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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

CHERIE HARTSIG, 

 Plaintiff, 

v. Case No. 14-14394 

CAROLYN W. COLVIN, HON. AVERN COHN 

Acting Commissioner of Social Security, 

 Defendant. 

_______________________________________/ 

MEMORANDUM AND ORDER ADOPTING THE MAGISTRATE JUDGE’S 

REPORT AND RECOMMENDATION (Doc. 18), DENYING IN PART AND GRANTING 

IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (Doc. 15), 

DENYING IN PART AND GRANTING IN PART THE COMMISSIONER’S MOTION 

FOR SUMMARY JUDGMENT (Doc. 16), AND REMANDING THE CASE.1

I. INTRODUCTION 

This is a Social Security case. Plaintiff Cherie Hartsig (Hartsig) appeals the final 

decision of the Commissioner of Social Security (Commissioner) denying her 

application for Social Security disability insurance benefits and supplemental security 

income. 

Hartsig applied for disability insurance and supplemental security income 

benefits on May 8, 2012, alleging an onset date of March 15, 2012, with a date last 

insured (DLI) of December 31, 2016. The Commissioner denied Hartsig’s claims; 

Hartsig requested a hearing. An Administrative Law Judge (the ALJ) determined that 

Hartsig was not disabled within the meaning of the Social Security Act (SSA). The 

 

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 Upon review of the papers, the Court deems this matter appropriate for decision 

without oral argument. See Fed. R. Civ. P. 78(b); E.D. Mich. LR 7.1(f)(2). 

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Appeals Council denied Hartsig’s request for review. Hartsig filed a civil action seeking 

review of the ALJ’s decision. 

The parties filed cross motions for summary judgment. (Docs. 15, 16). The 

motions were referred to a MJ for a report and recommendation (MJRR). The MJ 

recommends that the Court grant in part and deny in part Hartsig’s motion for summary 

judgment, grant in part and deny in part the Commissioner’s motion for summary 

judgment, and remand the matter for further proceedings as to Hartsig’s mental 

impairments. (Doc. 18). The Commissioner filed timely objections to the MJRR. (Doc. 

19). Hartsig has chosen not to respond to the objections. The Court finds the objections 

to be without merit. 

II. BACKGROUND 

A. The ALJ’s Decision 

The MJRR summarized the ALJ’s decision denying benefits: 

The ALJ applied the five-step disability analysis to plaintiff’s claim and 

found at step one that plaintiff had not engaged in substantial gainful 

activity since the alleged onset date. At step two, the ALJ found that 

plaintiff’s carpal tunnel syndrome and DeQuervain’s tenosynovitis were 

“severe” within the meaning of the second sequential step. At step three, 

the ALJ found no evidence that plaintiff’s combination of impairments met 

or equaled one of the listings in the regulations. The ALJ determined that 

plaintiff had the residual functional capacity (RFC) to perform light work as 

follows: “After careful consideration of the entire record, the undersigned 

finds that the claimant has the residual functional capacity to perform light 

work as defined in 20 CFR 404.1567(b) except she can perform no 

repeated grasping and fingering; she must be able to sit or stand as she 

wishes; and there can be no requirement for writing or typing. Further, the 

claimant is limited to simple, two or three step jobs.” At step four, the ALJ 

concluded that plaintiff could not perform her past relevant work as a 

substance abuse counselor, administrative assistant, manager, and pizza 

delivery driver. At step five, the ALJ denied plaintiff benefits because 

plaintiff could perform a significant number of jobs available in the national 

economy. 

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(Doc. 18 at 3-4)(internal citations to record omitted). 

B. Parties’ Motions for Summary Judgment and the MJRR 

Hartsig’s Motion for Summary Judgment seeks reversal of the ALJ’s conclusion 

that she was not under a disability because the ALJ did not properly evaluate her 

severe impairments, residual functional capacity (RFC) and credibility. Hartsig says that 

(1) the ALJ erred in not identifying all of her mental impairments as severe at step two; 

and (2) the ALJ’s credibility analysis was flawed and was not based on a proper 

characterization of record evidence. 

The Commissioner’s cross-motion for summary judgment argues that (1) the ALJ 

had a sufficient basis for his RFC assessment and, thus, any step two error was 

harmless and (2) the ALJ’s decision regarding Hartsig’s credibility and the ultimate RFC 

findings were supported by substantial evidence. 

 While the MJ agrees with the Commissioner’s arguments, she recommends that 

the Court remand the case so that the ALJ can obtain the opinion of a medical advisor 

to assess the severity of Hartsig’s mental impairments and any resulting functional 

limitations, as well as to conduct the assessment required by 20 C.F.R. § 416.920a(e). 

The MJ explains that Hartsig did not indicate any mental impairment in her 2012 

application for benefits. As such, the state agency physician’s review in July 2012 of 

Hartsig’s medical records found no record of psychiatric treatment or medications. 

However, Hartsig testified at her hearing that, as of 2013, she was being treated for 

depression and anxiety. Accordingly, the MJRR explains that, while an ALJ is no longer 

required to complete the Psychiatric Review Technique Form (PRTF), the ALJ must 

include pertinent findings and conclusions based on the technique in his decision. See 

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20 C.F.R. § 416.920a(e). In this case, there was no opinion in the record assessing the 

severity of Hartsig’s mental limitations and resulting functional limitations. 

III. STANDARD OF REVIEW 

A. Objections to the MJRR 

A district court must conduct a de novo review of the parts of a MJRR to which a 

party objects. 28 U.S.C. § 636(b)(1). “A judge of the court may accept, reject, or 

modify, in whole or in part, the findings or recommendations made by the magistrate 

judge. The judge may also receive further evidence or recommit the matter to the 

magistrate judge with instructions.” Id. The requirement that district judges with life 

tenure conduct a de novo review and be the final arbiters of matters referred to a 

magistrate judge is jurisdictional. United States v. Shami, 754 F.2d 670, 672 (6th Cir. 

1985); Flournoy v. Marshall, 842 F.2d 875, 878 (6th Cir. 1987). 

B. Commissioner’s Disability Determination 

Judicial review of a disability benefits application is limited to determining 

whether “the commissioner has failed to apply the correct legal standards or has made 

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

of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). A reviewing court may not resolve 

conflicts in the evidence or decide questions of credibility. Brainard v. Sec’y of HHS, 

889 F.2d 679, 681 (6th Cir. 1989). Substantial evidence is “such relevant evidence as a 

reasonable mind might accept as adequate to support a conclusion.” Richardson v. 

Perales, 402 U.S. 389, 401 (1971). It is “more than a scintilla but less than a 

preponderance.” Consol. Edison Co. v. NLRB, 305 U.S. 197, 399 (1938). “Substantial 

evidence exists when a reasonable mind could accept the evidence as adequate to 

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support the challenged conclusion, even if that evidence could support a decision the 

other way.” Casey v. Sec’y of HHS, 987 F.2d 1230, 1233 (6th Cir. 1993); Lindsley v. 

Comm’r of Soc. Sec., 560 F.3d 601, 604 (6th Cir. 2009). The substantial evidence 

standard is deferential and “presupposes that there is a zone of choice within which the 

decisionmakers can go either way, without interference with the courts.” Mullen v. 

Bowen, 800 F.2d 535, 545 (6th Cir. 1986). 

When determining whether the Commissioner’s decision is supported by 

substantial evidence, the reviewing court must take into consideration the record as a 

whole. Futernick v. Richardson, 484 F.2d 647, 649 (6th Cir. 1973). If the Appeals 

Council declines to review the ALJ’s decision, the court’s review is limited to the record 

before the ALJ, Cotton v. Sullivan, 2 F.3d 692, 696 (6th Cir. 1993), regardless of 

whether the ALJ actually cites to evidence. Walker v. Sec’y of HHS, 884 F.2d 241, 245 

(6th Cir. 1989). Nonetheless, there is no requirement that the reviewing court discuss 

all of the evidence in the record. Kornecky v. Comm’r of Soc. Sec., 167 F. App’x. 496, 

508 (6th Cir. 2006). Essentially, the court’s role is limited to a search for substantial 

evidence that 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). 

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IV. ANALYSIS 

The Commissioner raises two objections to the MJRR. The objections do not 

withstand scrutiny.

A. Objection One 

The Commissioner first objects to the MJ’s finding that the ALJ’s failure to 

explicitly outline the B criteria findings regarding Hartsig’s mental impairments was error 

requiring remand. The Commissioner maintains that even if the ALJ made the required 

findings, he still would have concluded at step three that Hartsig’s symptoms were not 

of listing-level severity and therefore the error was harmless. Further, the Commissioner 

notes that, while no treating doctor provided an opinion as to the mental impairments, 

the ALJ did take into consideration Hartsig’s own testimony about her depression and 

anxiety and other objective evidence of the mental health impairments. As such, the 

Commissioner argues that remand is unnecessary. 

This objection lacks merit. The MJ exhaustively addresses this argument in the 

MJRR and correctly points out that, in weighing the medical evidence, “ALJs must not 

succumb to the temptation to play doctor and make their own independent medical 

findings.” Simpson v. Comm’r of Soc. Sec., 344 Fed. Appx. 181, 194 (6th Cir. 

2009)(internal citations omitted). While an ALJ is free to resolve issues of credibility as 

to lay testimony, the ALJ cannot substitute his own lay medical opinion for that of a 

treating or examining doctor. (Doc. 18 at 27-28). Accordingly, the Commissioner’s first 

objection is without merit. 

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B. Objection Two 

The Commissioner next objects on the ground that the MJ incorrectly 

recommends finding that substantial evidence did not support the ALJ’s determination 

that Hartsig could mentally do simple, two or three step jobs. The Commissioner asserts 

that, in some cases, the ALJ may render a commonsense judgment about a claimant’s 

limitations without the benefit of a medical opinion. The Commissioner notes that it was 

Hartsig’s burden to prove her alleged mental impairments and limitations and she failed 

to do so. As such, the Commissioner says that the ALJ was not required to obtain an 

expert medical opinion to determine otherwise. 

The Commissioner’s objection is without merit. As noted above, judicial review of 

a disability benefits application is limited to determining whether “the commissioner has 

failed to apply the correct legal standards or has made findings of fact unsupported by 

substantial evidence in the record.” Walters, 127 F.3d at 528 (emphasis added). “Unlike 

other cases where such an error has been found harmless, there is no opinion in this 

record assessing the severity of [Hartsig’s] mental limitations and the resulting 

functional limitations.” (Doc. 18 at 25). While Hartsig provided personal testimony at the 

hearing in regards to her mental impairments, the ALJ made a decision without the 

substantial evidentiary support of an expert medical opinion. Furthermore, as noted in 

the MJRR, the ALJ cannot substitute his own judgment for that of a physician. The 

Commissioner has not made any argument that persuades the Court to reject the MJ’s 

conclusion. The Court is not reversing the ALJ’s decision, but rather asking the ALJ to 

obtain the opinion of a medical advisor to assess the severity of Hartsig’s mental 

impairments and any resulting functional limitations. 

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V. CONCLUSION 

For the reasons stated above, the MJRR is ADOPTED (Doc. 18), Hartsig’s 

motion for summary judgment (Doc. 15) is DENIED IN PART AND GRANTED IN PART, 

the Commissioner’s motion for summary judgment (Doc. 16) is DENIED IN PART AND 

GRANTED IN PART, and the case is REMANDED to the ALJ for further proceedings as 

to Hartsig’s mental impairments. 

SO ORDERED. 

 s/Avern Cohn 

 AVERN COHN 

Dated: March 31, 2016 UNITED STATES DISTRICT JUDGE 

Detroit, Michigan 

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