1

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

ANN CHRISTO, 

 Plaintiff, 

v. 

COMMISSIONER OF 

SOCIAL SECURITY, 

 Defendant. 

 

Case No. 5:15-cv-11589 

Judge Judith E. Levy 

Magistrate Judge Anthony P. Patti 

___________________________________/ 

REPORT AND RECOMMENDATION TO DENY PLAINTIFF’S MOTION 

FOR SUMMARY JUDGMENT (DE 18) and GRANT DEFENDANT’S 

MOTION FOR SUMMARY JUDGMENT (DE 21) 

I. RECOMMENDATION: For the reasons that follow, it is 

RECOMMENDED that the Court DENY Plaintiff’s motion for summary 

judgment (DE 18), GRANT Defendant’s motion for summary judgment (DE 21), 

and AFFIRM the Commissioner’s decision. 

II. REPORT 

 Plaintiff, Ann Christo, brings this action under 42 U.S.C. § 405(g) and 42 

U.S.C. § 1383(c)(3) for review of a final decision of the Commissioner of Social 

Security (“Commissioner”) denying her application for supplemental security 

income (SSI) benefits. This matter is before the United States Magistrate Judge for 

a Report and Recommendation on Plaintiff’s motion for summary judgment (DE 

5:15-cv-11589-JEL-APP Doc # 23 Filed 11/22/16 Pg 1 of 28 Pg ID 821
2

18), the Commissioner’s cross motion for summary judgment (DE 21), and the 

administrative record (DE 14). 

A. Background

 Plaintiff filed her application for SSI benefits on June 6, 2012, alleging that 

she has been disabled since October 14, 2009, at age 48. (R. at 132-140.) Plaintiff 

alleges disability as a result of chronic obstructive pulmonary disease (COPD), 

diabetes, spondylolisthesis, post-traumatic stress disorder (PTSD), depression, 

neuropathy, and liver disease. (R. at 152.) Plaintiff’s application was denied on 

December 11, 2012. (R. at 63-79.) 

On January 2, 2013, Plaintiff sought a de novo hearing before an 

Administrative Law Judge (“ALJ”). (R. at 86.) ALJ Karen Sayon held a hearing 

on September 25, 2013, at which Plaintiff was represented by counsel and 

Vocational Expert (VE) Thomas Dunleavy testified. (R. at 36-62.) On October 

24, 2013, ALJ Sayon determined that Plaintiff was not disabled within the meaning 

of the Social Security Act. (R. at 10-35.) 

Plaintiff requested review of the hearing decision. (R. at 6-9.) On March 2, 

2005, the Appeals Council denied Plaintiff’s request for review. (R. at 1-5.) Thus, 

ALJ Sayon’s decision became the Commissioner’s final decision. 

Plaintiff then timely commenced the instant action on May 2, 2015. (DE 1.) 

B. Plaintiff’s Medical History 

5:15-cv-11589-JEL-APP Doc # 23 Filed 11/22/16 Pg 2 of 28 Pg ID 822
3

 Plaintiff alleges in the field office disability report that she has been disabled 

since October 14, 2009. (See R. at 147-150.) Her medical records span the period 

from July 1, 2009 to September 13, 2013. (R. at 220-711 [Exhibits 1F-17F].) 

Although the approximately 492 pages of medical records are comprised primarily 

of treatment records, these include the August 23, 2012 consultative examination 

by Terrance A. Mills, Ph.D., a licensed psychologist, which was apparently 

requested by the State of Michigan Department of Human Services (R. at 658-661 

[Ex. 11F]), and the September 19, 2012 consultative examination by Maury R. 

Ellenberg, M.D., of Rehabilitation Physicians, P.C., to whom Plaintiff had 

apparently been referred by treating physician Steven Feldman, M.D. (R. at 663-

665 [Ex. 12F]). These will be discussed as necessary below. 

 C. Hearing Testimony 

 ALJ Sayon conducted a video hearing on September 25, 2013, during which 

Plaintiff amended her onset date to the March 28, 2012 filing date and at which 

Plaintiff and VE Dunleavy testified. (See R. at 36-62.) As the instant appeal 

presents a limited challenge to the ALJ’s credibility determination, I will forego 

further summary of the testimony for the time being and only refer to it as 

necessary below. 

5:15-cv-11589-JEL-APP Doc # 23 Filed 11/22/16 Pg 3 of 28 Pg ID 823
4

 D. The Administrative Decision1

ALJ Sayon rendered her decision on October 24, 2013. (R. at 12-35.) At 

Step 1, she determined that Plaintiff has not engaged in substantial gainful activity 

since March 28, 2012, the application date. (R. at 17.) At Step 2, the ALJ 

determined that Plaintiff has the following severe impairments: COPD, diabetes 

mellitus with neuropathy, hoarseness, lumbar degenerative disc disease (DDD) and 

spondylolisthesis, PTSD, major depressive disorder, alcohol abuse in remission, 

cirrhosis of the liver, and obesity. (R. at 17.) At Step 3, the ALJ determined that 

Plaintiff does not have an impairment or combination of impairments that meets or 

medically equals the severity of one of the listed impairments. (R. at 17-19.) At 

 

1 Social Security Regulations require ALJs to resolve a disability claim through a 

five-step sequential evaluation of the evidence. See 20 C.F.R. §404.1520(a)(4); 

see also 20 C.F.R. § 416.920. Although a dispositive finding at any step terminates 

the ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), if 

fully considered, the sequential review considers and answers five questions: 

 1. Is the claimant engaged in substantial gainful activity? 

 2. Does the claimant suffer from one or more severe impairments? 

 3. Do the claimant’s severe impairments, alone or in combination, meet 

or equal the criteria of an impairment set forth in the Commissioner’s Listing of 

Impairments, 20 C.F.R. Subpart P, Appendix 1? 

 4. Considering the claimant’s residual functional capacity, can the 

claimant perform his or her past relevant work? 

 5. Considering the claimant’s age, education, past work experience, and 

residual functional capacity, can the claimant perform other work available in the 

national economy? 

See 20 C.F.R. §404.1520(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th 

Cir. 2009); Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001). 

5:15-cv-11589-JEL-APP Doc # 23 Filed 11/22/16 Pg 4 of 28 Pg ID 824
5

Step 4, the ALJ determined that Plaintiff had the RFC to perform the exertional 

limitations of light work, with some further postural, environmental, and mental 

health limitations, and further found that Plaintiff is unable to perform any past 

relevant work. (R. at 19-29.) At Step 5, considering Plaintiff’s age, education, 

work experience, and RFC, the ALJ found that there are jobs that exist in 

significant numbers in the national economy that Plaintiff can perform. (R. at 29-

30.) 

 E. Standard of Review

 The District Court has jurisdiction to review the Commissioner’s final 

administrative decision pursuant to 42 U.S.C. § 405(g). When reviewing a case 

under the Social Security Act, the Court “must affirm the Commissioner’s decision 

if it ‘is supported by substantial evidence and was made pursuant to proper legal 

standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) 

(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see 

also 42 U.S.C. § 405(g) (“[t]he findings of the Commissioner of Social Security as 

to any fact, if supported by substantial evidence, shall be conclusive . . . .”). Under 

this standard, “substantial evidence is defined as ‘more than a scintilla of evidence 

but less than a preponderance; it is such relevant evidence as a reasonable mind 

might accept as adequate to support a conclusion.’” Rogers, 486 F.3d at 241 

(quoting Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 

5:15-cv-11589-JEL-APP Doc # 23 Filed 11/22/16 Pg 5 of 28 Pg ID 825
6

1994)). In deciding whether substantial evidence supports the ALJ’s decision, the 

Court does “not try the case de novo, resolve conflicts in evidence or decide 

questions of credibility.” Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007); 

Rogers, 486 F.3d at 247 (“It is of course for the ALJ, and not the reviewing court, 

to evaluate the credibility of witnesses, including that of the claimant.”). 

 Although the substantial evidence standard is deferential, it is not trivial. 

The Court must “‘take into account whatever in the record fairly detracts from 

[the] weight’” of the Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 

395 (6th Cir. 2002) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 

(1951)). Nevertheless, “if substantial evidence supports the ALJ’s decision, this 

Court defers to that finding ‘even if there is substantial evidence in the record that 

would have supported an opposite conclusion.’” Blakley v. Comm’r of Soc. Sec., 

581 F.3d 399, 406 (6th Cir. 2009) (quoting Key v. Callahan, 109 F.3d 270, 273 (6th 

Cir. 1997)). Finally, even if the ALJ’s decision meets the substantial evidence 

standard, “‘a decision of the Commissioner will not be upheld where the SSA fails 

to follow its own regulations and where that error prejudices a claimant on the 

merits or deprives the claimant of a substantial right.’” Rabbers, 582 F.3d at 651 

(quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)). 

F. The ALJ’s opinion is supported by substantial evidence. 

5:15-cv-11589-JEL-APP Doc # 23 Filed 11/22/16 Pg 6 of 28 Pg ID 826
7

At the outset, the Court wishes to comment on the frustrating form of 

Plaintiff’s motion for summary judgment. Namely, while the “table of contents” 

and single-capitalized argument appear to set forth the “issues presented” 

contemplated by E.D. Mich. LR 7.1(d)(2) (“Form of Required Briefs.”), a close 

reading of the 4-page argument section’s substance reveals fragments of several 

other sub-arguments. (See DE 18 at 5, 11-14.) This leaves the Court with a lack of 

clearly defined issues under its consideration. 

In any event, although the single sub-heading at the beginning of Plaintiff’s 

argument section appears limited to very broadly challenging the ALJ’s Step 3 and 

Step 4 determinations, the body of this argument reveals more specific challenges 

to the ALJ’s evaluation of: (1) the severe physical impairments under the listed 

impairments; (2) the physical and mental health limitations in the RFC, within 

which Plaintiff challenges (3) the ALJ’s credibility assessment. (DE 18 at 11-14.) 

The Commissioner argues for affirmance, asserting that substantial evidence 

supports the ALJ’s Step 3 determination and RFC finding. (DE 21 at 12-27.) 

1. The ALJ’s Step 3 determinations as to Plaintiff’s severe 

physical impairments should be affirmed. 

At Step 2, the ALJ found that Plaintiff had several severe physical 

impairments, including COPD, diabetes mellitus with neuropathy, hoarseness, 

5:15-cv-11589-JEL-APP Doc # 23 Filed 11/22/16 Pg 7 of 28 Pg ID 827
8

lumbar DDD, spondylolisthesis,2

 cirrhosis of the liver, and obesity; nonetheless, at 

Step 3, the ALJ found that Plaintiff’s impairments or combination of impairments 

do (does) not meet or medically equal the severity of one of the listed impairments. 

(R. at 17.) The ALJ paid particular attention to, among other listings, 1.04 

(“Disorders of the spine”) and 5.05 (“Chronic liver disease”) – the very listings she 

claims were either ignored and/or inadequately evaluated (DE 18 at 11) - and 

considered the opinions of the State Agency medical consultants, presumably the 

September 3, 2012 opinion of George Starrett, Ed.D., and the December 7, 2012 

opinion of Shahida Mohiuddin, M.D. (R. at 17-18, R. at 71-79.) 

Plaintiff contends that the ALJ broadly rejected her physical impairments at 

Step 3. In particular, Plaintiff points to office treatment records from Dr. Steven 

Feldman, M.D. (R. at 681-707 [Ex. 16F]) and one-time office treatment records 

from Peter Bono, D.O. (R. at 708-711 [Ex. 17F]), claiming that “considering the 

medical evidence the ALJ could have reasonably concluded that the Plaintiff 

equaled the listing 5.05 for a 12 month period[,] “[t]he medical records describe 

Plaintiff’s condition as dire during a period of time where she would have clearly 

met . . . listing [5.05][,]” and “[t]he medical records describe very severe back 

problems that ought to be considered under listing 1.04, including the 

 

2

 Spondylolisthesis is “[f]orward movement of the body of one of the lower lumbar 

vertebrae on the vertebra below it, or on the sacrum.” Stedman’s Medical 

Dictionary 840330 (Nov. 2014). 

5:15-cv-11589-JEL-APP Doc # 23 Filed 11/22/16 Pg 8 of 28 Pg ID 828
9

recommendation for surgery.” (See DE 18 at 11.) Unfortunately, she fails to tell 

the Court how her general characterization of a “dire” liver condition or a 

recommendation of surgical intervention meet the specific listing requirements set 

forth in the regulations. 

This lack of specificity, and other reasons discussed below, lead me to 

conclude that the Court should confirm the ALJ’s Step 3 determinations as to 

Listing 1.04 and Listing 5.05. First, the ALJ considered “all of the listings,” 

paying particular attention to the ones Plaintiff expressly mentions. (R. at 17.) In 

so doing, she stated: “the medical evidence does not document listing-level 

severity, and no acceptable medical source has mentioned findings equivalent in 

severity to the criteria of any listed impairment, individually or in combination.” 

(R. at 17-18.) She also explained that she found “no evidence of listing level 

impairment with consideration given to the above listing(s) or any other listed 

impairment . . .[,]” and “the claimant does not manifest clinical si[gn]s and 

findings that meet the specific criteria of any listing.” (R. at 18.) 

Second, to the extent the ALJ’s Step 3 discussion of Plaintiff’s severe 

physical impairments does not contain a detailed discussion of the criteria for those 

listings to which she paid particular attention (R. at 17-18), this, by itself, is not 

diminishing. The Sixth Circuit has explained, albeit as to medical equivalency, 

“[t]he language of 20 C.F.R. § 404.1526 does not state that the ALJ must 

5:15-cv-11589-JEL-APP Doc # 23 Filed 11/22/16 Pg 9 of 28 Pg ID 829
10

articulate, at length, the analysis of the medical equivalency issue. It states that the 

ALJ should review all evidence of impairments to see if the sum of impairments is 

medically equivalent to a ‘listed impairment.’” Bledsoe v. Barnhart, 165 F. App'x 

408, 411 (6th Cir. 2006). The ALJ did so here. Moreover, “the ALJ's factual 

findings are supported by substantial evidence[,]” and “[t]he plain language of the 

ALJ's opinion states that he considered all impairments.” Bledsoe, 165 F. App’x at 

411. In Plaintiff’s case, as seemingly evidenced by a more than 4-page, detailed 

review of Plaintiff’s physical medical records (R. at 21-25), the ALJ “made 

sufficient factual findings elsewhere in h[er] decision to support h[er] conclusion at 

step three.” Forrest v. Comm'r of Soc. Sec., 591 F. App'x 359, 366 (6th Cir. 2014). 

See also Smith-Johnson v. Comm'r of Soc. Sec., 579 F. App'x 426, 435 (6th Cir. 

2014) (“It also is proper to consider the ALJ's evaluation of the mental-health 

assessment of [Plaintiff] at other steps of [the] decision to determine how to credit 

the evidence at issue in this appeal.”) (citing Bledsoe, 165 F. App’x. at 411).3

Third, even if the ALJ had failed to discuss the listings criteria in other 

portions of her decision, Plaintiff has not met her burden to successfully challenge 

the ALJ’s Step 4 RFC determination. Other than referring to what appears to be 

 

3 See also Johnson v. Comm'r of Soc. Sec., No. 14-11375, 2015 WL 5093321, at *9 

(E.D. Mich. Aug. 28, 2015) (“Furthermore, he fully articulated his reasoning in 

portions of his opinion that did not directly address step three.”). 

5:15-cv-11589-JEL-APP Doc # 23 Filed 11/22/16 Pg 10 of 28 Pg ID 830
11

Dr. Bono’s surgical recommendation,4

 Plaintiff’s general reference to 30 pages of 

medical records (R. at 682-711) is not the equivalent of illustrating to this Court 

how the evidence establishes that Plaintiff has met the numerous, specific criteria 

of the listings at issue. (DE 18 at 11). As the Commissioner correctly notes, 

“Plaintiff made no . . . demonstration that she met or equaled any Listing.” (DE 21 

at 16.) Indeed, she utterly fails to apprise this Court as to where in the record any 

“acceptable medical source has mentioned findings equivalent in severity to the 

criteria of any listed impairment, individually or in combination.” (R. at 17-18; see 

also DE 21 at 14.) Thus, she has not met her relative burden. See Jones v. Comm'r 

of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003) (“Through step four, the claimant 

bears the burden of proving the existence and severity of limitations caused by her 

impairments and the fact that she is precluded from performing her past relevant 

work . . . .”).5

 

4

 On September 13, 2013, Dr. Bono determined that Plaintiff was “a candidate for 

surgical intervention to treat a quality of life issue[,]” specifically a lumbar 

laminectomy and fusion. (R. at 710.) I further note, as did the Commissioner, that 

Dr. Bono “is not a ‘treating physician,’ for he saw Plaintiff only once, just two 

weeks before Plaintiff’s hearing.” (Compare DE 21 at 21-22, DE 18 at 12-13); see 

also Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 876 (6th Cir. 2007) (“Smith's 

contacts with Martin and Shah fail to evince the type of ongoing treatment 

relationship contemplated by the plain text of the regulation.”), 20 C.F.R. §§ 

404.1502, 416.902. 

5

 The Court is being generous in this regard. Issues “‘adverted to in a perfunctory 

manner,’” – as they are here – may be “‘deemed waived.’” McPherson v. Kelsey, 

5:15-cv-11589-JEL-APP Doc # 23 Filed 11/22/16 Pg 11 of 28 Pg ID 831
12

2. Substantial evidence supports the ALJ’s determination that 

Plaintiff’s RFC includes certain physical and mental health 

limitations, as contemplated by SSR 96-8p. 

Plaintiff contends that the ALJ’s Step 4 RFC determination does not 

“accurately portray” Plaintiff’s physical and mental health impairments. (DE 18 at 

12, 14.) “The RFC assessment must include a narrative discussion describing how 

the evidence supports each conclusion, citing specific medical facts (e.g., 

laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” 

SSR 96-8P (S.S.A. July 2, 1996). According to Plaintiff, “the ALJ never complied 

or even attempted to reconcile [SSR] 96-8p with h[er] decision.” (DE 18 at 14.) 

For the reasons that follow, the Court should disagree.

a. Physical RFC limitations (exertional, postural and 

environmental limitations) 

Plaintiff contends that the ALJ erred in her evaluation of Plaintiff’s physical 

limitations, with seeming reference to the exertional and/or postural limitations. 

(DE 18 at 12-13.) By way of background, exertional limitations include lifting, 

carrying, standing, walking, sitting, pushing and pulling. See 20 C.F.R. §§ 

404.1545(b), 416.945(b). Postural limitations include climbing, balancing, 

stooping, kneeling, crouching and crawling. (See R. at 74-75.) 

 

125 F.3d 989, 995 (6th Cir. 1997) (quoting Citizens Awareness Network, Inc. v. 

United States Nuclear Regulatory Comm’n, 59 F.3d 284, 293-294 (1st Cir. 1995)). 

5:15-cv-11589-JEL-APP Doc # 23 Filed 11/22/16 Pg 12 of 28 Pg ID 832
13

As previously noted, the ALJ determined at Step 4 that Plaintiff was (i)

exertionally limited to light work, and (ii) posturally limited to no climbing 

ladders, ropes, or scaffolding and occasionally balancing, stooping, kneeling, 

crouching, crawling, and climbing ramps and stairs. (R. at 19; see also R. at 25, 

29.) In addition, the ALJ cited state agency reviewing physician Shahida 

Mohiuddin, M.D.’s December 7, 2012 opinion - that Plaintiff was capable of 

performing the exertional limitations of light work with certain postural limitations 

(occasional climbing, balancing, stooping, kneeling, crouching and crawling) - and 

assigned “great weight” to it. (R. at 29, 74-75; see also R. at 77-78, 20 C.F.R. §§ 

404.1567(b), 416.967(b).) 

Plaintiff takes issue with the ALJ’s conclusion that, since September 2012, 

Plaintiff “has had minimal treatment and minimal examination findings . . .[,]” 

claiming that it minimizes Plaintiff’s impairments and is simply inaccurate. (DE 

18 at 12-13, R. at 25.) Specifically, she mentions: 

 The September 11, 2012 x-ray of the lumbosacral spine, which 

revealed scoliosis at the level of L2-3, advanced degenerative 

changes, and Grade 1 spondylolisthesis involving L5 on S1 (R. 

at 703 [Ex. 16F]) 

 that an April 26, 2013 stress/rest perfusion scan was terminated 

due to fatigue (R. at 706-707 [Ex. 16F])6

 

 

6

 The Commissioner points out that this is hardly unusual in cardiac stress tests. 

(DE 21 at 21 (citing Ann Bovin, et al., Myocardial Perfusion Imaging in Patients 

with a Recent, Normal Exercise Test, World J. Cardiol., 2013 Mar. 26; 5(3): 54-59 

5:15-cv-11589-JEL-APP Doc # 23 Filed 11/22/16 Pg 13 of 28 Pg ID 833
14

 The September 13, 2013 progress notes of Dr. Bono, who 

opined Plaintiff was “a candidate for surgical intervention to 

treat a quality of life issue.” (R. at 708-711 [Ex. 17F]) 

(DE 18 at 12-13.) Instead, Plaintiff claims she “has had extensive treatment and 

has done everything recommended by her doctors . . . .” (DE 18 at 13.) 

Nonetheless, the Court should conclude that the ALJ properly accounted for 

Plaintiff’s related physical conditions, presumably COPD, lumbar DDD and 

spondylolisthesis, and perhaps even her obesity. For example, the ALJ 

acknowledged key pieces of evidence, such as: 

 Plaintiff’s September 25, 2013 hearing testimony regarding her 

diagnosis of COPD following a 2009 house fire (R. at 21, see 

also R. at 47) 

 Several diagnoses of COPD (R. at 23-24, see also R. at 691-

692, 693-694, 695-699 [Ex. 16F], 666-667 [Ex. 13F]) 

 Evidence or diagnosis of degenerative change(s) (R. at 22-24, 

see also R. at 703, 705 [Ex. 16F], 663-665 [Ex. 12F]) 

 Evidence or diagnoses of spondylolisthesis (R. at 22-24, see 

also R. at 703 [Ex. 16F], 663-665 [Ex. 12F], 666-667 [Ex. 

13F], 708-711 [Ex. 17F]) 

Moreover, the ALJ remarked that Plaintiff “has gained weight recently 

and is now just above the BMI cusp for obesity[,]” likely referring to Dr. 

Feldman’s notes from November 16, 2012, December 18, 2012 and July 16, 2013. 

 

(“All patients terminated the exercise test because of exhaustion or muscle 

fatigue.”)). 

5:15-cv-11589-JEL-APP Doc # 23 Filed 11/22/16 Pg 14 of 28 Pg ID 834
15

(R. at 25; see also R. at 23-24, 691, 693, 700.) In addition, the ALJ expressly set 

forth her reasons for including the above-mentioned exertional, postural and 

environmental limitations: 

. . . as a result of the combination of her physical impairments, I have 

limited the claimant to light work with no climbing of ladders, ropes, 

or scaffolding; occasional balancing, stooping, kneeling, crouching, 

crawling, and climbing ramps and stairs. Due to her [COPD], the 

claimant can have no concentrated exposure to temperature extremes, 

humidity, respiratory irritants, heights, or hazards. 

(R. at 24-25 (emphases added).) In other words, the ALJ expressly addressed 

Plaintiff’s COPD by including several environmental limitations and expressly 

addressed the combination of her physical impairments (presumably including 

Plaintiff’s COPD, lumbar DDD and spondylolisthesis, and seemingly her obesity) 

by including exertional and postural limitations. The ALJ here can hardly be 

accused of having ignored the record, and Plaintiff is not entitled to have the Court 

reweigh the evidence in her favor on appeal. Haun v. Comm'r of Soc. Sec., 107 F. 

App'x 462, 465 (6th Cir. 2004) (“We may not reweigh conflicting evidence on 

appeal, but instead must affirm Judge Davis's decision because substantial 

evidence supports it.”). 

Thus, the Court should conclude that the ALJ’s determination that Plaintiff 

has the RFC to perform the exertional requirements of light work with the 

foregoing postural and environmental limitations is supported by substantial 

evidence. 

5:15-cv-11589-JEL-APP Doc # 23 Filed 11/22/16 Pg 15 of 28 Pg ID 835
16

b. Mental health RFC limitations (routine, repetitive 

tasks; simple instructions; occasional changes in the 

workplace setting; and occasional interaction with the 

public, both in person and over the phone) 

Plaintiff also challenges the ALJ’s assessment of her mental health 

limitations. (DE 18 at 13-14.) “When we assess your mental abilities, we first 

assess the nature and extent of your mental limitations and restrictions and then 

determine your residual functional capacity for work activity on a regular and 

continuing basis. A limited ability to carry out certain mental activities, such as 

limitations in understanding, remembering, and carrying out instructions, and in 

responding appropriately to supervision, co-workers, and work pressures in a work 

setting, may reduce your ability to do past work and other work.” 20 C.F.R. §§ 

404.1545(c), 416.945(c). 

As noted earlier, the ALJ concluded at Step 2 that Plaintiff had the severe 

mental health impairments of PTSD, major depressive disorder and alcohol abuse 

in remission. (R. at 17.) At Step 3, the ALJ determined that Plaintiff has moderate 

difficulties with regard to CPP. (R. at 18.) At Step 4, the ALJ determined that 

Plaintiff’s RFC included certain mental health limitations, specifically limiting 

Plaintiff to: (i) “routine, repetitive tasks,” (ii) “simple instructions,” (iii)

5:15-cv-11589-JEL-APP Doc # 23 Filed 11/22/16 Pg 16 of 28 Pg ID 836
17

“occasional changes in the workplace setting[,]” and (iv) “occasional interaction 

with the public, both in person and over the phone.” (R. at 19, 28.)7

 

In arriving at this determination, the ALJ relied, at least in part, upon the 

September 3, 2012 opinions of state agency reviewer Dr. Starrett. (R. at 29, R. at 

71-73, 75-77.) By way of background, state agency reviewer Dr. Starrett 

concluded that Plaintiff has moderate difficulties in maintaining concentration, 

persistence or pace (CPP). (R. at 72.) Relatedly, Dr. Starrett’s mental RFC 

assessment included limitations in “concentration and persistence,” such as 

moderate limitations in her abilities to “maintain attention and concentration for 

extended periods[,]” “complete a normal workday and workweek without 

interruptions from psychologically based symptoms,” and “perform at a consistent 

pace without an unreasonable number and length of rest periods[,]” ultimately 

noting that Plaintiff retains the RFC to perform “simple[,] [repetitive] tasks.” (R. 

at 76.) Dr. Starrett included these limitations to account for Plaintiff’s “mood 

disorder.” (Id.)8

 The ALJ assigned Dr. Starrett’s opinion “great weight,” 

explaining that it is “consistent with the evidence as a whole.” (R. at 29.) 

 

7

 The ALJ specifically explained that the latter limitation was based on Plaintiff’s 

hoarseness. (See R. at 24-25.) 

 

8

 It appears that, at some point during his review, state agency mental health 

consultant Dr. Starrett accorded “great weight” to the August 23, 2012 consultative 

examination report of licensed psychologist Dr. Mills. (See R. at 74, 658-661.) 

5:15-cv-11589-JEL-APP Doc # 23 Filed 11/22/16 Pg 17 of 28 Pg ID 837
18

Plaintiff seems to contend that the ALJ committed error by assigning nonexamining Dr. Starrett’s opinion “great weight” but not incorporating each of its 

limitations into the RFC, which, in turn, casts doubt upon the accuracy of the 

RFC’s portrayal of Plaintiff’s limitations. (DE 18 at 12-14.)9

 In particular, 

Plaintiff appears to contend that the ALJ omitted one of Dr. Starrett’s 

concentration and persistence limitations from the RFC determination, namely, her 

moderate inability “to complete a normal workday and workweek without 

interruptions from psychologically based symptoms and to perform at a consistent 

pace without an unreasonable number and length of rest periods.” (DE 18 at 13, R. 

at 76.) 

However, the Court should conclude that the ALJ’s mental health RFC 

adequately addresses Plaintiff’s mental health conditions. To begin, the state 

agency reviewer’s assessment of the “B” criteria of the listings is consistent with 

the conclusions reached by the ALJ at Step 2 – namely Dr. Starrett opined and the 

ALJ determined that Plaintiff was mildly restricted in activities of daily living, had 

mild difficulties in maintaining social functioning, had moderate difficulties in 

maintaining CPP, and had no repeated episodes of decompensation, each of 

 

9

 Here, it is worth mentioning that, although Plaintiff’s motion states, “[t]he ALJ’s 

failure to give specific reasons and explain precisely how those reasons affected 

the weight accorded the opinions is a legal error requiring reversal[,]” (DE 18 at 

11), the motion does not include a developed challenge to the ALJ’s assignment of 

weight to the opinion evidence, other than the aforementioned criticism that the 

ALJ failed to include all of Dr. Starrett’s limitations.

5:15-cv-11589-JEL-APP Doc # 23 Filed 11/22/16 Pg 18 of 28 Pg ID 838
19

extended duration. (See R. at 18, 72.) Stating what limitations a claimant has – as 

was done here – is “exactly what an RFC does.” Gower v. Comm'r of Soc. Sec., 

No. 13-14511, 2015 WL 163830, at *23 (E.D. Mich. Jan. 13, 2015). 

Plaintiff’s challenge to the ALJ’s mental health RFC assessment seems to 

loosely argue that the ALJ’s various mental health limitations do not appropriately 

address her severe mental health impairments - presumably her PTSD, major 

depressive disorder and alcohol abuse in remission. More specifically, Plaintiff 

seems to argue that the ALJ has not appropriately addressed what Dr. Starrett 

opined were “moderate” restrictions in CPP. (DE 18 at 13, R. at 72, 76). 

However, it is clear to this reviewer that the ALJ did adequately consider 

Plaintiff’s moderate restrictions in CPP. First, in her Step 3 review of the 

“paragraph B” criterion of CPP, the ALJ observed: “the claimant has alleged 

difficulty paying attention and problems with changes in routine. A[t] an 

examination in February 2013, the claimant displayed intact memory, and she was 

able to gain and maintain attention (Exhibit 15F [R. at 680]).” (R. at 18.) Second, 

at the conclusion of her review of the mental health medical records, the ALJ 

stated: 

The overall evidence reveals that the claimant reports a long history of 

[PTSD] and depression. Prior to the period at issue here, the claimant 

witnessed a motor vehicle accident with multiple fatalities in 2007. 

Around October 2009, she overdosed and was hospitalized after she 

suffered a miscarriage. The claimant was drinking heavily at that 

time. The claimant started treatment with Comprehensive Psychiatric 

5:15-cv-11589-JEL-APP Doc # 23 Filed 11/22/16 Pg 19 of 28 Pg ID 839
20

Services in March 2011 and has pretty much been maintained on the 

same medications since then - Ambien 12.5 mg and Remeron 30 mg, 

with very minimal adjustments made to her medications. The claimant 

is seen every couple of months and is often noted to have a bright 

mood. The claimant's GAF was initially 50 and has increased 

thereafter, showing improvement with therapy and medications, with 

much of the focus of her treatment on family dynamics. As a result, I 

find she has the mental capacity to maintain sufficient concentration, 

persistence, or pace to appropriately and timely complete routine, 

repetitive tasks. The work should involve simple instructions; 

occasional changes in the workplace setting; and occasional 

interaction with the public.

(R. at 28 (emphasis added).) Thus, it cannot be said that the ALJ failed to comply 

with the narrative discussion requirement of SSR 96-8p.10

In addition, although Plaintiff lists some details of Dr. Starrett’s opinion 

regarding certain concentration and persistence limitations set forth in the mental 

RFC assessment (DE 18 at 13, R. at 76), Plaintiff has not shown how the 

aforementioned four mental health limitations (routine, repetitive tasks; simple 

instructions; occasional changes in the workplace setting; and occasional 

interaction with the public, both in person and over the phone) included in the RFC 

fail to address Plaintiff’s conditions and their related symptoms; thus, she has not 

met her relative burden. See Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 474 (6th 

 

10 Here, I note that Plaintiff does not appear to challenge the accuracy of the ALJ’s 

interpretation of the mental health medical records. Instead, Plaintiff’s claim about 

the ALJ’s inaccuracy appears related to the ALJ’s interpretation of the physical 

medical records as “minimal treatment and minimal examination findings . . .[,]” 

(DE 18 at 12-13, R. at 25), although, as discussed above, she does not definitively 

show how this factual finding constitutes reversible error. 

5:15-cv-11589-JEL-APP Doc # 23 Filed 11/22/16 Pg 20 of 28 Pg ID 840
21

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

existence and severity of limitations caused by her impairments and the fact that 

she is precluded from performing her past relevant work . . . .”). 

3. The ALJ properly discounted Plaintiff’s credibility in 

accordance with 20 C.F.R. §§ 404.1529(c), 416.929(c) and 

SSR 96-7p.11

The ALJ concluded that Plaintiff’s “symptoms and complaints are not 

supported by objective findings[,]” and further noted: “[d]isability findings cannot 

be based solely on her subjective complaints or her hearing testimony. While the 

evidence establishes some limitations, overall she would still be capable of 

performing light unskilled work on a sustained basis with additional limitations.” 

(R. at 28.) Here, Plaintiff argues that the ALJ “never evaluates the claimant’s 

subjective complaints” in accordance with SSR 96-7p. (DE 18 at 13-14; see also

20 C.F.R. §§ 404.1529(c)(2),(3), 416.929(c)(2),(3).) The Court should conclude 

otherwise. 

To begin, throughout Step 4, the ALJ discussed Plaintiff’s medical records, 

ultimately concluding that “the claimant's symptoms and complaints are not 

supported by objective findings.” (R. at 21-28.) Thus, the ALJ considered the 

“objective medical evidence” as permitted by 20 C.F.R. §§ 404.1529(c)(2), 

 

11 SSR 96-7 was superseded by SSR 16-3p, effective March 2016. See SSR 16-3P, 

2016 WL 1119029 (S.S.A. Mar. 16, 2016), 2016 WL 1237954 (S.S.A. Mar. 24, 

2016).

5:15-cv-11589-JEL-APP Doc # 23 Filed 11/22/16 Pg 21 of 28 Pg ID 841
22

416.929(c)(2). Also, citing Plaintiff’s disability report, the ALJ noted that Plaintiff 

“stopped working in January 2003 because she was getting married and moving to 

New Jersey, completely unrelated to her alleged impairments (Ex. 2E [R. at 151-

162]).” (R. at 28.)12 Thus, she considered “other evidence” in the form of 

Plaintiff’s “prior work record.” 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). 

In addition, at Step 3, the ALJ concluded that Plaintiff has mild restriction in 

activities of daily living (ADLs). (R. at 18.) At Step 4, the ALJ again considered 

Plaintiff’s ADLs. (R. at 28-29.) In so doing, the ALJ appears to have relied upon 

Plaintiff’s sister’s representations that Plaintiff watches television all day, goes to 

doctor appointments and does not do household chores (R. at 168-169 (Ex. 3E)); 

the Plaintiff’s apparent testimony that she does not help with household chores (R. 

at 49, 52); the “activities” section of Dr. Mills’s August 23, 2012 consultative 

examination report, such as Plaintiff’s reports of going on appointments and 

watching television “most of the day,” but not doing household chores (R. at 659 

(Ex. 11F));13 and various records from Dr. Feldman regarding diet and exercise (R. 

 

12 Consistent with this observation is Plaintiff’s work history report, wherein she 

claims her jobs “in the 15 years before [she] became unable to work[,]” included 

Masco Corporation from 1984 to 1999 and Home Depot from 2002 to 2003. (R. at 

193.) 

13 This particular record also states that, “claimant is able to independently care for 

her hygiene and grooming needs...and feels she is able to independently manage 

her own financial matters[,]” while making further observations of “good hygiene 

and grooming[,]” as well as responses which “were spontaneous, clear, on target, 

5:15-cv-11589-JEL-APP Doc # 23 Filed 11/22/16 Pg 22 of 28 Pg ID 842
23

at 619-620 [Ex. 8F], 683-684, 687-688, 691-692, 700-702 [Ex. 16F]). (See R. at 

20-24, 27.)14 Thus, the ALJ considered Plaintiff’s daily activities. 20 C.F.R. §§ 

404.1529(c)(3)(i), 416.929(c)(3)(i).15 

The ALJ also considered Plaintiff’s claims of pain. In doing so, the ALJ 

expressly acknowledged: (a) Plaintiff’s report of “lower back pain,” (R. at 203 

[Ex. 7E]); (b) Plaintiff’s sister’s July 2, 2012 report that Plaintiff “lives [with] 

constant pain,” and has problems getting along with others, in part due to pain (R. 

at 167-172 [Ex. 3E]); and, (c) Plaintiff’s September 25, 2013 hearing testimony 

about back pain (see R. at 45-46). (R. at 20.) Then, the ALJ mentioned “pain” 

several times within her review of Plaintiff’s physical medical records, including, 

but not limited to: 

 consultative examiner Dr. Ellenberg’s September 19, 2012 

diagnoses of “low back pain,” with “[u]nderlying 

spondylolisthesis and lumbosacral degenerative change[,]” and 

an explanation that “[a]t this point, pain must be considered 

mostly myofascial and nonspecific possible sacroiliac 

mediated[;]” (R. at 22-23, 662-665 [Ex. 12F]); 

 

of adequate depth, and [which] displayed no circumstantial or tangential 

tendencies.” (R. at 659.) 

14 I also note that the ALJ observed: “Her blood sugars are still high and her 

doctors have repeatedly told her to do a better job with exercising and diet.” (R. at 

25.) 

15 “As a matter of law, an ALJ may consider household and social activities in 

evaluating complaints of disabling pain.” Blacha v. Sec'y of Health & Human 

Servs., 927 F.2d 228, 231 (6th Cir. 1990). 

5:15-cv-11589-JEL-APP Doc # 23 Filed 11/22/16 Pg 23 of 28 Pg ID 843
24

 Dr. Ellenberg’s January 7, 2013 diagnoses of myofascial back 

pain, underlying spondylolisthesis, COPD and diabetes mellitus 

(R. at 23, 666 [Ex. 13F]) 

(See also R. at 21-24.) After her review of the physical medical records, the ALJ 

addressed Plaintiff’s back pain before assessing exertional and postural limitations. 

(R. at 25.)16 In the end, with respect to credibility, the ALJ stated: “[t]he claimant 

complained of extreme back pain; however, this is not supported by the treatment 

records of very little treatment and relatively normal examination findings, other 

than some reduction in range of motion.” (R. at 28.) Thus, the ALJ considered 

“[t]he location, duration, frequency, and intensity of your pain or other 

symptoms[.]” 20 C.F.R. §§ 404.1529(c)(3)(ii), 416.929(c)(3)(ii). 

Furthermore, the ALJ noted that Plaintiff “saw Dr. Feldman on July 16, 

2013, alleging worsening of her back pain from bending over 5 days earlier[.]” (R. 

at 24, Ex. 15F (R. at 680); l6F/2 (R. at 681-682), 20-22(R. at 700-702).) Thus, the 

ALJ considered “precipitating and aggravating factors,” as contemplated by 20 

C.F.R. §§ 404.1529(c)(3)(iii), 416.929(c)(3)(iii). 

 

16 In addition, Plaintiff is incorrect that “[f]atigue is never discussed by the ALJ.” 

(DE 18 at 14.) In fact, within the Step 4 discussion of Plaintiff’s mental health 

records, the ALJ specifically referred to the following sentence from Dr. Hazan’s 

March 2011 mental status examination: “[h]er Beck Depression Inventory score is 

a total of 38 with significant anhedonia, loss of interest, feels worthless, diminished 

energy, insomnia, fatigue, and ‘too tired to do most of the things I used to do,’ 

diminished libido, unable to concentrate, increased appetite most likely secondary 

to treatment with Remeron.” (R. at 26, R. at 655 [Ex. 10F]). 

5:15-cv-11589-JEL-APP Doc # 23 Filed 11/22/16 Pg 24 of 28 Pg ID 844
25

Moreover, at the hearing, when asked about medication side effects, Plaintiff 

testified that she experiences upset stomach, diarrhea, and memory issues, although 

she was not sure what was causing these symptoms, because she takes so many 

medications. (R. at 49.) At Step 4, the ALJ expressly relied upon several mental 

health records that specifically commented on side effects: 

 Plaintiff’s April 12, 2010 report that she “never started the 

Elavil, because she was worried about side-effects.” (R. at 

552.) 

 Citing several records from Toby Hazan, M.D. of 

Comprehensive Psychiatric Services, P.C., the ALJ stated, 

“[t]hroughout 2011, the claimant was continued on Remeron 30 

mg and Ambien CR 12.5 mg without any reports of side effects 

(Ex. 10F/6-13 [R. at 645-652]).” 

 Citing several records from Dr. Hazan dated 2012 (see R. at 

640-644, 678-679), the ALJ stated, “[a]gain the claimant was 

continued on Remeron 30 mg and Ambien CR 12.5 mg without 

any reported side effects.” 

 Dr. Hazan’s February 22, 2013 notes that Plaintiff’s 

medications include Remeron 30 mg and Ambien CR 12.5 mg, 

she is compliant with the medication as prescribed, she has 

experienced moderate improvement in response to medication, 

and she denied side effects / adverse reactions (R. at 675-676) 

(R. at 26-27.) Ultimately, the ALJ stated: 

At the hearing, the claimant complained of numerous side effects 

from her medications; however, these were not reported to her 

physicians. None of the progress notes reveal any notations related to 

side effects. Specifically, Dr. Hazan noted that the claimant had no 

side effects to the Remeron and Ambien. 

5:15-cv-11589-JEL-APP Doc # 23 Filed 11/22/16 Pg 25 of 28 Pg ID 845
26

(R. at 28.) Thus, the ALJ considered the “type, dosage, effectiveness, and side 

effects” of Plaintiff’s medications, consistent with 20 C.F.R. §§ 404.1529(c)(3)(iv), 

416.929(c)(3)(iv). He was further permitted to consider inconsistencies between 

her testimony and the medical record in evaluating her credibility. See 20 C.F.R. 

§§ 404.1529(c)(4), 416.929(c)(4).17

The ALJ in this case clearly discussed many, if not all, of the criteria set 

forth in the 20 C.F.R. §§ 404.1529(c)(2),(3), 416.929(c)(2),(3) factors. Moreover, 

“‘[i]t is well established that the ALJ is not required to discuss every factor or 

conduct a factor-by-factor analysis.’” Maralason v. Comm'r of Soc. Sec., No. 15-

CV-11666, 2016 WL 5405302, at *8 (E.D. Mich. Sept. 28, 2016) (quoting Pratt v. 

Comm'r of Soc. Sec., No. 1:12-cv-1084, 2014 WL 1577525, at *3 (W.D. Mich. 

Apr. 21, 2014) (collecting cases)). Having considered these factors, the ALJ 

discounted Plaintiff’s credibility. (R. at 28-29.) This credibility finding was wellsupported and well-reasoned, and the standard of review requires that it be given 

deference. 

G. Conclusion

 

17 I also note the ALJ’s mention of the rehabilitation physician’s (Dr. Ellenberg’s) 

September 19, 2012 recommendation to place Plaintiff “through a brief therapy 

program[,]” and January 7, 2013 note that Plaintiff “was unable to start the therapy 

because of the co-pays.” (R. at 22-23, 664, 666, 670 (emphasis added).) Even if 

the Court does not treat this as evidence of “[t]reatment, other than medication, you 

receive or have received for relief of your pain or other symptoms[,]” 20 C.F.R. §§ 

404.1529(c)(3)(v), 416.929(c)(3)(v), Dr. Ellenberg’s recommendation of brief 

therapy suggests that Plaintiff’s condition was not too severe. 

5:15-cv-11589-JEL-APP Doc # 23 Filed 11/22/16 Pg 26 of 28 Pg ID 846
27

 I conclude that: (a) the ALJ’s Step 3 findings should be affirmed; (b)

substantial evidence supports the ALJ’s RFC determination; and (c) the ALJ 

properly discounted Plaintiff’s credibility in accordance with 20 C.F.R. §§ 

404.1529(c)(3), 416.929(c)(3). Accordingly, it is RECOMMENDED that the 

Court DENY Plaintiff’s motion for summary judgment (DE 18), GRANT 

Defendant’s motion for summary judgment (DE 21), and AFFIRM the 

Commissioner of Social Security’s decision. 

III. PROCEDURE ON OBJECTIONS

 The parties to this action may object to and seek review of this Report and 

Recommendation, but are required to file any objections within 14 days of service, 

as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule 

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

of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health & 

Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some 

issues but fail to raise others with specificity will not preserve all the objections a 

party might have to this Report and Recommendation. Willis v. Sec’y of Health & 

Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of 

Teachers Local 231, 829 F.2d 1370, 1273 (6th Cir. 1987). Pursuant to Local Rule 

72.1(d)(2), any objections must be served on this Magistrate Judge. 

5:15-cv-11589-JEL-APP Doc # 23 Filed 11/22/16 Pg 27 of 28 Pg ID 847
28

 Any objections must be labeled as “Objection No. 1,” and “Objection No. 

2,” etc. Any objection must recite precisely the provision of this Report and 

Recommendation to which it pertains. Not later than 14 days after service of an 

objection, the opposing party may file a concise response proportionate to the 

objections in length and complexity. Fed. R. Civ. P. 72(b)(2); E.D. Mich. LR 

72.1(d). The response must specifically address each issue raised in the objections, 

in the same order, and labeled as “Response to Objection No. 1,” “Response to 

Objection No. 2,” etc. If the Court determines that any objections are without 

merit, it may rule without awaiting the response. 

Dated: November 22, 2016 s/Anthony P. Patti 

 Anthony P. Patti 

 UNITED STATES MAGISTRATE JUDGE 

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

on November 22, 2016, electronically and/or by U.S. Mail. 

 s/Michael Williams 

 Case manager for the 

 Honorable Anthony P. Patti 

5:15-cv-11589-JEL-APP Doc # 23 Filed 11/22/16 Pg 28 of 28 Pg ID 848