1

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

TERESA HAYWARD, 

 Plaintiff, Civil Action No. 14-14613 

 Honorable Marianne O. Battani 

 Magistrate Judge David R. Grand 

v. 

COMMISSIONER OF 

SOCIAL SECURITY, 

 Defendant. 

__________________________________/ 

REPORT AND RECOMMENDATION 

ON CROSS-MOTIONS FOR SUMMARY JUDGMENT [13, 14] 

Plaintiff Teresa Hayward (“Hayward”) brings this action pursuant to 42 U.S.C. §405(g), 

challenging the final decision of Defendant Commissioner of Social Security (“Commissioner”) 

denying her applications for Disability Insurance Benefits (“DIB”) and Supplemental Security 

Income (“SSI”) under the Social Security Act (the “Act”). Both parties have filed summary 

judgment motions [13, 14], which have been referred to this Court for a Report and 

Recommendation pursuant to 28 U.S.C. §636(b)(1)(B). 

I. RECOMMENDATION 

 For the reasons set forth below, the Court finds that substantial evidence supports the 

Administrative Law Judge’s (“ALJ”) conclusion that Hayward is not disabled under the Act. 

Accordingly, the Court recommends that the Commissioner’s Motion for Summary Judgment 

[14] be GRANTED, Hayward’s Motion for Summary Judgment [13] be DENIED, and that, 

pursuant to sentence four of 42 U.S.C. §405(g), the ALJ’s decision be AFFIRMED. 

 

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II. REPORT 

A. Procedural History 

On December 5, 2011, Hayward filed applications for DIB and SSI, alleging a disability 

onset date of April 1, 2011. (Tr. 142-156). These applications were denied initially on February 

15, 2012. (Tr. 84-91). Hayward filed a timely request for an administrative hearing, which was 

held on March 11, 2013, before ALJ Donald D’Amato. (Tr. 39-65). Hayward, who was 

represented by attorney Stephanie Rossi, testified at the hearing, as did vocational expert Luann 

Castellana. (Id.). On May 17, 2013, the ALJ issued a written decision finding that Hayward is 

not disabled under the Act. (Tr. 21-33). On October 8, 2014, the Appeals Council denied 

review. (Tr. 1-6). Hayward timely filed for judicial review of the final decision on December 6, 

2014. (Doc. #1). 

B. Framework for Disability Determinations 

Under the Act, DIB and SSI are available only for those who have a “disability.” See 

Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). The Act defines “disability” as the: 

inability to engage in any substantial gainful activity by reason of any 

medically determinable physical or mental impairment which can be 

expected to result in death or which has lasted or can be expected to last 

for a continuous period of not less than 12 months. 

42 U.S.C. §1382c(a)(3)(A). The Commissioner’s regulations provide that a disability is to be 

determined through the application of a five-step sequential analysis: 

Step One: If the claimant is currently engaged in substantial gainful 

activity, benefits are denied without further analysis. 

Step Two: If the claimant does not have a severe impairment or 

combination of impairments that “significantly limits . . . physical or 

mental ability to do basic work activities,” benefits are denied without 

further analysis. 

Step Three: If the claimant is not performing substantial gainful activity, 

has a severe impairment that is expected to last for at least twelve months, 

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and the severe impairment meets or equals one of the impairments listed in 

the regulations, the claimant is conclusively presumed to be disabled 

regardless of age, education, or work experience. 

Step Four: If the claimant is able to perform his or her past relevant work, 

benefits are denied without further analysis. 

Step Five: Even if the claimant is unable to perform his or her past 

relevant work, if other work exists in the national economy that the 

claimant can perform, in view of his or her age, education, and work 

experience, benefits are denied. 

Scheuneman v. Comm’r of Soc. Sec., 2011 WL 6937331, at *7 (E.D. Mich. Dec. 6, 2011) (citing 

20 C.F.R. §404.1520); see also Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 

2001). “The burden of proof is on the claimant throughout the first four steps .... If the analysis 

reaches the fifth step without a finding that claimant is not disabled, the burden transfers to the 

[defendant].” Preslar v. Sec’y of Health & Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994). 

C. Background 

1. Hayward’s Reports and Testimony 

At the time of the administrative hearing, Hayward was 47 years old, and at 5’5” tall, 

weighed 320 pounds. (Tr. 43, 46). She lived in a mobile home with her husband and two 

children. (Tr. 48, 50). She completed high school, “a little college,” and “truck training.” (Tr. 

43). After that training, she worked as a truck driver for different construction companies from 

1999 to October 2010. (Tr. 50-51). Hayward alleges that her medical problems – which include 

fibromyalgia, arthritis in her joints, obesity, headaches, depression, asthma, chronic obstructive 

pulmonary disease, hypothyroidism, hypertension, obstructive sleep apnea, and tachycardia – 

began in April 2011. (Tr. 43, 142). That month, she obtained a new job as a stock person at a 

dollar store, but quit that job in May 2011 because “the pain was just so bad from being up on 

my feet constantly.” (Tr. 44). In September 2012, she decided to try a “sit down job” at a call 

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center. (Id.). However, she often “call[ed] off” due to her pain, was fired in October 2012, and 

has been unemployed ever since. (Id.). 

Hayward alleges that, due to her fibromyalgia and arthritis, she has “all over pain,” in 

various places, including her hips, back, shoulders, and arms. (Tr. 47). She also claims that this 

pain prevents her from sitting for more than 10 to 15 minutes at a time, standing for more than 

ten minutes at a time, and walking more than 30 yards. (Tr. 47-48). On the one hand, she 

testified that the pain in her right knee improved after she had surgery to “repair the meniscus 

tears.” (Tr. 53). On the other hand, she claimed that she still has arthritis pain in both knees. 

(Tr. 45-46). To control the pain from both fibromyalgia and arthritis, she takes Cymbalta,1

 along 

with “some ibuprofen or Aleve.” (Tr. 47). She also testified that she uses a CPAP machine to 

help with her sleep apnea, and takes medication to control her asthma. (Tr. 49). She also 

periodically suffers from headaches “whenever they come on,” and takes “ibuprofen or Aleve” to 

alleviate them. (Tr. 49, 52). 

Hayward testified that she has “20 to 22” bad days a month, during which she is “not able 

to do anything around the house” due to her pain. (Tr. 50). She cannot bend over to pick up 

items from the floor, but “on a good day,” she will vacuum and “straighten up” her home. (Id.). 

She also reported that she has difficulty climbing stairs and lifting more than a gallon of milk. 

(Tr. 48). Hayward is able to attend to her personal care needs, prepare meals, and grocery shop 

(with an “automatic cart”). (Tr. 56). She is able to drive and attends church and her son’s 

activities on a regular basis.2

 (Tr. 57-58). Hayward further testified that she spends 

approximately five hours per day on Facebook, as “if [she] had a job,” because it makes her “feel 

                                                            

1

 Hayward testified that Cymbalta also serves as her depression medication. (Tr. 47). 

2

 Notably, she drove herself to the hearing and testified that she attended her son’s “Bible 

competition” the day before. (Tr. 57-58). 

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like [she’s] doing something with [her] life.” (Tr. 59). Upon questioning by her attorney, 

Hayward distinguished this activity from working at a job, saying that she can take frequent 

breaks from Facebook whenever the pain requires her to do so (in contrast to being “bound to a 

job” and required to “sit at this desk for an hour”). (Tr. 60). 

2. Medical Evidence

The Court has thoroughly reviewed Hayward’s medical record. In lieu of summarizing 

her medical history here, the Court will make references and provide citations to the record as 

necessary in its discussion of the parties’ arguments. 

3. Vocational Expert’s Testimony 

Luann Castellana testified as an independent vocational expert (“VE”) at the 

administrative hearing. (Tr. 61-64). The ALJ asked the VE to imagine a claimant of Hayward’s 

age, education, and work experience with the following limitations: she can perform simple, 

unskilled work with one-, two-, or three-step instructions, occasionally in close proximity to 

coworkers and supervisors (meaning that she can occasionally function as a member of a team), 

occasionally in direct contact with the public, and in a “low stress” environment (defined as 

having only occasional changes in the work setting); she can lift or carry five pounds frequently 

and ten pounds occasionally, can stand and/or walk with normal breaks for a total of two hours in 

an eight-hour workday (but for only 15 minutes at a time), and can sit with normal breaks for a 

total of six hours in an eight-hour workday (but for only 15 minutes at a time); she can push and 

pull with the upper and left lower extremities with the aforementioned weight restrictions for up 

to two-thirds of a workday (but only occasionally with the right lower extremity); she can 

perform activities requiring bilateral manual dexterity for both gross and fine manipulation of 

handling and reaching for up to two-thirds of a workday; she must avoid hazards in the 

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workplace, such as moving machinery and unprotected heights; she needs a “relatively clean” 

work environment, meaning stable temperatures, stable humidity and good ventilation that 

allows her to avoid concentrated exposure to dust, fumes, gases, odors, and other pulmonary 

irritants; she can occasionally climb stairs with handrails, balance, stoop, crouch, kneel, and 

crawl, but can never climb ladders, ropes, or scaffolds; and she occasionally needs a hand held 

assistive device to walk. (Tr. 61-62). 

The VE testified that the hypothetical individual would not be capable of performing 

Hayward’s past relevant work. (Tr. 61-63). However, the VE testified that the hypothetical 

individual would be capable of working in the jobs of sorter/inspector (1,000 jobs in southeast 

Michigan), small parts assembly (1,200 jobs), and telephone order clerk (1,000 jobs). (Tr. 63). 

D. The ALJ’s Findings 

Following the five-step sequential analysis, the ALJ found that Hayward is not disabled 

under the Act. At Step One, the ALJ found that Hayward has not engaged in substantial gainful 

activity since April 1, 2011 (her alleged onset date). (Tr. 23). At Step Two, the ALJ found that 

Hayward has the severe impairments of fibromyalgia; “asthma versus chronic obstructive 

pulmonary disease”; hyperthyroidism; morbid obesity; history of irritable bowel syndrome; 

obstructive sleep disorder; osteoarthritis of the knees, hips, and spine; arthritis of the hands, 

shoulder, and elbow; tachycardia; gastroesophageal reflux disease; degenerative joint disease of 

the knees with a history of meniscal tears, status post right knee arthroscopy, with partial 

meniscectomy and synovectomy; hypertension; headaches; adjustment disorder with depressed 

mood; and genetically decreased right eye vision. (Tr. 23-24). At Step Three, the ALJ found 

that Hayward’s impairments, whether considered alone or in combination, do not meet or 

medically equal a listed impairment. (Tr. 24-26). 

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The ALJ then assessed Hayward’s residual functional capacity (“RFC”), concluding that 

she is capable of performing simple, unskilled work with one-, two-, or three-step instructions, 

occasionally in close proximity to coworkers and supervisors (meaning that she can occasionally 

function as a member of a team), occasionally in direct contact with the public, and in a “low 

stress” environment (defined as having only occasional changes in the work setting); she can lift 

or carry five pounds frequently and ten pounds occasionally, can stand and/or walk with normal 

breaks for a total of two hours in an eight-hour workday (but for only 15 minutes at a time), and 

can sit with normal breaks for a total of six hours in an eight-hour workday (but for only 15 

minutes at a time); she can push and pull with the upper and left lower extremities with the 

aforementioned weight restrictions for up to two-thirds of a workday (but only occasionally with 

the right lower extremity); she can perform activities requiring bilateral manual dexterity for 

both gross and fine manipulation of handling and reaching for up to two-thirds of a workday; she 

must avoid hazards in the workplace, such as moving machinery and unprotected heights; she 

needs a “relatively clean” work environment, meaning stable temperatures, stable humidity and 

good ventilation that allows her to avoid concentrated exposure to dust, fumes, gases, odors, and 

other pulmonary irritants; she can occasionally climb stairs with handrails, balance, stoop, 

crouch, kneel, and crawl, but can never climb ladders, ropes, or scaffolds; and she occasionally 

needs a hand held assistive device to walk. (Tr. 26-32). 

At Step Four, the ALJ determined that Hayward is unable to perform her past relevant 

work. (Tr. 32). At Step Five, the ALJ concluded, based in part on the VE’s testimony, that she is 

capable of performing a significant number of jobs that exist in the national economy. (Tr. 33). 

As a result, the ALJ concluded that Hayward is not disabled under the Act. (Tr. 34). 

 

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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). Judicial review under this statute is limited in that the 

court “must affirm the Commissioner’s conclusions absent a determination that the 

Commissioner has failed to apply the correct legal standard or has made findings of fact 

unsupported by substantial evidence in the record.” Longworth v. Comm’r of Soc. Sec., 402 F.3d 

591, 595 (6th Cir. 2005) (internal citations omitted); Rabbers v. Comm’r of Soc. Sec., 582 F.3d 

647, 654 (6th Cir. 2009) (“[I]f an agency has failed to adhere to its own procedures, we will not 

remand for further administrative proceedings unless the claimant has been prejudiced on the 

merits or deprived of substantial rights because of the agency’s procedural lapses.”) (internal 

quotations omitted). Substantial evidence is “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 v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) 

(internal quotations omitted). 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 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.”). 

When reviewing the Commissioner’s factual findings, the court is limited to an 

examination of the record and must consider the record as a whole. Bass, 499 F.3d at 512-13; 

Wyatt v. Sec’y of Health & Human Servs., 974 F.2d 680, 683 (6th Cir. 1992). The court “may 

look to any evidence in the record, regardless of whether it has been cited by the Appeals 

Council,” or in this case, the ALJ. Heston, 245 F.3d at 535; Walker v. Sec’y of Health & Human 

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Servs., 884 F.2d 241, 245 (6th Cir. 1989). There is no requirement, however, that either the ALJ 

or this court discuss every piece of evidence in the administrative record. See Kornecky v. 

Comm’r of Soc. Sec., 167 F. App’x 496, 508 (6th Cir. 2006) (“[A]n ALJ can consider all 

evidence without directly addressing in his written decision every piece of evidence submitted by 

a party.”) (internal quotations omitted). If the Commissioner’s decision is supported by 

substantial evidence, “it must be affirmed even if the reviewing court would decide the matter 

differently and even if substantial evidence also supports the opposite conclusion.” Cutlip v. 

Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (internal citations omitted);

Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (“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’”). 

F. Analysis 

In her motion, Hayward argues that the ALJ erred in (1) evaluating her fibromyalgia, and 

(2) giving little weight to the opinion of her treating physician, Dr. Mallah.3

 These arguments 

will be addressed in turn. 

1. The ALJ Properly Evaluated Hayward’s Fibromyalgia 

In her motion, Hayward argues that the ALJ improperly assessed her fibromyalgia under 

the Agency’s regulations, and failed to give credence to her treating physician’s opinion that she 

suffers from this condition. (Doc. #13 at 10-12). 

Social Security Ruling (“SSR”) 12-2p, cited by Hayward, provides that, in assessing a 

disability claim involving fibromyalgia, the adjudicator must first determine if the condition is a 

medically determinable impairment. See Soc. Sec. Rul. 12-2p, 2012 WL 3104869, at *2 (July 25, 

                                                            

3

 Because Hayward’s arguments before this Court primarily concern her fibromyalgia diagnosis 

and symptoms, the Court will focus on this condition in its discussion of the medical evidence. 

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2012). If the claimant’s fibromyalgia is determined to be a medically determinable impairment, 

the adjudicator must then evaluate the impairment according to the five-step sequential 

evaluation process. Id. at *5-6. 

In this case, the ALJ found at Step Two that Hayward’s fibromyalgia is a severe 

impairment. (Tr. 23). The ALJ then stated that, while “Appendix 1 does not provide Listing 

criteria specific to [] fibromyalgia,” he considered this impairment at Step Three, as required by 

SSR 12-2p. (Tr. 24). Moreover, in formulating Hayward’s RFC, the ALJ considered her 

subjective complaints regarding her fibromyalgia, as well as the objective medical evidence 

relating to this condition. (Tr. 27-29). 

Specifically, the ALJ noted that the medical record is consistent with Hayward having the 

severe impairment of fibromyalgia, with reports of headaches and multiple tender points. (Tr. 27 

(citing Tr. 230-33)). The ALJ further noted that although Brian Kaye, M.D., a rheumatologist, 

diagnosed this condition at a visit in June 2011, Hayward presented with a normal gait and 

station, as well as normal muscle strength and tone, at that time. (Id.). The ALJ then noted that 

Hayward relocated to Michigan shortly after her diagnosis and only attempted to establish 

primary care through August 2011, with “little to no objective medical evidence” of ongoing 

fibromyalgia symptoms or treatment during this period of time. (Tr. 27 (citing Tr. 239-44)). 

The ALJ next noted that Hayward was evaluated by another rheumatologist, Mustapha 

Mallah, M.D., in September 2011. (Tr. 27 (citing Tr. 529, 536)). At that time, Hayward was not 

taking any medication for fibromyalgia, despite the fact that she previously had tried Tramadol 

with some relief. (Tr. 27, 536). The ALJ noted that Hayward was subsequently prescribed 

Lyrica and Ultram, as well as a course of physical therapy; when that medication proved 

ineffective, she was prescribed Cymbalta and Ultram. (Tr. 27-28, 529). The ALJ further noted 

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that, by December 2011, Hayward reported a 60% improvement in her condition on Cymbalta 

and, in March 2012, stated that she felt fine. (Tr. 28 (citing Tr. 533-34)). The ALJ added that, at 

an unrelated emergency room visit in July 2012, Hayward lacked any sensory or focal motor 

deficits and presented with a normal gait; in August 2012, she reported less intense diffuse body 

pain; and her November 2012 treatment notes revealed only a medication adjustment, with no 

further evidence of rheumatological care.4 (Tr. 28 (citing Tr. 316, 529, 531)). 

In her motion, Hayward points to Dr. Kaye’s fibromyalgia diagnosis and argues that the 

ALJ erred in “dismiss[ing] [this] medical evidence based on the fact that [she] had ‘normal gait’ 

and ‘normal muscle strength and tone.’” (Doc. #13 at 10 (citing Tr. 27)). This argument is 

unavailing for three reasons. First, the ALJ did not “dismiss” Dr. Kaye’s diagnosis or his 

findings of multiple tender points; indeed, he noted that “the record is consistent with the 

impairment of fibromyalgia” and found that condition to be a severe impairment. (Tr. 23, 27). 

Second, it was not at all improper for the ALJ to consider Hayward’s normal gait, muscle 

strength, and tone in assessing her subjective complaints and, ultimately, in formulating her 

RFC. See 20 C.F.R. §404.1529(c)(2) (objective medical evidence, such as evidence of reduced 

joint motion, muscle spasm, and sensory deficit or motor disruption is relevant to a determination 

of the ability to work). Finally, the ALJ’s analysis was far from limited to Hayward’s normal 

gait and muscle strength/tone, as she suggests. Rather, the ALJ also considered her limited 

efforts to obtain primary care after August 2011, the fact that she was not taking medication for 

fibromyalgia when she first saw Dr. Mallah, and, perhaps most importantly, her significant 

improvement by the end of 2011 and into 2012, when Hayward reported that she “feels fine.” 

                                                            

4

 In addition, the ALJ considered Dr. Mallah’s October 2011 opinion, which accounted for 

Hayward’s fibromyalgia. (Tr. 32 (citing 256-57)). As explained in Section II(F)(2), infra, the 

ALJ properly determined that this opinion was entitled to little weight. (Tr. 32). 

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See supra, at 10-11. As discussed in more detail below, infra at 13-14, the ALJ also properly 

considered Hayward’s daily activities in concluding that the effects of her fibromyalgia were not 

as severe as she claimed. 

Hayward next asserts that the ALJ erred in failing to “properly evaluat[e] the evidence [of 

her fibromyalgia] in accordance with SSR 12-2p.” (Doc. #13 at 10). Again, however, the ALJ 

evaluated Hayward’s fibromyalgia at Steps Two through Four, in accordance with that Ruling 

(Tr. 23-24, 26-29, 31-32), and Hayward has not shown that any further evaluation was required.5 

Moreover, as the Commissioner points out, the fact that Hayward was diagnosed with 

fibromyalgia does not equate to a finding of disability. (Doc. #14 at 9 (citing Vance v. Comm’r 

of Soc. Sec., 260 F. App’x 801, 806 (6th Cir. 2008) (“[A] diagnosis of fibromyalgia does not 

automatically entitle [the claimant] to disability benefits; particularly so here, where there is 

substantial evidence to support the ALJ’s determination that [the claimant’s] fibromyalgia was 

either improving or, at worst, stable.”)). Thus, given that the ALJ found Hayward’s fibromyalgia 

to be a severe impairment, and limited her RFC to account for that condition, there has been no 

showing of error. 

Finally, as part of her argument regarding the ALJ’s evaluation of her fibromyalgia, 

Hayward asserts that the ALJ erred in summarily rejecting her subjective complaints of pain, 

which she states is a “common occurrence” in fibromyalgia cases. (Doc. #13 at 12). Courts 

have recognized, however, that determinations of credibility related to subjective complaints of 

                                                            

5

 For example, SSR 12-2p provides that, in the course of an RFC assessment, a claimant’s 

“longitudinal record” should be considered “whenever possible because the symptoms of 

[fibromyalgia] can wax and wane so that a person may have ‘bad days and good days.’” Soc. 

Sec. Rul. 12-2p, 2012 WL 3104869, at *6. Here, the ALJ did just that, describing a series of 

medical visits that involved pain due to fibromyalgia, stretching over time from an initial 

evaluation with Dr. Kaye in June 2011 until her final visit with Dr. Mallah in November 2012. 

(Tr. 27-28).

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pain rest with the ALJ because “the ALJ’s opportunity to observe the demeanor of the claimant 

‘is invaluable, and should not be discarded lightly.’” Kirk v. Sec’y of Health & Human Servs., 

667 F.2d 524, 538 (6th Cir. 1981) (quoting Beavers v. Sec’y of Health, Ed. & Welfare, 577 F.2d 

383, 387 (6th Cir. 1978)). Thus, an ALJ’s credibility determination will not be disturbed “absent 

compelling reason.” Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001). When a complaint of 

pain or other symptom is in issue, after the ALJ finds a medical condition that could reasonably 

be expected to produce the claimant’s alleged symptoms, he must consider “the entire case 

record, including the objective medical evidence, the individual’s own statements about 

symptoms, statements and other information provided by treating or examining physicians ... 

and any other relevant evidence in the case record” to determine if the claimant’s claims 

regarding the severity of her symptoms are credible. Soc. Sec. Rul 96-7p, 1996 WL 374186, at 

*1 (July 2, 1996); see also 20 C.F.R. §404.1529. 

In this case, the ALJ found that Hayward’s fibromyalgia was a severe impairment that 

“could reasonably be expected to cause the alleged symptoms,” and then properly assessed 

Hayward’s credibility by considering her own statements and testimony regarding her functional 

limitations, as well as the objective medical evidence. (Tr. 31-32). Specifically, in assessing 

Hayward’s credibility, the ALJ considered inconsistencies throughout the record regarding her 

activities of daily living. (Tr. 31). For example, the ALJ noted that while Hayward initially 

testified that she experiences “20 to 22 bad days a year,” during which she must lie down 

anywhere from two to six hours per day, she then testified that she spent an excessive amount of 

time on the computer, “playing games on Facebook, from 10am to 3am, ‘like a job.’” (Tr. 31 

(citing Tr. 59)). It was not at all a stretch for the ALJ to treat this evidence as an “indication that 

[Hayward] would be capable of work at a sedentary job with a sit-stand option ...” (Tr. 31). 

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The ALJ also cited Hayward’s testimony that she previously attempted to work at a sit down job, 

but was unable to do so, finding this testimony inconsistent with her own reports that, on good 

days, she is able to clean, vacuum, cook, attend to her own personal care, and attend church and 

her son’s activities. (Tr. 31, 50, 56, 58, 216-19). Moreover, the ALJ considered Hayward’s 

statement to Dr. Mallah in December 2011 that her pain had improved over 60% since she 

starting using Cymbalta as evidence that her allegations of ongoing disability were not fully 

credible. (Tr. 28-32). All of these considerations were relevant to the ALJ’s credibility 

determination. See 20 C.F.R. §404.1529(c). For these reasons, the ALJ’s conclusion that 

Hayward’s statements concerning the intensity, persistence, and limiting effects of her symptoms 

were not entirely credible is supported by substantial evidence. 

2. Substantial Evidence Supports the ALJ’s 

Decision to Give Little Weight to Dr. Mallah’s Opinion 

Hayward also argues that the ALJ erred in giving “little weight” to the October 2011 

opinion of her treating physician, Dr. Mallah. (Doc. #13 at 12-16). Courts have recognized that 

an ALJ “‘must’ give a treating source opinion controlling weight if the treating source opinion is 

‘well-supported by medically acceptable clinical and laboratory diagnostic techniques’ and is 

‘not inconsistent with the other substantial evidence in [the] case record.’” Blakely, 581 F.3d at 

406 (internal quotations omitted). While treating source opinions are entitled to controlling 

weight under these circumstances, it is “error to give an opinion controlling weight simply 

because it is the opinion of a treating source” unless it is well-supported and consistent with the 

record as a whole. Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *2 (July 2, 1996); see also Warner 

v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004) (“Treating physicians’ opinions are 

only given such deference when supported by objective medical evidence.”). If the ALJ declines 

to give a treating physician’s opinion controlling weight, he must document how much weight he 

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gives it, considering a number of factors, including 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 v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (citing 20 

C.F.R. §404.1527(c)(2) (ALJ must “give good reasons” for weight given to treating source 

opinion)). 

In his October 2011 opinion, Dr. Mallah stated that, due to fibromyalgia and degenerative 

joint disease of the knee, Hayward could not work at any job for an indefinite period of time. 

(Tr. 256). Dr. Mallah further opined that Hayward could lift or carry items less than ten pounds 

for up to one third of an eight-hour workday and could “stand and/or walk less than 2 hours in an 

8-hour workday.” (Id.). The ALJ considered Dr. Mallah’s opinion, noting that the treatment 

relationship was “extremely limited” at the time the opinion was rendered, as Dr. Mallah saw 

Hayward only twice before issuing his opinion. (Tr. 32). The ALJ also noted the context in 

which Dr. Mallah issued his October 2011 opinion: specifically, in September 2011, Hayward 

was not taking any medication; she then began taking Cymbalta and underwent some period of 

medication adjustment; and, by December 2011, she reported a 60% improvement in her 

condition. (Id.). In other words, then, the ALJ gave good reasons for giving little weight to Dr. 

Mallah’s opinion – namely that Dr. Mallah had a limited treatment relationship with Hayward, 

and her condition significantly improved within two months of the opinion’s issuance – and 

these reasons are supported by substantial evidence. See 20 C.F.R. §404.1527(c). 

Hayward briefly raises a few other arguments, none of which have merit. For example, 

Hayward asserts that since the ALJ gave little weight to Dr. Mallah’s opinion, and rejected the 

state agency physician’s assessment, there is no indication as to what medical evidence the ALJ 

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relied upon, suggesting that the ALJ acted as his own “medical expert.” (Doc. #13 at 14). 

Contrary to Hayward’s argument, however, courts have held that an ALJ is not required to adopt 

a specific medical decision in support of his decision. See, e.g., Rudd v. Comm’r of Soc. Sec., 

531 F. App’x 719, 728 (6th Cir. 2013); Prince v. Comm’r of Soc. Sec., 2014 WL 4639506, at *20 

(E.D. Mich. Sept. 16, 2014) (an ALJ “does not have to base her RFC finding on a physician’s 

opinion”) (internal quotations omitted). Thus, Hayward has not established error in this respect. 

Hayward also asserts that since the ALJ dismissed her treating physician’s opinion, he 

was required to consider whether he needed to re-contact Dr. Mallah for clarification of that 

opinion. (Doc. #13 at 14-15). As the Commissioner points out, however, the duty to re-contact a 

treating physician was removed from the Agency’s regulations in March 2012. (Doc. #14 at 20 

(citing 20 C.F.R. §§404.1512, 404.1527, 416.912, 416.927)). At the time of Hayward’s 

administrative hearing, in March 2013, the governing standard for re-contacting medical sources 

was that “an ALJ ‘may recontact [a] treating physician, psychologist, or other medical source’ 

but may instead seek further evidence from another source, including the claimant himself.” 

Toland v. Colvin, 2013 WL 6175817, at *7, n 3 (quoting 20 C.F.R. §404.1520(b) (emphasis 

added)). Therefore, Hayward’s argument that the ALJ had a duty to re-contact Dr. Mallah is 

without merit. 

Finally, Hayward claims that, “Never does the ALJ evaluate whether [she] is capable of a 

competitive work schedule i.e., 8 hour day, 40 hour work week,” as purportedly “required by 

SSR 96-8p.” (Doc. #13 at 15). But, SSR 96-8p defines an individual’s RFC as the “maximum

remaining ability to do sustained work activities in an ordinary work setting on a regular and 

continuing basis.” Soc. Sec. Rul. 96-8p, 1996 WL 374184, at *2 (July 2, 1996) (emphasis in 

original). A “regular and continuing basis” is defined as “mean[ing] 8 hours a day, for 5 days a 

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week, or an equivalent work schedule.” Id. at *2. Therefore, by definition, the ALJ’s RFC 

assessment is a determination as to the work Hayward can perform eight hours a day, five days a 

week. As such, this argument too is without merit. 

For all of the above reasons, and upon an independent review of the entire record, the 

Court concludes that the ALJ’s decision is supported by substantial evidence. 

III. CONCLUSION 

For the foregoing reasons, the Court RECOMMENDS that the Commissioner’s Motion 

for Summary Judgment [14] be GRANTED, Hayward’s Motion for Summary Judgment [13] be 

DENIED, and the ALJ’s decision be AFFIRMED. 

Dated: September 21, 2015 s/David R. Grand 

Ann Arbor, Michigan DAVID R. GRAND 

 United States Magistrate Judge 

NOTICE REGARDING OBJECTIONS 

The parties to this action may object to and seek review of this Report and 

Recommendation, but are required to act within fourteen (14) days of service of a copy hereof as 

provided for in 28 U.S.C. §636(b)(1) and Fed. R. Civ. P. 72(b)(2). Failure to file specific 

objections constitutes a waiver of any further right of appeal. See Thomas v. Arn, 474 U.S. 140 

(1985); Howard v. Sec’y of HHS, 932 F.2d 505, 508 (6th Cir. 1991); United States v. Walters, 

638 F.2d 947, 949-50 (6th Cir. 1981). The filing of objections which raise some issues, but fail 

to raise others with specificity, will not preserve all the objections a party might have to this 

Report and Recommendation. See Willis v. Sec’y of HHS, 931 F.2d 390, 401 (6th Cir. 1991); 

Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to 

E.D. Mich. L.R. 72.1(d)(2), a copy of any objections is to be served upon this magistrate judge. 

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CERTIFICATE OF SERVICE

 The undersigned certifies that the foregoing document was served upon counsel of record 

and any unrepresented parties via the Court’s ECF System to their respective email or First Class 

U.S. mail addresses disclosed on the Notice of Electronic Filing on September 21, 2015. 

 s/Eddrey O. Butts 

 EDDREY O. BUTTS 

 Case Manager 

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