UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

COREY HARVEY,

Plaintiff,

v.

CAROLYN W. COLVIN,

ACTING COMMISSIONER, 

SOCIAL SECURITY ADMINISTRATION, 

Defendant.

_____________________________________/

Case No. 14-14949

Laurie J. Michelson

United States District Judge

Michael J. Hluchaniuk

United States Magistrate Judge

REPORT AND RECOMMENDATION

CROSS-MOTIONS FOR SUMMARY JUDGMENT (Dkts. 13 & 15)

I. PROCEDURAL HISTORY

A. Proceedings in this Court

On December 31, 2014, plaintiff filed the instant suit seeking judicial

review of the Commissioner’s decision disallowing benefits. (Dkt. 1). Pursuant to

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

Michelson referred this matter to the undersigned for the purpose of reviewing the

Commissioner’s decision denying plaintiff’s claims. (Dkt. 3). This matter is before

the Court on cross-motions for summary judgment. (Dkts. 13, 15). The

cross-motions are now ready for report and recommendation.

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B. Administrative Proceedings

Plaintiff filed the instant claim for a period of disability and disability

insurance benefits on August 23, 2012. (Tr. 151-157). The same day, plaintiff

protectively filed a Title XVI application for supplemental security income. (Tr.

158-163). In both applications, plaintiff alleged a disability beginning January 1,

2010. The Commissioner initially denied plaintiff’s disability applications on

November 12, 2012. (Tr. 52-78). Thereafter, plaintiff requested an administrative

hearing, and on July 1, 2013, he appeared with counsel before Administrative Law

Judge (“ALJ”) Karen Sayon, who considered his case de novo. (Tr. 24-51). In a

July 23, 2013 decision, the ALJ determined that plaintiff was not disabled within

the meaning of the Social Security Act. (Tr. 8-23). The ALJ’s decision became

the final decision of the Commissioner on October 30, 2014, when the Social

Security Administration’s Appeals Council denied plaintiff’s request for review. 

(Tr. 1-6). Plaintiff filed this suit on December 31, 2014. (Dkt. 1).

For the reasons set forth below, the undersigned concludes that a remand is

necessary to obtain a proper medical source opinion to support the ALJ’s physical

RFC. The Court therefore RECOMMENDS that Plaintiff’s Motion for Summary

Judgment (Dkt. 13) be GRANTED, that Defendant’s Motion for Summary

Judgment (Dkt. 15) be DENIED, and that, pursuant to 42 U.S.C. § 405(g), the

decision of the Commissioner of Social Security be REVERSED AND

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REMANDED for proceedings consistent with this Report and Recommendation.

II. FACTUAL BACKGROUND

A. ALJ’s Findings

Plaintiff had past relevant work as a warehouse worker and laborer. (Tr.

19). The vocational expert testified that the claimant, subject to the limitations

identified in his RFC, could not perform his past work, which was classified as

medium and unskilled. The ALJ agreed. (Id.) The ALJ applied the five-step

disability analysis to plaintiff’s claims and found at step one that between the

alleged onset date (January 1, 2010) and the date of the decision, plaintiff did not

engage in any substantial gainful activity. (Tr. 13). At step two, the ALJ found

that plaintiff had the following severe impairment: multiple sclerosis. (Id.) At

step three, the ALJ found that plaintiff did not have an impairment or combination

of impairments that met or equaled one of the listings in the regulations. (Id. at

14). The ALJ determined that plaintiff had the residual functional capacity (RFC)

to perform:

sedentary work as defined in 20 CFR 404.1567(a) and

416.967(a) involving: no climbing ladders, ropes, or

scaffolding; occasional climbing ramps and stairs; no

exposure to heights or hazards such as dangerous

moving machinery like a forklift; no work on slippery or

wet surfaces; the ability to use a cane while ambulating;

and frequent, but not constant handling and fingering

bilaterally.

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(Tr. 14). At step four, the ALJ determined that plaintiff was not capable of

performing any past relevant work. (Tr. 19). At step five, the ALJ concluded that

based on plaintiff’s age, education, work experience and RFC, there were jobs that

existed in significant numbers in the national economy that plaintiff could have

performed and, therefore, he was not under a disability at any time from the

alleged onset date through the date last insured. (Id.)

B. Plaintiff’s Claims of Error

1. The ALJ failed to give the proper weight to the opinion of

plaintiff’s treating physician.

Plaintiff argues that the ALJ erred when she failed to give substantial

deference to the opinion of plaintiff’s treating physician, which was supported by

clinical diagnostic testing. (Dkt. 13, at 12-14). Specifically, plaintiff argues that

his treating physician, Dr. Matthew Holtzman’s opinion, supports the approval for

benefits on the basis of meeting Listing 11.09, and not having the RFC to maintain

full-time, competitive employment. (Id.)

Dr. Holtzman completed an RFC evaluation form on June 19, 2013, which

confirmed plaintiff’s multiple sclerosis by both MRI and lumbar puncture. (Tr.

316). Dr. Holtzman indicated that plaintiff had a mild dis-coordination of the

bilateral upper extremities with a lack of function in the left leg. (Id.) He also

noted fatigue, balance problems, poor coordination weakness, unstable walking

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and double/blurred vision. (Id.) The fatigue noted was lassitude, sitting was

limited to two hours, and standing was limited to ten minutes. (Tr. 317). Dr.

Holtzman also noted that plaintiff had severe limitations with fine manipulation

and concluded that plaintiff had no ability to lift any weight in a competitive work

environment. (Tr. 318).

Plaintiff avers that Dr. Holtzman’s opinions are objectively supported by

MRI examination results which document “extensive demyelinating disease”

involving the supratenorial brain, infratenorial brain, brain stem and cervical

spinal cord in testing conducted at St. John Providence Hospital on August 12,

2012. (Tr. 306-07). Subsequent testing was also performed on August 13, 2012,

which also supported a finding of multiple sclerosis. (Tr. 308).

Plaintiff argues that this court has indicated a preference for the opinions of

treating physicians over non-treating consultative physician examiners. And, the

case law indicates a duty on an ALJ to explain the rationale of accepting a nontreating consultative physician over a long-standing medical provider. Plaintiff

argues that Dr. Holtzman’s medical opinions are a more accurate depiction of his

physical abilities than those adopted by the ALJ. Plaintiff points out that the SSA

did not order a physical or psychiatric exam for plaintiff. Further, plaintiff avers

that his stated limitations appear to have been rejected based on a lack of treatment

and recent his diagnosis. Specifically, plaintiff points to record reviewing

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physician, Dr. T.L. Tsai’s statements that plaintiff was not eligible for disability

insurance benefits based on his last date insured, although he was deemed to be

unable to perform past relevant work. (Tr. 59). Also, Dr. Tsai indicated that

plaintiff was ineligible for supplemental security income benefits noting that “the

claimant was recently diagnosed with M.S. He reports the need to utilize an

assistive device to walk. He has only mild functional limitation per the objective

findings.” (Tr. 64). 

2. The ALJ erred in discounting plaintiff’s credibility. 

Plaintiff also argues that the ALJ made an impermissible credibility finding

in that his complaints of pain were consistent and medically supported by the

objective evidence. (Dkt. 13, at 15-17). The ALJ indicated that plaintiff presented

conflicting testimony regarding the use of a walker or cane, and discrepancies in

the treating physician’s statements and records are what detracted from plaintiff’s

credibility. Specifically, the ALJ noted that plaintiff went to a field office

interview with a single leg cane. (Tr. 17). To this point, plaintiff argues that this

same report indicates that he has problems standing and walking and that “about

three times during the interview he laid his head down on the interview desk.”

(Tr. 172).

Plaintiff also contends that his Disability Report associated with his

application reveals complaints consistent with his testimony and medical evidence. 

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For example, in written documentation submitted on November 11, 2012, plaintiff

indicated that he had problems standing, walking, experienced headaches, and had

trouble with balance. (Tr. 187). Plaintiff specifically indicated that he could only

walk one-half of a block and he required a walker or cane. (Tr. 192, 193). He also

indicated that he required more sleep than usual and fatigued a lot faster. (Tr.

188). He also reported poor memory and that he had a short attention span. (Tr.

189, 192). Plaintiff indicated that his multiple sclerosis prevented him from going

out and affected lifting, squatting, bending, standing, reaching, walking, kneeling,

talking, hearing, stair climbing, seeing, memory, completing tasks, concentration,

understanding, following instructions, and using his hands. (Tr. 192). 

Plaintiff is troubled that the ALJ never evaluated whether he was capable of

full-time, competitive work as required by SSR 96-8p, or developed the record in a

fair manner.

3. The ALJ erred in analyzing the applicability of Listing 11.09.

Plaintiff contends that the ALJ’s brief statement concerning the application

of Listing 11.09 does not meet the threshold required for explaining whether a

claimant’s impairment does not meet a listing. Miller v. Comm’r of Soc. Sec., 181

F. Supp. 2d 816 (2001). Without a discussion of the elements of the listing, the

court cannot properly review the ALJ’s decision. Plaintiff argues that there are

clear statements by Dr. Holtzman that bring Listing 11.09 into consideration. 

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Specifically, Dr. Holtzman indicated “significant and persistent disorganization or

motor function in two extremities in sustained disturbance of gross and dexterous

movement of gait or station.” (Tr. 316). Plaintiff points out that Dr. Holtzman

found impairments in three extremities (bilateral upper extremities and left lower

extremity). (Tr. 316). The type of fatigue was also noted to be of a lassitude

rather than motor function fatigue. (Tr. 317). Dr. Holtzman’s report also

indicated that plaintiff would be required to take unscheduled breaks of 20

minutes daily. (Tr. 318). 

Plaintiff finally notes that multiple sclerosis is a disease that requires a

longitudinal evaluation, which plaintiff argues the ALJ did not perform in this

case.

C. The Commissioner’s Motion for Summary Judgment

1. Substantial evidence supports the ALJ’s analysis at Step Three.

Plaintiff takes issue with the ALJ’s listing analysis, arguing that the ALJ did

not discuss the elements of the listing. However, the Commissioner argues that

the ALJ conducted a thorough analysis and explained her determination that

plaintiff’s multiple sclerosis (MS) did not meet or equal Listing 11.09. On this

point, the ALJ concluded:

the evidence does not demonstrate disorganization of

motor function, visual or mental impairments, as

described under the criteria in 2.02, 2.03, 2.04, or 12.02.

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Additionally, the evidence does not illustrate significant,

reproducible fatigue of motor function with substantial

muscle weakness on repetitive activity, demonstrated on

physical examination, resulting from neurological

dysfunction in areas of the central nervous system.

Contrary to the report by treating physician, Michael

Holtzman, M.D., that the claimant had significant and

persistent disorganization of motor function, the

objective evidence does not demonstrate this level of

dysfunction. (Ex. 6F/2). Even Dr. Holtzman’s notes in

the same report indicate that the claimant had only mild

dis-coordination in the upper extremity and the left leg.

(Id. at pp. 2-3). While I acknowledge that the claimant

ambulates with a cane, the treatment records showed that

he was doing much better with medication (Ex. SF/2-3;

7F/6 & 8F/2) and is able to ambulate effectively. For

these reasons, the necessary requirements of listing 11.09

are not met or equaled.

(Tr. 14). The Commissioner, thus, claims that plaintiff’s argument that the ALJ

did not sufficiently discuss the elements of Listing 11.09 is without merit. 

The Commissioner further argues that plaintiff is unable to use the opinion

of Dr. Holtzman to meet the requirements of Listing 11.09. The Commissioner

argues that Dr. Holtzman opined that plaintiff’s MS satisfied part A of Listing

11.09 (Tr. 316), which requires a showing of MS with “[s]ignificant and persistent

disorganization of motor function in two extremities, resulting in sustained

disturbance of gross and dexterous movements, or gait and station.” 20 C.F.R., Pt.

404, Subpt. P, App. 1, §§ 11.09A, 11.04B. The Commissioner notes that the

listings make clear that “the assessment of impairment depends on the degree of

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interference with locomotion and/or interference with the use of fingers, hands,

and arms.” Id. at § 11.00C. Yet, as the ALJ stated, Dr. Holtzman’s opinion belies

his assertion that plaintiff’s MS satisfied listing 11.09A. Indeed, Dr. Holtzman

described plaintiff’s degree of interference as “mild.” (Tr. 316). Moreover, the

ALJ noted that Dr. Holtzman’s treatment notes did not suggest a “significant and

persistent” level of impairment. (Tr. 14, 18). For example, only a few months

before Dr. Holtzman completed his opinion, he indicated that plaintiff’s strength,

sensation, and coordination were all normal. (Tr. 313). In short, the

Commissioner argues that the ALJ provided a detailed analysis of plaintiff’s MS at

the listing stage and reasonably determined that the impairment did not satisfy the

listing. 

2. Substantial evidence supports the RFC determination.

Concerning the medical opinion evidence, plaintiff first argues that the ALJ

erred in discounting the opinion of his treating physician, Dr. Holtzman. Dr.

Holtzman identified several functional limitations in the same form where he

indicated that plaintiff met Listing 11.09A. Among them, Dr. Holtzman indicated

that plaintiff could not carry or lift any amount of weight, could not walk even one

city block, could stand only for ten minutes at a time and less than two hours total

in a work-day, needed to alternate positions at will and take unscheduled work

breaks. (Tr. 316-319). Plaintiff argues that Dr. Holtzman’s opinion was supported

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by his MRI, but the ALJ determined that Dr. Holtzman’s opinion was inconsistent

with other evidence in the record (Tr. 18). See Bogle v. Sullivan, 998 F.2d 342,

347-348 (6th Cir. 1993) (“This court has consistently stated that the Secretary is

not bound by the treating physician’s opinions, and that such opinions receive

great weight only if they are supported by sufficient clinical findings and are

consistent with the evidence.”). The Commissioner argues that plaintiff failed to

discuss the reasons the ALJ provided for discounting Dr. Holtzman’s opinion,

rather plaintiff states only that Dr. Holtzman’s opinion was a more accurate

depiction of his physical abilities. The Commissioner contends that plaintiff must

do more and show the prejudice that resulted. 

Moreover, the Commissioner argues that the ALJ reasonably determined

that Dr. Holtzman’s opinion was unsupported by and inconsistent with the record. 

As previously mentioned, the ALJ reasonably concluded that Dr. Holtzman’s

opinion does not support a conclusion that plaintiff’s MS meets Listing 11.09A. 

Also, Dr. Holtzman opined that plaintiff could not lift or carry any weight, yet the

record establishes that plaintiff’s arm strength was normal. (Tr. 18, 238, 283, 305,

313). Similarly, the ALJ noted that Dr. Holtzman concluded that plaintiff could

not walk even one city block despite using a cane, yet plaintiff maintained mostly

normal leg strength and statements in the record that plaintiff was doing

“incredibly well” with treatment. (Tr. 18, 283, 305, 313, 328). For these reasons,

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the Commissioner contends that Dr. Holtzman’s opinion was unreliable. 

The Commissioner is unclear regarding plaintiff’s argument as it relates to

the ALJ’s weighing of the state agency physician’s (Dr. Tsai) opinion. Dr. Tsai

opined that plaintiff could perform light work, yet in an opinion more favorable to

plaintiff, the ALJ concluded that he could only perform a limited range of

sedentary work. (Tr. 14, 18). Plaintiff appears concerned that Dr. Tsai took into

account plaintiff’s lack of treatment to impugn his credibility, however, Agency

policy expressly permits consideration of a claimant’s lack of treatment. See

Social Security Ruling (SSR) 96-7p, 1996 WL 374186, at *7 (“the individual’s

statements may be less credible if the level or frequency of treatment is

inconsistent with the level of complaints”). The Commissioner also notes,

however, that Dr. Tsai also relied on the objective evidence contained in the

record which indicated only “mild functional limitations.” (Tr. 56).

3. Substantial evidence supports the ALJ’s credibility assessment

The Commissioner contends that the ALJ identified several reasons that

support its adverse credibility assessment. (Tr. 15-17). The ALJ considered

plaintiff’s lack of treatment during the earlier stages of the period at issue, the mild

abnormalities that he exhibited on examination, the fact that his MS improved

with treatment and his doctor stated that he was doing very well with medications,

and his inconsistent statements regarding his use of an assistive walking device. 

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The Commissioner contends that plaintiff only seems to take issue with the ALJ’s

finding regarding his use of an assistive walking device. On this point, the

Commissioner argues that the ALJ reasonably determined that plaintiff’s

testimony that he had never left home without his walker was not entirely credible. 

(Tr. 17, 32). As noted by the ALJ, plaintiff only used a single-leg cane during his

initial disability interview. (Tr. 172). Also, Dr. Holtzman did not indicate in his

notes that plaintiff used a walker. (See Tr. 313-314, 328). To the contrary, in

October 2012, Dr. Holtzman stated that plaintiff required a cane (Tr. 314), and

subsequently, in June 2013, he described plaintiff’s gait as “normal.” (Tr. 328).

As such, the Commissioner contends that plaintiff does not establish any error in

the ALJ’s credibility analysis and his argument should be rejected.

The Commissioner alternatively argues that even if the ALJ erred in his

finding regarding plaintiff’s use of an assistive device, substantial evidence still

exists to support the ALJ’s conclusion that plaintiff was not entirely credible. See

Ulman, 693 F.3d at 714 (“[s]o long as there remains substantial evidence

supporting the ALJ’s conclusions on credibility and the error does not negate the

validity of the ALJ’s ultimate credibility conclusion, such is deemed harmless and

does not warrant reversal.”) (quoting Carmickle v. Comm’r of Soc. Sec., 533 F.3d

1155, 1162 (9th Cir. 2008)). 

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D. Plaintiff’s Reply

Plaintiff contends that the opinion provided by Dr. Holtzman was not

properly considered in violation of the treating source rule. (Dkt. 16). Plaintiff

argues that Dr. Holtzman’s opinion confirms a diagnosis of multiple sclerosis by

both MRI and lumbar puncture. (Tr. 316). Dr. Holtzman states mild discoordination of the bilateral upper extremities with a lack of function in the left

leg. (Id.) Fatigue, balance problems, poor coordination, weakness, unstable

walking, and double/blurred vision are also indicated. (Id.) The fatigue noted was

lassitude, sitting was limited to two hours, and standing to ten minutes. (Tr. 317). 

Dr. Holtzman also noted severe limitations in lifting and fine manipulation with no

ability to lift any weight in a competitive work environment. (Tr. 318). 

Plaintiff argues that Dr. Holtzman’s opinions are supported by objective

medical evidence–for example, MRI testing conducted on August 12, 2012, at St.

John Providence Hospital, which documented “extensive demyelinating disease”

and involved plaintiff’s supratenorial brain, infratenorial brain, brain stem, and

cervical spinal cord. (Tr. 306-307). Moreover, plaintiff identifies subsequent

spinal cord testing that was performed on August 13, 2012, also indicating

multiple sclerosis. (Tr. 308).

The Commissioner suggests that there are discrepancies between Dr.

Holtzman’s opinion and the support of his associated medical records, together

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with a lack of treatment around the alleged onset date. Plaintiff avers, however,

that Dr. Holtzman’s opinion is supported by the entire record including prison

records from Nevada and the records highlighted above. Multiple sclerosis is a

disease that requires a longitudinal evaluation, which the ALJ failed to perform

here. 

Plaintiff also contends that the ALJ gave no valid reasons to discount his

valid complaints of pain as stated in his Disability Report that were consistent with

his testimony and the medical evidence.

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).

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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, 127 F.3d at 528. 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

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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

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,

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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

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

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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:

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

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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. “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

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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. Analysis

“Medical opinions are statements from physicians and psychologists or

other ‘acceptable medical sources’ that reflect judgments 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.” SSR 06-3p, 2006 WL 2329939, at *2 (2006). 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 “nonexamining

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

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

Cir. 2013) (internal citations omitted).

Plaintiff claims that the ALJ erred when she failed to give substantial

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deference to the opinion of his treating physician, Dr. Holtzman, who opined that

plaintiff was not capable of full-time competitive employment. Specifically, in an

RFC questionnaire completed on June 19, 2013, Dr. Holtzman positively

diagnosed plaintiff with multiple sclerosis. (Tr. 316). Dr. Holtzman had made this

determination after MRI and lumbar puncture confirmation. (Id.) Dr. Holtzman

indicated that plaintiff was suffering with the following symptoms: fatigue,

balance problems, poor coordination, weakness, unstable walking, and

double/blurred vision. (Id.) Dr. Holtzman affirmed a “significant and persistent

disorganization of motor function in two extremities resulting in disturbance of

gross and dexterous movement or gait and station.” When asked to specify the

degree of interference with locomotion and/or interference with the use of his

fingers, hands and arms, Dr. Holtzman indicated that plaintiff had “mild

discoordination” with the use of his upper extremities. (Tr. 316). Dr. Holtzman

also that plaintiff had a lack of function in his left leg. (Id.) Dr. Holtzman

indicated that plaintiff complained of fatigue best described as “lassitude” rather

than fatigue of motor function, which is typical of MS patients. (Tr. 317). Dr.

Holtzman indicated that plaintiff could not walk any city blocks without rest. 

(Id.) Dr. Holtzman also opined that plaintiff could sit for two hours before

needing to get up, and could stand for 10 minutes at one time before needing to sit

down, or walk around. (Id.) Dr. Holtzman opined that plaintiff could sit for six

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hours and stand/walk less than two hours total in an eight-hour work day. (Tr.

317). Plaintiff would also require a job that allowed him to shift positions at-will

from sitting, standing or walking. (Id.) Plaintiff would also require unscheduled

breaks, and need 20 minute rest periods before returning to work. (Tr. 318). 

Plaintiff would also require an assistive device at work. (Id.) With respect to

lifting, Dr. Holtzman indicated that plaintiff would not be able to do any

lifting–even less than 10 pounds. (Tr. 318). Plaintiff could frequently twist, but

should never stoop, crouch, or climb ladders or stairs. (Id.) Dr. Holtzman also

noted that plaintiff had significant limitations in doing repetitive reaching,

handling or fingering, noting that plaintiff could only use his hands, fingers, and

arms 75% of the time for grasping, turning, and twisting objects, fine

manipulations, and reaching (including overhead). (Id.) Dr. Holtzman also

indicated that plaintiff should avoid all exposure to extreme heat. (Id.) Finally,

Dr. Holtzman noted that plaintiff’s impairments could result in his absence from

work about one day per month. (Id.)

Despite these recommendations, the ALJ determined that plaintiff had the

functional capacity to perform:

sedentary work as defined in 20 CFR 404.1567(a) and

416.967(a) involving: no climbing ladders, ropes, or

scaffolding; occasional climbing ramps and stairs; no

exposure to heights or hazards such as dangerous

moving machinery like a forklift; no work on slippery or

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wet surfaces; the ability to use a cane while ambulating;

and frequent, but not constant handling and fingering

bilaterally.

(Tr. 14).

Importantly, as noted above, 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)).

Accordingly, an ALJ may not substitute his [or her] own medical judgment for that

of the treating physician where the opinion of the treating physician is supported

by the medical evidence. Id. (internal quotations omitted); see also Bledsoe v.

Comm’r of Soc. Sec., 2011 WL 549861, at *7 (S.D. Ohio Feb. 8, 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 Apr. 14, 2008) (The

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 June 9, 2011),

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adopted by 2011 WL 3566009 (S.D. Ohio Aug. 12, 2011).

Nevertheless, courts have stressed the importance of medical opinions to

support a claimant’s RFC, and 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 Nov. 4, 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

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 free to set his own expertise against that of a physician who presents

competent evidence.).

Here, the ALJ discounted the opinion of plaintiff’s treating physician

because she concluded that Dr. Holtzman’s RFC findings were “extreme” based

on his treatment notes and plaintiff’s positive responses to treatment. (Tr. 18). 

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The ultimate RFC in this case discounted the recommendations of plaintiff's

treating physician, however, the undersigned is not able to discern how the ALJ

formulated her RFC recommendations. The ALJ does not indicate from what

medical opinion(s) she draws the physical limitations that she incorporates into her

RFC findings. She identifies state agency medical consultant Dr. Tsai’s report,

however, she ultimately discounts this report also because Dr. Tsai did not have

the opportunity to review the medical records submitted after he rendered his

opinion, including those of Dr. Holtzman. (Tr. 18). Because there does not

appear to be a medical underpinning for the ALJ’s RFC determination, and the

ALJ essentially interprets the raw medical data in functional terms, the

undersigned concludes under these circumstances that a remand is necessary to

obtain a proper medical source opinion to support the ALJ’s physical residual

functional capacity finding. The undersigned also notes that the ALJ declined to

adopt Dr. Holzman’s opinion in a case where there does appear to be medical

evidence that supports his opinion, including MRI and lumbar puncture diagnostic

testing, which confirm the multiple sclerosis diagnosis and “extensive

demyelinating disease,” treatment notes that confirm plaintiff’s self-reports of

pain, weakness, and fatigue, and the use of prescription medications for pain and

symptom management. 

Although ultimately a finding of no disability is possible in this case,

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substantial evidence does not exist on the record to support the current RFC

determination. As it stands, the ALJ’s RFC determination (at least in part) was not

based on any medical opinion but was apparently formulated based on her own

independent medical findings. The undersigned also concludes that the ALJ did

not give sufficient good reasons for rejecting the treating physician’s opinion

regarding plaintiff meeting a Listing. This too should be reassessed after the

opinion of a medical advisor is obtained.

Given the above conclusions, the ALJ will have to re-assess plaintiff’s

credibility and additional vocational expert testimony may be required, depending

on the conclusions the ALJ reaches on remand regarding plaintiff’s RFC. As

such, the undersigned will not assess plaintiff’s argument on this point now.

IV. RECOMMENDATION

For the reasons set forth above, the undersigned concludes that a remand is

necessary to obtain a proper medical source opinion to support the ALJ’s physical

RFC. The Court therefore RECOMMENDS that Plaintiff’s Motion for Summary

Judgment (Dkt. 13) be GRANTED, that Defendant’s Motion for Summary

Judgment (Dkt. 15) be DENIED, and that, pursuant to 42 U.S.C. § 405(g), the

decision of the Commissioner of Social Security be REVERSED AND

REMANDED for proceedings consistent with this Report and Recommendation.

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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

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.

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Date: November 5, 2015 s/Michael Hluchaniuk

Michael Hluchaniuk

United States Magistrate Judge

CERTIFICATE OF SERVICE

I certify that on November 5, 2015, 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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