1

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

TERRY JONES, 

 Plaintiff, 

v. 

COMMISSIONER OF 

SOCIAL SECURITY, 

 Defendant. 

 

Case No. 2:14-cv-14213 

Judge Arthur J. Tarnow 

Magistrate Judge Anthony P. Patti 

___________________________________/ 

RECOMMENDATION TO DENY PLAINTIFF’S MOTION FOR 

SUMMARY JUDGMENT (DE 15) AND TO GRANT DEFENDANT’S 

MOTION FOR SUMMARY JUDGMENT (DE 18) 

I. RECOMMENDATION: For the reasons that follow, it is 

RECOMMENDED that the Court DENY Plaintiff’s motion for summary 

judgment, GRANT Defendant’s motion for summary judgment, and AFFIRM the 

Commissioner’s decision. 

II. REPORT 

 Plaintiff, Terry Jones, brings this action under 42 U.S.C. §§ 405(g) for 

review of a final decision of the Commissioner of Social Security 

(“Commissioner”) denying his application for supplemental security income (SSI) 

benefits. This matter is before the United States Magistrate Judge for a Report and 

Recommendation on Plaintiff’s motion for summary judgment (DE 15), the 

2:14-cv-14213-AJT-APP Doc # 19 Filed 11/23/15 Pg 1 of 34 Pg ID 363
2

Commissioner’s cross motion for summary judgment (DE 18) and the 

administrative record (DE 11). 

A. Background

 Plaintiff filed his application for SSI benefits on September 29, 2011, 

alleging that he has been disabled since August 1, 2010, at age 48. R. at 112-118. 

Plaintiff alleges disability as a result of high blood pressure, diabetes, emotional, 

bipolar syndrome, dysfunctional left arm, mental conditions and a heart condition. 

R. at 129-137. Plaintiff’s application was denied on December 13, 2011. R. at 49-

59, 60, 61-64. 

Plaintiff sought a de novo hearing before an Administrative Law Judge 

(“ALJ”). R. at 67, 68-74. ALJ Oksana Xenos held a hearing on March 22, 2013, 

at which Plaintiff was represented by counsel and Vocational Expert (VE) Harry 

Cynowa testified. R. at 27-48. On May 24, 2013, ALJ Xenos determined that 

Plaintiff was not disabled within the meaning of the Social Security Act. R. at 10-

25. 

On July 22, 2013, Plaintiff requested review of the hearing decision. R. at 6, 

7-9. On September 5, 2014, the Appeals Council denied Plaintiff’s request for 

review. R. at 1-3. Thus, ALJ Xenos’s decision became the Commissioner’s final 

decision. 

2:14-cv-14213-AJT-APP Doc # 19 Filed 11/23/15 Pg 2 of 34 Pg ID 364
3

Plaintiff then timely commenced the instant action on November 2, 2014. 

DE 1. 

B. Plaintiff’s Medical History 

 In this case, Plaintiff alleges that he has been disabled since August 1, 2010. 

See R. at 112-118. Plaintiff’s medical records span the period from January 8, 

2010 to February 9, 2013. R. at 178-276 (Exhibits 1F-9F). 

1. Physical History 

On July 10, 2010, Plaintiff was examined by family practitioner George C. 

Costea, D.O. (R. at 181-183.) Although Dr. Costea indicated that there were some 

limitations on lifting/carrying, standing/walking and sitting, and some limitations 

on use of extremities for repetitive action, he also indicated there were no physical 

limitations. (R. at 182.) Also, Dr. Costea assessed mental limitations in 

comprehension, memory, sustained concentration and social interaction. (R. at 

183.) 

Plaintiff was seen for an internal medicine evaluation on December 2, 2011. 

(R. at 210-216.) Internist Bina Shaw, M.D. concluded that Plaintiff “can work 

eight hours a day. The patient can sit, stand, walk, bend minimally and lift at least 

10-15 pounds of weight without difficulty. He should avoid heights and 

machinery.” R. at 212. 

2:14-cv-14213-AJT-APP Doc # 19 Filed 11/23/15 Pg 3 of 34 Pg ID 365
4

It appears that Plaintiff’s primary physician(s) were located at Midwest 

Medical Center – Dearborn, where he treated for an extended period. (R. at 228-

276 [Ex. 9F]). For example, Plaintiff was treated by Daoud Faraj, M.D. on May 2, 

2012 (R. at 232-234), Robert Rubin, D.P.M. on May 11, 2012 (R. at 235-240), 

Andrew Marcus, M.D. on June 14, 2012 (R. at 243-244), Jose DeSousa, M.D. on 

June 28, 2012, who performed an electrodiagnostic evaluation (R. at 245-246), Dr. 

Faraj on July 20, 2012 (R. at 247-253), Dr. Marcus on July 26, 2012, who ordered 

a brain MRI (R. at 254-257), Dr. Faraj on August 29, 2012 (R. at 258-261), Dr. 

Marcus on September 20, 2012 (R. 262, 264), and Dr. Marcus on September 27, 

2011 or 2012, who sent him for an orthopedic MRI which occurred on October 5, 

2012 (R. at 265-266, 267-269). It appears that Plaintiff was a no show on October 

15, 2012 and cancelled November 15, 2012. (R. at 269.) However, Plaintiff was 

treated by Dr. Marcus on November 1, 2012 (R. at 270-272) and by Dr. Faraj on 

January 29, 2013 (R. at 273-274). The detail of these records will be discussed, as 

necessary, below. 

2. Psychiatric History 

On April 27, 2011, Plaintiff underwent an annual psychiatric evaluation, 

which revealed major depressive disorder, recurrent, severe with psychotic 

features, as well as polysubstance dependence, which was in remission. At that 

time, Dr. John Head observed: “the patient demonstrated good grooming, 

2:14-cv-14213-AJT-APP Doc # 19 Filed 11/23/15 Pg 4 of 34 Pg ID 366
5

timeliness, orientation times four, poor eye contact, normal speech, intact 

judgment, logical and coherent thought process, average intelligence, no obsessive 

or compulsive thought, no psychosis evidence, fair insight, . . . calm behavior with 

social smile, pleasant or happy interaction and euthymic mood. . . . The patient 

was receptive to advice.” (R. at 203.) At the conclusion of the examination, 

Plaintiff received prescriptions for Luvox and Geodon. (R. at 202-203.) A May 

24, 2011 psycho-social assessment revealed the same major depressive disorder 

and polysubstance dependence diagnoses. (R. at 184.) 

Plaintiff’s August 24, 2011 Individualized Plan of Service (IPOS) listed 

goals included stabilizing physical health, applying for SDA benefits, applying for 

SSI benefits, understanding the impact of psychotropic medication, establishing 

and maintaining abstinence, while increasing knowledge of the disease and the 

process of recovery. (R. at 186-200.) A medical progress note of the same date 

indicated the same major depressive disorder and polysubstance diagnoses listed 

above and psychotropic medication prescriptions for Luvox and Geodon. (R. at 

201.) 

On November 15, 2011, in assessing Plaintiff’s mental RFC, Dyan 

Hampton-Aytch, Ph.D. concluded that Plaintiff appeared capable of sustained 

work activity. (R. at 53-57.) Thereafter, on June 13, 2012, Plaintiff underwent a 

psychiatric evaluation and mental status examination by Someswara N. Navuluri, 

2:14-cv-14213-AJT-APP Doc # 19 Filed 11/23/15 Pg 5 of 34 Pg ID 367
6

M.D., which revealed a diagnosis of depressive disorder. He was prescribed 

Lexapro, Klonopin and Seroquel. (R. at 218-219.) 

 C. Hearing Testimony 

 1. Plaintiff’s Testimony 

 Plaintiff Terry Jones testified at the March 22, 2013 hearing. (R. at 34-44.) 

Plaintiff stated he is right-handed and weighs 260 pounds. (R. at 34.) He lives by 

himself. Plaintiff has a GED. (R. at 35.) He grocery shops about once per month 

and goes to church. He does not drive. (R. at 38.) He gets around with help from 

different people or by catching a bus. He does his own laundry. (R. at 39.) 

Plaintiff fixes his own meals, most of which are bologna sandwiches, and a typical 

day includes getting up, sitting around, drinking a cup of coffee and viewing 

television programs. (R. at 38.) He also reads, often from the Bible. (R. at 39.) 

He usually gets five hours of sleep at night and occasionally naps during the day. 

(R. at 41.) He takes Ibuprofen, high blood pressure medication, water pills and 

aspirin, and the side effects include constipation and insomnia. (R. at 44.) 

At the time of the hearing, he was not working, having last worked in 2008 

and 2009 part-time as a painter. (R. at 35-36.) Plaintiff stopped working, because 

“since then my health has deteriorated.” (R. at 36.) Plaintiff testified that he has 

mental stress. (R. at 36.) According to Plaintiff, he has been “trying to deal with 

society” since his release from incarceration. (R. at 37.) He has trouble 

2:14-cv-14213-AJT-APP Doc # 19 Filed 11/23/15 Pg 6 of 34 Pg ID 368
7

remembering things. (R. at 41-42.) On a typical day, he is “stressed out.” (R. at 

42.) He explained that he does not have great family support. Although the 

welfare payments have been very helpful, the assistance he received for rent has 

expired, and he is “about to get put out.” (R. at 42-43.)1

 The building in which he 

stays has bed bugs, “which are eating me alive.” (R. at 43.) When he calls to ask 

for things, no one wants to help him. (R. at 42.) Sometimes, he feels like giving 

up, and has made suicide attempts. (R. at 42-43.) 

Plaintiff also testified about the effects of his physical limitations on his 

ability to work. (R. at 36.) Among other things, Plaintiff mentioned problems 

with his feet and numbness in his right side. (R. at 36-37.) He also had surgery on 

his left arm and experiences no feeling “up the left side.” He does not really have 

a limit on how long he can sit in one spot. He can sometimes stand for at least 20 

minutes. He is limited to walking “[a] block or so, two blocks.” (R. at 40.) 

Sometimes, he can lift at least 20 pounds. Plaintiff also testified that his diabetes 

has been out of control. (R. at 41.) Additionally, Plaintiff testified that he was 

treated for the possibility of fluid on his heart. (R. at 44.) Plaintiff stated that, 

sometimes, it hurts to get up, to walk, to think; he just wants “to lie there and do 

nothing.” (R. at 43.) 

 

1 At the time of his September 29, 2011 SSI application, Plaintiff’s rent was 

subsidized by COTS (Coalition on Temporary Shelter) in Detroit, MI. (R. at 113.) 

2:14-cv-14213-AJT-APP Doc # 19 Filed 11/23/15 Pg 7 of 34 Pg ID 369
8

Plaintiff testified that he was connected with “MRS,” which this Court 

assumes to be the Michigan Department of Health & Human Services (MDHHS) 

Michigan Rehabilitation Services,2

 but also explained he is not currently doing 

anything to find a job. (R. at 40.) 

 2. Vocational Expert Testimony

 VE Cynowa also testified. (R. at 44-48.) Upon examination by the ALJ, the 

VE stated that a person of Plaintiff’s age, education and past work experience who 

was limited to unskilled, simple, repetitive, self-paced work with minimal changes 

in the work setting and only occasional contact with the general public, co-workers 

and supervisors would not be capable of performing his past work as a painter 

(semi-skilled, medium). (R. at 45.) However, such a person could perform 

unskilled work at the light exertional level, including a small products assembler, a 

hand packager and a visual inspector checker. (R. at 46.) Moreover, the VE 

testified that if there were frequent episodes of pain and a combination of other 

impairments which resulted in the individual being off task up to 20 percent of the 

workday on a regular and continuing basis, there would be no competitive, fulltime employment. (R. at 46.) 

 

2 This assumption is buttressed by Plaintiff’s admission that he is “currently 

indigent and is receiving services through the Michigan Department of Human 

Services.” DE 15 at 8.

2:14-cv-14213-AJT-APP Doc # 19 Filed 11/23/15 Pg 8 of 34 Pg ID 370
9

 D. The Administrative Decision3

 ALJ Xenos rendered her decision on May 24, 2013. R. at 10-25. At Step 1, 

she found that Plaintiff has not engaged in substantial gainful activity since 

September 29, 2011, the date of his application. R. at 15. 

At Step 2, the ALJ found that Plaintiff has the severe impairments of 

diabetes, diabetic polyneuropathy, mild to moderate right shoulder impingement, 

hypertension, obesity, and mood disorder. R. at 15-17. 

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 one of 

the listed impairments. R. at 17-18. 

 

3 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). 

2:14-cv-14213-AJT-APP Doc # 19 Filed 11/23/15 Pg 9 of 34 Pg ID 371
10

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

(RFC) to perform light work with the following limitations: simple, repetitive, 

self-paced, unskilled work that involves minimal changes in work setting, and only 

occasional contact with coworkers, supervisors and the general public. R. at 18-

21. Moreover, the ALJ found that Plaintiff is unable to perform any past relevant 

work. R. at 21. 

 At Step 5, having considered 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 

2:14-cv-14213-AJT-APP Doc # 19 Filed 11/23/15 Pg 10 of 34 Pg ID 372
11

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 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.”). 

 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)). 

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 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)). 

2:14-cv-14213-AJT-APP Doc # 19 Filed 11/23/15 Pg 11 of 34 Pg ID 373
12

F. Analysis

In his motion for summary judgment, Plaintiff sets forth two statements of 

error, asserting that: (1) substantial evidence on the record demonstrates that 

controlling weight was not given to the objective medical evidence; and (2) the 

RFC determination by the ALJ did not accurately portray Mr. Jones’s physical and 

mental impairments and nonexertional limitations. DE 15 at 5, 11-14, 15-17. 

The Commissioner opposes Plaintiff’s motion, asserting that: (i) the ALJ 

properly considered Dr. Costea’s opinion;4

 (ii) the ALJ properly considered 

Plaintiff’s impairments in combination, and whether he was capable of sustained 

work; (iii) the ALJ adequately explained the RFC; (iv) the ALJ adequately 

considered Plaintiff’s diabetes, neuropathy, shoulder condition, hypertension, 

obesity, and mood disorder, and assessed corresponding RFC limitations; (v) the 

ALJ properly considered Plaintiff’s credibility; and (vi) the ALJ properly 

considered Plaintiff’s shoulder impairment. DE 18 at 12-20. 

I will address each argument raised in turn. 

1. Substantial evidence supports the ALJ’s assignment of 

weight to the opinion evidence. 

 

4 The spelling of this doctor’s name is unclear. It is spelled as “Costed” and 

“Coster” in the ALJ’s decision. (See R. at 15, 20.) Plaintiff also refers to his 

physician as “Coster.” (DE 15 at 11-13.) However, upon examining the particular 

medical record at issue, the Court believes the correct spelling is George C. Costea, 

D.O. (See R. at 183; www.whitepages.com.)

2:14-cv-14213-AJT-APP Doc # 19 Filed 11/23/15 Pg 12 of 34 Pg ID 374
13

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 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. 

2:14-cv-14213-AJT-APP Doc # 19 Filed 11/23/15 Pg 13 of 34 Pg ID 375
14

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

opinion, the ALJ must meet certain procedural requirements.5

 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 

 

5 An exception exists for treating source opinions on issues that are reserved to the 

Commissioner, which “are never entitled to controlling weight or special 

significance.” S.S.R. 96-5p, 61 FR 34471-0, at *34473. Examples of issues 

reserved to the Commissioner include: 

1. Whether an individual’s impairment(s) meets or is equivalent in 

severity to the requirements of any impairment(s) in the listings; 

2. What an individual’s RFC is; 

3. Whether an individual’s RFC prevents him or her from doing past 

relevant work; 

4. How the vocational factors of age, education, and work experience 

apply; and 

5. Whether an individual is “disabled” under the Act. 

Id. 

2:14-cv-14213-AJT-APP Doc # 19 Filed 11/23/15 Pg 14 of 34 Pg ID 376
15

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 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. A’ppx 771, 777 (6th Cir. 2008) 

(citing Rogers, 486 F.3d at 242). 

 In his motion, Plaintiff argues that “the ALJ failed to give controlling weight 

to any objective medical evidence substituting her own findings for that of the 

medical doctors.” (DE 15 at 8.) According to Plaintiff, 

The ALJ does not give any rationale for her decision, only 

conclusory statements. There is no discussion of the objective 

medical evidence in the decision, no discussion of the factual 

basis for the decision, and not a single discussion in the decision 

of special factors such as medication side effects, fatigue, 

neuropathy and pain, which the Plaintiff suffers from. 

2:14-cv-14213-AJT-APP Doc # 19 Filed 11/23/15 Pg 15 of 34 Pg ID 377
16

Specifically, Plaintiff claims it was legal error for the ALJ to reject “the treating 

physician medical opinion of Dr. Coste[a], D.O., for that of a non-examining 

consultative examiner [Dr. Hampton-Aytch], who never saw or examined the 

Plaintiff.” (DE 15 at 11, R. at 20-21.) 

a. The ALJ’s various assignments of weight. 

Within her Step 4 discussion, the ALJ assigned weight to various opinions. 

(R. at 20-21.) For example, the ALJ assigned “little weight” to the July 10, 2010 

State of Michigan DHS Medical Examination Report of George C. Costea, D.O. 

(R. at 181-183); “some weight” to the December 2, 2011 evaluation by Bina Shaw, 

M.D. (R. at 210-216); and “significant weight” to the November 15, 2011 

assessment of Dyan Hampton-Aytch, Ph.D. (R. at 53-57). Also, the ALJ did not 

find persuasive or give meaningful weight to social worker Frederick Carr’s 

October 18, 2011 third party function report (R. at 141-148) or January 30, 2013 

correspondence (R. at 220). 

As discussed below, the ALJ appropriately assigned weight to these 

assessments: 

i. George C. Costea, D.O.6

 (Treating Physician) 

 

6 The Commissioner asserts that Dr. Costea is not a treating source. (DE 18 at 13.) 

This seems to be true, as the record appears to contain only one of his opinions. 

(R. at 181-183.) “Generally, we give more weight to opinions from your treating 

sources, since these sources are likely to be the medical professionals most able to 

2:14-cv-14213-AJT-APP Doc # 19 Filed 11/23/15 Pg 16 of 34 Pg ID 378
17

The ALJ considered the July 10, 2010 medical examination report of George 

C. Costea, D.O. during Step 2 and in the RFC finding portion of Step 4. (R. at 15, 

20.) 7 Plaintiff argues that the ALJ did not explain why Costea’s opinion is not 

well supported or is contradicted by other evidence and accuses the ALJ of 

“cherry-picking” the medical records instead of considering Plaintiff’s longitudinal 

treatment. (DE 15 at 12).8

 In sum, Plaintiff claims that the ALJ “gave no adequate 

or competent reasoning for the weight assigned to treating doctor, Dr. Coste[a][.]” 

(DE 15 at 13.) 

I disagree. The ALJ adequately explained her consideration of Dr. Costea’s 

opinion. At the outset, the ALJ notes the date of Dr. Costea’s report, which 

 

provide a detailed, longitudinal picture of your medical impairment(s) and may 

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

the objective medical findings alone or from reports of individual examinations, 

such as consultative examinations or brief hospitalizations.” 20 C.F.R. § 404.1527 

(emphasis added). 

7 As the Commissioner notes, the ALJ placed her treatment record discussion 

within her Step 2 assessment, instead of in her Step 4 assessment. (Compare R. at 

15-17, R. at 18-21; see also, DE 18 at 15.) For example, at Step 2, the ALJ 

expressly considered the October 5, 2010 electrocardiogram (EKG). (R. at 15, 

178.) 

8 The argument that the ALJ “cherry-picked” the record is frequently made and 

seldom successful, because “the same process can be described more neutrally as 

weighing the evidence.” White v. Commissioner, 572 F.3d 272, 284 (6th Cir.2009). 

The narrow scope of judicial review of the Commissioner's final administrative 

decision does not include re-weighing evidence, deciding questions of credibility, 

or substituting the court's judgment for that of the ALJ. See Ulman v. 

Commissioner, 693 F.3d 709, 713 (6th Cir.2012); Bass v. McMahon, 499 F.3d 506, 

509 (6th Cir.2007). 

2:14-cv-14213-AJT-APP Doc # 19 Filed 11/23/15 Pg 17 of 34 Pg ID 379
18

slightly pre-dates August 1, 2010, Plaintiff’s alleged date of onset. (See R. at 15, 

112.) Moreover, the ALJ correctly found Dr. Costea’s assessment of Plaintiff’s 

physical limitations (lifting / standing / walking / sitting / using upper limbs) 

internally inconsistent with his own clinical narrative. (R. at 20.) Additionally, the 

ALJ found Dr. Costea’s assessment of Plaintiff’s mental limitations 

(comprehension, memory and sustained concentration) inconsistent with 

subsequent evaluations completed by mental health clinicians. (R. at 20, 181-183.) 

Even if the ALJ did not more specifically list these inconsistencies, some of them 

are obvious. For example, it is internally inconsistent to check “no limitations” 

under “Physical Limitations,” but then check boxes which indicate that Plaintiff 

has limitations on lifting/carrying. It is also inconsistent to check both “Sit less 

than 6 hours in an 8-hour workday” and “Sit about 6 hours in an 8-hour 

workday[.]” (R. at 182.) Plaintiff broadly claims that the ALJ did not explain her 

statements that Dr. Costea’s opinions “are not well supported,” and “are 

contradicted by other substantial evidence.” (R. at 20, DE 15 at 12.) Nonetheless, 

“the burden of proof lies with the claimant at steps one through four of the process 

. . . .” Her v. Commissioner of Social Sec., 203 F.3d 388, 391 (6th Cir. 1999). 

Here, Plaintiff has not satisfied this burden, failing to specifically identify the 

“other substantial evidence” which allegedly should have required the ALJ to reach 

a different conclusion. (R. at 15, DE 15 at 12.) At any rate, the ALJ’s conclusion 

2:14-cv-14213-AJT-APP Doc # 19 Filed 11/23/15 Pg 18 of 34 Pg ID 380
19

is well supported by substantial evidence, and thus is not subject to reversal under 

the standard of review here. 

Plaintiff’s allegations that the ALJ did not give controlling weight to or 

discuss the objective medical evidence are particularly void of support. (See, i.e., 

DE 15 at 5, 8, 11, 15). Plaintiff contends that “the medical opinions of Dr. 

Coste[a] are corroborated by the objective medical evidence.” (DE 15 at 13.) Yet, 

Plaintiff himself does not provide a citation to the so-called objective support, with 

the exception of the questionable assessment by Dr. Costea. (R. at 181-183, DE 15 

at 11-17, 11.) 

ii. Bina Shaw, M.D. (Internal Medicine 

Evaluation) 

Although Plaintiff contends that the ALJ does not point to substantial record 

evidence to dispute Dr. Costea’s assessment (DE 15 at 12) or did not give “good 

reasons” for discounting his opinion, as required by Wilson (DE 15 at 13), this is 

untrue. For example, the ALJ gave “some weight” to the December 2, 2011 

internal medicine evaluation performed by internist Bina Shaw, M.D., specifically 

the conclusions that Plaintiff could work full-time and could lift at least 10-15 

pounds without difficulty, explaining: “Shaw’s appraisal, although somewhat 

vague, is not at odds with the [RFC] adopted.” (R. at 20, 210-212.) 

In her assessment, Dr. Shaw specifically stated: “. . . the patient can work 

eight hours a day. The patient can sit, stand, walk, bend minimally and lift at least 

2:14-cv-14213-AJT-APP Doc # 19 Filed 11/23/15 Pg 19 of 34 Pg ID 381
20

10-15 pounds of weight without difficulty. He should avoid heights and 

machinery.” (R. at 212.) This is not inconsistent with an RFC for “light work,” 

which involves: 

. . . lifting no more than 20 pounds at a time with frequent lifting or 

carrying of objects weighing up to 10 pounds. Even though the weight 

lifted may be very little, a job is in this category when it requires a 

good deal of walking or standing, or when it involves sitting most of 

the time with some pushing and pulling of arm or leg controls. To be 

considered capable of performing a full or wide range of light work, 

you must have the ability to do substantially all of these activities. If 

someone can do light work, we determine that he or she can also do 

sedentary work, unless there are additional limiting factors such as 

loss of fine dexterity or inability to sit for long periods of time. 

20 CFR § 404.1567(b), 20 C.F.R. § 416.967(b) (emphasis added). 

iii. Dyan Hampton-Aytch, Ph.D. (DDS 

Psychologist) 

At Step 4, the ALJ considered the administrative findings of fact made by 

non-examining DDS (Disability Determination Services) Psychologist Dr. 

Hampton-Aytch, Ph.D. In giving Dr. Hampton-Aytch’s findings “significant 

weight,” the ALJ specifically noted Dr. Hampton-Aytch’s determinations that 

Plaintiff “has a ‘severe’ mental impairment, but retained the ability to perform 

simple unskilled tasks on a sustained basis, that did not require frequent 

interpersonal interactions.” (R. at 20-21.) 

In her assessment, Dr. Hampton-Aytch noted that Plaintiff had the severe 

impairment of affective disorders. (R. at 53.) At the same time, she also 

2:14-cv-14213-AJT-APP Doc # 19 Filed 11/23/15 Pg 20 of 34 Pg ID 382
21

determined that Plaintiff “appears capable of sustained work activity.” (R. at 54, 

57.) In addition, within her mental RFC assessment, she found Plaintiff “not 

significantly limited” in areas involving simple instructions, simple work-related 

decisions and simple questions. (R. at 55-56.) Moreover, she found Plaintiff 

“moderately limited” in his ability to interact appropriately with the general public. 

(R. at 56.) These assessments lend support to the ALJ’s RFC limitations of 

“simple, repetitive, self-paced, unskilled work that involves minimal changes in 

work setting, and only occasional contact with coworkers, supervisors and the 

general public.” (R. at 18.) 

Furthermore, to the extent Plaintiff takes issue with the ALJ’s assignment of 

“little weight” to Dr. Costea’s medical examination report while affording 

“significant weight” to nonexamining DDS psychologist Dyan Hampton-Aytch, 

Ph.D. (R. at 20-21, 181-183, 53-57; DE 15 at 11), “[a]ny record opinion, even that 

of a treating source, may be rejected by the ALJ when the source's opinion is not 

well supported by medical diagnostics or if it is inconsistent with the record.” 

Norris v. Comm'r of Soc. Sec., 461 F. App'x 433, 439 (6th Cir. 2012). 

b. Conclusion 

Plaintiff unsuccessfully argues that the ALJ’s “failure to give specific 

reasons and explain precisely how those reasons affected the weight accorded the 

opinions . . .” DE 15 at 13. Instead, the Court should conclude that the ALJ did 

2:14-cv-14213-AJT-APP Doc # 19 Filed 11/23/15 Pg 21 of 34 Pg ID 383
22

give “good reasons” as contemplated by 20 C.F.R. § 416.927(d)(2). Specifically, 

the ALJ pointed out several internal inconsistencies within Dr. Costea’s own

record, and further that Dr. Costea’s opinion was inconsistent with other evidence 

in the record. In doing so, the ALJ gave good and sufficiently specific reasons for 

the diminished weight given to Dr. Costea’s opinion and explained her reasons for 

the weight assigned to the opinions of Dr. Shaw and Dr. Hampton-Aytch. 

2. Plaintiff has not demonstrated that the ALJ omitted any 

significant physical or mental limitations from her RFC 

finding. 

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(3), 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)). 

“Ordinarily, RFC is an assessment of an individual's ability to do sustained 

work-related physical and mental activities in a work setting on a regular and 

continuing basis. A ‘regular and continuing basis’ means 8 hours a day, for 5 days 

2:14-cv-14213-AJT-APP Doc # 19 Filed 11/23/15 Pg 22 of 34 Pg ID 384
23

a week, or an equivalent work schedule.” SSR 96-8p, 1996 WL 374184, 1 (July 2, 

1996). In other words: 

The RFC assessment must include a narrative discussion describing 

how the evidence supports each conclusion, citing specific medical 

facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily 

activities, observations). In assessing RFC, the adjudicator must 

discuss the individual's ability to perform sustained work activities in 

an ordinary work setting on a regular and continuing basis (i.e., 8 

hours a day, for 5 days a week, or an equivalent work schedule), and 

describe the maximum amount of each work-related activity the 

individual can perform based on the evidence available in the case 

record. The adjudicator must also explain how any material 

inconsistencies or ambiguities in the evidence in the case record were 

considered and resolved. 

Id. at 7 (footnote omitted). 

In his motion, Plaintiff generally argues that “the finding that Plaintiff has 

severe physical and mental impairments, along with non-exertional impairments 

such as pain and medication side effects[,] were not factored into the residual 

functional capacity assessment (RFC).” (DE 15 at 8.) In other words, Plaintiff 

argues, “[t]he RFC determination by the ALJ did not accurately portray Mr. Jones’ 

physical and mental impairments and nonexertional limitations.” In support of this 

argument, Plaintiff asserts that, “The ALJ listed no objective medical evidence nor 

does the ALJ offer any analysis or insight through the decision into her residual 

functional capacity (RFC) determination.” (DE 15 at 15.) 

2:14-cv-14213-AJT-APP Doc # 19 Filed 11/23/15 Pg 23 of 34 Pg ID 385
24

In this regard, Plaintiff takes issue with what he claims to be missing from 

the ALJ’s decision; in other words, Plaintiff claims the ALJ did not comply with 

SSR 96-8p’s narrative discussion requirements, such as evaluating “whether based 

on claimant’s combined physical and mental limitations [he] is capable of a 

competitive work schedule . . . .” (See DE 15 at 14, 17.) Plaintiff further claims 

“[t]here is no rationale in the decision whatsoever to describe how Plaintiff can 

perform so much despite the severe impairments as determined by the ALJ in her 

decision . . . .” (DE 15 at 16.) 

a. Physical impairments 

 At Step II, the ALJ found that Plaintiff had the severe physical impairments 

of diabetes, diabetic polyneuropathy, mild to moderate right shoulder 

impingement, hypertension and obesity. (R. at 15.) Referring to his application 

for SSI benefits, Plaintiff contends his physical impairments include chronic pain 

syndrome and heart problems. (R. at 112-118, DE 15 at 8.) 

Plaintiff’s argument that the ALJ’s RFC determination did not accurately 

portray Plaintiff’s physical impairments is unavailing. (See DE 15 at 5, 15.) For 

example, Plaintiff alleges that “Judge Xenos does not factor in her RFC 

determination her own previous conclusion that Plaintiff has the severe 

impairments of diabetes; diabetic polyneuropathy; mild to moderate right shoulder 

2:14-cv-14213-AJT-APP Doc # 19 Filed 11/23/15 Pg 24 of 34 Pg ID 386
25

impingement; hypertension; obesity . . . .” (DE 15 at 15.) It is Plaintiff’s position 

that the ALJ did not include each of the limitations she found in the RFC and 

discuss how such limitations affect Plaintiff’s ability to perform sustained work. 

For example, Plaintiff claims there are no limitations in the RFC related to the right 

shoulder impingement or diabetic polyneuropathy. (DE 15 at 16.) 

However, as Defendant contends, the restriction to light work accounts for 

Plaintiff’s physical limitations, including his shoulder impairment. (R. at 18, DE 

18 at 20; see also, DE 18 at 16.). While the lifting/carrying provisions of “light 

work” are not consistent with Dr. Costea’s determination that Plaintiff could only 

occasionally lift/carry less than 10 pounds (R. at 182), they are consistent with his 

own contrary record of “no limitations” and with Dr. Shaw’s assessment that 

Plaintiff can lift at least 10-15 pounds of weight without difficulty (R. at 182, 212). 

Moreover, the ALJ addressed Plaintiff’s shoulder at Step 2 and Step 4; in doing so, 

she referred to Dr. Marcus’s September 20, 2012 notes that “[t]here is limitation in 

movement of the right shoulder[,]” (R. at 262) and apparently to the October 5, 

2012 MRI of the right shoulder (R. at 267-268), which noted only “mild to 

moderate rotator cuff impingement,” (R. at 17, 19; DE 18 at 20.) 

 As to neuropathy, the Commissioner points to several of Dr. Marcus’s 

letters, which the ALJ discussed at Step 2: 

2:14-cv-14213-AJT-APP Doc # 19 Filed 11/23/15 Pg 25 of 34 Pg ID 387
26

 a June 14, 2012 letter which noted, “Sensation is decreased to pinprick 

distally in the feet and hands. There is decreased pinprick in the distribution 

of the median nerve[;]” (R. at 243), 

 a July 26, 2012 letter which noted Plaintiff’s complaints of numbness and 

weakness in the entire right side of his body and decreased reflexes (R. at 

254), 

 a September 27, 2011 letter which noted a frozen right shoulder (R. at 265), 

and 

 a November 1, 2012 letter which noted Plaintiff’s diabetes was not well 

controlled, there was decreased pinprick distally in his feet, reflexes were 

decreased, but no cranial nerve abnormalities (R. at 270). 

(See DE 18 at 16, R. at 17, 19.) These were clearly taken into consideration. 

With respect to obesity, the Commissioner points to the ALJ’s Step 4 

discussion of obesity. (DE 18 at 17, R. at 20.) There, among other things, the ALJ 

noted: “In spite of his weight, clinicians observed the claimant ambulate normally 

without an assistive device, and to retain functional range of motion.” (R. at 20.) 

Although this paragraph of the ALJ’s RFC determination does not expressly cite 

any records, the Commissioner refers to Robert Rubin, D.P.M.’s May 11, 2012 

letter (R. at 236) and several of Andrew Marcus, M.D.’s letters (R. at 243, 254, 

270) for support. (DE 18 at 17.) For example, Dr. Rubin noted that Plaintiff’s 

range of motion was grossly within normal limits. (R. at 236.) 

 Thus, the ALJ adequately considered Plaintiff’s right shoulder impingement, 

diabetic polyneuropathy and obesity in her decision. An argument that the ALJ 

should have incorporated each of the Step 2 severe impairments within the Step 4 

2:14-cv-14213-AJT-APP Doc # 19 Filed 11/23/15 Pg 26 of 34 Pg ID 388
27

RFC determination is unavailing. First, an ALJ is not required to incorporate all 

impairments deemed severe at step two into his or her hypothetical to the VE or the 

corresponding RFC. Griffeth v Comm’r of Soc. Sec., 217 F. App’x 425, 429 (6th 

Cir. 2007). A step two finding of severity is merely a “de minimis hurdle,” which 

“enable[s] the Commissioner to screen out ‘totally groundless claims.’” Higgs v. 

Bowen, 880 F.2d 860, 862 (6th Cir. 1988); Griffeth, 217 F. App’x at 428 (quoting 

Farris v. Sec’y of Health & Hum. Servs., 773 F.2d 85, 89 (6th Cir. 1985)). “A 

claimant’s severe impairment may or may not affect his [or her] functional 

capacity to do work.” Yang v. Comm’r of Soc. Sec., No. 00-10446-BC, 2014 WL 

1765480, at *5 (E.D. Mich. July 14, 2004). Even after determining that an 

impairment is severe at step two, the ALJ retains an obligation to “assess 

credibility and determine the facts” as to the claimant’s physical and mental 

limitations. Redfield v. Comm’r of Soc. Sec., 366 F.Supp. 2d 489, 497 (E.D. Mich. 

2005). 

b. Mental impairments 

At Step II, the ALJ found that Plaintiff has the severe mental impairment of 

mood disorder. (R. at 15.) Referring to his application for SSI benefits, Plaintiff 

claims his mental impairments include depression and anxiety. (R. at 112-118, DE 

15 at 8.) He also claims to suffer from bipolar disorder. (DE 15 at 9.) According 

2:14-cv-14213-AJT-APP Doc # 19 Filed 11/23/15 Pg 27 of 34 Pg ID 389
28

to Plaintiff, his bipolar disorder, major depression and anxiety are characterized by 

things such as severe memory loss, panic attacks, delusions, etc. (DE 16 at 9.) 

Plaintiff’s argument that the ALJ’s RFC determination did not accurately 

portray Plaintiff’s mental impairments is unavailing. (See DE 15 at 5, 15.) For 

example, Plaintiff alleges that “Judge Xenos does not factor in her RFC 

determination her own previous conclusion that Plaintiff has . . . mood disorder.” 

(DE 15 at 15.) He also argues that the ALJ “ignored the medical evidence from the 

medical record which demonstrates numerous health problems from Plaintiff’s 

numerous physical and mental severe impairments.” DE 15 at 13. 

However, the ALJ placed the following limitations on Plaintiff’s ability to 

do light work: “simple, repetitive, self-paced, unskilled work that involves 

minimal changes in work setting, and only occasional contact with coworkers, 

supervisors and the general public.” (R. at 18.) As Defendant asserts, these 

limitations account for Plaintiff’s mental conditions. (DE 18 at 16.) Moreover, 

among other mental health records, the ALJ considered the June 13, 2012 

psychiatric evaluation and mental status examination by psychiatrist Someswara N. 

Navuluri, M.D. (R. at 16, 218-219), which found that Plaintiff’s “memory was 

intact,” that his “Judgment was good” and which does not suggest an inability to 

work. 

c. Light work, non-exertional limitations, and the 

burden of proof 

2:14-cv-14213-AJT-APP Doc # 19 Filed 11/23/15 Pg 28 of 34 Pg ID 390
29

Plaintiff takes issue with the ALJ’s conclusion that he can perform a full 

range of light work. For example, Plaintiff claims that “[t]here is not a scintilla of 

evidence to support her RFC assessment that Plaintiff would be capable of light 

work on a sustained basis.” (DE 15 at 15.) Plaintiff also argues that “[t]here is not 

a scintilla of evidence to support his RFC assessment that Mr. Jones would be 

capable of work at the light exertional level including work that requires lifting up 

to 20 pounds, standing, and walking, on a sustained basis.” At most, Plaintiff 

contends, the medical evidence points to a sedentary RFC, although he would 

arguably be found disabled under the GRIDs. (DE 15 at 16.) 

Additionally, Plaintiff contends that the ALJ failed to adequately account for 

her non-exertional limitations, such as pain and medication side effects, in setting 

forth the RFC. See DE 15 at 8, 15. Without citation to the record, Plaintiff claims 

to have chronic pain syndrome, severe pain when walking due to his peripheral 

neuropathy in both feet, and severe side effects from medication, such as dizziness, 

drowsiness and fatigue. DE 15 at 9. Pointing out the ALJ’s finding that Plaintiff 

has moderate deficiencies of concentration, persistence or pace in completing tasks 

in a timely manner (R. at 18), Plaintiff contends “[t]here was no evaluation by the 

ALJ as to whether the Plaintiff needed to lay down during unscheduled work 

breaks, would need to elevate his feet, or [as to] concentration problems related to 

2:14-cv-14213-AJT-APP Doc # 19 Filed 11/23/15 Pg 29 of 34 Pg ID 391
30

Plaintiff’s severe fatigue, bipolar disorder, memory, and pain issues.” (DE 15 at 

15.) 

As noted above, “the burden of proof lies with the claimant at steps one 

through four of the process, culminating with a claimant's proof that she cannot 

perform her past relevant work.” Her v. Commissioner of Social Sec., 203 F.3d 

388, 391 (6th Cir. 1999). In the end, it is the claimant’s burden to prove his or her 

RFC. See 20 C.F.R. § 416.912(a);9 Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 

2001). 

Plaintiff has not satisfied his burden to challenge the ALJ’s Step 4 RFC 

finding. Even if, as Plaintiff contends, the ALJ never discusses medication side 

effects, fatigue, neuropathy and pain (see DE 15 at 11), Plaintiff has not shown this 

omission was harmful. See Shinseki, Secretary of Veterans Affairs v. Sanders, 556 

U.S. 396, 409 (2009) (“[T]he burden of showing that an error is harmful normally 

falls upon the party attacking the agency’s determination.”). Plaintiff states his 

limitations and severe impairments are documented with medical evidence and 

records, yet Plaintiff does not provide express citations to such records. (See DE 

15 at 15-16.). In fact, Plaintiff’s only express citation to the medical record is his 

discussion of Dr. Costea’s assessment. (See, i.e., DE 15 at 11, R. at 181-183.) The 

 

9 “In general, you have to prove to us that you are blind or disabled.” 20 C.F.R. 

416.912(a). 

2:14-cv-14213-AJT-APP Doc # 19 Filed 11/23/15 Pg 30 of 34 Pg ID 392
31

inconsistencies of this assessment and the reasons for discounting it are discussed 

in greater detail above. The same is true of Plaintiff’s statement that the ALJ 

“slanted and even outright misstates the evidence in her decision[,]” as this 

statement is not supported by any citation to the record. See DE 15 at 14. 

In sum, there is ample support for the ALJ’s RFC determination, and 

Plaintiff fails to meet his burden to show why a contrary determination should have 

been made or would have led to a different outcome. 

3. The ALJ appropriately addressed Plaintiff’s credibility. 

Plaintiff contends that the ALJ does not reject Plaintiff’s “severe complaints 

in any satisfactory way[,] nor does she dispute the Plaintiff’s complaints.” (DE 15 

at 15.) “The ALJ's assessment of credibility is entitled to great weight and 

deference, since he [or she] had the opportunity to observe the witness's 

demeanor.” Infantado v. Astrue, 263 F. App’x 469, 475 (6th Cir. 2008). 

Nevertheless, “an ALJ's assessment of a claimant's credibility must be supported 

by substantial evidence.” Walters v. Comm'r Soc. Sec., 127 F.3d 525, 531 (6th Cir. 

1997). 

The ALJ found that Plaintiff’s statements concerning the intensity, 

persistence and limiting effects of his symptoms were not entirely credible. (R. at 

19.) As the Commissioner points out, the ALJ made several observations during 

2:14-cv-14213-AJT-APP Doc # 19 Filed 11/23/15 Pg 31 of 34 Pg ID 393
32

Step 2 and Step 4 which highlight inconsistencies or challenge Plaintiff’s 

credibility. (DE 18 at 18-19.) For example, the ALJ observed: 

 August 19, 2011 progress notes from Professional Medical Center which 

appear to address decreased sensation in the feet and indicate that Plaintiff 

had no acute distress (NAD) obesity (R. at 16, 205) 

 Frederick Carr, B.S., S.S.T.’s October 11, 2011 statement that, “When 

asked about his mental health regimen the client stated it’s going well,” 

and, per Plaintiff, there have been “no issues with medication side 

effects or complication concerning his prescriptions.” (R. at 16, 185) 

 Robert Rubin, D.P.M.’s May 11, 2012 notes acknowledge Plaintiff’s 

complaint of “right foot discomfort, which has been present for about a 

month[,]” but also state Plaintiff “does quite a bit of walking and biking.” 

(R. at 17, 236) 

 Plaintiff’s May 11, 2012 foot x-rays did not reveal acute fracture or 

dislocation (R. at 17, 237, 238) 

 Andrew Marcus, M.D.’s July 26, 2012 notes that Plaintiff complained of 

“numbness and weakness in the entire right side of his body[,]” but 

Plaintiff’s August 6, 2012 brain MRI was normal (R. at 17, 254, 257) 

“Discounting credibility to a certain degree is appropriate where an ALJ finds 

contradictions among the medical reports, claimant's testimony, and other 

evidence.” Walters, 127 F.3d at 531. Here, the ALJ did so. 

G. Conclusion

 In sum, from a review of the record as a whole, the Undersigned concludes 

that substantial evidence supports the ALJ’s decision denying benefits. 

Accordingly, it is RECOMMENDED that the Court DENY Plaintiff’s motion for 

2:14-cv-14213-AJT-APP Doc # 19 Filed 11/23/15 Pg 32 of 34 Pg ID 394
33

summary judgment, GRANT Defendant’s motion for summary judgment, and 

AFFIRM the Commissioner of Social Security’s decision. 

III. PROCEDURE ON OBJECTIONS

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

Recommendation, but are required to file any objections within 14 days of service, 

as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule 

72.1(d). Failure to file specific objections constitutes a waiver of any further right 

of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health & 

Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that 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. Willis v. Sec’y of Health & 

Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of 

Teachers Local 231, 829 F.2d 1370, 1273 (6th Cir. 1987). Pursuant to Local Rule 

72.1(d)(2), any objections must be served on this Magistrate Judge. 

 Any objections must be labeled as “Objection No. 1,” and “Objection No. 

2,” etc. Any objection must recite precisely the provision of this Report and 

Recommendation to which it pertains. Not later than 14 days after service of an 

objection, the opposing party may file a concise response proportionate to the 

objections in length and complexity. Fed. R. Civ. P. 72(b)(2); E.D. Mich. LR 

72.1(d). The response must specifically address each issue raised in the objections, 

2:14-cv-14213-AJT-APP Doc # 19 Filed 11/23/15 Pg 33 of 34 Pg ID 395
34

in the same order, and labeled as “Response to Objection No. 1,” “Response to 

Objection No. 2,” etc. If the Court determines that any objections are without 

merit, it may rule without awaiting the response. 

Dated: November 23, 2015 s/ Anthony P. Patti 

 Anthony P. Patti 

 UNITED STATES MAGISTRATE JUDGE 

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

on November 23, 2015, electronically and/or by U.S. Mail. 

 s/Michael Williams 

 Case Manager for the 

 Honorable Anthony P. Patti 

2:14-cv-14213-AJT-APP Doc # 19 Filed 11/23/15 Pg 34 of 34 Pg ID 396