UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GEORGE T. HARRIS,

Plaintiff,

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

_____________________________________/

Case No. 15-10966

Judith E. Levy

United States District Judge

Stephanie Dawkins Davis

United States Magistrate Judge

REPORT AND RECOMMENDATION

CROSS-MOTIONS FOR SUMMARY JUDGMENT (Dkt. 14, 17)

I. PROCEDURAL HISTORY

A. Proceedings in this Court

On March 13, 2015, plaintiff filed the instant suit seeking judicial review of

the Commissioner’s unfavorable decision disallowing benefits. (Dkt. 1). Pursuant

to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(b)(3), District Judge Judith E.

Levy referred this matter to Magistrate Judge Michael Hluchaniuk for the purpose

of reviewing the Commissioner’s decision denying plaintiff’s claim for benefits. 

(Dkt. 3). This matter was reassigned to the undersigned Magistrate Judge on

January 5, 2016, pursuant to Administrative Order. (See Text-Only Order dated

January 5, 2016). This matter is currently before the Court on cross-motions for

summary judgment. (Dkt. 14, 17).

1

5:15-cv-10966-JEL-SDD Doc # 18 Filed 03/02/16 Pg 1 of 34 Pg ID 439
B. Administrative Proceedings

Plaintiff filed the instant claim for supplemental security income on April 3,

2012, alleging disability beginning that same date. (Dkt. 9-3, Pg ID 112). 

Plaintiff’s claim was initially disapproved by the Commissioner on August 14,

2012. Id. Plaintiff requested a hearing and on January 2, 2013, plaintiff appeared,

along with his attorney, before Administrative Law Judge (ALJ) Jerome B. Blum,

who considered the case de novo. (Dkt. 9-2, Pg ID 78-98). The ALJ issued an

unfavorable decision on January 22, 2013. (Dkt. 9-3, Pg ID 100-110). Plaintiff

filed a request for review with the Appeals Council, who, on April 22, 2013,

remanded the matter back to the ALJ to examine several issues and take additional

evidence. (Dkt. 9-3, Pg ID 123-126). After remand, the ALJ held a second

hearing on October 30, 2013. (Dkt. 9-2, Pg ID 53-77). The ALJ issued a second

decision denying plaintiff benefits on December 17, 2013. (Dkt. 9-2, Pg ID 36-

48). The ALJ’s decision became the final decision of the Commissioner when,

after the review of additional exhibits, the Appeals Council on February 5, 2015, 1

In this circuit, where the Appeals Council considers additional evidence but denies a 1

request to review the ALJ’s decision, since it has been held that the record is closed at the

administrative law judge level, those “AC” exhibits submitted to the Appeals Council are not

part of the record for purposes of judicial review. See Cotton v. Sullivan, 2 F.3d 692, 696 (6th

Cir. 1993); Cline v. Comm’r of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996). Therefore, since

district court review of the administrative record is limited to the ALJ’s decision, which is the

final decision of the Commissioner, the court can consider only that evidence presented to the

ALJ. In other words, Appeals Council evidence may not be considered for the purpose of

substantial evidence review.

2

5:15-cv-10966-JEL-SDD Doc # 18 Filed 03/02/16 Pg 2 of 34 Pg ID 440
denied plaintiff’s request for review. (Dkt. 9-2, Pg ID 30-34); Wilson v. Comm’r

of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004).

For the reasons set forth below, the undersigned RECOMMENDS that

plaintiff’s motion for summary judgment be GRANTED, that defendant’s motion

for summary judgment be DENIED, that the findings of the Commissioner be

REVERSED, and that this matter be REMANDED for further proceedings under

Sentence Four.

II. FACTUAL BACKGROUND

A. ALJ Findings

Plaintiff was born in 1979 and was 32 years old on the date the application

was filed. (Dkt. 9-2, Pg ID 47). The ALJ applied the five-step disability analysis

to plaintiff’s claim and found at step one that plaintiff had not engaged in

substantial gainful activity since the application date. Id. At step two, the ALJ

found that plaintiff’s bulging disc and osteophyte in the cervical spine and

minimal degenerative osteoarthritis in the cervical spine were “severe” within the

meaning of the second sequential step. (Dkt. 9-2, Pg ID 41). At step three, the

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

one of the listings in the regulations. Id. The ALJ determined that plaintiff had

the residual functional capacity (RFC) to perform sedentary work as follows:

After careful consideration of the entire record, the

3

5:15-cv-10966-JEL-SDD Doc # 18 Filed 03/02/16 Pg 3 of 34 Pg ID 441
undersigned finds that the claimant has the residual

functional capacity to perform unskilled sedentary work

as defined in 20 CFR 416.968 and 20 CFR 416.967(a),

respectively, except he must be afforded the opportunity

to alternate between sitting and standing as needed. The

claimant should also avoid all climbing and all overhead

reaching.

(Dkt. 9-2, Pg ID 43). At step four, the ALJ concluded that plaintiff had no past

relevant work. (Dkt. 9-2, Pg ID 47). At step five, the ALJ denied plaintiff

benefits because plaintiff could perform a significant number of jobs available in

the national economy. (Dkt. 9-2, Pg ID 47-48).

B. Plaintiff’s Claims of Error

Plaintiff first asserts that the ALJ erred by failing to find his mental

impairments severe at step two. Plaintiff contends that his depression symptoms

impact and adversely affect his ability to work. According to plaintiff, his

symptoms and psychological limitations affects his ability to work in a

competitive work environment. Plaintiff points out that the severity of his mental

limitations is supported by the opinion and assessment of Dr. Sean Prystash, a

psychiatrist at New Oakland, where plaintiff treated. (Dkt. 9-7, Pg ID 334-337). 

The record also contains treatment notes from New Oakland, which evidence

plaintiff’s problems with completing tasks, concentrating, and difficulty dealing

with stress. (Dkt. 9-7, Pg ID 297-315; Dkt. 9-7, Pg ID 338-353). 

Plaintiff maintains that the ALJ committed reversible error when he gave

4

5:15-cv-10966-JEL-SDD Doc # 18 Filed 03/02/16 Pg 4 of 34 Pg ID 442
the opinion of Dr. Prystash no weight whatsoever. The ALJ’s stated reasons were

that Dr. Prystash only evaluated plaintiff on one occasion, he provided no

substantive basis or narrative support for his opinions, and his opinions were not

supported by plaintiff’s routine and apparent infrequent psychiatric treatment. 

Plaintiff asserts that the ALJ substituted his own judgment in place of a trained

medical specialist. Plaintiff also contends that even if Dr. Prystash’s opinions

were not entitled to controlling weight, they were certainly entitled to some

weight. Notably, Dr. Prystash’s opinions were based on his personal observations

and examination of plaintiff and the records of plaintiff’s treatment at New

Oakland, where he was employed. Plaintiff also points out that there is no other

opinion in the record regarding plaintiff’s mental limitations and no opinion

contradicting or rejecting Dr. Prystash’s opinions. Indeed, the Appeals Council

gave the ALJ an opportunity to obtain such an opinion and he declined to do so. 

Based on Dr. Prystash’s assessment and plaintiff’s mental health treatment

records, plaintiff maintains that his depression was a severe impairment that

adversely affected his ability to perform basic work activity. 

Next, plaintiff contends that the ALJ failed to properly assess plaintiff’s

pain, limitations, and credibility. According to plaintiff, the ALJ’s conclusion that

the evidence of record fails to establish an impairment that would account for his

disabling symptoms and limitations is inaccurate and a distortion of the record. 

5

5:15-cv-10966-JEL-SDD Doc # 18 Filed 03/02/16 Pg 5 of 34 Pg ID 443
C. The Commissioner’s Motion for Summary Judgment

According to the Commissioner, plaintiff’s argument that the ALJ erred in

finding that he did not have a severe mental impairment is unpersuasive for

several reasons. First, any error in the ALJ’s failure to find a severe mental

impairment is harmless because the ALJ found other severe impairments,

continued through the sequential evaluation process, and considered all of

plaintiff’s impairments at the remaining steps. See Nejat v. Comm’r of Soc. Sec.,

359 Fed. Appx. 574, 577 (6th Cir. 2009) (“[W]hen an ALJ considers all of a

claimant’s impairments in the remaining steps of the disability determination, an

ALJ’s failure to find additional severe impairments at step two does ‘not constitute

reversible error.’”) (quoting Maziarz v. Sec’y of Health & Human Servs., 837 F.2d

240, 244 (6th Cir. 1987)). Here, the ALJ found that plaintiff had severe physical

impairments (Dkt. 9-2, Pg ID 41, at finding 2), continued through the sequential

evaluation process, and, at the RFC state, found that Plaintiff mentally was limited

to unskilled work (Dkt. 9-2, Pg ID 43, at finding 4). Thus, the Commissioner

maintains that any error at step two was harmless. See Nejat, 359 Fed. Appx. at

577.

The Commissioner also argues that substantial evidence supports the ALJ’s

finding that plaintiff’s PTSD and depression were not severe. A severe

impairment is one that significantly limits the ability to do basic work activities.

6

5:15-cv-10966-JEL-SDD Doc # 18 Filed 03/02/16 Pg 6 of 34 Pg ID 444
Rabbers v. Comm’r Soc. Sec. Admin., 582 F.3d 647, 652 (6th Cir. 2009); 20 C.F.R.

§ 416.921(a). Basic mental work activities include understanding, remembering,

and carrying out simple instructions; using judgment; responding appropriately to

supervision, co-workers, and usual work situations; and dealing with changes in a

routine work setting. 20 C.F.R. § 404.416.921(b)(3)-(6). The Commissioner

points out that it was plaintiff’s burden to prove that his alleged impairments were

severe within this definition, Bowen v. Yuckert, 482 U.S. 137, 146 & n.5 (1987);

Rabbers, 582 F.3d at 652, and contends that plaintiff has not met that burden. As

the ALJ explained (Dkt. 9-2, Pg ID 42), plaintiff received mental health treatment

for just three months at the end of 2012. During his intake assessment at MCCMH

in October 2012, plaintiff reported feeling depressed for about six months and was

described as withdrawn with dysphoric mood, but the intake clinician noted no

abnormalities in communication, perception, or thought process, and fair

judgment, impulse control, and insight. (Dkt. 9-7, Pg ID 304-306). Plaintiff also

failed to attend group therapy sessions at MCCMH. (Dkt. 9-7, Pg ID 338, 342,

350, 353). At a psychiatric evaluation at New Oakland, plaintiff was cooperative

with no psychosis and intact insight and judgment. (Dkt. 9-7, Pg ID 348). 

Although plaintiff at times complained of panic and trouble concentrating (Dkt. 9-

7, Pg ID 304, 347, 351), the Commissioner maintains that the ALJ properly found

his subjective complaints not entirely credible and there is no objective evidence

7

5:15-cv-10966-JEL-SDD Doc # 18 Filed 03/02/16 Pg 7 of 34 Pg ID 445
supporting these complaints in his treatment notes. (Dkt. 9-7, Pg ID 339, 343-44,

346, 351). Indeed, by November 29, 2012, plaintiff reported that he was feeling

better and performing community service. (Dkt. 9-7, Pg ID 339). Based on this

record, the Commissioner contends that the ALJ reasonably found that plaintiff’s

mental impairments were not severe.

Contrary to plaintiff’s argument, the Commissioner asserts that the ALJ

properly gave no weight to Dr. Prystash’s opinion that plaintiff’s mental

impairments were significantly limiting. The ALJ explained that he gave no

weight to this opinion because (1) Dr. Prystash evaluated plaintiff only once; (2)

his notes from that visit did not support the limitations assessed; (3) Dr. Prystash

checked boxes indicating limitations without giving any narrative explanation or

substantive basis for his opinion; and (4) Dr. Prystash’s opinion was inconsistent

with the rest of plaintiff’s treatment record, including infrequent psychiatric

treatment. (Dkt. 9-2, Pg ID 42). According to the Commissioner, these were

proper reasons to discount Dr. Prystash’s opinion, and the record supports them. 

The ALJ also reasonably found that Dr. Prystash’s examination notes – which

described plaintiff as cooperative, without psychosis, and with intact insight and

judgment (Dkt. 9-7, Pg ID 348) – were inconsistent with his opinion that plaintiff

was limited in his abilities to work within a schedule, sustain a routine, make

simple decisions, work with others, and ask simple questions. (Dkt. 9-7, Pg ID

8

5:15-cv-10966-JEL-SDD Doc # 18 Filed 03/02/16 Pg 8 of 34 Pg ID 446
335-337). Gant v. Comm’r of Soc. Sec., 372 Fed. Appx. 582, 584 (6th Cir. 2010)

(holding that the ALJ properly rejected an opinion even from a treating source

where it was not supported by the source’s own treatment notes). The ALJ also

properly observed that Dr. Prystash’s opinion consisted solely of checked boxes

on a form without any supporting explanation (Dkt. 9-7, Pg ID 335-337), and

further discounted the opinion on this basis. See Curler v. Comm’r of Soc. Sec.,

561 Fed. Appx. 464, 471 (6th Cir. 2014) (upholding an ALJ’s decision to reject

the opinion of a treating physician in part on this basis). Finally, according to the

Commissioner, the record supports the ALJ’s reasoning that Dr. Prystash’s

opinion was inconsistent with plaintiff’s medical record, including his very limited

psychiatric treatment. For all these reasons, the Commissioner submits that

substantial evidence supports the ALJ’s decision to give no weight to Dr.

Prystash’s opinion. See Harris v. Comm’r of Soc. Sec., 2014 WL 793612, at *10

(E.D. Mich. Feb. 27, 2014) (holding that an ALJ properly rejected an opinion

based on a single examination that was not supported by the doctor’s own

examination findings and was inconsistent with the record as a whole).

Similarly, the Commissioner asserts that the ALJ also reasonably gave no

weight to Dr. Prystash’s assessment of a GAF score of 55 because that score was

merely a subjective snapshot of a single moment in time based on a one-time visit

and was not a rating of plaintiff’s ability to work. (Dkt. 9-2, Pg ID 42). This

9

5:15-cv-10966-JEL-SDD Doc # 18 Filed 03/02/16 Pg 9 of 34 Pg ID 447
Court and the Sixth Circuit have regularly upheld this reasoning. See White v.

Comm’r of Soc. Sec., 572 F.3d 272, 276 (6th Cir. 2009) (quoting Edwards v.

Barnhart, 383 F. Supp. 920, 924 n.1 (E.D. Mich. 2005) (describing a GAF score

as “a subjective determination”))); Kornecky v. Comm’r of Soc. Sec., 167 Fed.

Appx. 496, 511 (6th Cir. 2006) (“[W]e are not aware of any statutory, regulatory,

or other authority requiring the ALJ to put stock in a GAF score in the first

place.”); Jordan v. Comm’r of Soc. Sec., 2011 WL 891198, at *5 (E.D. Mich. Jan.

14, 2011) (describing GAF scores as “subjective opinions, representing a snapshot

of a person’s level of functioning at a given moment in time, not a rating of their

ability to work”), aff’d, 2011 WL 891240 (E.D. Mich. Mar. 11, 2011).

According to the Commissioner, plaintiff’s argument that Dr. Prystash was

the only physician to give an opinion on his mental functioning does not

undermine the step two finding because it was plaintiff’s burden to prove that his

alleged impairments were severe, not the ALJ’s burden to call an expert to prove

that his impairments were not severe. Because plaintiff has not pointed to any

evidence undermining the ALJ’s reasoning that his mental impairments did not

significantly limit his ability to perform basic work activities, or the decision to

give little weight to Dr. Prystash’s opinion and GAF score, he has not met that

burden. And again, the Commissioner asserts that even if the ALJ had erred, any

error at step two would be harmless because the ALJ considered plaintiff’s

10

5:15-cv-10966-JEL-SDD Doc # 18 Filed 03/02/16 Pg 10 of 34 Pg ID 448
non-severe mental impairments throughout the sequential evaluation.

According to the Commissioner, plaintiff’s challenges to the ALJ’s

assessment of his credibility are equally unavailing because substantial evidence

supports the ALJ’s finding. The ALJ explained that he found plaintiff’s subjective

complaints not entirely credible because: (1) there was no evidence that plaintiff

experienced an exacerbation of his symptoms at the time he alleged he became

disabled (Dkt. 9-2, Pg ID 44); (2) the objective medical evidence of record did not

support plaintiff’s allegations of physical disability (Dkt. 9-2, Pg ID 44-45); (3)

plaintiff consistently declined injection therapy to treat his allegedly disabling pain

(Dkt. 9-2, Pg ID 45); (4) plaintiff had only a sporadic work history prior to

alleging disability (Dkt. 9-2, Pg ID 46); and (5) the medical record did not

corroborate plaintiff’s allegations of side effects from medication. (Dkt. 9-2, Pg

ID 46). The Sixth Circuit has made clear that “an ALJ’s findings based on the

credibility of the applicant are to be accorded great weight and deference,

particularly since an ALJ is charged with the duty of observing a witness’s

demeanor and credibility.” Walters, 127 F.3d at 531. This Court may not disturb

the ALJ’s credibility finding “absent compelling reason.” Smith v. Halter, 307

F.3d 377, 379 (6th Cir. 2001). Here, the Commissioner argues that plaintiff has

failed to show such compelling reason.

More specifically, the Commissioner asserts that the ALJ properly

11

5:15-cv-10966-JEL-SDD Doc # 18 Filed 03/02/16 Pg 11 of 34 Pg ID 449
considered the fact that there was no evidence of an exacerbation of plaintiff’s

impairments at the time he alleged he became disabled. Plaintiff argues that the

relevant inquiry was whether he was disabled beginning on his application date in

April 2012. Although this is true, it does not undermine the ALJ’s reasoning that

plaintiff’s allegation of disability beginning in 2008 (Dkt. 9-3, Pg ID 100) was

inconsistent with the record, and the ALJ was entitled to discount plaintiff’s

credibility based in part on this inconsistency. See Social Security Ruling (“SSR”)

96-7p, 1997 WL 374186, at *5 (July 2, 1996) (“One strong indication of the

credibility of an individual’s statements is their consistency, both internally and

with other information in the case record.”). Second, the ALJ properly considered

the fact that the objective medical evidence did not support plaintiff’s allegations

of disability. See 20 C.F.R. § 416.929(c)(2) (describing objective medical

evidence as “a useful indicator to assist [the ALJ] in making reasonable

conclusions about the intensity and persistence of [a claimant’s] symptoms and the

effect those symptoms, such as pain, may have on [the claimant’s] ability to

work”). As the ALJ noted, plaintiff’s testimony that he had low back pain (Dkt. 9-

2, Pg ID 57) was inconsistent with a normal x-ray of the lumbar spine in July

2013. (Dkt. 9-7, Pg ID 356). Regarding his neck impairment, in February and

March 2012, plaintiff’s physical examinations were normal. (Dkt. 9-7, Pg ID 277, 

282). In April 2012, plaintiff showed full range of motion and only mild

12

5:15-cv-10966-JEL-SDD Doc # 18 Filed 03/02/16 Pg 12 of 34 Pg ID 450
tenderness (Dkt. 9-7, Pg ID 288), and in August 2012, he showed full range of

motion with no abnormalities noted. (Dkt. 9-7, Pg ID 289). Thus, according to

the Commissioner, the ALJ reasonably found that this record was inconsistent

with plaintiff’s allegations of disability.

Plaintiff points out that a September 2011 CT scan showed a disc bulge in

his cervical spine; however, the ALJ acknowledged that this was a severe

impairment (Dkt. 9-2, Pg ID 41, at finding 2), and the CT scan says nothing about

resulting limitations. (Dkt. 9-7, Pg ID 273-274). See Higgs v. Bowen, 880 F.2d

860, 863 (6th Cir. 1988) (explaining that a “mere diagnosis . . . says nothing about

the severity of the condition”). Plaintiff also points to Dr. Qadir’s consultative

examination report, which cited plaintiff’s complaints, medications, and the CT

scan. The Commissioner points out, however, that plaintiff does not argue any

error in the ALJ’s consideration of this report, or show how this report undermined

the credibility analysis. 

Plaintiff also points to Dr. Murskyj’s opinion that he could perform less

than sedentary work. The ALJ rejected Dr. Murskyj’s opinion because it was not

supported by the objective medical evidence, including Dr. Murskyj’s own

treatment notes, and because Dr. Murskyj appeared to rely heavily on plaintiff’s

subjective complaints. Plaintiff does not contest that these are proper reasons to

reject this opinion. See e.g., Nabours v. Comm’r of Soc. Sec., 50 Fed. Appx. 272,

13

5:15-cv-10966-JEL-SDD Doc # 18 Filed 03/02/16 Pg 13 of 34 Pg ID 451
276 (6th Cir. 2002) (explaining that a treating physician’s opinion may be rejected

“if inconsistent with other substantial evidence”); Bruce v. Comm’r of Soc. Sec.,

2011 WL 833792, at *3 (E.D. Mich. Mar. 4, 2011) (“[A]n ALJ may reject the

opinion of a treating physician where it is . . . contradicted by substantial medical

evidence.”). According to the Commissioner, plaintiff’s unsupported argument

that Dr. Murzkyj’s opinion was supported by the CT scan and “office

examinations” does not undermine the ALJ’s analysis. As explained above, the

CT scan alone says nothing about the severity of plaintiff’s cervical spine

impairment, see Higgs, 880 F.2d at 863 (explaining that a diagnosis of arthritis

based on x-rays “sa[id] nothing about the severity of the condition”), and

plaintiff’s treatment notes regularly showed normal examination findings (Dkt. 9-

7, Pg ID 277, 282, 288-89), which the ALJ reasonably found inconsistent with Dr.

Murskyj’s opinion. Plaintiff’s citation to his own statements in his function report

does not show any error in the ALJ’s finding that plaintiff’s statements were not

entirely credible. Third, the Commissioner also asserts that the ALJ properly

found plaintiff not entirely credible because he consistently declined

recommended injections to treat his allegedly disabling pain. (Dkt. 9-2, Pg ID 45,

63; Dkt. 9-7 Pg ID 288-89, 367); see Harbin ex rel. Sarver v. Comm’r of Soc. Sec.,

2013 WL 4604376, at *18 (E.D. Mich. Aug. 29, 2013) (finding that “the ALJ

properly considered whether plaintiff followed prescribed treatment

14

5:15-cv-10966-JEL-SDD Doc # 18 Filed 03/02/16 Pg 14 of 34 Pg ID 452
recommendations from his treating physicians” in assessing credibility). Fourth,

the ALJ “also reasonably discounted [plaintiff]’s credibility because of h[is]

sporadic work history” prior to his alleged disability. (Dkt. 9-2, Pg ID 46; Dkt. 9-

3, Pg ID 105-106; Dkt. 9-6, Pg ID 245); see Robinson v. Comm’r of Soc. Sec.,

2014 WL 4145339, at *8 (E.D. Mich. Aug. 20, 2014). Finally, the ALJ also

properly considered the fact that the medical record did not corroborate plaintiff’s

allegations of side effects from medications. Plaintiff testified that his

medications made him drowsy (Dkt. 9-2, Pg ID 62), but medical records either do

not mention side effects or indicate that plaintiff denied side effects. (Dkt. 9-6, Pg

ID 284, 286). The ALJ properly cited this inconsistency in plaintiff’s complaints,

see SSR 96-7p, 1997 WL 374186, at *5, which plaintiff has not challenged.

According to the Commissioner, plaintiff’s argument that the ALJ

erroneously discounted his credibility because his allegedly limited activities of

daily living could not be objectively verified is unavailing. The Commissioner

contends that the ALJ did not cite plaintiff’s daily activities as a reason to discount

his credibility; rather, he explained that he found plaintiff not entirely credible

despite the fact that he alleged limited daily activities. (Dkt. 9-2, Pg ID 46). The

ALJ explained that, where plaintiff’s allegedly limited daily activities could not be

objectively verified and could have been attributable to factors other than

plaintiff’s limitations, he found plaintiff not entirely credible given the objective

15

5:15-cv-10966-JEL-SDD Doc # 18 Filed 03/02/16 Pg 15 of 34 Pg ID 453
medical evidence and other inconsistencies in the record. (Dkt. 9-2, Pg ID 46).

The Commissioner next asserts that plaintiff’s argument that he did not have

medical insurance until 2012 also does not show any error in the ALJ’s credibility

analysis. Plaintiff testified at the hearing that he had had Medicaid for about a

year (Dkt. 9-2, Pg ID 60), but he did not testify whether he had insurance before

Medicaid. (Dkt. 9-2, Pg ID 60-61). Indeed, in August 2012 – four months into

the relevant period – plaintiff told Dr. Moosavi that his insurance would not cover

physical therapy. (Dkt. 9-7, Pg ID 289). Even if plaintiff did not have insurance,

the Commissioner maintains that there was no error. The ALJ found plaintiff not

entirely credible not because there was no medical evidence in the record, but

because there was medical evidence and it did not support plaintiff’s allegations. 

(Dkt. 9-2, Pg ID 44). And although the ALJ cited plaintiff’s failure to follow

through with recommended injections as one reason to discount his credibility

(Dkt. 9-2, Pg ID 45), plaintiff told Dr. Moosavi and Dr. Nabity that he was

“against” or “ not interested” in injections (Dkt. 9-7, Pg ID 289, 368), and testified

that he was “scared” of injections (Dkt. 9-2, Pg ID 63), not that he could not get

them due to lack of insurance. Thus, the Commissioner contends that there was no

error in the ALJ’s failure to consider plaintiff’s alleged lack of insurance in

assessing credibility. For these reasons, the Commissioner urges the Court to

conclude that substantial evidence supports the ALJ’s credibility finding, and

16

5:15-cv-10966-JEL-SDD Doc # 18 Filed 03/02/16 Pg 16 of 34 Pg ID 454
there was no error in the ALJ’s consideration of plaintiff’s allegedly limited daily

activities or treatment history.

III. DISCUSSION

A. Standard of Review 

In enacting the social security system, Congress created a two-tiered system

in which the administrative agency handles claims, and the judiciary merely

reviews the agency determination for exceeding statutory authority or for being

arbitrary and capricious. Sullivan v. Zebley, 493 U.S. 521 (1990). The

administrative process itself is multifaceted in that a state agency makes an initial

determination that can be appealed first to the agency itself, then to an ALJ, and

finally to the Appeals Council. Bowen v. Yuckert, 482 U.S. 137 (1987). If relief is

not found during this administrative review process, the claimant may file an

action in federal district court. Mullen v. Bowen, 800 F.2d 535, 537 (6th Cir.

1986).

This Court has original jurisdiction to review the Commissioner’s final

administrative decision pursuant to 42 U.S.C. § 405(g). Judicial review under this

statute is limited in that the court “must affirm the Commissioner’s conclusions

absent a determination that the Commissioner has failed to apply the correct legal

standard or has made findings of fact unsupported by substantial evidence in the

record.” Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005);

17

5:15-cv-10966-JEL-SDD Doc # 18 Filed 03/02/16 Pg 17 of 34 Pg ID 455
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). In deciding

whether substantial evidence supports the ALJ’s decision, “we do 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); Garner v. Heckler, 745 F.2d 383,

387 (6th Cir. 1984). “It is of course for the ALJ, and not the reviewing court, to

evaluate the credibility of witnesses, including that of the claimant.” Rogers v.

Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007); Jones v. Comm’r of Soc.

Sec., 336 F.3d 469, 475 (6th Cir. 2003) (an “ALJ is not required to accept a

claimant’s subjective complaints and may ... consider the credibility of a claimant

when making a determination of disability.”); Cruse v. Comm’r of Soc. Sec., 502

F.3d 532, 542 (6th Cir. 2007) (the “ALJ’s credibility determinations about the

claimant are to be given great weight, particularly since the ALJ is charged with

observing the claimant’s demeanor and credibility.”) (quotation marks omitted);

Walters, 127 F.3d at 531 (“Discounting credibility to a certain degree is

appropriate where an ALJ finds contradictions among medical reports, claimant’s

testimony, and other evidence.”). “However, the ALJ is not free to make

credibility determinations based solely upon an ‘intangible or intuitive notion

about an individual’s credibility.’” Rogers, 486 F.3d at 247, quoting Soc. Sec.

Rul. 96-7p, 1996 WL 374186, *4.

 If supported by substantial evidence, the Commissioner’s findings of fact

18

5:15-cv-10966-JEL-SDD Doc # 18 Filed 03/02/16 Pg 18 of 34 Pg ID 456
are conclusive. 42 U.S.C. § 405(g). Therefore, this Court may not reverse the

Commissioner’s decision merely because it disagrees or because “there exists in

the record substantial evidence to support a different conclusion.” McClanahan v.

Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006); Mullen v. Bowen, 800

F.2d 535, 545 (6th Cir. 1986) (en banc). 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, 486

F.3d at 241; Jones, 336 F.3d at 475. “The substantial evidence standard

presupposes that there is a ‘zone of choice’ within which the Commissioner may

proceed without interference from the courts.” Felisky v. Bowen, 35 F.3d 1027,

1035 (6th Cir. 1994) (citations omitted), citing, Mullen, 800 F.2d at 545. 

The scope of this Court’s review is limited to an examination of the record

only. Bass, 499 F.3d at 512-13; Foster v. Halter, 279 F.3d 348, 357 (6th Cir.

2001). When reviewing the Commissioner’s factual findings for substantial

evidence, a reviewing court must consider the evidence in the record as a whole,

including that evidence which might subtract from its weight. Wyatt v. Sec’y of

Health & Human Servs., 974 F.2d 680, 683 (6th Cir. 1992). “Both the court of

appeals and the district court may look to any evidence in the record, regardless of

whether it has been cited by the Appeals Council.” Heston v. Comm’r of Soc.

Sec., 245 F.3d 528, 535 (6th Cir. 2001). There is no requirement, however, that

19

5:15-cv-10966-JEL-SDD Doc # 18 Filed 03/02/16 Pg 19 of 34 Pg ID 457
either the ALJ or the reviewing court must discuss every piece of evidence in the

administrative record. Kornecky v. Comm’r of Soc. Sec., 167 Fed. Appx. 496, 508

(6th Cir. 2006) (“[a]n ALJ can consider all the evidence without directly

addressing in his written decision every piece of evidence submitted by a party.”)

(internal citation marks omitted); see also Van Der Maas v. Comm’r of Soc. Sec.,

198 Fed. Appx. 521, 526 (6th Cir. 2006).

B. Governing Law

The “[c]laimant bears the burden of proving his entitlement to benefits.” 

Boyes v. Sec’y of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994);

accord, Bartyzel v. Comm’r of Soc. Sec., 74 Fed. Appx. 515, 524 (6th Cir. 2003). 

There are several benefits programs under the Act, including the Disability

Insurance Benefits Program (DIB) of Title II (42 U.S.C. §§ 401 et seq.) and the

Supplemental Security Income Program (SSI) of Title XVI (42 U.S.C. §§ 1381 et

seq.). Title II benefits are available to qualifying wage earners who become

disabled prior to the expiration of their insured status; Title XVI benefits are

available to poverty stricken adults and children who become disabled. F. Bloch,

Federal Disability Law and Practice § 1.1 (1984). While the two programs have

different eligibility requirements, “DIB and SSI are available only for those who

have a ‘disability.’” Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). 

“Disability” means:

20

5:15-cv-10966-JEL-SDD Doc # 18 Filed 03/02/16 Pg 20 of 34 Pg ID 458
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) (DIB); see also 20 C.F.R. § 416.905(a)

(SSI).

The Commissioner’s regulations provide that disability is to be determined

through the application of a five-step sequential analysis:

Step One: If the claimant is currently engaged in

substantial gainful activity, benefits are denied without

further analysis.

Step Two: If the claimant does not have a severe

impairment or combination of impairments, that

“significantly limits ... physical or mental ability to do

basic work activities,” benefits are denied without

further analysis.

Step Three: If plaintiff is not performing substantial

gainful activity, has a severe impairment that is expected

to last for at least twelve months, and the severe

impairment meets or equals one of the impairments listed

in the regulations, the claimant is conclusively presumed

to be disabled regardless of age, education or work

experience.

Step Four: If the claimant is able to perform his or her

past relevant work, benefits are denied without further

analysis.

Step Five: Even if the claimant is unable to perform his

or her past relevant work, if other work exists in the

national economy that plaintiff can perform, in view of

21

5:15-cv-10966-JEL-SDD Doc # 18 Filed 03/02/16 Pg 21 of 34 Pg ID 459
his or her age, education, and work experience, benefits

are denied.

Carpenter v. Comm’r of Soc. Sec., 2008 WL 4793424 (E.D. Mich. 2008), citing,

20 C.F.R. §§ 404.1520, 416.920; Heston, 245 F.3d at 534. “If the Commissioner

makes a dispositive finding at any point in the five-step process, the review

terminates.” Colvin, 475 F.3d at 730. 

“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.” Jones, 336 F.3d at 474, cited

with approval in Cruse, 502 F.3d at 540. If the analysis reaches the fifth step

without a finding that the claimant is not disabled, the burden transfers to the

Commissioner. Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006). 

At the fifth step, the Commissioner is required to show that “other jobs in

significant numbers exist in the national economy that [claimant] could perform

given [his] RFC and considering relevant vocational factors.” Rogers, 486 F.3d at

241; 20 C.F.R. §§ 416.920(a)(4)(v) and (g).

If the Commissioner’s decision is supported by substantial evidence, the

decision must be affirmed even if the court would have decided the matter

differently and even where substantial evidence supports the opposite conclusion. 

McClanahan, 474 F.3d at 833; Mullen, 800 F.2d at 545. In other words, where

22

5:15-cv-10966-JEL-SDD Doc # 18 Filed 03/02/16 Pg 22 of 34 Pg ID 460
substantial evidence supports the ALJ’s decision, it must be upheld.

C. Analysis and Conclusions

1. Step Two/mental impairment

Plaintiff argues that the ALJ failed to properly find his mental impairments

to be severe at step two. At step two of the sequential evaluation process, the ALJ

must consider whether a claimant has a severe impairment and whether the

impairment(s) meet the twelve month durational requirement in 20 C.F.R.

§ 404.1509. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see also Simpson v.

Comm’r of Soc. Sec., 344 Fed. Appx. 181, 188 (6th Cir. 2009) (“At step two, if a

claimant does not have a severe medically determinable physical or mental

impairment ... that meets the durational requirement in § 404.1509 ..., or a

combination of impairments that is severe and meets the durational requirement,

then [she] is not disabled.”). “To surmount the step two hurdle, the applicant

bears the ultimate burden of establishing that the administrative record contains

objective medical evidence suggesting that the applicant was “disabled” as defined

by the Act....” Despins v. Comm’r of Soc. Sec., 257 Fed. Appx. 923, 929 (6th Cir.

2007). A “severe” impairment is defined as “any impairment or combination of

impairments which significantly limits your physical or mental ability to do basic

work activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c). Basic work activities are

defined in the regulations as “the abilities and aptitudes necessary to do most

23

5:15-cv-10966-JEL-SDD Doc # 18 Filed 03/02/16 Pg 23 of 34 Pg ID 461
jobs.” 20 C.F.R. §§ 404.1521(b), 416.921(b). Examples include: (1) physical

functions such as walking, standing, sitting, lifting, pushing, pulling, reaching,

carrying, or handling; (2) capacities for seeing, hearing, and speaking; (3)

understanding, carrying out, and remembering simple instructions; (4) use of

judgment; (5) responding appropriately to supervision, co-workers, and usual

work situations; and (6) dealing with changes in routine work settings. See id.

It is well established in Sixth Circuit precedent that failure to find an

impairment severe at step two of the sequential analysis is not reversible error if

the ALJ found another impairment severe and therefore continued with the

five-step evaluation. See e.g., Fisk v. Astrue, 253 Fed. Appx. 580, 584 (6th Cir.

2007); Anthony v. Astrue, 266 Fed. Appx. 451, 457 (6th Cir. 2008). The purpose

of step two is “to screen out totally groundless claims.” Nejat v. Comm’r of Soc.

Sec., 359 Fed. Appx. 574, 576 (6th Cir. 2009). If the ALJ continues with the

remaining steps, any error at step two is harmless, so long as the ALJ considered

the effects of all medically determinable impairments, including those deemed

nonsevere. See e.g., Cobb v. Colvin, 2013 WL 1767938 (D. Kan. 2013) (“The

Commissioner is correct that the failure to find that additional impairments are

severe is not in itself cause for reversal. But this is true only so long as the ALJ

considers the effects of all of the claimant’s medically determinable impairments,

both those he deems severe and those not severe.”) (internal quotation marks

24

5:15-cv-10966-JEL-SDD Doc # 18 Filed 03/02/16 Pg 24 of 34 Pg ID 462
omitted); Jackson v. Astrue, 734 F.Supp.2d 1343, 1361 (N.D. Ga. 2010) (Where

ALJ identified one severe impairment at step two, the failure to identify additional

severe impairments at step two was harmless error in child disability case where

the ALJ considered all of the plaintiff’s impairments at other steps as

demonstrated by discussion of testimony and medical history.).

In this case, regardless of whether any error the ALJ may have committed at

step two was harmless, the undersigned concludes that the ALJ erred by failing to

obtain a medical opinion to support his conclusions regarding plaintiff’s mental

impairments and any resulting limitations. In this case, the ALJ rejected the only

medical opinion in the record on this issue and did not obtain any other opinion. 

Importantly, in weighing the medical evidence, “‘ALJs must not succumb to the

temptation to play doctor and make their own independent medical findings.’”

Simpson v. Comm’r of Soc. Sec., 344 Fed. Appx. 181, 194 (6th Cir. 2009), quoting

Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996); see also Bledsoe v. Comm’r of

Social Sec., 2011 WL 549861, at *7 (S.D. Ohio 2011) (“An ALJ is not permitted

to substitute her own medical judgment for that of a treating physician and may

not make her own independent medical findings.”); Mason v. Comm’r of Soc. Sec.,

2008 WL 1733181, at *13 (S.D. Ohio 2008) (“[t]he ALJ must not substitute his

own judgment for a doctor’s conclusion without relying on other medical evidence

or authority in the record.”). In other words, “[w]hile an ALJ is free to resolve

25

5:15-cv-10966-JEL-SDD Doc # 18 Filed 03/02/16 Pg 25 of 34 Pg ID 463
issues of credibility as to lay testimony, or to choose between properly submitted

medical opinions, the ALJ cannot substitute his [or her] own lay ‘medical’ opinion

for that of a treating or examining doctor.” Beck v. Comm’r of Soc. Sec., 2011 WL

3584468, at *14 (S.D. Ohio 2011).

The undersigned recognizes that the final responsibility for deciding the

RFC “is reserved to the Commissioner.” 20 C.F.R. § 404.1527(d). Nevertheless,

courts have stressed the importance of medical opinions to support a claimant’s

RFC, and have cautioned ALJs against relying on their own expertise in drawing

RFC conclusions from raw medical data. See Isaacs v. Astrue, 2009 WL 3672060,

at *10 (S.D. Ohio 2009) (“The residual functional capacity opinions of treating

physicians, consultative physicians, and medical experts who testify at hearings

are crucial to determining a claimant's RFC because ‘[i]n making the residual

functional capacity finding, the ALJ may not interpret raw medical data in

functional terms.’”), quoting Deskin v. Comm'r of Soc. Sec., 605 F. Supp. 2d 908,

912 (N.D. Ohio 2008); see also Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999)

(“As a lay person, however, the ALJ was simply not qualified to interpret raw

medical data in functional terms and no medical opinion supported the [RFC]

determination.”); Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir. 1985) (“By

independently reviewing and interpreting the laboratory reports, the ALJ

impermissibly substituted his own judgment for that of a physician; an ALJ is not

26

5:15-cv-10966-JEL-SDD Doc # 18 Filed 03/02/16 Pg 26 of 34 Pg ID 464
free to set his own expertise against that of a physician who presents competent

evidence.”). As the Deskin court explained:

An ALJ is not qualified to assess a claimant’s RFC on

the basis of bare medical findings, and as a result an

ALJ’s determination of RFC without a medical advisor’s

assessment is not supported by substantial evidence. 

Where the “medical findings in the record merely

diagnose [the] claimant’s exertional impairments and do

not relate these diagnoses to specific residual functional

capabilities such as those set out in 20 C.F.R.

§ 404.1567(a) ... [the Commissioner may not] make the

connection himself.”

Deskin, 605 F.Supp.2d at 912, quoting Rohrgerg v. Apfel, 26 F.Supp.2d 303, 311

(D. Mass. 1998) (internal citation omitted) ; see also Mitsoff v. Comm’r of Soc.

2

Sec., 2013 WL 1098188, *8 (S.D. Ohio 2013) (collecting cases). 

There are limited occasions when the medical evidence is so clear, and so

undisputed, that an ALJ would be justified in drawing functional capacity

conclusions from such evidence without the assistance of a current medical source. 

Mitsoff, 2013 WL 1098188, *9, citing Deskin, 605 F.Supp.2d at 912 (“To be sure,

where the medical evidence shows relatively little physical impairment, an ALJ

permissibly can render a commonsense judgment about functional capacity even

 “Properly understood, Deskin sets out a narrow rule that does not constitute a 2

bright-line test.” Kizys v. Comm’r of Soc. Sec., 2011 WL 5024866 at *2 (N.D. Ohio 2011). 

Rather, Deskin potentially applies in only two circumstances: (1) where an ALJ made an RFC

determination based on no medical source opinion; or (2) where an ALJ made an RFC

determination based on an outdated source opinion that did not include consideration of a critical

body of objective medical evidence. Id. In this case, the ALJ made an RFC determination

without any medical source opinion regarding plaintiff’s mental limitations.

27

5:15-cv-10966-JEL-SDD Doc # 18 Filed 03/02/16 Pg 27 of 34 Pg ID 465
without a physician's assessment”). This does not appear to be such a case. Under

these circumstances, an expert medical advisor is absolutely critical to properly

evaluate plaintiff’s impairments, symptoms, and functional limitations. Thus, the

undersigned concludes that this matter should be remanded so that the ALJ can

obtain the opinion of an expert medical advisor regarding plaintiff’s mental

impairments and any resulting functional limitations. In this vein, plaintiff’s

credibility regarding his mental limitations will also need to be reassessed on

remand.

2. Treating physician opinion

Plaintiff claims that the ALJ discounted the opinion of his treating

physician, Dr. Murksyj, regarding the disabling nature of his limitations. An

opinion from a medical source who has examined a claimant is given more weight

than that from a source who has not performed an examination (a “non-examining

source”), and an opinion from a medical source who regularly treats the claimant

(a “treating source”) is afforded more weight than that from a source who has

examined the claimant but does not have an ongoing treatment relationship (a

“non-treating source”). Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 375 (6th

Cir. 2013) (internal citations omitted).

An ALJ is required to evaluate every medical opinion of record, and set

forth a valid basis for rejecting any. 20 C.F.R. § 404.1527; see Shelman v. Heckler,

28

5:15-cv-10966-JEL-SDD Doc # 18 Filed 03/02/16 Pg 28 of 34 Pg ID 466
821 F.2d 316, 321 (6th Cir. 1987). The Commissioner may not disregard opinions

of a consulting physician which are favorable to a claimant. See Lashley v. Sec’y,

708 F.2d 1048, 1054 (6th Cir. 1983). Moreover, “in weighing medical evidence,

‘ALJs must not succumb to the temptation to play doctor and make their own

independent medical findings.’” Allen v. Comm’r of Soc. Sec., No. 12-15097,

2013 WL 5676254, at *15 (E.D. Mich. Sept. 13, 2013) (citing Simpson v. Comm’r

of Soc. Sec., 344 Fed. Appx. 181, 194 (6th Cir. 2009)). An ALJ may not substitute

his [or her] own medical judgment for that of a treating or examining doctor where

the opinion of that doctor is supported by the medical evidence. See Simpson, 344

Fed. Appx. at 194; see also Bledsoe v. Comm’r of Social Sec., 2011 WL 549861,

at *7 (S.D. Ohio 2011) (“An ALJ is not permitted to substitute her own medical

judgment for that of a treating physician and may not make her own independent

medical findings.”); Mason v. Comm’r of Soc. Sec., 2008 WL 1733181, at * 13

(S.D. Ohio 2008) (“[t]he ALJ must not substitute his own judgment for a doctor’s

conclusion without relying on other medical evidence or authority in the record.”).

In other words, “[w]hile an ALJ is free to resolve issues of credibility as to lay

testimony, or to choose between properly submitted medical opinions, the ALJ

cannot substitute his [or her] own lay ‘medical’ opinion for that of a treating or

examining doctor.” Beck v. Comm’r of Soc. Sec., 2011 WL 3584468, at *14 (S.D.

Ohio 2011). This is so even though the final responsibility for the RFC

29

5:15-cv-10966-JEL-SDD Doc # 18 Filed 03/02/16 Pg 29 of 34 Pg ID 467
determination is an issue reserved to the Commissioner. Allen, 2013 WL

5676254, at *15.

Plaintiff’s treating physician, Dr. Murskyj, opined plaintiff’s symptoms

were severe enough to interfere with his attention and concentration required to

perform work-related tasks on a frequent basis, that he required breaks in excess of

typical breaks permitted in a work day, that he could only sit two hours in an eight

hour work day and stand/walk two hours in an eight hour workday, that he would

require breaks every 1.5 hours for 20 minutes in duration, that he would be absent

three or four times per month and that he was not physically capable of working

eight hours per day, five days per week. (Dkt. 9-7, Pg ID 280-281). The ALJ

concluded that Dr. Murskyj’s opinions could not be given controlling weight for

the following reasons:

In this instance, Dr. Murskyj’s opinions cannot be

accorded controlling weight because they are not

supported by objective diagnostic evidence and are

inconsistent with other significant clinical findings and

the claimant’s reported activities of daily living. A CT

scan showed some retained bullet fragments from an old

gunshot wound and a mild to moderate disc bulge at

C6-C7 with no signs of canal stenosis or nerve root

encroachment. There is no indication that a cervical MRI

or an upper extremity EMG has been performed.

(Dkt. 9-3, Pg ID 117).

The undesigned concludes that the ALJ failed to give the requisite “good

30

5:15-cv-10966-JEL-SDD Doc # 18 Filed 03/02/16 Pg 30 of 34 Pg ID 468
reasons” when he discounted the RFC assessment of plaintiff’s treating physician.

As the Sixth Circuit stated: “This requirement [to always give good reasons] is not

simply a formality; it is to safeguard the claimant’s procedural rights. It is intended

to let claimants understand the disposition of their cases, particularly in situations

where a claimant knows that his physician has deemed him disabled and therefore

might be especially bewildered when told by an administrative bureaucracy that [ ]

he is not.” Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011) (citation omitted). 

Moreover, if the ALJ determined that plaintiff’s treating physician’s opinion

should not be given controlling weight despite the medical evidence in support,

“the ALJ must still determine how much weight is appropriate by considering a

number of factors, including the length of the treatment relationship,

supportability of the opinion, consistency of the opinion with the record as a

whole, and any specialization of the treating physician.” Blakley v. Comm’r of Soc.

Sec., 582 F.3d 399, 406 (6th Cir. 2009). This was not done either. Even if Dr.

Murskyj’s opinion was not entitled to controlling weight, it was entitled to

deference. 20 C.F.R. § 404.1527(d)(2)(I). As explained in SSR 96-2p,

adjudicators must remember that a finding that a treating source medical opinion is

not well-supported by medically acceptable clinical and laboratory diagnostic

techniques or is inconsistent with the other substantial evidence in the case record

means only that the opinion is not entitled to controlling weight not that the

31

5:15-cv-10966-JEL-SDD Doc # 18 Filed 03/02/16 Pg 31 of 34 Pg ID 469
opinion should be rejected. Treating source medical opinions are still entitled to

deference and must be weighed using all of the factors provided in 20 CFR

404.1527 and 416.927. In many cases, a treating source’s medical opinion will be

entitled to the greatest weight and should be adopted, even if it does not meet the

test for controlling weight.

The undersigned finds that the ALJ did not adequately address why Dr.

Murskyj’s opinion should not be given controlling weight or even deference, as

required by the regulations. 20 C.F.R. § 404.1527(d)(2). Here, the ALJ simply

said he was not giving the opinion controlling weight, but he did not explain what

weight, if any, was given to Dr. Murskyj’s opinions. Although the ALJ’s finding

that plaintiff was not disabled ultimately may be justified, if an ALJ fails to

explain why he rejected or discounted the opinion and how those reasons affected

the weight accorded the opinion, the Court must find that substantial evidence is

lacking, “even where the conclusion of the ALJ may be justified based upon the

record.” Rogers, 486 F.3d at 243 (citation omitted). Given that Dr. Murskyj’s

opinion must be reevaluated on remand, the ALJ must also reassess plaintiff’s

credibility as to his physical limitations.

IV. RECOMMENDATION

For the reasons set forth above, the undersigned RECOMMENDS that

plaintiff’s motion for summary judgment be GRANTED, that defendant’s motion

32

5:15-cv-10966-JEL-SDD Doc # 18 Filed 03/02/16 Pg 32 of 34 Pg ID 470
for summary judgment be DENIED, that the findings of the Commissioner be

REVERSED, and that this matter be REMANDED for further proceedings under

Sentence Four.

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 and

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

and Human Servs., 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). Pursuant to Local Rule

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

Any objections must be labeled as “Objection No. 1,” “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), Local Rule 72.1(d). 

The response must specifically address each issue raised in the objections, in the

33

5:15-cv-10966-JEL-SDD Doc # 18 Filed 03/02/16 Pg 33 of 34 Pg ID 471
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.

Date: March 2, 2016 s/Stephanie Dawkins Davis

Stephanie Dawkins Davis

United States Magistrate Judge

CERTIFICATE OF SERVICE

I certify that on March 2, 2016, I electronically filed the foregoing paper

with the Clerk of the Court using the ECF system, which will send electronic

notification to all counsel of record.

s/Tammy Hallwood

Tammy Hallwood

Case Manager

(810) 341-7887

tammy_hallwood@mied.uscourts.gov

34

5:15-cv-10966-JEL-SDD Doc # 18 Filed 03/02/16 Pg 34 of 34 Pg ID 472