UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

NURCA MELVA CABRERA, 

Plaintiff Civil Action No. 15-10714

v. HON. JOHN CORBETT O’MEARA

 U.S. District Judge

HON. R. STEVEN WHALEN

COMMISSIONER OF SOCIAL U.S. Magistrate Judge

SECURITY,

Defendant.

__________________________________/

REPORT AND RECOMMENDATION

Plaintiff Nurca Melva Cabrera brings this action under 42 U.S.C. § 405(g), 

challenging a final decision of Defendant Commissioner denying her application for

Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under the

Social Security Act. Both parties have filed summary judgment motions which have been

referred for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the

reasons set forth below, I recommend that Plaintiff’s Motion for Summary Judgment be

GRANTED to the extent that the case is remanded for further fact-finding, and that

Defendant’s Motion for Summary Judgment be DENIED. 

PROCEDURAL HISTORY

On April 10, 2012, Plaintiff filed applications for DIB and SSI, alleging an onset date

of June 11, 2007 (Tr. 126-136). After the initial denial of her claim, Plaintiff filed a request

for an administrative hearing, held on September 10, 2013 in Livonia, Michigan before

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Administrative Law Judge (“ALJ”) Martha M. Gasparovich (Tr. 31). Plaintiff, represented

by attorney Katherine Fortune, testified (Tr. 35-49), as did Vocational Expert (“VE”) Helen

Topcik (Tr. 49-54). On October 1, 2013 ALJ Gasparovich found Plaintiff could perform her

past relevant work as a cleaner (Tr. 23-24). On December 24, 2014, the Appeals Council

denied review (Tr. 1-3). On February 26, 2015, Plaintiff filed for judicial review of the

Commissioner’s final decision in this Court. 

BACKGROUND FACTS

Plaintiff, born November 11, 1956, was age 56 when the ALJ issued her decision (Tr.

24, 126). She received a GED and worked previously as a baby sitter, cashier, cleaner, and

home health aid (Tr. 164). She alleges disability resulting from diabetes, asthma,

hypertension, hyperlipidemia, depression, and insomnia (Tr. 163). 

A. Plaintiff’s Testimony

Before beginning her testimony, Plaintiff amended her alleged onset of disability date

to November 11, 2011 (Tr. 34-35). 

 Plaintiff offered the following testimony:

She lived in Pontiac, Michigan (Tr. 35). In 2003, she worked as an office cleaner and

in 2000 and 2001, for another company as an office cleaner (Tr. 36). She currently worked 

as a part-time daycare specialist for three children, ages 10, 10, and 12 (Tr. 36). Her job was

to make them a snack when they arrived home from school and ensure that they did their

homework (Tr. 36). She made approximately $300 a month (Tr. 36-37). 

She was unable to perform the daycare activities on a full-time basis due to sporadic

headaches and backaches (Tr. 37). The children she cared for were her grandchildren and

thus, she was able to “relax on the couch” for 15 minutes when needed (Tr. 37-38). She

lacked the energy to care for other children that would typically be “jumping around” (Tr.

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37-38). She was unable to perform full-time work due to symptoms of diabetes, depression,

headaches, back pain, asthma, and diabetes-related left eye vision problems (Tr. 38). She

could not read newspaper print and used “mostly” her ears to follow television programs (Tr.

39). 

She currently received treatment for diabetes, back pain, arthritis of the neck, and

headaches (Tr. 39-40). She took medicine for hyperlipidemia, diabetes, headaches,

depression, arthritis, and panic attacks (Tr. 40). She experienced insomnia but did not take

naps during the day (Tr. 40-41). Plaintiff was unable to stand or sit for more than 15 minutes

without back pain (Tr. 41). She was unable to walk for more than one block (Tr. 41). She

was unable to lift more than 10 pounds (Tr. 42). She was able to wash clothes, but her son

did the vacuuming and helped her with the cooking (Tr. 42). She had failed to pass the

vision test the last time she went to renew her driver’s license and now was unable to drive

(Tr. 42-43). She relied on cabs or her niece for transportation (Tr. 42-43). 

Plaintiff was “constantly tired” and she experienced problems remembering when to

take certain medicines (Tr. 43). She did not experience problems remembering to make

snacks for her grandchildren, but sometimes relied on her son to prepare the snacks (Tr. 44). 

In response to questioning by her attorney, Plaintiff testified that her back pain started

in her neck and ran downward (Tr. 44). She stated that on a scale of 1 to 10, she experienced

level “10” pain on a daily basis (Tr. 44-45). She reported that she had recently begun

treatment with a neurologist (Tr. 45). She indicated that she checked her blood sugar four

times a day due to diabetes (Tr. 45-46). She reported sugar levels of 240 by noon (Tr. 46). 

She testified that she ate small portions of food and avoided fried food (Tr. 46). She reported

symptoms of diabetes which included vision problems and constant foot numbness (Tr. 46-

47). Despite hand surgery the previous year, Plaintiffindicated that she experienced bilateral

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finger numbness (Tr. 47). She reported that she required the use of a sitting cart when doing

her grocery shopping (Tr. 47-48). She denied problems performing personal care activities

(Tr. 48). She reported the medication side effects of whole body numbness and dizziness

(Tr. 48). She was prescribed Cymbalta but was not receiving mental health care (Tr. 49). 

She reported that depressive episodes, occurring approximately five days a week, made her

feel lonely and misunderstood (Tr. 49). She testified that she had struggled with depression

for “years” (Tr. 49). 

 B. Medical Evidence1

 1. Treating Sources

February, 2008 records show a blood sugar reading of 222 (Tr. 358). In March, 2008,

Plaintiff sought emergency treatment for an earache (Tr. 288). Treating records note a

history of diabetes, depression, and asthma (Tr. 288). Plaintiff’s blood sugar levels during

inpatient treatment for mastoiditis the following month include readings of 189 and 248 (Tr.

329-344). Discharge records note a diagnosis of depression (Tr. 322). Upon discharge, she

was re-prescribed Elavil (Tr. 315, 324). In August, 2009, Plaintiff sought treatment for

diverticulitis (Tr. 250). The following month, Plaintiff’s blood sugar reading was 159 (Tr.

237). March, 2010 emergency room notes state that a recent injury was attributable to vision

problems caused by diabetes (Tr. 223). May, 2011 emergency room notes state that Plaintiff

was currently taking Cymbalta and had a history of depression (Tr. 215). 

March, 2012 ophthalmological records note multiple hemorrhages in both eyes (Tr.

408). Plaintiff scheduled an “urgent visit” to her ophthalmologist in August, 2012, noting

that she was “unable to see faces” (Tr. 398). In October, 2012, Jeffrey E. Golosh, D.O.

Medical evidence predating the alleged onset of disability by more than one year 1

has been reviewed in full, but is not included in the present discussion. 

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administered a steroid injection to the left wrist after imaging studies showed de Quervain’s

tenosynovitis or tendinitis (Tr. 385-386). He noted a positive grind test (Tr. 385). Later the

same month, he found left-sided CTS (Tr. 384). He prescribed a gel wrist splint (Tr. 384). 

The following month, ophthalmological records showed blurry vision (Tr. 396). Plaintiff

reported a blood sugar level of 130 (Tr. 396). In December, 2012, she underwent left

extensor tendon tenolysis, abductor pollicis longus, and extensor pollicis brevis without

complications (Tr. 380). Followup notes from later the same month note “markedly

decreased pain” (Tr. 378). 

In February, 2013, ophthalmologist Robert Blau, M.D. found that Plaintiff’s

remaining vision in her better eye after best correction was 20/200 or less (Tr. 410). The

same month, Plaintiffsought emergency treatment for chest pain (Tr. 447). Treating records

noted uncontrolled hypertension, diabetes, and depression (Tr. 446). A blood sugar reading

was 207 (Tr. 455). April, 2013 laser surgery for retinal photocoagulation was performed

without complications (Tr. 414). In July, 2013, Dr. Blau noted that imaging studies showed

hemorrhages (Tr. 458). The neurologist Bharat Tolia, M.D. noted Plaintiff’s reports of daily

headaches and “on and off” back pain (Tr. 467, 478, 484). Dr. Tolia observed a normal

range of motion in all extremities and a normal gait (Tr. 468, 479, 485). An x-ray of the

cervical spine showed multilevel degenerative changes (Tr. 474-475). An x-ray of the

lumbar spine showed abnormalities at L5-S1 (Tr. 476). The following month, Dr. Tolia

noted that imaging studies showed bilateral CTS (Tr. 464). He noted that Plaintiff exhibited

cognitive difficulties (Tr. 473). 

Dr. Tolia completed a Residual Functional Capacity Questionnaire, finding that

Plaintiff experienced chronic lumbosacral spine pain and weakness as well as chronic

headaches (Tr. 482). He found that Plaintiff was unable to lift more than 10 pounds or

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perform fine manipulations or grasp for more than 20 percent of the workday (Tr. 483). 

He found that Plaintiff would be required to miss more than four days of work each

month (Tr. 483). He found that she was incapable of full-time work (Tr. 483). 

 2. Non-Treating Sources

In June, 2012, psychiatrist Atul C. Shah, M.D. performed a consultative examination

on behalf of the SSA, noting Plaintiff report of long-term depression (Tr. 363). Plaintiff

reported crying jags, mood swings, and isolative behavior (Tr. 363). She reported that

Cymbalta helped her depression but that the condition waxed and waned (Tr. 364). Dr. Shah

found that she had a tendency to minimize her symptoms (Tr. 364). Plaintiff was unable to

perform two out of three simple calculations or analyze proverbs (Tr. 364). Dr. Shah found

that Plaintiff had a major depressive disorder with a fair prognosis (Tr. 365). He found that

she was unable to manage her benefit funds (Tr. 365). He assigned her a GAF of 60 (Tr. 2

365). 

The same month, Ernesto Bedia, M.D. performed a physical examination on behalf

of the SSA, noting Plaintiff’s report that “stress and pollen” triggered asthma (Tr. 368). She

reported that her blood sugar readings were “usually over 200” (Tr. 368). She denied

hospitalizations for diabetes-related symptoms (Tr. 368). She denied changes in vision (Tr.

369). Dr. Bedia found that Plaintiff’s diabetes was “not controlled well,” noting her report

of frequent thirst and urination and signs of paresthesias (Tr. 370). He noted a stable gait

(Tr. 372). 

2

A GAF score of 51–60 indicatesmoderate symptoms OR moderate difficultyin social,

occupational, or school functioning. Diagnostic and Statistical Manual of Mental

Disorders—Text Revision (“DSM–IV–TR ”), 34 (4th ed. 2000).

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Later in June, 2012 B. D. Choi, M.D. performed a non-examining review of the

treating and consultative physical conditions,finding that Plaintiff’s physical conditions were

non-severe (Tr. 59). In July, 2012, Ashok Kaul, M.D. found that Plaintiff’s psychological

impairments were non-severe on the basis that Plaintiff had not sought formal “psych

treatment” and was able to provide daycare services (Tr. 60). 

 C. Vocational Expert Testimony

VE Helen Topcik classified Plaintiff’s previous work as a babysitter as semiskilled

at the medium exertional level; home health aide, semiskilled/medium; and cleaner,

unskilled/light (Tr. 51). The ALJ then posed the following question, taking into account 3

Plaintiff’s age, educational level, and work experience:

Assume an inability to stand and walk . . . more than six hours in an eighthour day. The individual could lift no more than 20 pounds occasionally, and

10 pounds frequently, should not require the use of depth perception, could 

not require fine close work such as a barber, machinist, or a needle worker,

would need to avoid operating vehicles or moving machinery, and there could

be no prolonged visual vigilance. Also, the individual would not be able to

perform forceful gripping or twisting with the hands bilaterally. Could such

an individual perform any of the work you have described as [Plaintiff’s] past

work? (Tr. 51). 

The VE testified that the individual could not perform the work of a babysitter or

home health aide but could perform Plaintiff’s past relevant work as a cleaner or cashier (Tr.

51-52). The VE testified further that if the individual were required to take unscheduled 15

to 20 minute breaks every workday, all gainful employment would be precluded (Tr. 52). 

3

20 C.F.R. § 404.1567(a-d) defines sedentary work as “lifting no more than 10 pounds

at a time and occasionally lifting or carrying articles like docket files, ledgers, and small

tools; light work as “lifting no more than 20 pounds at a time with frequent lifting or

carrying of objects weighing up to 10 pounds;” medium work as “lifting no more than 50

pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds;” and

that exertionally heavy work “involves lifting no more than 100 pounds at a time with

frequent lifting or carrying of objects weighing up to 50 pounds. 

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The VE stated that her testimony was based on the information found in the Dictionary of

Occupational Titles (“DOT”), except for the testimony regarding unscheduled breaks which

was based on her own professional experience (Tr. 52). She stated that if the original

hypothetical question were amended to limit the individual to “simple routine tasks in a low

stress environment defined as not quick decision-making, and no quick judgment required

on the job, . . . no interaction with the public, and only minimal interation with co-workers,”

the cashier job would be eliminated but the individual could work as a cleaner (Tr. 53). 

In response to questioning by Plaintiff’s attorney, the VE testified that if the same

individual had a “sit/stand” option allowing her to change positions every 15 minutes, the

cleaner job would be eliminated (Tr. 53). The VE stated that two or more absences a month,

or, the need to be habitually off task more than 10 percent of the time would preclude all

work (Tr. 54). 

D. The ALJ’s Decision

Citing Plaintiff’s medical records, the ALJ determined that Plaintiff experienced the

severe impairments of “loss of vision, left eye; diabetes mellitus II; status post left extensor

pollicis longus, extensor pollicis brevis extensor tenolysis; bilateral carpal tunnel syndrome;

left thumb carpometacarpal joint arthritis; and degenerative disc disease” but found that none

of the conditions met or medically equaled an impairment listed in 20 C.F.R. Part 404,

Subpart P, Appendix 1 (Tr. 16-17, 19). The ALJ found that Plaintiff retained the residual

functional capacity (“RFC”) to performlight work with the following additional restrictions: 

[C]laimant can stand and walk no more than six hours in an eight-hour

workday. The claimant could lift no more than 20 pounds occasionally and 10

pounds frequently. The claimant is limited to work that does not require the

use of depth perception, or fine, close work such as a barber, machinist, or

needle worker. The claimant would need to avoid operating vehicles or

moving machinery. There could be no prolonged vigilance. The claimant

could not perform forceful gripping or twisting with the bilateral hands (Tr.

19-20). 

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The ALJ found that Plaintiff could perform her past relevant work as a cleaner (Tr. 23). 

The ALJ discounted Plaintiff’s allegations of disability (Tr. 21-22). She noted that

Plaintiff’s report of blood sugar levels of 200 contradicted her ophthalmologist’s notes

stating blood sugars of 102 to 140 (Tr. 21). She noted that while Plaintiff experienced

proliferative diabetic retinopathy, her vision improved after laser surgery (Tr. 21). The ALJ

observed that the complaints of hand pain had been addressed as of December, 2012 (Tr. 21). 

The ALJ noted that x-rays of the lumbar spine were unremarkable (Tr. 22). She observed

that Plaintiff acknowledged “no problems with personal care,” and that she was able to cook,

clean, do laundry, shop for groceries, and enjoyed “listening to the radio and watching

television” (Tr. 22). She noted that Plaintiff was able to work part time as a daycare provider

to her grandchildren (Tr. 22). The ALJ discounted Dr. Tolia’s disability opinion, noting that

he examined Plaintiff only twice before issuing the opinion and that his opinion was “grossly

inconsistent with the longitudinal medical evidence revealing only limited treatment” (Tr.

22). She found further that Dr. Tolia’s opinion was not consistent with his own “relatively

minimal examination findings” (Tr. 22). 

STANDARD OF REVIEW

The district court reviews the final decision of the Commissioner to determine

whether it is supported by substantial evidence. 42 U.S.C. §405(g); Sherrill v. Secretary of

Health and Human Services, 757 F.2d 803, 804 (6 Cir. 1985). Substantial evidence is more th

than a scintilla but less that a preponderance. It is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.

389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB,

305 U.S. 197, 229, S. Ct. 206, 83 L.Ed.126 (1938)). The standard of review is deferential and 

“presupposes that there is a ‘zone of choice’ within which decision makers can go either way,

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without interference from the courts.” Mullen v. Bowen, 800 F.2d 535, 545 (6 Cir. th

1986)(en banc). In determining whether the evidence is substantial, the court must “take into

account whatever in the record fairly detracts from its weight.” Wages v. Secretary of Health

& Human Services, 755 F.2d 495, 497 (6 Cir. 1985). The court must examine the

th

administrative record as a whole, and may look to any evidence in the record, regardless of

whether it has been cited by the ALJ. Walker v. Secretary of Health and Human Services,

884 F.2d 241, 245 (6 Cir. 1989). th

 FRAMEWORK FOR DISABILITY DETERMINATIONS

 Disability is defined in the Social Security Act as 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). In

evaluating whether a claimant is disabled, the Commissioner is to consider, in sequence,

whether the claimant: 1) worked during the alleged period of disability; 2) has a severe

impairment; 3) has an impairment that meets or equals the requirements of an impairment

listed in the regulations; 4) can return to past relevant work; and 5) if not, whether he or she

can perform other work in the national economy. 20 C.F.R. §416.920(a). The Plaintiff has

the burden of proof at steps one through four, but the burden shifts to the Commissioner at

step five to demonstrate that, “notwithstanding the claimant's impairment, he retains the

residual functional capacity to perform specific jobs existing in the national economy.” 

Richardson v. Secretary of Health & Human Services, 735 F.2d 962, 964 (6th Cir.1984).

 

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ANALYSIS

 A. The RFC

Plaintiff argues first that the RFC crafted by the ALJ is based on an erroneous

interpretation of the medical evidence. Plaintiff’s Brief, 11, Docket #16. She points out that

the ALJ’s finding that her vision improved after laser surgery is unsupported by an actual

assessment of her visual abilities. Id. at 12. She notes that while the ALJ rejected Dr. Tolia’s

opinion on the basis that he examined Plaintiff only twice, the transcript does not include

another opinion regarding the functional limitations. Id. She also contends that the RFC

understates the limitations as a result of CTS. Id. at 13. She assigns error to the ALJ’s

finding that the condition of depression was non-severe. Id. at 13-14. 

 The RFC describes an individual's residual abilities. Howard v. Commissioner of

Social Security, 276 F.3d 235, 239 (6th Cir. 2002). "RFC is to be an `assessment of

[Plaintiff's] remaining capacity for work' once her limitations have been taken into account"

Id. (citing 20 C.F.R. § 416.945). In determining a person's RFC, it is necessary to consider

(1) objective medical evidence as well as (2) subjective evidence of pain or disability. 20

C.F.R. § 404.1545(a)(1)(RFC must be based on all "relevant evidence"). The RFC must

consider the alleged physical, mental, and environmental restrictions. § 404.1545(b-d).

The ALJ acknowledged some degree of visual limitation in RFC by precluding work

that did not require “the use of depth perception, or fine, close work such as a barber,

machinist, or needle worker” (Tr. 19-20). The ALJ supported the lack of a more stringent

restrictions bynoting that Plaintiff’s vision problems resulting fromcomplications of diabetic

retinopathy were resolved with laser surgery (Tr. 21). She cited treating notes stating that

Plaintiff’s vision improved after April and May, 2013 laser treatments (Tr. 21). 

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However, the ALJ’s own summation of Plaintiff’s eye problems shows that the vision

problems were not permanently resolved by laser surgery. As noted by the ALJ, while

Plaintiff underwent laser surgery in March, April, and August, 2012, October, 2012 records

note decreased visual acuity and a new vitreous hemorrhage (Tr. 21). Plaintiff again reported

vision problems the following month (Tr. 396). While Plaintiff underwent additional laser

treatments in April and May, 2013, later records show that she again developed another

vitreous hemorrhage (Tr. 21). 

The ALJ noted that records following the May, 2013 surgery showed 20/30 vision in

one eye and 20/70 in the other (Tr. 21). The ALJ cites these findings for the conclusion that

Plaintiff’s eye problems had essentially resolved. To the contrary, the discovery of the most

recent hemorrhage suggests that an already-established pattern was repeating itself once

more: hemorrhage, followed by several months of poor vision, laser surgery resulting in

temporarily improved vision until another hemorrhage restarts the cycle (Tr. 396, 398, 408,

410, 414, 458). Notably, while Plaintiff underwent surgery in May, 2013, she was already

experiencing severe left eye vision limitations at the time ofthe September, 2013 hearing (Tr.

38). She testified that she was unable to pass the vision requirement to renew her driver’s

license, could not read newspaper print, and followed television shows with her “ears” due

to poor vision (Tr. 39, 42-43). The record shows that Plaintiff experienced significant, if not

outright disabling visual disturbances during the months following a hemorrhage and before

surgery, including the inability to “see faces” (Tr. 398). The RFC preclusion on “the use of

depth perception, or fine, close work such as a barber, machinist, or needle worker” is

inadequate to describe Plaintiff’s visual limitations (Tr. 19-20). 

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Likewise, the RFC, precluding “forceful gripping or twisting with the bilateral hands” 

does not adequately reflect Plaintiff’s manipulative limitations (Tr. 20). The ALJ

downplayed August, 2013 EMG studies showing the condition of bilateral CTS by noting

that the studies were otherwise normal (Tr. 21, 464). However, Plaintiff’s testimony of

bilateral finger numbness is wholly consistent with the diagnosis of CTS (Tr. 47). While the

ALJ rejected Dr. Tolia’s findings on the basis that they were not supported by the objective

studies, his conclusion that Plaintiff was unable to perform fine manipulations or grasp more

than 20 percent of the workday is not inconsistent with the EMG studies (Tr. 483). As noted

byPlaintiff, Dr. Tolia’s preclusion on repetitive hand and wrist movement is not contradicted

by any of the examining or treating records. 

Moreover, the ALJ’s finding that Plaintiff did not experience a significant degree of

psychological impairment is not supported by substantial evidence. First, in finding the lack

of a mental impairment, the ALJ relied on the non-examining findings of Dr. Kaul (Tr. 18-

19). While Dr. Kaul is correct that Plaintiff did not seek mental health treatment, the record

shows that for some time, she apparently lacked access to any regular health care treatment. 

Records predating the onset of disability show that she went to the emergency room for

health problems (Tr. 322, 350, 358). Despite the sparse treating history, March, 2008

inpatient records note that she was diagnosed with depression as well as physical problems

(Tr. 322). The treating notes from 2008 forward show that she was prescribed either Elavil

or Cymbalta for depression (215, 315, 324). 

The lack of mental health records does not imply that depression did not create workrelated impairments, but rather, suggests that she lacked the resources to obtain treatment for

any of her conditions. For example, the ophthalmological records show that she did not seek

treatment for retinopathy until after she had experienced multiple hemorrhages in both eyes

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(Tr. 408). While the ALJ cited Dr. Shah’s consultative examination notes to support her

finding that Plaintiff did not experience a mental impairment, in fact Dr.Shah’s observations,

with nothing more, stronglysupport the finding that depression created some degree of workrelated limitation. He apparently concluded that Plaintiff’s report of isolative behavior,

crying jags, and mood swings was believable, given that he found that she “minimized” her

symptoms (Tr. 363-364). Notably, he found that Plaintiff lacked the wherewithal to manage

her benefit funds and found that she had a moderate degree of psychological disfunction (Tr.

365). The ALJ error in omitting depression from the “severe” impairments at Step Two was

compounded by the lack of reference to the condition in the RFC. 

Because the RFC does not reflect Plaintiff’s full degree of limitation due to vision

problems, CTS, or depression, a remand is warranted for correction of these omissions. 

B. The Credibility Determination

Plaintiff argues further that the ALJ did not provide an adequate rationale for finding

that her testimony was not credible. Plaintiff’s Brief at 14-16. 

Consistent with above discussion, the credibility determination relies on distortions,

if not outright misstatements of the record. The ALJ faults Plaintiff for claiming blood sugar

readings of over 200 to Dr. Bedia (Tr. 21). However, consistent with Plaintiff’s claim,

February, 2013 emergency room records state that Plaintiff’s blood sugar was 207 (Tr. 455). 

Records from 2008 forward indicate that the February, 2013 reading was not a fluke. During

a 2008 hospitalization, Plaintiff’s blood sugar levels ranged between 189 and 248 (Tr. 329-

344). Dr. Bedia noted that Plaintiff’s diabetes was “not controlled well” (Tr. 370). 

More generally, the ALJ’s narrative understates the severity of the condition of

diabetes. While she noted Plaintiff’s report of the diabetes-related symptoms of thirstiness,

frequent urination, and tingling in the legs, she inexplicably “discounted” the claims by

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noting that the blood sugar readings reported to Dr. Blau were onlymoderately high (Tr. 21). 

However, Plaintiff’s alleged symptoms are wholly consistent with the diagnosis of longstanding, poorly controlled diabetes. None of the treating records contradicts Plaintiff’s

reported symptoms. More remarkably, the ALJ prefaces the discussion of Plaintiff’s

treatment for diabetic retinopathy, hemorrhaging, and lasersurgerybystating that “the record

reveals no evidence of any specialized, intensive, or otherwise emergent care for diabetes

mellitus” (Tr. 21). It is unclear why the ALJ does not believe that multiple laser surgeries

for retinal hemorrhaging resulting from diabetes is not “specialized” care. 

The ALJ’s reliance on Plaintiff’s daily activities to support the non-disability finding

is also based on misstatements of the record (Tr. 22). While the ALJ found that Plaintiff’s

ability to care for her teenage son, cook, clean, and do laundry chores undermined the

disability claim, Plaintiff testified that her teenaged son did the vacuuming and helped her

with cooking because she could not lift more than 10 pounds (Tr. 42). While the ALJ cited

Plaintiff’s ability to care for her grandchildren in the afternoon in support of her nondisability finding, Plaintiff reported that she often relied on her teenaged son to prepare

snacks and that she was able to “relax on the couch” for 15 minutes when needed because

she was taking care of her own grandchildren rather than other people’s children (Tr. 37-38,

44). While the ALJ noted that Plaintiff was able to shop for groceries, Plaintiff testified that

she relied on others for transportation and once inside the grocery store, used a motorized

cart (Tr. 47-48). 

In support of the credibility determination, the ALJ also noted that Plaintiff enjoyed

“listening to the radio and watching television” (Tr. 22). It is unclear how “listening to the

radio” supports the finding that she could work on a full-time basis as a cleaner. Moreover,

while Plaintiff testified that she watched television, her actually testimony states that she

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“mostly” used her “ears” to follow television programs due to her poor vision (Tr. 39). 

Finally, I note that the sparse treating records, juxtaposed against the seriousness of

Plaintiff’s conditions, appear to be attributable to her lack of financial resources rather than

a lack of symptomology. Pursuant to SSR 96–7p, 1996 WL 374186, *7 (1996), an ALJ

“must not draw any inferences about an individual's symptoms and their functional effects

from a failure to seek or pursue regular medical treatment without first considering any

explanations that the individual may provide, or other information in the case record, that

may explain infrequent or irregular medical visits or failure to seek medical treatment.” See

also SSR 82–59, 1982 WL 31384, *4 (1982) (The ALJ must consider an individual's claim

that she is unable to afford the prescribed treatment). 

The transcript shows that Plaintiff customarily sought emergency room, rather than

office treatment. The emergency care records indicate that Plaintiff did not carry insurance. 

While Plaintiff reported long-term back pain, the only imaging studies created were x-rays

of the cervical and lumbar spine taken shortly before the hearing (Tr. 474-476). Despite the

fact that the lumbar spine x-ray showed some level of abnormality at S5-L1, she did not

obtain more detailed (but also more expensive) imaging studies such as a CT scan or MRI

(Tr. 476). While the failure to seek timely treatment for diabetes, mental health care for

depression, or further imaging studies for the back condition appears to be attributable to

financial restrictions, the ALJ did not inquire as to the reason for Plaintiff’s lack of

aggressive treatment or make reference to her possible financial restrictions in the

administrative decision. 

C. The Hypothetical Question

Finally, Plaintiff contends that the hypothetical question to the VE, mirroring the

limitations found in the RFC, did not account for her full degree of physical and mental

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limitation. Id. at 16-17. 

Plaintiff is correct that a hypothetical question constitutes substantial evidence only

if it accurately portrays the individual's physical and mental impairments. Varley v. 4

Commissioner of Health and Human Services, 820 F.2d 777, 779 (6th Cir.1987). While the

Sixth Circuit has rejected the proposition that all of the claimant's maladies must be listed

verbatim, “[t]he hypothetical question ... should include an accurate portrayal of [a

claimant's] individual physical and mental impairments.” Webb v. Commissioner of Social

Sec., 368 F.3d 629, 632 (6th Cir.2004).

Consistent with the above findings regarding the RFC, the hypothetical question to

the VE did not adequately account for Plaintiff’s full degree of limitation. To be sure, an

ALJ is not required to include discredited findings or all of the claimant's allegations in the

4

While an ALJ is not required to elicit vocational testimony in making a Step Four

finding, the use of a VE is not prohibited. Studaway v. Secretary of Health and Human

Services, 815 F.2d 1074, 1076 (6th Cir.1987); Mays v. Barnhart, 78 Fed. Appx. 808,

813–814, 2003 WL 22430186, *4 (3rd Cir. October 27, 2003) (“At step four of the sequential

evaluation process, the decision to use a vocational expert is at the discretion of the ALJ”).

While “ 'the ultimate responsibility for making the necessary findings at [Step Four] rests

with our adjudicators ... it is appropriate for our adjudicators to consider evidence from a VE

...' ” Merkel v. CSS, 2008 WL 2951276, *3–4 (E.D.Mich. July 29, 2008) (Lawson, J.)(citing

20 C.F.R. § 404.1560(b)). “The ALJ may choose to rely on the VE's testimony in complex

cases, given the VE's ability to tailor h[is] finding to an 'individual's particular residual

functional capacity. ” Beinlich v. Commissioner, 345 Fed.Appx. 163, 167, 2009 WL

2877930, at *4 (6th Cir.Sept.9, 2009)(citing Wright v. Massanari, 321 F.3d 611, 616 (6th

Cir.2003)). “The function of the VE is to advise the ALJ of jobs found among various

categories of employment which the claimant can perform with h[is] limitations.” The

hypothetical question and corresponding VE testimony, if adopted by the ALJ, must

accurately reflect the claimant's degree of limitation. At Step Four, “the propriety of the

hypothetical question ... is a proper concern for the Court, since it may furnish relevant

information that the ALJ may consider in determining whether the plaintiff could do her past

work.” Merkel, at *4.

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hypothetical question to the VE. Stanley v. Secretary of Health and Human Services, 39 F.3d

115, 118–119 (6th Cir.1994). However, the ALJ’s rationale for rejecting a portion of

Plaintiff’s most critical limitations is not supported by substantial evidence. The hypothetical

restriction precluded work requiring “depth perception” and “fine close work” is vastly

inadequate to account for chronic visual disturbances preventing Plaintiff from discerning

faces, reading newspaper print, or seeing images on television (Tr. 51). Likewise, the

manipulative limitations found in the hypothetical question precluding “forceful gripping or

twisting with the hands” does not fully address the limitations created by bilateral CTS (Tr.

51). As discussed above, the ALJ’s finding that Plaintiff’s activities undermined her

allegations of limitation is based on a highly selective if not distorted account of the

testimony. 

In contrast, it is unclear whether the failure to reference Plaintiff’s psychological

limitations in the hypothetical question, standing alone, provides a basis for remand. While

the hypothetical question forming the basis of the RFC makes no mention of psychological

limitations, the VE testified later that if the same hypothetical individual were limited to

“simple routine tasks in a low stress environment defined as not quick decision-making, and

no quick judgment required on the job, . . . no interaction with the public, and only minimal

interaction with co-workers,” the individual could perform Plaintiff’s past work as a cleaner

(Tr. 53). Because the alternative hypothetical question appears to acknowledge that an

individual with some level of psychological limitation could perform the work of a cleaner,

it is possible that such modifiers are sufficient to address the symptoms of depression. 

However, because the other errors discussed herein provide grounds for remand, the ALJ

should, on remand, reassess the degree to which Plaintiff’s psychological limitations should

be included in the hypothetical question and the RFC.

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 While a remand to the administrative level is warranted for the above-discussed

reasons, I decline to recommend a remand for an award of benefits. A remand for an award

of benefits is appropriate “only if all essential factual issues have been resolved and the

record adequately establishes a plaintiff's entitlement to benefits.” Faucher v. Sec'y of Health

& Hum. Servs., 17 F.3d 171, 176 (6th Cir.1994). While the errors discussed herein strongly

support a remand, a remand for benefits prior to the resolution of the unresolved factual

issues would be premature. As such, I recommend a remand for further administrative

proceedings consistent with this Report. 

CONCLUSION

For the reasons stated above, I recommend that Plaintiff’s Motion for Summary

Judgment be GRANTED to the extent that the case is remanded for further fact-finding

and that Defendant’s Motion for Summary Judgment be DENIED. 

Any objections to this Report and Recommendation must be filed within 14 days of

service of a copy hereof as provided for in 28 U.S.C. §636(b)(1) and E.D. Mich. LR

72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of

appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v.

Secretary of HHS, 932 F.2d 505 (6 Cir. 1991); United States v. Walters, 638 F.2d 947 (6 th th

Cir. 1981). Filing of objections which 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. Secretary of HHS, 931 F.2d 390, 401 (6 Cir. 1991); Smith v. th

Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6 Cir. 1987). Pursuant to E.D. th

Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge.

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Within 14 days of service of any objecting party’s timely filed objections, the

opposing party may file a response. The response shall be not more than 20 pages in

length unless by motion and order such page limit is extended by the court. The response

shall address specifically, and in the same order raised, each issue contained within

 the objections. 

s/ R. Steven Whalen 

R. STEVEN WHALEN

UNITED STATES MAGISTRATE JUDGE

Dated: February 29, 2016

CERTIFICATE OF SERVICE

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

February 29, 2016, electronically and/or by U.S. mail.

s/Carolyn M. Ciesla 

Case Manager to the

Honorable R. Steven Whalen

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