UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

MARK SHARRARD,

CASE NO. 14-14212

Plaintiff,

DISTRICT JUDGE TERRENCE G. BERG

v. MAGISTRATE JUDGE PATRICIA T. MORRIS

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

___________________________/

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION ON CROSS 

MOTIONS FOR SUMMARY JUDGMENT (Docs. 12, 14)

I. RECOMMENDATION

In light of the entire record in this case, I suggest that substantial evidence supports the 

Commissioner’s determination that Sharrard is not disabled. Accordingly, IT IS 

RECOMMENDED that Sharrard’s Motion for Summary Judgment (Doc. 12) be DENIED

and that the Commissioner’s Motion for Summary Judgment (Doc. 14) be GRANTED.

II. REPORT

A. Introduction and Procedural History

Pursuant to 28 U.S.C. § 636(b)(1)(B), E.D. Mich. LR 72.1(b)(3), and by Notice of 

Reference, this case was referred to this magistrate judge for the purpose of reviewing a final 

decision by the Commissioner of Social Security (“Commissioner”) denying Plaintiff’s claims 

for the Supplemental Security Income (“SSI”) program of Title XVI, 42 U.S.C. § 1381 et seq. 

Title II. (Doc. 4; Tr. 117-28)

1

. The matter is currently before the Court on cross-motions for 

summary judgment. (Docs. 12, 14).

 1 The instant application for SSI benefits is Sharrard’s second; his first application was denied on 

January 26, 2011. (Tr. 99-115). 

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Plaintiff Mark Sharrard was forty-four years old when he applied for benefits on 

October 31, 20112

, alleging that he became disabled on September 22, 2009. (Tr. 164). This 

application was denied on February 28, 2012. (Tr. 134-39). Sharrard requested a hearing 

before an Administrative Law Judge (“ALJ”), which took place on March 1, 2013, before ALJ 

Patricia McKay. (Tr. 40-70). Sharrard, who was represented by attorney Andrea Pellegrini3

, 

testified, as did vocational expert (“VE”) Pauline McEachin. (Tr. 40). On May 16, 2013, the 

ALJ issued a written decision in which he found Sharrard not disabled. (Tr. 20-35). On 

September 5, 2014, the Appeals Council denied review. (Tr. 1-3). Sharrard filed for judicial 

review of the final decision on November 2, 2014. (Doc. 1). 

B. Standard of Review

The district court has jurisdiction to review the Commissioner’s final administrative 

decision pursuant to 42 U.S.C. § 405(g). The district court’s review is restricted solely to 

determining whether the “Commissioner has failed to apply the correct legal standard or has 

made findings of fact unsupported by substantial evidence in the record.” Sullivan v. Comm’r 

of Soc. Sec., 595 F. App’x 502, 506 (6th Cir. 2014) (internal citations omitted). 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.” Rogers v. 

Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (internal quotations omitted). 

 2 The ALJ asserted in her decision that Sharrard’s application date was October 31, 2011. (Tr. 26). 

Sharrard concurs with this assessment in his brief, (Doc. 12 at 8), as does the Commissioner (Doc. 14 

at 2). A review of the transcripts reveals that Sharrard’s actual application date was November 2, 2011. 

(Tr. 164). However, this discrepancy is irrelevant to the outcome of Sharrard’s application, thus the 

Court will assume that the parties’ agreed upon date, October 31, 2011, was the date of application.

3 On appeal, Sharrard is represented by attorney Joshua L. Moore. (Doc. 12).

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The Court must examine the administrative record as a whole, and may consider any 

evidence in the record, regardless of whether it has been cited by the ALJ. See Walker v. 

Secretary of Health and Human Services, 884 F.2d 241, 245 (6th Cir. 1989). The Court will 

not “try the case de novo, nor resolve conflicts in the evidence, nor decide questions of 

credibility.” Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994). 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.” Id. at 286 (internal citations omitted).

C. Framework for Disability Determinations

Under the Act, “DIB and SSI are available only for those who have a ‘disability.’”

Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). “Disability” means the inability

to engage in any substantial gainful activity by reason of any 

medically determinable physical or mental impairment which can be 

expected to result in death or which has lasted or can be expected to 

last for a continuous period of not less than [twelve] months.

42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (DIB); 20 C.F.R. § 416.905(a) (SSI). The 

Commissioner’s regulations provide that disability is to be determined through the application 

of a five-step sequential analysis:

Step One: If the claimant is currently engaged in substantial gainful 

activity, benefits are denied without further analysis.

Step Two: If the claimant does not have a severe impairment or 

combination of impairments that “significantly limits . . . physical 

or mental ability to do basic work activities,” benefits are denied 

without further analysis.

Step Three: If the claimant is not performing substantial gainful 

activity, has a severe impairment that is expected to last for at least 

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twelve months, and the severe impairment meets or equals one of 

the impairments listed in the regulations, the claimant is 

conclusively presumed to be disabled regardless of age, education 

or work experience.

Step Four: If the claimant is able to perform his or her past relevant 

work, benefits are denied without further analysis.

Step Five: Even if the claimant is unable to perform his or her past 

relevant work, if other work exists in the national economy that 

plaintiff can perform, in view of his or her age, education, and work 

experience, benefits are denied.

20 C.F.R. §§ 404.1520, 416.920. See also Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534 

(6th Cir. 2001). “Through step four, the claimant bears the burden of proving the existence and 

severity of limitations caused by [his or] her impairments and the fact that she is precluded 

from performing [his or] her past relevant work.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 

474 (6th Cir. 2003). The burden transfers to the Commissioner if the analysis reaches the fifth 

step without a finding that the claimant is not disabled. Combs v. Comm’r of Soc. Sec., 459 

F.3d 640, 643 (6th Cir. 2006). At the fifth step, the Commissioner is required to show that 

“other jobs in significant numbers exist in the national economy that [the claimant] could 

perform given [his or] her RFC [residual functional capacity] and considering relevant 

vocational factors.” Rogers, 486 F.3d at 241 (citing 20 C.F.R. §§ 416.920(a)(4)(v), (g)).

D. ALJ Findings

Following the five-step sequential analysis, the ALJ found Sharrard not disabled under 

the Act. The ALJ found at Step One that Sharrard had not engaged in substantial gainful 

activity since October 31, 2011, the application date. (Tr. 26). At Step Two, the ALJ concluded 

Plaintiff had the following severe impairments: “restrictive lung disease, status post repair of 

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an atrial septal defect, history of cerebrovascular accident with right-sided residuals, human 

immunodeficiency virus (HIV) infection, hypertension, hyperlipidemia, bipolar disorder, 

generalized anxiety disorder, and history of substance abuse.” (Id.). At Step Three, the ALJ 

found that Plaintiff’s combination of impairments did not meet or equal one of the listings in 

the regulations. (Tr. 27-28). The ALJ then found that Sharrard had the residual functional 

capacity (“RFC”) to perform light work, except that Sharrard

needs the opportunity to alternate between sitting and standing while 

engaged in the work, as he desires. Additionally, the claimant must 

not be exposed to workplace hazards such as heavy machinery, 

vibration, climbing ladders, and unprotected heights. The claimant 

can only occasionally climb stairs, crouch, crawl, kneel, stoop, and 

bend. The claimant must avoid environments with pulmonary 

irritants, such as dust, fumes, and odors. The claimant can frequently 

use his dominant right upper extremity for fingering and feeling but 

only occasionally for grasping or gross manipulation, and he can 

frequently use his right lower extremity for foot controls. The 

claimant can perform simple, unskilled work with only occasional 

interaction with the general public and co-workers. 

(Tr. 28-33). At Step Four, the ALJ noted that Sharrard had not presented any new evidence 

regarding his past relevant work, and thus adopted the decision as to prior work rendered in 

Sharrard’s 2011 hearing before an ALJ. (Tr. 33). At Step Five, the ALJ found that a significant 

number of jobs existed which Sharrard could perform despite his limitations. (Tr. 33-34). As a 

result, the ALJ found Sharrard not disabled under the Act. (Tr. 34). 

E. Administrative Record

1. Medical Evidence

On November 21, 2009, Sharrard was seen by Dr. Ilonka Molano shortly after being 

diagnosed with HIV. (Doc. 390). Sharrard’s CD4 count was 244 (presumably per copies per 

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mL), along with a viral load4 of 61,938 (copies per mL), numbers sufficiently high that Dr. 

Molano asserted that therapy should start immediately to control the infection. (Tr. 391). Dr. 

Molano noted a history of depression, though Sharrard was not taking any drugs at that time to 

control that disorder. (Id.). 

In a December 22, 2009, visit with Dr. Molano, Sharrard reported nausea with vomiting 

for the first two weeks of taking his anti-retroviral medication, along with headaches. (Tr. 392). 

Sharrard also noted that after taking some of his roommate’s anti-nausea medication, his 

symptoms improved significantly. (Id.). Sharrard was found to have “[n]o joint abnormalities,” 

and his physical condition was generally normal. (Tr. 392). 

On January 22, 2010, Dr. Samina Ghazi found that Sharrard had stable hypertension, 

HIV, and anxiety. (Tr. 271). 

On February 2, 2010, Dr. Molano noted that Sharrard was started on antiretroviral 

therapy to treat his HIV infection approximately one month prior, and that Sharrard reported 

“doing very well” on that medication, with only occasional nausea explained by alcohol 

consumption. (Tr. 390). Dr. Molano noted that Sharrard had been “excellent” in complying 

with his medication regimen, and that he experienced a “very good response to therapy.” (Id.). 

 4 “HIV viral load tests are reported as the number of HIV copies in a milliliter (copies/mL) of blood. If 

the viral load measurement is high, it indicates that HIV is reproducing and that the disease will likely 

progress faster than if the viral load is low. During treatment and monitoring, a high viral load can be 

anywhere from 5,000 to 10,000 copies/mL. Initial, untreated, and uncontrolled HIV viral loads can 

range as high as one million or more copies/mL. A low viral load is usually between 40 to 500 

copies/mL, depending on the type of test used. This result indicates that HIV is not actively 

reproducing and that the risk of disease progression is low (taken from: www.labtestsonline.org).” 

Stroud v. Comm'r of Soc. Sec., No. CIV.A. 10-12515, 2011 WL 4576032, at *3 (E.D. Mich. July 25, 

2011). 

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On June 25, 2010, Dr. Ghazi diagnosed right shoulder pain from a rotator cuff, acid 

reflux, and anxiety. (Tr. 269). 

On July 23, 2010, Dr. Ghazi noted that Sharrard had difficulty pulling up his pants, and 

found right shoulder pain, acid reflux, weakness on the right side, HIV, a torn rotator cuff on 

the right shoulder, and depression. (Tr. 267). 

On August 6 and 31, 2010, Dr. Ghazi made a series of observations which are largely 

illegible due to poor penmanship and scanning quality. (Tr. 265-66).

On October 29, 2010, Dr. Ghazi recorded complaints of hand and back pain that had 

increased in the past three or four years. (Tr. 264). 

On September 21, 2010, Sharrard visited Royal Oak Hospital (“Royal Oak”) for a 

follow-up to exams previously performed at another medical center. (Tr. 259). Dr. Paul 

Chittick found that Sharrard reported body aches, intermittent hot flashes, and diarrhea 

following treatment for HIV. (Id.). On physical examination, Dr. Chittick found Sharrard to 

appear generally normal. (Tr. 260). Dr. Chittick further found that Sharrard’s “labs have been 

reviewed from the previous records that showed CD45 count of 224. His viral load was noted 

to be 812 from April 2010 with an undetectable viral load and supposedly well controlled.” 

(Id.). 

On December 28, 2010, Sharrard visited Dr. Ghazi complaining of influenza and right 

hip pain so severe that it “feels like it might fall out of its joint.” (Tr. 263).

 5 “CD4 is an infection-fighting white blood cell that coordinates the immune response. HIV infects and 

kills CD4 cells, weakening the immune system. CD4 count is a useful indicator of immune system 

health and HIV/AIDS progression. A normal CD4 count is approximately 500 to 1,400 cells/mm 3 of 

blood, but individual counts can vary.” Kelley v. Comm'r of Soc. Sec., No. 12-10002, 2013 WL 

1187915, at *2 (E.D. Mich. Mar. 22, 2013) (quotation omitted). 

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On January 4, 2011, Sharrard “denied any active complaints,” and Dr. Kalyani Movva 

found Sharrard’s physical condition generally normal. (Tr. 419-20). However, Dr. Movva’s 

impression reflected “[c]linically stable” HIV disease, hyperlipidemia, and bipolar disorder. 

(Tr. 421). 

On January 18, 2011, Dr. Robert Grodman of Advanced Cardiovascular Health 

Specialists, P.C., examined Sharrard and found that he suffered from hypertensive 

cardiovascular disease, a history of atrial septal defect repair, and tobacco dependence. (Tr. 

278). 

On February 15, 2011, Dr. Datla Raju recorded that Sharrard’s mental state was normal 

except for somewhat impaired judgment skills. (Tr. 338). Sharrard denied suicidal ideation. 

(Id.). Also on February 15, 2011, Dr. Movva recorded “somatic complaints including a few 

episodes of bowel incontinence, lower back pain and right hip pain, which he felt might be 

resulting from [his anti-retroviral therapy].” (Tr. 428). Sharrard also noted that he was feeling 

“somewhat depressed” and that while he had in the past acted as a caretaker for his roommate, 

the roles had reversed because of Sharrard’s “pain and debility.” (Id.). Sharrard stated that he 

experienced only two episodes of bowel incontinence since 2009, without any ongoing 

symptoms. (Id.). He also noted chronic, constant lower back pain, which worsened in the 

recent past, but denied radiation, pain, or weakness in the lower extremities. (Id.). Sharrard 

stated that his primary care physician increased his dosage of Vicodin because his prior dose 

was not providing adequate pain relief. (Id.). On physical examination, Dr. Movva found that 

Sharrard’s condition was generally normal. (Tr. 430). Finally, Sharrard stated that he was 

“tolerating well” his anti-retroviral therapy. (Tr. 431). 

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On March 29, 2011, Dr. Movva noted that Sharrard had been “100% compliant” with 

his HIV treatment, and had been taking Coumadin since he had a stroke at some prior date. (Tr. 

435-36). On physical exam, Sharrard’s condition was again found to be normal. (Tr. 437). 

On April 12, Dr. Datla Raju found that Sharrard’s mental state was generally normal; 

Dr. Kremer duplicated these results on June 3, 2011. (Tr. 319-26, 327-34). On June 3, social 

worker JudyLynn Donlan-Muncey also reviewed Sharrard’s mental condition, and assigned a 

GAF score of between 60 and 65. 6 (Tr. 325).

On May 18, 2011, Sharrard for the first time visited Dr. Shyran Hines; the “chief 

complaint” during that visit was “changing doctors, need refill [on medication], pt. is HIV 

positive,” and thus the appointment apparently did not involve any specific complaint of 

symptoms. (Tr. 292). 

On June 21, 2011, Sharrard was seen by emergency room physician Dr. Christine 

Morrison for the treatment of chest pain with shortness of breath, the cause of which could not 

be determined through the use of an electrocardiogram. (Doc. 524). 

On June 22, 2011, Dr. Hines noted that Sharrard went to the hospital the day prior for 

chest pain and blood work, but did not draft an assessment of Sharrard’s condition, and the 

report from that date does not include any assessment or treatment plan. (Tr. 290-91). On July 

27, 2011, Dr. Hines diagnosed petechiae on the stomach and arms. (Tr. 288-89). On October 

 6 A GAF score of 51 to 60 indicates “Moderate symptoms (e.g., flat affect and circumstantial speech, 

occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., 

few friends, conflicts with peers or co-workers).” See American Psychiatric Ass’n, Diagnostic and 

Statistical Manual of Mental Disorders (American Psychiatric Association, 4th ed. text rev. 2000) 

(DSM–IV–TR). A GAF score of 61–70 indicated, “[s]ome mild symptoms (e.g., depressed mood and 

mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional 

truancy, or theft within the household), but generally functioning pretty well, has some meaningful 

interpersonal relationships.” Id.

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20, 2011, Sharrard visited Dr. Hines for medication refills; under “assessment/treatment plan,”

Dr. Hines diagnosed back pain, among other disorders which are illegible. (Tr. 286-87). 

On June 28, 2011, Sharrard told Dr. Movva of “ongoing muscle aches in the legs and 

lower back,” along with anxiety and diarrhea three to four times weekly, a substantial increase 

from his February 15, 2011 report of experiencing diarrhea only a few times in several years.

(Tr. 428, 442). His physical condition was again nominal. (Tr. 444). Dr. Movva encouraged 

Sharrard to seek evaluation for his chronic back pain. (Tr. 445). 

On July 1, 2011, Sharrard treated with Dr. Carole Kremer at Easter Seals Michigan, 

Inc. (Tr. 310-18). She found Sharrard’s affect to be constricted, his mood depressed and 

anxious, his thought content obsessive and compulsive with ideas of reference, and his 

attention, concentration, and judgment impaired. (Tr. 312). Sharrard reported that he became 

angry to the point of violence when not taking his medication Seroquel, and thus began taking 

that medication again. (Tr. 313). Sharrard denied suicidal ideation. (Tr. 314). Dr. Kremer 

assigned a GAF score of between 60 and 65. (Tr. 317). 

On August 26, 2011, Sharrard again treated with Dr. Kremer. (Tr. 301-09). Dr. Kremer 

noted that Sharrard was taking a large number of medications to treat chest pain, HIV, 

depression, acid reflux, high blood pressure, and pain, and was always consistent in taking that 

medication. (Tr. 301-03). Sharrard’s attitude was anxious, and he expressed suicidal ideation 

without a plan, lasting one day, as a result of his friend’s death; Dr. Kremer noted that Sharrard 

“snaopped [sic] right out of it” after taking an extra dose of his schizophrenia medication. (Tr. 

304). 

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On September 27, 2011, Sharrard denied abdominal pain or “any other active symptoms 

at this time.” (Tr. 450). Again, his physical exam showed normal results. (Tr. 452). Dr. Movva 

noted that Sharrard showed “excellent virologic response” to his HIV treatment. (Tr. 455). 

On October 14, 2011, Dr. Anupama Kottam prepared a transesophageal 

echocardiography report, which showed normal size, thickness, and systolic function in the left 

ventricle, no regional wall motion abnormalities, and a normal ejection fraction; the left atrium 

was normal in size; the right ventricle appeared “mildly dilated,” and the right ventricular 

systolic function was mildly depressed; the right atrium was normal in size; the aortic root was 

normal, as were the main and pulmonary arteries; and there was no evidence of pericardial 

effusion. (Tr. 283). Sharrard’s valves were generally normal, except for “[s]uboptimal tricuspid 

regurtitant jet Doppler velocity signal preclud[ing] reliable estimation of pulmonary artery 

systolic pressure.” (Id.). Dr. Kottam also found “[r]edundant fossa ovalis” and the suggestion 

of “an interatrial shunt, most consistent with a small-moderate patent foramen ovale.” (Tr. 

284).

On November 16, 2011, Sharrard was seen by Dr. Jack Belen, who evaluated his 

abnormal spirometry. (Tr. 361). Sharrard denied any history of chest pain, orthopnea or 

paroxysmal nocturnal dyspnea, fever, chills, or sweats. (Id.). Dr. Belen also noted no history of 

asthma, bronchitis, tuberculosis, pulmonary embolism, thrombophlebitis, or pneumothorax. 

(Id.). On physical exam, Sharrard was found to be in generally normal condition. (Tr. 362). Dr. 

Belen concluded that “[c]omplete pulmonary function studies were performed and did 

demonstrate the presence of a moderate restrictive defect although his diffusing capacity was 

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normal,” with the most likely explanation for this abnormality being Sharrard’s prior open 

heart surgery. (Id.). Dr. Belen also noted that Sharrard “is currently disabled.” (Tr. 361). 

On November 18, 2011, Sharrard again treated with Dr. Kremer. (Tr. 293-300). 

Sharrard told Dr. Kremer that he was experiencing greater depression and anxiousness, and 

requested an increase in his dosage of medication to treat that issue. (Tr. 295). Sharrard 

reported satisfactory sleep and appetite. (Id.). Dr. Kremer recorded that Sharrard’s appearance 

and emotional state was generally normal except for a blunt affect. (Tr. 296-97). Dr. Kremer 

recorded diagnoses of bipolar I disorder, generalized anxiety disorder, episodic cocaine 

dependence, benign hypertension, and unspecified angina pectoris, assessed a GAF score of 

60, and recorded that Sharrard’s status was stable. (Tr. 299). 

On January 24, 2012, Sharrard again “[d]enied any complaints” to Dr. Movva, asserted 

that he was fully compliant with his anti-retroviral treatment, and said he had “no active 

issues.” (Tr. 459). 

On April 24, 2012, Dr. Movva again noted perfect compliance with anti-retroviral 

drugs; Sharrard had “no active issues,” and did note feeling depressed, but not to the point of 

suicide. (Tr. 470). Dr. Movva found “no issues of intolerance” with Sharrard’s HIV treatment, 

and that his “health maintenance issues have been addressed.” (Tr. 475). Dr. Movva also noted 

that Sharrard’s hyperlipidemia was well managed. (Id.). 

On April 30, 2012, Dr. Jack Belen found that Sharrard suffered from “[d]yspnea upon 

exertion, probably secondary to his known restrictive lung disease felt to be secondary to his 

cardiac surgery as well as a component of COPD,” and noted that Sharrard “[u]nfortunately . . . 

continues to smoke . . . half a pack [of cigarettes] a day.” (Tr. 359-60). 

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On May 4, 2012, Sharrard visited with Dr. Kremer, who noted complaints of racing 

thoughts, cocaine use, and bipolar symptoms. (Tr. 555). She found that Sharrard’s mental 

status was generally normal, except that he appeared anxious and depressed, and that he 

exhibited some ideation of suicide, but without a plan. (Tr. 557). 

On July 20, 2012, Sharrard visited with emergency room physician Dr. Briana Ponto, 

reporting that he “wanted to kill himself today” as a result of his receiving “a letter in the mail 

stating that his insurance was going to be cut off, and [because] he was recently rejected from 

obtaining disability,” . . . “he will be unable to afford his HIV medications which inevitably 

means that he will die.” (Tr. 533). Aside from a small rash, Sharrard “denie[d] any other 

complaints.” (Id.). Sharrard was alert, oriented to time, place, person, and situation, was calm 

and cooperative, and was in no respiratory distress. (Tr. 539). He spent a night in the hospital, 

and on July 21, Dr. Lester Potempa recorded that Sharrard was “much more settled,” was 

“pleasant and conversant” and “report[ed] no suicidal ideations.” (Tr. 540). In terms of mental 

status, he found that Sharrard was depressed but without “escalating dysphoria,” 

hallucinations, or “loose associations.” (Tr. 541). He assessed a GAF score of 20.7 Dr. 

Potempa also noted that in 1994 Sharrard underwent open heart surgery and experienced a 

stroke that left him with weakness on his right side. (Doc. 540). 

On July 23, 2012, Sharrard was again seen by Dr. Potempa. (Tr. 544). He recorded that 

Sharrard denied suicidal intent, and was “much more settled” with a “much more pleasant 

demeanor,” and recommended that Sharrard be released the following day. (Id.). He also noted 

 7 A GAF score of eleven to twenty indicates some danger of hurting self or others (e.g., suicide 

attempts without clear expectation of death; frequently violent; manic excitement) or occasionally fails 

to maintain minimal personal hygiene or gross impairment in communication (e.g., largely incoherent 

or mute). DSM–IV–TR.

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that Sharrard participated in group therapy sessions and “showed a quick settling affective 

instability.” (Tr. 544). 

On July 24, 2012, Dr. Potempa discharged Sharrard, finding that his suicidal ideation 

“quickly settled” once he arrived in the hospital, and that he was ready for discharge after 

“showing visual improvements,” including “improved affective display and no evidence of any 

aberrant behaviors.” (Tr. 545). 

Also on July 24, 2012, Dr. Ronak Talati recorded that Sharrard “complains of diarrhea 

for over a year now. Says he has 4-5 [bowel movements] per day.” (Tr. 482). Sharrard denied 

abdominal pain, bloody stool, or weight loss, and asserted that medication was ineffective in 

resolving his diarrhea. (Id.). Dr. Talati also suggested that Sharrard’s diarrhea “may not be 

related to HIV,” and recommended that he follow up with his general practitioner. (Tr. 488). 

On July 31, 2012, Dr. Talati ordered an x-ray of Sharrard’s chest, which showed “no 

acute process.” (Tr. 505). 

On August 2, 2012, Sharrard visited with Dr. Nicanor Castedo for a medication review, 

who recorded that he appeared depressed, his affect was constricted, and that his thinking was 

tangential. (Tr. 566). On September 11, 2012, Dr. Castedo found that Sharrard’s mental 

condition was normal with the exception of constricted affect. (Tr. 574). On September 27, 

2012, Dr. Castedo again noted that Sharrard appeared depressed and that his affect was 

constricted. (Tr. 582). On October 9, 2012, Dr. Castedo wrote that Sharrard appeared anxious, 

his affect constricted, and his attention was merely adequate. (Tr. 590). On November 8, 2012, 

Dr. Castedo stated that Sharrard was anxious and dysphoric, and that he had a flat affect. (Tr. 

599). 

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On November 15, 2012, Dr. K.C.R. Nair conducted a psychiatric review of Sharrard. 

(Tr. 604). He recorded that Sharrard was currently feeling depressed, and in the past 

experienced “episodes of manic behavior with hypersexuality – with men, on the go, to have 

sex,” which “consumes me.” (Tr. 604). Sharrard also reported “many many episodes of 

hypomania, mostly seasonal in Spring. The mood changes of hypomania are ‘almost like 

clockwork’ and depression sets in during the Fall months.” (Id.). Sharrard also detailed his two 

prior experiences in which he came close to suicide, once in 1989 and once in 2005. (Id.). Dr. 

Nair found that Sharrard appeared dysphoric and depressed, his psychomotor control was 

slowed, his attention impaired, but his thought process goal oriented. (Tr. 608-09). He assessed 

a GAF score of 398 “because suicidal thoughts, racing thoughts.” (Tr. 612).9

On January 8, 2013, Dr. Talati found that Sharrard’s diarrhea symptoms had resolved, 

and that Sharrard “hardly takes” anti-diarrheal medication, which he was prescribed. (Tr. 495). 

Dr. Talati also noted that Sharrard’s “cd4 count was over 1000 in July 2012.” (Id.). Dr. Talati 

also noted that on physical exam all results were normal. (Tr. 495-96). 

On February 5, 2013, Dr. Castedor found that Sharrard’s mood was anxious, his affect 

constricted, his thought processes tangential, and his attention adequate. (Tr. 619). 

 8 A GAF score of 31 to 40 indicates some impairment in reality testing or communication OR major 

impairment in several areas such as work or school, family relations, judgment, thinking, or mood 

(e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up 

younger children, is defiant at home, and is failing at school). DSM–IV–TR.

9 There is some confusion regarding which physician assigned this GAF score. It appears within a 

November 15, 2012, transcript created during a visit with Dr. Nair. (Tr. 604). The GAF score appears 

on a page within that transcript reading “diagnosis made by C. Kremer, D.O.” on “effective date 

11/18/2011.” (Tr. 612). It thus appears that Dr. Nair’s November 15, 2012, transcript refers back to the 

diagnosis Dr. Kremer made on November 18, 2011. However, an examination of Dr. Kremer’s 

November 18, 2011, transcript reveals that on that date she assessed a GAF score of between 60 and 

65. (Tr. 299). Thus it does not appear that Dr. Kremer assessed a GAF score of 39, but rather than Dr. 

Nair made that assessment and misattributed it to Dr. Kremer. 

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On February 6, 2013, Dr. Joel Kahn performed an examination of Sharrard, concluding 

that his emotional state, range of motion, neurological, psychological, and physical condition 

was normal, and noting “no symptoms.” (Tr. 357-58).

On February 8, 2013, Dr. Kim Williams interpreted a coronary calcium scoring test of 

Sharrard’s heart. (Tr. 352). Dr. Williams concluded that Sharrard’s calcium calcification 

Agatston score was zero, putting him between the twenty-fifth and fiftieth percentile for men 

of Sharrard’s age. (Tr. 352-53). 

2. Application Reports and Administrative Hearing

A. Sharrard’s Function Report

Sharrard completed a function report on December 7, 2011. (Tr. 211-18). In that report, 

Sharrard indicated that he does not take care of pets or others. (Tr. 212). He asserted that his 

conditions prevent him from performing yard work, walking down a flight of stairs, or 

removing his shirt, and that he wakes up at night in pain. (Id.). He reported that he required 

reminders to “wash up,” brush his teeth, and take pills. (Tr. 213). He prepares sandwiches 

weekly, which takes two to three hours. (Id.). When asked to list the household chores he can 

perform, Sharrard listed only “loading dishwasher,” which takes about an hour. (Id.). He 

reported that he cannot perform other household chores because he “get[s] lightheaded and 

chest pains.” (Tr. 214). He goes outside twice weekly, and either drives a car or gets a ride; he 

can go out alone. (Id.). He shops in stores for food approximately two times monthly. (Id.). 

Apparently confused by a question in the form, Sharrard stated that he cannot pay bills or 

handle a savings account because he “ha[s] no money,” but can count change and use a 

checkbook. (Id.). As to hobbies, he reported “looking through magazines” twice monthly, and 

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watching television daily. (Tr. 215). He reported being unable to perform yardwork because it 

“take[s] my breath away, make[s] me feel light headed sometimes I feel I might loose [sic] 

consciousness.” (Id.). 

Sharrard also reported not spending time with others. (Id.). Sharrard asserted that he 

goes to weekly therapy sessions and monthly luncheons with a community services 

organization, yet also asserted that he does not visit any location outside the home regularly. 

(Id.). He is able to go outside alone, and does not need reminders to go places. (Id.). He 

reported difficulty getting along with others because “its [sic] part of my bi-polar disorder.” 

(Tr. 216). He also stated that he “do[esn’t] get out to do things” socially because of his 

illnesses. (Id.). He stated that his conditions limit his ability to lift, squat, bend, stand, reach, 

walk, sit, kneel, talk, stair-climb, remember, complete tasks, concentrate, use his hands, and get 

along with others. (Id.). Sharrard asserted that he does not finish what he starts, has no trouble 

following written instructions, but does have some difficulty with verbal instructions because 

he sometimes forgets them. (Tr. 216). He gets along with authority figures “pretty well,” and 

has not been laid off or fired because of problems getting along with others. (Tr. 217). 

In an HIV-specific function questionnaire, Sharrard reported that he experiences fatigue 

that requires him to nap twice daily for an hour. (Tr. 235). His fatigue is brought on by 

concentration and manual labor. (Id.). He also asserted that he experiences diarrhea five to six 

times daily. (Id.). He reported not experiencing weight loss, incontinence, or night sweats. (Tr. 

235-36). However, he reported waking up in pain every night; he also noted that several of his 

medications cause him to experience sleepiness. (Tr. 236). He reported requiring reminders to 

perform grooming, and must rest during grooming. (Id.). He requires help with laundry and 

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dishes, and cannot walk more than 100 feet without resting. (Id.). Regarding his mental state, 

Sharrard reported that he experiences depression on some days, and racing thoughts on other 

days. (Tr. 237). He does not have trouble with coughing, but experiences shortness of breath 

and lightheadedness after climbing stairs, in part because of restrictive lung disease. (Id.). 

Sharrard further stated that he has not attempted to work since he became ill, and did not lose 

his last job as a result of his conditions. (Id.). 

A portion of that report was completed by Dr. Shyran Hines on May 7, 2011. (Tr. 240). 

Dr. Hines noted that Sharrard did not appear chronically ill, but did appear visibly fatigued. 

(Tr. 239). Dr. Hines also established an RFC, noting that Sharrard could lift ten pounds 

occasionally, stand or walk for less than two hours, and sit for less than six hours daily. (Tr. 

239). Dr. Hines further noted that Sharrard’s limited functional capacity resulted from “his 

congenital heart disease,” rather than from his HIV infection, breathing issues, or other 

maladies. (Id.). Sharrard’s T-Cell count was 888. (Tr. 240).

B. Sharrard’s Testimony at the Administrative Hearing

At the March 1, 2013, hearing before the ALJ, Sharrard testified that he lives on the first 

floor of a house, and does not go into the basement to perform laundry because he “get[s] short 

winded going down a flight of stairs.” (Tr. 49). Sharrard drove himself to the hearing. (Tr. 52). 

He stated that his average day consists of taking medication, sitting in the living room, laying 

down in bed, napping approximately twice daily for two hours each, watching television, using 

Facebook, and “surfing the net.” (Tr. 52-55). Sharrard testified that he does not sleep at night. 

(Tr. 55). He also asserted that some of his medications “make me a little loopy” such that he is 

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unable to pay attention. (Tr. 52). Sharrard stated that he shops for food and other goods, that he 

does not have any hobbies whatsoever. (Tr. 55). 

With regard to his breathing difficulties, Sharrard stated that his inhaler “is supposed to 

help,” and appeared to agree with the ALJ’s conclusion that it does provide some relief. (Tr. 

56). Sharrard asserted that his HIV is “stable” but that he experiences diarrhea as a result of his 

medications approximately two days per week. (Id.). Sharrard further stated that, as a result of 

a stroke in 1994, he is only able to write with his right hand, and that his signature “is chicken 

scratches.” (Tr. 57). However, he acknowledged that he retains sufficient dexterity in his right 

foot and leg to drive a vehicle. (Tr. 58). When asked why he is unable to work, Sharrard 

asserted that he is disabled “[b]ecause of the pain in my back and the shortness of breath I get.” 

(Id.). He further claimed that his back pain resulted from arthritis. (Id.). Sharrard claimed that 

he experiences pain of six to seven out of ten severity on a daily basis, and that his back pain 

sometimes radiates into his legs. (Tr. 59). He asserted that he can stand for only five minutes, 

walk one-half block, bend or twist “sometimes,” and lift only five pounds. (Id.). He also 

asserted that he has difficulty with putting his belt through its loops. (Tr. 62). 

With regard to his mental conditions, Sharrard asserted that his bipolar and general 

anxiety disorders make him feel “[c]razy,” and that the medications he takes for those 

conditions make him feel drowsy, and occasionally emotional. (Tr. 60-61). He also asserted 

that he feels anxious around others. (Tr. 62). 

C. The VE’s Testimony at the Administrative Hearing

The ALJ did not consider whether Sharrard could perform any of his past relevant work 

because he did not perform any work between the date of his prior, rejected application for 

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disability benefits, and his instant application. (Tr. 63). The ALJ then asked the VE to consider 

whether a hypothetical worker, who has the same education, age, and past work experience as 

Sharrard, could perform competitive work. (Tr. 64). Specifically, the ALJ asked the VE to 

hypothesize a person who has the ability to perform light work, and who is limited in the 

following manner:

[H]e can lift and carry up to 20 pounds occasionally and 10 pounds 

frequently. He can stand and walk for six out of eight hours. He can sit for 

six of eight hours, but he needs the opportunity to alternate between sitting 

and standing as necessary. He can work in any environment, but he must 

not be exposed to hazards, such as heavy machinery and vibration, and 

mentally he can perform simple, unskilled work with only occasional 

interaction with the general public and coworkers. In addition to that, 

physically he must avoid environments with pulmonary irritants, which 

would be dust, fumes, odors, and he can occasionally climb stairs and 

crouch and crawl and kneel and stoop and bend, but I wouldn’t want him to 

be exposed to other work place hazards, such as climbing ladders and 

unprotected heights. As the evidence indicates he can frequently use his 

right upper extremity, which is his dominant extremity, for fingering and 

feeling, but only occasionally grasping or gross manipulation, and he can 

frequently use his right lower extremity for foot controls. 

(Tr. 64). The VE found that such a hypothetical worker could work as an inspector (3,000 jobs 

in the Lower Peninsula of Michigan), visual inspector (2,000 jobs), and sorter (2,000 jobs). (Tr. 

65). The ALJ then asked whether, if limited to work at the sedentary level of exertion in 

addition to the aforementioned hypothetical limitations, a worker could maintain competitive 

employment; the VE testified that such a worker could still work as a surveillance systems 

monitor (2,000 jobs) or inspector (2,200 jobs). (Tr. 65-66). The VE also confirmed that each of 

these positions is simple, routine, and repetitive, and that none of the jobs would require more 

than occasional writing with the right upper extremity. (Tr. 66). The ALJ also asked whether a 

worker who is off task for more than twenty percent of the day could maintain competitive 

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employment; the VE testified that such a restriction would prohibit all work. (Id.). Further, the 

ALJ asked whether a hypothetical claimant who missed more than one day a month on a 

recurring basis could maintain competitive employment; the VE testified that employers “will 

accept no more than one absence per month and no more than a total of eight absences in a 12-

month period of time.” (Tr. 66-67). Finally, the VE testified that if the ALJ adopted all of 

Sharrard’s asserted limitations, he could not perform competitive work, because of his asserted 

need to lie down and inability to leave home twice weekly due to gastrointestinal problems. 

(Tr. 67). 

F. Governing Law

The ALJ must “consider all evidence” in the record when making a disability decision. 

42 U.S.C. § 423(d)(5)(B). The regulations carve the evidence into various categories, 

“acceptable medical sources” and “other sources.” 20 C.F.R. § 404.1513. “Acceptable medical 

sources” include, among others, licensed physicians and licensed or certified psychologists. Id. 

§ 404.1513(a). “Other sources” include medical sources who are not “acceptable” and almost 

any other individual able to provide relevant evidence. Id. § 404.1513(d). Only “acceptable 

medical sources” can establish the existence of an impairment. SSR 06-03p, 2006 WL 

2329939, at *2. Both “acceptable” and non-acceptable sources provide evidence to the 

Commissioner, often in the form of opinions “about the nature and severity of an individual’s 

impairment(s), including symptoms, diagnosis and prognosis, what the individual can still do 

despite the impairment(s), and physical and mental restrictions.” Id. at *2. When “acceptable 

medical sources” issue such opinions, the regulations deem the statements to be “medical 

opinions” subject to a multi-factor test that weighs their value. 20 C.F.R. § 404.1527. Excluded 

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from the definition of “medical opinions” are various decisions reserved to the Commissioner, 

such as whether the claimant meets the statutory definition of disability and how to measure 

his or her residual functional capacity. Id. at 404.1527(d). 

The ALJ must use a six-factor balancing test to determine the probative value of 

medical opinions from acceptable sources. 20 C.F.R. § 404.1527(c). The test looks at whether 

the source examined the claimant, “the length of the treatment relationship and the frequency 

of examination, the nature and extent of the treatment relationship, supportability of the 

opinion, consistency of the opinion with the record as a whole, and specialization of the 

treating source.” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). See also 20 

C.F.R. § 404.1527(c). ALJs must also apply those factors to “other source” opinions. See 

Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 540-42 (6th Cir. 2007); SSR 06-3p, 2006 WL 

2329939, at *2.

Certain opinions of a treating physician, in contrast, receive controlling weight if they 

are “well-supported by medically acceptable clinical and laboratory diagnostic techniques” and 

are “not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. § 

404.1527(d)(2). See also Wilson, 378 F.3d at 544. The only opinions entitled to dispositive 

effect deal with the nature and severity of the claimant’s impairments. 20 C.F.R. § 

404.1527(d); SSR 96-2p, 1996 WL 374188, at *1-2. Therefore, the ALJ does not owe a 

treating opinion deference on matters reserved to the Commissioner. 20 C.F.R. § 404.1527(d); 

SSR 96-2p, 1996 WL 374188, at *1-2. The ALJ “will not give any special significance to the 

source of an opinion” regarding whether a person is disabled or unable to work, whether an 

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impairment meets or equals a Listing, the individual’s RFC, and the application of vocational 

factors. 20 C.F.R. § 404.1527(d)(3). 

The regulations mandate that the ALJ provide “good reasons” for the weight assigned to 

the treating source’s opinion in the written determination. 20 C.F.R. § 404.1527(c)(2). See also 

Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 875 (6th Cir. 2007). Therefore, a decision denying 

benefits

must contain specific reasons for the weight given to the treating source’s 

medical opinion, supported by the evidence in the case record, and must be 

sufficiently specific to make clear to any subsequent reviewers the weight the 

adjudicator gave to the treating source’s opinion and the reasons for that 

weight. 

SSR 96-2p, 1996 WL 374188, at *5 (1996). See also Rogers, 486 F.3d at 242. For example, an 

ALJ may properly reject a treating source opinion if it lacks supporting objective evidence. 

Revels v. Sec. of Health & Human Servs, 882 F. Supp. 637, 640-41 (E.D. Mich. 1994), aff’d, 

51 F.3d 273, 1995 WL 138930, at *1 (6th Cir. 1995) (unpublished table decision).

An ALJ must analyze the credibility of the claimant, considering the claimant’s 

statements about pain or other symptoms with the rest of the relevant evidence in the record 

and factors outlined in Social Security Ruling 96-7p. Credibility determinations regarding a 

claimant’s subjective complaints rest with the ALJ. See Siterlet v. Sec’y of Health & Human 

Servs., 823 F.2d 918, 920 (6th Cir. 1987). Generally, an ALJ’s credibility assessment can be 

disturbed only for a “compelling reason.” Sims v. Comm’r of Soc. Sec., No. 09-5773, 2011 WL 

180789, at *4 (6th Cir. Jan. 19, 2011) (citing Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 

2001)); Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004). 

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The Social Security regulations establish a two-step process for evaluating subjective 

symptoms, including pain. 20 C.F.R. § 404.1529; SSR 96-7p, 1996 WL 374186, at *2. The 

ALJ evaluates complaints of disabling pain by confirming that objective medical evidence of 

the underlying condition exists. The ALJ then determines whether that condition could 

reasonably be expected to produce the alleged pain or whether other objective evidence 

verifies the severity of the pain. See 20 C.F.R. § 404.1529; SSR 96-7p, 1996 WL 374186, at 

*2; Stanley v. Sec’y of Health & Human Servs., 39 F.3d 115, 117 (6th Cir. 1994). The ALJ 

ascertains the extent of the work-related limitations by determining the intensity, persistence, 

and limiting effects of the claimant’s symptoms. SSR 96-7p, 1996 WL 374186, at *2. 

While “objective evidence of the pain itself” is not required, Duncan v. Sec’y of Health 

& Human Servs., 801 F.2d 847, 853 (6th Cir. 1986) (quotation omitted), a claimant’s 

description of his physical or mental impairments alone is “not enough to establish the 

existence of a physical or mental impairment,” 20 C.F.R. § 404.1528(a). Nonetheless, the ALJ 

may not disregard the claimant’s subjective complaints about the severity and persistence of 

the pain simply because they lack substantiating objective evidence. SSR 96-7p, 1996 WL 

374186, at *1. Instead, the absence of objective confirming evidence forces the ALJ to 

consider the following factors:

(i) [D]aily activities;

(ii) The location, duration, frequency, and intensity of . . . pain;

(iii) Precipitating and aggravating factors;

(iv) The type, dosage, effectiveness, and side effects of any medication . . . 

taken to alleviate . . . pain or other symptoms;

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(v) Treatment, other than medication, . . . received for relief of . . . pain;

(vi) Any measures . . . used to relieve . . . pain.

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); SSR 96-7p, 1996 WL 374186, at *3. Furthermore, the claimant’s work history 

and the consistency of his or her subjective statements are also relevant. 20 C.F.R. § 

404.1527(c); SSR 96-7p, 1996 WL 374186, at *5.

The claimant must provide evidence establishing her RFC. The statute lays the 

groundwork for this, stating, “An individual shall not be considered to be under a disability 

unless he [or she] furnishes such medical and other evidence of the existence thereof as the 

Secretary may require.” 42 U.S.C. § 423(d)(5)(A). See also Bowen, 482 U.S. at 146 n.5. The 

RFC “is the most he [or she] can still do despite his [or her] limitations,” and is measured using 

“all the relevant evidence in [the] case record.” 20 C.F.R. § 404.1545(a)(2). A hypothetical 

question to the VE is valid if it includes all credible limitations developed prior to Step Five. 

Casey v. Sec. of Health & Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993); Donald v. 

Comm’r of Soc. Sec., No. 08-14784-BC, 2009 WL 4730453, at *7 (E.D. Mich. Dec. 9, 2009).

G. Analysis 

Sharrard argues that the ALJ committed reversible error in the following ways: (1)

failing to discuss the objective medical evidence in any way; (2) rejecting the opinions of Drs. 

Belen, Hines, and Kremer in violation of the Treating Physician rule, (3) failing to consider 

whether Sharrard was capable of a competitive work schedule; (4) failing to incorporate 

Sharrard’s well supported limitations into her RFC assessment. The Court will address these 

arguments in turn. 

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1. The ALJ Properly Discussed Objective Medical Evidence 

Sharrard first argues that the ALJ “does not give any rationale for her decision, only 

conclusory statements. There is no discussion of the objective medical evidence . . . no 

discussion of the factual basis for the decision, and not a single discussion in the decision of 

special factors such as medication side effects, fatigue, and restrictive lung disease.” (Doc. 12 

at 11). Curiously, Sharrard does not point to any particular piece of objective medical evidence 

which the ALJ failed to discuss, but rather simply makes a sweeping assertion that the ALJ did 

not discuss any objective medical evidence. A reading of the ALJ’s opinion quickly dispels 

this misapprehension. The ALJ properly discussed numerous pieces of objective medical 

evidence, including normal findings during January and February 2013 physical examinations

(Tr. 29-30), the results of pulmonary function studies (Tr. 30), and observations made by 

physicians regarding Sharrard’s mental status (Tr. 30-32). While the ALJ did not cite to every 

piece of objective medical evidence, an “ALJ can consider all of the evidence without directly 

addressing in his written decision every piece of evidence submitted by a party.” Korneck v. 

Comm’r of Soc. Sec., 167 F. App’x 496, 508 (6th Cir.2006) (internal quotations omitted). 

2. The ALJ Did Not Violate the Treating Physician Rule

Sharrard next argues that the ALJ erred by “dismiss[ing] the treating physician opinions 

of Dr. Belen, D.O., Dr. Hines, M.D., and treating Psychiatrist Dr. Kremer, D.O., but noticeably 

never states anything substantial in which to substantiate a rejection of all the treating 

physicians.” (Doc. 12 at 11). 

With regard to Dr. Hines, Sharrard argues that the ALJ “outright rejects Dr. Hines 

simply because she could only count four office visits.” (Doc. 12 at 12). Dr. Hines treated 

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Sharrard four times in 2011, in the months of May, June, July and October. (Tr. 286-92). Dr. 

Hines’s May 7, 2011, RFC assessment limits Sharrard to lifting ten pounds occasionally, 

standing or walking for less than two hours, and sitting for less than six hours daily. (Tr. 239). 

Notably, this assessment appears to have been drafted prior to Dr. Hines’s treatment of 

Sharrard, which began on May 18, 2011. (Tr. 292). This fact alone is sufficient to render Dr. 

Hines a non-treating physician for purposes of his RFC assessment. See Kornecky, 167 F. 

App’x at 506 (“The question is whether [the physician] had the ongoing relationship with [the 

claimant] to qualify as a treating physician at the time he rendered his opinion.”) 

Further, Sharrard’s visits with Dr. Hines were fairly limited in scope: his May 18, 2011, 

visit appears to have been focused on refilling prescriptions (Tr. 292); his June 21, 2011, visit 

reflected prior complaints of chest pain, but did not include any assessment or treatment plan 

(Tr. 290-91); his July 27, 2011, visit was primarily focused on a non-severe, temporary rash 

(Tr. 288-98); and his October 20, 2011, visit again focused on prescription refills and 

discussing test results (Tr. 286-87). Even if Dr. Hines drafted his RFC assessment in the light 

of these visits, his treatment sessions with Sharrard were so limited in number and scope of 

ailments treated as to render him a non-treating source. See Helm v. Comm’r of Soc. Sec., 405 

F. App’x 997, 1001 n. 3 (6th Circ. 2011) (“[I]t is questionable whether a physician who 

examines a patient only three times over a four-month period is a treating source”); Jackson v. 

Comm’r of Soc. Sec., No. 1:10-CV-1163, 2012 WL 1029261, at *9 (W.D. Mich. Mar. 26, 

2012) (finding that a treating physician’s opinion was not due its customary deference because 

the claimant treated with that physician only four times over two months, and because the 

physician’s assessment was inconsistent with other medical evidence); Meadows v. Comm’r of 

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Soc. Sec., No. 1:07CV1010, 2008 WL 4911243, at *14 (S.D. Ohio Nov. 13, 2008) (finding that 

an ALJ appropriately rejected a treating physician’s opinion when the claimant was treated 

only nine times, and for a limited set of ailments which were not severe impairments). 

Sharrard similarly argues that the ALJ erred in rejecting the opinion of Dr. Belen 

“because the ALJ stepping into the role of doctor determined that Plaintiff was no longer 

suicidal and had normal thought process [sic].” (Doc. 12 at 12). Sharrard further asserts that the 

ALJ “seems to take one or two lines throughout the voluminous medical records and runs with 

them . . . [t]here is absolutely no attempt to evaluate the medical records as a whole to make a 

reasoned decision.” (Id.). Sharrard points to sections of the record which he suggests 

undermine the ALJ’s decision, including complaints of being “anxious, severely depressed, 

racing thoughts, and suicidal [tendencies],” along with “‘dry runs’ of hanging himself.” (Id.).

However, given that Dr. Belen did not examine Sharrard’s mental health, this assertion seems 

out of place. Sharrard also rather sharply alleges that “[t]here is not a scintilla of evidence to 

support this decision. The treating source opinion is not weighed nor discussed at all in the 

decision.” (Doc. 12 at 13).

Dr. Belen’s findings derive from two examinations. On November 16, 2011, Belen 

evaluated Sharrard’s abnormal spirometry, finding that that his physical condition was 

generally normal, and that he experienced a moderate restrictive breathing defect with normal 

diffusing capacity, likely resulting from prior open heart surgery. (Tr. 361-62). Dr. Belen also 

noted that Sharrard was disabled on that date. (Tr. 362). Dr. Belen’s April 30, 2012, 

examination revealed some dyspnea upon exertion; Dr. Belen also noted Sharrard’s history of 

HIV, hypertension, and patent foramen ovule. (Doc. 359-60). 

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In her decision, the ALJ noted that Dr. Belen did not provide “any objective findings” to 

support his finding. (Tr. 31). While Dr. Belen does in fact cite objective evidence in his 

treatment notes, including Sharrard’s blood pressure, heart rate, and respiratory rate (Tr. 359-

62), he did not reference objective evidence sufficient to justify his assertion that Sharrard was 

disabled. Moreover, the ALJ does not owe any deference to a physician’s opinion that a 

claimant is disabled, because this decision is reserved to the Commissioner. Gentry v. Comm’r 

of Soc. Sec., 741 F.3d 708, 727 (6th Cir. 2014). Dr. Belen did not establish an RFC assessment 

or any other set of limitations for Sharrard, and like Dr. Hines, Dr. Belen’s treatment of 

Sharrard is too scant to constitute the opinion of a treating physician. See Helm, 405 F. App’x 

at 1001 n.3. To whatever extent Sharrard might be viewed as arguing that the ALJ did not 

properly consider the necessary factors in assigning weight to Dr. Belen’s opinion (e.g. length 

of treatment, supportability, consistency), the ALJ was obligated only to consider those factors, 

not to explicitly discuss each of them, Burbo v. Comm’r of Soc. Sec., 877 F. Supp. 2d 526, 541 

(E.D. Mich. 2012), and her assertion that “the undersigned has also considered opinion 

evidence in accordance with the requirements of 20 C.F.R. 416.927 and SSRs 96-2p, 96-5p, 

96-6p and 06-3p” satisfies this requirement (Tr. 28). 

With regard to Dr. Kremer, Sharrard does not explicitly describe how the ALJ erred in 

her consideration of that physician’s findings, but it appears that his critique of the ALJ’s 

treatment of Dr. Belen, who primarily examined Sharrard’s physical condition, was in fact 

directed at Dr. Kremer, who primarily analyzed Sharrard’s mental state. (Doc. 12 at 11).The 

ALJ does not discuss the weight given to Dr. Kremer’s findings, which are referenced only 

once in the decision, and even then not by name. (Tr. 30). If Dr. Kremer was a treating 

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physician who rendered an opinion about Sharrard’s mental health, the ALJ’s failure to discuss 

the weight given to that opinion would likely constitute reversible error. Wilson, 378 F.3d at

547. However, there are serious questions about whether a physician who treats a patient only 

four times, for the purpose of reviewing medication, can be considered a treating physician. 

See Helm, 405 F. App’x at 1001 n.3; Meadows, 2008 WL 4911243, at *14. 

Furthermore, Dr. Kremer’s findings do not contain a medical opinion to which 

deference could be given. Instead, her treatment notes merely record Sharrard’s subjective 

complaints (see, e.g., Tr. 295, 304, 313, 555), include check-the-box observations about 

Sharrard’s mental status (Tr. 296-97, 304-05, 312-13, 322-23), and (on two occasions) assess a 

GAF score (Tr. 308, 317). Dr. Kremer did not, for instance, draft a detailed assessment of 

activities which would be limited by Sharrard’s mental illnesses, thus her notes do not 

constitute a medical opinion, relieving the ALJ of the duty to assign a particular weight to 

those findings. See 20 C.F.R. §§ 404.1527, 416.927(a)(2) (“Medical opinions are statements 

from physicians and psychologists or other acceptable medical sources that reflect judgments 

about the nature and severity of your impairment(s), including your symptoms, diagnosis and 

prognosis, what you can still do despite impairment(s), and your physical or mental 

restrictions.”); Winter v. Comm’r of Soc. Sec., No. 12-11962, 2013 WL 4604782, at *9 (E.D. 

Mich. Aug. 29, 2013) (“But Dr. Scaddan never opined on what he believed Winter could still 

do in view of her symptoms; in other words, he offered no opinion on his patient's ability to 

function.”); Arnold v. Astrue, No. 2:10-CV-013, 2010 WL 5812957, at *7 (S.D. Ohio Oct. 7, 

2010) (finding that an ALJ did not err by failing to give any weight to a psychologist’s 

treatment notes and GAF score because such findings did not constitute “an actual opinion”). 

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The ALJ thus did not violate the treating physician rule with regard to Drs. Hines, Belen, or 

Kremer, because those physicians were not treating physicians. Further, ALJ adequately 

discussed the opinions of Drs. Hines and Belen, and his failure to discuss Dr. Kremer’s 

findings in detail is irrelevant because those notes do not contain a medical opinion. 

3. The ALJ Did not Err by Failing to Specifically Assess Sharrard’s Ability 

to Perform a Competitive Work Schedule

Next, Sharrard argues that the ALJ erred by failing to “evaluate whether based on 

claimant’s combined physical and mental limitations [he] is capable of a competitive work 

schedule i.e., 8 hour day, 40 hour work week.” This contention is without merit because an 

RFC assessment by definition incorporates the ability of a claimant to perform work on a 

sustained basis. See SSR 96–9p (“RFC is the individual's maximum remaining ability to 

perform sustained work on a regular and continuing basis; i.e., 8 hours a day, for 5 days a 

week, or an equivalent work schedule.”). The ALJ was thus not required to make a specific 

finding that Sharrard could perform a competitive work schedule.

4. The ALJ Properly Included All of Sharrard’s Well Supported Limitations 

in Her RFC Assessment

While Sharrard’s argument is somewhat disjointed, it appears that he also intends to 

argue that the ALJ erred by failing to include several of his well-supported limitations in her

RFC assessment. Sharrard variously asserts that the ALJ did not discuss “special factors such 

as medication side effects, fatigue, and restrictive lung disease” (Doc. 12 at 11), 

mischaracterized evidence which shows that he remains suicidal and mentally abnormal (Id. at 

12), failed to adequately support her RFC assessment by reference to objective medical 

evidence (Id. at 15), failed to discuss his need to lie down, his concentration problems, severe 

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fatigue, severe diarrhea, muscle aches, and pain issues (Id. at 16).10 Sharrard’s allegation that 

the ALJ failed to discuss his subjective complaints is simply without merit. The ALJ 

specifically mentioned and considered Sharrard’s complaints of “lightheadedness, shortness of 

breath, racing thoughts, and depression,” along with his “difficulty sleeping through the night 

due to pain.” (Tr. 29). Further, the ALJ mentioned his asserted need to nap during the day, 

headaches, emotional issues, and side-effects including feeling “crazy” or “high,” difficulty 

paying attention, and drowsiness. (Id.). The ALJ also specifically discussed Sharrard’s asserted 

activities of daily living, and asserted physical and mental limitations as enumerated in his 

testimony and function report. (Id.). 

The ALJ compared Sharrard’s asserted subjective symptoms to his “longitudinal 

medical history,” and found that it “fail[ed] to provide strong support for his allegations of 

disabling symptoms and limitations.” (Tr. 29). With regard to physical health, the ALJ noted 

that Sharrard showed excellent response to his HIV treatment (id., Tr. 475), that his diarrhea 

symptoms had resolved in the most recent medical records (id., Tr. 495), and that treatment 

notes from Dr. Belen are scant, and do not establish any physical limitations resulting from 

Sharrard’s lung disorder (Tr. 30). Regarding Sharrard’s mental health, the ALJ noted that he 

received regular therapy and treatment for bipolar disorder and generalized anxiety disorder, 

but also recognized that Sharrard’s latter mental status exams showed some anxiousness and 

depression, but with “generally normal speech, attention and concentration, impulse control, 

 10 Sharrard also makes a single-sentence reference to the ALJ’s decision is “so lacking in discussion or 

rationale [that] it is a violation of Plaintiff’s due process.” (Doc. 12 at 17). This argument is 

undeveloped and perfunctory, and is thus waived. See Brewer v. Comm’r of Soc. Sec., No. 13-14409, 

2014 WL 6632176, at *13 (E.D. Mich. Nov. 21, 2014). 

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and judgment,” and that recent treatment notes showed “no suicidal ideation and . . . normal 

thought process and content.” (Tr. 30-31, 357-58, 619). 

That Sharrard does not point to specific pieces of medical evidence inconsistent with 

this assessment is a testament to the accuracy of the ALJ’s characterization of the medical 

evidence. The ALJ cannot be faulted for failing to consider medical records establish the 

disabling status of Sharrard’s suicidal intent, fatigue, diarrhea, lung disorder, concentration 

problems, or emotional instability when no such records exist. Further, the ALJ actually 

established a more restrictive RFC assessment than that suggested by the state agency medical 

and psychological consultants, finding that Sharrard’s anxiety and bipolar disorders cause 

moderate difficulties in social functioning and in terms of concentration, persistence, or pace, 

and establishing a fairly lengthy set of non-exertional limitations. (Tr. 28, 32).11

Thus, the ALJ properly discussed Sharrard’s objective medical evidence, adequately 

addressed the opinions of Drs. Belen, Hines, and Kremer, properly considered whether 

Sharrard could complete a competitive work schedule, and properly discussed and incorporated 

Sharrard’s well supported limitations into the RFC assessment. 

H. Conclusion

For the reasons stated above, the Court RECOMMENDS that Sharrard’s Motion for 

Summary Judgment (Doc. 12) be DENIED, the Commissioner’s Motion (Doc. 14) be 

GRANTED, and that this case be AFFIRMED. 

 11 Sharrard make a second, single-sentence argument that “once a limitation is found, the ALJ is 

required to include such limitations in the RFC and discuss how those limitations affect the ability of 

Plaintiff to perform sustained work. The ALJ utterly failed to do so in his [sic] decision.” (Doc. 12 at 

16). Insofar as Sharrard intends to argue that there was a mismatch between the ALJ’s hypothetical 

questions to the VE and the RFC she ultimately drafted in her decision, a quick examination of both 

confirms that they contain the same limitations. (Tr. 28, 64). 

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III. REVIEW

Pursuant to Rule 72(b)(2) of the Federal Rules of Civil Procedure, “[w]ithin 14 days 

after being served with a copy of the recommended disposition, a party may serve and file 

specific written objections to the proposed findings and recommendations. A party may 

respond to another party’s objections within 14 days after being served with a copy.” Fed. R. 

Civ. P. 72(b)(2). See also 28 U.S.C. § 636(b)(1). Failure to file specific objections constitutes a 

waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed.2d 

435 (1985); Howard v. Sec’y of Health & Human Servs., 932 F.2d 505 (6th Cir. 1991); United 

States v. Walters, 638 F.2d 947 (6th Cir. 1981). The parties are advised that making some 

objections, but failing to raise others, will not preserve all the objections a party may have to 

this Report and Recommendation. Willis v. Sec’y of Health & 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 E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served 

upon this magistrate judge. 

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

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Date: July 31, 2015 S/ PATRICIA T. MORRIS

Patricia T. Morris

United States Magistrate Judge

CERTIFICATION

I hereby certify that the foregoing document was electronically filed this date through 

the Court’s CM/ECF system which delivers a copy to all counsel of record. 

Date: July 31, 2015 By s/Kristen Krawczyk 

 Case Manager to Magistrate Judge Morris

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