UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

LISA MARIE FOX, 

 Plaintiff, 

v. 

COMMISSIONER OF 

SOCIAL SECURITY, 

 Defendant. 

 

Case No. 1:15-cv-10968 

District Judge Thomas L. Ludington 

Magistrate Judge Anthony P. Patti 

___________________________________/ 

RECOMMENDATION TO GRANT DEFENDANT’S MOTION FOR 

SUMMARY JUDGMENT (DE 17) AND TO DENY PLAINTIFF’S MOTION 

FOR SUMMARY JUDGMENT (DE 13) 

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

RECOMMENDED that the Court GRANT Defendant’s motion for summary 

judgment, DENY Plaintiff’s motion for summary judgment, and AFFIRM the 

Commissioner’s decision. 

II. REPORT 

 Plaintiff, Lisa Marie Fox, brings this action under 42 U.S.C. §§ 405(g) and 

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

(“Commissioner”) denying her application for supplemental security income. This 

matter is before the United States Magistrate Judge for a Report and 

Recommendation on Plaintiff’s motion for summary judgment (DE 13), the 

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Commissioner’s memorandum in opposition and cross motion for summary 

judgment (DE 17), Plaintiff’s reply (DE 18), and the administrative record (DE 

10). 

A. Background 

 Plaintiff protectively filed her application for benefits on February 22, 2012, 

alleging that she has been disabled since August 20, 2011. (R. at 152-157 and 170-

177.) Plaintiff generally alleged disability on the basis of her “conditions,” without 

further elaboration. (Id.) Plaintiff’s application was denied. Plaintiff sought a de 

novo hearing before an Administrative Law Judge (“ALJ”). ALJ Kevin Fallis held 

a hearing on June 13, 2013 and subsequently determined that Plaintiff was not 

disabled within the meaning of the Social Security Act. (R. at 10-89.) On January 

13, 2015, the Appeals Council denied Plaintiff’s request for review. (R. at 1-4.) 

ALJ Fallis’s decision became the Commissioner’s final decision. Plaintiff then 

timely commenced the instant action. 

B. Plaintiff’s Medical History 

 1. Physical Health Treatment 

 Plaintiff has a long history of physical and mental impairments, which are 

summarized briefly below and, in relevant part, throughout the analysis. Plaintiff 

suffered a stroke in 2007, after developing sudden left-sided weakness. (R. at 239-

240.) Soon after, on January 9, 2008, she was seen by occupational therapists at 

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Hurley Medical Center, who noted that she had mild deficits in her upper and 

lower extremities. (R. at 259-260.) She began seeing neurologist M.N. Sabbagh, 

M.D., in 2008 for follow-up. On March 26, 2008, Dr. Sabbagh noted that Plaintiff 

was “doing great,” with no memory problems, weakness, numbness, or difficulty 

thinking. He advised her to be active mentally and physically on a regular basis. 

(R. at 430.) On April 29, 2009, however, Plaintiff complained of fatigue and lack 

of energy, but an exam showed her to be awake, alert, and oriented, but a bit 

depressed. (R. at 429.) A month later, Plaintiff again reported feeling tired, but 

noted that Wellbutrin was helping. (R. at 428.) Dr. Sabbagh concluded that she 

would likely have a good prognosis. (Id.) On May 28, 2008, he reported that 

Plaintiff continued to improve. (R. at 427.) 

 On August 18, 2011, Plaintiff presented to the Hamilton Community Health 

Network with complaints of low back pain, but denied numbness and weakness 

and noted that she could walk without pain. (R. at 371.) 

 Plaintiff saw Dr. Sabbagh in February of 2012, complaining of pain and 

numbness in both hips. (R. at 425.) Dr. Sabbagh advised her to lose wegith, quit 

smoking, and increase her pain medication. She had similar complaints in April of 

2012, and Dr. Sabbagh referred her to receive lumbar epidural steroid injections. 

On June 1, 2012, Plaintiff reported that the steroid injections did not help. (R. at 

424.) She also complained about feeling dizzy after taking Neurontin and Vicodin. 

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Dr. Sabbagh noted that Plaintiff had full strength in her four extremities with a 

right ankle jerk. (Id.) Plaintiff again reported pain on July 11, 2012, but an exam 

showed her to be in “no acute distress,” with full strength in her extremities. (R. at 

423.) 

 In addition to her physical problems, Plaintiff also suffers from mental 

impairments. She presented to the Hamilton Community Health Center on January 

21, 2011, with complaints of depression, headache, and insomnia. (R. at 346-47.) 

She was prescribed medication, including Aspirin, Prozac, Fioricet, Ibuprofen, and 

Naproxen. (R. at 349-50.) She was again seen on September 9, 2011, with 

complaints of back pain, fatigue, headache, impaired concentration, and thoughts 

of suicide. (R. at 373-74.) Kay Southern, Nurse Practitioner, adjusted Plaintiff’s 

medications and instructed her to quit smoking. (R. at 375.) 

 Plaintiff began seeing Veronica Williams, Ph.D., ACSW, BCD, LMSW, on 

November 9, 2011. (R. at 335.) Dr. Williams diagnosed her with Bipolar 1 

disorder and placed her on Seroquel, but noted that her prognosis was fair if she 

remained in therapy. (Id.) On December 7, 2011, Plaintiff noted to Dr. Williams 

that her depression became worse after her stroke. (R. at 408.) 

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 C. Hearing Testimony 

 1. Plaintiff’s Testimony 

 a. Work History 

 At the June 13, 2013 administrative hearing, Plaintiff testified that she lived 

with her 13 and 14 year old daughters in a trailer home. (R. at 34.) She noted that 

she could drive and had a car that was “drivable,” but pointed out some mechanical 

issues that caused it to only go up to 25 miles per hour. (R. at 34-35.) Plaintiff 

testified that she graduated from high school, albeit a year late, and had some 

college. (R. at 36.) In addition, she had an expired certification as a CNA. (R. at 

37.) 

 Plaintiff described her most recent employment as a home health care 

provider at Home and Hospice Advantages (“Hospice”). (R. at 37-38.) She was 

employed at Hospice from May to August of 2011. (R. at 39.) The position 

involved going into patients’ homes to help with baths, range of motion, feeding, 

and other needs, including moving them from place to place. (R. at 38.) Plaintiff 

noted that she did well at the position because it was very structured and included a 

detailed checklist for each patient. (R. at 39.) She testified that she was able to 

undertake the physical aspects of the job with “a little back support,” and did not 

start getting weak until the end of her three-month tenure. (Id.) According to 

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Plaintiff, her employer let her go two weeks after her back problems started, but its 

reason for doing so involved inadequate licensure. (R. at 40.) 

 Prior to her position at Hospice, Plaintiff worked at the Birchwood Meadows 

Nursing home, where she performed similar tasks: bathing, feeding, and 

transferring patients. (R. at 41.) Before that, she worked as a cashier at the Savea-Lot grocery store, which involved cleaning and stocking. (R. at 42.) The most 

she lifted during that time was a crate with four gallons of milk. (R. at 43.) She 

spent very short periods of time at each position (around three months) because of 

her husband at the time was controlling and made her quit, and becauseshe was 

dealing with a child with Asperger’s. (Id.) 

 b. Physical Health Issues 

 Plaintiff testified to her problems with sciatica, but informed the ALJ that 

this issue resolved in December of 2012. (R. at 47-47.) Plaintiff testified that the 

sciatica caused her to have difficulty standing for long periods of time and walking 

due to “shooting pains” in her leg and foot, which was only helped by adhering to 

her medication regimen. (R. at 44.) She described the pain as excruciating and 

indicated that it made sleep difficult. (R. at 45.) Plaintiff explained that she 

continued to have issues with her back, hip, and right knee, even after the sciatica 

problems ended. (R. at 47.) She had not seen a doctor for her right knee pain, but 

testified that her knee began to hurt after her sciatica subsided. (R. at 50.) 

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 c. Mental Health Issues 

 Plaintiff also testified to mental health issues, including anxiety and 

depression, following her 2007 stroke. (R. at 51.) She noted that certain events, 

such as driving in the snow, trigger her anxiety. (Id.) Plaintiff described her 

bipolar disorder, noting that she has good days and bad days that involve crying 

spells and sadness in the depressive phase and feeling like she was on “cloud nine” 

in her manic phase. (R. at 55-56.) In addition, she testified to experiencing fatigue 

and three to eight headaches per month that decrease her focus. (R. at 53-54.) 

When she suffers from a headache, Plaintiff lies down in a dark environment and 

takes over the counter pain relievers. (R. at 54.) 

 Plaintiff testified that her ability to work a full-time job would be limited by 

her low energy level, lack of focus, and inability to wake up on time. (R. at 58-

60.) She further noted that she had previously skipped or doubled up on her 

medications. (R. at 61.) Plaintiff testified that she suffered from the side effects of 

her medication, including an inability to wake up with Seroquel and a bad reaction 

to Vicodin. (R. at 62.) Plaintiff indicated that she would be able to lift a gallon of 

milk if she did not have to carry it for “a while,” could sit for about two hours, 

could stand for an hour, and could walk a mile with frequent breaks. (R. at 63-65.) 

 Plaintiff testified that she cooked, shopped with her daughters, did dishes, 

did her own laundry, and shared the remainder of the chores with her daughters. 

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(R. at 66-67.) She noted, however, that she takes breaks to sit down during long 

chores like cooking. (R. at 68.) Plaintiff testified that she used a computer every 

other day, spent time with her daughters, read, and watched television. (R. at 69-

70.) 

 2. Vocational Expert Testimony

 Mary Everts testified as the Vocational Expert (“VE”) at the June 13, 2013 

administrative hearing. (R. at 77-88.) The VE identified Plaintiff’s past relevant 

work as: adult care provider, heavy as performed, semi-skilled with a specific 

vocational preparation (“SVP”)1

 of 4; and cashier, medium as performed, 

unskilled, with an SVP of 2; and office helper, heavy as performed, unskilled, with 

an SVP of 2. (R. at 78-79.) 

 The ALJ then presented a series of hypotheticals to the VE. In the first one 

posed to the VE,, the ALJ asked if a hypothetical individual of Plaintiff’s age, 

education, and work experience, could perform her past relevant work with the 

following limitations: 

[T]his individual is limited to light work. They’d be able to lift up to 

20 pounds occasionally, lift/carry up to 10 pounds frequently. They’d 

be able to stand, walk for about six hours and sit for up to six hours in 

 

1

 “The DOT lists a specific vocational preparation (SVP) time for each described 

occupation. Using the skill level definitions in 20 CFR 404.1568 and 416.968, 

unskilled work corresponds to an SVP of 1-2; semi-skilled work corresponds to an 

SVP of 3-4; and skilled work corresponds to an SVP of 5-9 in the DOT.” SSR 00-

4P. 

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an eight hour work day with normal breaks. They could perform 

occasional pushing and pulling. They could occasionally operate foot 

controls. They can never climb ladders, ropes, or scaffolds. They can 

occasionally climb ramps or stairs. Occasionally balance, stoop, 

kneel, crouch, and crawl. This individual would have to avoid all use 

of hazardous moving machinery. They would have to avoid all 

exposure to unprotected heights. Additionally, the work would be 

limited to simple, routine, repetitive tasks performed in a work 

environment free of fast paced production requirements involving 

only simple work related decisions and routine workplace changes. 

(R. at 80.) The VE testified that the hypothetical individual could perform as an 

office helper and cashier, as generally performed at the light level. (R. at 81.) In 

addition, the VE testified that the hypothetical individual could perform the 

following jobs: inspector, with 5,700 jobs in the region and 129,000 nationally; 

and a reduced number of assembler positions, with 10,000 jobs in the region and 

200,000 nationally. (Id.) 

 In his second hypothetical, the ALJ asked the VE whether the first 

hypothetical individual could perform Plaintiff’s past relevant work of office 

helper and cashier if he or she was allowed to sit or stand alternatively and was not 

off task for more than ten percent of the work period. (R. at 81.) He clarified that 

“at will” meant within five minutes of needing to sit or stand. (R. at 82.) The VE 

testified that the hypothetical individual could perform reduced numbers of 

Plaintiff’s past work in the general office and cashier positions, along with reduced 

numbers of the assembler position (4,000 regionally, 90,000 nationally), reduced 

numbers of the inspector position (1,600 regionally, 34,000 nationally) and a light, 

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unskilled machine operator, with 3,000 jobs regionally and 90,000 nationally. (R. 

at 83.) 

 In his third hypothetical, the VE asked whether the above hypothetical 

individual could perform Plaintiff’s past relevant work of cashier or office helper if 

he or she were limited to sedentary work. The VE testified that such a limitation 

would preclude Plaintiff’s past work. (R. at 83.) According to the VE, however, 

the hypothetical individual could perform the following positions: information 

clerk, with 2,400 positions regionally and 85,000 nationally; inspector, with 500 

positions regionally and 13,000 nationally; and packer, with 2,000 positions 

regionally and 70,000 nationally. (R. at 84.) 

 The ALJ then asked the VE if the hypothetical individual in the third 

question would be precluded from work if he or she had a sit-stand option. (R. at 

84.) The VE testified that the jobs provided in response to hypothetical number 

three would still apply. 

 Finally, the ALJ asked the VE if being off task for twenty percent of the day 

or missing more than two work days per month would be work preclusive, to 

which the VE testified in the affirmative. (R. at 84-85.) Nor would the 

hypothetical individual be able to lie down for as much as an hour (outside of his 

or her lunch break). (R. at 85.) 

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 D. THE ADMINISTRATIVE DECISION

 On September 24, 2013, the ALJ issued his decision. (R. at 10-23.) At Step 

1 of the sequential evaluation process,2

 the ALJ found that Plaintiff had not 

engaged in substantially gainful activity since February 22, 2011. (R. at 12.) 

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

degenerative disc disease of the lumbar spine, sciatica, status post cerebrovascular 

accident (CVA) with residual headache and fatigue, arthritis, obesity, and 

depression. (R. at 12.) 

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

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

 

2

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

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

Although a dispositive finding at any step terminates the review, see Colvin v. 

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

review considers and answers five questions: 

 1. Is the claimant engaged in substantial gainful activity? 

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

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

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

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

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

claimant perform his or her past relevant work? 

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

residual functional capacity, can the claimant perform other work 

available in the national economy? 

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

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

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impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1, specifically, 

Listings 1.02, 1.04, and 12.04. (R. at 17.) 

 Between Steps 3 and 4 of the sequential process, the ALJ evaluated 

Plaintiff’s residual functional capacity (“RFC”)2

 and determined that Plaintiff had 

the capacity to perform sedentary work: 

[E]xcept allowing person to sit or stand alternatively, provided this 

person is not off task more than 10% of the work period. Never climb 

ladders, ropes or scaffolds; can occasionally climb ramps or stairs, 

balance, stoop, kneel, crouch, and crawl. Must avoid all hazardous 

moving machinery and exposure to unprotected heights. Work is 

limited to simple, routine and repetitive tasks performed in a work 

environment free of fast-paced production requirements involving 

only simple work related decisions and routine workplace changes. 

(R. at 19.) 

 Relying on the VE’s testimony, the ALJ determined at Step 4 that Plaintiff 

was unable to perform her past relevant work. (R. at 22.) 

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

jobs that exist in significant numbers in the national economy. (R. at 22-23.) He 

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

 

2

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

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

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

Cir. 2002). 

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 E. STANDARD OF REVIEW

 The District Court has jurisdiction to review the Commissioner’s final 

administrative decision pursuant to 42 U.S.C. § 405(g). When reviewing a case 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

F. ANALYSIS

In her motion for summary judgment, Plaintiff asserts four statements of 

error. First, she contends that the ALJ’s reliance upon the VE’s responses to his 

hypothetical questions was not supported by substantial evidence. Second, she 

asserts that the ALJ erred in finding that her depression failed to meet or equal 

Listing 12.04. Third, she similarly argues that the ALJ erred with respect to 

Listing 1.04A. Finally, Plaintiff posits that the ALJ erred by improperly 

discounting her credibility. The Commissioner opposes Plaintiff’s motion, 

asserting that she is entitled to a grant of summary judgment because substantial 

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evidence supports the ALJ’s conclusions. I agree that the ALJ’s conclusions are 

supported by substantial evidence and will address each argument in turn. 

1. The ALJ’s Reliance on VE Testimony is Supported by 

 Substantial Evidence 

When, as here, an ALJ concludes that a claimant does not have the RFC to 

perform his or her past relevant work at Step 4, the burden shifts to the 

Commissioner at Step 5 to show that Plaintiff “possesses the capacity to perform 

other substantial gainful activity that exists in the national economy.” Varley v. 

Sec’y of Health & Hum. Servs., 820 F.2d 777, 779 (6th Cir. 1987). This requires 

the Commissioner to “make a finding supported by substantial evidence that [the 

claimant] has the vocational qualifications to perform specific jobs.” Howard v. 

Comm’r of Soc. Sec., 276 F.3d 235, 238 (6th Cir. 2002) (internal citations omitted). 

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

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

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

impairments.” Id. 

Here, Plaintiff takes issue with the ALJ’s hypothetical questions, asserting 

that they did not accurately portray her physical and mental impairments. 

Specifically, she contends that the evidence does not support her capacity to lift 

twenty pounds occasionally and ten pounds frequently. As evidence in her reply 

brief, she points to one lumbosacral MRI taken in the spring of 2012, which she 

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characterizes as “MRI findings of compression of the S1 nerve route . . . muscle 

spasms detected on clinical examination, dermatomal sensory diminution,” and an 

ongoing conservative regimen of muscle relaxants, anti-inflammatories, narcotics, 

physical therapy, injections, rest, and exercise. (DE 13 at 24, R. at 425.) Plaintiff 

also asserts, generally, that the ALJ failed to account for the limitations related to 

her depression and headaches in his hypothetical questions to the VE. 

As the Commissioner argues, however, Plaintiff does not meet her burden of 

establishing that her impairments caused more limitations than those assessed by 

the ALJ. See 20 C.F.R. § 416912(c) (Claimants bear the responsibility to provide 

evidence showing how their impairments affect their ability to work). The ALJ 

concluded that the RFC was supported by medical evidence, objective findings, 

and the opinions of medical providers. (R. at 22.) The RFC was reflected in his 

hypothetical questions to the VE. 

Rather than identifying specific errors in the ALJ’s RFC assessment (and 

corresponding hypotheticals), Plaintiff instead points to other evidence in the 

record that supports her conclusions and asks this Court to re-weigh the evidence 

in her favor. See VanSingel v. Comm’r of Soc. Sec., 26 F. App’x 488, 489 (6th Cir. 

2002) (“If supported by substantial evidence, the Commissioner’s decision must be 

affirmed, even if [the reviewing court] would have arrived at a different result.”) 

(citing Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir.1983)). The analysis 

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that Plaintiff urges would be incompatible with the ‘substantial evidence’ standard 

of review. See Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (concluding 

that “[a]n administrative decision is not subject to reversal merely because 

substantial evidence would have supported an opposite decision.”). Moreover, 

Plaintiff fails to demonstrate that the MRI results to which she points must provoke 

a finding that she was more functionally limited than the ALJ opined. See Guy v. 

Comm’r of Soc. Sec., No. 11-12828, 2013 WL 1148413, at *5 (E.D. Mich. Feb. 19, 

2013) report and recommendation adopted, No. 11-CV-12828, 2013 WL 1148412 

(E.D. Mich. Mar. 19, 2013) (noting that “disability determinations turn on . . . the 

functional limitations caused by Plaintiff’s impairment.”). Accordingly, Plaintiff 

has failed to demonstrate that the ALJ’s reliance on the VE’s testimony in response 

to his hypotheticals was not supported by substantial evidence. 

 2. The ALJ’s Analysis of Listing 12.04 is Supported by 

 Substantial Evidence 

Plaintiff bears the burden of proving that her impairments meet or medically 

equal a particular listing. See Buress v. Sec’y of Health & Hum. Serv’s, 835 F.2d 

139, 140 (6th Cir. 1987). The Listing of Impairments, located at Appendix 1 to 

Subpart P of the regulations, describes impairments the Social Security 

Administration considers to be “severe enough to prevent an individual from doing 

any gainful activity, regardless of his or her age, education, or work experience.” 

20 C.F.R. § 404.1525(a). “A claimant must satisfy all of the criteria to meet the 

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listing.” Rabbers, 582 F.3d at 653. Moreover, all of the criteria must be met 

concurrently for a period of twelve continuous months. See 20 C.F.R. 

§404.1525(c)(3), (4); 20 C.F.R. Pt. 404, Subpt. P, App. 1, §1.00D (“[b]ecause 

abnormal physical findings may be intermittent, their presence over a period of 

time must be established by a record of ongoing management and evaluation”). 

 To qualify for a disability designation under Listing 12.04, a claimant must 

show that he or she satisfies the criteria in Paragraphs A and B or C of the Listing.3

20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 12.04. Paragraph A requires clinical 

findings which medically substantiate a mental disorder. Paragraph B requires that 

Plaintiff establish at least two of the following limitations: 

 1. Marked restriction of activities of daily living; or 

 2. Marked difficulties in maintaining social functioning; or 

 3. Marked difficulties in maintaining concentration, persistence, 

 or pace; or 

 4. Repeated episodes of decompensation, each of extended 

 duration[.] 

Id. 

 Here, the ALJ concluded that Plaintiff had only mild restriction in activities 

of daily living; mild difficulties in maintaining social functioning; moderate 

difficulties with concentration, persistence, and pace (“CPP”); and no episodes of 

 

3

 Plaintiff does not challenge the ALJ’s conclusions with respect to Paragraph C. 

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decompensation. (R. at 18-19.) Plaintiff contends that the ALJ focused only on 

the Part B criteria and ignored the Part A criteria and that she meets the criteria of 

Parts B1, 2, and 3. 

 With respect to Plaintiff’s activities of daily living, the ALJ assessed only a 

mild restriction, noting Plaintiff’s ability to drive, perform light household chores, 

bath and dress herself, purchase groceries, and pay bills. (R. at 18.) Plaintiff 

argues that the ALJ’s conclusion with respect to Plaintiff’s self-reported activities 

of daily living is unfounded, but does not point to other evidence in the record to 

demonstrate that she is more restricted in this area. As the Commissioner points 

out, however, other Courts have found that the type of activities Plaintiff engaged 

in are not indicative of a marked restriction in activities of daily living. See 

LeMaster v. Sec’y of Health & Hum. Servs., 802 F.2d 839, 841-42 (6th Cir. 1986) 

(analyzing the same element under Listing 12.06 and concluding that the 

claimant’s ability to drive, visit friends and family, do occasional yard work, mow 

his lawn, and take care of his personal needs “belie[d] any notion” that he had a 

marked impairment); Daniel v. Comm’r of Soc. Sec., No. 11-cv-13614, 2012 WL 

4513644, at *9 (E.D. Mich. Sept. 30, 2012) aff’d 527 F. App’x 374 (6th Cir. 2013) 

(upholding the finding of a mild restriction where the claimant was “able to take 

personal care of herself, feed herself, drive, shop, spend entertainment time with 

friends, and manage money to a degree.”). 

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 Furthermore, such a conclusion is supported by the opinion of State Agency 

physician Thomas Tsai, M.D., to which the ALJ assigned great weight. (R. at 95.) 

Plaintiff disputes the weight assigned to Dr. Tsai’s opinion, noting that it was 

entitled to “zero weight” for the period after May 12, 2012 and to “very limited 

weight” before that date because Dr. Tsai did not examine Plaintiff. However, 

nothing in the Regulations indicates that the ALJ was not entitled to rely on the 

opinion of a non-examining physician. Instead, such individuals are considered 

“highly qualified physicians and psychologists who are also experts in Social 

Security disability evaluation,” such that ALJ’s “must consider” their findings as 

opinion evidence. 20 C.F.R. § 416.927(e)(2)(i). Substantial evidence supports the 

ALJ’s finding of a mild restriction in activities of daily living, with or without Dr. 

Tsai’s opinion. 

 Plaintiff’s argument with respect to her difficulties in maintaining social 

functioning is also unavailing. The ALJ appropriately recognizes Plaintiff’s crying 

spells, but also notes her self-reports that she gets along with her daughters, keeps 

in contact with friends and neighbors, and maintains close contact with her best 

friend. (R. at 18 and 411.) Such an analysis is sufficient to demonstrate that 

Plaintiff only has a mild restriction in this area, at best. See Hogg v. Sullivan, 987 

F.2d 328, 333 (6th Cir. 1993) (affirming the ALJ’s conclusion that the claimant 

had only a mild restriction in maintaining social functioning where “[s]he attended 

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church and visited relatives” and her physician reported that she “related well to 

others.”) Additionally, the ALJ’s conclusion is consistent with the opinion of Dr. 

Tsai and Plaintiff does not point to any additional evidence in the record to the 

contrary. 

 Finally, Plaintiff’s challenge to the ALJ’s conclusion that she had only 

moderate limitations with respect to CPP must also fail. The ALJ considered 

Plaintiff’s reports of side effects related to her medication and pain, but also cited 

her computer use and ability to follow television shows as evidence that she was 

only moderately restricted in this area. Such a conclusion is again consistent with 

the opinion of Dr. Tsai. (R. at 95.) Plaintiff fails to point to any evidence that 

demonstrates that she is more severely limited in this area. Accordingly, the ALJ’s 

analysis of Plaintiff’s impairments under Listing 12.04 is supported by substantial 

evidence and Plaintiff’s argument is unavailing. 

 3. The ALJ’s Analysis of Listing 1.04 is Supported by 

 Substantial Evidence 

Plaintiff also challenges the ALJ’s finding with respect to Listing 1.04A, 

which covers “[d]isorders of the spine . . . resulting in compromise of the nerve 

root . . . or the spinal cord” with: 

A. Evidence of nerve root compression characterized by neuroanatomic distribution of pain, limitation of motion of the spine, 

motor loss (atrophy with associated muscle weakness or muscle 

weakness) accompanied by sensory or reflex loss and, if there is 

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22

involvement of the lower back, positive straight-leg raising test 

(sitting and supine)[.] 

20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 1.04. Here, the ALJ concluded that 

Plaintiff’s condition was not characterized by nerve root compression with the 

necessary motor loss and sensory or reflex loss, nor was there evidence of positive 

straight-leg raise tests, both sitting and supine. (R. at 17-18.) 

 Plaintiff asserts that evidence in the record shows that she was diagnosed 

with sciatica and lumbar radiculopathy, with a borderline positive straight leg 

raising test on the right. (R. at 337, 339, 371, 375, 378, and 387.) She points to 

evidence that she had muscle spasms and an antalgic gait. (R. at 404.) In addition, 

Plaintiff notes that a 2012 MRI showed the presence of disc protrusion and 

decreased sensation. Although Plaintiff concedes that there is no evidence of 

muscle weakness, she argues that the evidence of her impaired gait is sufficient to 

meet the Listing. 

 Plaintiff fails to meet her burden to demonstrate that she has satisfied all 

criteria set forth in the Listing. Although Plaintiff points to one MRI 

demonstrating right S1 radiculopathy from bulging disc and spondylitic changes 

(R. at 425), she does not point to any evidence of positive straight leg raise tests, 

both sitting and supine. To the contrary, the record contains evidence of a negative 

straight leg raise test (R. at 339) and evidence of a single borderline positive 

straight leg raise test on the right only (R. at 337). In addition, Plaintiff concedes 

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that there is no evidence of muscle weakness, but asks the Court to consider her 

impaired gait and muscle spasms as sufficient to meet the requirement. Plaintiff 

does not point to any evidence, opinion, or case law demonstrating that such 

conditions are equivalent. Nor does she develop an equivalence argument, other 

than to state that “there exists ample evidence for an equaling of Listed Impairment 

1.04A, if not an actual meeting of the criteria for that Listed Impairment.” (DE 13 

at 28.) As the Commissioner notes, the record shows that Plaintiff had full muscle 

strength. (R. at 337, 339, 416.) Accordingly, the ALJ’s conclusion that Plaintiff’s 

impairments did not meet the criteria for Listing 1.04 was supported by substantial 

evidence. 

 4. The ALJ’s Credibility Analysis is Supported by 

 Substantial Evidence 

 “The ALJ’s assessment of credibility is entitled to great weight and 

deference, since he [or she] had the opportunity to observe the witness’s 

demeanor.” Infantado v. Astrue, 263 F. App’x 469, 475 (6th Cir. 2008); see also 

Beavers v. Sec’y of Health, Ed., and Welfare, 577 F.2d 383, 387 (6th Cir. 1978) 

(“The opportunity to observe the demeanor of a witness, evaluating what is said in 

the light of how it is said, and considering how it fits with the rest of the evidence 

gathered before the person who is conducting the hearing, is invaluable, and should 

not be discarded lightly.”). “It is of course for the ALJ, and not the reviewing 

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

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Rogers v. Comm’r of Soc. Sec., 486 F.3d 469, 475 (6th Cir. 2007). 

 Nevertheless, “an ALJ’s assessment of a claimant’s credibility must be 

supported by substantial evidence.” Walters v. Comm’r Soc. Sec., 127 F.3d 525, 

531 (6th Cir. 1997). “Discounting credibility to a certain degree is appropriate 

where an ALJ finds contradictions among the medical reports, claimant’s 

testimony, and other evidence.” Walters, 127 F.3d at 531; see also Kalmbach v. 

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

between a claimant’s symptom complaints and the other evidence in the record 

tends to support the credibility of the claimant, while inconsistency, although not 

necessarily defeating, should have the opposite effect.”). When assessing an 

individual’s credibility, “the ALJ must [first] determine whether a claimant has a 

medically determinable physical or mental impairment that can reasonably be 

expected to produce the symptoms alleged.” Calvin v. Comm’r of Soc. Sec., 437 F. 

App’x 370, 371 (6th Cir. 2011). The ALJ made this finding here, concluding that 

Plaintiff’s medically determinable impairments could reasonably be expected to 

cause the alleged symptoms. (R. at 56.) 

 Upon making such a finding, the ALJ must next “consider the entire case 

record” to “evaluate the intensity, persistence, and functional limitations of the 

symptoms considering objective medical evidence.” 20 C.F.R. § 404.1529(c)(1-

3); Soc. Sec. Rul. 96-7p. A non-exhaustive list of relevant factors to be considered 

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by the ALJ include: 1) the claimant’s daily activities; 2) location, duration, 

frequency, and intensity of pain; 3) precipitating and aggravating factors; 4) the 

type, dosage, effectiveness, and side effects of medication; 5) treatment, other than 

medication; 6) any measures the claimant uses or has used to relieve his or her pain 

or other symptoms; and 7) other factors concerning functional limitations and 

restrictions. Curler v. Comm’r of Soc. Sec., 561 F. App’x 464, 474 (6th Cir. 2014); 

20 C.F.R. § 404.1529(c)(1-3); Soc. Sec. Rul. 96-7p; see also Ewing v. Astrue, No. 

10-cv-1792, 2011 WL 3843692, at *9 (N.D. Ohio, Aug 12, 2011) (“Social Security 

Ruling 96-7p requires such factors to be considered, not discussed . . . .”) 

(emphasis in original) (citing Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 

508 (6th Cir. 2006)). In his or her opinion, the ALJ must “provide a sufficiently 

specific explanation for his [or her] credibility determination so that it is clear to 

the individual and any subsequent reviewers the weight given to the individual’s 

statements and the reasons for that weight.” Malcolm v. Comm’r of Soc. Sec., No. 

13-15188, 2015 WL 1439711, at *7 (E.D. Mich. Mar. 27, 2015) (citing Soc. Sec. 

Rul. 96-7, 1996 WL 374186, at *1 (July 2, 1997)). 

 Here, the ALJ concluded that although Plaintiff’s medically determinable 

impairments could reasonably be expected to cause the symptoms she alleged, her 

statements concerning the intensity, persistence, and limiting effects of the 

symptoms were not entirely credible. (R. at 21-22.) Plaintiff asserts that the ALJ 

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failed to provide a logical basis for discounting her credibility. Specifically, she 

contends that the ALJ failed to incorporate her testimony regarding the regularity 

of her headaches and their debilitating effects. She takes issue with the ALJ’s 

reliance on her failure to quit smoking, despite instructions from her physicians to 

do so. Plaintiff also points to evidence in the record that her levels of pain “likely 

would interfere with her ability to concentrate and remain focused on tasks” and 

that her Global Assessment Functioning (“GAF”) was assessed as 45-50.4

 (DE 13 

at 30.) I conclude that the ALJ’s credibility assessment was supported by 

substantial evidence for several reasons. 

 First, the ALJ did not err in considering evidence that Plaintiff continued to 

smoke when evaluating her credibility. The Sixth Circuit has generally held that 

the ALJ may consider whether a claimant has followed a physician’s advice to quit 

smoking when evaluating the claimant’s credibility. In Sias v. Secretary of Health 

 

4

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

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

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

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

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

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

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

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

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

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

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

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

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& Human Services, 861 F. 2d 475, 480 (6th Cir. 1988), the Sixth Circuit found 

substantial evidence to support the ALJ’s disability determination where the 

claimant’s physicians had repeatedly warned him to quit smoking and he failed to 

do so. The Sixth Circuit emphasized its point by stating: 

The Social Security Act did not repeal the principle of individual 

responsibility. Each of us faces myriads of choices in life, and the 

choices we make, whether we like it or not, have consequences. If the 

claimant in this case chooses to drive himself to an early grave, that is 

his privilege—but if he is not truly disabled, he has no right to require 

those who pay social security taxes to help underwrite the cost of his 

ride. 

Id. at 480; see also Brown v. Soc. Sec. Admin., 221 F.3d 1333 (6th Cir. 2000) 

(“Although Brown suffers from chronic obstructive pulmonary disease, his heavy 

smoking habit indicates that the condition is not disabling.”); Starr v. Comm’r of 

Soc. Sec., No. 08-12434, 2009 WL 2477548, at *10 (E.D. Mich. Aug. 10, 2009) 

(concluding that it was appropriate for the ALJ to consider a claimant’s smoking 

“particularly where smoking reduces the effectiveness of treatment.”). Here, 

Plaintiff was repeatedly instructed that she should quit smoking. (See, e.g., R. at 

339, 364, 381, 389.) At one point, she was offered a free nicotrol inhaler in order 

to help her quit, but indicated that she was not interested in smoking cessation. (R. 

at 364.) The ALJ did not err by discounting Plaintiff’s credibility based on her 

failure to comply with multiple physicians’ recommendations. 

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 Second, the ALJ did not err in comparing Plaintiff’s testimony to objective 

medical evidence in the record when assessing her credibility. To support his 

conclusion that Plaintiff was less than credible, the ALJ pointed to a number of 

inconsistencies between Plaintiff’s testimony and the medical evidence in the 

record. For example, although Plaintiff testified to experiencing chronic problems 

with memory, concentration, and focus, clinical examinations revealed evidence to 

the contrary. (R. at 412.) Additionally, MRI evidence in the record demonstrates 

only mild findings in her lower back, full strength in her extremities, and Dr. 

Sabbagh’s instruction to “be active and exercise,” which conflicts with Plaintiff’s 

testimony that her back pain is disabling. (R. at 425.) Accordingly, the ALJ did 

not err in assessing Plaintiff as less than credible where her subjective statements 

suggested a higher level of impairment than the evidence in the record. See 

Newsome v. Sullivan, 897 F.2d 529, at *2 (6th Cir. 1990) (in weighing 

contradictory unsupported subjective statements of pain, the objective evidence is 

controlling). 

Finally, Plaintiff points to no evidence in the record to demonstrate that her 

testimony regarding the debilitating effects of her headaches was credible. She 

argues that the ALJ discounted her credibility “not on the basis of any medical 

documentation to the contrary,” but also does not point the Court in the direction of 

any medical evidence consistent with her testimony. While an ALJ may not 

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disregard the claimant’s subjective statements “solely because they are not 

substantiated by objective medical evidence,” a “strong indication of the credibility 

of an individual’s statements is their consistency, both internally and with other 

information in the case record.” SSR 96-7p, 1996 WL 374186, at *1; see also 

Saddler v. Comm’r of Soc. Sec., 173 F.3d 429 (6th Cir. 1999) (affirming a decision 

in which the ALJ found the claimant less than credible because her descriptions of 

the severity of her pain were inconsistent with the objective evidence in the 

record). A review of the record does not demonstrate any such substantiation. 

Accordingly, Plaintiff fails to identify any errors with respect to the ALJ’s 

credibility determination, which was supported by substantial evidence. 

G. CONCLUSION

 In sum, from a review of the record as a whole, the Undersigned concludes 

that substantial evidence supports the ALJ’s decision denying benefits. Indeed, the 

ALJ’s opinion appears to be thorough and well-supported. Accordingly, it is 

RECOMMENDED that the Court DENY Plaintiff’s motion for summary 

judgment, GRANT Defendant’s motion for summary judgment, and AFFIRM the 

Commissioner of Social Security’s decision. 

III. PROCEDURE ON OBJECTIONS

 The parties to this action may object to and seek review of this Report and 

Recommendation, but are required to file any objections within 14 days of service, 

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30

as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule 

72.1(d). Failure to file specific objections constitutes a waiver of any further right 

of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health & 

Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some 

issues but fail to raise others with specificity will not preserve all the objections a 

party might have to this Report and Recommendation. Willis v. Sec’y of Health & 

Hum. Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of Teachers 

Local 231, 829 F.2d 1370, 1273 (6th Cir. 1987). Pursuant to Local Rule 

72.1(d)(2), any objections must be served on this Magistrate Judge. 

 Any objections must be labeled as “Objection No. 1,” and “Objection No. 

2,” etc. Any objection must recite precisely the provision of this Report and 

Recommendation to which it pertains. Not later than 14 days after service of an 

objection, the opposing party may file a concise response proportionate to the 

objections in length and complexity. Fed. R. Civ. P. 72(b)(2); E.D. Mich LR 

72.1(d). The response must specifically address each issue raised in the objections, 

in the same order, and labeled as “Response to Objection No. 1,” “Response to 

Objection No. 2,” etc. If the Court determines that any objections are without 

merit, it may rule without awaiting the response. 

Dated: January 5, 2016 s/Anthony P. Patti 

 Anthony P. Patti 

 UNITED STATES MAGISTRATE JUDGE 

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I hereby certify that a copy of the foregoing document was sent to parties of record 

on January 5, 2016, electronically and/or by U.S. Mail. 

 s/Michael Williams 

 Case Manager for the 

 Honorable Anthony P. Patti 

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