UNITED STATES DISTRICT COURT

EASTERN DISTICT OF MICHIGAN

SOUTHERN DIVISION

CATHY MICHELLE LOCKE,

Plaintiff, Civil Action No. 14-13907

 Honorable Denise Page Hood

v. Magistrate Judge Elizabeth A. Stafford

 

CAROLYN W. COLVIN, 

Acting Commissioner of 

Social Security,

 

Defendant. 

_____________________________/

REPORT AND RECOMMENDATION ON CROSSMOTIONS FOR SUMMARY JUDGMENT [R. 13, 16]

Plaintiff Cathy Michelle Locke appeals a final decision of Defendant 

Commissioner of Social Security (“Commissioner”) denying her application 

for disability insurance benefits (“DIB”) and supplemental security income 

benefits (“SSI”) under the Social Security Act (the “Act”). Both parties have 

filed summary judgment motions, referred to this Court for a Report and 

Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). After review of the 

record, the Court finds that the administrative law judge’s (“ALJ”) decision

is supported by substantial evidence, and thus RECOMMENDS that:

• the Commissioner’s motion [R. 16] be DENIED;

• Locke’s motion for summary judgment [R. 13] be GRANTED IN 

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PART AND DENIED IN PART; and

• the Commissioner’s decision be REMANDED, pursuant to sentence 

four of 42 U.S.C. § 405(g) for further consideration consistent with 

this Report and Recommendation.

I. BACKGROUND 

A. Locke’s Background and Disability Applications 

Born in November 1963, Locke was 48 years old when she submitted 

her applications for disability benefits in February 2012. [R. 11-2, Tr. 27; R. 

11-6, Tr. 216]. She last worked as a real estate agent in June 2006. [R. 

11-6, Tr. 234]. Locke alleged a disability onset date of October 1, 2006, 

claiming disability due to diabetes, polyneuropathy, cervical spine disease, 

chronic pain, cluster headaches, premature atrial contractions, and sleep 

apnea. [R. 11-2, Tr. 27; R. 11-6, Tr. 219, 265]

After both applications were denied initially, she requested a hearing, 

which took place on April 15, 2013 and included the testimony of Locke, 

her friend, Stephanie Jones, and a vocational expert (“VE”). [R. 11-2, Tr. 

27, 41-112]. In a May 16, 2013 written decision, the ALJ found Locke to be 

not disabled. [Id., Tr. 27-37]. The Appeals Council denied review, making 

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the ALJ’s decision the final decision of the Commissioner, and Locke timely 

filed for judicial review. [Id., Tr. 1-3; R. 1]. 

B. The ALJ’s Application of the Disability Framework Analysis

A “disability” is 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 12 months.” 

42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).

The Commissioner determines whether an applicant is disabled by 

analyzing five sequential steps. First, if the applicant is “doing substantial 

gainful activity,” he or she will be found not disabled. 20 C.F.R. § 

404.1520(a)(4); 20 C.F.R. § 416.920(a)(4).

1

 Second, if the claimant has 

not had a severe impairment or a combination of such impairments2 for a 

continuous period of at least 12 months, no disability will be found. Id. 

Third, if the claimant’s severe impairments meet or equal the criteria of an 

impairment set forth in the Commissioner’s Listing of Impairments, the 

claimant will be found disabled. Id. If the fourth step is reached, the 

 

1 Sections 1520(a)(4) and 920(a)(4), which pertain to DIB and SSI 

respectively, list the same five-step analysis.

2 A severe impairment is one that “significantly limits [the claimant’s] 

physical or mental ability to do basic work activities.” §§ 1520(c); 920(c).

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Commissioner considers its assessment of the claimant’s residual 

functional capacity (“RFC”), and will find the claimant not disabled if he or 

she can still do past relevant work. Id. At the final step, the Commissioner 

reviews the claimant’s RFC, age, education and work experiences, and 

determines whether the claimant could adjust to other work. Id. The 

claimant bears the burden of proof throughout the first four steps, but the 

burden shifts to the Commissioner if the fifth step is reached. Preslar v. 

Sec’y of Health & Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994).

Applying this framework, the ALJ concluded that Locke was not 

disabled. At the first step, she found that Locke had not engaged in 

substantial gainful activity since her alleged onset date. [R. 11-2, Tr. 29]. 

At the second step, she found that Locke had the severe impairments of 

“diabetes mellitus with peripheral neuropathy and a history of ulcers; 

obstructive sleep apnea; cluster headaches; and degenerative disc disease 

of the cervical and lumbar spines.” [Id.]. Next, the ALJ concluded that 

none of Locke’s impairments, either alone or in combination, met or 

medically equaled the severity of the listed impairments. [Id., Tr. 30-31]. 

After the third step, the ALJ found that Locke had the RFC 

to perform light work ... except [she] is able to perform work 

that involves occasional climbing of stairs, crouching, crawling, 

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kneeling, and stooping/bending; she must avoid workplace 

hazards such as moving machinery, unprotected heights, and 

climbing of ladders; she is able to frequently but not constantly 

use her bilateral upper extremities for gross and fine 

manipulation; and she is able to frequently but not constantly 

use her bilateral lower extremities to operate foot controls. In 

addition, [she] is limited to low stress work, meaning self-paced, 

that is unskilled and requires little or no judgment and be easily 

learned in 30 days.

[Id., Tr. 31]. At step four, the ALJ found that Locke could not perform past 

relevant work. [Id., Tr. 35]. After considering Locke’s age, education, work 

experience, RFC, and the testimony of the VE, the ALJ found at step five 

that Locke can perform the position of office helper, of which a significant 

number of jobs exist in the economy. [Id., Tr. 36-37].

II. ANALYSIS

Pursuant to § 405(g), this Court’s review is limited to determining 

whether the Commissioner’s decision is supported by substantial evidence 

and was made in conformity with proper legal standards. Gentry v. Comm’r 

of Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014). 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 quotation marks and citation omitted). Only the 

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evidence in the record below may be considered when determining 

whether the ALJ’s decision is supported by substantial evidence. Bass v. 

McMahon, 499 F.3d 506, 513 (6th Cir. 2007). 

The significant deference accorded the Commissioner’s decision is 

conditioned on the ALJ’s adherence to governing standards. “Chief among 

these is the rule that the ALJ must consider all evidence in the record when 

making a determination, including all objective medical evidence, medical 

signs, and laboratory findings.” Gentry, 741 F.3d at 723. See also Rogers, 

486 F.3d at 249. In other words, substantial evidence cannot be based 

upon fragments of the evidence, and “must take into account whatever in 

the record fairly detracts from its weight.” Garner v. Heckler, 745 F.2d 383, 

388 (6th Cir. 1984) (internal quotation marks and citation omitted). 

The Commissioner must also adhere to its own procedures, but failure 

to do so constitutes only harmless error unless the claimant has been 

prejudiced or deprived of substantial rights. Rabbers v. Comm’r of Soc. 

Sec., 582 F.3d 647, 654 (6th Cir. 2009). An ALJ’s failure to use an 

“adjudicatory tool” that does not change the outcome of the decision is 

harmless. Id. at 655-56. On the other hand, substantial errors like ignoring 

evidence in the record or failing to follow the treating physician rule are not 

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harmless. Id.; Cole v. Astrue, 661 F.3d 931, 940 (6th Cir. 2011); Gentry, 741 

F.3d at 729. 

Locke argues that the record provides insufficient support for the ALJ’s 

conclusions and that the ALJ erred in failing to obtain a psychological 

functional capacity assessment from a mental health professional. The 

Court agrees that substantial evidence does not support the ALJ’s 

assessment of Locke’s exertional RFC, but that her argument regarding the 

assessment of her mental RFC lacks merit.

A. The ALJ’s Unclear Path of Reasoning

In Lowery v. Comm'r, Soc. Sec. Admin., 55 F. App'x 333, 339 (6th 

Cir. 2003), the ALJ’s decision was found to lack the support of substantial 

evidence because lay testimony as a whole was mischaracterized. “The 

ALJ may not take part of a witness’s testimony and disregard the rest.” Id. 

The court emphasized that substantial evidence is based upon the record 

as a whole; “an ALJ may not select and discuss only that evidence that 

favors his ultimate conclusion, but must articulate, at some minimum level, 

his analysis of the evidence to allow the appellate court to trace the path of 

his reasoning.” Id. (citation and internal quotation marks omitted). See 

also Bailey v. Comm'r of Soc. Sec., 173 F.3d 428 (6th Cir. 1999) (“To be 

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entitled to substantial deference, however, agency rulings must clearly 

articulate the rationale underlying the decision.”).

The same deficiencies cited in Lowery undermine the ALJ’s decision 

in this case. Specifically, the ALJ mischaracterized Locke’s testimony as a 

whole and her unclear path of reasoning in assessing Locke’s physical 

RFC precludes meaningful appellate review.

By finding that Locke had the RFC for light work, the ALJ determined 

that she was able to lift up to 20 pounds, lift or carry up to 10 pounds 

frequently, and do a good deal of walking or standing. 20 C.F.R. § 

404.1567(b). The ALJ based that decision in part on Locke’s daily 

activities, saying that Locke’s function report indicated:

[S]he was able to take care of her personal needs, prepare 

meals, take care of her home, visit others, go out to eat, take 

short trips/rides, take care of pets, go outside daily, drive, shop, 

and perform household chores such as dishes, washing floors, 

household repairs, cleaning the bathroom, mowing, lawn care, 

shoveling, taking out the trash, and cleaning the kitchen. 

[R. 11-2, Tr. 35 (citing which R. 11-6, Tr. 246-53)]. If this were an accurate 

description of Locke’s statements and testimony as a whole, the ALJ would 

have a substantial basis to conclude that Locke’s daily activities “strongly 

suggest that she is able to ambulate effectively and perform fine and gross 

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movements effectively.” [R. 11-2, Tr. 31]. However, when looking at the 

record as a whole, this assessment lacks substantial evidence.

Locke was asked on the function report what house and yard work 

she was able to do, and she responded, “[D]ishes, washing floors, 

household repairs, clean bathroom, mowing, lawn care, shoveling, taking 

out trash, cleaning kitchen.” [R. 11-6, Tr. 248]. However, within that same 

function report, other statements contradicted that she was capable of 

performing those tasks. Locke reported that her neighbor takes out her 

trash and helps with cleaning yard waste and basic house care, including 

doing her dishes, floors, kitchen and bath, and that she pays for yard work. 

[Id., Tr. 247-48, 250]. Locke stated that she does as much as she can 

tolerate and that every day is different. [Id., Tr. 247, 250]. The ALJ did not 

question Locke regarding the inconsistencies within her function report but 

instead appeared to rely upon the answer in the function report that 

presented the rosiest picture. This Court wonders whether Locke

misunderstood that the question she was answering.

Other answers within the function report and from Locke’s testimony 

differ from the ALJ’s description of Locke’s daily activities. While the ALJ 

states that Locke takes care of her pets, Locke reported that she feeds 

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them and lets them out, but depends upon her mother to help with vet visits 

and grooming. [R. 11-6, Tr. 247]. Contrary to the ALJ’s representation that 

Locke prepares meals for herself, Locke stated that making meals is too 

hard for her because of her difficulty with standing or sitting, so she makes 

sandwiches or heats frozen food or meals that her daughter brings. [R. 11-

6, Tr. 248; R. 11-2, Tr. 69]. Her daughter also does her laundry because 

she cannot do it. [R. 11-2, Tr. 51 & 69]. As far as Locke taking care of her 

personal needs, she stated in her April 10, 2012 that she takes quick 

showers or baths, only wears Croc shoes because she has too much pain 

otherwise and does not do anything to her hair except wash and dry it. [R. 

11-6, Tr. 247]. By the April 2013 hearing, Locke stated that she could no 

longer shower because of the standing. [R. 11-2, Tr. 69]. In both her 

function report and her testimony, Locke described her daily routine as 

mostly laying down because she cannot sit or stand for long. [Id., Tr. 69-

70, 82-83; R. 11-6, Tr. 146]. Locke further described her loss of manual 

dexterity as precluding her from painting and crafts, and stated that she 

tries to avoid driving or writing because those activities exacerbate the 

sharp pains in her hands. [R. 11-2, Tr. 85-86; R. 11-6, Tr. 250]. She stated 

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that lifting her 17 or 18 pound grandson causes her pain, requiring her to 

go to bed afterwards. [R. 11-2, Tr. 68, 75-76]. 

Locke’s friend of seven years testified that she provides care for 

Locke’s dogs, helps her with laundry, and assists her with opening plastic 

pop bottles and the like; that Locke is incapable of basic house care, 

cleaning or cooking; and that Locke has difficulty walking, is easily tired and 

becomes clumsy. [Id., Tr. 90-94].

Thus, the whole record regarding Locke’s daily activities does not 

“strongly suggest that she is able to ambulate effectively and perform fine 

and gross movements effectively,” as alleged by the ALJ. [R. 11-2, Tr. 31]. 

Her reported daily activities do not support the ALJ determination that she 

was able to lift up to 20 pounds and lift or carry up to 10 pounds frequently 

and do a good deal of walking or standing. § 404.1567(b).

Nor do the opinions of the medical sources support a conclusion that 

Locke can perform light work. On February 2, 2012, treating physician Mark 

Zohoury, D.O. signed a prescription note in which he concluded that Locke 

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was “unable to perform work of any kind” due to “total disability.”3 [R. 11-7, 

Tr. 402]. In a cervical spine medical source statement dated March 14, 

2013, Dr. Zohoury opined that Locke was incapable of performing even low 

stress work due to diabetes neuropathy, spinal arthropathy, cluster 

headaches, anxiety, depression, chronic pain, chronic dizziness, and 

medication side effects. [Id., Tr. 389-94]. He indicated that Locke’s 

impairments caused muscle weakness, chronic fatigue, sensory loss, 

impaired sleep, lack of coordination, reduced grip strength, reduced ranges 

of motion, and numerous functional limitations. [Id.]. Dr. Zohoury opined 

that Locke could not walk a city block without rest or severe pain, she could 

only sit for 10 minutes at a time and stand for five minutes at a time; she 

could rarely lift 10 pounds or less than 10 pounds, never lift 20 pounds or 

heavier, rarely stoop, crouch, squat or climb stairs, and never climb ladders 

or twist; and she could sit for less than two hours in an eight hour workday, 

walk or stand for less than two hours in a workday, would need hourly 

breaks to lie down, and would be off task 25 percent of the workday. [Id., Tr. 

 

3 The ALJ properly gave this opinion no weight because a finding of 

disability is reserved for the Commissioner. Kidd v. Comm'r of Soc. Sec., 

283 Fed. Appx. 336, 340 (6th Cir. 2008) (“[T]he ultimate issue of disability 

is reserved to the Commissioner.”).

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391-93]. The ALJ gave Dr. Zohoury’s opinion “some weight.”

4 [R. 11-2, Tr. 

34]. 

Habib Gennaoui, M.D., a State agency consulting examiner, reported 

that Locke could not squat, kneel, or walk on her heels or toes, that she had 

mild tenderness and mild decreased range of motion in her cervical and 

lumbar spine with positive straight leg raise at 80 degrees, and that she had 

decreased bilateral hand grip 4/5 and decreased bilateral vibration sensation 

in both upper and lower extremities. [R. 11-7., Tr. 379-85]. He concluded 

that Locke was “suffering from multiple medical problems that are affecting 

her daily activity. The patient’s activity is very limited to light housework with 

interruption.” [Id., Tr. 381]. The ALJ relied upon Locke’s alleged activities of 

daily living to dismiss the relevance of the abnormalities Dr. Gennaoui

identified from his examination. [R. 11-2, Tr. 35]. Further, despite those 

abnormal findings, the ALJ described Dr. Gennaoui’s opinion as perhaps 

being “merely a recitation of the claimant’s subjective statements,” but 

 

4 An ALJ is ordinarily required to give controlling weight to the opinion of a 

treating physician, and must give good reasons for failing to do so. 

Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 375 (6th Cir. 2013). 

Although Locke relies in part upon the treating physician rule to argue for 

reversal of the ALJ’s decision, the Court does not believe reversal on that 

ground is the best approach because Dr. Zohoury’s records are largely 

illegible, so it is difficult to determine the full bases for his opinion. [R. 11-7, 

Tr. 307-400]. 

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nonetheless gave the opinion moderate weight. [Id., Tr. 33-34]. 

A single decision maker had found Locke capable of light work with 

additional exertional limitations, but the ALJ gave that opinion no weight 

because it was not from a medical source. [Id., Tr. 34]. 

Having given moderate weight to Dr. Gennaoui’s opinion, some weight 

to Dr. Zohoury’s opinion, and no weight to the single decision maker’s 

opinion, the ALJ’s assessment of an RFC that most resembles the single 

decision maker’s opinion makes no sense. Neither of the opinions that the 

ALJ allegedly gave weight would support an RFC for the standing, walking or 

lifting required by light work, or for the frequent use of her upper or lower 

extremities. Dr. Gennaoui specifically stated that Locke could not kneel, yet 

the ALJ without explanation assessed an RFC requiring her to do so. Simply 

put, the Court cannot trace the ALJ’s path of reasoning for her assessment 

of Locke’s exertional RFC. 

Given the ALJ’s significant mischaracterizations of Locke’s activities of 

daily living and opaque reasoning for her assessment of Locke’s physical 

RFC, her decision is not supported by substantial evidence. Lowery, 55 F. 

App'x at 339; Bailey, 1999 WL 96920 at *4.

B. Psychological Case Review

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Citing 42 U.S.C. § 421(h), Locke argues that the ALJ erred by failing 

to obtain a psychological functional capacity assessment or a psychiatric

case review from a mental health professional. However, the Sixth Circuit 

has explained that “no absolute duty exists under § 421(h) which requires 

the Commissioner or an ALJ to have a mental health professional complete 

[a psychological assessment].” Lawson v. Chater, 98 F.3d 1342, 1996 WL 

577642, at *5 (6th Cir. Oct. 7, 1996) (citing Andrade v. Sec’y of Health and 

Human Servs., 985 F.2d 1045, 1050 (10th Cir.1993); Bernal v. Bowen, 

851 F.2d 297, 302 (10th Cir.1988)). Rather, the duty arises only “if the 

claimant brings forth sufficient evidence to raise an inference that he 

suffers from a mental impairment.” Marcum v. Comm’r, Soc. Sec. Admin., 

205 F.3d 1341, 2000 WL 92262, at *4 (6th Cir. Jan. 18, 2000) (finding that 

“there was not sufficient evidence in the record to raise an inference that 

plaintiff suffered from a mental impairment” where plaintiff testified that 

depression affected his RFC, a single report noted “some depression” and 

he was prescribed medication to help him sleep). 

Here, the record contains two references to possible mental 

impairments: a progress note by Dr. Zohoury indicating “anxiety/stress” 

related to a stress test and chest x-rays, and Dr. Zohoury’s medical source 

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statement finding Locke had anxiety and depression and that she could not 

tolerate even low stress work. [R. 11-7, Tr. 351, 391, 393-94]. As the 

Commissioner points out, Locke “did not allege any mental impairment at 

the time she filed for disability [R. 11-6, Tr. 219], she did not treat for any 

mental impairment during the relevant period, her attorney did not include 

depression or anxiety on his list of current impairments in the pre-hearing 

brief [id., Tr. 265], and Plaintiff did not discuss any depressive symptoms 

during the hearing [R. 11-2, Tr. 41-112].” [R. 16, PgID 484 (internal 

citations amended)]. This evidence is insufficient to raise an inference that 

Locke suffered from a mental impairment, so the ALJ was not required to 

order a psychological case review from a mental health professional.

III. CONCLUSION

For the reasons stated above, the Court RECOMMENDS that 

Locke’s motion for summary judgment [R. 13] be GRANTED IN PART to 

the extent that she seeks remand for a reassessment of her physical RFC, 

DENIED IN PART to the extent that she seeks reversal and a direct award 

of benefits, and that the Commissioner’s motion [R. 16] be DENIED, and 

that the Commissioner’s decision be REVERSED for further factual findings 

pursuant to sentence four of 42 U.S.C. § 405(g).

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s/Elizabeth A. Stafford

ELIZABETH A. STAFFORD

United States Magistrate Judge

Dated: February 9, 2016

NOTICE TO THE PARTIES REGARDING OBJECTIONS

Either party to this action may object to and seek review of this 

Report and Recommendation, but must act within fourteen days of service 

of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and Fed. R. Civ. 

P. 72(b)(2). Failure to file specific objections constitutes a waiver of any 

further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. 

Secretary of HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 

638 F.2d 947 (6th Cir. 1981). Filing objections which raise some issues but 

fail to raise others with specificity will not preserve all objections that party 

might have to this Report and Recommendation. Willis v. Secretary of 

HHS, 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). A copy of any objection 

must be served upon this Magistrate Judge. E.D. Mich. LR 72.1(d)(2).

Each objection must be labeled as “Objection #1,” “Objection #2,” 

etc., and must specify precisely the provision of this Report and 

Recommendation to which it pertains. Not later than fourteen days after 

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service of objections, the non-objecting party must file a response to 

the objections, specifically addressing each issue raised in the objections in 

the same order and labeled as “Response to Objection #1,” “Response to 

Objection #2,” etc. The response must be concise and proportionate in 

length and complexity to the objections, but there is otherwise no page 

limitation. If the Court determines that any objections are without merit, it 

may rule without awaiting the response.

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s ECF 

System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on February 9, 2016.

s/Marlena Williams

MARLENA WILLIAMS

Case Manager

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