UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JOHN H. ROUNDS

Plaintiff,

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

_____________________________________/

Case No. 15-12440

Stephanie Dawkins Davis

United States Magistrate Judge

OPINION AND ORDER

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

I. PROCEDURAL HISTORY AND FACTUAL BACKGROUND

A. Proceedings in this Court

On July 8, 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 Robert H.

Cleland referred this matter to Magistrate Judge Michael Hluchaniuk for the

purpose of reviewing the Commissioner’s decision denying plaintiff’s claims for

disability insurance benefits and supplemental security income. (Dkt. 4). On

January 5, 2016, this matter was reassigned to the undersigned Magistrate Judge. 

See Text-Only Order of reassignment dated 1/5/16. On January 25, 2016, the

parties filed a notice of consent to this Magistrate Judge’s authority, which was

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signed by Judge Cleland. (Dkt. 16, 18). This matter is before the Court on crossmotions for summary judgment. (Dkt. 14, 17). 

B. Administrative Proceedings

Plaintiff filed the instant claims for period of disability and disability

insurance benefits on August 22, 2012, alleging that he became disabled on April

22, 2012. (Dkt. 10-2, Pg ID 40). The claims were initially disapproved by the

Commissioner on January 16, 2013. Id. Plaintiff requested a hearing and on

December 5, 2013, plaintiff appeared with counsel before Administrative Law

Judge (ALJ) Roxanne J. Kelsey, who considered the case de novo. (Dkt. 10-2, Pg

ID 58-101). In a decision dated February 28, 2014, the ALJ found that plaintiff

was not disabled. (Dkt. 10-2, Pg ID 37-52). Plaintiff requested a review of this

decision on April 2, 2014. (Dkt. 10-2, Pg ID 35). The ALJ’s decision became the

final decision of the Commissioner when the Appeals Council, on May 5, 2015,

denied plaintiff’s request for review. (Dkt. 10-2, Pg ID 28-32); Wilson v. Comm’r

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

C. ALJ Findings

Plaintiff was 50 years old on the alleged disability onset date. (Dkt. 10-2,

Pg ID 50). Plaintiff had past relevant work as an electronics mechanic, which

involves heavy exertion as plaintiff performed it but was a medium level

occupation as typically performed in the national economy. Id. The ALJ applied

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the five-step disability analysis to plaintiff’s claim and found at step one that

plaintiff had not engaged in substantial gainful activity since the alleged onset

date. Id. at 42. At step two, the ALJ found that plaintiff’s fibromyalgia,

peripheral neuropathy, lumber degenerative disc disease with sacroiliitis, and

depression were “severe” within the meaning of the second sequential step. Id. 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. at 44. 

The ALJ determined that plaintiff had the following residual functional

capacity (“RFC”):

After careful consideration of the entire record, the

undersigned finds that the claimant has the residual

functional capacity to perform light work as defined in

20 CFR 404.1567(b) involving: occasional climbing,

balancing, stooping, kneeling, crouching and crawling;

occasional concentrated exposure to hazards such as

dangerous, moving machinery and unprotected

elevations. The claimant lacks the ability to understand,

remember and carry out detailed instructions, but retains

the sustained concentration necessary for simple work of

a routine and repetitive type. He should not be required

to drive a motor vehicle as a part of the job.

Id. at 46-47. At step four, the ALJ found that plaintiff was unable to perform his

past relevant work, given his RFC. Id. at 50. At step five, the ALJ denied plaintiff

benefits because he could perform a significant number of jobs available in the

national economy. Id. at 50-51. 

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For the reasons set forth below, plaintiff’s motion for summary judgment is

DENIED in part and GRANTED in part, defendant’s motion for summary

judgment is GRANTED in part and DENIED in part, the findings of the

Commissioner are AFFIRMED in part and REVERSED in part, and this matter

is REMANDED for further proceedings under Sentence Four.

II. DISCUSSION

A. Standard of Review

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);

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).

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

are conclusive. 42 U.S.C. § 405(g). Therefore, this Court may not reverse the

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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

either the ALJ or the reviewing court must discuss every piece of evidence in the

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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.). 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:

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

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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

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. 

“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

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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

substantial evidence supports the ALJ’s decision, it must be upheld.

C. Step 2 - Chronic Fatigue Syndrome

Plaintiff argues that the ALJ’s determination that his chronic fatigue

syndrome is non-severe is unsupported by substantial evidence. According to

plaintiff, the ALJ determined that his well documented chronic fatigue syndrome

was “not severe,” and in doing so, the ALJ erroneously rejected all of the opinion

evidence in the record. Dr. Haduck, plaintiff’s long-term treating physician,

offered multiple opinions diagnosing him with chronic fatigue syndrome. 

According to plaintiff, his treatment records are consistent with the conclusion that

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he suffers from chronic fatigue syndrome. Dr. Bernick, an allergist, examined

plaintiff in June 2012. Dr. Bernick identified “a number of problems” on a clinical

basis and concluded that “chronic fatigue syndrome seems most appropriate” as a

diagnosis for his malaise and fatigue which defied a well-defined diagnosis. Dr.

Haduck’s treatment notes also consistently document plaintiff’s history of severe

fatigue. On May 7, 2012, Dr. Haduck assessed him with fatigue accompanied by

dizziness, (Dkt. 10-7, Pg ID 311), and his past history of chronic fatigue was

noted. (Dkt. 10-7, Pg ID 320). Plaintiff complained of “severe fatigue” on May

17, 2012. (Dkt. 10-7, Pg ID 302). On May 31, 2012, fatigue was again assessed

along with fibromyalgia and depression. (Dkt. 10-7, Pg ID 310). On June 18,

2012, Dr. Haduck again assessed plaintiff with fatigue. (Dkt. 10-7, Pg ID 308). 

On July 10, 2012, “fatigue” was identified in a review of plaintiff’s range of

symptoms. (Dkt. 10-7, Pg ID 306). Dr. Haduck also excused plaintiff from

working during this time period due to his “extreme fatigue and vertigo.” (Dkt.

10-8, Pg ID 411). In January 2013, Dr. Haduck submitted a letter to State Farm

Insurance explaining plaintiff’s inability to work. Consistent with his opinions as

expressed above, Dr. Haduck diagnosed plaintiff with chronic fatigue syndrome in

addition to hypothyroidism and neuropathy. Plaintiff’s symptoms included

extreme fatigue, pain in legs, and vertigo. (Dkt. 10-8, Pg ID 438). 

In response, the Commissioner maintains that the ALJ committed no error

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and her Step 2 finding is supported by substantial evidence. According to the

Commissioner, plaintiff failed to satisfy the threshold requirement at Step 2

because his condition was not a “medically determinable impairment.” (Dkt. 10-2,

Pg ID 42-44). Specifically, the Act defines a “physical or mental impairment” as

“an impairment that results from anatomical, physiological, or psychological

abnormalities which are demonstrable by medically acceptable clinical and

laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3). The existence of a

medically determinable physical or mental impairment must be established by

medical evidence consisting of signs, symptoms, and laboratory findings, but

under no circumstances may the existence of an impairment be established on the

basis of symptoms alone. SSR 96-4p, 1996 WL 374187, at *1-2 (1996). See 20

C.F.R. § 404.1529(b) (“Your symptoms, such as pain, fatigue, shortness of breath,

weakness, or nervousness, will not be found to affect your ability to do basic work

activities unless medical signs or laboratory findings show that a medically

determinable impairment(s) is present.”). Plaintiff told numerous doctors that he

had been diagnosed with chronic fatigue syndrome in the past; however, the

Commissioner asserts that the record contains no well-defined diagnosis of or

treatment for the condition. 

Although the record contains “diagnoses” of chronic fatigue syndrome, the

Commissioner asserts that the ALJ reasonably found them to be “speculative,” and

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none were documented by medically acceptable clinical and laboratory findings. 

(Dkt. 10-2, Pg ID 43). The first time “chronic fatigue syndrome” appeared in the

record was in an October 2007 neuropsychological evaluation in which Holly A.

Aulph, M.A. wrote, “We cannot rule out chronic fatigue syndrome, however, to

date, research regarding chronic fatigue syndrome and cognitive deficits seem to

indicate more involvement of motor and working memory difficulties. At this

time, we are not seeing those findings.” (Dkt. 10-7, Pg ID 398). The condition is

next referenced in a June 26, 2012 treatment note, in which John J. Bernick, M.D.

wrote, “medically, [Plaintiff’s] problems [which included “malaise and fatigue”]

defy an objective diagnosis.” (Dkt. 10-7, Pg ID 294). Although Dr. Bernick

stated that “[t]he term chronic fatigue syndrome seems most appropriate,” he also

acknowledged that “there is no well-defined diagnosis or treatment.” Id.

According to the Commissioner, the remaining assessments appear to be

based on plaintiff’s own assertions that he was previously diagnosed with the

condition, and on his reported symptoms. For example, the November 2012

diagnosis by Robert Jamieson, D.O., of a “history of chronic fatigue” was based

on plaintiff’s report that he was diagnosed one year earlier, as well as his “reported

history of lack of energy and allegations of difficulty with performing everyday

activities.” (Dkt. 10-2, Pg ID 44; Dkt. 10-7, Pg ID 330-332). Similarly, in each of

the four opinions provided by Paul Haduck, D.O., the doctor indicated that

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plaintiff had chronic fatigue syndrome, yet the Commissioner points out that none

of his opinions (or treatment notes) include any medically acceptable clinical

and/or laboratory findings to support the diagnosis. Dkt. 10-7, Pg ID 324-328

(October 2012), Dkt. 10-8, Pg ID 438-439 (January 2013), Dkt. 10-8, Pg ID 402-

404 (September 2013), Dkt. 10-8, Pg ID 465-468 (December 2014). At most, the

Commissioner asserts that Dr. Haduck’s treatment notes report plaintiff’s

subjective symptoms of fatigue and dizziness. (See e.g., Dkt. 10-7, Pg ID 302,

308, 310, 311. As noted above, “[s]tatements merely recounting the symptoms of

the applicant or providing only a diagnosis will not establish a medical impairment

for purposes of Social Security benefits.” See SSA Chronic Fatigue Syndrome -

FACT SHEET available at

https://www.ssa.gov/disability/professionals/cfs-pub063.htm. 

Even if this court were to conclude that the ALJ erred by not finding chronic

fatigue syndrome to be severe, the Commissioner maintains that the error would

be harmless in this case because the ALJ proceeded with the sequential evaluation

and considered plaintiff’s reported symptoms throughout the process. (Dkt. 10-2,

Pg ID 44-50). For example, the ALJ included limitations based on plaintiff’s

dizziness in the RFC finding. (Dkt. 10-2, Pg ID 47). She found that plaintiff

should not be required to drive, based on his testimony that “he has dizziness due

to chronic fatigue that prevents him from driving.” (Dkt. 10-2, Pg ID 47, 49). She

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also included a limitation that he not perform work that involves being around

hazards. (Dkt. 10-2, Pg ID 46, 49). 

The Court rejects plaintiff’s argument of reversible error regarding the

ALJ’s Step 2 analysis. As plaintiff acknowledges, the omission of an impairment

from the step two findings does not typically warrant remand because the ALJ

found that plaintiff had other impairments that met the criteria for severity at Step

2, and thus proceeded to Step 3 in the sequential analysis. See Maziarz v. Sec’y of

Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987) (holding that because

the Secretary had found at least one other “severe” limitation, the severity of

Maziarz’s cervical condition was irrelevant for the step two analysis). If a

claimant has more than one impairment, the ALJ must consider all medically

determinable impairments when assessing the RFC, including those that are not

severe. 20 C.F.R. § 404.1545(a)(3); Fisk v. Astrue, 253 Fed.Appx. 580, 584 (6th

Cir. 2007) (noting that once the ALJ determines at least one severe impairment, he

“must consider limitations and restrictions imposed by all of an individual’s

impairments, even those that are not ‘severe’”). A Step 2 omission is of “little

consequence,” provided that the ALJ considered “all impairments, severe and

nonsevere,” in crafting the RFC. See Pompa v. Comm’r of Soc. Sec., 73

Fed.Appx. 801, 803 (6th Cir. 2003).

The present circumstances are quite similar to those in Carney v. Colvin,

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2015 WL 5089783, *7 (M.D. Tenn. 2015), in which the Court concluded that

while the ALJ erred in failing to find that the plaintiff’s CFS was a severe

impairment, the ALJ did not err in his subsequent consideration of the effects of

the plaintiff’s CFS. The Carney court explained that CFS is not a listed

impairment, thus it cannot be evaluated as such at Step 3, but “in cases in which a

person with CFS has psychological manifestations related to CFS, we must

consider whether the person's impairment meets or equals the severity of any

impairment in the mental disorders listings.” Id. (quoting SSR 14-1p at *8). In

Carney, the court concluded that the ALJ followed this requirement, evaluating

whether the plaintiff’s depression, anxiety disorder, or personality disorder met or

equaled a listing and the ALJ accounted for fatigue and related symptoms in his

RFC assessment. Thus, the court concluded that there was no error. Id. 

Similarly, here, the Court agrees with the Commissioner’s analysis that

doctors diagnosed plaintiff with other conditions that might have caused his

reported symptoms of fatigue and dizziness and that the ALJ fully considered and

accounted for these conditions and symptoms in formulating his RFC. See e.g.,

Dkt. 10-7, Pg ID 304 (depression), Dkt. 10-7, Pg ID 305 (fibromyalgia), Dkt. 10-7,

Pg ID 306 (fibromyalgia and hypothyroidism), Dkt. 10-7, Pg ID 308 (fibromyalgia

and hypothyroidism), Dkt. 10-7, Pg ID 310 (fibromyalgia and hypothyroidism),

Dkt. 10-7, Pg ID 363 (pernicious anemia), Dkt. 10-7, Pg ID 365 (hypothyroidism),

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Dkt. 10-7, Pg ID 373 (hypothyroidism, pernicious anemia), Dkt. 10-7, Pg ID 377

(acute vertigo), Dkt. 10-8, Pg ID 460 (hypothyroidism). Because the ALJ found

both depression and fibromyalgia to be severe impairments at Step 2 and

continued to consider the effects of those conditions—dizziness and

fatigue—throughout the sequential evaluation process, the Court finds that any

error in concluding that plaintiff’s CFS was non-severe is harmless. (Dkt. 10-2,

Pg ID 42). As explained in SSR14-1p, CFS is only diagnosed when the symptoms

cannot be explained by another physical or mental disorder. And here, plaintiff

points to no other symptoms or limitations caused by his CFS that the ALJ failed

to consider in the five step analysis. For these reasons, just as in Carney, the

1

Court concludes that any error at Step 2 is harmless and does not provide a basis

for reversing the Commissioner’s findings in this regard.

D. Weighing of Medical Opinions

In addition to claiming that the ALJ erroneously rejected the opinions of his

treating physician with respect to the CFS diagnosis, plaintiff also claims that the

ALJ failed to follow the regulations regarding weighing a treating physician

opinion when an ALJ determines that the opinion is not entitled to controlling

weight. Plaintiff does not appear to suggest that Dr. Haduck’s opinion regarding

 Notably, in Carney, the Court concluded that the ALJ erred by not finding the plaintiff’s 1

CFS to be a severe impairment, yet still found the error harmless.

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plaintiff’s limitations were entitled to controlling weight and thus, this issue will

be given no further consideration by the Court.

 Where an ALJ determines that plaintiff’s treating physician’s opinions

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.” Allen v. Comm’r of Soc.

Sec., 2013 WL 5676254, at *13 (E.D. Mich. Sept. 13, 2013) (citing Blakley v.

Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009)). “The more a medical

source presents relevant evidence to support an opinion, particularly medical signs

and laboratory findings, the more weight we will give that opinion. The better an

explanation a source provides for an opinion, the more weight we will give that

opinion.” 20 C.F.R. § 404.1527(c)(3). “Moreover, when the physician is a

specialist with respect to the medical condition at issue, . . . her opinion is given

more weight than that of a non-specialist.” Johnson v. Comm’r of Soc. Sec., 652

F.3d 646, 651 (6th Cir. 2011). The Commissioner is required to provide “good

reasons” for discounting the weight given to a treating-source opinion. These

reasons must be supported by the evidence in the case record, and must be

sufficiently specific to make clear to any subsequent reviewers the weight the

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adjudicator gave to the treating source’s medical opinion and the reasons for that

weight. Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013). 

“This circuit ‘has made clear that [it] do[es] not hesitate to remand when the

Commissioner has not provided good reasons for the weight given to a treating

physician's opinion.’” Gayheart, 710 F.3d at 380 (citation omitted).

On October 4, 2012, Dr. Haduck indicated diagnoses of chronic fatigue

syndrome, hypothyroidism, and COPD and he identified plaintiff’s primary

symptom as fatigue. (Dkt. 10-7, Pg ID 324). He rated plaintiff’s fatigue as 9 out

of 10. Id. He opined that it was difficult to determine how much plaintiff could

stand or walk in an 8 hour day and that he could only occasionally lift more than

10 pounds. (Dkt. 10-7, Pg ID 325). He concluded that plaintiff could not do a full

time competitive job which required activity on a sustained basis and would need

to avoid fumes and dust. (Dkt. 10-7, Pg ID 326). He stated that plaintiff’s

emotional factors contributed to his symptoms and limitations, was not a

malingerer, and was only capable of low stress work. (Dkt. 10-7, Pg ID 327). Dr.

Haduck also opined that plaintiff would be absent from work more than 3 times

per month. (Dkt. 10-7, Pg ID 328).

Almost a year later in September 2013, Dr. Haduck offered a second

opinion on plaintiff’s work related limitations. Again, Dr. Haduck diagnosed

chronic fatigue syndrome with variable symptoms. Dr. Haduck concluded that

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plaintiff’s symptoms and limitations would vary and be precisely difficult to

quantify but that he would need the ability to shift positions at will and take

unscheduled breaks during an eight hour workday. (Dkt. 10-8, Pg ID 401). He

again opined that plaintiff was only able to safely lift and carry more than 10

pounds. He stated

that plaintiff would have both good days and bad days and that on his bad days he

is bedridden. His impairments would cause plaintiff to be absent more than two

times a month. (Dkt. 10-8, Pg ID 404). In December 2013, Dr. Haduck again

offered an opinion on plaintiff’s work related limitations. He again diagnosed

plaintiff with chronic fatigue syndrome, in addition to COPD, chronic pancreatitis,

chronic abdominal pain, neuropathy in both feet, hypothyroidism, depression, and

anxiety. He found plaintiff’s prognosis poor and again identified his primary

symptom as “severe fatigue.” He also identified symptoms of low back pain,

insomnia, joint pain and swelling. (Dkt. 10-8, Pg ID 465). He opined that

plaintiff could sit for no more than two hours continuously due to back pain and

only stand or walk for two hours in an 8-hour workday. As above, he identified

limitations in reaching, handling, and fingering and opined that plaintiff could not

sustain a competitive job which required work activity on a sustained basis. (Dkt.

10-8, Pg ID 465-466). He stated plaintiff was now incapable of low stress work

and identified chronic pain, lack of sleep, and sedating medication as his basis for

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the conclusion that plaintiff was unable to work. (Dkt. 10-8, Pg ID 468).

With respect to Dr. Haduck’s opinions regarding plaintiff’s functional

capacity, plaintiff maintains that the ALJ found only that his opinion was not

entitled to “controlling weight” and the ALJ did not proceed, as required, to

consider the 20 C.F.R. § 404.1527 factors. (Dkt. 10-2, Pg ID 50). According to

plaintiff, this is clear error, which can only be corrected by remanding the case for

further proceedings. Wilson, 378 F.3d at 544 (citing 20 C.F.R. § 404.1527(c)(2)). 

Plaintiff also points out that Dr. Jamieson personally examined him, which is

another factor that the regulations also require an ALJ to consider when weighing

a medical opinion. See 20 C.F.R. § 404.1527(c)(1) (“Generally, we give more

weight to the opinion of a source who has examined you than to the opinion of a

source who has not examined you.”). Plaintiff asserts that the ALJ also gave no

obvious consideration to the fact that the opinions of Dr. Haduck, Dr. Jamieson,

and Dr. Ipakchi are consistent with each other in concluding plaintiff’s chronic

fatigue syndrome was a severe impairment, another required factor under the

regulations. 20 C.F.R. § 404.1527(c)(4) (requiring that the consistency of medical

opinions be considered in the weighing analysis). According to plaintiff, the ALJ

neglected to assign any specific weight at all to the opinion of Dr. Jamieson, which

is error. See 20 C.F.R. § 404.1527(d) (“Regardless of its source, we will evaluate

every medical opinion we receive.”).

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The Commissioner urges the Court to reject plaintiff’s argument that the

ALJ failed to provide sufficient good reasons for discounting the medical opinions

from Drs. Haduck and Jamieson. The Commissioner argues that the ALJ

appropriately declined to give controlling weight to any of Dr. Haduck’s opinions

because they contradicted each other and were inconsistent with the doctor’s own

treatment notes. (Dkt. 10-2, Pg ID 50). The Commissioner points out that Dr.

Haduck’s opinions became increasingly restrictive within a very short period of

time. In October 2012, he stated that plaintiff could sit for five hours, walk or

stand for up to three hours, and lift up to fifty pounds occasionally. (Dkt. 10-7, Pg

ID 324-325). In contrast, just over a year later, the doctor opined that plaintiff was

unable to sit, walk, or stand for any length of time and could only rarely carry ten

pounds. (Dkt. 10-8, Pg ID 466). According to the Commissioner, the doctor

provided no justification for these increased limitations. (Dkt. 10-2, Pg ID 48-49). 

On the contrary, his opinions reflect that plaintiff’s level of pain had not changed

since the first opinion—it measured 8 out of 10 both in October 2012 and

December 2013. (Dkt. 10-7, Pg ID 324; Dkt. 10-8, Pg ID 465). Moreover,

plaintiff’s fatigue had actually decreased since the first opinion, measuring 9 out

of 10 in October 2012 and 8 out of 10 in December 2013. Id. The Commissioner

also asserts that Dr. Haduck’s treatment notes provide no additional insight as they

reflect generally unremarkable examinations, and it appears that Dr. Haduck has

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not treated plaintiff since before he provided his first opinion. The doctor’s most

recent note, dated one month before his first opinion was issued and more than a

year before his final opinion was issued, shows normal examination findings with

no suggestion that plaintiff’s condition had worsened. (Dkt. 10-7, Pg ID 304

(September 4, 2012)).

The factors to be considered by the ALJ under 20 C.F.R. § 404.1527(c) are:

the length of treatment and frequency of examination, the nature and extent of

treating relationship, supportability, consistency, and specialization. The ALJ

only expressly considered the controlling weight test in her decision. (Dkt. 10-2,

Pg ID 50). While the ALJ discussed Dr. Haduck’s opinion throughout the

decision, she did not explain what weight, if any, was given to his extensive

opinions and why. She discussed, at length, how plaintiff’s testimony was not

consistent with the medical evidence, including Dr. Haduck’s opinions and

records, but nothing in this discussion suggests any analysis of the factors

identified above or how the ALJ was assessing Dr. Haduck’s opinion under those

factors. Indeed, the ALJ noted that Dr. Haduck did not provide any opinion

regarding plaintiff’s CFS diagnoses; rather he only provided opinions regarding

plaintiff’s ability to perform physical activities. (Dkt. 10-2, Pg ID 43). But, the

ALJ only determined that Dr. Haduck’s opinions - given that they were

“contradictory as earlier discussed and not supported by his own treatment

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records” – should not be given controlling weight. The Commissioner does not

acknowledge that plaintiff is not asserting a “controlling weight” error, and

consequently does not offer much in the way of a substantive response to

plaintiff’s 20 C.F.R. § 404.1527(c) argument. To the extent the Commissioner

points out that the ALJ noted the inconsistencies in Dr. Haduck’s opinions, this is

insufficient under 20 § C.F.R. 404.1527(c). Nothing in the decision gives the 2

Court any indication about the actual weight given or the supporting reasoning. 

Thus, this matter must be remanded for further consideration of the treating

physician opinions under 20 C.F.R. § 404.1527(c).

While plaintiff asserts that the ALJ failed to consider Dr. Jamieson’s

opinion, plaintiff only seems to allege this as an error with respect his CFS

diagnosis, as opposed to any opinions offered by Dr. Jamieson regarding

plaintiff’s functional limitations. The Court has already determined that any

failure to find plaintiff’s CFS to be severe is a harmless error, but will briefly

 The Commissioner seems to collapse the two potential paths of error in the assessment 2

of treating physician opinions. To the extent that the Commissioner’s argument is a “post-hoc”

rationalization for the ALJ’s failure to consider the second path (the factors under 20 C.F.R.

§ 404.1527(c)), the Court notes that it “may not accept appellate counsel’s post hoc

rationalizations for agency action. It is well-established that an agency’s action must be upheld,

if at all, on the basis articulated by the agency itself.” Berryhill v. Shalala, 4 F.3d 993, 1993 WL

361792, at *6 (6th Cir. 1993) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins.

Co., 463 U.S. 29, 50, 103 (1983)). “Courts are not at liberty to speculate on the basis of an

administrative agency’s order.... The court is not free to accept ‘appellate counsel’s post hoc

rationalization for agency action in lieu of reasons and findings enunciated by the Board.’” Hyatt

Corp. v. N.L.R.B., 939 F.2d 361, 367 (6th Cir. 1991). Thus, the Commissioner’s post hoc

rationalizations are not an acceptable substitute for the ALJ’s lack of rationale concerning her

treatment of the opinions of plaintiff’s treating physician.

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touch on this issue as it relates to the proper weighing of medical opinions. The

Court agrees with the Commissioner that, contrary to plaintiff’s argument, the ALJ

explained why she rejected Dr. Jamieson’s chronic fatigue syndrome diagnosis.

Specifically, the ALJ wrote, 

At the internal medicine consultative examination the

claimant informed Dr. Jami[e]son that he had been

diagnosed more than a year earlier with chronic fatigue

but alleged problems since 2000 including lack of energy

and never feeling rested. However, there are no medical

reports documenting the longstanding conditions.

(Dkt. 10-2, Pg ID 49). As Dr. Jamieson really offered no other medical opinions

(Dkt. 10-7, Pg ID 330-332), there was nothing else for the ALJ to “weigh.” Thus,

plaintiff’s allegation that the ALJ failed to state what weight she gave Dr.

Jamieson’s diagnosis is without merit and there is no basis to reverse the

Commissioner’s findings in this regard. 

D. Simple, Routine, and Repetitive Tasks

Plaintiff points out that the ALJ determined at Step 3 that plaintiff had a

moderate limitation in his ability to maintain concentration, persistence or pace.

(Dkt. 10-2, Pg ID 46). In her RFC determination, she further concluded that

plaintiff lacks the ability to understand, remember and carry out detailed

instructions, but retains the sustained concentration necessary for simple work, of

a routine and repetitive type. (Dkt. 10-2, Pg ID 47). According to plaintiff, the

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ALJ erred when she failed to capture her own concentration, persistence or pace

finding into the RFC. The Sixth Circuit has held that a limitation to “simple

unskilled routine” work was not sufficient to fully convey the speed and pace

based restrictions indicated by even a claimant’s moderate limitations in

concentration, persistence or pace. Ealy v. Comm’r of Soc. Sec., 594 F.3d 504,

516-517 (6th Cir. 2010). Similarly, this District Court has found that a

hypothetical question that does not adequately describe the nature of a claimant’s

moderate limitations in concentration, persistence or pace was not sufficient to

provide substantial evidence supporting the ALJ’s determination. Thus, plaintiff

asserts that the ALJ’s restriction in this RFC to “simple, routine, repetitive tasks”

is error because it does not provide the required function-by-function analysis. 

Cheeks v. Comm’r of Soc. Sec., 690 F. Supp. 2d 592 (E.D. Mich. 2009); Edwards

v. Barnhart, 383 F.Supp.2d 920, 930-931 (E.D. Mich. 2005). 

Plaintiff further explains that because the ALJ found that he had significant

deficits of concentration, persistence or pace, and the record supports this

conclusion the analysis required under Ealy is thus triggered. In support, plaintiff

points to the Agency’s psychological examiner, who performed testing which

showed he could not perform serial seven subtractions and mistakes on serial three

subtractions. (Dkt. 10-7, Pg ID 341). Moreover, even the nonexamining Agency

psychological consultant’s opinion establishes specific concentration, persistence

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or pace limitations beyond the ALJ’s simplistic “simple routine repetitive” RFC. 

In particular, the consultant found that plaintiff was limited to one or two step

tasks, Dkt. 10-3, Pg ID 111, a limitation not included in the ALJ’s RFC

determination. 

In response, the Commissioner maintains that the ALJ properly accounted

for plaintiff’s moderate limitations in concentration, persistence or pace by

limiting him to “simple work of a routine and repetitive type.” (Dkt. 10-2, Pg ID

46-47). Unlike Ealy, the Commissioner contends that the evidence in this case

does not support a pace-based limitation. Cf. Ealy, 594 F.3d at 516 (“Dr. Scher

specifically limited Ealy’s ability to sustain attention to complete simple repetitive

tasks to ‘[two-hour] segments over an eight-hour day where speed was not

critical.’”). 

According to the Commissioner, the record opinions include no pace-based

limitations. Leonard C. Balunas, Ph.D. opined that plaintiff had moderate

limitations in the category of “Difficulties in Maintaining Concentration,

Persistence[,] or Pace.” (Dkt. 10-3, Pg ID 108). A limitation in this category,

however, does not mean that a claimant is limited in all three areas. In this case,

the psychologist opined that plaintiff had “no problems with attention” and

“sufficient concentration to perform simple 1-2 step tasks all on a routine and

regular basis.” (Dkt. 10-3, Pg ID 111). With respect to pace, Dr. Balunas opined

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that plaintiff’s ability to perform activities within a schedule was not significantly

limited. (Dkt. 10-3, Pg ID 111). After evaluating plaintiff, Dawn Bane Gventer,

Psy.D. opined that plaintiff’s memory was intact and his concentration was “a bit

impaired,” but he possessed no functional restrictions. (Dkt. 10-7, Pg ID 343). 

Although Dr. Gventer noted no functional limitations, the ALJ found—consistent

with Dr. Balunas’ opinion—that plaintiff had moderate limitations in

concentration, persistence, or pace. (Dkt. 10-2, Pg ID 46). The ALJ explained, 

In the function report, the claimant reported difficulty

focusing and concentrating. He stated that he

occasionally had to be reminded to do things. At the

psychological consultative examination, the claimant

was not able to perform serial seven subtractions and

when he did serial three subtractions, made two mistakes

through the number 82. He was able, however, to sustain

concentration to persevere through the other testing at

this examination.

Id. (internal citations omitted). Consistent with the evidence, the ALJ limited

plaintiff to performing simple work of a routine and repetitive type that does not

require the ability to understand, remember and carry out detailed instructions. 

(Dkt. 10-2, Pg ID 46-47). She explained that plaintiff “retains the sustained

concentration necessary” for this type of work. Id. Notably, both doctors opined

that Plaintiff could work. Young v. Comm’r of Soc. Sec., 2011 WL 2601014, at

*10 (E.D. Mich. May 23, 2011) (finding that although moderate limitations were

assessed in the record, the plaintiff failed to mention that the same assessment also

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concluded that the plaintiff was capable of unskilled work). Thus, the

Commissioner maintains that plaintiff has not proven that a pace-based limitation

is required to enable him to perform simple, routine, repetitive work.

The Commissioner urges the Court to reject plaintiff’s contention of error

because the ALJ did not include a “simple 1-2- step task” limitation in the RFC,

despite Dr. Balunas’ opinion in this regard. The Commissioner argues that even if

this court concludes that an inconsistency exists, it would not have affected the

outcome in this case. The vocational expert testified that plaintiff could perform

the following jobs based on a limitation to simple, routine, repetitive work:

assembler (DICOT 731.687-010); inspector (DICOT 704.687-010); and hand

packager (DICOT 789.687-066). (Dkt. 10-2, Pg ID 89). The Commissioner

explains that each of those jobs requires a reasoning level 1, which includes

applying “commonsense understanding to carry out simple one- or two-step

instructions.” In other words, the jobs identified by the vocational expert, and

relied on by the ALJ, involved only one- to two-step tasks which is consistent with

the limitation that plaintiff urges should have been stated expressly in the RFC

finding. Thus, according to the Commissioner, any error is harmless. See Shinseki

v. Sanders, 556 U.S. 396, 409 (2009) (“the burden of showing that an error is

harmful normally falls upon the party attacking the agency’s determination”);

Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 654 (6th Cir. 2009) (“Generally ...

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we review decisions of administrative agencies for harmless error”).

Courts in this District have determined that “there is no bright-line rule

requiring remand whenever an ALJ’s hypothetical includes a limitation of

‘unskilled, routine work’ but excludes a moderate limitation in concentration. 

Rather, the Court must look at the record as a whole and determine if substantial

evidence supports the ALJ’s RFC.” Smith v. Comm’r of Soc. Sec., 2013 WL

6094745, at *8 (E.D. Mich. Nov. 20, 2013) (citing Hess v. Comm’r of Soc. Sec.,

2008 WL 2478325, at *7 (E.D. Mich. June 16, 2008)); see also Lewicki v. Comm'r

of Soc. Sec., 2010 WL 3905375, at *3 (E.D. Mich. Sept. 30, 2010). In other

words,

Taken in isolation, the hypothetical limitations

consisting of ‘[s]imple routine tasks in a low stress

environment’ and ‘minimal changes in the work place

setting’ might appear inadequate to account for

‘moderate’ concentrational and pacing deficiencies.

However, the record as a whole indicates that the

hypothetical question and the ALJ’s finding of

“moderate” limitations findings are not incompatible.

Hess, 2008 WL 2478325, at *7; see also Lewicki, 2010 WL 3905375, at *3. In

Hess, for example, even though the ALJ omitted a concentration-based limitation

from the hypothetical, this court did not remand because the entire record

supported a finding that plaintiff could perform unskilled work on a sustained

basis. Hess, 2008 WL 2478325, at *8.

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The essential question here is whether the ALJ’s conclusion that plaintiff

was limited to simple, routine, repetitive tasks sufficiently accommodated the

ALJ’s finding that plaintiff had moderate difficulties in concentration, persistence,

or pace. This issue has been addressed numerous times in this District, as noted in

Hicks v. Comm’r, 2011 WL 6000714 (E.D. Mich. 2011) (adopted by 2011 WL

6000701 (E.D. Mich. 2011) (Roberts, J.)). The undersigned agrees with the

holding in Hicks that an RFC and hypothetical simply limiting a claimant to

“simple routine tasks” may, in some instances, fail to capture a claimant’s

moderate limitation in concentration, persistence, or pace because the difficulty of

a task is not equivalent to the difficulty of staying on task. Id. (citing Green v.

Comm'r of Soc. Sec., 2009 WL 2365557, at *10 (E.D. Mich. 2009) (“It is difficult

to reasonably accept ‘moderate’ meaning anything less than 20%–30% of the time

at work. Thus, ‘moderate’ concentration problems . . . need to be included or

accommodated in some suitable fashion in the hypothetical question at Step 5. . . .

Simply including the hypothetical of unskilled jobs with limited contact with

co-workers and the public is not sufficient.”); Edwards v. Barnhart, 383 F. Supp.

2d 920, 930 (E.D. Mich. 2005) (“Plaintiff may be unable to meet quotas, stay alert,

or work at a consistent pace, even at a simple, unskilled, routine job.”)). Yet, other

cases seemingly conclude otherwise. See e.g., Bohn-Morton v. Comm’r of Soc.

Sec., 389 F.Supp.2d 804, 807 (E.D. Mich. 2005) (finding that “unskilled” work

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limitation in RFC was sufficient to account for ALJ’s PRTF finding that claimant

“often” experiences CPP issues); Lewicki v. Comm’r of Soc. Sec., 2010 WL

3905375, at *3 (E.D. Mich. 2010) (“There may be cases where such moderate

limitations preclude the performance of even some simple, unskilled tasks.

Plaintiff does not, however, explain why the facts of this particular case require a

more detailed hypothetical question to adequately account for his own moderate

limitations in concentration, persistence, or pace.”).

Hicks highlights an important reason the outcomes of these seemingly

similar cases are often so different. The cases within this District that do not

remand for the ALJ to include a moderate concentration, persistence, or pace

limitation are distinguishable because a medical professional had made a specific

finding that the claimant had moderate difficulties in concentration, persistence, or

pace, but could still work on a sustained basis. Hicks, 2011 WL 6000701, *4.

Judge Michelson distinguished the cases where a medical professional found

moderate difficulties in concentration, persistence, or pace, from cases like Benton

v. Comm’r of Soc. Sec., 511 F. Supp. 2d 842 (E.D. Mich. 2007) and the facts of

Hicks, where the ALJ (rather than a medical professional) made the finding of

moderate limitations in concentration, persistence, or pace. 

Here, the ALJ made a finding of moderate limitations in concentration,

persistence, or pace, supported by a medical opinion finding a moderate limitation

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in concentration, persistence, or pace (Dkt. 10-3, Pg ID 110-111), which indicated

that the plaintiff was still capable of sustained simple tasks. In the view of the

undersigned, as explained by the Commissioner, the jobs identified by the

vocational expert require a reasoning level 1, which includes applying

commonsense understanding to carry out simple one- or two-step instructions. For

this reason, the limitation to one or two-step instructions was accommodated in the

jobs identified by the vocational expert. To the extent that there could have been

any error in the failure to specify one or two-step instructions in the hypothetical

question, it was entirely harmless. Thus, the RFC and hypothetical question in this

case were not flawed and properly accounted for plaintiff’s moderate limitation in

concentration, persistence, or pace. Based on the foregoing, the Court finds no

basis to reverse the findings of the Commissioner in this regard. 

For the reasons set forth above, plaintiff’s motion for summary judgment is

DENIED in part and GRANTED in part, defendant’s motion for summary

judgment is GRANTED in part and DENIED in part, the findings of the

Commissioner are AFFIRMED in part and REVERSED in part, and this matter

is REMANDED for further proceedings under Sentence Four.

IT IS SO ORDERED.

Date: September 30, 2016 s/Stephanie Dawkins Davis

Stephanie Dawkins Davis

United States Magistrate Judge

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CERTIFICATE OF SERVICE

I certify that on September 30, 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

Case Manager

(810) 341-7887

tammy_hallwood@mied.uscourts.gov

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