UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

 

DUANE FUNDERBURG, 

 Plaintiff, CIVIL ACTION NO. 15-cv-10068 

 v. DISTRICT JUDGE DENISE PAGE HOOD 

COMMISSIONER OF MAGISTRATE JUDGE MONA K. MAJZOUB

SOCIAL SECURITY, 

 

 Defendant. 

___________________________/ 

 

REPORT AND RECOMMENDATION 

Plaintiff Duane Funderburg seeks judicial review of Defendant Commissioner of Social 

Security’s determination that he is not entitled to social security benefits for his 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. 14) and Defendant’s Motion for Summary Judgment 

(docket no. 16). Plaintiff has also filed a response to Defendant’s Motion. (Docket no. 17.) 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. 3.) 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. 14) be DENIED and Defendant’s Motion for Summary Judgment (docket 

no. 16) be GRANTED. 

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II. PROCEDURAL HISTORY

 Plaintiff filed an application for supplemental security income on June 16, 2006; 

Administrative Law Judge (ALJ) Richard L. Sasena issued an unfavorable decision with regard 

to that application on February 24, 2009. (TR 77-87.) Plaintiff then filed the instant application 

for supplemental security income with a protective filing date of October 11, 2011, alleging that 

he has been disabled since September 1, 2009, due to a bad back, bad knees, blindness in his 

right eye, and tightness in his stomach. (TR 14, 88, 204, 229.) The Social Security 

Administration denied Plaintiff’s claims on February 15, 2012, and Plaintiff requested a de novo

hearing. (TR 88-103, 104-06.) On July 30, 2013, Plaintiff appeared with a representative and 

testified at the hearing before ALJ Patrick J. MacLean. (TR 32-68.) Plaintiff amended his 

alleged onset date to the application date of October 11, 2011 at the hearing. (TR 35.) In an 

August 30, 2013 decision, the ALJ found that Plaintiff was not entitled to benefits because he 

was capable of performing a significant number of jobs in the national economy. (TR 14-27.) 

The Appeals Council declined to review the ALJ’s decision (TR 1-6), 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

Plaintiff (docket no. 14 at 7-14), Defendant (docket no. 16 at 4-12), and the ALJ (TR 21-

26) each set out a detailed, factual recitation with regard to Plaintiff’s medical record and the 

hearing testimony. Having conducted an independent review of Plaintiff’s medical record and 

the hearing transcript, the undersigned finds that there are no material inconsistencies among 

these recitations of the record. Therefore, the undersigned will incorporate the factual recitations 

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by reference. Additionally, the undersigned will include comments and citations to the record 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 October 11, 2011, and that Plaintiff suffered from the following severe 

impairments: chronic alcoholism, depressive disorder NOS, and blind right eye. (TR 17.) 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 17-20.) The ALJ then 

found that Plaintiff had the following residual functional capacity (RFC): 

[T]he claimant has the residual functional capacity to perform a full range of work 

at all exertional levels but with the following nonexertional limitations: the 

claimant can occasionally climb ladders, ropes, or scaffolds; the claimant can 

occasionally climb ramps and stairs and balance, stoop, crouch, kneel, and crawl; 

the claimant must avoid all use of moving machinery and all exposure to 

unprotected heights; the claimant is limited to occupations not requiring 

peripheral acuity or depth perception; the claimant is limited to work involving 

simple, routine, and repetitive tasks in a low stress job defined as one with no 

decision making required; the claimant is limited to only occasional changes in 

the work setting with no judgment required on the job; the claimant can have no 

interaction with the public and can have only occasional interaction with 

coworkers. 

(TR 20-25.) 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 26.) 

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

time since October 11, 2011, the date the application was filed. (TR 15, 27.) 

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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 

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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). 

 

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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 Decision failed to properly consider several medical conditions as ‘severe’ 

within[] the meaning of the act and did not properly consider the mental limitations in 

formulating a proper residual functional capacity relating to exertional and non-exertional 

limitations;” (2) “[t]he ALJ made impermissible credibility findings and [did] not give the proper 

weight to the complaints of pain indicated by the Plaintiff in violation of SSR 96-7;” (3) “[t]he 

ALJ appears to have improperly applied [] res judicata and collateral estoppel [under 

Drummond] and not adopted some of the previous findings without including the previous 

decision of medical evidence into evidence;” and (4) “[t]he ALJ failed to include his finding of 

moderate difficulties in concentration, persistence or pace in the adopted hypothetical posed to 

the VE.” (Docket no. 14 at 17-25.) 

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1. The ALJ’s Step-Two Determination 

Plaintiff alleges that the ALJ did not properly assess his severe impairments, which led to 

an incorrect RFC assessment and Step-Five determination. (Docket no. 14 at 17-19.) 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 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 found that Plaintiff suffered from the severe impairments of chronic 

alcoholism, depressive disorder NOS, and blind right eye. (TR 17.) The ALJ then 

acknowledged that Plaintiff had been diagnosed with other medically determinable impairments, 

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such as mild degenerative joint disease of the knees, prostate cancer surgery, and hypertension. 

The ALJ noted, however, that the record did not contain any clinical or diagnostic findings or 

durational treatment to support the severity of those other impairments. Hence, he found that 

Plaintiff had not established that any of those impairments caused more than a minimal limitation 

in Plaintiff’s ability to perform basic work activities longitudinally. Essentially, the ALJ 

classified Plaintiff’s mild degenerative joint disease of the knees, prostate cancer surgery, and 

hypertension as non-severe impairments. Nevertheless, the ALJ considered Plaintiff’s 

complaints of knee pain, the objective medical evidence related to Plaintiff’s knees, and 

Plaintiff’s status post-prostate surgery throughout his assessment of Plaintiff’s RFC. (See TR 21-

25.) To the extent that the ALJ does not mention Plaintiff’s hypertension at the remaining steps 

of the sequential evaluation process, any error is harmless, as Plaintiff neither alleges, nor are 

there any opinions from treating physicians, that he has any functional limitations resulting from 

the hypertension. Accordingly, the ALJ’s failure to classify Plaintiff’s mild degenerative joint 

disease of the knees, prostate cancer surgery, and hypertension as severe impairments does not 

constitute reversible error. 

Plaintiff argues that “[t]reatment notes from the treating psychiatric care providers appear 

to be effectively ignored and grouped into the severe impairment classified by [the ALJ] as 

‘depressive disorder [N]OS.’” (Docket no. 14 at 18.) Plaintiff then asserts that Drita Gjelaj, 

LMSW, diagnosed Plaintiff with depressive disorder and alcohol dependence. (Id. at 19.) 

Plaintiff, however, asserts no error in this respect, as the ALJ found that Plaintiff suffered from 

severe impairments of depressive disorder NOS and chronic alcoholism. Next, Plaintiff cites 

records from a May 21, 2012 Initial Comprehensive Assessment completed by Ms. Gjelaj, at 

which Plaintiff reported trouble sleeping and auditory hallucinations, and Ms. Gjelaj noted that 

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Plaintiff had marked impairments in job/school performance, friendship/peer relationships, 

hobbies/interests/play activities, physical health, and sleeping habits. (TR 480-87.) 

Nevertheless, the items cited by Plaintiff are symptoms, not medically determinable impairments 

that could be classified as severe impairments. Notably, Plaintiff does not indicate what, if any, 

severe impairments should have been assessed by the ALJ based on these symptoms. 

Furthermore, as a social worker, Ms. Gjelaj is not an acceptable medical source as defined in the 

regulations, and her opinions are not entitled to any special weight or consideration. 20 C.F.R. 

§§ 404.1513, 416.913; Taylor v. Comm’r of Soc. Sec., No. 1:11-cv-46, 2012 WL 1029299, at *6 

(W.D. Mich. Mar. 26, 2012) (citing 20 C.F.R. § 404.1513(d)(1)). Plaintiff’s argument lacks 

merit in this regard. 

Additionally, to the extent that Plaintiff argues that the ALJ should have found the 

diagnoses of alcohol dependence and schizoaffective disorder as opined by the consultative 

examiner, Dr. Nick Boneff, Ph.D., LP, to be severe impairments, Plaintiff’s argument fails. 

First, the ALJ found that Plaintiff suffered from a severe impairment of chronic alcoholism, 

which is substantially similar to alcohol dependence. (TR 17.) Next, Dr. Boneff was not 

Plaintiff’s treating physician; therefore, his opinions are not entitled to controlling weight. 

Furthermore, any error committed by the ALJ here is harmless, as the ALJ incorporated the 

functional limitations assessed by Dr. Boneff into Plaintiff’s RFC. (Compare TR 362 with TR 

20.) For all of the reasons discussed above, Plaintiff’s Step-Two challenge fails. 

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

Next, Plaintiff asserts that “[t]he ALJ made an impermissible credibility finding relating 

to [Plaintiff’s] consistent and medically supported complaints of pain.” (Docket no. 14 at 19-

20.) “[A]n ALJ’s findings based on the credibility of the applicant are to be accorded great 

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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 

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). 

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

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

not entirely credible. (TR 21-25.) In reaching this determination, the ALJ reasoned as follows: 

A review of the evidence shows the claimant is not fully credible. His extensive 

daily activities are inconsistent with his complaints of severe pain. There is no 

objective basis for a severe physical impairment but he has stated he has severe 

pain all over his joints. The claimant’s treatment has been routine and 

conservative and tests and studies do not support allegations of locking of his 

knees and severe pain. He testified he has used a prescribed cane but there is no 

medical evidence to support the need for a cane, much less, any treatment notes 

from the nursing home since April 2013, where he testified he continues to reside 

and was prescribed the cane. In fact, that treatment note indicates no reports of 

musculoskeletal pain. The claimant’s subjective reports are grossly 

disproportionate with the objective evidence and thus undermine his general 

credibility. In addition, the claimant’s credibility is diminished due to his history 

of alcoholism and reported incarceration for a felony. 

(TR 23-24.) The ALJ also found that Plaintiff’s testimony that he is unable to sit, stand, or walk 

for longer than thirty minutes and that he drops things was inconsistent with the normal findings 

from his consultative examinations. (TR 25.) 

 In his brief, Plaintiff states, “[i]n the case at bar it appears that the ALJ appeared to 

attempt to address the credibility determination indicating ‘extensive’ activities of daily living.” 

(Docket no. 14 at 20.) Plaintiff then asserts that it should be noted that at the time of the hearing, 

he had received a radical prostatectomy and was living full time at a nursing facility. (Id.) 

While not explicitly stated, Plaintiff seemingly argues that the ALJ erred by considering 

Plaintiff’s activities of daily living in his credibility determination because, at the time of the 

hearing, Plaintiff was living at a nursing facility following a prostatectomy and was arguably not 

participating in “extensive” daily activities. But the ALJ acknowledged that Plaintiff was 

recovering from prostate surgery at a rehabilitative facility, and he found no evidence that the 

surgery would result in a residual impairment lasting more than twelve months. (TR 17, 23.) 

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Thus, the ALJ reasonably considered Plaintiff’s pre-surgery activities of daily living in his 

decision, which included personal care, cooking, shopping, laundry, attending church, and taking 

public transportation. (TR 18, 23.) Notably, Plaintiff does not cite authority that would preclude 

the ALJ from considering Plaintiff’s pre-surgery activities of daily living. Moreover, the ALJ 

did not base his credibility determination solely on Plaintiff’s pre-surgery activities of daily 

living; the ALJ also reasoned that Plaintiff’s allegations were inconsistent with the medical 

record and that Plaintiff’s treatment was routine and conservative. To the extent that Plaintiff’s 

statements can be considered an argument, Plaintiff’s “argument” fails. 

 Next, Plaintiff claims that “the treating physicians and State agency physicians indicated 

problems and limitations that were not included in the residual functional capacity or considered 

in relation to determining the veracity or credibility of [Plaintiff’s] statements.” (Docket no. 14 

at 20.) Plaintiff, however, does not specify what those problems and limitations are or which of 

his medical providers assessed such limitations. He also offers no analysis regarding how those 

limitations and problems would affect the ALJ’s RFC or credibility assessments. The Court is 

not obligated to scour the record to develop this argument 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). 

The immediate discussion demonstrates that the ALJ provided specific reasons for 

discounting Plaintiff’s credibility in his decision, and, in doing so, applied many of the factors set 

forth in 20 C.F.R. §§ 404.1529(c)(3) and 416.929(c)(3). Thus, the ALJ’s decision is sufficiently 

specific to make clear to Plaintiff and to the Court the weight that he gave to Plaintiff’s 

statements and the reasons for that weight. The ALJ’s assessment of Plaintiff’s credibility is 

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supported by substantial evidence and should not be disturbed; Plaintiff’s Motion should be 

denied in this regard. 

3. The ALJ’s Application of the Res Judicata Doctrine 

Plaintiff asserts that “[t]he ALJ appears to have improperly applied [] res judicata and 

collateral estoppel [under Drummond] and not adopted some of the previous findings without 

including the previous decision of medical evidence into evidence. (Docket no. 14 at 20-23.) In 

Drummond v. Comm’r of Soc. Sec., the Sixth Circuit held that social-security claimants and the 

Commissioner are barred by principles of res judicata from relitigating issues that have 

previously been determined. 126 F.3d 837 (6th Cir. 1997). The Commissioner is bound by the 

principles of res judicata unless there is new and material evidence of changed circumstances. 

Id. at 842; SSAR 98-4(6), 63 FR 29771-01 (June 1, 1998). Where a claimant who has previously 

been adjudicated “not disabled” seeks to avoid application of res judicata, he must provide proof 

that his condition has worsened since the date of the prior decision to such a degree that he is no 

longer capable of engaging in substantial gainful activity. Vesey v. Comm’r of Soc. Sec., No. 11-

10967, 2012 WL 4475657, at *10 (E.D. Mich. Aug. 6, 2012) (citations omitted). 

On February 24, 2009, Plaintiff was found “not disabled” by ALJ Richard L. Sasena, who 

determined that Plaintiff suffered from severe impairments of major depression, history of back 

pain, and polysubstance abuse. (TR 77-87.) He further found that Plaintiff had the following 

RFC: 

[T]he claimant has the residual functional capacity to perform a full range of work 

at all exertional levels but with the following nonexertional limitations: he is 

limited to simple, routine, repetitive tasks with no interaction with the public and 

occasional contact with coworkers, and the work should allow for occasional 

postural movements. 

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(TR 84-86.) Thus, ALJ MacLean was bound by this determination unless he found new and 

material evidence of changed circumstances. Noting his responsibility under Drummond, ALJ 

MacLean found that Plaintiff’s condition had not materially worsened since the prior decision 

but that it had materially changed in some respects. (TR 14, 24.) Specifically, the ALJ 

determined that the “history of back pain” severe impairment assessed by ALJ Sasena was no 

longer a severe impairment for purposes of the instant matter. (TR 14.) In so determining, the 

ALJ reasoned that a “history of back pain” is a description of symptoms, not a medically 

determinable impairment. (TR 14.) The ALJ also reasoned that the record contained no 

diagnostic evidence of even mild degenerative changes of the spine, and there were no findings 

in Plaintiff’s treatment records to support a conclusion that it remained a severe impairment. 

(TR 14, 24.) Additionally, the ALJ determined that Plaintiff’s current treatment records 

warranted the elevation of the blindness in Plaintiff’s right eye to a severe impairment. (TR 15.) 

The ALJ then concluded that he adopted the findings of the previous ALJ, except in the case of 

Plaintiff’s changed circumstances. (TR 15.) 

Plaintiff argues that the ALJ erred by considering the prior decision without incorporating 

the prior decision and its underlying evidence into the administrative record. Plaintiff’s 

argument is without merit. ALJ Sasena’s February 24, 2009 decision is, in fact, part of the 

record in this matter. (See TR 77-87.) And, as Defendant points out, Plaintiff’s position that the 

ALJ should have incorporated the evidence underlying the prior decision into the instant 

administrative record has been rejected by the Sixth Circuit. (Docket no. 16 at 16 (citing Rudd v. 

Comm’r of Soc. Sec., 531 F. App’x 719, 725-26 (6th Cir. 2013); Collier v. Comm’r of Soc. Sec., 

108 F. App’x 358, 362-63 (6th Cir. 2004).) 

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Additionally, Plaintiff seemingly argues that the ALJ erred by finding that Plaintiff’s 

“history of back pain” is no longer a severe impairment, but Plaintiff does not cite any evidence 

or offer any argument to the contrary. Indeed, the ALJ reviewed the evidence for the current 

alleged disability period and found it to be insufficient to support a conclusion that Plaintiff’s 

back pain continued to be a severe impairment. Nevertheless, the ALJ found that Plaintiff’s 

combined non-severe physical impairments supported the adoption of the prior ALJ’s physical 

RFC, and he further limited the RFC with regard to Plaintiff’s visual impairment. (TR 14-15, 

24.) Consequently, the current RFC assessment is more advantageous to Plaintiff than the 

previous RFC assessment, and any error committed by the ALJ in finding that Plaintiff’s “history 

of back pain” is no longer a severe impairment would be harmless. But there is no error here; the 

ALJ properly considered the record evidence, and his adoption of the prior ALJ’s findings except 

in the instances where Plaintiff’s condition had materially changed is supported by substantial 

evidence. The undersigned finds that ALJ MacLean did not err in his application of Drummond; 

Plaintiff’s Motion should be denied with regard to this issue. 

 4. Plaintiff’s Difficulty in Maintaining Concentration, Persistence, or Pace 

Finally, Plaintiff asserts that “[t]he ALJ failed to include his finding of moderate 

difficulties in concentration, persistence or pace in the adopted hypothetical posed to the VE.” 

(Docket no. 14 at 23-25.) Courts in this district draw a distinction between cases in which a 

medical expert finds a moderate deficiency in concentration, persistence, or pace from those in 

which the ALJ independently finds such a limitation. “When the ALJ has found such a 

limitation, the ALJ must incorporate these limitations into the hypothetical questions.” McPhee 

v. Comm’r of Soc. Sec., No. 11-13399, 2013 WL 1277889, at *2 (E.D. Mich. Mar. 27, 2013) 

(citations omitted). Courts are more likely to order a sentence-four remand in cases where the 

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ALJ made the finding of moderate deficiencies in concentration, persistence, or pace in the 

absence of a medical opinion that found similar moderate deficiencies and indicated that the 

plaintiff was still capable of sustained work. Cwik v. Comm’r of Soc. Sec., No. 10-15121, 2012 

WL 1033578, at *10 (E.D. Mich. Feb. 23, 2012) (citing Hicks v. Comm’r of Soc. Sec., No. 10-

13643, 2011 WL 6000701, at *4 (E.D. Mich. Nov. 28, 2011)). Findings of moderate limitations 

in concentration, persistence, or pace do not necessarily preclude “simple, routine, unskilled 

work.” Lewicki v. Comm’r of Soc. Sec., No. 09-11844-BC, 2010 WL 3905375, at *2 (E.D. 

Mich. Sept. 30, 2010) (citations omitted). Such limitations may, however, result in the claimant 

being unable to meet quotas, stay alert, or work at a consistent rate of speed. Edwards v. 

Barnhart, 383 F. Supp. 2d 920, 930 (E.D. Mich. 2005). 

Here, the ALJ did not make an independent decision regarding Plaintiff’s ability to 

maintain concentration, persistence, or pace. In fact, the ALJ relied upon the opinions of two 

medical sources in making such a determination. First, James Tripp, Ed.D., the non-examining 

state-agency consultant who made the initial disability determination in this matter assessed 

moderate difficulties in Plaintiff’s ability to maintain concentration, persistence, or pace. (TR 

98.) In doing so, Dr. Tripp assigned great weight to the opinion of the consultative examiner, Dr. 

Boneff, and found that Plaintiff was able to perform extremely simple work. (TR 99, 101-02.) 

The ALJ then discussed and assigned great weight to Dr. Tripp’s opinion, and incorporated the 

limitations assessed by Dr. Tripp into Plaintiff’s RFC by limiting him to work involving simple, 

routine, and repetitive tasks. (TR 19, 20.) 

Next, the ALJ relied on the opinion of Dr. Boneff, a licensed psychologist who conducted 

a consultative examination of Plaintiff on February 6, 2012. (TR 359-62.) After the exam, Dr. 

Boneff completed the following medical source statement with regard to Plaintiff: 

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Based on today’s exam, the claimant demonstrated little in the way of cognitive 

strengths, with significant problems with concentration as evidenced by 

difficulties performing calculations accurately. He also had significant problems 

with immediate and short-term memory and the capacity to pay attention. He 

displayed difficulty with judgment and impulse control as well as problems with 

abstract thinking. He would appear to have difficulty engaging in work-type 

activities other than those of an extremely simple repetitive nature, remembering 

and executing a two or three step repetitive procedure on a sustained basis, with 

little, if any, independent judgment or decision-making required. 

(TR 362.) In his decision, the ALJ discussed and considered Dr. Boneff’s findings regarding 

Plaintiff’s concentration problems on two separate occasions. (TR 23, 25.) The ALJ also 

acknowledged and assigned substantial weight to Dr. Boneff’s opinion regarding the functional 

limitations caused by Plaintiff’s concentration problems. (TR 25.) The ALJ then explicitly 

incorporated these limitations into Plaintiff’s RFC: “To insure [Plaintiff] remains on task despite 

moderate difficulties in concentration, persistence, and pace, he is limited to low stress work, 

defined as no decision-making, and to no use of judgment and only occasional changes in the 

work setting.” (TR 24.) 

The discussion above demonstrates that the ALJ relied upon and adopted the opinions of 

two medical sources who assessed Plaintiff’s moderate difficulties in maintaining concentration, 

persistence, and pace, and found that Plaintiff was still able to engage in substantial gainful 

activity, albeit with limitations. The ALJ then incorporated those limitations into Plaintiff’s RFC 

and the hypothetical questions that he posed to the VE, to which the VE responded that there 

were jobs existing in significant numbers in the national economy that Plaintiff could perform. 

(TR 63-65.) There is no error here on the part of the ALJ, as the ALJ appropriately 

accommodated for Plaintiff’s limitations in concentration, persistence, or pace in the RFC and 

the hypothetical questions. It is, therefore, recommended that Plaintiff’s Motion for Summary 

Judgment on this issue be denied. 

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VI. CONCLUSION

 For the reasons stated herein, the Court should DENY Plaintiff’s Motion for Summary 

Judgment (docket no. 14) and GRANT Defendant’s Motion for Summary Judgment (docket no. 

16). 

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). 

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: February 5, 2016 s/ Mona K. Majzoub 

 MONA K. MAJZOUB 

 UNITED STATES MAGISTRATE JUDGE 

 

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PROOF OF SERVICE

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

of record on this date. 

 

Dated: February 5, 2016 s/ Lisa C. Bartlett 

 Case Manager

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