UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

 

DYNISHA SMITH, 

 Plaintiff, CIVIL ACTION NO. 14-cv-14614 

 v. DISTRICT JUDGE THOMAS L. LUDINGTON 

COMMISSIONER OF MAGISTRATE JUDGE MONA K. MAJZOUB

SOCIAL SECURITY, 

 

 Defendant. 

___________________________/ 

 

REPORT AND RECOMMENDATION 

Plaintiff Dynisha Smith seeks judicial review of Defendant Commissioner of Social 

Security’s determination that she is not entitled to social security benefits for her physical and 

mental impairments under 42 U.S.C. § 405(g). (Docket no. 1.) Before the Court are Plaintiff’s 

Motion for Summary Judgment (docket no. 13) and Defendant’s Motion for Summary Judgment 

(docket no. 14). The motions have been referred to the undersigned for a Report and 

Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). (Docket no. 4.) The Court has 

reviewed the pleadings, dispenses with a hearing pursuant to Eastern District of Michigan Local 

Rule 7.1(f)(2), and issues this Report and Recommendation. 

I. RECOMMENDATION

 For the reasons that follow, it is recommended that Plaintiff’s Motion for Summary 

Judgment (docket no. 13) be GRANTED IN PART and Defendant’s Motion for Summary 

Judgment (docket no. 14) be DENIED. It is further recommended that this matter be remanded 

pursuant to sentence four of 42 U.S.C. § 405(g) for a proper assessment of Dr. Hall’s opinion. 

1:14-cv-14614-TLL-MKM Doc # 15 Filed 01/12/16 Pg 1 of 22 Pg ID 780
2

II. PROCEDURAL HISTORY

 Plaintiff filed an application for supplemental security income with a protective filing 

date of September 30, 2013, alleging that she has been disabled since April 17, 2013, due to 

cervical and lumbar radiculopathy, chronic headaches, obesity, post traumatic cervicalgenic 

headaches, major depression and mood disorders, arthritis, chronic pain, cervicalgia on her right 

side, abnormal thoracic core signal, and episodes of numbness in her arms and legs. (TR 115, 

192-200, 220.) The Social Security Administration denied Plaintiff’s claims on December 19, 

2013, and Plaintiff requested a de novo hearing. (TR 103-15, 127-29.) On August 22, 2014, 

Plaintiff appeared with a representative and testified at the hearing before Administrative Law 

Judge (ALJ) Ramona L. Fernandez. (TR 24-57.) Plaintiff amended her alleged onset date to the 

application date of September 30, 2013 in a pre-hearing memorandum and at the hearing. (TR 

260, 28.) In a September 5, 2014 decision, the ALJ found that Plaintiff was not entitled to 

benefits because she was capable of performing a significant number of jobs in the national 

economy. (TR 10-19.) The Appeals Council declined to review the ALJ’s decision (TR 1-5), 

and Plaintiff commenced this action for judicial review. The parties then filed cross motions for 

summary judgment, which are currently before the Court. 

III. HEARING TESTIMONY AND MEDICAL EVIDENCE

In her brief, Plaintiff sets forth the procedural history of this matter and provides a brief, 

general statement of facts, which is not supported by citations to the record. (Docket no. 13 at 8-

9.) The ALJ set out a factual recitation with regard to Plaintiff’s hearing testimony, Plaintiff’s 

medical record, and the vocational expert’s (VE’s) testimony in her decision. (TR 15-18.) 

Defendant also provided a summary of the procedural history, Plaintiff’s medical record, and 

Plaintiff’s hearing testimony in her brief. (Docket no. 14 at 4-6.) There are no material 

1:14-cv-14614-TLL-MKM Doc # 15 Filed 01/12/16 Pg 2 of 22 Pg ID 781
3

inconsistencies among the aforementioned accounts of the record; therefore, to the extent that 

they are supported by citations to the record, the undersigned will incorporate the factual 

recitations by reference. Additionally, the undersigned has conducted an independent review of 

Plaintiff’s medical record and the hearing transcript and will include comments and citations as 

necessary throughout this Report and Recommendation. 

IV. ADMINISTRATIVE LAW JUDGE’S DETERMINATION

 The ALJ found that Plaintiff had not engaged in substantial gainful activity since the 

application date of September 30, 2013, and that Plaintiff suffered from the following severe 

impairments: cervical and lumbar disc disease; headaches; obesity; major depressive disorder; 

mood disorder; and pain disorder. (TR 12.) The ALJ also found that Plaintiff’s goiter and brain 

lesions were non-severe impairments. (TR 12.) Next, the ALJ found that Plaintiff’s 

impairments did not meet or medically equal the severity of an impairment listed in 20 C.F.R. 

Part 404, Subpart P, Appendix 1. (TR 12-13.) The ALJ then found that Plaintiff had the 

following residual functional capacity (RFC): 

[C]laimant has the residual functional capacity to perform sedentary work as 

defined in 20 CFR 416.967(b) except occasional climbing, stooping, kneeling, 

crouching, crawling, or balancing; no ladders, ropes, or scaffolds; she requires the 

opportunity to change position after 20 minutes or [sic] standing 15 minutes; 

occasional overhead reaching and handling; occasional twisting or turning at the 

neck; she should avoid hazards including moving machinery; she should avoid 

unprotected heights; simple, routine, repetitive tasks with few, if any, workplace 

changes; no fast paced production requirements; and occasional interaction with 

the general public. 

(TR 14-17.) Subsequently, in reliance on the VE’s testimony, the ALJ determined that Plaintiff 

was capable of performing a significant number of jobs in the national economy. (TR 18.) 

Therefore, the ALJ found that Plaintiff was not disabled under the Social Security Act at any 

time since September 30, 2013, the date the application was filed. (TR 10, 18-19.) 

1:14-cv-14614-TLL-MKM Doc # 15 Filed 01/12/16 Pg 3 of 22 Pg ID 782
4

V. LAW AND ANALYSIS

A. Standard of Review

 Pursuant to 42 U.S.C. § 405(g), this Court has jurisdiction to review the Commissioner’s 

final decisions. Judicial review of the Commissioner’s decisions is limited to determining 

whether his findings are supported by substantial evidence and whether he employed the proper 

legal standards. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Walters v. Comm’r, 127 

F.3d 525, 528 (6th Cir. 1997). Substantial evidence is more than a scintilla but less than a 

preponderance; it is “‘such relevant evidence as a reasonable mind might accept as adequate to 

support a conclusion.’” Richardson, 402 U.S. at 401 (quoting Consolidated Edison Co. v. NLRB, 

305 U.S. 197, 229 (1938)); Walters, 127 F.3d at 528. It is not the function of this Court to try 

cases de novo, resolve conflicts in the evidence, or decide questions of credibility. See Brainard 

v. Sec’y of Health and Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v. Heckler, 745 

F.2d 383, 387 (6th Cir. 1984). 

 In determining the existence of substantial evidence, the court must examine the 

administrative record as a whole. See Kirk v. Sec’y of Health and Human Servs., 667 F.2d 524, 

536 (6th Cir. 1981), cert. denied, 461 U.S. 957 (1983). If the Commissioner’s decision is 

supported by substantial evidence, it must be affirmed, even if the reviewing court would decide 

the matter differently, Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983), and even if 

substantial evidence also supports the opposite conclusion. See Her v. Comm’r, 203 F.3d 388, 

389-90 (6th Cir. 1999); Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc) (noting 

that the substantial evidence standard “presupposes that there is a zone of choice within which 

the decisionmakers can go either way, without interference by the courts”). “But ‘[a]n ALJ's 

failure to follow agency rules and regulations denotes a lack of substantial evidence, even where 

1:14-cv-14614-TLL-MKM Doc # 15 Filed 01/12/16 Pg 4 of 22 Pg ID 783
5

the conclusion of the ALJ may be justified based upon the record.’” Gayheart v. Comm'r of Soc. 

Sec., 710 F.3d 365, 374 (6th Cir. 2013) (quoting Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 

2011)). 

B. Framework for Social Security Determinations

 Plaintiff’s Social Security disability determination was made in accordance with a fivestep sequential analysis. In the first four steps, Plaintiff was required to show that: 

(1) Plaintiff was not presently engaged in substantial gainful employment; and 

(2) Plaintiff suffered from a severe impairment; and 

(3) the impairment met or was medically equal to a “listed impairment;” or 

(4) Plaintiff did not have the residual functional capacity (RFC) to perform relevant 

past work. 

See 20 C.F.R. § 404.1520(a)-(f). If Plaintiff’s impairments prevented Plaintiff from doing past 

work, the Commissioner, at step five, would consider Plaintiff’s RFC, age, education, and past 

work experience to determine if Plaintiff could perform other work. If not, Plaintiff would be 

deemed disabled. See id. at § 404.1520(g). The Commissioner has the burden of proof only on 

“the fifth step, proving that there is work available in the economy that the claimant can 

perform.” Her, 203 F.3d at 391. To meet this burden, the Commissioner must make a finding 

“supported by substantial evidence that [the claimant] has the vocational qualifications to 

perform specific jobs.” Varley v. Sec’y of Health and Human Servs., 820 F.2d 777, 779 (6th Cir. 

1987). This “substantial evidence” may be in the form of vocational expert testimony in 

response to a hypothetical question, “but only ‘if the question accurately portrays [the 

claimant’s] individual physical and mental impairments.’” Id. (citations omitted). 

 

1:14-cv-14614-TLL-MKM Doc # 15 Filed 01/12/16 Pg 5 of 22 Pg ID 784
6

C. Analysis

 The Social Security Act authorizes “two types of remand: (1) a post judgment remand in 

conjunction with a decision affirming, modifying, or reversing a decision of the [Commissioner] 

(a sentence-four remand); and (2) a pre-judgment remand for consideration of new and material 

evidence that for good cause was not previously presented to the [Commissioner] (a sentence-six 

remand).” Faucher v. Sec’y of Health and Human Servs., 17 F.3d 171, 174 (6th Cir. 1994) 

(citing 42 U.S.C. § 405(g)). Under a sentence-four remand, the Court has the authority to “enter 

upon the pleadings and transcript of the record, a judgment affirming, denying, or reversing the 

decision of the [Commissioner], with or without remanding the cause for a hearing. 42 U.S.C. § 

405(g). Where there is insufficient support for the ALJ’s findings, “the appropriate remedy is 

reversal and a sentence-four remand for further consideration.” Morgan v. Astrue, 10-207, 2011 

WL 2292305, at *8 (E.D. Ky. June 8, 2011) (citing Faucher, 17 F.3d at 174). 

 Plaintiff asserts that this matter should be reversed and/or remanded under sentence four 

because (1) “[t]he substantial evidence on the record demonstrates that controlling weight was 

not given to the objective medical evidence;” and (2) “[t]he RFC determination by the ALJ did 

not accurately portray [Plaintiff’s] physical and mental impairments and nonexertional 

limitations.” (Docket no. 13 at 11-18.) 

1. The ALJ’s Assessment of the Medical Evidence 

 a. Plaintiff’s Treating Physician, Dr. Jamie Hall, M.D. 

First, Plaintiff argues that the ALJ failed to give good reasons for discounting the opinion 

of her treating physician, Dr. Jamie Hall, M.D. (Docket no. 13 at 11-14.) It is well settled that 

the opinions of treating physicians are generally accorded substantial deference. In fact, the ALJ 

must give a treating physician’s opinion complete deference if it is supported by clinical and 

1:14-cv-14614-TLL-MKM Doc # 15 Filed 01/12/16 Pg 6 of 22 Pg ID 785
7

laboratory diagnostic evidence and it is not inconsistent with the other substantial evidence in the 

record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). When an ALJ determines that a treating 

source’s medical opinion is not controlling, he must determine how much weight to assign that 

opinion in light of several factors: (1) length of the treatment relationship and the frequency of 

examination; (2) nature and extent of the treatment relationship; (3) supportability of the opinion; 

(4) consistency of the opinion with the record as a whole; (5) specialization of the treating 

source; and (6) other factors. 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6). 

 There is no per se rule that requires an articulation of each of the six regulatory factors 

listed in 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6). Norris v. Comm’r of Soc. Sec., No. 

11-CV-11974, 2012 WL 3584664, at *5 (E.D. Mich. Aug. 20, 2012) (citing Tilley v. Comm’r of 

Soc. Sec., 394 F. App’x 216, 222 (6th Cir. 2010)). An ALJ’s failure to discuss the requisite 

factors may constitute harmless error (1) if “a treating source's opinion is so patently deficient 

that the Commissioner could not possibly credit it;” (2) “if the Commissioner adopts the opinion 

of the treating source or makes findings consistent with the opinion;” or (3) “where the 

Commissioner has met the goal of [§ 1527(c)]—the provision of the procedural safeguard of 

reasons—even though she has not complied with the terms of the regulation.” Nelson v. Comm’r 

of Soc. Sec., 195 F. App’x 462, 470 (6th Cir. 2006) (quoting Wilson v. Comm’r of Soc. Sec., 378 

F.3d 541, 547 (6th Cir. 2004)). 

 The Commissioner requires its ALJs to “always give good reasons in [their] notice of 

determination or decision for the weight [they] give [a] treating source’s opinion.” 20 C.F.R. 

§§ 404.1527(c)(2), 416.927(c)(2). Those good reasons must be “supported by the evidence in 

the case record, and 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 

1:14-cv-14614-TLL-MKM Doc # 15 Filed 01/12/16 Pg 7 of 22 Pg ID 786
8

weight.” Wilson, 378 F.3d at 544 (quoting SSR 96-2p, 1996 WL 374188, at *5 (1996)). The 

district court should not hesitate to remand when the Commissioner has failed to identify the 

weight assigned to a treating physician’s opinion and provide good reasons for that weight. See 

Cole v. Astrue, 661 F.3d 931, 939 (6th Cir. 2011) (“This Court has made clear that ‘[w]e do not 

hesitate to remand when the Commissioner has not provided ‘good reasons’ for the weight given 

to a treating physician's opinion and we will continue remanding when we encounter opinions 

from ALJ's that do not comprehensively set forth the reasons for the weight assigned to a treating 

physician's opinion.”) (citing Hensley v. Astrue, 573 F.3d 263, 267 (6th Cir. 2009)). 

 The ALJ’s discussion of Dr. Hall’s opinion is reproduced below in its entirety: 

The medical source statements from the primary doctor, J. Hall, MD dated April 

9, 2014 indicate the claimant cannot work for more than 6 months and is limited 

to a reduced range of sedentary work inconsistent with competitive employment. 

(Exhibits C8F, C11F). These are inconsistent with the claimant’s testimony, the 

treatment history, and the objective evidence, which do not support such degree of 

restriction. This is granted little weight due to these deficits. 

(TR 17.) 

 Plaintiff asserts that the ALJ’s reasoning for discounting Dr. Hall’s opinion is conclusory 

and without rationale. (Docket no. 13 at 11.) She further contends that the ALJ “never attempts 

to explain why Dr. Hall’s medical opinion is not consistent with the claimant’s testimony, the 

treatment history, or the objective evidence” and that the ALJ “points to no substantial evidence 

in the record to dispute Dr. Hall’s medical opinions.” (Id. at 11, 12.) Plaintiff’s argument holds 

merit. 

The ALJ’s explanation for discounting Plaintiff’s treating physician’s opinion in the 

instant matter is substantially similar to that in Gayheart v. Comm’r of Soc. Sec., for which that 

case was remanded. 710 F.3d 365 (6th Cir. 2013). In Gayheart, the ALJ discounted the treating 

1:14-cv-14614-TLL-MKM Doc # 15 Filed 01/12/16 Pg 8 of 22 Pg ID 787
9

physician’s opinions on the grounds that they were “not well-supported by any objective 

findings” and were “inconsistent with other credible evidence.” 710 F.3d at 376. The Sixth 

Circuit found that those were not good reasons because the ALJ’s first line of reasoning was 

ambiguous and because the ALJ did not support his second line of reasoning by identifying the 

evidence that was purportedly inconsistent with the treating physician’s opinions. Id. at 376-77. 

Like the ALJ in Gayheart, the ALJ in the instant matter does not offer any explanation or 

identify any evidence to support her conclusion that Dr. Hall’s opinion is inconsistent with the 

hearing testimony and the medical record. The ALJ’s perfunctory and conclusory statement in 

this regard makes review nearly impossible. The ALJ in the instant matter did not provide good 

reasons for discounting Dr. Hall’s opinion, as it is not sufficiently specific to explain the 

reasoning behind the decision. See Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 245-46 (6th

Cir. 2007) (An ALJ’s explanation that “the record does not support the limitations of the severity 

suggested by [the claimant’s treating physician]” is inadequate to satisfy the notice requirement 

discussed in Social Security Ruling (SSR) 96-7p.). 

 Defendant argues that the ALJ did provide good reasons for rejecting Dr. Hall’s opinion 

and submits analysis and citations to the record in support of the ALJ’s conclusions. (Docket no. 

14 at 7-10.) She also argues that the ALJ properly discounted Dr. Hall’s opinion because it was 

“poorly explained.” (Id. at 10-11.) But Defendant’s post-hoc rationalization of the ALJ’s 

assessment of Dr. Hall’s opinion does not cure the ALJ’s failure to provide good reasons. See

Christephore v. Comm’r of Soc. Sec., No. 11-13547, 2012 WL 2274328, at *6 (E.D. Mich. June 

18, 2012) (Roberts, J.) (“[I]t is not the Court’s job to conduct a de novo review of the evidence or 

to rubber stamp the ALJ’s decision. The Court must ensure both that the ALJ applied the correct 

legal standard and that his decision is supported by substantial evidence. Moreover, it is the 

1:14-cv-14614-TLL-MKM Doc # 15 Filed 01/12/16 Pg 9 of 22 Pg ID 788
10

ALJ’s rationale that is under review, not defense counsel’s.”). Furthermore, despite Defendant’s 

assertion that Dr. Hall’s opinion is poorly explained, it is not so patently deficient as to render 

the ALJ’s procedural error harmless. Accordingly, remand of this matter for a proper assessment 

of Dr. Hall’s opinion is warranted. 

 b. Plaintiff’s Treating Psychiatrist, Dr. Theadia Carey, M.D. 

Plaintiff also challenges the ALJ’s assessment of the opinion of her treating psychiatrist, 

Dr. Theadia Carey, M.D. (Docket no. 13 at 14.) Specifically, Plaintiff finds fault with the ALJ’s 

reliance on the GAF scores that Dr. Carey assigned to Plaintiff and also argues that “[n]o other 

evidence is weighed form [sic] the treating psychiatrist. (Id.) The ALJ addressed the record 

evidence from Dr. Carey as follows: 

The treating psychiatrist, T. Carey, MD assessed the psychiatric severe 

impairments and a GAF of 55-60. The GAF score is consistent with work and is 

granted great weight. (Exhibits C1F, C14F). 

(TR 17.) 

Plaintiff’s argument with regard to the ALJ’s reliance on the GAF scores is convoluted. 

In one instance, without citing authority, Plaintiff asserts that GAF scores have no legal 

significance in Social Security cases; in the next instance, Plaintiff acknowledges that “[a] GAF 

score may help an ALJ assess mental RFC.” (Docket no. 13 at 14 (quoting Kornecky v. Comm’r 

of Soc. Sec., 167 F. App’x 496, 503 n.7 (6th Cir. 2006)).) Indeed, while case law from various 

districts around the country indicates a significant reliance on GAF scores, the Eastern District of 

Michigan has not followed that trend. See Pellow v. Astrue, No. 09-11587, 2010 WL 1626396, 

at *5 (E.D. Mich. Mar. 31, 2010) (Morgan, M.J.) (“Plaintiff's GAF scores are a relevant part of 

her mental health history, but the GAF scores are by no means controlling, nor is there any law, 

regulation, or controlling case law that requires that the scores receive significant weight in the 

1:14-cv-14614-TLL-MKM Doc # 15 Filed 01/12/16 Pg 10 of 22 Pg ID 789
11

ALJ’s evaluation of her residual functional capacity.”); Blavatt v. Comm’r of Soc. Sec., No. 10-

10930, 2011 WL 836805, at *9 (E.D. Mich. Feb 4, 2011) (Randon, M.J.) (“[T]he Sixth Circuit 

has observed, ‘no statutory, regulatory, or other authority requir[es] the ALJ to put stock in a 

GAF score.’”) (quoting Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 511 (6th Cir. 2006) 

(modification in original); citing Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 241 (6th Cir. 

2002)). 

While the case law cited above indicates that GAF scores are not per se entitled to 

significant weight, Plaintiff has not cited any authority that prohibits an ALJ from according 

them significant weight. Accordingly, the ALJ did not err in this regard. Moreover, the ALJ’s 

finding that Plaintiff’s GAF scores of 55-601

 are “consistent with work,” although slightly 

ambiguous, does not constitute reversible error, particularly where, as Defendant argues, the ALJ 

did not rely solely on the GAF scores in finding that Plaintiff is capable of performing a 

significant number of jobs in the national economy. Finally, any error committed by the ALJ in 

failing to fully assess Dr. Carey’s opinion is harmless, as the ALJ adopted Dr. Carey’s diagnoses 

of major depressive disorder and mood disorder as severe impairments (compare TR 628 with

TR 12), and Dr. Carey did not opine regarding any functional limitations caused by Plaintiff’s 

mental disorders. Therefore, Plaintiff’s Motion with regard to the ALJ’s assessment of Dr. 

Carey’s opinion should be denied. 

 

1

 A GAF score is a subjective determination based on a scale of 1-100 of “the clinician’s judgment of the 

individual’s overall level of functioning.” American Psychiatric Association, Diagnostic and Statistical Manual of 

Mental Disorders (Text Revision 4th ed. 2000) 32-34. (“DSM-IV”). A GAF rating of 51 to 60 signals the existence 

of moderate difficulty in social or occupational functioning. Id. 

1:14-cv-14614-TLL-MKM Doc # 15 Filed 01/12/16 Pg 11 of 22 Pg ID 790
12

2. The ALJ’s Assessment of Plaintiff’s RFC2

Next, Plaintiff contends that the ALJ’s RFC assessment does not accurately portray her 

physical and mental impairments and non-exertional limitations. (Docket no. 13 at 15-18.) In 

making this argument, Plaintiff makes general accusations, such as “[t]he 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” and “[t]here is not a scintilla of evidence to 

support her RFC assessment that Plaintiff would be capable of sedentary work on a sustained 

basis with benign restrictions.” (Id. at 15, 16.) Plaintiff presents a laundry list of ALJ errors 

similar to these, but she does not cite to record evidence or medical assessments to support her 

claims. Specifically, Plaintiff sets forth challenges to the ALJ’s assessment of Plaintiff’s brain 

lesions as a non-severe impairment, the ALJ’s assessment of Plaintiff’s credibility, and the ALJ’s 

compliance with SSR 96-8p, which will be addressed in turn. 

 a. The ALJ’s Step-Two Determination 

Plaintiff challenges the ALJ’s determination that her brain lesions are a non-severe 

impairment. (Docket no. 13 at 16-17.) A severe impairment or combination of impairments is 

one that significantly limits the claimant’s physical or mental ability to perform basic work 

activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). An impairment will be considered non-severe 

only if it is a “slight abnormality which has such a minimal effect on the individual that it would 

not be expected to interfere with the individual’s ability to work, irrespective of age, education 

and work experience.” Farris v. Sec’y of Health & Human Servs., 773 F.2d 85, 90 (6th Cir. 

1985) (citation omitted). But the step-two severity analysis is simply a threshold determination. 

It is well established that “once any one impairment is found to be severe, the ALJ must consider 

 

2

 The ALJ’s assessment of Plaintiff’s RFC may change upon remand, yet the undersigned will address Plaintiff’s 

instant claims of error. 

1:14-cv-14614-TLL-MKM Doc # 15 Filed 01/12/16 Pg 12 of 22 Pg ID 791
13

both severe and nonsevere impairments in the subsequent steps,” and it becomes “legally 

irrelevant” that other impairments are not considered severe. McGlothin v. Comm’r of Soc. Sec., 

299 F. App’x 516, 522 (6th Cir. 2008) (citing Anthony v. Astrue, 266 F. App’x 451, 457 (6th Cir. 

2008)). This is so because the second step is designed simply to screen out and dispose of 

baseless claims. Anthony, 266 F. App’x at 457. Stated differently, as long as the ALJ considers 

all of a claimant’s impairments in the remaining steps of the disability determination, the ALJ’s 

failure to find additional severe impairments at step two does not constitute reversible error. See 

Maziarz v. Sec’y of Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987). 

Here, in assessing Plaintiff’s impairments at Step Two of the sequential evaluation 

process, the ALJ acknowledged that Plaintiff’s June 2014 cervical MRI showed lesions. (TR 12 

(citing TR 405).) The ALJ then reasoned that the lesions were non-severe because they hadn’t 

changed since 2008 (citing TR 312) and because there was no evidence that Plaintiff was limited 

by any neurological disorder. (TR 12.) As Plaintiff points out, however, the ALJ misinterpreted 

the medical records. The record evidence cited by the ALJ indicates that a lesion on her thoracic 

spinal cord hadn’t changed since 2008 (TR 312); Plaintiff’s June 2014 MRI of her brain and 

cervical spine revealed “new small active/enhancing lesions” on her brain. (TR 404, 406-07.) 

Moreover, the ALJ did not discuss Plaintiff’s brain lesions at any point in her decision beyond 

Step Two. As discussed above, such a failure to consider this impairment at the remaining steps 

of the sequential evaluation process would normally constitute reversible error. In this instance, 

however, the ALJ’s error is harmless. As Defendant points out, Plaintiff’s neurologist did not 

diagnose a neurological disorder or assess functional limitations as a result of her brain lesions. 

(See docket no. 14 at 22-23.) Indeed, Plaintiff underwent a spinal tap in July 2014 to further 

investigate her MRI results (TR 405), but there is no further evidence in the record regarding the 

1:14-cv-14614-TLL-MKM Doc # 15 Filed 01/12/16 Pg 13 of 22 Pg ID 792
14

lesions that the ALJ should have or could have considered at the remaining steps of the 

sequential evaluation process. Accordingly, any error committed by the ALJ in finding 

Plaintiff’s brain lesions to be a non-severe impairment is harmless, and Plaintiff’s Step-Two 

challenge fails. 

b. The ALJ’s Assessment of Plaintiff’s Credibility 

Next, Plaintiff asserts that “[t]he ALJ never in her decision does not reject the claimant’s 

severe complaints in any satisfactory way nor does she dispute the Plaintiff’s complaints.” 

(Docket no. 13 at 16.) “[A]n ALJ’s findings based on the credibility of the applicant are to be 

accorded great weight and deference, particularly since an ALJ is charged with the duty of 

observing a witness’s demeanor and credibility.” Walters v. Comm’r, 127 F.3d 525, 531 (6th Cir. 

1997). But credibility assessments are not insulated from judicial review. Despite the deference 

that is due, such a determination must nevertheless be supported by substantial evidence. Id. An 

ALJ’s credibility determination must contain “specific reasons . . . supported by the evidence in 

the case record, and must be sufficiently specific to make clear to the individual and to any 

subsequent reviewers the weight the adjudicator gave to the individual’s statements and the 

reasons for that weight.” SSR 96–7p. “It is not sufficient to make a conclusory statement that 

‘the individual’s allegations have been considered’ or that ‘the allegations are (or are not) 

credible.’” Id. “[T]he adjudicator may find all, only some, or none of an individual’s allegations 

to be credible” and may also find the statements credible to a certain degree. Id.

 Further, to the extent that the ALJ found that Plaintiff’s statements are not substantiated 

by the objective medical evidence in the record, the Regulations explicitly provide that “we will 

not reject your statements about the intensity and persistence of your pain or other symptoms or 

about the effect your symptoms have on your ability to work solely because the available 

1:14-cv-14614-TLL-MKM Doc # 15 Filed 01/12/16 Pg 14 of 22 Pg ID 793
15

objective medical evidence does not substantiate your statements.” 20 C.F.R. §§ 404.1529(c)(2), 

416.929(c)(2). The ALJ will consider: (1) the claimant’s daily activities, (2) the location, 

duration, frequency, and intensity of the claimant’s pain or other symptoms, (3) precipitating and 

aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication taken 

to alleviate pain or other symptoms, (5) treatment, other than medication, for symptom relief, (6) 

any measures used to relieve the symptoms, and (7) functional limitations and restrictions due to 

the pain or other symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); see also Felisky v. 

Bowen, 35 F.3d 1027, 1039-40 (6th Cir. 1994) (applying these factors). As part of her argument, 

Plaintiff asserts that the ALJ failed to consider these factors. (Docket no. 13 at 17-18.) 

 Here, the ALJ considered and discussed Plaintiff’s hearing testimony and other subjective 

complaints in conjunction with the record evidence, and she found that Plaintiff’s allegations 

were not entirely credible. (TR 15-17.) In reaching this determination, the ALJ 

reasoned as follows: 

The current evidence does not suggest the physical conditions are as severe as 

alleged. The treatment is generally conservative—chiropractic care and 

medication. The claimant has not been referred for more aggressive care and has 

declined injections. 

The claimant persists in receiving chiropractic care against multiple 

recommendations. The claimant testified that she has not been able to receive 

recent treatment due to lack of insurance. This conflicts with the chiropractic 

care, which has been very frequent. She testified that the neurologist disapproved 

of upper body care but consented to lower body care. This is consistent with 

Exhibit C9F. However, she also testified that she continues to receive neck 

adjustments for head pain. This indicates some degree of non-compliance, which 

does not suggest conditions of the severity alleged. It is likely conditions or pain 

of disabling severity would motivate the claimant to follow all recommendations 

given and would require increasingly aggressive care over time. This is not 

reflected in the file, and the discrepancy discredits the claimant’s claim. The 

claimant testified that she naps “once in a blue moon.” She followed this by 

stating that she spends most of the day in bed and naps 4-6 hours 3-4 days per 

week. (Testimony). This is unsubstantiated and further discredits her. It suggests 

embellishment for this appeal. 

1:14-cv-14614-TLL-MKM Doc # 15 Filed 01/12/16 Pg 15 of 22 Pg ID 794
16

(TR 16.) The ALJ also noted Plaintiff’s inconsistent testimony with regard to marijuana use. 

(TR 16.) She also reasoned that Plaintiff’s alleged inability to perform basic household chores 

such as cooking and cleaning did not comport with Plaintiff’s treatment history. (TR 16.) 

Notably, Plaintiff does not specifically contest or dispute any of these reasons set forth by the 

ALJ in discounting Plaintiff’s credibility. 

As discussed and cited above, the ALJ provided specific reasons for discounting 

Plaintiff’s credibility in her decision, many of which apply the factors set forth in 20 C.F.R. § 

416.929(c)(3). Thus, the ALJ’s decision is sufficiently specific to make clear to Plaintiff and to 

the Court the weight that she gave to Plaintiff’s statements and the reasons for that weight. The 

ALJ’s assessment of Plaintiff’s credibility is supported by substantial evidence and should not be 

disturbed; Plaintiff’s Motion should be denied in this regard. 

 c. The ALJ’s Compliance with SSR 96-8p 

Much of Plaintiff’s second main argument challenges the ALJ’s formulation of Plaintiff’s 

RFC and compliance with SSR 96-8p by making general assertions like: “There 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 and documented in the medical records.” 

(Docket no. 13 at 15-18.) Plaintiff also claims that the ALJ did not factor Plaintiff’s severe 

impairments into Plaintiff’s RFC. (Id. at 16.) Additionally, Plaintiff asserts that the ALJ erred 

by failing to account for her testimony that she attends twenty doctor appointments per month in 

the RFC. (Id. at 17.) 

The RFC assessment is the Commissioner’s ultimate finding about the claimant’s ability 

to perform work-related activities. Social Security Ruling (SSR) 96-5p, 1996 WL 374183, at *5. 

1:14-cv-14614-TLL-MKM Doc # 15 Filed 01/12/16 Pg 16 of 22 Pg ID 795
17

It is defined as the most, not the least, the claimant can do despite his impairments. 20 C.F.R. 

§§ 404.1545(a), 416.945(a). The ALJ derives the RFC after considering the medical and other 

relevant evidence in the record. Id. He must support the RFC by including a narrative 

discussion describing how the evidence supports his conclusions and providing citations to 

specific medical facts and nonmedical evidence. SSR 96-8p, 1996 WL 374184, at *7. In 

determining the RFC, the ALJ must discuss the claimant’s ability to perform sustained work 

activities in an ordinary setting on a regular and continuing basis. Id. The ALJ may adopt an 

opinion of a medical or nonmedical source in whole or in part if he finds that it is supported by 

and not inconsistent with the other substantial evidence of record. However, at all times the 

ultimate responsibility for fashioning the RFC rests with the ALJ, who has an obligation to 

determine the RFC based on the evidence he finds credible. 

Social Security Ruling 96-8p explicitly provides that the ALJ must include a narrative 

discussion describing how the evidence supports each conclusion. Courts in this district and 

circuit have held that the ALJ’s failure to link the evidence to the ultimate RFC requires a 

reversal and sentence four remand: “An ALJ ... must articulate, at some minimum level, his 

analysis of the evidence to allow the appellate court to trace the path of his reasoning.” Meyer v. 

Comm’r of Soc. Sec., No. 10-cv-12963, 2011 WL 3440152, at *9 (E.D. Mich. Jun. 9, 2011) 

(quoting Lowery v. Comm’r of Soc. Sec., 55 F. Appx. 333, 339 (6th Cir. 2003)). The Meyer

court further found that it “may not uphold an ALJ’s decision, even if there is enough evidence 

in the record to support it, if the decision fails to provide an accurate and logical bridge between 

the evidence and the result.” Id. (citations and internal quotation marks omitted). 

Here, ALJ Fernandez acknowledged that Plaintiff’s previous Title II and Title XVI 

applications for benefits were denied through the decision of another ALJ on April 12, 2013. 

1:14-cv-14614-TLL-MKM Doc # 15 Filed 01/12/16 Pg 17 of 22 Pg ID 796
18

(TR 14.) In that decision, ALJ John J. Rabaut found that Plaintiff suffered from essentially the 

same severe impairments as did ALJ Fernandez: cervical and lumbar disc disease with 

radiculopathy; depressive disorder, headaches, and obesity. (TR 87-88.) ALJ Rabaut then 

considered and discussed the record evidence and hearing testimony and concluded that Plaintiff 

had the following RFC: 

[C]laimant has the residual functional capacity to perform light work as defined in 

20 CFR 404.1567(b) and 416.967(b), except that the claimant cannot climb 

ladders, ropes or scaffolds. The claimant can occasionally climb ramps and stairs, 

and occasionally balance, stoop, kneel, crouch and crawl. The claimant can only 

occasionally perform overhead reaching and handling. The claimant should avoid 

concentrated exposure to moving machinery, and all exposure to unprotected 

heights. The claimant’s work should be limited to simple, routine, and repetitive 

tasks; performed in a work environment free of fast-paced production 

requirements; involving only simple, work-related decisions, with few, if any, 

workplace changes. The claimant’s work should not require more than occasional 

interaction with the general public. 

(TR 89-96.) ALJ Fernandez noted that she was bound by ALJ Rabaut’s decision absent new and 

additional evidence or changed circumstances, and she determined that such evidence did exist to 

support a change in Plaintiff’s RFC. (TR 14.) 

First, ALJ Fernandez addressed Plaintiff’s hearing testimony that her symptoms were 

generally unchanged since the 2007 car accident from which her purported back pain, neck pain, 

and headaches allegedly originated, except she was experiencing increased neck pain, increased 

difficulty reaching, and increased dizziness. (TR 15.) The ALJ addressed Plaintiff’s 

neurologist’s June 2014 diagnosis of cervical spondylosis and cervicalgia as well as the 

neurologist’s opinion that an April 19, 2013 MRI of Plaintiff’s spine was similar to that from 

2007. (TR 15.) She also noted that Plaintiff’s recent physical exams confirmed spinal 

tenderness in the neck and lower back along with decreased range of motion. (TR 15.) The ALJ 

1:14-cv-14614-TLL-MKM Doc # 15 Filed 01/12/16 Pg 18 of 22 Pg ID 797
19

also considered Dr. Hall’s diagnosis of intervertebral disc disorder and noted that Plaintiff’s 

obesity likely contributed to her pain. (TR 15.) 

 Next, ALJ Fernandez considered the treatment Plaintiff had received since the prior 

unfavorable disability determination. (TR 15.) The ALJ pointed out Plaintiff’s significant and 

ongoing chiropractic treatment despite her neurologist and primary care doctor’s advice against 

it. She noted that Plaintiff had declined pain injections because they provided little relief, that 

Plaintiff had not been referred for surgery, and that Plaintiff had been treated only with pain 

medications and recommendations for stretching exercises. The ALJ also considered that a 

recent spinal tap caused Plaintiff to suffer increased neck pain, dizziness, headaches, vomiting, 

and constipation, for which her neurologist recommended an increased intake of water, fruits, 

and vegetables. 

ALJ Fernandez also discussed Plaintiff’s psychiatric records and found that they 

suggested no worsening of her symptoms since the prior unfavorable decision or since the time 

of the car accident. (TR 16.) Additionally, the ALJ assessed the credibility of Plaintiff’s 

complaints in conjunction with the medical evidence, as discussed supra. The ALJ then 

concluded that, based on the new evidence, Plaintiff’s condition had not significantly worsened. 

(TR 15, 16.) She found that the limited change in Plaintiff’s condition, particularly the dizziness, 

was sufficient to further limit Plaintiff to sedentary work with limited twisting of the neck but 

that all of the other limitations from ALJ Rabaut’s RFC assessment were still applicable and that 

there was no basis for any other restrictions. (TR 15, 16, 17.) 

 The immediate discussion demonstrates that the ALJ considered Plaintiff’s severe 

impairments in conjunction with the evidence of record and crafted an RFC that accurately 

portrays Plaintiff’s credible limitations. In doing so, the ALJ provided a discussion that 

1:14-cv-14614-TLL-MKM Doc # 15 Filed 01/12/16 Pg 19 of 22 Pg ID 798
20

adequately complies with the requirements of SSR 96-8p. With regard to the ALJ’s failure to 

account for Plaintiff’s testimony that she attends twenty doctor appointments per month in the 

RFC, Plaintiff’s argument fails, as it is axiomatic that an ALJ need not discuss every piece of 

evidence in the record. Kornecky, 167 F. App’x at 508 (citation omitted). Furthermore, as 

Defendant points out, fifteen of Plaintiff’s twenty doctor appointments relate to chiropractic 

treatment, which, as the ALJ acknowledged, both Plaintiff’s primary care doctor and neurologist 

have advised against. (See docket no. 14 at 24.) Plaintiff’s Motion should be denied in this 

regard. Based on the above considerations, the ALJ’s assessment of Plaintiff’s RFC is supported 

by substantial evidence, and it should not be disturbed. 

 3. Plaintiff’s Other Arguments

 To the extent Plaintiff sets forth other arguments in her brief, such as that the ALJ should 

have contacted the treating source for clarification, that the ALJ ignored medical evidence in the 

record, that the ALJ failed to evaluate Plaintiff’s indigence, or any further issues with the ALJ’s 

RFC assessment other than those addressed above, such arguments are either completely 

undeveloped, incorrect, and/or made without performing a thorough review of the ALJ’s 

decision. For instance, Plaintiff claims that “[t]he ALJ lists the Plaintiff’s conservative treatment 

for her RFC, but fails to evaluate the Plaintiff’s indigency [sic] as cause of the lack of treatment 

as required in Social Security regulations.” (Docket no. 13 at 15.) Plaintiff is incorrect; the ALJ 

acknowledged Plaintiff’s testimony that she had not been able to receive treatment due to a lack 

of insurance and found it to be less than credible because of Plaintiff’s frequent chiropractic care. 

(TR 16.) Additionally, Plaintiff bases her argument that the ALJ should have contacted her 

treating physician for clarification on this premise: “The ALJ states in her opinion she could not 

ascertain the reasoning for the treating physician opinion, however, instead of following SSR 96-

1:14-cv-14614-TLL-MKM Doc # 15 Filed 01/12/16 Pg 20 of 22 Pg ID 799
21

5p she simply dismissed the treating physician opinion.” (Docket no. 13 at 12-13.) Again, 

Plaintiff is mistaken. The ALJ does not make such a statement anywhere in her decision, 

Plaintiff’s argument, therefore, fails. With regard to Plaintiff’s undeveloped arguments, the 

Court is not obligated to address perfunctory arguments or develop them on Plaintiff’s behalf, 

and it declines to do so. See Bush v. Astrue, No. 12-11790, 2013 WL 1747807, at *14 (E.D. 

Mich. Jan. 25, 2013) (Grand, M.J.) (citation omitted). 

VI. CONCLUSION

 For the reasons stated herein, the Court should GRANT IN PART Plaintiff’s Motion for 

Summary Judgment (docket no. 13) and DENY Defendant’s Motion for Summary Judgment 

(docket no. 14). This matter should be remanded pursuant to sentence four of 42 U.S.C. § 405(g) 

for a proper assessment of Dr. Hall’s opinion. 

REVIEW OF REPORT AND RECOMMENDATION

 Either party to this action may object to and seek review of this Report and 

Recommendation, but must act within fourteen (14) days of service of a copy hereof as provided 

for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). 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 and Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 

F.2d 947 (6th Cir. 1981). Filing objections which raise some issues but fail to raise others with 

specificity will not preserve all objections that a party might have to this Report and 

Recommendation. Willis v. Sec’y of Health and Human Servs., 931 F.2d 390, 401 (6th Cir. 

1991); Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). 

1:14-cv-14614-TLL-MKM Doc # 15 Filed 01/12/16 Pg 21 of 22 Pg ID 800
22

Pursuant to Rule 72.1(d)(2) of the Local Rules of the United States District Court for the Eastern 

District of Michigan, a copy of any objection must be served upon this Magistrate Judge. 

 Within fourteen (14) days of service of any objecting party’s timely filed objections, the 

opposing party may file a response. The response shall be not more than five (5) pages in length 

unless by motion and order such page limit is extended by the Court. The response shall address 

specifically, and in the same order raised, each issue contained within the objections. 

Dated: January 12, 2016 s/ Mona K. Majzoub 

 MONA K. MAJZOUB 

 UNITED STATES MAGISTRATE JUDGE 

 

 

PROOF OF SERVICE

 I hereby certify that a copy of this Report and Recommendation was served upon counsel 

of record on this date. 

 

Dated: January 12, 2016 s/ Lisa C. Bartlett 

 Case Manager

1:14-cv-14614-TLL-MKM Doc # 15 Filed 01/12/16 Pg 22 of 22 Pg ID 801