UNITED STATES DISTRICT COURT

EASTERN DISTICT OF MICHIGAN

SOUTHERN DIVISION

SUSAN SCHWIER,

Plaintiff, Civil Action No. 14-14881

 Honorable Marianne O. Battani

v. Magistrate Judge Elizabeth A. Stafford

 

CAROLYN W. COLVIN, 

Acting Commissioner of 

Social Security,

 

Defendant. 

_____________________________/

REPORT AND RECOMMENDATION ON CROSSMOTIONS FOR SUMMARY JUDGMENT [R. 11, 12]

I. INTRODUCTION

Plaintiff Susan Schwier appeals a final decision of Defendant 

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

for Disability Insurance Benefits (“DIB”) under the Social Security Act (the 

“Act”). Both parties have filed summary judgment motions [R. 11, 12], 

which were 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. Thus, the Court RECOMMENDS that Schwier’s

motion [R. 11] be DENIED, the Commissioner’s motion [R. 12] be 

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GRANTED, and the Commissioner’s decision be AFFIRMED pursuant to 

sentence four of 42 U.S.C. § 405(g).

II. BACKGROUND

A. Schwier’s Background and Claimed Disabilities

At the time of the administrative hearing, Schwier was a 59-year-old 

high school graduate with an associate’s degree who previously worked for 

General Motors/Delphi as a supervisor for 30 years. [R. 9-2, Tr. 26]. She 

has not worked since December 2007. [Id., Tr. 27]. Schwier alleges 

disability based on migraine headaches and depression. [Id., 28; R. 9-6, 

Tr. 128]. 

B. Procedural History

Schwier filed her application for DIB in June 2012, alleging disability 

as of January 1, 2008. [R. 9-5, Tr. 101-07]. The claim was denied initially, 

and she filed a timely request for an administrative hearing. [R. 9-4, Tr. 62-

63]. Schwier and a vocational expert (“VE”) testified at a video hearing 

before an ALJ on July 16, 2013. [R. 9-2, Tr. 23-47]. In an August 29, 2013 

written decision, the ALJ found Schwier not disabled. [Id., Tr. 8-22]. On 

October 31, 2014, the Appeals Council denied review, making the ALJ’s 

decision the final decision of the Commissioner for purposes of this review. 

[Id., Tr. 1-4]. Schwier subsequently filed for judicial review. [R. 1].

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C. The ALJ’s Application of the Disability Framework

DIB are available for those who have a “disability.” See Colvin v. 

Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). 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). Second, if the claimant has not had a severe impairment 

or a combination of such impairments 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 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 

(“PRW”). Id. At the final step, the Commissioner reviews the claimant’s 

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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). 

Following the five-step sequential process, the ALJ concluded that 

Schwier was not disabled. At step one, he found that Schwier had not 

engaged in substantial gainful activity during the period from her alleged 

onset date, January 1, 2008, through her date last insured, December 31, 

2012. [R. 9-2, Tr. 13]. At step two, he concluded that Schwier had the 

following severe impairments: migraines and depression. [Id.] At step 

three, the ALJ determined that Schwier’s impairments did not meet or 

medically equal the severity of any enumerated listing, including Listing 

12.04. [Id., Tr. 14-15]. 

Between steps three and four, the ALJ assessed Schwier’s RFC, 

finding her capable of performing medium work with the following 

environmental limitations: “avoid concentrated exposure to temperature 

extremes, noise, vibration, and pulmonary irritants (such as dusts, fumes, 

odors, gases, and poor ventilation).” [R. 9-2, Tr. 15-16]. At step four, the 

ALJ found that Schwier could not perform any PRW. [Id., Tr. 18]. Relying 

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on testimony of the VE expert, the ALJ determined at step five that based 

on her age, education, work experience and RFC, Schwier could perform 

the requirements of the following representative occupations with jobs 

existing in significant numbers in the national economy: 

inspection/packaging, assembly, busser, and machine tender. [Id., Tr. 18-

19]. Thus, the ALJ found Schwier not disabled. [Id., Tr. 19].

III. ANALYSIS

A. Standard of Review

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

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). “If the [Commissioner’s] 

decision is supported by substantial evidence, it must be affirmed even if 

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the reviewing court would decide the matter differently, and even if 

substantial evidence also supports the opposite conclusion.” Cutlip v. 

Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (internal 

citations omitted).

B. The ALJ’s Decision is Supported by Substantial Evidence

Schwier says the Court should reverse the ALJ’s decision for two 

reasons. First, she argues that the ALJ failed to consider her multiple 

impairments in deciding that she was not disabled. Second, Schwier 

contends that the ALJ erred in finding her allegations not fully credible. 

Schwier’s arguments fail for two reasons. 

First, attorney Michael M. Hall made a deplorably insufficient effort to 

develop arguments on Schwier’s behalf. He does not cite to any evidence 

in the record and instead provides vague reference to Schwier’s testimony 

and work history. In summary fashion, Hall mentions that the ALJ found 

Schwier not disabled, and identifies the issues as being whether the ALJ 

properly weighed Schwier’s multiple impairments and credibility. Hall does 

not discuss what impairments the ALJ failed to properly consider or why the 

ALJ’s credibility findings were erroneous, and he cites only one legal 

citation to support his arguments. 

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“It is well-established that issues adverted to in a perfunctory manner, 

unaccompanied by some effort at developed argument, are deemed 

waived.” Dillery v. City of Sandusky, 398 F.3d 562, 569 (6th Cir. 2005)

(internal quotation marks and citations omitted); see also Bishop v. 

Gosiger, Inc., 692 F. Supp. 2d 762, 774 (E.D. Mich. 2010) (“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.” (internal quotation marks and 

citations omitted)). Because Hall failed to develop either of Schwier’s

arguments whatsoever, the issues are deemed waived. See id.1

Even if Schwier’s arguments were not waived, a review of the ALJ’s

decision demonstrates that he adequately considered all of Schwier’s 

impairments and that his credibility determination is supported by 

substantial evidence.

1 The Court, moreover, draws Hall’s attention to Fielder v. Comm'r of 

Soc. Sec., No. 13-10325, 2014 WL 1207865, at *1 (E.D. Mich. Mar. 24, 

2014) (Rosen, J), in which a Social Security attorney improperly “invit[ed] 

the Judges of this District to formulate arguments and search the record on 

his clients’ behalf.” The Honorable Gerald E. Rosen, Chief Judge, “strongly 

cautioned” the offending attorney “that this Court will carefully examine his 

submissions in future suits to ensure that they advance properly supported 

arguments that rest upon (and cite to) the facts of a particular case. Failure 

to adhere to these standards will result in the imposition of sanctions and 

possible referral of counsel for disciplinary proceedings.” Id. Hall should 

heed this warning.

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1. The ALJ Considered All of Schwier’s Impairments

In determining whether a claimant’s impairment or impairments are 

sufficiently severe to be the basis of eligibility under the Act, an ALJ must 

consider the combined effect of all of the claimant’s impairments without 

regard to whether any single impairment, if considered separately, would 

be sufficiently severe. 20 C.F.R. § 404.1523. 

Contrary to Schwier’s assertion, the ALJ here did consider all of her 

impairments and did consider the combination of those impairments. In 

making his step three finding, the ALJ noted that he “considered all of the 

claimant’s medical problems” and concluded that “[d]espite the impairments

and related symptoms, the medical evidence does not document listinglevel severity.” [R. 9-2, Tr. 14 (emphasis added)]. Throughout the 

decision, the ALJ considered Schwier’s migraines and depression, as well 

as the combination of the two, in his analysis: (1) he found that Schwier did 

not have “an impairment or combination of impairments” that met or 

medically equaled a listed impairment [id.]; (2) he noted that he carefully 

considered “the entire record” in formulating Schwier’s RFC [id., Tr. 15]; (3) 

he stated that he considered “all symptoms” in making his determination

[id., Tr. 16]; and (4) he noted that Schwier’s “medically determinable 

impairments” could cause the alleged symptoms, but found that her 

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statements regarding the intensity, persistence and limiting effects of the 

symptoms were not entirely credible [id., Tr. 17]. 

The ALJ’s statements that he considered the “entire record,” 

“combination of impairments” (plural), and “all symptoms” are enough to 

demonstrate that he properly assessed all of Schwier’s impairments. 

Gooch v. Sec’y of Health & Human Servs., 833 F.2d 589, 592 (6th Cir. 

1987) (ALJ’s reference to “a combination of impairments” and 

“impairments” in the plural, along with statement that he considered “the 

entire record,” was sufficient to establish that he considered the

combination of claimant’s impairments); Despins v. Comm’r of Soc. Sec., 

257 Fed. Appx. 923, 931 (6th Cir. 2007) (“That the ALJ may have

discussed [the claimant’s] impairments individually hardly suggests that the 

totality of the record was not considered.” (internal quotation marks and 

citation omitted)). Moreover, the ALJ here discussed the medical record, 

specifically noting that there was no evidence showing that Schwier 

complained of symptoms related to her migraines, and finding that her 

mental treatment – which she first sought in March 2013 (after her date last 

insured) – consisted of vague subjective complaints and did not appear to 

be fully genuine in nature. [R. 9-2, Tr. 17]. Schwier’s argument that the 

ALJ properly failed to consider all of her impairments is without merit.

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2. The ALJ’s Credibility Determination is Supported by 

Substantial Evidence

In assessing Schwier’s credibility, the ALJ found that her allegations 

regarding the intensity of her symptoms and their impact on her functioning 

were not consistent with the totality of the evidence; thus, he concluded 

that she was not entirely credible. [R. 9-2, Tr. 16-17]. Schwier argues that 

the ALJ erred in finding her testimony non-credible. The Court disagrees.

Credibility determinations of witnesses are within the province of the 

ALJ, and will not be overturned “absent compelling reason.” Smith v. 

Halter, 307 F.3d 377, 379 (6th Cir. 2001). At the same time, “such 

determinations must find support in the record.” Rogers, 486 F.3d at 241. 

Here, Schwier has not proffered a compelling reason to overturn the ALJ’s 

credibility determination, and that determination finds support in the record.

In discounting Schwier’s credibility, the ALJ cited to specific, recordbased examples that undermine her allegations regarding the intensity, 

persistence and limiting effects of her symptoms. For example, the ALJ 

noted that Schwier testified that she went to her eye doctor due to 

headaches [R. 9-2, Tr. 40], but the medical record shows that she 

presented at her eye examination with “no specific complaints” and “[n]o 

headaches” [R. 9-7, Tr. 202]. [R. 9-2, Tr. 17]. The ALJ found that this 

contradiction, along with the fact that the only mention of headaches 

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throughout the medical evidence was from a dental visit predating 

Schwier’s onset date [R. 9-7, Tr. 210], suggested that Schwier may have 

overstated her symptoms. [R. 9-2, Tr. 17]. See Walters, 127 F.3d at 531

(“Discounting credibility to a certain degree is appropriate where an ALJ 

finds contradictions among the medical reports, claimant’s testimony, and 

other evidence.”). 

The ALJ further pointed out that records from Schwier’s primary care 

physician, Lawrence LaLonde, M.D., from November 2007 to February 

2012 revealed no complaints related to her severe impairments, and that 

her chiropractic treatment consisted of routine adjustments. [R. 9-2, Tr. 16-

17; R. 9-7, Tr. 177-201, 215-229]. Moreover, the ALJ noted that Schwier 

was not receiving ongoing treatment for her headaches and found that this 

further weakened her allegations regarding the intensity and nature of that 

impairment. [R. 9-2, Tr.17]. See Strong v. Comm’r of Soc. Sec., 88 Fed. 

Appx. 841, 846 (6th Cir. 2004) (failure to seek treatment for alleged 

impairment may cast doubt on claimant’s assertions regarding the severity 

of the condition). Similarly, the ALJ found that Schwier’s mental 

impairment may not have been fully genuine based on the fact that she did 

not seek treatment until March 2013, and the treatment only lasted until 

May 2013. [R. 9-2, Tr. 17]. 

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Schwier’s daily activities were considered by the ALJ, who found that 

they were not limited to the effect one would expect given her allegations of 

totally disabling symptoms. [R. 9-2, Tr. 17]. This finding was justified

because Schwier’s daily activities – which include reading, watching TV, 

attending church, shopping, managing finances, driving, and doing house 

work [R. 9-6, Tr. 137-40] – were inconsistent with the severity of her 

alleged symptoms. See Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 392 

(6th Cir. 2004) (the ALJ “justifiably considered [plaintiff’s] ability to conduct 

daily life activities in the face of his claim of disabling pain”). Further, the 

ALJ also appropriately relied on Schwier’s “generally unpersuasive 

appearance and demeanor while testifying at the hearing” in making his 

credibility determination. See Tyra v. Sec’y of Health & Human Servs., 896 

F.2d 1024, 1030 (6th Cir. 1990). 

The ALJ’s credibility determination is supported by substantial 

evidence and Schwier has certainly not provided a compelling reason to 

overturn it.

IV. CONCLUSION

For the foregoing reasons, the Court RECOMMENDS that the 

Commissioner’s motion [R. 12] be GRANTED, Schwier’s motion [R. 11] be 

DENIED, and the Commissioner’s decision be AFFIRMED pursuant to 

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sentence four of 42 U.S.C. § 405(g).

s/Elizabeth A. Stafford

ELIZABETH A. STAFFORD

United States Magistrate Judge

Dated: October 9, 2015

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 October 9, 2015.

s/ Karri Sandusky for

MARLENA WILLIAMS

Case Manager

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