UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MELISSA ANN EVELETH,

Plaintiff, 

v.

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

_______________________ __________/

CASE NO. 2:14-cv-14879

HON. MARIANNE O. BATTANI

OPINION AND ORDER SUSTAINING THE DEFENDANT’S OBJECTIONS,

ADOPTING IN PART THE REPORT AND RECOMMENDATION, GRANTING

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, AND DENYING 

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Before the Court are Defendant Commissioner of Social Security’s objections

(Doc. 21) to Magistrate Judge Mona K. Majzoub’s December 4, 2015, Report and

Recommendation ("R&R") (Doc. 20). In the R&R, Magistrate Judge Majzoub

recommended that the Court grant Plaintiff Melissa Ann Eveleth’s Motion for Summary

Judgment and deny the Commissioner’s Motion for Summary Judgment. Accordingly,

the R&R recommends remanding Plaintiff’s claims to the Commissioner for further

administrative review. For the reasons that follow, the Court SUSTAINS the

Commissioner’s objections, ADOPTS IN PART the R&R, GRANTS the Commissioner’s

Motion for Summary Judgment (Doc. 18), and DENIES Plaintiff’s Motion for Summary

Judgment (Doc. 16).

II. STATEMENT OF FACTS

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As the parties have not objected to the R&R’s recitation of the facts, the Court

adopts that portion of the R&R. (See Doc. 20, pp. 2-5.)

III. STANDARD OF REVIEW

A. Objections to a Magistrate Judge’s R&R

A district court must conduct a de novo review of the portions of a magistrate

judge’s report and recommendation to which a party objects. 28 U.S.C. § 636(b)(1). 

The district “court may accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate” judge. Id. The requirement of de novo

review “is a statutory recognition that Article III of the United States Constitution

mandates that the judicial power of the United States be vested in judges with life

tenure.” United States v. Shami, 754 F.2d 670, 672 (6th Cir. 1985). Accordingly,

Congress enacted 28 U.S.C. § 636(b)(1) to “insure[ ] that the district judge would be the

final arbiter” of a matter referred to a magistrate. Flournoy v. Marshall, 842 F.2d 875,

878 (6th Cir. 1987).

The Sixth Circuit has made clear that “[o]verly general objections do not satisfy the

objection requirement.” Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir. 2006). Only

specific objections are entitled to de novo review; vague and conclusory objections

amount to a complete failure to object as they are not sufficient to pinpoint those

portions of the R&R that are legitimately in contention. Mira v. Marshall, 806 F.2d 636,

637 (6th Cir.1986) (per curiam). “The objections must be clear enough to enable the

district court to discern those issues that are dispositive and contentious.” Miller v.

Currie, 50 F.3d 373, 380 (6th Cir. 1995). "‘[O]bjections disput[ing] the correctness of the

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magistrate's recommendation but fail[ing] to specify the findings . . . believed [to be] in

error' are too general.” Spencer, 449 F.3d at 725 (quoting Miller, 50 F.3d at 380).

B. Standard of Review Applicable to Social Security Cases

This Court has jurisdiction to review the Commissioner's final administrative

decision pursuant to 42 U.S.C. § 405(g). Judicial review is limited to determining

whether the Commissioner’s decision is supported by substantial evidence and was

made pursuant to proper legal standards. Rogers v. Comm'r of Soc. Sec., 486 F.3d

234, 241 (6th Cir. 2007). Substantial evidence is "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." Id. (internal quotation marks omitted). If

the Commissioner's decision is supported by substantial evidence, "it must be affirmed

even if the reviewing court would decide the matter differently and even if substantial

evidence also supports the opposite conclusion." Cutlip v. Sec'y of Health & Human

Servs., 25 F.3d 284, 286 (6th Cir. 1994) (internal citations omitted).

When reviewing the Commissioner's factual findings for substantial evidence, the

Court is limited to an examination of the record and must consider that record as a

whole. Wyatt v. Sec'y of Health & Human Servs., 974 F.2d 680, 683 (6th Cir. 1992). 

There is no requirement, however, that either the Commissioner or this Court discuss

every piece of evidence in the administrative record. Kornecky v. Comm'r of Soc. Sec.,

167 F. App'x 496, 508 (6th Cir. 2006). Further, this 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). 

IV. DISCUSSION

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In seeking review of the Commissioner’s denial of her claim for Title II Period of

Disability and Disability Insurance Benefits, Plaintiff challenged many aspects of the

Administrative Law Judge’s (the “ALJ’s”) written decision. Magistrate Judge Majzoub

ultimately determined that the ALJ did not err either in his conclusion that Plaintiff’s

physical impairments did not qualify as “severe impairments” or in his consideration of

the medical opinions relating to Plaintiff’s physical condition. However, Magistrate

Judge Majzoub determined that the ALJ failed to elucidate his reasoning for adopting

some portions of medical opinions relating to Plaintiff’s mental impairments while

disregarding other portions of the same opinions. Specifically, the R&R finds that the

residual functional capacity (“RFC”) adopted by the ALJ does not account for (i)

consultative examiner Steve Geiger, Ph.D.’s, conclusion that Plaintiff would have

“difficulty consistently handling work pressure and stress,” and (ii) treating source Ann

Swan, M.A., L.P.’s, assessment that Plaintiff would miss one day of work per month due

to her impairments. For these reasons, the R&R recommends remanding Plaintiff’s

claim to the Commissioner for further administrative review.

The Commissioner has submitted objections to the R&R’s conclusions with

respect to Plaintiff’s psychological condition only. First, the Commissioner argues that

the ALJ’s decision not to incorporate into the RFC an express limitation to low stress

work does not provide adequate grounds for remand. The Commissioner asserts that a

low-stress work environment is already encompassed within the present RFC

limitations, namely “simple, routine, repetitive tasks; occasional decision-making; and

occasional public interaction, coworker interaction, and supervision.” 

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The Court notes that the hypothetical the ALJ posed to the Vocational Expert

(“VE”) when assessing Plaintiff’s capacity to perform work incorporated a limitation to

“low stress” work. Specifically, the ALJ asked the VE to assume an individual with

physical limitations consistent with Exhibit 9F and functional or mental limitations

consistent with Exhibit 7F, a report rendered by state agency reviewing source Ashok

Kaul, M.D. (Tr. 760). Dr. Kaul opined that Plaintiff “is able to perform low stress simple

unskilled work – on a fairly sustained basis from a psychological standpoint – with

appropriate pacing and the usual breaks.” (Tr. 294 (emphasis added)). Taking those

limitations into consideration, the VE testified that Plaintiff would be capable of

performing work in the national economy. (Tr. 760-61). Consequently, the fact that the

ALJ did not expressly limit Plaintiff to low stress work constitutes no more than harmless

error. See Kepke v. Comm’r of Soc. Sec., No. 15-1315, 2016 U.S. App. LEXIS 601, at

*26 (6th Cir. Jan. 12, 2016) (holding that where an ALJ’s imprecise characterization of a

limitation makes no different in the ultimate outcome, that error is immaterial and

harmless) (citing Potter v. Comm’r of Soc. Sec., 223 F. App’x 458, 463-64 (6th Cir.

2007)).

Furthermore, according to Social Security Ruling 85-15:

The reaction to the demands of work (stress) is highly individualized, and

mental illness is characterized by adverse responses to seemingly trivial

circumstances. The mentally impaired may cease to function effectively

when facing such demands as getting to work regularly, having their

performance supervised, and remaining in the workplace for a full day. A

person may become panicked and develop palpitations, shortness of

breath, or feel faint while riding in an elevator; another may experience

terror and begin to hallucinate when approached by a stranger asking a

question. Thus, the mentally impaired may have difficulty meeting the

requirement of even so-called "low stress" jobs.

. . .

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Any impairment-related limitations created by an individual's response to

demands of work, however, must be reflected in the RFC assessment.

The ruling’s heavy emphasis on the individualized nature of stress tolerance is borne

out in RFC determinations in other cases. For example, an ALJ determined that a

claimant could perform work involving “no fast pace or strict production quotas, and

including no arbitration, negotiation, confrontation, responsibility for the safety of others,

and no supervisory responsibilities,” Koster v. Comm’r of Soc. Sec., 15-3189, 2016 U.S.

App. LEXIS 1826, *27-28 (6th Cir. Feb. 1, 2016), while another ALJ defined low stress

work as “low production quotas, which also includes no high production pace,” LaRiccia

v. Comm’r of Soc. Sec., 549 F. App’x 377, 382 (6th Cir. 2013).

As noted by the ALJ in his discussion of the evidence, Plaintiff’s affective

disorder and anxiety disorder caused her to complain of fatigue, difficulty sleeping, loss

of appetite, difficulty with concentration and memory, loss of interest in life activities,

some suicidal ideation, and generalized anxiety. (Tr. 34, 318-20, 334). During her oral

hearing, Plaintiff reiterated these symptoms, along with fear of crowded areas and

interacting with others. (Tr. 747-53). From a functional standpoint, these symptoms do

not suggest any particular circumstance that would be particularly stressful to Plaintiff

beyond the limitations already contained in the RFC. Plaintiff’s difficulties with

concentration and memory are taken into account by limiting her to simple, routine,

repetitive tasks with only occasional decision-making. Likewise, Plaintiff’s anxiety

associated with large groups of people and social interaction is taken into account by

the limitation to occasional public interaction, coworker interaction, and supervision. 

Contrary to Plaintiff’s argument, this evidence supports the Commissioner’s

position that the RFC restrictions are equivalent to low stress work. Further, Plaintiff’s

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reliance on Ealy v. Commissioner of Social Security is unavailing. In that case, the

Sixth Circuit remanded a disability claim because the ALJ failed to include speed- and

pace-based restrictions in the hypothetical posed to the VE, where a non-examining

source afforded great weight opined that the speed of the plaintiff’s performance must

not be critical to his job. 593 F.3d 504, 515-16 (6th Cir. 2010). In the present case,

however, no evidence suggests such a specific limitation that is not accounted for in the

RFC. 

The parties also discuss at some length in their briefs whether the ALJ clearly

afforded greater weight to Ms. Swan’s opinion that Plaintiff’s ability to cope with normal

work stress was “limited but satisfactory” (Tr. 413) than to Dr. Geiger’s opinion that she

would encounter “difficulty consistently handling work pressure and stress” (Tr. 321). 

The Commissioner asserts that the ALJ was entitled to afford greater weight to Ms.

Swan than to Dr. Geiger; however, Plaintiff agrees with the conclusion drawn by

Magistrate Judge Majzoub in the R&R that the ALJ’s written opinion failed to make any

connection between Ms. Swan’s and Dr. Geiger’s opinions, such that the Court is

unable to trace the path of his reasoning. In light of the Court’s conclusion that the RFC

contains sufficient restriction to low stress work, there is no need to resolve this dispute. 

Consequently, the Court finds that the ALJ did not err in excluding an explicit reference

to “low stress” work in the RFC.

The Commissioner’s second objection to the R&R concerns the finding that

remand is warranted because the ALJ failed to articulate a rationale for not adopting

Ms. Swan’s statement that Plaintiff would be absent from work one day per month. 

There is no need to discuss the parties’ respective arguments presented in their briefs

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on this matter. The Court notes that during Plaintiff’s oral hearing, her attorney

questioned the VE regarding how many absences per month would typically be

tolerated by employers. The VE replied, “Generally speaking for companies, it varies

from one to two days per month or 16 hours.” (Tr. 762). Accordingly, even if the RFC

included such a limitation, it would not be work preclusive. Assuming without deciding

that the ALJ erred by failing to include this limitation, such an error would be harmless,

and remand on this basis is therefore inappropriate.

V. CONCLUSION

For the foregoing reasons, the Court SUSTAINS the Commissioner’s objections,

ADOPTS IN PART the R&R, GRANTS the Commissioner’s Motion for Summary

Judgment and DENIES Plaintiff’s Motion for Summary Judgment.

IT IS SO ORDERED.

Date: March 7, 2016 s/Marianne O. Battani 

MARIANNE O. BATTANI

United States District Judge

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing Order was served upon counsel of record via the Court's ECF System to their

respective email addresses or First Class U.S. mail to the non-ECF participants on March 7, 2016.

s/ Kay Doaks 

Case Manager

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