plaintiff’s right arm and hand, and she 

agrees that her right hand is “fine.” (R. at 47, 49.) Her arm and knee 

problems are all on the left side, and her left arm, left leg and left knee 

problems have been the same for 22 years. (R. at 51; see also R. at 56.) She 

testified that she can lift 10 pounds with just her right hand, but she cannot 

lift anything with her left hand alone. (R. at 48.)6

 

Plaintiff testified that she cannot type, but she can get on a computer. 

(R. at 55.) If using a computer, she could get onto the internet with her right 

hand. (R. at 55; see also R. at 58.) She has had an email address since 2009, 

 

6 In her function report, Plaintiff states she can only utilize her right hand. 

(R. at 153.) In her disability report she also represented that she “cannot 

hold with left hand.” (R. at 142.) 

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when she graduated high school, and uses it to communicate with her best 

friend. (R. at 58-59.) 

Plaintiff testified that she takes Carbatrol two times per day – at 2:00 

p.m. and 11:00 p.m. (R. at 56-57.) Carbatrol makes her sleepy. (R. at 41, 

57.) She normally goes to bed at 11:00 p.m. and gets out of bed at noon, and 

may sleep until 7:00 p.m. following her afternoon dose. (R. at 56-57.) 

Plaintiff testified that her last seizure occurred in 2011, for which she 

received treatment at Detroit Receiving Hospital. (R. at 42.) 

 2. Vocational Expert Testimony

 VE Scott Silver testified. (R. at 60-81.) As to the first hypothetical, 

which assumed an individual of Plaintiff’s age and education with no 

relevant work and no skills but with an RFC having approximately thirteen 

(13) different limitations, the VE testified that such an individual could 

perform work as a surveillance monitor (excluding Homeland Security and 

gaming institutions) for which there are 2,500 jobs in Michigan, 1,000 in the 

tri-county area and 91,000 nationally. (R. at 61-62.) 

The ALJ also asked the VE a host of other questions and 

hypotheticals. (R. at 62-81.) In particular, I note the VE’s testimony that 

needing to take breaks, such that the maximum an individual would be 

available to work would be six hours per day, would be preclusive for full5:14-cv-13939-APP Doc # 16 Filed 03/21/16 Pg 10 of 46 Pg ID 335
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time employment. (R. at 65.) In addition, the VE testified that needing to 

take anti-convulsive medication and having to fall asleep right away for five 

hours would be employment preclusive. (R. at 65-66.) Also, the VE 

testified that completely eliminating use of the left hand for any activity, 

such as no longer having the arm, would preclude the jobs, although he also 

stated that limiting the use of the left upper extremity to “not at all” would 

not change the number of jobs available, seemingly a contradiction. (R. at 

80-81, 63.) 

 D. The Administrative Decision (June 28, 2013)7

 

7 Social Security Regulations require ALJs to resolve a disability claim 

through a five-step sequential evaluation of the evidence. See 20 C.F.R. 

§404.1520(a)(4). Although a dispositive finding at any step terminates the 

ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), if 

fully considered, the sequential review considers and answers five questions: 

 1. Is the claimant engaged in substantial gainful activity? 

 2. Does the claimant suffer from one or more severe impairments? 

 3. Do the claimant’s severe impairments, alone or in combination, 

meet or equal the criteria of an impairment set forth in the Commissioner’s 

Listing of Impairments, 20 C.F.R. Subpart P, Appendix 1? 

 4. Considering the claimant’s residual functional capacity, can the 

claimant perform his or her past relevant work? 

 5. Considering the claimant’s age, education, past work 

experience, and residual functional capacity, can the claimant perform other 

work available in the national economy? 

See 20 C.F.R. §404.1520(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 

(6th Cir. 2009); Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001). 

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On June 28, 2013, ALJ Callahan issued his decision. (R. at 11-26.) 

In so doing, he used the amended onset date of January 1, 2012, as requested 

by Plaintiff in her April 4, 2013 hearing memorandum. (R. at 170-172.) 

At Step 1 of the sequential evaluation process, the ALJ found that 

Plaintiff has not engaged in substantial gainful activity since January 1, 

2012. (R. at 16.) 

At Step 2, the ALJ found that Plaintiff has the following severe 

impairments: poliomyelitis with limited use of the left upper and lower 

extremity and seizure disorder. (R. at 16.) 

At Step 3, the ALJ found that Plaintiff does not have an impairment or 

combination of impairments that meets or medically equals the severity of 

listing 1.02 (“Major dysfunction of a joint(s) (due to any cause)”) or any 

other listed impairment. (R. at 16.) 

At Step 4, the ALJ found that Plaintiff has the residual functional 

capacity (RFC) to perform sedentary work, except for these 13 limitations: 

 lift or carry five pounds frequently and 10 pounds 

occasionally with the dominant [right] upper extremity 

and three pounds with the non-dominant [left] upper 

extremity; 

 stand or walk from 20 minutes at a time up to one half 

hour at a time and up to two hours per day; 

 does not require an assistive device when walking; 

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 no limitations on sitting, pushing or pulling except within 

the above limits on lifting or carrying and a maximum of 

pushing or pulling of three pounds on the left; 

 unable to operate foot controls with the left lower 

extremity; 

 occasional climbing of ramps and stairs; 

 occasional balancing, stooping, kneeling, crouching or 

crawling; 

 able to kneel except no kneeling where the claimant is 

expected to rise using her left leg; 

 no climbing ladders, ropes or scaffolds; 

 limited handling with the non-dominant left upper 

extremity and hand to occasionally; 

 unlimited handling, fingering or feeling with the 

dominant right upper extremity and reaching in all 

directions with either upper extremity, but subject to 

weight limits of three pounds on the left and 10 pounds 

occasionally on the right or five pounds frequently on the 

right; 

 no limits on handling or fingering on the right; and 

 no visual or communicative or environmental limitations 

except that she cannot be exposed to unprotected heights, 

sharp surfaces or objects, fast moving, heavy machinery 

or driving. 

 

(R. at 16-21.) Also, the ALJ found that Plaintiff has no past relevant work. 

(R. at 21.) 

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At Step 5, considering the Plaintiff’s age, education, work experience, 

and RFC, the ALJ found that there are jobs that exist in significant numbers 

in the national economy that Plaintiff can perform. (R. at 21-22.) 

E. Standard of Review

 The District Court has jurisdiction to review the Commissioner’s final 

administrative decision pursuant to 42 U.S.C. § 405(g). When reviewing a 

case under the Social Security Act, the Court “must affirm the 

Commissioner’s decision if it ‘is supported by substantial evidence and was 

made pursuant to proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 

582 F.3d 647, 651 (6th Cir. at 2009) (quoting Rogers v. Comm’r of Soc. 

Sec., 486 F.3d 234, 241 (6th Cir. at 2007)); see also 42 U.S.C. § 405(g) 

(“[t]he findings of the Commissioner of Social Security as to any fact, if 

supported by substantial evidence, shall be conclusive . . . .”). Under this 

standard, “substantial evidence is defined as ‘more than a scintilla of 

evidence but less than a preponderance; it is such relevant evidence as a 

reasonable mind might accept as adequate to support a conclusion.’” Rogers, 

486 F.3d at 241 (quoting Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 

284, 286 (6th Cir. 1994)). In deciding whether substantial evidence supports 

the ALJ’s decision, the court does “not try the case de novo, resolve conflicts 

in evidence or decide questions of credibility.” Bass v. McMahon, 499 F.3d 

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506, 509 (6th Cir. 2007); Rogers, 486 F.3d at 247 (“It is of course for the 

ALJ, and not the reviewing court, to evaluate the credibility of witnesses, 

including that of the claimant.”). Furthermore, the claimant “has the 

ultimate burden to establish an entitlement to benefits by proving the 

existence of a disability.” Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 

1990). 

 Although the substantial evidence standard is deferential, it is not 

trivial. The Court must “‘take into account whatever in the record fairly 

detracts from [the] weight’” of the Commissioner’s decision. TNS, Inc. v. 

NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting Universal Camera Corp. 

v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial evidence 

supports the ALJ’s decision, this Court defers to that finding ‘even if there is 

substantial evidence in the record that would have supported an opposite 

conclusion.’” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (quoting 

Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)); see also 42 U.S.C. § 

405(g) (“The findings of the Commissioner of Social Security as to any fact, 

if supported by substantial evidence, shall be conclusive . . . .”). Finally, 

even if the ALJ’s decision meets the substantial evidence standard, “‘a 

decision of the Commissioner will not be upheld where the SSA fails to 

follow its own regulations and where that error prejudices a claimant on the 

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merits or deprives the claimant of a substantial right.’” Rabbers, 582 F.3d at 

651 (quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 

2007)). 

 F. Analysis 

Within the argument portion of her motion for summary judgment 

and/or remand, Plaintiff asserts the following statements of error: 

1. The ALJ did not properly assess the Plaintiff’s credibility and 

limitations with respect to the use of her left hand and the side 

effects of her medication. 

2. The ALJ failed to assess whether Plaintiff’s medical condition 

met or equaled Listing 1.11 (anterior poliomyelitis) – including 

Listing 11.04B’s “[s]ignificant and persistent disorganization of 

motor function in two extremities,” - and also failed to assess 

Plaintiff’s post-polio sequelae as outlined in Social Security 

Ruling 03-1p. 

 

3. The ALJ did not give proper weight to the medical opinions of 

Dr. Sharma, the Plaintiff’s treating and examining physician. 

4. The ALJ did not pose complete and accurate hypothetical 

questions to the VE. 

(DE 11 at 14-28.)8

 

 

8 Plaintiff’s motion listed six statements of error. (DE 11 at 1-2.) Plaintiff’s 

brief lists four questions presented. (DE 11 at 8.) However, Plaintiff’s 

argument contains three bold faced arguments, some aspects of which are 

never actually addressed, e.g., Plaintiff’s general credibility. (DE 11 at 14, 

20.) These discrepancies make it unnecessarily difficult to understand what 

is at issue in this appeal and what is not; however, issues which are not 

adequately developed and supported are deemed waived. Straws v. 

Berghuis, No. 2:08 CV 10481, 2010 WL 420018, at *1 (E.D. Mich. Jan. 28, 

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The Commissioner opposes Plaintiff’s motion, asserting that (1) the 

ALJ properly evaluated the credibility of Plaintiff’s allegations about 

weakness and medication side effects; (2) the ALJ properly evaluated the 

opinion provided by Plaintiff’s treating physician, Dr. Sharma; (3) the ALJ 

was not required to discuss whether Plaintiff’s condition satisfied the 

requirements of Listing 11.04B; and (4) the ALJ properly relied on the VE 

testimony. (DE 13 at 12-27.) 

I will address each argument in turn. 

1. The ALJ properly assessed Plaintiff’s credibility. 

In his June 28, 2013 decision, the ALJ determined that Plaintiff’s 

“statements concerning the intensity, persistence and limiting effects of [her 

alleged] symptoms are not entirely credible . . . .” (R. at 18.) In doing so, 

the ALJ first took note of Dr. Bensons’s August 17, 2009 report that 

 

2010) (“Generally, issues which are not adequately developed in a brief are 

deemed waived.”) (citing Rojem v. Gibson, 245 F.3d 1130, 1141, n.8 (10th 

Cir.2001)). Plaintiff’s counsel is reminded that “[a] brief supporting a 

motion or response must, at the beginning, contain a concise statement of the 

issues presented and, on the following page, the controlling or most 

appropriate authority for the relief sought.” E.D. Mich. LR 7.1(d)(2) (“Form 

of Required Briefs.”). Moreover, the argument section of the brief should be 

clearly sub-divided into the number of arguments addressed, which should 

conform to the issues presented at the beginning of the brief, as now 

required by the Undersigned’s Practice Guidelines on Social Security 

briefing. Finally, as Plaintiff’s brief makes use of various line spacing, 

counsel’s attention is further directed to E.D. Mich. LR 5.1(a)(2) 

(“Format.”). (See, i.e., DE 11 at 18, 24, 25, 26.) 

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Plaintiff “just finished high school and [was] planning to attend Wayne State 

University.” (R. at 18, 206.) Second, the ALJ noted a discrepancy 

regarding the date of Plaintiff’s last seizure. (R. at 18.) For example, the 

May 30, 2012 seizure questionnaire completed by Plaintiff’s father listed her 

last seizure as occurring on November 20, 2011. (R. at 149.) Consistently, 

at the May 1, 2013 hearing, Plaintiff testified that her last seizure occurred in 

2011. (R. at 42.) However, Dr. Shelby-Lane’s July 9, 2012 report notes that 

Plaintiff “states that she has not had a seizure since 2009.” (R. at 182.)9

 

Third, the ALJ observed, “[t]he claimant claims that the medications cause 

drowsiness and sleepiness but there is no mention of this in the medical 

reports.” (R. at 18.) Fourth, the ALJ found Plaintiff’s claims about 

limitations in fine and gross manipulation unsupported by Dr. Sharma’s 

February 25, 2013 RFC Medical Questionnaire and then pointed to what 

appears to be Dr. Sharma’s November 5, 2012 observation of a left hand 

claw deformity. (R. at 19, 220-222, 202.) For purposes of discounting 

Plaintiff’s credibility generally, this would appear to be more than adequate. 

Notwithstanding this, Plaintiff attacks the ALJ’s credibility 

determination on two specific points. First, she argues that the ALJ “failed 

 

9 In addition, I note that Dr. Sharma’s record of her January 8, 2011 check-up 

references a chief complaint of acne and her last seizure as having occurred 

a “long time ago . . . .” (R. at 192).

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to assess” her ability to grasp, pick up objects, and use her left hand. (DE 11 

at 1-2, 8, 14-15, 18-19; see also DE 13 at 12.) Second, she argues that the 

ALJ gave improper weight to her testimony that her medication caused 

drowsiness. (DE 11 at 14, 19-20; see also DE 13 at 12.) 

a. The ALJ adequately considered Plaintiff’s 

ability to use her left hand. 

In arguing that the ALJ failed to give adequate consideration to 

Plaintiff’s left upper extremity disabilities, Plaintiff points, inter alia, to Dr. 

Benson’s August 17, 2009 notes regarding reduced left-side reflexes and 

decreased bulk on the left upper extremity, Dr. Sharma’s November 15, 

2011 notes about left hand deformity, Dr. Sharma’s November 5, 2012 notes 

regarding claw deformity, and Dr. Sharma’s February 25, 2013 assessment 

about left hand limitations. (DE 11 at 13-15, R. at 206, 199, 202, 221.) 

The ALJ acknowledged the post-seizure dizziness or weakness and 

muscle soreness indicated on the May 30, 2012 seizure form, as well as Dr. 

Shelby-Lane’s July 9, 2012 notations of left-side weakness. (R. at 18-19, 

21; see also R. at 149, 183-184.) The ALJ also acknowledged Dr. Sharma’s 

November 5, 2012 finding of a left hand claw deformity and February 25, 

2013 opinion that Plaintiff could occasionally (1/3 of the time) use her hand 

for occupational duties, including repetitive grasping, holding, and pinching. 

(R. at 19, 202, 221.) Furthermore, the ALJ acknowledged Plaintiff’s 

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counsel’s April 4, 2013 assertion that Plaintiff “has an inability to perform 

fine and gross manipulation effectively (1.02 (B)) with her left upper 

extremity.” (R. at 16, 172.) In addition, the ALJ acknowledged Interviewer 

T. Kouba’s May 14, 2012 observation that Plaintiff did not have difficulty 

with using hands or writing. (R. at 21, 138-140.) The ALJ also 

acknowledged Dr. Shelby-Lane’s July 9, 2012 note that Plaintiff had “slight 

difficulty with the use of her left side because of weakness and a limp on 

that side and left foot drop.” (R. at 19, 21, 184.) In light of all these 

considerations, there was substantial evidence to support the ALJ’s decision 

to discount the Plaintiff’s credibility with respect to her claimed limitations. 

Contrary to Plaintiff’s portrayal, this same evidence supplied an adequate 

basis for the ALJ to find that Plaintiff was not completely disabled from 

using her left hand/extremity and to fashion the RFC that he ultimately 

adopted. 

b. The ALJ adequately considered the side effects 

of Plaintiff’s medication. 

Plaintiff also argues that the ALJ gave improper weight to her 

testimony that her Carbatrol medication caused “extreme fatigue and 

drowsiness,” which she testified to be an immediate reaction. (DE 11 at 12, 

14, 19, 20, 41, 57.) However, as noted above, the ALJ observed in his 

written decision that Plaintiff “claims that the medications cause drowsiness 

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21

and sleepiness but there is no mention of this in the medical reports.” (R. at 

18; see also R. at 41, 44 and 57) (emphasis added). Here, Plaintiff refers to 

the Physician’s Desk Reference, which lists possible side effects of 

Carbatrol as including “dizziness, drowsiness, aching joints, muscle and leg 

cramps[.]” (DE 11 at 19-20, 31.) However, as the Commissioner points out, 

Plaintiff’s undated function report admits that while she currently takes 

medicines, they do not cause side effects. (R. at 160, DE 13 at 14.) 

Furthermore, the record shows that Plaintiff has been taking Carbatrol since 

she was eight years old, yet was able to attend and complete high school 

without any special accommodations. (R. at 31, 34, 57, 205.) Moreover, 

she was dissuaded from attending college because of a “ride problem” 

and/or a “reading problem.” (R. at 31-32.) The record is thus replete with 

reasons for discounting Plaintiff’s testimony as to the debilitating effects of 

Carbatrol, both expressed and unexpressed, and any failure by the ALJ to 

mention them is harmless, this Court being convinced that a remand on this 

issue would not change the ultimate outcome. Ulman v. Comm'r of Soc. 

Sec., 693 F.3d 709, 714 (6th Cir. 2012) (“harmless error analysis applies to 

credibility determinations in the social security disability context.”). 

2. The ALJ properly weighed the opinion evidence. 

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22

Plaintiff challenges the ALJ’s assessment of treating physician Dr. 

Sharma’s opinions and also challenges whether the ALJ should have 

contacted Dr. Sharma to clarify treatment notes and complete the RFC 

Medical Questionnaire form, instead of discounting it, in accordance with 20 

C.F.R. § 404.1512(e)(1). (DE 11 at 15-18.) 

a. The ALJ’s Standard of Review 

The ALJ must consider all medical opinions that he or she receives in 

evaluating a claimant’s case. 20 C.F.R. § 416.927(d). The regulations 

define medical opinions as “statements from physicians . . . that reflect 

judgments about the nature and severity of your impairment(s), including 

your symptoms, diagnosis and prognosis, what you can still do despite 

impairment(s), and your physical or mental restrictions.” 20 C.F.R. 

§ 416.927(a)(2). “Administrative law judges are not bound by any findings 

made by State agency medical or psychological consultants, or other 

program physicians or psychologists.” 20 CFR § 404.1527(e)(2)(i). The 

ALJ must, however, “consider findings and other opinions” of State Agency 

medical or psychological consultants. 

The ALJ generally gives deference to the opinions of a treating source 

“since these are likely to be the medical professionals most able to provide a 

detailed, longitudinal picture of [a patient’s] medical impairment(s) and may 

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23

bring a unique perspective to the medical evidence that cannot be obtained 

from the objective medical findings alone . . . .” 20 C.F.R. § 416.927(d)(2); 

Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 408 (6th Cir. 2009). To 

qualify as a treating source, the physician must have an “ongoing treatment 

relationship” with the claimant. 20 C.F.R. § 404.1502. 

If the ALJ does not afford controlling weight to a treating physician’s 

opinion, the ALJ must meet certain procedural requirements. Wilson v. 

Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). Specifically, if an 

ALJ does not give a treating source’s opinion controlling weight: 

[A]n ALJ must apply certain factors—namely, the length of the 

treatment relationship and the frequency of examination, the nature 

and extent of the treatment relationship, supportability of the opinion, 

consistency of the opinion with the record as a whole, and the 

specialization of the treating source—in determining what weight to 

give the opinion. 

Id.

Furthermore, an ALJ must “always give good reasons in [the ALJ’s] 

notice of determination or decision for the weight [the ALJ] give[s] your 

treating source’s opinion.” 20 C.F.R. § 416.927(d)(2). Accordingly, the 

ALJ’s reasoning “must be sufficiently specific to make clear to any 

subsequent reviewers the weight the adjudicator gave to the treating source’s 

medical opinion and the reasons for that weight.” Friend v. Comm’r of Soc. 

Sec., No. 09-3889, 2010 WL 1725066, at *7 (6th Cir. 2010) (internal 

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24

quotation omitted). The United States Court of Appeals for the Sixth Circuit 

has stressed the importance of the good-reason requirement: 

“The requirement of reason-giving exists, in part, to let 

claimants understand the disposition of their cases,” particularly 

in situations where a claimant knows that his physician has 

deemed him disabled and therefore “might be especially 

bewildered when told by an administrative bureaucracy that she 

is not, unless some reason for the agency’s decision is 

supplied.” Snell v. Apfel, 177 F.3d 128, 134 (2d Cir.1999). The 

requirement also ensures that the ALJ applies the treating 

physician rule and permits meaningful review of the ALJ’s 

application of the rule. See Halloran v. Barnhart, 362 F.3d 28, 

32–33 (2d Cir. 2004). 

Wilson, 378 F.3d at 544–45. Thus, the reason-giving requirement is 

“particularly important when the treating physician has diagnosed the 

claimant as disabled.” Germany-Johnson v. Comm’r of Soc. Sec., 312 F. 

App’x 771, 777 (6th Cir. 2008) (citing Rogers, 486 F.3d at 242). 

b. The ALJ’s Analysis of the Medical Record and 

Opinion Evidence 

Within his June 28, 2013 Step 4 RFC determination, the ALJ assigned 

weight to certain records. Among these was the ALJ’s assignment of little 

weight to Dr. Bhupesh Sharma’s February 25, 2013 RFC medical 

questionnaire (R. at 19, 220), great weight to Dr. Shelby-Lane’s July 9, 2012 

assessment (R. at 19-21, 182-184), and great weight to the July 25, 2012 

assessment of Dr. Tariq Mahmood (R. at 20-21, 87-89). 

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i. The ALJ Properly Discounted Dr. 

Sharma’s Opinion. 

 

In his June 28, 2013 decision, the ALJ expressly states that he 

considered opinion evidence in accordance with the requirements of 20 

C.F.R. § 416.927. (R at 17.) As the Sixth Circuit has instructed: 

As to the RFC or medical condition, an ALJ may only choose 

not to give a treating physician's opinion controlling weight if 

she gives “good reasons ... for the weight give[n],” 20 C.F.R. § 

404.1527(d)(2) (now in 20 C.F.R. § 404.1527(c)(2)), and if 

those reasons are “supported by the evidence in the case record, 

and [are] sufficiently specific to make clear to any subsequent 

reviewers the weight the adjudicator gave to the treating 

source's medical opinion and the reasons for that weight,” SSR 

96–2p, 1996 WL 374188, at *5 (1996). If the ALJ decides not 

to give a treating physician's opinion controlling weight, the 

ALJ may not reject the opinion, but must apply other factors to 

determine what weight to give the opinion, such as “the length 

of the treatment relationship and the frequency of examination, 

the nature and extent of the treatment relationship, 

supportability of the opinion, consistency of the opinion with 

the record as a whole, and the specialization of the treating 

source[.]” Wilson, 378 F.3d at 544 (citing § 404.1527(d)(2), 

now in § 404.1527(c)(2)). 

Gentry v. Commissioner of Social Sec., 741 F.3d 708, 727 (6th Cir. 2014) 

(emphasis added). 

Here, in assigning little weight to Dr. Sharma’s February 25, 2013 

opinion, the ALJ has provided good reasons which are supported by the 

evidence and are sufficiently specific. (See R. at 19, 220-222.) For 

example, the ALJ noted that Dr. Sharma’s February 25, 2013 “RFC Medical 

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26

Questionnaire” indicates that Plaintiff can occasionally use her left hand for 

repetitive grasping, holding, and pinching, in contrast to her counsel’s April 

4, 2013 argument that “she is very limited in both fine and gross 

manipulation.” (R. at 19, 171, 221.) In addition, the ALJ pointed out that 

Dr. Sharma’s November 5, 2012 notes observed a left hand claw deformity. 

(R. at 19, R. at 202.) More importantly, the ALJ noted that Dr. Sharma 

diagnosed seizure disorder, something illegible, atopic dermatitis, and polio 

of the left arm and leg, but left blank the crucial, supporting Question 3, 

which reads, “Please advise as to the signs, symptoms, and tests that 

support the diagnoses.” (R. 19, 220 (emphasis added).) As the ALJ 

explained, “[s]ince this document is rendered unreliable by the incomplete 

answer 3, the undersigned, therefore, assigns little weight to this . . . 

opinion.” (R. at 19.) “The opinions and diagnoses of treating physicians are 

entitled to deference, but they are not entitled to complete deference and thus 

are not controlling if inconsistent with other substantial evidence or 

unsupported by detailed objective criteria and documentation.” Nabours v. 

Comm'r of Soc. Sec., 50 F. App'x 272, 276 (6th Cir. 2002) (emphasis added) 

(citations omitted). 

To the extent Plaintiff argues that the ALJ “had a duty to recontact the 

claimant’s medical sources[,]” (see DE 11 at 15-17), the Commissioner 

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correctly points out that 20 C.F.R. §§ 404.1512(d) and 416.912(e) no longer 

contain a provision about re-contacting medical sources, and the regulation 

governing the consideration of evidence now provides, in pertinent part: 

We may recontact your treating physician, psychologist, or 

other medical source. We may choose not to seek additional 

evidence or clarification from a medical source if we know 

from experience that the source either cannot or will not 

provide the necessary evidence. 

20 C.F.R. §§ 404.1520b(c)(1), 416.920b(c)(1) (emphases added). (DE 13 at 

20-21.) In other words, “ALJs now have discretion to decide whether to 

recontact.” Hollis v. Comm'r of Soc. Sec., No. 13-13054, 2015 WL 357133, 

at *23 (E.D. Mich. Jan. 27, 2015) (Friedman, J., adopting report and 

recommendation of Morris, M.J.) (citing 20 C.F.R. §§ 404.1520b(c), 

416.920b(c)). 

 Here, the ALJ was well within his authority to assign little weight to 

Dr. Sharma’s opinion, and well within his discretion to refrain from 

recontacting him. This is particularly so in light of the other medical 

evidence and opinions he had available to him. 

ii. The ALJ Properly Considered the Other 

Medical Opinions and the Record as a 

Whole. 

Furthermore, the medical record contains assessments of Plaintiff’s 

medical conditions and ability to work by other doctors. For example, the 

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ALJ assigned great weight to the July 9, 2012 opinion of consultative 

examiner Dr. Shelby-Lane. (R. at 19-21, 182-184.) Dr. Shelby-Lane’s 

medical source statement reads as follows: 

Based upon the history and the exam, the examinee is of very 

small stature. She is taking Periactin to help with her weight. 

She does have slight difficulty with the use of her left side 

because of weakness and a limp on that side and left foot drop. 

The examinee would have difficulty due to her small stature

with lifting, pushing and pulling heavy loads. She does not do 

that in general. She should avoid operating foot and leg 

controls and motorized equipment because of the history of 

seizures. 

(R. at 184) (emphasis added). The ALJ found that this report “spells out in 

greater detail and extent the medical problems and the limitations on the 

claimant’s ability to perform gainful activity.” (R. at 20.) 

 Also, the ALJ assigned great weight to the July 25, 2012 physical 

RFC assessment of State agency physician Tariq Mahmood, M.D., which set 

forth: (1) exertional limitations (occasional lifting and/or carrying of 10 

pounds, frequent lifting and/or carrying of less than 10 pounds, standing 

and/or waking for a total of 2 hours, sitting for a total of approximately 6 

hours in an 8-hour workday, and limitations on pushing and/or pulling in the 

left upper and lower extremities); (2) postural limitations (occasional 

climbing ramps/stairs, climbing ladders/ropes/scaffolds, balancing, stooping, 

kneeling, crouching, and crawling); (3) manipulative limitations (limited in 

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handling (gross manipulation) with the left); and (4) environmental 

limitations (avoiding all exposure to hazards), but no visual or 

communicative limitations. (R. at 20-21, 87-89.) With regard to the 

assessment of vocational factors, the ALJ demonstrated independent 

judgment by noting that Dr. Mahmood should have relied on the framework 

of Medical-Vocational Rule 201.27, rather than 201.29. (R. at 20, 89-90.) 

Also, the ALJ noted that Dr. Mahmood’s assessment pre-dates Plaintiff’s 

hearing testimony. (R. at 20, 31-60.) Nonetheless, the ALJ found that 

Plaintiff’s testimony “did not add any additional factors, which would limit 

the [RFC], as determined by Dr. Mahmood . . . .” (R. at 20.) 

Thus, the Court concludes that the ALJ appropriately weighed the 

opinion evidence in this case and considered the record as a whole. 

3. The ALJ’s failure at Step 3 to expressly address 

whether Plaintiff’s condition met or equaled Listing 

11.11 / post-polio sequelae as outlined in SSR 03-1p 

was harmless. 

Plaintiff argues that the ALJ did not assess her postpolio sequelae in 

accordance with SSR 03-1p, which concerns “DEVELOPMENT AND 

EVALUATION OF DISABILITY CLAIMS INVOLVING POSTPOLIO 

SEQUELAE.” DE 11 at 18-19. This regulation includes consideration of 

whether the postpolio sequelae impairment meets or equals listing 11.11: 

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The listing criteria under our current listing 11.11, Anterior 

poliomyelitis, may be applied both to cases of static polio 

(where there has been no reported worsening after initial 

recovery) and to cases presenting with postpolio sequelae. All 

documented postpolio sequelae must be considered either alone 

or in combination to determine whether the medical criteria of 

listing 11.11, or any other listing, have been met or equaled. If 

the impairment is not found to meet or equal a listed 

impairment, we consider the impact of the impairment and any 

related symptoms in determining an individual's RFC and we 

proceed to evaluate the individual's impairment under our 

sequential evaluation procedures in accordance with 20 CFR 

404.1545 and 416.945. It is essential that the cumulative and 

interactive effects of all of the individual's impairments, 

including symptoms, be carefully assessed in determining the 

individual's RFC in these cases. 

SSR 03-1p (emphasis added). Listing 11.11 for anterior poliomyelitis 

requires (A) “[p]ersistent difficulty with swallowing or breathing;” or (B) 

“[u]nintelligible speech;” or (C) “[d]isorganization of motor function as 

described in 11.04B.” Listing 11.04B requires “[s]ignificant and persistent 

disorganization of motor function in two extremities, resulting in sustained 

disturbance of gross and dexterous movements, or gait and station . . . .” Id. 

(emphasis added). 

 Plaintiff argues that she satisfies 11.04B “in the left upper extremity 

and hand.” (DE 11 at 18.) Here, she particularly cites Dr. Shelby-Lane’s 

assessment, which notes that Plaintiff “has weakness against resistance in 

the left upper and left lower extremity and a left foot drop with a limp on the 

left side.” (R. 183.) Plaintiff also seemingly points to Dr. Sharma’s 

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February 25, 2013 RFC assessment that Plaintiff can stand approximately 

one hour and walk approximately 1⁄2 hour in an eight hour day. (R. at 220-

222.) Moreover, Plaintiff points to her testimony about her left knee pain 

and her left foot. (R. at 36-37, 38-39, 47.) Therefore, it seems as if Plaintiff 

may also be arguing that she satisfies 11.04B in her left lower extremity, 

although this is unclear, as it is not specifically argued as satisfying the 

listing criteria. 

On the other hand, the Commissioner argues that the ALJ “was not 

required to discuss whether Plaintiff’s condition satisfied the requirements of 

Listing 11.04B[,]” as “the evidence shows that the Listing cannot be met.” 

(DE 13 at 21-23.) The Commissioner contends that “persistent 

disorganization of motor function” requires: 

paresis or paralysis, tremor or other involuntary movements, 

ataxia and sensory disturbances (any or all of which may be 

due to cerebral, cerebellar, brain stem, spinal cord, or peripheral 

nerve dysfunction) which occur singly or in various 

combinations, [and which] frequently provides the sole or 

partial basis for decision in cases of neurological impairment. 

The assessment of impairment depends on the degree of 

interference with locomotion and/or interference with the use of 

fingers, hands, and arms. 

20 C.F.R. § Pt. 404, Subpt. P, App. 1 (emphasis added).10 

 

10 Paresis is “[p]artial or incomplete paralysis.” Stedman’s Medical 

Dictionary 653770 (Nov. 2014). 

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32

Presumably referring to Dr. Shelby-Lane’s description of Plaintiff’s 

history of polio “with some mild weakness on the left side with a limp on the 

left side and a foot drop on the left lower extremity[,]” the Commissioner 

contends that Plaintiff “does not have paresis, paralysis, tremor, involuntary 

movement, ataxia, or sensory disturbance, as required by the Listing.” (DE 

13 at 22, R. at 184.) This appears to be accurate. Plaintiff points to no 

medical records or credited opinions which mention paresis, paralysis, 

tremor, other involuntary movements, ataxia or sensory disturbances. 

Significantly, Dr. Shelby-Lane’s July 9, 2012 neurologic exam

described Plaintiff’s sensory functions as “[n]o abnormalities noted, and 

intact to gross testing[,]” and the motor exam, which the ALJ expressly 

acknowledged at Step 4, as “[r]eveal[ing] fair muscle tone without evidence 

of flaccidity, spasticity or paralysis.” (R. at 19, 183-184.) Furthermore, Dr. 

Shelby-Lane’s finding that Plaintiff could walk on heels and toes and 

tandem, and that her gait was “stable and within normal limits” would be 

inconsistent with ataxia. (R. at 189.)11 Moreover, on several occasions 

 

11 “Ataxia often occurs when parts of the nervous system that control 

movement are damaged. People with ataxia experience a failure of muscle 

control in their arms and legs, resulting in a lack of balance and coordination 

or a disturbance of gait. While the term ataxia is primarily used to describe 

this set of symptoms, it is sometimes also used to refer to a family of 

disorders. It is not, however, a specific diagnosis.” See

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33

during 2011, it appears Dr. Sharma likewise assessed “no focal sensory 

deficits.” (R. at 196, 199, 200.) 

“[D]uring the first four steps, the claimant has the burden of proof; 

this burden shifts to the Commissioner only at Step Five.” Walters v. 

Comm'r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). Plaintiff has not 

shown that she meets the definition of “persistent disorganization of motor 

function,” 20 C.F.R. § Pt. 404, Subpt. P, App. 1, and the Commissioner has 

offered reasons why the ALJ’s failure to expressly address Listing 1.11 – 

namely that Plaintiff cannot meet the definition of “persistent 

disorganization of motor function” - is harmless. McMillan v. Comm'r of 

Soc. Sec., No. 1:10-CV-308, 2011 WL 6997635, at *6 (W.D. Mich. Sept. 26, 

2011), report and recommendation adopted as modified, No. 1:10-CV00308, 2012 WL 90264 (W.D. Mich. Jan. 11, 2012) (“The ALJ's lack of 

clarity is, at most, harmless error, because the ALJ's finding that plaintiff did 

not meet or equal the requirements of listing 12.05's diagnostic description is 

supported by more than substantial evidence, and it was plaintiff's burden to 

demonstrate that she met or equaled all parts of the listing.”); see also West 

v. Commissioner of Soc. Sec. Admin., 240 F.App’x 692, 698 (6th Cir. 2007) 

(with regard to Listing 12.05(C), “[s]ubstantial evidence supports the ALJ’s 

 

http://www.ninds.nih.gov/disorders/ataxia/ataxia.htm (last visited Mar. 8, 

2016).

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34

conclusion that West did not experience deficiencies in adaptive 

functioning.”). 

Likewise, Plaintiff’s postpolio sequelae argument under SSR 03-1p is 

without merit. (DE 13 at 22 n.3). According to the National Institute of 

Neurological Disorders and Stroke (NINDS): 

. . . postpolio syndrome is a condition that affects polio 

survivors anywhere from 10 to 40 years after recovery from an 

initial paralytic attack of the poliomyelitis virus. The NINDS 

states that postpolio syndrome is characterized by a further 

weakening of muscles that were previously affected by the polio 

infection. The signs and symptoms include fatigue, slowly 

progressive muscle weakness, and, at times, muscular atrophy. 

The NINDS states that joint pain and increasing skeletal 

deformities such as scoliosis are common. Not all polio 

survivors experience these clinical problems, and the extent to 

which polio survivors are affected by postpolio syndrome 

varies. The onset of new or worsening signs and symptoms is 

associated with a further reduction of the individual's capacity 

to independently carry out activities of daily living. 

Policy Interpretation Ruling Titles II & Xvi: Dev. & Evaluation of Disability 

Claims Involving Postpolio Sequelae, SSR 03-1P (S.S.A. July 2, 2003) 

(emphases added). Here, there is no indication the Plaintiff’s condition has 

worsened over time or of a further weakening; in fact, she testified that the 

problem with her left arm, left leg and left knee has been the same for 22 

years. (R. at 51.) 

4. Plaintiff’s Step 5 arguments are unavailing. 

a. The accuracy of the hypothetical 

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35

Plaintiff also makes several Step 5 arguments. (See DE 11 at 20-28.) 

First, she challenges the accuracy of the hypothetical posed to the VE. As 

noted above, the ALJ’s Step 4 RFC determination specified, among other 

limitations, “limited handling with the non-dominant left upper extremity 

and hand to occasionally[,]” compared to “unlimited handling, fingering or 

feeling with the dominant right upper extremity . . . .[,]” “reaching in all 

directions with either upper extremity,” and “no limits on handling or 

fingering on the right[.]” (R. at 17 (emphasis added).) Similar conditions 

were part of his hypothetical to the VE. (See R. at 62, 76.)12 

Plaintiff argues that the ALJ’s hypothetical does not take into 

consideration her ability to manipulate her fingers and her “testimony about 

her inability to grasp and to make a fist[,]” in other words, her “significant 

limitation with regard to fingering, handling or grasping[,]” or feeling. (See 

DE 11 at 21-22, 27-28.) However, to the extent this argument is based upon 

Plaintiff’s testimony or Dr. Sharma’s February 25, 2013 RFC medical 

questionnaire, the ALJ’s credibility assessment and treatment of Dr. 

 

12 The regulation which discusses physical exertion requirements does not 

address “reaching.” However, it states, in part: “Sedentary work involves 

lifting no more than 10 pounds at a time and occasionally lifting or carrying 

articles like docket files, ledgers, and small tools. Although a sedentary job 

is defined as one which involves sitting, a certain amount of walking and 

standing is often necessary in carrying out job duties. Jobs are sedentary if 

walking and standing are required occasionally and other sedentary criteria 

are met.” 20 CFR § 404.1567(a)(emphasis added).

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36

Sharma’s opinion have been addressed above. In other words, as the 

Commissioner suggests, Plaintiff is advocating that there should have been 

“a complete prohibition on the use of her left arm[.]” (DE 13 at 24-25.) 

However, this argument was appropriately rejected as being without 

credible, objective record support. Contrary to the arguments asserted here, 

the ALJ appears to have carefully crafted an RFC and related hypothetical 

which reflect the Claimant’s actual impairments and which are substantially 

supported by the record as a whole. 

b. Whether a significant number of jobs satisfying 

the RFC exists 

Second, Plaintiff argues that 400 surveillance monitor jobs in the 

entire State of Michigan do not constitute a significant number. (DE 11 at 

22-23, 26-27.) In his Step 5 analysis, the ALJ noted that an accommodation 

for one-handed work reduced the number of jobs available from 91,000 to 

30,000 jobs nationally, from 2,500 to 400 jobs in the State of Michigan, and 

from 1,000 to 200 jobs in the tri-county area. (R. at 22.) Although the VE 

sometimes made use of the term “employers” instead of the term “jobs,” 

these numbers align with the VE’s testimony. (R. at 62-63, 77-80.). 

Certainly, the Sixth Circuit has acknowledged the difficulty of defining a 

significant number: 

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37

We are not blind, however, to the difficult task of enumerating 

exactly what constitutes a “significant number.” We know that 

we cannot set forth one special number which is to be the 

boundary between a “significant number” and an insignificant 

number of jobs. The figure that the ALJ here found is not that 

magic number; the 1350 figure is to be viewed in the context of 

this case only. A judge should consider many criteria in 

determining whether work exists in significant numbers, some 

of which might include: the level of claimant's disability; the 

reliability of the vocational expert's testimony; the reliability of 

the claimant's testimony; the distance claimant is capable of 

travelling to engage in the assigned work; the isolated nature of 

the jobs; the types and availability of such work, and so on. 

The decision should ultimately be left to the trial judge's 

common sense in weighing the statutory language as applied to 

a particular claimant's factual situation. 

Hall v. Bowen, 837 F.2d 272, 273-275 (6th Cir. 1988); see also Martin v. 

Comm'r of Soc. Sec., 170 F.App'x 369, 375 (6th Cir. 2006) (“While there are 

only 107,826 assembler jobs in the United States, 870 of the jobs are 

concentrated in Martin's geographic region. Contrary to Martin's position, 

870 jobs can constitute a significant number in the geographic region.”), 

Stewart v. Sullivan, 904 F.2d 708 (6th Cir. 1990) (“Given the total number 

of jobs available in Floyd and Pike Counties, we hold that 125 relevant jobs 

can be a significant number of jobs in that region. . . . Certainly, 400,000 

jobs, with no indication of gross concentration in a few areas, is a significant 

number of jobs in the national economy.”). 

In the case at bar, the Court need not determine whether 400 jobs in 

the State of Michigan constitutes a significant number, because, for the 

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38

reasons stated above, substantial evidence supports the ALJ’s RFC as to the 

left upper extremity. The record evidence does not establish that Plaintiff is 

one-handed. Dr. Sharma, a treating physician, observed a left hand claw 

deformity and opined that despite limitations in the full use of her left hand, 

she could use it occasionally (1/3 of the time) (R. at 202, 221). Dr. ShelbyLane noted not a complete inability to use her left hand, but rather, a 

“weakness against resistance in the left upper . . . extremity . . . .” (R. at 

183.) Moreover, Plaintiff herself testified that she tried to ride a bike in 

2011, although she fell down, and further testified that she did not have to 

have any special accommodations in high school. (R. at 32-34, 39, 52.) In 

addition, the ALJ acknowledged Interviewer T. Kouba’s May 14, 2012 

observation that Plaintiff did not have difficulty with using hand(s) or 

writing. (R. at 21, 139.) Therefore, since the ALJ’s determination that 

Plaintiff did not need an accommodation for her left hand beyond that 

described in the RFC is supported by substantial evidence, the VE’s 

testimony about 91,000 surveillance monitor jobs nationally, 2,500 statewide 

and 1,000 in the tri-county area would apply. (R. at 62; see also R. at 66-68, 

72-76.) These numbers are “significant.” 

 Finally, even if, arguendo, this Court found that Plaintiff was onehanded or could not use her left hand at all, the VE’s testimony supports a 

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conclusion that there were a significant number of jobs. In this case, the VE 

testified that an accommodation for a one-handed keyboard would reduce 

the numbers to 200 employers in the tri-county area, 400 employers in the 

State of Michigan and 30,000 jobs nationally. (R. at 77-79.) See Stewart v. 

Sullivan, 904 F.2d 708 (6th Cir. 1990) (“Given the total number of jobs 

available in Floyd and Pike Counties, we hold that 125 relevant jobs can be a 

significant number of jobs in that region. . . . Certainly, 400,000 jobs, with 

no indication of gross concentration in a few areas, is a significant number 

of jobs in the national economy.”). Here, even without having to consider 

whether 400 employers in the State of Michigan constitute a significant 

number, the Court has no trouble finding that 200 employers in the tricounty area and 30,000 jobs nationally do. 

c. Whether the VE’s testimony trumped the DOT 

Third, Plaintiff argues that the VE’s testimony regarding the existence 

of one-handed surveillance system monitor occupations “fails to trump the 

DOT language that lists them as requiring two hands.” (DE 11 at 24.) She 

takes issue with the VE’s reliance upon his “experience in the labor market” 

and his personal observation of the job in question (R. at 66-69), arguing that 

“[t]he job[] was only observed once, for about one hour, during a slow 

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time.” (DE 11 at 22-27.) In other words, Plaintiff asserts this job requires 

“bilateral keyboard operation.” (DE 11 at 28.) 

“When a VE or VS provides evidence about the requirements of a job 

or occupation, the adjudicator has an affirmative responsibility to ask about 

any possible conflict between that VE or VS evidence and information 

provided in the DOT. In these situations, the adjudicator will: 

Ask the VE or VS if the evidence he or she has provided 

conflicts with information provided in the DOT; and 

If the VE's or VS's evidence appears to conflict with the DOT, 

the adjudicator will obtain a reasonable explanation for the 

apparent conflict. 

SSR 00-4P (S.S.A. Dec. 4, 2000). Here, at Step 5, the ALJ stated: 

“Pursuant to SSR 00-4p, the undersigned has determined that the vocational 

expert's testimony is inconsistent with the information contained in the DOT 

for the reasons [which are] cited above.” (R. at 22.) At the hearing, there 

was substantial colloquy between the ALJ, the VE and Plaintiff’s counsel 

regarding how the DOT does not present a surveillance monitor as a onehanded job. (See, i.e., R. at 63, 66, 71 & 77.) Among other things, the VE 

testified: 

Well, here's the deal. Since there's been a tremendous increase, 

I'm looking at those jobs, those surveillance monitors and I'm 

precluding casinos, no gaming institutions and no Homeland 

Security because there is a lot more activity within those 

particular surveillance modes in terms of education required, 

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duties and data they have to enter and things that they have to 

observe and report, write about and enter in terms of 

keyboarding. I am talking about basically a very small 

percentage of the surveillance industry to begin with, which is 

why there were so few jobs mentioned, which is why this is as 

it is. If we are looking at jobs that pertain to Homeland Security 

and gaming institutions then we are . . . looking at more 

sophisticated training, we're looking at more data entry and of 

course we're looking at somebody that's going to require both 

hands to perform that job. But by and large I am looking again 

at a very small percentage of all those jobs that are security 

related. 

(R. at 70-71.) 

Plaintiff’s argument that the VE’s testimony fails to “trump” the DOT 

is unavailing. In this regard, the regulation specifically provides: “Neither 

the DOT nor the VE or VS evidence automatically ‘trumps’ when there is a 

conflict. The adjudicator must resolve the conflict by determining if the 

explanation given by the VE or VS is reasonable and provides a basis for 

relying on the VE or VS testimony rather than on the DOT information.” 

SSR 00-4P (S.S.A. Dec. 4, 2000). The ALJ did so here. In addition to the 

above-quoted explanation, which was elicited in cross-examination by 

Plaintiff’s counsel, upon examination by the ALJ the VE testified that he 

would advise the Court of any conflict between the DOT and his testimony 

and the basis for such opinion. (R. at 60-61.) The VE also testified that the 

DOT does not present the surveillance monitor as a one-handed job, and he 

also explained that his testimony was based on his “observations in the labor 

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market.” (R. at 66, 77.) Accordingly, the ALJ’s written decision expressly 

notes, “[t]he vocational expert testified that this is based upon his 

observations in the labor market and not DOT.” (R. at 22.) 

 Moreover, Plaintiff’s contention that the ALJ was compelled to defer 

to the DOT, in lieu of the VE’s opinion – and her reliance upon supporting 

cases from the Second, Seventh, and Eighth Circuits – is mistaken and 

misplaced. (DE 11 at 25-26.) In the Sixth Circuit, an ALJ “may” but need 

not defer to the DOT, and may instead rely upon the VE’s testing. Barker v. 

Shalala, 40 F.3d 789, 795 (6th Cir. 1994) (noting various disclaimers 

contained within the DOT itself). As our Court of Appeals has expressly 

noted, an ALJ is “within his rights to rely solely on the vocational expert’s 

testimony[,]” as “[t]he social security regulations do not require the 

Secretary or the expert to rely on classifications in the Dictionary of 

Occupational Titles.” Conn v. Sec'y of Health & Human Servs., 51 F.3d 

607, 610 (6th Cir. 1995) (citing 20 C.F.R. § 404.1566(d)). Indeed, this very 

regulation only requires that the ALJ “take notice” of the DOT, which he 

clearly did here. 20 C.F.R. § 404.1566(d)(1). Notably, the very next 

subsection in the regulation states that the ALJ “may use the services of a 

vocational expert” in determining “whether your work skills can be used in 

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other work and the specific occupations in which they can be used . . . .” 20 

C.F.R. § 404.1566(e). 

Finally, as occurred in Barker, the vocational expert here “was 

available for, and was subjected to, vigorous cross-examination by the 

plaintiff[,]” as to the discrepancies between his testimony and the DOT, 

which were “brought out and explored in detail in the administrative 

hearing[,]” Barker, 40 F.3d at 795, and, in the instant case, even 

acknowledged in the ALJ’s decision. (R. at 22.) The credibility of the VE 

having been “fully probed at the hearing,” it is “properly within the province 

of the ALJ to determine.” Id. (citing Sias v. Secretary of Health & Human 

Servs., 861 F.2d 475, 480 (6th Cir.1988)). Given the “substantial deference” 

to which his credibility findings are entitled on review in this regard, the 

Court “cannot say the ALJ clearly erred by accepting what the expert said.” 

Id. (citing King v. Heckler, 742 F.2d 968, 974 (6th Cir. 1984)). 

5. The ALJ’s RFC determination is supported by 

substantial evidence. 

Finally, I note Plaintiff’s generalized assertions that “the ALJ’s RFC 

is not supported by substantial evidence[,]” and “the testimony given by the 

[VE] clearly support[s] a finding and determination that the plaintiff had 

significantly limited ability to work.” (DE 11 at 9, 19.) These arguments 

appear to challenge the ALJ’s the ALJ’s Step 4 RFC finding. 

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Plaintiff’s RFC is “the most [he or she] can still do despite the 

physical and mental limitations resulting from [his or] her impairments.” 

Poe v. Comm’r of Soc. Sec., 342 F. App’x 149, 155 (6th Cir. 2009); see also 

20 C.F.R. §§ 404.1545(a), 416.945(a). The determination of Plaintiff’s RFC 

is an issue reserved to the Commissioner and must be supported by 

substantial evidence. 20 C.F.R. §§ 404.1527(e), 416.927(e). ‘“ALJs must 

not succumb to the temptation to play doctor and make their own 

independent medical findings.’” Simpson v. Comm’r of Soc. Sec., 344 F. 

App’x 181, 194 (6th Cir. 2009) (quoting Rohan v. Chater, 98 F.3d 966, 970 

(7th Cir. 1996)). However, the burden of proof at the Step 4 RFC stage 

rests with the claimant. Her v. Commissioner of Social Sec., 203 F.3d 388, 

391 (6th Cir. 1999) 

Plaintiff has failed to prove that the ALJ’s RFC determination was not 

supported by substantial evidence. As noted above, the ALJ’s Step 4 

sedentary RFC finding included a host of exertional, postural, manipulative 

and environmental limitations (R. at 16-17), the ALJ properly assessed 

Plaintiff’s credibility, and he properly weighed opinion evidence. Thus, the 

ALJ’s conclusion that Plaintiff has the RFC to perform sedentary work, with 

its 13-some limitations, should stand. 

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 In light of this, any challenge to the ALJ’s justifiable use of this RFC 

in forming his hypothetical at Step 5 would likewise be unavailing. Ealy v. 

Commissioner of Social Sec., 594 F.3d 504, 516 (6th Cir. 2010) (“In order for 

a vocational expert's testimony in response to a hypothetical question to 

serve as substantial evidence in support of the conclusion that a claimant can 

perform other work, the question must accurately portray a claimant's 

physical and mental impairments.”). Since the hypothetical posed to the VE 

does accurately portray Plaintiff’s physical and mental impairments, the 

VE’s testimony in response may serve as substantial evidence in support of a 

conclusion that Plaintiff can perform other work.. 

II. ORDER

 In sum, the Undersigned concludes that substantial evidence supports 

the ALJ’s decision denying benefits. Accordingly, the Plaintiff’s motion for 

summary judgment and/or remand (DE 11) is DENIED, Defendant’s motion 

for summary judgment (DE 13) is GRANTED, and the Commissioner of 

Social Security’s decision is AFFIRMED. 

IT IS SO ORDERED. 

Dated: March 21, 2016 s/Anthony P. Patti 

 Anthony P. Patti 

 UNITED STATES MAGISTRATE JUDGE 

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I hereby certify that a copy of the foregoing document was sent to parties of 

record on March 21, 2016, electronically and/or by U.S. Mail. 

 s/Michael Williams 

 Case Manager for the 

 Honorable Anthony P. Patti 

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