UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

SHANA CELESTINE JAMES,

CASE NO. 15-11790

Plaintiff, DISTRICT JUDGE GERSHWIN A. DRAIN

v. MAGISTRATE JUDGE PATRICIA T. MORRIS

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

___________________________/

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION ON CROSS 

MOTIONS FOR SUMMARY JUDGMENT (Docs. 15, 16)

I. RECOMMENDATION

In light of the entire record in this case, I suggest that substantial evidence 

supports the Commissioner’s determination that James is not disabled. Accordingly, IT 

IS RECOMMENDED that James’ Motion for Summary Judgment (Doc. 15) be 

DENIED, that the Commissioner’s Motion for Summary Judgment (Doc. 16) be 

GRANTED, and that this case be AFFIRMED.

II. REPORT

A. Introduction and Procedural History

Pursuant to 28 U.S.C. § 636(b)(1)(B), E.D. Mich. LR 72.1(b)(3), and by Notice of 

Reference, this case was referred to the undersigned magistrate judge for the purpose of 

reviewing a final decision by the Commissioner of Social Security (“Commissioner”)

denying Plaintiff’s claims for a period of disability, Disability Insurance Benefits (“DIB”)

program of Title II, 42 U.S.C. § 401 et seq., and for Supplemental Security Income 

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(“SSI”) under Title XVI, 42 U.S.C. § 1381 et seq. (Doc. 3; Tr. 1-3). The matter is 

currently before the Court on cross-motions for summary judgment. (Docs. 15, 16).

Plaintiff Shana James was twenty-six years old as of May 14, 2008, her date of 

alleged disability. (Tr. 13, 195). Her applications for benefits were initially denied on 

July 26, 2012. (Tr. 74-82). James requested a hearing before an Administrative Law 

Judge (“ALJ”), which took place before ALJ Henry Perez, Jr. on October 13, 2013. (Tr. 

25-51). James, represented by attorney Barry Keller, testified, as did vocational expert 

(“VE”) Luann Castellana. (Id.). On November 27, 2013, the ALJ issued a written 

decision in which he found James not disabled. (Tr. 8-20). On March 16, 2015, the 

Appeals Council denied review. (Tr. 1-3). James filed for judicial review of that final 

decision on May 19, 2015. (Doc. 1). 

B. Standard of Review

The district court has jurisdiction to review the Commissioner’s final 

administrative decision pursuant to 42 U.S.C. § 405(g). The district court’s review is 

restricted solely to determining whether the “Commissioner has failed to apply the 

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

the record.” Sullivan v. Comm’r of Soc. Sec., 595 F. App’x 502, 506 (6th Cir. 2014) 

(internal citations omitted). Substantial evidence is “more than a scintilla of evidence but 

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

as adequate to support a conclusion.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 

(6th Cir. 2007) (internal quotations omitted). 

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The Court must examine the administrative record as a whole, and may consider 

any evidence in the record, regardless of whether it has been cited by the ALJ. See 

Walker v. Secretary of Health and Human Services, 884 F.2d 241, 245 (6th Cir. 1989). 

The Court will not “try the case de novo, nor resolve conflicts in the evidence, nor decide 

questions of credibility.” Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 

(6th Cir. 1994). If the Commissioner’s decision is supported by substantial evidence, “it 

must be affirmed even if the reviewing court would decide the matter differently and 

even if substantial evidence also supports the opposite conclusion.” Id. at 286 (internal 

citations omitted). 

C. Framework for Disability Determinations

Under the Act, “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 the inability

to engage in any substantial gainful activity by reason of any 

medically determinable physical or mental impairment which 

can be expected to result in death or which has lasted or can be 

expected to last for a continuous period of not less than 

[twelve] months.

42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (DIB); 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 . . . 

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physical or mental ability to do basic work activities,” benefits 

are denied without further analysis.

Step Three: If the claimant 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.

20 C.F.R. §§ 404.1520, 416.920. See also Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 

534 (6th Cir. 2001). “Through step four, the claimant bears the burden of proving the 

existence and severity of limitations caused by [his or] her impairments and the fact that

she is precluded from performing [his or] her past relevant work.” Jones v. Comm’r of 

Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). The burden transfers to the Commissioner if 

the analysis reaches the fifth step without a finding that the claimant is not disabled. 

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 [the claimant] could perform given [his or] her RFC [residual 

functional capacity] and considering relevant vocational factors.” Rogers, 486 F.3d at 241 

(citing 20 C.F.R. §§ 416.920(a)(4)(v), (g)).

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Under the authority of the Social Security Act, the SSA has promulgated 

regulations that provide for the payment of disabled child’s insurance benefits if the 

claimant is at least 18 years old and has a disability that began before age 22 (20 C.F.R. 

404.350(a) (5) (2013). A claimant must establish a medically determinable physical or 

mental impairment (expected to last at least twelve months or result in death) that 

rendered her unable to engage in substantial gainful activity. 42 U.S.C. § 423(d)(1)(A). 

The regulations provide a five-step sequential evaluation for evaluating disability claims.

20 C.F.R. § 404.1520.

D. ALJ Findings

Following the five-step sequential analysis, the ALJ found James not disabled 

under the Act. (Tr. 20). The ALJ found at Step One that James had not engaged in 

substantial gainful activity following the alleged onset date, May 14, 2008. (Tr. 13). At 

Step Two, the ALJ concluded that James had the following severe impairments: 

“affective disorder; anxiety disorder; and substance abuse disorder.” (Id.). At Step Three, 

the ALJ found that James’ combination of impairments did not meet or equal one of the 

listed impairments. (Tr. 14-15). The ALJ then found that James had the residual 

functional capacity (“RFC”) to perform a full range of work at all exertional levels, 

except with nonexertional limitations as follows: “Claimant is limited to simple, one-to 

two-step tasks on a routine regular basis at the unskilled level of work.” (Tr. 15-18). At 

Step Four, the ALJ found that it could not be determined whether James had past relevant 

work, and thus proceeded to the next step. (Tr. 18-19). At Step Five, the ALJ concluded 

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that James retained the ability to perform work which exists in significant numbers in the 

national economy. (Tr. 19-20). 

E. Administrative Record

1. Medical Evidence

The Court has thoroughly reviewed James’ medical record. In lieu of summarizing 

her medical history here, the Court will make references and provide citations to the 

record as necessary in its discussion of the parties’ arguments.

2. Application Reports and Administrative Hearing

a. James’ Function Report

James completed a function report on July 25, 2012, in which she asserted that she 

suffered from “constant panick [sic] attacks when standing to [sic] long very difficult to 

consentrate [sic]. Exhausted from medication for depression.” (Tr. 214). She also noted 

that she required “constent [sic] 15 minute breaks . . . because of panic attacks.” (Id.). She 

alleged that she had “no motivation;” on an average day she would walk around her home 

to determine if she would experience a panic attack, would eat if she had an appetite, took 

breaks to lay down, and went to bed. (Tr. 215). She complained of staying awake for 

“days,” racked with fears about her mortality. (Id.). As to personal care, she expressed 

little concern about appearance, bathed only weekly, and sometimes lacked an appetite. 

(Id.). As to meals, she prepared sandwiches, frozen dinners, and protein shakes daily. (Tr. 

216). Nevertheless, she expressed feeling nausea on occasion when smelling food. (Id.). 

She washed dishes about twice monthly. (Id.). 

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As to going outside, James said only “not often, no hope.” (Tr. 217). She did not 

shop in stores. (Id.). She got confused when counting change on occasion, but could 

otherwise handle money without issue. (Tr. 218). She enjoyed music on a daily basis. 

(Id.). She wrote that she did not spend time with others. (Id.). She infrequently needed 

reminders to go places. (Id.). She reported that she was “not social” and did not “want to 

be around people” because she “fe[lt] to [sic] depressed. (Tr. 219). She reported problems 

with lifting, squatting, bending, standing, reaching, stair climbing, memory, 

concentration, and getting along with others. (Id.). She also wrote that she had “no 

strength” because of her limited appetite, such that she could not lift fifty pounds; she got 

dizzy when standing, lifting, and reaching, and had difficulty with balance due to her 

medications. (Id.). She could walk about two blocks followed by a ten minute rest. (Id.). 

She had no concentration issues. (Id.). She got on well with authority figures, and had 

never been fired due to difficulty interacting with others. (Tr. 220). She handled stress 

poorly, resulting in trouble sleeping, eating, and panic attacks. (Id.). She handled changes 

in routine “not so well.” (Id.). She also noted nightmares, and panic attacks inducing 

feelings that she might die. (Id.). She woke up hourly due to nightmares. (Tr. 221). Her 

use of Klonopin resulted in dizziness and fatigue. (Id.).

b. James’ Testimony at the Administrative Hearing

At the October 17, 2013, hearing before the ALJ, James testified that she was then 

living with “a friend, or a lady who let me live in her basement for a while.” (Tr. 28). She 

was last gainfully employed in 2010 as a temporary manufacturing worker; she was fired 

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because she experienced panic attacks including sweating and shortness of breath. (Tr. 

29). She also worked as a dancer in clubs between 2010 and 2011, but again was 

terminated due to shortness of breath, fainting, and sweating resulting from panic attacks. 

(Tr. 30). She had an associate’s degree in science, but was unable to obtain work as a lab 

tech due to lack of experience and panic attacks. (Tr. 31-32). She experienced alcohol 

dependence in the past, but overcame that dependency in 2010. (Tr. 32-33). Following 

the termination of an abusive relationship, James found herself homeless, sleeping in cars 

and abandoned houses. (Tr. 33). 

James stated that her use of Klonopin “slow[ed] . . . down” her panic attacks, such 

that “sometimes . . . I’ll have three a day instead of like ten.” (Tr. 35). The ALJ noted that 

her prescription had increased over time from 15mg per day to 45mg. (Id.). James’ panic 

attacks resulted in tingling to her extremities, sweating, and fainting spells. (Tr. 36). To 

relieve this stress, she would lay down; if she moved, she would “throw up and 

everything,” her heart would race for twenty to twenty-five minutes at a time. (Id.). She 

reported that the husband of the woman with whom she was residing was flirtatious, and 

that his advances brought on panic attacks. (Tr. 37). Likewise, being in crowds of people 

and sleeping in cars could prompt panic attacks. (Id.). The ALJ noted that James was 

becoming sweaty during the hearing, apparently indicating the imminent onset of a panic 

attack resulting from pressure of the hearing. (Id.). 

James stated that she was off task frequently during her time working on an 

assembly line due to panic attacks. (Tr. 37). She stated that her panic attacks sometimes 

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came “out of the blue,” resulting in shortness of breath, episodes of sweating, and 

inability to continue working. (Tr. 37-38). She also expressed difficulty handling the pace 

of the work, which could also bring on panic attacks. (Tr. 38). When working as a dancer 

she sometimes “dance[d] to meet men to take care of [her],” such that she could access 

food and transportation. (Tr. 39). 

James’ heart began racing, but she declined the opportunity to take a break from 

the hearing. (Tr. 39-40). James asserted that she would be able to work but for her panic 

attacks. (Tr. 40). She experienced panic attacks three or four times daily, which lasted 

from five to twenty minutes. (Id.). 

c. The VE’s Testimony at the Administrative Hearing

The ALJ then called upon the services of a VE to determine James’ ability to 

perform work. (Tr. 40). The ALJ asked a large number of questions attempting to 

establish the level of exertion required by James’ prior jobs; given that the ALJ found in 

his decision that James had no past relevant work, these questions have no bearing on the 

outcome of the ALJ’s decision. (Tr. 41-48). The ALJ asked the VE to assume a 

hypothetical individual with James’ age, education, and work experience, and who had 

no exertional limitations, but who “can perform simple one-to two-step tasks on a 

routine, regular basis” at the unskilled level. (Tr. 48-49). The VE found that such a 

worker could perform work available in the national economy, including production 

assembler (150,000 jobs nationally), inspector (300,000 jobs), and housekeeper (130,000 

jobs). The VE also stated that if James’ testimony about experiencing three to four panic 

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attacks lasting as long as twenty minutes per day was accepted, that limitation would 

preclude full-time competitive work. (Tr. 50). 

 F. Governing Law

The ALJ must “consider all evidence” in the record when making a disability 

decision. 42 U.S.C. § 423(d)(5)(B). The regulations carve the evidence into various 

categories, “acceptable medical sources” and “other sources.” 20 C.F.R. § 404.1513. 

“Acceptable medical sources” include, among others, licensed physicians and licensed or 

certified psychologists. Id. § 404.1513(a). “Other sources” include medical sources who 

are not “acceptable” and almost any other individual able to provide relevant evidence. 

Id. § 404.1513(d). Only “acceptable medical sources” can establish the existence of an 

impairment. SSR 06-03p, 2006 WL 2329939, at *2. Both “acceptable” and nonacceptable sources provide evidence to the Commissioner, often in the form of opinions 

“about the nature and severity of an individual’s impairment(s), including symptoms, 

diagnosis and prognosis, what the individual can still do despite the impairment(s), and 

physical and mental restrictions.” Id. at *2. When “acceptable medical sources” issue 

such opinions, the regulations deem the statements to be “medical opinions” subject to a 

multi-factor test that weighs their value. 20 C.F.R. § 404.1527. Excluded from the 

definition of “medical opinions” are various decisions reserved to the Commissioner, 

such as whether the claimant meets the statutory definition of disability and how to 

measure his or her RFC. Id. at 404.1527(d). 

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The ALJ must use a six-factor balancing test to determine the probative value of 

medical opinions from acceptable sources. 20 C.F.R. § 404.1527(c). The test looks at 

whether the source examined the claimant, “the length of the treatment relationship and 

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

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

specialization of the treating source.” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 

(6th Cir. 2004). See also 20 C.F.R. § 404.1527(c). ALJs must also apply those factors to 

“other source” opinions. See Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 540-42 (6th 

Cir. 2007); SSR 06-3p, 2006 WL 2329939, at *2. 

Certain opinions of a treating physician, in contrast, receive controlling weight if 

they are “well-supported by medically acceptable clinical and laboratory diagnostic 

techniques” and are “not inconsistent with the other substantial evidence in [the] case 

record.” 20 C.F.R. § 404.1527(d)(2). See also Wilson, 378 F.3d at 544. The only opinions 

entitled to dispositive effect deal with the nature and severity of the claimant’s 

impairments. 20 C.F.R. § 404.1527(d); SSR 96-2p, 1996 WL 374188, at *1-2. Therefore, 

the ALJ does not owe a treating opinion deference on matters reserved to the 

Commissioner. 20 C.F.R. § 404.1527(d); SSR 96-2p, 1996 WL 374188, at *1-2. The ALJ 

“will not give any special significance to the source of an opinion” regarding whether a 

person is disabled or unable to work, whether an impairment meets or equals a Listing, 

the individual’s RFC, and the application of vocational factors. 20 C.F.R. § 

404.1527(d)(3). 

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The regulations mandate that the ALJ provide “good reasons” for the weight 

assigned to the treating source’s opinion in the written determination. 20 C.F.R. § 

404.1527(c)(2). See also Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 875 (6th Cir. 

2007). Therefore, a decision denying benefits

must contain specific reasons for the weight given to the treating 

source’s medical opinion, supported by the evidence in the case 

record, and must be sufficiently specific to make clear to any 

subsequent reviewers the weight the adjudicator gave to the treating 

source’s opinion and the reasons for that weight. 

SSR 96-2p, 1996 WL 374188, at *5 (1996). See also Rogers, 486 F.3d at 242. For 

example, an ALJ may properly reject a treating source opinion if it lacks supporting 

objective evidence. Revels v. Sec. of Health & Human Servs, 882 F. Supp. 637, 640-41 

(E.D. Mich. 1994), aff’d, 51 F.3d 273, 1995 WL 138930, at *1 (6th Cir. 1995) 

(unpublished table decision).

An ALJ must analyze the credibility of the claimant, considering the claimant’s 

statements about pain or other symptoms with the rest of the relevant evidence in the 

record and factors outlined in Social Security Ruling 96-7p. Credibility determinations 

regarding a claimant’s subjective complaints rest with the ALJ. See Siterlet v. Sec’y of 

Health & Human Servs., 823 F.2d 918, 920 (6th Cir. 1987). Generally, an ALJ’s 

credibility assessment can be disturbed only for a “compelling reason.” Sims v. Comm’r 

of Soc. Sec., No. 09-5773, 2011 WL 180789, at *4 (6th Cir. Jan. 19, 2011) (citing Smith 

v. Halter, 307 F.3d 377, 379 (6th Cir. 2001)); Warner v. Comm’r of Soc. Sec., 375 F.3d 

387, 390 (6th Cir. 2004). 

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The Social Security regulations establish a two-step process for evaluating 

subjective symptoms, including pain. 20 C.F.R. § 404.1529; SSR 96-7p, 1996 WL 

374186, at *2. The ALJ evaluates complaints of disabling pain by confirming that 

objective medical evidence of the underlying condition exists. The ALJ then determines 

whether that condition could reasonably be expected to produce the alleged pain or 

whether other objective evidence verifies the severity of the pain. See 20 C.F.R. § 

404.1529; SSR 96-7p, 1996 WL 374186, at *2; Stanley v. Sec’y of Health & Human 

Servs., 39 F.3d 115, 117 (6th Cir. 1994). The ALJ ascertains the extent of the workrelated limitations by determining the intensity, persistence, and limiting effects of the 

claimant’s symptoms. SSR 96-7p, 1996 WL 374186, at *2. 

While “objective evidence of the pain itself” is not required, Duncan v. Sec’y of 

Health & Human Servs., 801 F.2d 847, 853 (6th Cir. 1986) (quotation omitted), a 

claimant’s description of his or her physical or mental impairments alone is “not enough 

to establish the existence of a physical or mental impairment,” 20 C.F.R. § 404.1528(a). 

Nonetheless, the ALJ may not disregard the claimant’s subjective complaints about the 

severity and persistence of the pain simply because they lack substantiating objective 

evidence. SSR 96-7p, 1996 WL 374186, at *1. Instead, the absence of objective 

confirming evidence forces the ALJ to consider the following factors:

(i) [D]aily activities;

(ii) The location, duration, frequency, and intensity of . . . pain;

(iii) Precipitating and aggravating factors;

(iv) The type, dosage, effectiveness, and side effects of any 

medication . . . taken to alleviate . . . pain or other symptoms;

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(v) Treatment, other than medication, . . . received for relief of . . . 

pain;

(vi) Any measures . . . used to relieve . . . pain.

20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). See also Felisky v. Bowen, 35 F.3d 1027, 

1039-40 (6th Cir. 1994); SSR 96-7p, 1996 WL 374186, at *3. Furthermore, the 

claimant’s work history and the consistency of his or her subjective statements are also 

relevant. 20 C.F.R. § 404.1527(c); SSR 96-7p, 1996 WL 374186, at *5.

The claimant must provide evidence establishing her RFC. The statute lays the 

groundwork for this, stating, “An individual shall not be considered to be under a 

disability unless he [or she] furnishes such medical and other evidence of the existence 

thereof as the Secretary may require.” 42 U.S.C. § 423(d)(5)(A). See also Bowen, 482 

U.S. at 146 n.5. The RFC “is the most he [or she] can still do despite his [or her] 

limitations,” and is measured using “all the relevant evidence in [the] case record.” 20 

C.F.R. § 404.1545(a)(2). A hypothetical question to the VE is valid if it includes all 

credible limitations developed prior to Step Five. Casey v. Sec. of Health & Human 

Servs., 987 F.2d 1230, 1235 (6th Cir. 1993); Donald v. Comm’r of Soc. Sec., No. 08-

14784-BC, 2009 WL 4730453, at *7 (E.D. Mich. Dec. 9, 2009).

G. Analysis 

James argues that the ALJ erred in the following ways: 1) Improperly focusing on 

her ability to perform non-work tasks; 2) Underemphasizing the importance of James’

Global Assessment Functioning (“GAF”) scores; 3) Wrongly impugning James’

credibility; 4) Failing to consider whether James’ mental impairments affected her 

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testimony; 5) Providing the VE with an incomplete hypothetical. (Doc. 15 at 4-8). These 

arguments will be addressed in turn. 

1. Waiver of Arguments

It is well settled that where a Social Security claimant makes arguments which are 

“adverted to in only a perfunctory manner,” those arguments “are waived.” Kuhn v. 

Washtenaw Cnty., 709 F.3d 612, 624 (6th Cir. 2013). See also Aarti Hospitality, L.L.C. v. 

City of Grove City, Ohio, 350 Fed. Appx. 1, 11 (6th Cir. 2009) (“After setting forth the 

applicable law on their due process claim, plaintiffs devote one sentence in their appellate 

brief to ‘arguing’ why the district court’s judgment should be reversed . . . . Accordingly, 

we deem plaintiffs’ appeal of their due process claim forfeited.”); Fielder v. Comm’r of 

Soc. Sec., No. 1310325, 2014 WL 1207865, at *2 (E.D. Mich. Mar. 24, 2014).

Here, several of James’ arguments are fatally underdeveloped, and should be 

found waived. James asserts that the ALJ

failed to include essential information which may have changed the 

opinions of the [VE]. In the present case, the record contained evidence that 

the Plaintiff had moderate restrictions and limitations because of her 

inability to concentrate and maintain attention to hedr [sic] tasks . . . . The 

[ALJ] must pose hypothetical questions which comprise of the claimant’s 

impairments . . . . The [ALJ] provided incomplete Hypothetical questions to 

the [VE] . . . by failing to accurately include Plaintiff’s non-exertional

impairments. 

(Doc. 15 at 8). The ALJ’s hypothetical limited the worker to “simple one-to two-step 

tasks on a routine, regular basis” and at the “unskilled level.” (Tr. 48). James does not 

elucidate how or why these limitations fail to account for her non-exertional limitations. 

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Perhaps James believed that the ALJ should have accounted for limitations to her ability 

to perform work at pace, but that is anyone’s guess, as James made no such argument. 

Similarly, James might believe that the VE should have been asked whether suffering 

from one, two, or three panic attacks daily would preclude employment. She likewise 

failed to raise this argument, and it is waived. 

Federal courts are not in the business of making arguments for parties, even where 

a litigant proceeds pro se. See Kim v. Obama, 615 F. App’x 516, 517 (10th Cir. 2015)

(“[W]e won’t act as [a pro se plaintiff’s] advocate by formulating arguments or scouring 

the record on his behalf.”). This is doubly true where a party proceeds with counsel, as 

James has in this matter. Thus, to whatever extent she believes that the ALJ erred by 

formulating an insufficiently representative hypothetical for the VE, James has waived 

that argument. 

The Court also notes that James does not argue that the ALJ erred by finding that 

she did not qualify for a closed period of benefits. This argument is likewise waived. 

2. The ALJ Properly Considered James’ Activities of Daily Living

James next argues that the ALJ erred by not “looking at the big picture” of her 

treatment record, but instead focusing on her ability to play Facebook games and 

complete crosswords. (Doc. 15 at 5). Yet the ALJ did not consider James’ activities of 

daily living in a vacuum. An ALJ may consider activities of daily living in evaluating the 

claimant’s claims of pain and ailments. See Walters v. Comm’r of Soc. Sec., 127 F.3d 

525, 532 (6th Cir. 1997). 

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Review of the ALJ’s decision shows that he did not consider James’ playing of 

Facebook games and crosswords to the exclusion of the remainder of her medical record, 

but rather holistically considered the record, including James’ medical treatments, her 

testimony, and her medical treatments. The ALJ made note of James’ medical record, 

including her pursuit of mental health treatment “[s]ince early 2008 . . . on a fairly regular 

basis.” (Tr. 16). The ALJ found that, despite the consistency of her treatment, James’

medical records undercut her allegation that she suffers from three to four twenty-minute 

panic attacks daily. (Id.). The ALJ noted that James told treating professionals that she 

had panic attacks only rarely in August 2011, only one per two months in October 2011, 

experienced two panic attacks daily in January 2012, one per day in May 2012, and rarely 

mentioned panic attacks throughout the latter portion of 2012. (Tr. 17, 40, 255-60, 335-

66). 

The ALJ likewise noted that James did not seek inpatient or emergency care, 

suggesting that her symptoms were not disabling.1 (Tr. 17). This was proper, as a lack of 

hospitalization can indicate that mental issues are not particularly severe. Myatt v. 

Comm’r of Soc. Sec., 251 F. App’x 332, 335 (6th Cir. 2007). The ALJ also specifically 

noted some of the findings made by James’ physicians throughout her treatment history, 

including findings of normal eye contact, thought processes, mood, attention, memory, 

 1 At least one record indicates that James had a “long history of psychiatric 

hospitalizations and treatment,” but she did not actually experience hospitalization or 

emergency treatment for psychiatric issues for the period covered by the medical records 

she submitted. (Tr. 244). 

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psychomotor activity, speech, thought processes, thought content, impulse control, and 

judgment, alongside some findings of depressed mood. (Tr. 17). This summary of the 

record presents an accurate picture of James’ mental health, which indicated consistent 

issues with panic attacks, but also demonstrated that those attacks were infrequent (Tr. 

260, 296-97), and that her psychological faculties, including logic, insight, and judgment, 

were fully intact (Tr. 305). 

Likewise, James argues that the ALJ “failed to consider all of the relevant medical 

evidence,” though she provides no additional support for this assertion. (Doc. 15 at 5). As 

noted above, the ALJ’s decision includes a thorough recitation of the medical evidence, 

James’ testimony, and her activities of daily living. The ALJ did not err here, either. 

3. The ALJ Properly Considered James’ GAF Scores

James next notes that she was regularly found to have a GAF score of 55, 

produced throughout a “consistent course of treatment for her psychiatric conditions.” 

(Doc. 15 at 5). She asserts that the GAF score is significant because it “goes to the issue 

of whether Plaintiff can work with others.” (Id. at 6). “[A] GAF score is a subjective 

determination that represents the clinician’s judgment of the individual’s overall level of 

functioning . . . A GAF score is thus not dispositive of anything in and of itself, but rather

only significant to the extent that it elucidates an individual’s underlying mental issues.” 

Oliver v. Comm’r of Soc. Sec., 415 F. App’x 681, 684 (6th Cir. 2011) (quotation 

omitted). A GAF score of 51–60 “indicates moderate symptoms (e.g., flat affect and

circumstantial speech, occasional panic attacks), or moderate difficulty in social, 

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occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers).” Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 503 (6th Cir. 2006) 

(citing Am. Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders (4th 

Ed., Text Rev. 2000)). 

James does not clearly assert any defect in the ALJ’s evaluation of her GAF 

scores. To whatever extent she might accuse the ALJ of overlooking or overweighing 

these scores, I suggest the ALJ committed no error. (Tr. 18). Indeed, the ALJ’s recitation 

of the GAF scores was more favorable to James than her own analysis, as he noted that 

her scores ranged from 49 to 60, and gave significant weight to the scores above 51, 

whereas James only notes that she received GAF scores of 55. (Id.). The ALJ 

appropriately considered James’ GAF scores in conjunction with the other evidence of 

record. 

4. The ALJ Properly Evaluated James’ Credibility

James next argues that the ALJ erred in evaluating her credibility. (Doc. 15 at 6). 

She incorrectly asserts that the ALJ “did not discuss the fact that the Plaintiff was 

homeless, had difficulties with her medication, and was required to increase the dosage 

on her Klonopin to assist her in dealing with her panic attacks.” (Id.). However, the ALJ 

explicitly considered James’ homelessness and the manner in which it might have 

impacted her activities of daily living, including her alleged mental functioning and 

hygiene. (Tr. 14-15). Likewise, the ALJ explicitly noted that she “has taken Klonopin in 

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increasing doses since 2008, which she said helps to slow down the panic attacks.” (Tr. 

16). 

James also takes issue with the ALJ’s finding that her medical records, indicating 

a relatively low amount of panic attacks per month, impugns the credibility of her 

allegation that she suffers from four such attacks daily. (Doc. 15 at 6). James asserts that 

“[t]he explanation is simple, the medication was just beginning to work. This explanation 

is a far better way of describing the Plaintiff’s condition rather than stating that she was 

not fully credible.” (Id.). If anything, this explanation weakens James’ claim that she is 

disabled; James admits that Klonopin works to reduce the incidence of panic attacks, thus 

supporting the ALJ’s conclusion that her testimony that she suffered four attacks per day 

was not fully credible. 

5. The ALJ Properly Evaluated James’ Testimony

James next argues that the ALJ “should have considered that the Plaintiff has 

severe emotional impairments which would explain why her testimony at sometimes may 

be flawed.” (Doc. 15 at 7). Precisely which flaw in her testimony James is referencing is 

again anyone’s guess. No matter how one interprets James’ testimony, the medical record 

simply does not support finding that she experiences four panic attacks daily. 

H. Conclusion

For the reasons stated above, the Court RECOMMENDS that James’ Motion for 

Summary Judgment (Doc. 15) be DENIED, the Commissioner’s Motion (Doc. 16) be 

GRANTED, and that this case be AFFIRMED. 

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III. REVIEW

Pursuant to Rule 72(b)(2) of the Federal Rules of Civil Procedure, “[w]ithin 14 

days after being served with a copy of the recommended disposition, a party may serve 

and file specific written objections to the proposed findings and recommendations. A 

party may respond to another party’s objections within 14 days after being served with a 

copy.” Fed. R. Civ. P. 72(b)(2). See also 28 U.S.C. § 636(b)(1). Failure to file specific 

objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 

140, 106 S. Ct. 466, 88 L. Ed.2d 435 (1985); Howard v. Sec’y of Health & Human Servs., 

932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). The 

parties are advised that making some objections, but failing to raise others, will not 

preserve all the objections a party may have to this Report and Recommendation. Willis 

v. Sec’y of Health & Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit 

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

Mich. LR 72.1(d)(2), a copy of any objections is to be served upon 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); E.D. Mich. LR 72.1(d). The response must specifically address each 

issue raised in the objections, in the same order, and labeled as “Response to Objection 

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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: May 26, 2016 s/ Patricia T. Morri

Patricia T. Morris

United States Magistrate Judge

CERTIFICATION

I hereby certify that the foregoing document was electronically filed this date 

through the Court’s CM/ECF system which delivers a copy to all counsel of record.

Date: May 26, 2016 By s/Kristen Krawczyk 

 Case Manager 

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