UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

JAMES M. DEPWEG, 

 Plaintiff, 

v. 

COMMISSIONER OF 

SOCIAL SECURITY, 

 Defendant. 

 

Case No. 2:14-CV-11705 

District Judge Gerald E. Rosen 

Magistrate Judge Anthony P. Patti 

___________________________________/ 

RECOMMENDATION TO GRANT DEFENDANT’S MOTION FOR 

SUMMARY JUDGMENT (DE 15) AND TO DENY PLAINTIFF’S MOTION 

FOR SUMMARY JUDGMENT (DE 14) 

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

RECOMMENDED that the Court GRANT Defendant’s motion for summary 

judgment (DE 15), DENY Plaintiff’s motion for summary judgment (DE 14), and 

AFFIRM the Commissioner’s decision. 

II. REPORT 

 Plaintiff, James M. Depweg, brings this action under 42 U.S.C. §§ 405(g) 

and 1383(c)(3) for review of a final decision of the Commissioner of Social 

Security (“Commissioner”) denying his applications for social security disability 

insurance benefits and supplemental security income. This matter is before the 

United States Magistrate Judge for a Report and Recommendation on Plaintiff’s 

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2

motion for summary judgment (DE 14), the Commissioner’s memorandum in 

opposition and cross motion for summary judgment (DE 15), Plaintiff’s reply (DE 

16), and the administrative record (DE 11). 

A. Background 

 Plaintiff initially filed his application for disability insurance benefits and for 

supplemental security income on September 4, 2009, alleging that he has been 

disabled since April 1, 2008. (R. at 155.) Plaintiff’s applications were denied and 

he sought a de novo hearing before an Administrative Law Judge (“ALJ”). ALJ 

Kim Soo Nagle held a hearing on May 6, 2011 and subsequently determined that 

Plaintiff was not disabled within the meaning of the Social Security Act. Plaintiff 

initially appealed the decision, but then requested that the Appeals Council 

withdraw his request for review. (R. at 172.) Accordingly, Plaintiff could not file 

an appeal with this Court. ALJ Nagle’s decision therefore became the 

Commissioner’s final decision. 

 In the instant action, Plaintiff protectively filed his applications for benefits 

on September 23, 2011, alleging, again, that he has been disabled since May 1, 

2008, at age 43. (R. at 176.) Plaintiff’s applications were again denied. Plaintiff 

sought a de novo hearing before an Administrative Law Judge (“ALJ”). ALJ Paul 

W. Jones held a hearing on December 9, 2013 and subsequently determined that 

Plaintiff was not disabled within the meaning of the Social Security Act. On 

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3

March 6, 2014, the Appeals Council denied Plaintiff’s request for review. ALJ 

Jones’ decision became the Commissioner’s final decision. Plaintiff then timely 

commenced the instant action. 

B. Plaintiff’s Medical History 

 On October 12, 2009, Plaintiff was evaluated by Michael Sheth, M.D., at 

the Allegiance Pain Management Center. (R. at 351.) Plaintiff presented to Dr. 

Sheth complaining of lower back pain that made sleeping difficult. Dr. Sheth 

summarized the results of Plaintiff’s April 4, 2009 MRI, noting that it revealed 

multilevel degenerative disc disease. (R. at 352.) Dr. Sheth noted that Plaintiff 

had a steady gait and was able to heel-toe walk. At the end of the visit, Plaintiff 

indicated that he was not interested in further interventional therapies, and Dr. 

Sheth made no changes to his medication. (R. at 353.) 

 Plaintiff underwent a procedure in which a malpositioned screw was 

removed from his calcanceus. (R. at 401.) On May 3, 2011, he presented to Tudor 

Tien, M.D., at Allegiance Orthopedics, for follow-up. Plaintiff noted that he had 

some numbness in his foot, but Dr. Tien found that he was “doing well” and that 

“his incisions are healing nicely” with “no signs of infection.” (R. at 401.) 

Plaintiff presented for a follow-up appointment on September 8, 2011 with Dr. 

Tien, who noted that Plaintiff’s incision was well-healed, and x-rays of his left foot 

showed that the fracture was healed in good alignment. (R. at 399.) 

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 Siddharth Shetger, D.O., examined Plaintiff on behalf of the State Agency 

on March 21, 2013. (R. at 402-406.) Upon examination, Dr. Shetger found 

Plaintiff’s muscle strength to be 5/5 throughout. He also noted that Plaintiff’s grip 

strength was full and his digital dexterity was intact, although Plaintiff had a 

positive Tinel’s and Phalen’s sign bilaterally. (R. at 405.) 

 On May 1, 2013, Craig S. Brown, Ed.D., performed a mental status 

examination on behalf of the State Agency. He summarized Plaintiff’s report that 

he felt worthless, but was focused on God. (R. at 407.) Dr. Brown noted that he 

had to repeat his questions because Plaintiff’s responses were often unrelated to the 

question asked. Dr. Brown referred to Plaintiff’s previous diagnoses of major 

depressive disorder and personality disorder, not otherwise specified. Plaintiff 

described a typical day as going to bed at 9:00 p.m., waking at 4:00 a.m., watching 

religious shows on television, and going outside to feed the birds and squirrels. (R. 

at 411.) Dr. Brown noted that Plaintiff had a normal cognitive speed, but moved 

slowly. He reported that Plaintiff’s stream of mental activity was spontaneous and 

illogical at times. (R. at 412.) In a test for attention and concentration, Plaintiff’s 

result was normal. (R. at 414.) Dr. Brown diagnosed Plaintiff with major 

depressive disorder, reading disorder, disorder of written expression, and 

personality disorder. (R. at 418.) He assigned Plaintiff a global assessment 

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functioning score of 46.1

 Dr. Brown concluded that Plaintiff was angry and 

depressed. 

 C. Hearing Testimony 

 1. Plaintiff’s Testimony 

 Plaintiff initially appeared pro se before the ALJ on September 30, 2013. 

The ALJ granted him an extension of time in which to retain counsel, but noted 

that, after the extension the hearing would go ahead whether Plaintiff was 

represented by counsel or not. (R. at 89.) Plaintiff again appeared pro se at the 

December 9, 2013 hearing. He testified that he had only been able to find one 

attorney who could take his case, but that person was not available until some 

indefinite date in 2014. (R. at 41.) Plaintiff indicated that he had been unable to 

look for an attorney because he was bedridden for four weeks after breaking his 

collar bone. This injury occurred when he fell off a ladder when attempting to 

 

1

 The GAF scale was used to report a clinician’s judgment of an individual’s 

overall level of functioning. Clinicians selected a specific GAF score within the 

ten-point range by evaluating whether the individual was functioning at the higher 

or lower end of the range. See American Psychiatric Ass’n, Diagnostic and 

Statistical Manual of Mental Disorders 33–34 (American Psychiatric Association, 

4th ed. text rev. 2000) (DSM-IV-TR). A GAF score of 41-50 was indicative of 

serious symptoms (e.g., suicidal ideation, severe obsession rituals, frequent 

shoplifting) or any serious impairment in social, occupational, or school 

functioning (e.g., no friends, unable to keep a job). DSM-IV-TR at 34. However, 

“the most recent version of the DSM does not include a GAF rating for assessment 

of mental disorders.” Bryce v. Comm'r of Soc. Sec., No. 12-CV-14618, 2014 WL 

1328277, at *10 (E.D. Mich. Mar. 28, 2014).

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change a lightbulb. (R. at 42.) According to Plaintiff, his doctor indicated that his 

collar bone was healing, but would take another four weeks to line up correctly. 

(R. at 44.) He testified that he lives in a house with his 65-year old mother, and no 

one else was available to change the light bulb. 

 Plaintiff testified to serious nerve damage in his back, bad balance, and 

carpal tunnel. (R. at 44-45.) He indicated that he would be unable to perform a 

sit-down job because his right hand was “deformed,” and his fingers did not work 

very well. (R. at 61.) To illustrate this, he made a fist for the ALJ, who observed 

that his middle finger did not bend all the way. (Id.) He did not undergo surgery 

for his carpal tunnel, however, because of money issues. (R. at 61.) Plaintiff noted 

that, as a result of his carpal tunnel, it was hard for him to hold onto objects, such 

as a gallon of milk, a coffee cup, or a hammer. (R. at 62, 64, and 65.) He testified 

that he had recently attempted to put up shelving, but was unable to do it correctly 

and had to have someone else come in to “put screws in it.” (R. at 66.) 

 In addition to the above impairments, Plaintiff indicated that he had 

undergone surgery on his heel in March 2011. (R. at 66.) He noted that his heel 

was still painful, but that his doctor did not find any issues with the surgery. (R. at 

67.) Plaintiff also testified that he began seeing a social worker in 2011 because of 

his depression. (R. at 68-69.) He noted that he took the preliminary steps to 

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7

commit suicide by hanging, but aborted the attempt because he believed that God 

wanted him to stop. (R. at 71.) 

 Plaintiff testified that he smoked two joints of marijuana per night, including 

an after-dinner joint, to relax him. (R. at 47.) Upon questioning from the ALJ, 

Plaintiff stated, “Yeah, I get high, I guess.” (R. at 68.) He indicated that he 

receives the marijuana from a “caregiver,” who gives him a discount. (R. at 47.) 

Plaintiff noted that he was previously addicted to pain medication, but went 

through a treatment program. (R. at 60.) According to Plaintiff, the marijuana use 

lessens his need to take pain medication. (R. at 67.) 

 Plaintiff testified that he had two sons, aged 21 and 22, and a daughter, aged 

15. (R. at 48.) He indicated that the mother of two of his children owed him 

$30,000 in back child support and is a prostitute for crack. (R. at 59.) Plaintiff 

testified that he was 5’ 8” tall and weighed about 200 pounds. (R. at 49-50.) He 

noted that he went to high school up to twelfth grade. Although he did not 

graduate or obtain a GED, he testified that he was able to read, write, and do 

simple math. (R. at 50.) He has a tattoo on his arm that reads, “Time to get paid, 

shortchanged.” (R. at 58.) 

 Plaintiff testified that he had worked most recently in 2008 as a locksmith, 

but was fired because the job became too difficult for him. (R. at 55.) He started 

his career doing paper routes, working in a restaurant, and helping his father in a 

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shoe shop. (R. at 55.) The bulk of his working life was spent doing construction, 

during which time he learned electrical work and framing. (R. at 56.) He testified 

that his body could no longer handle the work, noting that his back went out in 

1995. (R. at 56 and 58.) Plaintiff indicated that he had insurance through the 

Jackson Health Plan, but had not looked at the Affordable Care Act website 

because he was “just scared that it’s going to cost more than I can come up with.” 

(R. at 51.) 

 2. Vocational Expert Testimony

 Toni McFarland testified as the Vocational Expert (“VE”) at the 

administrative hearing. The ALJ asked the VE to determine if there were any 

positions in the national economy that a hypothetical person of Plaintiff’s age, 

education, and work experience, could perform at the sedentary exertional level 

with the following limitations: 

[The hypothetical individual] requires a sit/stand option. Who can do 

all occasional posturals. That is climbing, balancing, stooping, 

kneeling, crouching, and crawling. Who has manipulative limitations 

as follows: can frequently handle objects bilaterally; can frequently 

finger objects bilaterally.2

 

* * * 

Environmental limitations as follows: avoiding exposure to the nonweather related extremes of cold and heat, that is concentrated 

 

2

 At this point, the ALJ clarified that, although the most recent DDS report gave no 

functional limitations with regard to manipulation, he limited the hypothetical 

individual to only frequent fingering as a result of his severe carpal tunnel 

syndrome. (R. at 74.) 

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exposure to hazards such as the operational control of moving 

machinery and unprotected heights; and simple, routine, and repetitive 

tasks. . . . And occasional changes in the work setting. 

(R. at 73-74.) Based on this hypothetical, the VE identified a sample list of three 

sedentary unskilled positions with a specific vocational preparation (“SVP”) of 2. 3 

These included a document preparer, with 68,000 jobs nationally; a telephone 

quotation clerk, with 55,000 jobs nationally; and a lens inserter, with 28,000 jobs 

nationally. (R. at 75.) 

 Next, the ALJ asked the VE to consider if these jobs would be available to 

the above hypothetical individual, who was limited to only occasional handling 

and fingering. The VE answered that the above mentioned jobs would not be 

available to the hypothetical individual, but identified a comprehensive list of two 

sedentary unskilled jobs the hypothetical individual could perform: call out 

operator, with 14,000 jobs nationally and surveillance system monitor, with 5,000 

jobs nationally. (R. at 76.) 

 D. THE ADMINISTRATIVE DECISION

 On December 20, 2013, the ALJ issued his decision. He first addressed the 

impact of Plaintiffs previous applications for benefits, which were denied on May 

 

3

 “The DOT lists an SVP time for each described occupation. Using the skill level 

definitions in 20 CFR 404.1568 and 416.968, unskilled work corresponds to an 

SVP of 1-2; semi-skilled work corresponds to an SVP of 3-4; and skilled work 

corresponds to an SVP of 5-9 in the DOT.” SSR 00-4P. 

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27, 2011. (R. at 20.) The ALJ adjusted Plaintiff’s alleged onset date of April 1, 

2008 to May 27, 2011 because of the prior final decision. At Step 1 of the 

sequential evaluation process,4

 the ALJ found that Plaintiff had not engaged in 

substantially gainful activity since May 28, 2011, the day after the issuance of the 

prior ALJ’s opinion denying benefits. (R. at 23.) 

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

impairments: lumbar degenerative disc disease, osteoporosis, carpal tunnel 

syndrome, history of left calcaneal surgery, affective disorder, and substance abuse 

disorder. (Id.) 

 

4

 Social Security Regulations require ALJs to resolve a disability claim through a 

five-step sequential evaluation of the evidence. See 20 C.F.R. §404.1520(a)(4). 

Although a dispositive finding at any step terminates the ALJ’s review, see Colvin 

v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), if fully considered, the sequential 

review considers and answers five questions: 

 1. Is the claimant engaged in substantial gainful activity? 

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

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

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

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

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

claimant perform his or her past relevant work? 

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

residual functional capacity, can the claimant perform other work 

available in the national economy? 

See 20 C.F.R. §404.1520(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th 

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

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

combination of impairments that met or medically equaled one of the listed 

impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 23-

25.) 

 Prior to Step 4 of the sequential process, the ALJ evaluated Plaintiff’s 

residual functional capacity (“RFC”)5

 and determined that Plaintiff had the 

capacity to perform sedentary work except with the following limitations: 

he requires a sit/stand option; can occasionally climb, balance, stoop, 

kneel, crouch, and crawl; can frequently handle and finger objects 

bilaterally; must avoid concentrated exposure to non-weather related 

extremes of cold and heat; must avoid concentrated exposure to 

humidity; and must avoid concentrated exposure to hazards, such as 

the operational control of moving machinery and unprotected heights. 

He can perform simple, routine, repetitive tasks and can have 

occasional changes in the work setting. 

(R. at 25.) The ALJ further noted that Plaintiff could not perform his past relevant 

work. (R. at 30.) 

 At Step 5, the ALJ concluded that Plaintiff was capable of performing other 

jobs that exist in significant numbers in the national economy. He therefore 

concluded that Plaintiff was not disabled under the Social Security Act. 

 

5

 The claimant’s “residual functional capacity” is an assessment of the most the 

claimant can do in a work setting despite his or her physical or mental limitations. 

20 C.F.R. §404.1545(a); Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 239 (6th 

Cir. 2002). 

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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). When reviewing a case 

under the Social Security Act, the Court “must affirm the Commissioner’s decision 

if it ‘is supported by substantial evidence and was made pursuant to proper legal 

standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. at 2009) 

(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. at 2007)); see 

also 42 U.S.C. § 405(g) (“[t]he findings of the Commissioner of Social Security as 

to any fact, if supported by substantial evidence, shall be conclusive . . . .”). Under 

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

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

might accept as adequate to support a conclusion.’” Rogers, 486 F.3d at 241 

(quoting Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 

1994)). In deciding whether substantial evidence supports the ALJ’s decision, the 

court does “not try the case de novo, resolve conflicts in evidence or decide 

questions of credibility.” Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007); 

Rogers, 486 F.3d at 247 (“It is of course for the ALJ, and not the reviewing court, 

to evaluate the credibility of witnesses, including that of the claimant.”). 

Furthermore, the claimant “has the ultimate burden to establish an entitlement to 

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benefits by proving the existence of a disability.” Moon v. Sullivan, 923 F.2d 

1175, 1181 (6th Cir. 1990). 

 Although the substantial evidence standard is deferential, it is not trivial. 

The Court must “‘take into account whatever in the record fairly detracts from 

[the] weight’” of the Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 

395 (6th Cir. 2002) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 

(1951)). Nevertheless, “if substantial evidence supports the ALJ’s decision, this 

Court defers to that finding ‘even if there is substantial evidence in the record that 

would have supported an opposite conclusion.’” Blakley v. Comm’r of Soc. Sec., 

581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)); 

see also 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security 

as to any fact, if supported by substantial evidence, shall be conclusive . . . .”). 

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

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

own regulations and where that error prejudices a claimant on the merits or 

deprives the claimant of a substantial right.’” Rabbers, 582 F.3d at 651 (quoting 

Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)). 

F. ANALYSIS

In his motion for summary judgment, Plaintiff asserts two overarching 

statements of error. First, he contends that the ALJ failed to fully develop the 

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record. Second, he argues that the ALJ failed to consider the effects of his 

impairments of obesity, affective disorder, and carpal tunnel syndrome. In his 

reply brief, Plaintiff also argues that the ALJ failed to weigh his credibility when 

assessing his RFC.6

 The Commissioner opposes Plaintiff’s motion, asserting that 

she is entitled to a grant of summary judgment because substantial evidence 

supports the ALJ’s conclusions. I will address each argument in turn. 

 1. The ALJ Fully Developed the Record as Required by 20 

 C.F.R. §§ 404.1512(d) and 416.912(d). 

“The burden of providing a complete record, defined as evidence complete 

and detailed enough to enable the [Commissioner] to make a disability 

determination, rests with the claimant.” Landsaw v. Sec’y of Health & Hum. 

Servs., 803 F.2d 211, 214 (6th Cir. 1986); see also Griffin v. Comm’r of Soc. Sec., 

 

6

 Although not identified as a legal issue for review in his initial brief, I will 

consider Plaintiff’s newly-raised credibility argument only because Defendant 

briefed the issue in her motion for summary judgment, based on Plaintiff’s 

credibility discussion in the facts section of his motion for summary judgment. I 

will not consider Plaintiff’s argument related to the ALJ’s treatment of the opinion 

of State Agency examiner Dr. Craig Brown, which has not been developed by 

Plaintiff and which was not addressed in Defendant’s response. It comprises one 

sentence of his initial motion for summary judgment, and one confusing paragraph 

in his reply. It is unclear to the Undersigned in what ways Plaintiff purports that 

the ALJ erred in his consideration of Dr. Brown’s opinion, which the ALJ 

discussed in his analysis, assigned little weight as inconsistent with Plaintiff’s 

treatment records, but nevertheless limited Plaintiff to occasional changes in the 

work setting as a result. See McPherson v. Kelsey, 125 F.3d 989, 995 (6th Cir. 

1997) (“Issues adverted to in a perfunctory manner, unaccompanied by some effort 

at developed argumentation, are deemed waived.” (internal quotation omitted)). 

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No. 13-11089, 2014 WL 2864953, at *6 (E.D. Mich. Mar. 31, 2014) report and 

recommendation adopted, No. 13-11089, 2014 WL 2864993 (E.D. Mich. June 24, 

2014) (“The ALJ is not required to ‘ferret out’ additional records that the claimant 

neglected to procure.”). However, an ALJ has a “special, heightened duty to 

develop the record” in special circumstances, such as when the claimant is without 

counsel, “is not capable of presenting an effective case, and is unfamiliar with 

hearing procedures.” Nabours v. Comm’r of Soc. Sec., 50 F. App’x 272, 275 (6th 

Cir. 2002). Absent such circumstances, “the claimant bears the ultimate burden of 

proving disability.” Wilson v. Comm’r of Soc. Sec., 280 F. App’x 456, 459 (6th 

Cir. 2008). 

Plaintiff’s argument with respect to the ALJ’s development of the record 

centers around Sims v. Apfel, 530 U.S. 103 (2000), in which a plurality of the 

Supreme Court stated that “Social Security proceedings are inquisitorial rather than 

adversarial,” thereby giving the ALJ the duty “to investigate the facts and develop 

the arguments both for and against granting benefits.” Id. at 111-12. Plaintiff 

argues that because his intelligence is below average and he appeared pro se at the 

hearing, the ALJ failed to perform his special duty to develop the record and 

ensure a fair hearing. Plaintiff points to the May 1, 2013 mental status 

examination performed by Craig S. Brown, Ed.D., a licensed psychologist, who 

indicated that his intelligence was below average. (R. at 417.) He takes issue with 

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the ALJ’s note that he had submitted very little medical evidence, asserting that it 

was incumbent upon the ALJ to provide him with extra time in which to assemble 

the missing documents. 

Plaintiff’s argument is somewhat compelling. There is record evidence that 

Plaintiff’s intelligence is below average, although the ALJ assigned little weight to 

the opinion stating as much. (R. at 417.) Plaintiff testified at his first hearing that 

he was “not really very intelligent” and did not understand the “processes and 

procedures.” (R. at 86.) The argument fails, however, for two reasons. First, 

Plaintiff has failed to demonstrate that he was not capable of presenting an 

effective case and was unfamiliar with hearing procedures. Plaintiff had been 

through this process at least once before, in 2011, and possibly more. (See also R. 

at 413, in which Plaintiff reported to Dr. Brown that he “has been denied for SS 

benefits many times.”)7

 He appeared and testified at the hearing in that case, 

although he was represented by counsel at the time. In the instant case, the ALJ 

gave Plaintiff an extension of time in which to retain counsel, noting at the first 

hearing that after the adjournment was over, the hearing would go forward, 

whether he had a lawyer or not. (R. at 89.) At the second hearing, Plaintiff was 

again unrepresented, did not seek another extension, stated that three lawyers had 

 

7

 Curiously, as skeptically pointed out by the ALJ, Plaintiff chose to demonstrate 

his arm strength by referencing his ability to “pick up a gallon of milk,” a measure 

which is routinely employed in the RFC analysis. (R. at 62.) 

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refused to take his case, and did not produce any information about the attorney 

who he purported was able to represent him in 2014. (R. at 41.) 

He further testified that he could read, write, and do simple math. (R. at 50.) 

From the transcript, it appears that Plaintiff understood the ALJ’s questioning and 

responded appropriately to the questions. In addition, he was able to supplement 

the record with new medical evidence of his clavicle fracture, indicating that he 

had some familiarity with the procedures. (R. at 41-42.) There is no indication 

that, had Plaintiff been represented by counsel at the hearing, his testimony would 

have been meaningfully different. Simply appearing unrepresented at the hearing 

is not sufficient to constitute a special circumstance requiring a heightened duty to 

develop the record. See Wilson, 280 F. App’x at 459 (holding that there was no 

heightened scrutiny where the claimant appeared at the hearing unrepresented but 

the transcript “disclose[d] her grasp of the proceedings and the adequacy of her 

case presentation to the ALJ.”). 

Second, Plaintiff has not suggested what further information could have 

been brought forth at the hearing that would have affected the ALJ’s disability 

determination. See Duncan v. Sec’y of Health & Hum. Servs., 801 F. 2d 847, 856 

(6th Cir. 1986) (holding that the claimant received a full and fair hearing, although 

it was short and he was unrepresented, where he did not provide “what possible 

further information [that] could have been brought forth at the hearing which 

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18

would have enhanced a determination of disability.”). As the Commissioner points 

out, when Plaintiff ultimately did retain an attorney, he did not proffer any new 

evidence that would support his claim prior to Appeals Council review. The ALJ 

did remark upon the fact that there was very little medical evidence in Plaintiff’s 

record; however, Plaintiff himself attributed that to the fact that he had not had 

health insurance and had not seen a medical practitioner between 2011 and 2013. 

(R. at 92-93.) At the first hearing, the ALJ allowed Plaintiff to write down 

information about any practitioners he had seen who were not included in the 

administrative record, so that those records could be ordered. (R. at 93.) Plaintiff 

does not now point to any such record that was not included. Nor does he identify 

what more the ALJ could have done, absent delaying the hearing indefinitely until 

Plaintiff managed to obtain the assistance of an attorney. Accordingly, Plaintiff’s 

argument on this issue is unpersuasive. 

2. The ALJ Properly Articulated and Assessed Plaintiff’s RFC 

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 

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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)). 

Pursuant to Social Security Rule 96-8p, 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. 

S.S.R. 96-8-, 1996 WL 374184, at *6-7. “Although SSR 96–8p requires a 

‘function-by-function evaluation’ to determine a claimant’s RFC, case law does 

not require the ALJ to discuss those capacities for which no limitation is alleged.” 

Delgado v. Comm’r of Soc. Sec., 30 F. App'x 542, 547 (6th Cir. 2002). Instead, the 

ALJ ‘“need only articulate how the evidence in the record supports the RFC 

determination, discuss the claimant's ability to perform sustained work-related 

activities, and explain the resolution of any inconsistencies in the record.”’ Id.

(quoting Bencivengo v. Comm'r of Soc. Sec., No. 00–1995, 251 F.3d 153, slip op. 

at 5 (3d Cir. Dec. 19, 2000).

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 In the instant case, Plaintiff challenges the ALJ’s findings related to his 

impairments of obesity, affective disorder, and carpal tunnel. His primary 

argument seems to simply be that substantial evidence does not support the ALJ’s 

conclusions that Plaintiff does not have significant work limitations related to these 

impairments. I will consider each impairment in turn. 

 a. Obesity 

 When obesity is at issue, an ALJ need not employ a “particular mode of 

analysis” when considering its impact. Bledsoe v. Barnhart, 165 F. App’x 408, 

411-12 (6th Cir. 2006). The ALJ must, however, “consider the claimant’s obesity 

in combination with other impairments at all stages of the sequential evaluation.” 

Nejat v. Comm’r of Soc. Sec., 359 F. App’x 574, 577 (6th Cir. 2009). While there 

is no longer a Listing for obesity, “obesity may increase the severity of coexisting 

or related impairments to the extent that the combination of impairments meets the 

requirements of a listing.” S.S.R. 02-1P. 

 The burden is on Plaintiff to show specifically “how the obesity, in 

combination with other impairments, limited her [or his] ability to a degree 

inconsistent with the ALJ’s RFC determination.” Smith v. Astrue, 639 F. Supp. 2d 

836, 846-47 (6th Cir. 2009). Here, as support for his proposition, Plaintiff argues 

that Plaintiff’s obesity accounts for his subjective complaints of back pain. He 

fails, however, to point to any evidence that his obesity significantly exacerbated 

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his other impairments or that any resulting limitations were greater than those 

opined by the ALJ in his RFC assessment. In fact, the only evidence in the record 

of the impact of Plaintiff’s obesity on his other symptoms was his self-report to Dr. 

Brown that “his back hurts more from the extra weight.” (R. at 411.) Nor did 

Plaintiff testify to the effects of his obesity at the hearing. See, e.g., Griffith v. 

Comm’r of Soc. Sec., No. Civ. A. 12-10579, 2014 WL 1213257, at *19 (E.D. 

Mich. Feb. 14, 2014) report and recommendation adopted, No. 12-15079, 2014 

WL 1224807 (E.D. Mich. Mar. 24, 2014) (noting that Plaintiff’s failure to testify 

about the limiting effects of obesity provided was evidence supporting the ALJ’s 

limited consideration). Accordingly, Plaintiff has failed to demonstrate that the 

ALJ erred in the consideration of his obesity. 

 b. Affective Disorder 

Next, Plaintiff asserts that the ALJ’s limitation to simple, routine, and 

repetitive tasks did not account for his “moderate to extreme” difficulties in 

maintaining concentration, persistence, and pace (“CPP”). (DE 14 at 28.) As 

support, Plaintiff relies on the mental RFC assessment of State Agency reviewer 

Jerry Csokasy, Ph.D. (R. at 202.) Plaintiff argues that, as a result of this error, the 

ALJ’s hypothetical to the VE did not account for all of his limitations and therefore 

was not supported by substantial evidence. 

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Plaintiff’s argument is without merit. As a preliminary matter, there is no 

support in the record for the proposition that Plaintiff has “extreme” difficulties in 

CPP, as he argues in his motion. Instead, Dr. Csokasy opined that Plaintiff was 

only moderately limited in CPP and was “[n]ot significantly limited” in his ability 

to carry out very short and simple instructions. (R. at 202.) The ALJ accounted 

for Plaintiff’s moderate limitations in CPP by limiting him to simple, routine, and 

repetitive tasks. Such a limitation can appropriately account for a moderate 

impairment in CPP. See Bohn-Morton v. Comm’r of Soc. Sec., 389 F. Supp. 2d 

804, 805-07 (E.D. Mich. 2005) (emphasizing the need for a case-by-case analysis 

and concluding that limiting a claimant to unskilled work adequately accounted for 

a moderate deficiency in CPP); Lewicki v. Comm’r of Soc. Sec., No. 09-11844, 

2010 WL 3905375, at *3 (E.D. Mich. Sept. 30, 2010)(noting that “[d]ecisions in 

this district reflect the conclusion that a moderate impairment in concentration, 

persistence, and pace does not necessarily preclude simple, routine, unskilled 

work.”). Accordingly, the ALJ’s hypothetical to the VE accounted for his 

moderate limitations in CPP and was adequately supported by substantial evidence. 

See Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 238 (6th Cir. 2002) (noting that 

substantial evidence “may be produced through reliance on the testimony of a 

vocational expert (VE) in response to a ‘hypothetical’ question, but only if the 

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23

question accurately portrays [the claimant’s] individual physical and mental 

impairments.” (internal citations omitted)). 

 c. Carpal Tunnel Syndrome and Credibility 

Plaintiff contends that the ALJ erred by failing to include manipulative 

limitations related to his carpal tunnel in the ALJ’s hypothetical to the VE. The 

ALJ, however, did limit Plaintiff to frequent handling and fingering objects 

bilaterally.8

 During the hearing, the ALJ stated the following with respect to 

Plaintiff’s carpal tunnel syndrome: 

And I’ll note, parenthetically, that the new [Disability Determination 

Services] report gives no functional limitations with regard to 

manipulative but finds carp[a]l tunnel to be severe. Given its severity 

and no limitations, I’m not going to go with occasional. . . . I’m going 

with frequent handling and fingering. 

(R. at 74.) He included this limitation in Plaintiff’s RFC, and gave great weight to 

the opinion of State Agency non-examining clinician B.D. Choi, M.D., who opined 

that Plaintiff should have a “frequent limit on manipulation.” (R. at 185.) 

Moreover, consultative examiner Dr. Shetgeri found that Plaintiff’s grip strength 

was full and his digital dexterity was intact, despite positive Tinel’s and Phalen’s 

sign bilaterally. (R. at 403.) Dr. Shetgeri also reported that “[m]anual muscle 

testing reveals strength of 5/5 throughout.” (Id.) Substantial evidence in the 

record, therefore, supports the ALJ’s conclusion. 

 

8

 The regulations generally define “frequently” as “occurring from one-third to 

two-thirds of the time.” S.S. R. 83-10. 

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 Plaintiff additionally takes issue with the ALJ’s reliance on his own 

testimony that he used a hammer to install shelving, noting that he “never 

successfully completed installation of the shelving.” (DE 16 at 3.) However, the 

ALJ did not misrepresent Plaintiff’s testimony. Specifically, the ALJ asked if 

Plaintiff could pick up a hammer, to which he replied “[w]ell, I could pick it up,” 

but indicated that he would not be able to swing it. (R. at 63.) Later, Plaintiff 

testified that he finished the installation of the shelving, but it “didn’t work out 

right.” (R. at 66.) In addition, Plaintiff conceded that he was exaggerating when 

he said he dropped things “all the time.” (R. at 64.) The ALJ’s written opinion 

addressed Plaintiff’s statement about his use of a hammer to install a shelf in the 

summer of 2013, finding that it weighed against the credibility of his subjective 

statements that he had trouble gripping and grasping items. (R. at 28.)9

 Such a 

credibility determination, based on Plaintiff’s own testimony, was not in error. See 

Torres v. Comm’r of Soc. Sec., 490 F. App’x 748, 755 (6th Cir. 2012) (concluding 

that the ALJ’s credibility determination was supported by substantial evidence 

where the claimant’s testimony was inconsistent with her reported activities of 

daily living).10 

 

9

 Plaintiff also testified that he drops a cup of coffee “once a day, at least,” but 

managed to spill (only) “two cups last week.” (R. at 64.) 

10 In Plaintiff’s recitation of the factual background, he asserts that the ALJ 

“cherry-picked” findings related to Plaintiff’s ability to hold a hammer and Dr. 

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 Plaintiff also argues that the ALJ erred in his credibility determination by 

noting that Plaintiff failed to seek medical treatment for his carpal tunnel 

impairment and his notation that Plaintiff abused marijuana. “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); see also Beavers v. Sec’y of Health, Ed., and 

Welfare, 577 F.2d 383, 387 (6th Cir. 1978) (“The opportunity to observe the 

demeanor of a witness, evaluating what is said in the light of how it is said, and 

considering how it fits with the rest of the evidence gathered before the person who 

is conducting the hearing, is invaluable, and should not be discarded lightly.”). “It 

is of course for the ALJ, and not the reviewing court, to evaluate the credibility of 

witnesses, including that of the claimant.” Rogers v. Comm’r of Soc. Sec., 486 

F.3d 469, 475 (6th Cir. 2007). Nevertheless, “an ALJ’s assessment of a claimant’s 

credibility must be supported by substantial evidence.” Walters v. Comm’r Soc. 

 

Shetgeri’s observations in order to justify his RFC assessment. Plaintiff does not 

make a similar argument in the “Law and Argument” section of his brief. To the 

extent Plaintiff makes such an argument, it is without merit. The argument that the 

ALJ mischaracterized or “cherry-picked” the record is seldom successful, because 

“the same process can be described more neutrally as weighing the evidence.” 

White v. Comm’r of Soc. Sec., 572 F.3d 272, 284 (6th Cir. 2009). “When deciding 

cases under 42 U.S.C. § 405(g) whether substantial evidence supports the ALJ’s 

decision, we do not try the case de novo, resolve conflicts in evidence, or decide 

questions of credibility.” Bass, 393 F.3d at 713. As addressed throughout this 

Report and Recommendation, substantial evidence supports the ALJ’s conclusions 

and his decision provides an accurate summary of the administrative record. 

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26

Sec., 127 F.3d 525, 531 (6th Cir. 1997). “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; see 

also Kalmbach v. Comm’r of Soc. Sec., 409 F. App’x 852, 863 (6th Cir. 2011) 

(“Consistency between a claimant’s symptom complaints and the other evidence in 

the record tends to support the credibility of the claimant, while inconsistency, 

although not necessarily defeating, should have the opposite effect.”). 

 1. Failure to Seek Medical Treatment 

 Here, the ALJ first noted that low cost or sliding scale medical treatment is 

available in the state of Michigan through County Health and Mental Health 

Departments, but that Plaintiff failed to receive treatment for his back or his carpal 

tunnel since 2010. (R. at 27-28.) Pursuant to Social Security Ruling 96-7P, an 

ALJ may not draw: 

any inferences about an individual’s symptoms and their functional 

effects from a failure to seek or pursue regular medical treatment 

without first considering any explanations that the individual may 

provide, or other information in the case record, that may explain 

infrequent or irregular medical visits or failure to seek medical 

treatment. 

S.S.R. 96-7P (emphasis added). For example, the ALJ should consider the 

claimant’s explanation where the individual “may be unable to afford treatment 

and may not have access to free or low-cost medical services.” Id. (emphasis 

added). Here, Plaintiff argues that he failed to seek treatment because he did not 

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27

have insurance and that there was no low-cost insurance available before Michigan 

adopted the Affordable Care Act funding provisions for Medicaid. Plaintiff’s own 

testimony, however, indicates that he received health insurance through the 

Jackson Health Plan and states that he had never been on the new website for 

healthcare under the Affordable Care Act, because he was “just scared that it’s 

going to cost more than I can come up with . . . .” (R. at 51.) (emphasis added). 

Plaintiff does not address this testimony or clarify how the Affordable Care Act 

funding provisions came into play, despite his admission that he never sought lowcost insurance under the Act. As such, the ALJ properly considered and drew a 

negative inference from Plaintiff’s failure to obtain treatment, when low-cost 

treatment was available, especially where Plaintiff availed himself of that low-cost 

treatment at some point with no coherent explanation as to why he failed to do so 

earlier. 

 2. Plaintiff’s Use of Medical Marijuana 

 Plaintiff has shown no error in the ALJ’s notation that he abused marijuana. 

Plaintiff argues that the ALJ erred because he had a medical marijuana card, 

permitted under MCL §§ 333.26421-333.26430. While this may be true, the 

argument fails for two reasons. First, Plaintiff seeks benefits under the federal 

Social Security Act. Michigan’s Medical Marijuana Act has been found to be 

preempted by the federal laws that criminalize the possession of marijuana. Forest 

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City Residential Mgmt., Inc., ex rel. Plymouth Square Ltd. Divident Hous. Ass’n v. 

Beasley, 71 F. Supp. 3d 715 (E.D. Mich. 2014). Plaintiff does not reconcile this 

issue, but simply indicates that the ALJ improperly failed to ask about Plaintiff’s 

marijuana card (which Plaintiff never testified to having). Second, the ALJ merely 

stated that Plaintiff abused marijuana, based on his testimony that he smoked two 

joints per day and got high. (R. at 47 and 68.) Based upon this and his further 

testimony that, “[I]f I didn’t have the marijuana, I’d probably be wanting to try 

more pain medicine to have relief” (R. at 67), and his testimony that “I get high, I 

guess” (R. at 68), this was a reasonable finding. Again, the ALJ’s reliance on 

Plaintiff’s own testimony is not in error and Plaintiff has not shown any way in 

which he was prejudiced by the ALJ’s consideration of his marijuana use. 

G. CONCLUSION

 It is important to note that – far from giving short shrift to Plaintiff’s 

contentions, treating him unfairly or merely rubberstamping the prior 

administrative decision – the ALJ in this case conducted a new and independent 

review and deviated from the prior ALJ’s decision, by finding here that the 

claimant does have severe affective disorder and related functional limitations. (R. 

at 23, 30; cf. 158.) Moreover, although the ALJ found that Plaintiff was capable of 

performing sedentary work and thus not disabled for his age, his ruling does direct 

a finding of disability at age 50, pursuant to the Medical Vocational Guidelines. 

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29

(R. at 30.) In other words, although Plaintiff (who was born in 1964) was deemed 

not disabled during the relevant time period, today he is so categorized, and is thus 

presumably able to collect whatever benefits to which he is entitled, consistent 

with the relevant Social Security rules. In sum, from a review of the record as a 

whole, the Undersigned concludes that substantial evidence supports the ALJ’s 

decision denying benefits for the relevant time period. Accordingly, it is 

RECOMMENDED that the Court DENY Plaintiff’s motion for 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., 932 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of 

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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, 

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: July 17, 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 July 17, 2015, electronically and/or by U.S. Mail. 

 s/ Michael Williams 

 Case Manager to the 

 Honorable Anthony P. Patti 

 

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