Report and Recommendation

Cross-Motions for Summary Judgment

1 Kinsora v. Comm’r; No. 09-11507

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DENISE E. KINSORA, Case No. 09-11507

Plaintiff, Nancy G. Edmunds

v. United States District Judge

COMMISSIONER OF Michael Hluchaniuk

SOCIAL SECURITY, United States Magistrate Judge

Defendant.

 /

REPORT AND RECOMMENDATION

CROSS-MOTIONS FOR SUMMARY JUDGMENT (Dkt. 8, 11)

I. PROCEDURAL HISTORY

A. Proceedings in this Court

On April 22, 2009, 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 Nancy G.

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

Commissioner’s decision denying plaintiff’s claim for a period of Disability

Insurance Benefits (DIB) and Supplemental Security Income (SSI). (Dkt. 3). This

matter is currently before the Court on cross-motions for summary judgment. 

(Dkt. 8, 11). 
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B. Administrative Proceedings

Plaintiff filed the instant claims on October 22, 2003, alleging that she

became unable to work on March 1, 2001. (Dkt. 7, Tr. at 65E). The claim was

initially disapproved by the Commissioner on February 23, 2004. (Dkt. 7, Tr. at

40). Plaintiff requested a hearing and on October 3, 2005, plaintiff appeared with

counsel before Administrative Law Judge (ALJ) Melvyn B. Kalt, who considered

the case de novo. In a decision by the Appeals Council dated March 23, 2006, the

ALJ found that plaintiff was not disabled. (Dkt. 7, Tr. at 29-39). Plaintiff

requested a review of this decision on May 12, 2006. (Dkt. 7, Tr. at 66A). The

Appeals Council granted plaintiff’s request for review and remanded the case to an

ALJ for further proceedings. (Dkt. 7, Tr. at 66D). A new administrative hearing

was held on September 20, 2007, at which plaintiff appeared with counsel before

ALJ Kalt. In a decision by the Appeals Council dated January 16, 2008, the ALJ

again found that plaintiff was not disabled. (Dkt. 7, Tr. at 13-22). The ALJ’s

decision became the final decision of the Commissioner when the Appeals Council

denied plaintiff’s request for review on March 9, 2009. (Dkt. 7, Tr. at 3C-5);

Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004). 

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

does not support the Commissioner’s determination that plaintiff is not disabled. 

Accordingly, it is RECOMMENDED that plaintiff’s motion for summary
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3 Kinsora v. Comm’r; No. 09-11507

judgment be GRANTED, defendant’s motion for summary judgment be DENIED,

that the findings of the Commissioner be REVERSED, and that this matter be

REMANDED for further proceedings.

II. STATEMENT OF FACTS

A. ALJ Findings

Plaintiff was 47 years of age at the time of the most recent administrative

hearing. (Dkt. 7, Tr. at 75). Plaintiff’s relevant work history included

approximately 13 years as a baggage handler and dishwasher. (Dkt. 7, Tr. at 75-

77). In denying plaintiff’s claims, defendant Commissioner considered chronic

low back pain, bilateral carpal tunnel syndrome, and depression as possible bases

of disability. (Dkt. 7, Tr. at 16).

The ALJ applied the five-step disability analysis to plaintiff’s claim and

found at step one that plaintiff had not engaged in substantial gainful activity since

March 1, 2002. (Dkt. 7, Tr. at 16). The ALJ does not appear to have made a clear

finding as to whether plaintiff’s impairments were “severe” within the meaning of

the second step of the analysis. 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 step four, the ALJ found that plaintiff could not perform her

previous work as a baggage handler . (Dkt. 7, Tr. at 20). At step five, the ALJ
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denied plaintiff benefits because plaintiff could perform a significant number of

jobs available in the national economy. (Dkt. 7, Tr. at 22).

Plaintiff was diagnosed with disc herniations at C3-4, C5-6, L4-5 and LS-SI. 

However, the ALJ noted that she consistently exhibited only mildly positive

straight leg raising on the left, if at all, good strength throughout all the extremities,

intact sensation, no muscle atrophy, no reflex loss, no motor loss and intact

coordination. Therefore, the ALJ found that plaintiff did not have an impairment,

or combination of impairments, which meet or equal any of the specific sections in

the Listing of Impairments. In February 2004, the state disability consultant

concluded that the claimant could perform light

work and the ALJ found this assessment to be relatively consistent with the

objective medical evidence. Plaintiff’s treating physician indicated that she could

perform light work with restrictions. Specifically, in June 2006, the treating

physician indicated that the claimant was unable to sit for prolonged periods of

time. In addition, plaintiff was evaluated for bilateral carpal tunnel syndrome.

Thus, the ALJ concluded that plaintiff had the residual functional capacity for light

work with the ability to alternate between sitting and standing as needed and carpal

tunnel syndrome precautions such as no forceful grasping or torquing motions and

no repetitive use of the hands.
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Plaintiff testified that she suffered from depression and anxiety. She was 

diagnosed with an adjustment disorder with depression and anxiety. Therefore, the

ALJ concluded that the evaluation of her functional capacity under section 12.04

(affective disorders) was warranted. The ALJ concluded that plaintiff did not

exhibit significant limitations maintaining her activities of daily living. In

September 2004, the evaluating psychiatrist noted the claimant was able to care for

her two children, perform household chores, cook, drive, and would be able to

manage benefit funds, which implies an ability to maintain a residence. In October

2005, the evaluating psychiatrist noted that the claimant was able to care for her

personal needs and would be able to manage benefit funds. In October 2007, the

evaluating psychiatrist noted that the claimant was able to care for her personal

needs and would be able to manage benefit funds. Based on the foregoing, the

ALJ concluded that plaintiff’s degree of limitation with respect to her activities of

daily living was rated “mild.”

Next, the ALJ concluded that plaintiff did not exhibit significant limitations

maintaining social functioning. In September 2004, the evaluating psychiatrist

noted that the claimant was able to get along with coworkers, family, neighbors

and friends. In October 2005, the evaluating psychiatrist concluded that the

claimant would have marked difficulty dealing with the public, supervisors and

coworkers based upon the claimant's allegations that she avoided going out and
1

 There is no such reference in Exhibit 16F. Further, this physician did not

complete the form that would contain these options. Rather, the ALJ seems to be

suggesting that the absence of such a specific comment from this particular

physician means that plaintiff did not make complaints that would satisfy the

“marked” limitation in this area. 

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stayed in her room. However, from March 2006 through November 2006, the ALJ

found that plaintiff was noncompliant with counseling, which undercut her

allegations of disabling anxiety. The ALJ also wrote that in “April 2006, the

treating neurologist did not indicate that plaintiff had complained of marked

difficulty interacting with others or that she spent most of the day in her room,”

citing, Exhibit 16F.1

 In October 2007, the evaluating psychiatrist indicated that

plaintiff would have only mild limitations dealing with the public, supervisors or

coworkers. Therefore, the ALJ concluded that “except for the evaluation in

October 2005; all of the evaluating psychiatrists and neurologists have indicated

only mild limitations maintaining social functioning.” Based on the foregoing, the

ALJ concluded that this degree of limitation was rated “mild.”

The ALJ found that plaintiff exhibited some limitations maintaining

concentration, persistence or pace. In September 2004, she exhibited good

concentration and intact memory. In October 2005, plaintiff exhibited good

concentration and intact memory and the evaluating psychiatrist concluded that she

had no significant difficulty with simple tasks and only slight difficulty with

detailed tasks. In September 2006, the treating neurologist noted that the
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plaintiff’s attention, concentration and memory were all normal. In October 2007,

the evaluating psychiatrist indicated that plaintiff had no significant limitations

with simple or detailed instructions. Nonetheless, the ALJ, giving the “benefit of

the doubt” to plaintiff, found that this degree of limitation was rated “moderate.”

Finally, the ALJ concluded that plaintiff never exhibited an episode of

decompensation. Therefore, this degree of limitation was rated “none.” According

to the ALJ, plaintiff did not exhibit repeated episodes of decompensation and there

was no evidence indicating that a minimal increase in mental demands would cause

plaintiff to decompensate. In September 2004, the evaluating psychiatrist indicated

that plaintiff tended to exaggerate her symptoms and that there were no objective

signs of anxiety or depression. In October 2005, while plaintiff complained of

frequent anxiety attacks and that she avoided leaving

the house, throughout 2006, she was noncompliant with counseling. Moreover, in

June 2007, plaintiff denied anxiety or depression. In October 2007, the evaluating

psychiatrist indicated only mild to moderate limitations regarding overall

functioning. Thus, the ALJ concluded that § 12.04 (C) was not met.

According to the ALJ, plaintiff exhibited only mild limitations maintaining

her activities of daily living and social functioning and moderate difficulty

maintaining concentration, persistence or pace. Therefore, he found that she was 
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8 Kinsora v. Comm’r; No. 09-11507

limited to only simple 1-2-3 step operations. With these limitations, the vocational

expert testified that, if plaintiff could perform light work with the ability to

alternate between sitting and standing as needed; no forceful grasping or torquing

motions, no repetitive use of the hands, and only simple 1-2-3 step operations, then

she could perform work as a cashier and visual inspector, of which there were 3000

and 2000 such jobs, respectively, in southeastern Michigan. According to the ALJ,

the vocational expert testified that these job titles are specifically listed in and

consistent with the Dictionary of Occupational Titles. The vocational expert also

testified that, even if plaintiff was further restricted to work that did not involve

interaction with the public or close contact with supervisors and coworkers, then

she could still perform work as a visual inspector of which there are 1,500 such

jobs in southeastern Michigan. According to the ALJ, this constituted a significant

number of jobs, the Commissioner has met his burden and a finding of “not

disabled” is warranted.

B. Parties’ Arguments

1. Plaintiff’s claims of error

Plaintiff first claims that the ALJ’s failure to ask the vocational expert

whether jobs identified were consistent with the Dictionary of Occupational Titles

is reversible error. (Dkt. 8, p. 13). Plaintiff also claims that the ALJ’s RFC finding

and the hypothetical question posed to the vocational expert did not accurately
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portray plaintiff’s limitations. From a physical standpoint, plaintiff contends the

ALJ omitted postural limitations that a state agency physician opined she had in a

physical residual functional capacity assessment dated February 17, 2004. (Tr.

136- 143). Specifically, the state agency physician opined that plaintiff could only

occasionally stoop and crouch. (Tr. 138). According to plaintiff, the ALJ not only

failed to address these postural limitations in his RFC finding and hypothetical

question to the VE, but he failed to address why he discounted these limitations in

his decision denying benefits. Further, plaintiff argues that these postural

limitations are appropriate in light of plaintiff’s long documented history of lower

back problems. 

From a psychiatric standpoint, plaintiff contends that the ALJ omitted a

mental limitation a state agency psychiatrist opined she had in a mental medical

source statement dated October 24, 2007. (Tr. 491- 493). Specifically, the state

agency psychiatrist opined that plaintiff had a moderate limitation in the area of

responding appropriately to usual work situations and to changes in a routine work

setting. (Tr. 492). The medical source statement defined a “moderate” limitation

as “more than a slight limitation in this area but the individual is still able to

function satisfactorily.” (Tr. 491). Plaintiff asserts that the ALJ not only failed to

address this mental limitation in his RFC finding and hypothetical question to the

VE, but he failed to address why he discounted this limitation in his decision
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denying benefits. Plaintiff requests that this matter be remanded under sentence

four of 42 U.S.C. § 405(g) for a de novo hearing before an administrative law

judge.

2. Commissioner’s counter-motion for summary judgment

According to the Commissioner, contrary to plaintiff’s claim, the

hypothetical question the ALJ asked the VE, and the corresponding answer the

ALJ relied on, was adequate and proper because it included all of plaintiff’s

substantiated impairments and resultant limitations. The Commissioner asserts that

the hypothetical question posed by the ALJ to the VE took into consideration the

limitations that accurately reflected plaintiff difficulties and that were supported by

the record as a whole. (Tr. 536-37). Based on the evidence of record, the ALJ

reasonably determined that, because of her impairments, plaintiff could do light

work with the ability to alternate between sitting and standing as needed, no

forceful grasping or torquing motions, no repetitive use of the hands, and only

1-2-3 step operations. (Tr. 19-21, 536-37). The Commissioner urges the Court to

conclude that the ALJ reasonably did not include the limitations provided by the

state agency physician of only being able to occasionally stoop and crouch. (Tr.

138). Contrary to plaintiff’s assertion, the Commissioner argues that the ALJ

considered and discussed the February 2004 opinion of the state agency physician

that plaintiff could perform light work. (Tr. 19). The ALJ relied on this opinion
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because it was “relatively consistent with the objective medical evidence,” but he

reasonably did not include the limitation of occasionally having to stoop or crouch

in his RFC determination and in his hypothetical question to the VE. (Tr. 19-21). 

The ALJ reasonably determined plaintiff could do a range of light work. (Tr.

19-21). However, if plaintiff can stoop or crouch occasionally, the sedentary and

light occupational base remains virtually intact. (Dkt. 11, citing, SSR 85-15). In

determining that plaintiff could perform light work, the ALJ necessarily

determined that plaintiff could occasionally stoop and crouch, and it was not

necessary to include those limitations in the hypothetical question. 

According to the Commissioner, the “ALJ also reasonably never included

the limitations provided by the state agency psychiatrist of plaintiff having a

moderate limitation of responding appropriately to usual work situations and to

changes in a routine work setting” and, at the same time, the “ALJ did, however,

consider all of the mental medical evidence, including a moderate limitation of

responding appropriately to ususal work situations and to changes in a routine

work setting, and he reasonably determined that Plaintiff could do simple 1-2-3

step operations.” (Tr. 19-20, 490-92). The ALJ determined that plaintiff had a

depressive disorder that resulted in her having mild restrictions in the activities of

daily living and in maintaining social functioning. (Tr. 19, 490, 492). The ALJ

also found plaintiff had moderate difficulties in maintaining concentration,
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persistence, or pace, and never had any episodes of deterioration or

decompensation of extended duration. (Tr. 20, 491-92). Based on those functional

limitations, the ALJ reasonably determined that because of her depressive disorder,

plaintiff could do work that was simple with 1-2-3 step operations. (Tr. 22). 

Based on all the evidence of record, the ALJ reasonably determined plaintiff could

do light work with the ability to alternate between sitting and standing as needed,

no forceful grasping or torquing motions, no repetitive use of the hands, and only

1-2-3 step operations. (Tr. 19-21, 536-37). Substantial evidence supports the

ALJ’s mental RFC determination. When the ALJ incorporated plaintiff’s

substantiated limitations into his hypothetical question, the VE testified that such a

person like plaintiff could perform about 5,000 jobs as a cashier and visual

inspector. (Tr. 537). Substantial evidence, according to the Commissioner,

therefore, supports the ALJ’s determination that there was a significant number of

jobs that plaintiff could perform.

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
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13 Kinsora v. Comm’r; No. 09-11507

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

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

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

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

action in federal district court. Mullen v. Bowen, 800 F.2d 535, 537 (6th Cir.1986).

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

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

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

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

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

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

Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). In deciding

whether substantial evidence supports the ALJ’s decision, “we do not try the case

de novo, resolve conflicts in evidence, or decide questions of credibility.” Bass v.

McMahon, 499 F.3d 506, 509 (6th Cir. 2007); Garner v. Heckler, 745 F.2d 383,

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

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

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

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

claimant’s subjective complaints and may ... consider the credibility of a claimant
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when making a determination of disability.”); Cruse v. Comm’r of Soc. Sec., 502

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

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

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

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

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

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

credibility determinations based solely upon an ‘intangible or intuitive notion

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

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

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

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

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

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

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

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

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

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

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

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

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

“Disability” means:

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.
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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. “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
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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. Analysis and Conclusions

The ALJ determined that plaintiff possessed the residual functional capacity

to return to a limited range of light work. (Tr. at 22).

Light work involves lifting no more than 20 pounds at a

time with frequent lifting or carrying of objects weighing

up to 10 pounds. Even though the weight lifted may be

very little, a job is in this category when it requires a

good deal of walking or standing, or when it involves

sitting most of the time with some pushing and pulling of

arm or leg controls. To be considered capable of

performing a full or wide range of light work, you must

have the ability to do substantially all of these activities. 

If someone can do light work, we determine that he or

she can also do sedentary work, unless there are
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additional limiting factors such as loss of fine dexterity or

inability to sit for long periods of time. 

20 C.F.R. 404.1567(b). Social Security Ruling (SSR) 83-10 clarifies this

definition and provides that:

“Occasionally” means occurring from very little up to

one-third of the time. Since being on one’s feet is

required “occasionally” at the sedentary level of exertion,

periods of standing or walking should generally total no

more than about 2 hours of an 8-hour workday, and

sitting should generally total approximately 6 hours of an

8-hour workday. Work processes in specific jobs will

dictate how often and how long a person will need to be

on his or her feet to obtain or return small articles.

As noted earlier, 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.

1. Postural limitations

From a physical standpoint, plaintiff contends the ALJ omitted postural

limitations that a state agency physician opined she had in a physical residual

functional capacity assessment dated February 17, 2004. (Tr. 136- 143). 

Specifically, the state agency physician opined that plaintiff could only

occasionally stoop and crouch. (Tr. 138). According to plaintiff, the ALJ not only
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failed to address these postural limitations in his RFC finding and hypothetical

question to the VE, but he also failed to address why he discounted these

limitations in his decision denying benefits. Further, plaintiff argues that these

postural limitations are appropriate in light of plaintiff’s long documented history

of lower back problems. The Commissioner asserts that the ALJ reasonably did

not include the limitation of occasionally having to stoop or crouch in his RFC

determination and in his hypothetical question to the VE because, in determining

that plaintiff could perform light work, the ALJ necessarily determined that

plaintiff could occasionally stoop and crouch, and it was not necessary to include

those limitations in the hypothetical question, citing SSR 85-15. 

“Substantial evidence may be produced through reliance on the testimony of

a vocational expert in response to a hypothetical question, but only if the question

accurately portrays [the] plaintiff’s individual physical and mental impairments.”

Varley v. Sec’y of Health & Hum. Serv., 820 F.2d 777, 779 (6th Cir. 1987) (internal

citations omitted); Webb v. Comm’r of Soc. Sec., 368 F.3d 629, 632 (6th Cir.2004).

 At the second hearing, the ALJ posed the hypothetical question to the vocational

expert as follows:

Q. * * * Mr Fuller we’ve previously determined that the claimant's

past work was unskilled work as a dishwasher was at medium

level, and a baggage handler was at the heavy level. If I were to

find that the claimant was limited, lifting no more than ten

pounds repeatedly, twenty pounds occasionally, that she had the
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ability to alternate between sitting and standing with limited to

simple, one, two, and three step operations and is precluded

from any work that required repeated forceful grasping,

torqueing movements or any type of repeated use of the hands.

Would there be any work that she could perform? Clearly, she

could not return to her past work.

A. Your honor, there would be a limited number of cashier and

visual inspection jobs. I would say 3,000 cashier and 2,000

inspection jobs.

Q. Is there anything about the claimant’s testimony that would

preclude the performance of these jobs?

A. The described need to lay down throughout the day. Being able

to sit/stand in combination no more than 30 minutes at a time.

Q. Without having to lie down.

A. Yes, Your Honor. That's what, what I understood.

Q. But sitting and standing but being able to make it through an

eight-hour day with appropriate rest periods is different, then?

A. Yes Your Honor.

Q. All right, so just to review. If the claimant’s testimony is fully

credited, there would be no work that she could perform. If we

take in to account her testimony with respect to an inability to

make it through an eight-hour day. If the answer to the

hypothetical question I gave you would allow her to perform

the cashier and inspection jobs. Is that correct?

A. That’s correct.

(Tr. 536-537). 
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The undersigned suggests that, where the ALJ found the examining

physician’s opinion consistent with other medical evidence of record, there was no

basis to exclude the postural limitations from the hypothetical question. The

undersigned is not persuaded by the Commissioner’s argument that in finding that

plaintiff could do light work, the ALJ is presumed to have taken plaintiff’s postural

limitations into account. “Nonexertional limitations can affect the abilities to

reach; to seize, hold, grasp, or turn an object (handle); to bend the legs alone

(kneel); to bend the spine alone (stoop) or bend both the spine and legs (crouch).” 

See SSR 85-15, 1985 WL 56857 (S.S.A. 1985). As recognized in SSR 85-15,

nonexertional impairments may or may not affect a person’s capacity to carry out

the primary strength requirements of jobs, and they may or may not significantly

narrow the range of work a person can do. While it is true that jobs that can be

performed by persons with solely nonexertional limitations cut across the

categories of sedentary to heavy work, (id.), the ALJ did not find that plaintiff had

solely nonexertional limitations, as evidenced by his finding that she could not

perform her former work. The Commissioner’s reliance on SSR 85-15 for the

proposition that “light work” includes the postural limitations found by the state

agency examiner is, therefore, misplaced. The VE’s testimony, on which the ALJ

relied, is “tainted by the omission of key postural limitations in the hypothetical

question.” Ritter v. Comm’r of Soc. Sec., 2010 WL 1064415, *7 (E.D. Mich.
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2010), aff’d, 2010 WL 1064411, citing, Teverbaugh v. Comm’r of Soc. Sec., 258

F.Supp.2d 702, 706 (E.D. Mich. 2003). The undersigned suggests that the ALJ’s

failure to include plaintiff’s postural limitations in the hypothetical question

constitutes reversible error. 

2. Mental impairment

As to an allegedly disabling mental impairment, the Commissioner has

promulgated a special technique to ensure that all evidence needed for the

evaluation of such a claim is obtained and evaluated. This technique was designed

to work in conjunction with the sequential evaluation process set out for the

evaluation of physical impairments. 20 C.F.R. §§ 404.1520a, 416.920a. Congress

laid the foundation for making disability determinations when mental impairments

are involved in 42 U.S.C. § 421(h), which provides:

An initial determination under subsection (a), (c), (g), or

(I) of this section that an individual is not under a

disability, in any case where there is evidence which

indicates the existence of a mental impairment, shall be

made only if the Commissioner has made every

reasonable effort to ensure that a qualified psychiatrist or

psychologist has completed the medical portion of the

case review and any applicable residual functional

capacity assessment.

Section 404.1520a explains in detail the special procedure and requires the

completion of “a standard document outlining the steps of this procedure.” 20

C.F.R. § 404. 1520a(d). The regulation further requires the standard document to
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24 Kinsora v. Comm’r; No. 09-11507

be completed and signed by a medical consultant at the initial and reconsideration

levels, but provides other options at the administrative law judge hearing level. Id.

Under this procedure, the Commissioner must first make clinical findings, as to

whether the claimant has a medically determinable mental disorder specified in one

of eight diagnostic categories defined in the regulations. Merkel v. Comm’r of

Social Security, 2008 WL 2951276, *10 (E.D. Mich. 2008), citing, 20 C.F.R. Pt.

404. Subpt. P, App. 1, § 12.00A. 

The Commissioner must then measure the severity of any mental disorder;

that is, its impact on the applicant’s ability to work. “This is assessed in terms of a

prescribed list of functional restrictions associated with mental disorders.” Merkel,

at *10, citing, 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00C. The first area of

functional restriction is “activities of daily living.” This area requires the

Commissioner to determine the claimant’s ability to clean, shop, cook, take public

transportation, maintain a residence and pay bills. Merkel, at *10. Under the

second functional area, “social functioning,” the Commissioner must determine

whether the claimant can interact appropriately and communicate effectively and

clearly with others. Id. The third functional area, “concentration, persistence, or

pace,” refers to the claimant’s ability to sustain focused attention sufficiently long

to permit the timely completion of tasks found in work settings. Id. The final

functional area, that of “deterioration or decompensation in work or work-like
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25 Kinsora v. Comm’r; No. 09-11507

settings,” refers to the claimant’s ability to tolerate increased mental demands

associated with competitive work. Id. 

The degree of limitation in the first three functional areas (activities of daily

living; social functioning; and concentration, persistence, or pace) is rated using a

five-point scale: none, mild, moderate, marked, and extreme. Pauley v. Comm’r of

Social Security, 2008 WL 2943341, *9 (S.D. Ohio 2008). The degree of limitation

in the fourth functional area (episodes of decompensation) is rated using a

four-point scale: none, one or two, three, four or more. Id. “The last point on each

scale represents a degree of limitation that is incompatible with the ability to do

any gainful activity.” Pauley, at *9, citing, 20 C.F.R. § 404. 1520a(c)(4). Ratings

above “none” and “mild” in the first three functional areas and “none” in the fourth

functional area are considered severe. Pauley, at *9, citing, 20 C.F.R.

§ 404.1520a(d)(1). If the first two functional areas receive ratings of “none” or

“slight,” the third a rating of “never” or “seldom,” and the fourth a rating of

“never,” the Commissioner will conclude that the mental impairment is not severe,

and that it cannot serve as the basis for a finding of disability. Merkel, at *10,

citing, 20 C.F.R. §§ 404.1520a(c)(1), 404.1521. 

If the functional areas indicate that the mental impairment is “severe,” the

Commissioner must decide whether it meets or equals a listed mental disorder. 

Merkel, at *10, citing, 20 C.F.R. § 404.1520a(c)(2). The Commissioner will
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26 Kinsora v. Comm’r; No. 09-11507

determine that the claimant is disabled if the mental impairment is a listed mental

disorder and at least two of the criteria have been met. Merkel, at *10, citing, 20

C.F.R. Pt. 404, Subpt. P, App. 1, § 12.02, et. seq. If the severe mental impairment

does not meet a listed mental disorder, the Commissioner must perform a residual

functional capacity assessment to determine whether the claimant can perform

some jobs notwithstanding his mental impairment. Merkel, at *10, citing, 20

C.F.R. §§ 404.1520a(c)(3), 416.920a(c)(3).

Even if the failure to include plaintiff’s postural limitations in the

hypothetical question is not reversible error, the ALJ also failed to explain why he

disregarding the opinion of the state agency physician who found that plaintiff had

“marked” limitations. In October 2005, the evaluating psychiatrist concluded that

the claimant would have marked difficulty dealing with the public, supervisors and

coworkers based on the claimant’s allegations that she avoided going out and

stayed in her room. The ALJ also wrote that in “April 2006, the treating

neurologist did not indicate that plaintiff had complained of marked difficulty

interacting with others or that she spent most of the day in her room,” citing,

Exhibit 16F. As noted above, the ALJ seems to be suggesting that the absence of

such a specific comment from this particular physician means that plaintiff did not

make complaints that would satisfy the “marked” limitation in this area. In

October 2007, the evaluating psychiatrist indicated that plaintiff would have only
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mild limitations dealing with the public, supervisors or coworkers. Therefore, the

ALJ concluded that “except for the evaluation in October 2005; all of the

evaluating psychiatrists and neurologists have indicated only mild limitations

maintaining social functioning.” 

The ALJ essentially used the absence of any comment regarding plaintiff’s

mental limitations in the neurologist’s report from April 2006 to tip the scales in

favor of a finding of only a mild limitation in social functioning. It is apparent

from the April 2006 neurological examination that plaintiff’s mental limitations

were simply not addressed. Thus, the ALJ offers no explanation based on the

record evidence for choosing between 2005 psychiatric evaluation and the 2007

psychiatric evaluation other than plaintiff’s apparent failure to comply with

counseling efforts. The ALJ gave no consideration as to whether and to what

extent plaintiff’s mental impairments impacted both her capacity to seek treatment

regularly or to comply with recommended treatment. Blankenship v. Bowen, 874

F.2d 1116, 1124 (6th Cir. 1989) (“[I]t is a questionable practice to chastise one

with a mental impairment for the exercise of poor judgment in seeking

rehabilitation.”). And, the failure to seek treatment for a period of time may be a

factor to be considered against a claimant, Hale v. Sec’y of Health and Hum. Serv.,

816 F.2d 1078, 1082 (6th Cir. 1987), unless a claimant simply has no way to afford

or obtain treatment to remedy her condition, McKnight v. Sullivan, 927 F.2d 241,
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28 Kinsora v. Comm’r; No. 09-11507

242 (6th Cir. 1990). The ALJ also gave no consideration to whether and to what

extent that plaintiff’s financial situation impaired her ability to obtain regular

treatment or to comply with recommended treatments. Under the circumstances,

the undersigned suggests that the ALJ failed to give sufficient reasons for his

finding that plaintiff was “mildly” impaired with respect to social functioning and

suggests that this issue should be re-examined on remand.

3. SSR 00-4p

Plaintiff argues that the ALJ failed to identify and resolve any conflicts

pursuant to SSR 00-4p. SSR 00-4p requires that:

When a VE ... provides evidence about the requirements

of a job or occupation, the adjudicator has an affirmative

responsibility to ask about any possible conflict between

that VE or VS evidence and information provided in the

DOT. In these situations the adjudicator will:

Ask the VE or VS if the evidence he or she has provided

conflicts with information provided in the DOT; and

If the VE’s or VS’s evidence appears to conflict with the

DOT, the adjudicator will obtain a reasonable

explanation for the apparent conflict.

SSR 00-4p is used “[w]hen there is an apparent unresolved conflict between VE ...

evidence and the DOT.” Zinis v. Comm’r of Soc. Sec., 2009 WL 261474, *10

(E.D. Mich. 2009). “[W]here there is no unresolved conflict, the ALJ’s failure to

ask the VE whether his testimony is consistent is not reversible error or even error
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29 Kinsora v. Comm’r; No. 09-11507

requiring remand.” Kreh v. Comm’r of Soc. Sec., 2008 WL 4534177, citing, Rowe

v. Astrue, 2008 WL 1711538, at *3 (E.D. Ky. 2008) (where hypothetical accurately

reflected plaintiff’s limitations and ALJ was unaware of any conflict, ALJ was

under no duty to explain how conflict was resolved); Winstead v. Comm’r, 2008

WL 819073, at *15-16 (S.D. Ohio 2008) (where question posed to VE accurately

reflected plaintiff’s limitations, plaintiff’s contention that ALJ erred in failing to

inquire into possible conflicts was without merit). While the plaintiff does not

identify any inconsistency or conflict, given the foregoing recommendations that

plaintiff’s postural limitations and mental impairment should be re-evaluated, it

would also be wise, on remand, for the ALJ to consider whether the vocational

evidence is consistent with the DOT and make further inquiry on this issue to the

extent necessary.

4. Conclusion

After review of the record, I conclude that the decision of the ALJ, which

ultimately became the final decision of the Commissioner, was not within that

“zone of choice within which decisionmakers may go either way without

interference from the courts,” Felisky, 35 F.3d at 1035, as the decision is

unsupported by substantial evidence. While this record may not justify a remand
2

 “If a court determines that substantial evidence does not support the

Secretary’s decision, the court can reverse the decision and immediately award

benefits only if all essential factual issues have been resolved and the record

adequately establishes a plaintiff's entitlement to benefits.” Faucher, 17 F.3d at

176 (emphasis added).

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30 Kinsora v. Comm’r; No. 09-11507

for an award of benefits, see Faucher v. Sec’y of Health and Human Serv., 17 F.3d

171, 176 (6th Cir. 1994),2

 a remand is nonetheless required.

IV. RECOMMENDATION

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

does not support the Commissioner’s determination that plaintiff is not disabled. 

Accordingly, it is RECOMMENDED that plaintiff’s motion for summary

judgment be GRANTED, defendant’s motion for summary judgment be DENIED,

that the findings of the Commissioner be REVERSED, and that this matter be

REMANDED for further proceedings.

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
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31 Kinsora v. Comm’r; No. 09-11507

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.

s/Michael Hluchaniuk 

Date: July 23, 2010 Michael Hluchaniuk

United States Magistrate Judge
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CERTIFICATE OF SERVICE

I certify that on July 23, 2010, I electronically filed the foregoing paper with

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

notification to the following: Joseph E. Houle, Judith E. Levy, AUSA, and

Commissioner of Social Security.

s/Darlene Chubb 

Judicial Assistant

(810) 341-7850

darlene_chubb@mied.uscourts.gov