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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

TERRY JONES, 

Plaintiff, 

v. 

COMMISSIONER OF SOCIAL SECURITY, 

Defendant. 

Case No. 14-14213 

SENIOR U.S. DISTRICT JUDGE 

ARTHUR J. TARNOW

U.S. MAGISTRATE JUDGE 

ANTHONY P. PATTI

 / 

ORDER ADOPTING REPORT AND RECOMMENDATION [19], DENYING PLAINTIFF’S 

MOTION FOR SUMMARY JUDGMENT [15], AND GRANTING DEFENDANT’S MOTION 

FOR SUMMARY JUDGMENT [18] 

 Plaintiff seeks judicial review of an Administrative Law Judge decision 

denying her application for disability benefits. On January 19, 2015, Plaintiff filed 

a Motion for Summary Judgment [Dkt. #15]. Defendant filed a Motion for 

Summary Judgment [18] on April 6, 2015. On November 23, 2015, the Magistrate 

Judge issued a Report and Recommendation (R&R) [19], recommending that the 

Court deny Plaintiff’s motion and grant Defendant’s. Plaintiff filed Objections 

[20] on November 26, 2015. Defendant filed a Response to Plaintiff’s Objections 

[21] on December 9, 2015. 

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 For the reasons stated below, the Court ADOPTS the R&R [19]. Plaintiff’s 

Motion for Summary Judgment [15] is DENIED. Defendant’s Motion for 

Summary Judgment [18] is GRANTED. 

FACTUAL BACKGROUND

 The R&R summarized the record as follows (footnotes omitted): 

 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. 

 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, 

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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. 

 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, 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 

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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, 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. 

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(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 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.) 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.) 

 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, 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 

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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.) 

 D. The Administrative Decision 

 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. 

 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. 

STANDARD OF REVIEW

 The Court conducts de novo review of objections to a Magistrate Judge’s 

Report and Recommendation on a dispositive motion. 28 U.S.C. § 636(b)(1)(c). 

 Judicial review of a decision by a Social Security ALJ “is limited to 

determining whether the Commissioner’s decision is supported by substantial 

evidence and was made pursuant to proper legal standards.” Cole v. Astrue, 661 

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F.3d 931, 937 (6th Cir. 2011) (internal quotation marks omitted). Substantial 

evidence is “such relevant evidence as a reasonable mind might accept as adequate 

to support a conclusion.” Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534 (6th 

Cir. 2001) (internal quotation marks omitted). A reviewing court will affirm the 

Commissioner’s decision if it is based on substantial evidence, even if there is also 

substantial evidence to support the opposite conclusion. Colvin v. Barnhart, 475 

F.3d 727, 730 (6th Cir. 2007). On the other hand, the substantial evidence standard 

“does not permit a selective reading of the record,” as the reviewing court’s 

assessment of the evidence supporting the ALJ’s findings “must take into account 

whatever in the record fairly detracts from its weight.” McLean v. Comm’r of Soc. 

Sec., 360 F. Supp. 2d 864, 869 (E.D. Mich. 2005) (quoting Garner v. Heckler, 745 

F.2d 383, 388 (6th Cir. 1984)). Further, “[a]n ALJ’s failure to follow agency rules 

and regulations denotes a lack of substantial evidence, even where the conclusion 

of the ALJ may be justified based upon the record.” Cole, 661 F.3d at 937 

(internal quotation marks and citations omitted). 

ANALYSIS

I. Weight Assigned to Dr. Costea’s Opinion 

 Plaintiff objects to the Magistrate Judge’s conclusion that the ALJ 

adequately explained the weight assigned to the opinion of Dr. Costea, a purported 

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treating source.1

 Regulations require that an ALJ always give good reasons in her 

decision for the weight given to opinions from a claimant’s treating source. 20 

C.F.R. § 404.1527(d)(2). The ALJ’s discussion of treating source evidence “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.” Cole, 661 F.3d at 937 (quoting Soc. Sec. Rul. 96-2p, 1996 WL 374188, 

at *5). Failure to meet this requirement requires remand unless the failure is 

harmless error. See id. at 940. The error is not harmless where it obstructs 

meaningful review of the ALJ’s decision, even if substantial evidence supports the 

weight assigned. Cox v. Comm’r of Soc. Sec., 615 F. App’x 254, 257 (6th Cir. 

2015) (citing Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 409–10 (6th Cir. 

2009)). 

 Here, the ALJ discussed Dr. Costea’s opinion as follows: 

The undersigned considered the July 2010 examination report and 

assessment of Dr. Coste[a] (Exhibit 2F). The family physician 

checked blocks indicating the claimant could not lift even 10 pounds; 

could not stand and/or walk even 2 hours in an 8-hour workday; could 

not sit 6 hours in a work day; and could not use his upper limbs in a 

useful manner. Such level of dysfunction is not borne out by the 

record, including the doctor’s own clinical narrative. Dr. Coste[a] 

also checked blocks indicating the claimant had unspecified limits 

 

1

 Defendant has argued that Dr. Costea is not a treating source. The R&R 

concluded, in a footnote, that Defendant’s claim “seems to be true.” However, the 

R&R proceeded to review the ALJ’s discussion of Dr. Costea’s opinion as if it 

were the opinion of a treating source. The Court will do the same. 

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affiliated with concentration, comprehension and memory, though 

subsequent evaluations completed by mental health clinicians 

reflected this not to be true. Little weight is given to the opinions of 

Dr. Coste[a], because they are not well supported, and they are 

contradicted by other substantial evidence. 

The Magistrate Judge concluded that the ALJ “adequately explained her 

consideration of Dr. Costea’s opinion.” The Magistrate Judge reasoned that (1) the 

ALJ noted the date of Dr. Costea’s report, which slightly predates the alleged onset 

of Plaintiff’s disability; (2) the ALJ noted that Dr. Costea’s assessment of 

Plaintiff’s limitations was inconsistent with other evidence, including Dr. Costea’s 

own clinical narrative and subsequent mental health evaluations; (3) some of these 

inconsistencies, such as questionnaire responses indicating that Plaintiff has no 

physical limitations and has limitations on lifting/carrying, are sufficiently obvious 

to excuse the ALJ’s failure to specifically identify them; and (4) Plaintiff has failed 

to meet his burden to identify conflicting evidence to show that the ALJ’s 

conclusion was not supported by substantial evidence. 

 The Court adopts the Magistrate Judge’s conclusion but rejects some 

elements of his reasoning. The ALJ did not state how or whether she considered 

the date of Dr. Costea’s examination when evaluating the weight to assign to the 

doctor’s opinion. Thus, the Court cannot conclude that the ALJ’s mere mention of 

the date constituted part of the “good reasons” she provided for that weight. 

Additionally, in challenging the ALJ’s explanation for the weight assigned to a 

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treating source opinion, Plaintiff did not bear the burden of identifying conflicting 

evidence that would preclude a conclusion that substantial evidence supported the 

weight assigned. Plaintiff could win remand by showing that the ALJ’s failure to 

articulate her reasoning obstructed meaningful review. Cox, 615 F. App’x at 257 

(citing Blakley, 581 F.3d at 409–10).

 As shown by the R&R, however, the ALJ’s discussion of Dr. Costea’s 

opinion is sufficient to permit meaningful review. As the Magistrate Judge 

explained, some of the inconsistencies to which the ALJ alluded are obvious. 

Further, the ALJ devoted several paragraphs of her decision— situated between the 

ALJ’s credibility finding and her discussion of Dr. Costea’s opinion—to discussing 

why the medical evidence supported her RFC finding and did not support further 

limitations. In light of this discussion, it is no great mystery what the ALJ meant 

when saying that additional limitations identified by Dr. Costea were “not borne 

out by the record” and “not well supported.” 

 In sum, even though the ALJ’s reasons for assigning Dr. Costea’s opinion 

little weight arguably lacked the level of explicit detail demanded by regulations, 

the error was harmless. Harmless error of this type does not warrant remand. 

Cole, 661 F.3d at 940. 

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II. Omissions from Plaintiff’s RFC

 Plaintiff’s second objection, presented in only four sentences, appears 

directed at the following portion of the Magistrate Judge’s analysis: 

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 

citation 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.) 

Plaintiff argues that acceptance of the Magistrate Judge’s “assertions” regarding 

his failure to demonstrate a harmful omission “would certainly mean that no 

claimant could ever be considered disabled.” The Court does not understand this 

argument. The Magistrate Judge’s analysis implies that a claimant could succeed 

in proving the alleged omissions harmful, and that Plaintiff himself may have 

succeeded if he had cited medical evidence. Aside from “incorporating” 

arguments raised in his Motion for Summary Judgment, Plaintiff does not explain 

why the Magistrate Judge should have found reversible error. The Court agrees 

with Defendant that Plaintiff has forfeited whatever argument he intended to 

present for failure to develop it. See e.g., Hayward v. Cleveland Clinic Found., 

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759 F.3d 601, 618 n.9 (6th Cir. 2014) (citing McPherson v. Kelsey, 125 F.3d 989, 

995–96 (6th Cir. 1997)). The Court further notes that the R&R reminded the 

parties that filing objections that fail to raise certain issues with specificity would 

result in a waiver of appeal rights regarding those issues. Willis v. Sullivan, 931 

F.2d 390, 401 (6th Cir. 1991). 

CONCLUSION

 For the reasons stated above, 

IT IS ORDERED that the Report and Recommendation [19] is ADOPTED

and, except as otherwise noted, entered as the conclusions and findings of the 

Court. Plaintiff’s Objections to the R&R [20] are OVERRULED. 

IT IS FURTHER ORDERED that Defendant’s Motion for Summary 

Judgment [18] is GRANTED. Plaintiff’s Motion for Summary Judgment [15] is 

DENIED. 

SO ORDERED. 

s/Arthur J. Tarnow 

 Arthur J. Tarnow 

Dated: February 19, 2016 Senior United States District Judge 

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