UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

WANDA JEAN BICKERSTAFF,

 Plaintiff, 

v. 

COMMISSIONER OF SOCIAL 

SECURITY, 

 Defendant. 

 

Case No. 2:15-cv-10917 

District Judge David M. Lawson 

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, Wanda Jean Bickerstaff, 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 applications for disability insurance 

benefits and supplemental security income. This matter is before the United States 

Magistrate Judge for a Report and Recommendation on Plaintiff’s motion for 

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summary judgment (DE 13), the Commissioner’s memorandum in opposition and 

cross motion for summary judgment (DE 17), and the administrative record (DE 

11). 

A. Background 

 Plaintiff protectively filed her applications for benefits on December 7, 

2011, alleging that she has been disabled since November 1, 2009. (R. at 271.) 

Plaintiff’s applications were denied and she sought a de novo hearing before an 

Administrative Law Judge (“ALJ”). ALJ Henry Perez Jr., held a hearing on July 

17, 2013. (R. at 92-119.) He subsequently determined that Plaintiff was not 

disabled within the meaning of the Social Security Act. (R. at 71-86.) On January 

30, 2015, the Appeals Council denied Plaintiff’s request for review. (R. at 1-4.) 

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

timely commenced the instant action. 

B. Plaintiff’s Medical History 

 1. Physical Health 

 On September 4, 2008, Plaintiff presented to neurologist Vaqar K. Siddiqui, 

M.D., with complaints of severe back pain, neck pain, pain in the right side, right 

chest pain, shoulder pain, and right leg pain following her August 27, 2008 motor 

vehicle crash. (R. at 514.) Dr. Siddiqui advised Plaintiff to go to the emergency 

room—although it is not apparent from the record that she did—and to attend 

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physical therapy. Of particular note, Dr. Siddiqui pointed out that her memory 

problems and headaches could indicate a closed head injury. (R. at 515.) Plaintiff 

followed up with Dr. Siddiqui approximately every month until January 12, 2010. 

(R. at 504-513.) At her final appointment, Plaintiff reported worsening symptoms 

of back pain and difficulty walking. Upon examination, Dr. Siddiqui found her to 

be somewhat depressed, but with good memory, and with no clear weakness in her 

legs. He also noted that she walked without support. (R. at 504.) He advised her 

to see a psychiatrist, noting that her headaches were related to depression, anxiety, 

and stress. (Id.) Plaintiff underwent physical therapy from February 2, 2008 

through March 23, 2010. (R. at 488-490.) 

 Plaintiff was involved in another motor vehicle crash on November 14, 

2011. (R. at 350.) She presented to the Botsford Hospital with complaints of 

headache, neck, and lower back pain. An x-ray of her wrist revealed no evidence 

of fracture, subluxation, or dislocation. (R. at 353.) An MRI of her left shoulder 

was unremarkable. (R. at 355.) 

 Plaintiff began treatment with family practitioner, Dr. Susan Rice, on 

January 6, 2012, complaining of pain in her back and hip. (R. at 442.) On March 

16, 2012, Plaintiff underwent a consultative examination with Cynthia ShelbyLane, M.D. (R. at 368-375.) Dr. Shelby-Lane described Plaintiff as alert and 

oriented, dressed appropriately, and noted that she “answered questions very well.” 

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(R. at 369.) Dr. Lane assessed Plaintiff as having chronic back pain, chronic 

headaches, and depression. (R. at 370.) 

 Dr. Rice completed a Medical Needs form for the State of Michigan on 

April 17, 2012, in which she explained that Plaintiff suffered from a closed head 

injury, chronic back pain, anxiety disorder, and hypertension. (R. at 377.) She 

opined that Plaintiff was precluded from her past employment and other 

employment for at least two years. 

 Throughout her treatment, Dr. Rice noted that Plaintiff had difficulty driving 

due to pain and anxiety, had trouble finishing sentences due to a possible closedhead injury, and indicated that Plaintiff’s shoulder was getting worse. (R. at 447.) 

She filled out a Medical Examination report for the state on February 1, 2013, 

noting that Plaintiff’s condition was deteriorating. (R. at 387.) On June 28, 2013, 

Dr. Rice opined that Plaintiff could sit for less than 45 minutes, stand for less than 

30 minutes, stand and walk less than two hours per day, and would need eight to 

ten unscheduled breaks during a workday. (R. at 482-83.) 

 Dr. Rice referred Plaintiff to Stephen Hyman, M.D., for rehabilitation 

beginning on March 5, 2012. (R. at 416-18.) Dr. Hyman prescribed a TENS unit1

 

1

 A Transcutaneous Electrical Nerve Stimulation Unit (“TENS Unit”) is a device 

that produces an electric current to stimulate the nerves and reduce pain. 

Transcutaneous electrical nerve stimulation (TENS) for chronic pain, Nat’l 

Library of Med., http://www.ncbi.nlm.nih.gov/pubmed/11687055 (last visited 

April 30, 2015). 

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and performed sacroiliac injections, which Plaintiff found “somewhat helpful.” (R. 

at 413, 415, and 418.) On April 2, 2012, Dr. Hyman opined that Plaintiff was 

unable to work. (R. at 381.) On August 13, 2012, his notes indicate a 40% 

improvement since the last injection, noting that Plaintiff was “very pleased with 

progress.” (R. at 412.) Plaintiff then underwent a rhizotmy and experienced “a 

little bit of improvement.” (R. at 408.) On July 7, 2013, Dr. Hyman opined that 

Plaintiff should be limited to sitting for less than thirty minutes, standing for less 

than thirty minutes, and requiring unscheduled breaks. (R. at 494-95.) 

 2. Mental Health 

 Plaintiff saw Dr. Stephanie Stevenson on November 17, 2011. (R. at 343.) 

Dr. Stevenson diagnosed her with major depressive disorder and anxiety disorder, 

and assessed a GAF score of 50.2

 (Id.) Her GAF improved to 55 on September 17, 

 

2

 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. A GAF 

score of 51-60 was indicative of 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 coworkers). Id. A GAF score of 61-70 was indicative of “mild symptoms (e.g. 

depressed mood and mild insomnia) or some difficulty in social, occupational, or 

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2011. (R. at 347.) Plaintiff was prescribed Buspar and Ativan on November 7, 

2011. (R. at 396.) On October 1, 2012, her GAF was assessed as 68. (R. at 404.) 

On March 13, 2013, Plaintiff reported to Dr. Stevenson that she was “feeling 

better,” and had no problems with her current medication regimen. (R. at 401.) 

 Plaintiff underwent a mental status examination on March 16, 2012. She 

was described as cooperative, in touch with reality, and “did not appear to be 

exaggerating her symptoms.” (R. at 363.) Her mental activity was described as 

logical, goal directed, and organized. (Id.) Her GAF was assessed as 60 and she 

was diagnosed with grief bereavement disorder relating to the death of her 

daughter in 2010 and the ongoing anxiety of dealing with her special needs son. 

(R. at 364.) 

 On August 27, 2012, Plaintiff’s primary care physician Dr. Rice, wrote a 

letter describing Plaintiff’s recent difficulty in “expressing herself, remembering 

details and making decisions.” (R. at 384.) She noted that Plaintiff had been 

“greatly changed” by her 2008 motor vehicle crash, as compared to her high level 

of mental functioning from 2006 through 2008. 

 

school functioning (e.g., occasional truancy, or theft within the household), but 

generally functioning pretty well, has some meaningful interpersonal 

relationships.” Id. 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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 C. Hearing Testimony 

 1. Plaintiff’s Testimony 

 At the July 17, 2013 administrative hearing, Plaintiff testified that she 

completed high school through the tenth grade and went on to achieve her CNA 

certification. (R. at 96.) She worked as a CNA from around 1990 until she was 

involved in a motor vehicle crash in 2008. Specifically, she was employed as a 

direct care worker, which involved “bathing people, transporting people in and out 

of bed, medication, doing their laundry . . . taking them to doctor visits, doing 

physical therapy, range of motion.” (R. at 97.) 

 Plaintiff testified that she was injured in an August 2008 motor vehicle 

crash, in which her car was hit by a pickup truck, causing the airbags to deploy. 

(R. at 98.) As a result, she claims that she injured her head, neck, back, and 

shoulder, for which she needed a rotator cuff replacement. She testified that these 

injuries remained problems at the time of the hearing, singling out her back pain as 

the most “disabling.” (R. at 98-99.) She indicated that the pain “goes down my 

leg” and that physical therapy, rhizotomy, and epidural injections were not helpful. 

(R. at 99.) She further testified that her neck also still bothered her and caused 

headaches, but that a neck brace was unhelpful. (R. at 99-100.) 

 Plaintiff sought psychiatric treatment after her daughter was tragically killed 

in 2010. (R. at 102.) Plaintiff testified that she had trouble concentrating. (R. at 

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109.) Plaintiff was involved in another motor vehicle crash in 2011. (R. at 101.) 

She testified that she fractured her hand during this second accident, for which she 

needed a cast and treatment with Vicodin and Tramadol. Plaintiff indicated that 

she still had trouble using the hand repeatedly. (R. at 112.) 

 Plaintiff testified that her treating physicians have limited her to lifting only 

ten pounds and under, and that she could only lift about four or five pounds. (R. at 

103.) She stated that she could sit for thirty minutes without standing, stand for 

twenty minutes without sitting, and could only walk for ten to fifteen minutes with 

the assistance of a four-pronged cane prescribed for her by her doctor. (R. at 104-

105.) Plaintiff also testified to having high blood pressure and migraines. (Id., R. 

at 110.) 

 Plaintiff testified that she takes pain and psychiatric medications, which 

make her groggy, tired, and forgetful. (R. at 106-107.) On a typical day, she 

indicated that she awakes at 6:30 am to get her fourteen year old son ready for 

school, after which she lies down again. (R. at 107.) Plaintiff testified that her son 

has special needs resulting from the car accident, and that she gets help from her 

friend Alicia for day-to-day chores and care of her son. (R. at 108.) Plaintiff 

testified that she does very light cooking, does not do laundry, and accompanies 

Alicia when she goes grocery shopping. (R. at 109.) According to Plaintiff, on a 

“bad day” she just stays in the house and uses her TENS Unit, but she has to lie 

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down for a few hours even on good days. (R. at 111-12.) She indicated that her 

pain rates an eight or nine out of ten without medication, and rates a seven with 

medication. (R. at 112.) 

 2. Vocational Expert Testimony

 Dr. Lois Brooks testified as the Vocational Expert (“VE”) at the 

administrative hearing. (R. at 114-118.) The VE identified Plaintiff’s past relevant 

work as semi-skilled and medium with no transferrable skills. (R. at 115.) The 

ALJ then presented a series of hypotheticals to the VE. In the first hypothetical, 

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

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

unskilled level with the following limitations: 

[A]ssume that such a person has an exertion limitation, lifting 20 

pounds occasionally, 10 pounds frequently, sitting, standing walking 

six hours. There’s a frequent reaching overhead. There’s occasional 

climbing ladders, ropes and scaffolds, occasional stooping. There’s 

frequent climbing ramps, frequent climbing ramps and stairs, frequent 

balancing, frequent crouching, kneeling and crawling. Also, we’re 

looking at jobs that would provide for routine production of stress, 

and simple job assignments. 

(R. at 115.) The VE testified that the hypothetical individual could not perform 

Plaintiff’s past relevant work. (Id.) However, according to the VE, the 

hypothetical individual could perform the following light, unskilled jobs: assembly 

jobs, with 11,000 in Southeast Michigan, visual inspection sorting jobs, with 3,000 

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in Southeast Michigan, and packaging jobs, with 6,500 in Southeast Michigan. (R. 

at 116.) 

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

hypothetical individual could perform the above-mentioned positions if he or she 

was limited to lifting less than ten pounds occasionally, standing, sitting, and 

walking for less than two hours each with a sit/stand option at will. (R. at 116.) 

The hypothetical individual would need a period to walk around every hour and 

would need unscheduled breaks 8-10 times for 10-15 minutes. Finally, the person 

would be precluded from climbing ladders or crouching, and could climb stairs, 

twist, and stoop only rarely. (R. at 116-17.) Finally, the job must provide for 

routine production of stress and simple job assignments. The VE testified that 

such a restriction would be work preclusive because the RFC was less than eight 

hours. (R. at 117.) 

 Finally, upon questioning from Plaintiff’s counsel, the VE testified that 

employers tolerate a maximum of two missed days per month and that being off 

task for more than ten percent of the time is work preclusive. (R. at 118.) 

 

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 D. THE ADMINISTRATIVE DECISION

 On August 26, 2013, the ALJ issued his decision. (R. at 71-86.) At Step 1 

of the sequential evaluation process,2

 the ALJ found that Plaintiff had not engaged 

in substantially gainful activity since November 1, 2009. (R. at 73.) 

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

impairments: disorders of the back, neck, and shoulders; obesity; hypertension; 

headaches; depression; and anxiety. (R. at 73.) 

 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 1.02B, 1.04, 11.01, 12.04, and 12.06. (R. at 74.) 

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

Plaintiff’s residual functional capacity (“RFC”)3

 and determined that Plaintiff had 

the capacity to perform light work: 

[E]xcept that she is limited to only frequent reaching overhead; 

occasionally climbing ladders, ropes, or scaffolds; occasional 

stooping; frequent climbing of ramps and stairs; frequent balancing, 

crouching, kneeling, and crawling; requires jobs that would provide 

routine production and stress and simple job assignments; and 

requires unskilled work. 

(R. at 76.) 

 The ALJ determined at Step 4 that Plaintiff was unable to perform her past 

relevant work. (R. at 84.) 

 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 85-86.) He 

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

 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 

 

3

 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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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 

[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 

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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

Plaintiff asserts three statements of error. First, she contends that the ALJ 

improperly discounted the opinions of her treating physicians. Second, she posits 

that the ALJ made impermissible credibility findings and did not assign the proper 

weight to her testimony. Finally, she argues that the ALJ’s hypothetical to the VE 

did not accurately reflect her impairments, thereby making his finding at Step 5 

invalid. The Commissioner opposes Plaintiff’s motion, asserting that she is entitled 

to a grant of summary judgment because substantial evidence supports the ALJ’s 

conclusions. I will address each argument in turn. 

 1. The ALJ Did Not Err in Weighing Opinion Evidence 

The ALJ must consider all medical opinions that he or she receives in 

evaluating a claimant’s case. 20 C.F.R. § 416.927(b). The regulations define 

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medical opinions as “statements from physicians . . . 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.” 20 C.F.R. § 416.927(a)(2). “Administrative law judges are 

not bound by any findings made by State agency medical or psychological 

consultants, or other program physicians or psychologists.” 20 CFR § 

404.1527(e)(2)(i). The ALJ must, however, “consider findings and other opinions” 

of State Agency medical or psychological consultants. 

The ALJ generally gives deference to the opinions of a treating source 

“since these are likely to be the medical professionals most able to provide a 

detailed, longitudinal picture of [a patient’s] medical impairment(s) and may bring 

a unique perspective to the medical evidence that cannot be obtained from the 

objective medical findings alone . . . .” 20 C.F.R. § 416.927(c)(2); Blakley v. 

Comm’r of Soc. Sec., 581 F.3d 399, 408 (6th Cir. 2009). To qualify as a treating 

source, the physician must have an “ongoing treatment relationship” with the 

claimant. 20 C.F.R. § 404.1502. 

If the ALJ does not afford controlling weight to a treating physician’s 

opinion, the ALJ must meet certain procedural requirements.4

 Wilson v. Comm’r 

 

4 An exception exists for treating source opinions on issues that are reserved to the 

Commissioner, which “are never entitled to controlling weight or special 

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of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). Specifically, if an ALJ does not 

give a treating source’s opinion controlling weight: 

[A]n ALJ must apply certain factors—namely, 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 the 

specialization of the treating source—in determining what weight to 

give the opinion. 

Id.; see also 20 C.F.R. § 404.1527(c). 

However, while an ALJ must “always give good reasons in [the ALJ’s] 

notice of determination or decision for the weight [the ALJ] give[s] your treating 

source’s opinion,” 20 C.F.R. § 416.927(c)(2), and “must be sufficiently specific 

to make clear to any subsequent reviewers the weight the adjudicator gave to the 

treating source’s medical opinion and the reasons for that weight,” Friend v. 

Comm’r of Soc. Sec., No. 09-3889, 375 F. App’x 543, 550 (6th Cir. 2010) (per 

curiam) (internal quotation omitted), there is no per se rule that requires a written 

 

significance.” S.S.R. 96-5p, 61 FR 34471-0, at *34473. Examples of issues 

reserved to the Commissioner include: 

1. Whether an individual’s impairment(s) meets or is equivalent in 

severity to the requirements of any impairment(s) in the listings; 

2. What an individual’s RFC is; 

3. Whether an individual’s RFC prevents him or her from doing past 

relevant work; 

4. How the vocational factors of age, education, and work experience 

apply; and 

5. Whether an individual is “disabled” under the Act. 

Id. 

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articulation of each of the six regulatory or “Wilson factors” listed in 20 C.F.R. §§ 

404.1527(c)(2)-(6), 416.927(c)(2)-(6). Norris v. Comm’r of Soc. Sec., No. 11–CV–

11974, 2012 WL 3584664, at *5 (E.D. Mich. Aug. 20, 2012) (citing Tilley v. 

Comm'r of Soc. Sec., 394 F. App’x 216, 222 (6th Cir. 2010)). In other words, the 

regulations do not require “an exhaustive factor-by-factor analysis.” Francis v. 

Comm’r of Soc. Sec., 414 F. App’x 802, 804-805 (6th Cir. 2011) (citing § 

404.1527(d)(2)). 

Moreover, the failure to discuss the requisite factors may constitute harmless 

error: (1) if “a treating source’s opinion is so patently deficient that the 

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

opinion of the treating source or makes findings consistent with the opinion;” or 

(3) “where the Commissioner has met the goal of [§ 1527(c) ]–the provision of the 

procedural safeguard of reasons–even though she has not complied with the terms 

of the regulation.” Nelson v. Comm’r of Soc. Sec., 195 F. App'x 462, 470 (6th 

Cir.2006) (quoting Wilson, 378 F.3d at 547). See also, Betty v. Comm’r of Soc. 

Sec., No. 15-CV-10734, 2016 WL 1105008, at *4 (E.D. Mich. Feb. 17, 2016), 

report and recommendation adopted, No. 15-CV-10734-DT, 2016 WL 1090554 

(E.D. Mich. Mar. 21, 2016). 

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The United States Court of Appeals for the Sixth Circuit has stressed the 

importance of the good-reason requirement: 

“The requirement of reason-giving exists, in part, to let claimants 

understand the disposition of their cases,” particularly in situations 

where a claimant knows that his physician has deemed him disabled 

and therefore “might be especially bewildered when told by an 

administrative bureaucracy that she is not, unless some reason for the 

agency’s decision is supplied.” Snell v. Apfel, 177 F.3d 128, 134 (2d 

Cir.1999). The requirement also ensures that the ALJ applies the 

treating physician rule and permits meaningful review of the ALJ’s 

application of the rule. See Halloran v. Barnhart, 362 F.3d 28, 32–33 

(2d Cir. 2004). 

Wilson, 378 F.3d at 544–45. Thus, the reason-giving requirement is “particularly 

important when the treating physician has diagnosed the claimant as disabled.” 

Germany-Johnson v. Comm’r of Soc. Sec., 312 F. A’ppx 771, 777 (6th Cir. 2008) 

(citing Rogers, 486 F.3d at 242). 

 Here, Plaintiff asserts, in a fairly cursory manner, that the ALJ did not afford 

proper weight to the opinions of “several treating source statements,” who opined 

that she was limited to a sedentary classification. (DE 13 at 28.) Unfortunately, 

Plaintiff fails to identify these “several” opinions, leaving the Court to guess as to 

which ones she means. Plaintiff also asserts that the ALJ discounted Dr. Rice’s 

letter describing Plaintiff’s “clear cognitive deficiencies.” (Id.) Finally, Plaintiff 

contends that the ALJ improperly afforded non-treating physicians great weight. 

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 Defendant counters that Plaintiff has waived her argument related to the 

weighing of opinion evidence by failing to make a showing of specific error.5

 In 

the alternative, Defendant contends that the ALJ’s weighing of the opinion 

evidence is supported by substantial evidence. For the reasons stated below, I find 

that the ALJ’s opinion gives good reasons for discounting the medical opinions at 

issue and that the Commissioner has met the goal of § 1527(c). Francis, 414 

F.App’x at 805 (quoting Wilson, 378 F.3d at 547). I also find that the opinion 

“‘permits the claimant and [this] reviewing court a clear understanding of the 

reasons for the weight given [to the] treating physician’s opinion[.]’” Francis, 414 

F.App’x at 805 (quoting Friend, 375 F. App’x at 550). 

 a. Mental Health Opinions 

 Plaintiff contends that the ALJ should have given more weight to Dr. Rice’s 

opinion that she had clear cognitive difficulties stemming from her 2008 motor 

vehicle crash. (R. at 385.) The ALJ assigned this opinion “some weight” and 

accounted for those cognitive difficulties by limiting Plaintiff to unskilled jobs that 

provide for routine production and stress and simple job assignments. (R. at 83.) 

 

5

 I agree with Defendant in this respect, and will therefore only address the specific 

arguments that Plaintiff actually makes. To the extent Plaintiff intends to make 

additional, unspecified arguments, I conclude that those have been waived. See 

McPhereson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) (“It is not sufficient 

for a party to mention a possible argument in a most skeletal way, leaving the court 

to . . . put flesh on its bones.”); United States v. Layne, 192 F.3d 556, 566 (6th Cir. 

1999) (“issues adverted to in a perfunctory manner, unaccompanied by some effort 

at developed argumentation, are deemed waived.”). 

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Plaintiff has failed to demonstrate that the cognitive limitations opined by Dr. Rice 

are more stringent than those assessed in the ALJ’s RFC. At Step 4, it was her 

burden to do so. See Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988) (clarifying 

that it was the plaintiff’s “burden to prove the severity of her impairments.”). 

 To the extent Plaintiff attempts to argue that Dr. Rice’s opinion was 

supported by Dr. Stevenson’s opinion that she could not work due to her 

psychiatric impairments, such a position is unavailing. Opinions that are merely 

“administrative findings that are dispositive of the case” are reserved to the 

Commissioner and therefore are not entitled to special significance, even when 

opined by a treating source. 20 C.F.R. § 404.1527(d). Examples of such 

administrative findings are opinions that the claimant is disabled or unable to work. 

However, the ALJ must still weigh and consider such opinions. 20 C.F.R. §

404.1527(c)(2); see also Devault v. Comm’r of Soc. Sec., No. 14-11986, 2015 WL 

556750, at *3 (E.D. Mich. Sept. 21, 2015) amended on reconsideration for other 

reasons, No. 14-11986, 2015 WL 7450399 (E.D. Mich. Nov. 24, 2015) (“The 

Social Security Administration must provide the weight it gives a treating source’s 

opinion when making a disability determination.” (citing Wilson, 378 F.3d at 

544)). 

 Here, the ALJ did in fact “consider” and “weigh” Dr. Stevenson’s opinion; 

however he afforded it little weight, noting that the opinion that Plaintiff could not 

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21

work was an issue reserved to the Commissioner. The ALJ also properly 

discounted the opinion, by noting the obvious inconsistency between Dr. 

Stevenson’s treatment notes, which indicated that Plaintiff was greatly improved 

with medication and therapy, with her opinion that Plaintiff’s mental issues 

precluded all work. (R. at 84.) For example, Dr. Stevenson’s notes indicate that 

Plaintiff reported she was “feeling better” and had no problems with her current 

medication regimen. (R. at 401.) Further, she increased Plaintiff’s GAF rating 

from a 50, on November 7, 2011 to a 65 on October 1, 2012. (R. at 400 and 404.) 

Accordingly, Plaintiff has failed to demonstrate that the ALJ erred in his analysis 

or that his analysis is not supported by substantial evidence. 

 b. Reviewing Physicians 

 Plaintiff next asserts that the ALJ erred by assigning more weight to the 

opinions of State Agency physicians who did not examine Plaintiff than to the 

opinions of her treating physicians. The ALJ gave the opinions of medical 

consultant Quan Nguyen, M.D. (R. at 133-145) and psychological consultant Colin 

King, Ph.D. (R. at 120-132) great weight, due to their consistency with the 

objective medical evidence in the record. (R. at 84.) Plaintiff does not challenge 

the consistency of the opinions, or specifically note the parts of the opinions with 

which she disagrees, but instead takes issue with the fact that these individuals did 

not personally examine her and did not have access to all of the evidence in the 

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record, due to finalizing their reports before the entire record was complete. Dr. 

King signed off on his report on March 27, 2012 (R. at 125) and Dr. Nguyen 

signed off on April 3, 2012 (R. at 141.) The most recent source of evidence 

reviewed by Dr. King was dated March 21, 2012 (R. at 126) and the most recent 

source of evidence reviewed by Dr. Nguyen was dated March 28, 2012 (R. at 134). 

 While it is true that the ALJ generally gives deference to the opinions of 

examining physicians, he or she must also consider the findings of other State 

Agency medical or psychological consultants. 20 C.F.R. § 404.1527(e)(2)(i). 

Here, the ALJ did not err in considering those findings and is not required to 

discount those findings merely because there was no examination. 20 C.F.R. § 

404.1527(e)(1). 

 As to Plaintiff’s second argument, the Sixth Circuit has recognized that there 

will “always be a gap between the time the agency experts review the record and 

give their opinion . . . and the time the hearing decision is issued.” Kelly v. 

Comm’r of Soc. Sec., 314 F. App’x 827, 831 (6th Cir. 2009). The ALJ may rely on 

such opinions as long as the record reflects that he or she has considered the entire 

record. Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 513 (6th Cir. 2010). Here, the 

ALJ clearly considered the entire record, including medical evidence that was 

submitted after the evidence relied on by the reviewers. For example, he cites to 

Dr. Rice’s May 2013 treatment notes (R. at 78), March 2013 records from 

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23

orthopedist Jack Lennox, to which the reviewers did not have access (R. at 79), a 

March 2013 treatment note from Dr. Stevenson (R. at 80), Dr. Rice’s medical 

needs form dated March 2013, as well as Dr. Rice’s physical residual functional 

capacity questionnaire dated June 2013 (R. at 83.) Plaintiff has not demonstrated 

that the ALJ failed to review the entire record, and has not demonstrated an error in 

the ALJ’s assignment of weight to the opinions of the reviewing physicians. 

Thelaw permits the ALJ to do exactly what he did, and I find no error in this 

regard. 

 2. The ALJ did not Err in Assessing Plaintiff’s Credibility 

 “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.” 

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

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 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). 

 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 

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 

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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 77.) Plaintiff contends that this 

analysis was in error because objective evidence supports the level of impairment 

to which she testified. Plaintiff points to unspecified MRI examinations and x-rays 

to support her position, and asserts that the ALJ ignored this objective evidence. 

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(DE 13 at 30.) This does not assist the Court in reviewing for error. More 

helpfully, the ALJ cited to a considerable amount of objective evidence when 

assessing Plaintiff’s credibility, including an unremarkable x-ray of the left 

shoulder and left wrist (R. at 77, 353, and 354) and Dr. Cynthia Shelby-Lane’s 

examination that revealed no spinal deformity, swelling, or muscle spasms and the 

fact that Plaintiff had a normal gait without a cane (R. at 77 and 370).6

 The ALJ 

also observes that the physical examination notes of Plaintiff’s own treating 

physician reflect that Plaintiff had been “essentially normal” with no positive 

straight leg raise tests and no reduced muscle strength. (R. at 78 and 442-449.) 

Finally, the ALJ points to Dr. Hyman’s finding of 5/5 muscle strength in the upper 

and lower extremities, with no evidence of gait abnormalities. (R. at 78 and 417.) 

The ALJ’s credibility analysis is supported by a significant amount of objective 

evidence in the record, and the existence of alternative evidence is not sufficient to 

overturn the ALJ’s findings at this stage. 

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)). 

 

6

 This evidence directly contradicts Plaintiff’s testimony that she could only walk 

with the assistance of a four-pronged cane. (R. at 105.) 

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 Plaintiff further argues that the ALJ erred by not considering the factors set 

forth in S.S.R. 96-8p, specifically: 1) Plaintiff’s ability to work a full-time 

schedule; and 2) the side effects of her medication. This argument is without merit 

for several reasons. First, the ALJ was not required to “produce a detailed 

statement” outlining in writing all of 96-8p factors he considered. Edwards v. 

Barnhart, 383 F. Supp. 2d 920, 929 (E.D. Mich. 2005). In regard to Plaintiff’s first 

argument, the ALJ’s finding that she was capable of competitive employment 

indicates that he also implicitly believed she was capable of working a competitive 

schedule. In fact, the regulation to which Plaintiff cites specifies that an RFC “is 

an assessment of an individual’s ability to do sustained work-related physical and 

mental activities in a work setting, on a regular and continuing basis.” S.S.R. 96-

8p. The phrase “regular and continuing basis” is defined as “8 hours a day, for 5 

days a week, or an equivalent work schedule.” Id.; see also Hayward v. Comm’r of 

Soc. Sec., No. 14-14613, 2015 WL 7749173, at *8 (E.D. Mich. Sept. 21, 2015), 

report and recommendation adopted, No. 14-14613, 2015 WL 7733448 (E.D. 

Mich. Nov. 30, 2015) (concluding that “by definition, the ALJ’s RFC assessment 

is a determination as to the work [the plaintiff] can perform eight hours a day, five 

days a week.”). That the ALJ considered this when assessing the RFC is 

supported by the his rejection of the hypothetical to the VE that involved an RFC 

of less than eight hours per day. (R. at 116-17.) As to Plaintiff’s second argument, 

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the ALJ actually did consider, in writing, the side effects of Plaintiff’s medications. 

(R. at 77, 79, and 80.) Accordingly, Plaintiff has not demonstrated ALJ error on 

this point. 

 3. The Hypothetical to the VE was 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, the burden shifts to the Commissioner 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. “A response to a flawed hypothetical question is not 

substantial evidence and cannot support a finding that work exists which the 

Plaintiff can perform.” Edwards v. Barnhart, 383 F. Supp. 2d 920, 927 (E.D. 

Mich. 2005). 

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 In the instant action, Plaintiff contends that the ALJ improperly relied on VE 

testimony that was based on an inaccurate hypothetical, namely one that did not 

take into account for her osteoarthritis and limitations in the right upper extremity, 

as well as her moderate deficiencies in concentration, persistence, and pace 

(“CPP”). In reality, since the ALJ’s Step 5 analysis and hypothetical to the VE rest 

entirely upon his Step 4 RFC finding, and since the ALJ’s Step 5 findings are 

consistent with the RFC and the VE’s testimony, Plaintiff is really attacking the 

RFC itself. By framing her argument in this way, Plaintiff attempts to shift the 

burden of proof from herself to the ALJ, since the burden remains with the 

claimant until Step 5. Jones v. Comm’r Soc. Sec., 336 F.3d 469, 474 (6th Cir. 

2003) (“Through step four, the claimant bears the burden of proving the existence 

and severity of limitations caused by her impairments and the fact that she is 

precluded from performing her past relevant work . . . .”). I will address each 

challenged factor of the RFC in turn. 

 a. Osteoarthritis and Upper Extremity Limitations 

Plaintiff contends that the ALJ’s hypothetical to the VE did not take into 

account her upper extremity limitations because it limited her only to “frequent” 

reaching overhead.7

 However, Plaintiff does not meet her burden of establishing 

 

7

 The Social Security Administration defines “frequently” as something occurring 

“one-third to two-thirds of an eight hour workday.” POMS DI 25001.001(B)(34), 

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that her impairments caused more limitations than those assessed by the ALJ. See 

20 C.F.R. § 416.912(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, including the fact that diagnostic testing revealed 

“full muscle strength and no evidence of joint instability or apprehension of her 

shoulder.” (R. at 76 and 82.) The RFC was reflected in his hypothetical questions 

to the VE. 

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

corresponding hypothetical), Plaintiff instead points to other evidence in the record 

that supports her desired 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 

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 

 

available at https://secure.ssa.gov/poms.nsf/lnx/0425001001 (last visited May 31, 

2016). Plaintiff’s citation to 20 C.F.R. § 404.1520a(b)(3) does not exist. 

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31

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

Plaintiff fails to demonstrate that Dr. Jack Lennox’s observation that Plaintiff had 

less than full range of motion and right arm weakness requires 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.”). Moreover, in his analysis, the ALJ 

acknowledged Dr. Lennox’s findings that Plaintiff had right shoulder tenderness, 

pain, and impingement, but also pointed out his assessment that she had 5/5 rotator 

cuff strength, no joint instability, no crepitation, and that her peripheral 

neurological examination was fully intact. (R. at 79.) Plaintiff does not challenge 

these additional conclusions made by Dr. Lennox.8

 Accordingly, Plaintiff has 

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

 

8

 Plaintiff does, however, point out that the ALJ “curiously” indicated that she had 

the ability to occasionally climb ropes. (DE 13 at 32, R. at 76.) Specifically, the 

ALJ stated that Plaintiff was limited to light work with the further limitation to 

“occasional climbing of ladders, ropes, or scaffolds.” (R. at 82.) While I agree it 

was a bit “curious” for the ALJ to conclude that Plaintiff would be able to climb 

ropes, it is of little moment to the ultimate RFC conclusion, as climbing abilities 

“have very little or no effect on the unskilled light occupational base.” S.S.R. 83-

14, 1983 WL 31254, at *5. 

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32

the portion of his hypothetical relating to her ability to reach was not supported by 

substantial evidence. 

 b. Moderate Deficit in CPP 

At Step 3, the ALJ concluded that Plaintiff had moderate limitations in CPP. 

(R. at 75.) To account for this deficiency, the ALJ limited Plaintiff to unskilled 

work that would provide for routine production and stress and simple job 

assignments. (R. at 76.) Plaintiff contends that the ALJ erred by failing to 

incorporate this moderate limitation into the hypothetical to the VE. She relies on 

Edwards v. Barnhart, 383 F. Supp. 2d 920, 930 (E.D. Mich. 2005), to support her 

proposition that a moderate limitation in CPP is work preclusive. (DE 13 at 33.) 

However, Plaintiff overstates the Edwards holding, in which the Court concluded 

that in that specific case, the hypothetical opined by the ALJ (limiting Plaintiff to 

unskilled work) did not accurately reflect Plaintiff’s limitations. It was not a 

blanket decision indicating that moderate impairments in CPP prevent competitive 

employment. 

 Instead, the Sixth Circuit has rejected “the notion that a hypothetical 

question must contain talismanic language,” including a recitation that Plaintiff had 

moderate limitations in CPP. (DE 13 at 14, quoting Street v. Comm’r of Soc. Sec., 

390 F. Supp. 2d 630, 638 (E.D. Mich. 2005) (citing Smith v. Halter, 307 F.3d 377, 

379 (6th Cir. 2001)). Consistently, Courts in this district have emphasized the 

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33

need for a case-by-case analysis when assessing whether a limitation to unskilled 

work adequately accounts for a CPP deficiency. Bohn-Morton v. Commissioner of 

Social Security, 389 F. Supp. 2d 804, 805-07 (E.D. Mich. 2005); see also Lewicki 

v. Comm’r of Soc. Sec., No. 09-11844, 2010 WL 3905375, at *3 (E.D. Mich. Sept. 

30, 2010)(noting that “[d]ecisions in this district reflect the conclusion that a 

moderate impairment in concentration, persistence, and pace does not necessarily 

preclude simple, routine, unskilled work.”); McNamara v. Comm’r of Soc. Sec., 

No. CIV.A. 11-10331, 2011 WL 7025855, at *12 (E.D. Mich. Dec. 1, 2011) report 

and recommendation adopted, No. 11-10331, 2012 WL 113541 (E.D. Mich. Jan. 

13, 2012) (concluding that the ALJ’s hypothetical “need not incorporate a listing of 

the claimant’s medical conditions, so long as the vocational expert’s testimony . . . 

takes into account the claimant’s functional limitations.”); Schalk v. Comm’r of 

Soc. Sec., No. 10-CV-13894, 2011 WL 4406824, at *11 (E.D. Mich. Aug. 30, 

2011) report and recommendation adopted, No. 10-13894, 2011 WL 4406332 

(E.D. Mich. Sept. 22, 2011)(concluding that there is “no bright-line rule requiring 

remand whenever an ALJ’s hypothetical includes a limitation of “unskilled work” 

but excludes a moderate limitation in concentration” and holding that, instead, the 

“Court must look at the record as a whole and determine if substantial evidence 

supports the ALJ’s RFC.”). 

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34

 Based upon my review of the record as a whole, I conclude that the ALJ’s 

hypothetical to the VE accurately portrayed Plaintiff’s mental limitations and 

substantial evidence supports the hypothetical and subsequent RFC. First, this 

aspect of the RFC is supported by evidence in the record, including the opinion of 

Dr. King, who concluded that Plaintiff had moderate limitations in CPP but was 

capable of sustaining an “independent routine of simple work activity.” (R. at 125 

and 130.) It is also consistent with the opinion of Julia Czarnecki, MA, LLP, who 

opined that Plaintiff’s mental impairments did not interfere “with her ability to do 

work related activities at a sustained pace.” (R. at 364.) Second, the ALJ’s RFC 

was actually more restrictive than that opined by Dr. King and Ms. Czarnecki, 

limiting Plaintiff to unskilled work with routine production and stress and simple 

job assignments. Finally, Plaintiff’s own self-reports of her symptoms, as well as 

the Third Party Function Report prepared by Ms. Felicia Marshall, are consistent 

with the RFC. Specifically, Plaintiff is able to care for her minor son with special 

needs, keep up with basic household chores, prepare meals, handle money, and 

goes shopping. (R. at 74, 257-268, and 269-276.) Accordingly, substantial 

evidence in the record supports the ALJ’s hypothetical to the VE and therefore it 

was not in error for the ALJ to rely on the answer to the hypothetical at Step 5. 

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35

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. 

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, 

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 

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36

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: July 15, 2016 s/Anthony P. Patti 

 Anthony P. Patti 

 UNITED STATES MAGISTRATE JUDGE 

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

on July 15, 2016, electronically and/or by U.S. Mail. 

 s/Michael Williams 

 Case Manager for the 

 Honorable Anthony P. Patti 

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