UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

ROBERT LEWICKI,

Plaintiff,

Case Number 09-11844-BC

v. Honorable Thomas L. Ludington

COMMISSIONER OF 

SOCIAL SECURITY,

Defendant.

______________________________________ /

ORDER OVERRULING PLAINTIFF’S OBJECTION, ADOPTING JUDGE

HLUCHANIUK’S REPORT AND RECOMMENDATION, DENYING PLAINTIFF’S

MOTION FOR SUMMARY JUDGMENT, GRANTING DEFENDANT’S MOTION FOR

SUMMARY JUDGMENT, AND DISMISSING PLAINTIFF’S COMPLAINT WITH

PREJUDICE

Magistrate Judge Michael Hluchaniuk issued a report and recommendation [Dkt. # 18] on

August 23, 2010, recommending that the Court deny Plaintiff Robert Lewicki’s motion for summary

judgment [Dkt. # 9], grant Defendant Commissioner of Social Security’s motion for summary

judgment [Dkt. # 14], and dismiss Plaintiff’s complaint [Dkt. # 1] with prejudice. 

Any party may serve and file written objections to a report and recommendation “[w]ithin

fourteen days after being served with a copy” of the report. 28 U.S.C. § 636(b)(1). Plaintiff filed

objections on September 3, 2010 [Dkt. # 19] and Defendant filed a response on September 17, 2010

[Dkt. # 20]. The district court will make a “de novo determination of those portions of the report

. . . to which objection is made.” Id. The Court is not obligated to further review the portions of the

report to which no objection was made. Thomas v. Arn, 474 U.S. 140, 149–52 (1985). For the

reasons stated below, Judge Hluchaniuk’s report and recommendations will be adopted and

Plaintiff’s complaint will be dismissed with prejudice. 
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I

The Commissioner of Social Security determines whether a claimant is disabled in

accordance with a five-step process. 20 C.F.R. § 404.1520(a)(4)(i)–(v). A claim is allowed when

a claimant demonstrates that (1) he is not engaged in substantial gainful employment; (2) he suffers

from a severe impairment; and (3) the impairment meets or is equal to a “listed impairment.” If the

claimant does not satisfy the third step, the claim is still allowed if the fourth and fifth steps are

satisfied. In step four, the claimant must show that he does not retain the residual functional

capacity to perform his relevant past work. 20 C.F.R. § 416.920(a)(4)(i)-(iv). At the fifth and final

step, the Commissioner determines whether the claimant is able to perform any other gainful

employment in light of the claimant’s residual functional capacity (“RFC”), age, education, and

work experience. 20 C.F.R. § 416.920(a)(4)(v).

The Court reviews the Commissioner’s decision to determine whether the “factual findings

. . . are supported by substantial evidence.” Tyra v. Sec’y of Health & Human Servs., 896 F.2d 1024,

1028 (6th Cir. 1990) (citing 28 U.S.C. § 405(g)). Substantial evidence “is such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402

U.S. 389, 401 (1971). Even if the evidence could also support another conclusion, the decision of

the ALJ must stand if the evidence could reasonably support the conclusion reached. Her v. Comm’r

of Soc. Sec., 203 F.3d 388, 389–90 (6th Cir. 1999). A district court does not resolve conflicts of

evidence or issues of credibility. Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681

(6th Cir. 1989).

II

As of the alleged disability onset date of March 30, 2000, Plaintiff was a 43-year-old former
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bricklayer suffering from degenerative joint disease, degenerative disc disease, hypertension,

adjustment disorder anxiety, and alcohol dependence. R&R at 2–3. During the administrative

review process, evidence was presented suggesting that Plaintiff suffers from a variety of physical

ailments that would limit his ability to return to his past work as a bricklayer. A psychologist from

a state agency also reported that Plaintiff suffered from several mental impairments. The

psychologist reported that he “was moderately limited in his ability to (a) understand and remember

detailed instructions, (b) carry out such detailed instructions, (c) maintain attention and

concentration for extended periods, and (d) perform activities within a schedule, maintain regular

attendance, and be punctual within customary tolerances.” Id. at 4; A.R. at 286–87. The

psychologist further concluded that, despite those limitations, Plaintiff “retains [the] ability to do

unskilled tasks on a sustained basis.” R&R at 5; A.R. at 284. 

As part of her analysis, the ALJ posed the following hypothetical question to the vocational

expert: 

I’d like you to assume someone who’s done that work, and I want you to assume a

person who did complete the 11th grade, who was born in 1964. Assume a person

who cannot lift, carry, push, or pull more than 10 pounds frequently, no more than

20 pounds occasionally. And the person should be able to use both hands to handle

those amounts. Pushing and pulling should be limited to no more than occasionally

during the workday. Assume a person who’s limited to standing and walking four

to six hours in an eight-hour workday. Assume that the person’s able to sit for up to

eight hours in an eight-hour workday with typical breaks and a lunch period. The

person should not have to climb ladders, ropes, or scaffolds and should not need to

kneel, crouch, or crawl. Assume that the person’s limited to occasional stairclimbing, no more than occasional stooping. Handling, fingering, feeling are limited

to frequent. And there should be no tight gripping or squeezing. The person should

not need to reach overhead to do the work. And with the right arm, which is the

dominant arm, there’s a limitation to frequent reaching below shoulder level. The

person should not have to walk on uneven terrain, should not be exposed to hazards

or to vibration. The person should not have to operate foot or leg controls or drive

as a work duty. There should not be concentrated exposure to fumes, dust, or gases.

Assume that the person’s limited to doing simple routine work. 
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A.R. at 396–97. The vocational expert concluded that such a hypothetical person could not return

to work as a brick layer, but would be qualified for numerous other jobs available in the national

economy. Id. The available jobs included security guard, cashier, receptionist, file clerk, and office

clerk. Id. 

The ALJ concluded that Plaintiff’s impairments “impose significant limitations on his ability

to work,” and that Plaintiff “has mild impairment of social functioning, and moderately impaired

concentration, persistence, [or] pace.” R&R at 3–4. The ALJ concluded that Plaintiff could not

return to his former job as a bricklayer, but that there were numerous other jobs in the national

economy that he could perform. Accordingly, the ALJ concluded Plaintiff was not disabled. Judge

Hluchaniuk found that the ALJ’s conclusion was supported by substantial evidence and

recommended that the Court dismiss Plaintiff’s complaint. 

III

Plaintiff raises a single objection to the Judge Hluchaniuk’s report and recommendation.

Plaintiff contends that Judge Hluchaniuk incorrectly suggested that the hypothetical question posed

to the vocational expert adequately accounted for Plaintiff’s moderate limitations in concentration,

persistence, or pace. Pl.’s Obj. at 2. Judge Hluchaniuk addressed the same question in his report:

Based on the foregoing medical evidence, the substantial evidence in the

records supports the ALJ’s conclusions regarding the limited nature of plaintiff’s

mental impairments. However, plaintiff argues that the ALJ’s finding that plaintiff

was “moderately” limited as to concentration, persistence, and pace is not accounted

for in the hypothetical question posed to the vocational expert and relied on by the

ALJ in reaching the ultimate conclusion that there were sufficient jobs in the

economy that plaintiff could perform. The Commissioner asserts that the limitation

in the hypothetical that plaintiff could only perform simple, routine, and unskilled

work. (Tr. 77-78). According to SSR 85-15, the mental demands of unskilled work

are “the abilities (on a sustained basis) to understand, carry out, and remember

simpl[e] instructions; to respond appropriately to supervision, coworkers, and usual

work situations; and to deal with changes in a routine work setting.” Decisions in
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this district reflect the conclusion that a moderate impairment in concentration,

persistence, and pace does not necessarily preclude simple, routine, unskilled work.

See e.g., Latarte v. Comm’r of Soc. Sec., 2009 WL 1044836, *3 (E.D. Mich. 2009);

Street v. Comm’r of Soc. Sec., 390 F.Supp.2d 630, 638 (E.D. Mich. 2005), citing,

Chafin v. Comm’r of Soc. Sec., 2005 WL 994577, **2, 4 (E.D. Mich. 2005) (ALJ’s

hypothetical question addressed plaintiff’s mental deficiencies sufficiently by

limiting him to “simple, unskilled work.” Further, although plaintiff had “moderate”

deficiencies of concentration, persistence, or pace he could nonetheless perform the

work of an assembler, packager, inspector, and security monitor); Lyons v. Comm’r

of Soc. Sec., 351 F.Supp.2d 659, 662 (E.D. Mich. 2004) (“ALJ took into account

[the] [p]laintiff’s depression ... by including limitations within the hypothetical ...

limiting the possible jobs to simple, unskilled, and routine work”). Similarly, the

undersigned concludes that the ALJ’s hypothetical question properly took into

account plaintiff’s mental impairments as found by the ALJ to be credible. Thus,

there is no basis for overturning the ALJ’s decision, which the undersigned finds is

supported by substantial evidence. 

R&R at 21–22.

Plaintiff emphasizes that other Courts in the Eastern District of Michigan have concluded

that moderate limitations in concentration, persistence, or pace may not be adequately accounted for

by a hypothetical question that limits the plaintiff to simple unskilled work. See Edwards v.

Barnhart, 383 F. Supp. 2d 920, 930-931 (E.D. Mich. 2005); Brown v. Comm’r of Soc. Sec., 672 F.

Supp. 2d 794, 797 (E.D. Mich. 2009). There may be cases where such moderate limitations preclude

the performance of even some simple, unskilled tasks. Plaintiff does not, however, explain why the

facts of this particular case require a more detailed hypothetical question to adequately account for

his own moderate limitations in concentration, persistence, or pace. As the Commissioner

emphasizes in his response, Judge Hluchaniuk “provided a detailed review of the evidence

supporting his conclusion that the ALJ was justified in finding Plaintiff could do such work. Mag.

R&R 18–21. Plaintiff does not challenge any of that analysis.” Comm’r’s Resp. at 2. Plaintiff

never explains how the facts of his case are more like the facts of Brown and Barnhart than other

cases from this District that have reached the opposite conclusion. In Latare v. Commissioner of
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Social Security, No. 08-13022, 2009 WL 1044836, at *3 (E.D. Mich. April 20, 2009), a court in this

District concluded that the ALJ adequately considered Plaintiff’s “significant” mental impairments

by limiting her to simple unskilled work. See also Infantado v. Astrue, 263 F. App’x 469, 477 (6th

Cir. 2008) (concluding that the ALJ’s hypothetical question, while it “could have been more

complete,” adequately accounted for the plaintiff’s moderate mental impairments). 

Judge Hluchaniuk correctly concluded that the ALJ’s decision was supported by substantial

evidence. The hypothetical question posed to the vocational expert adequately accounted for

Plaintiff’s mental impairments. First, Plaintiff’s objection ignores a particularly compelling piece

of evidence provided by the same state psychologist who diagnosed Plaintiff’s mental limitations

in the first place. The psychologist diagnosed moderate mental impairments, but also concluded that

Plaintiff’s mental limitations would not prohibit him from performing simple, unskilled work. A.R.

at 284. Moreover, the ALJ supplemented her hypothetical question by inquiring how often Plaintiff

could be absent from the available jobs and whether the jobs would require him to work consistent

eight-hour shifts. A.R. at 399. These specific questions account for Plaintiff’s limitations as to

concentration, punctuality, and attendance. Similarly, the ALJ inquired into whether the available

jobs would require contact with the public, which accounts for Plaintiff’s mild social limitations.

A.R. 399. Plaintiff’s mental limitations were mild or moderate and the ALJ adequately accounted

for them. 

IV

Plaintiff is clearly limited in the available work he can perform by physical and mental

limitations. However, the ALJ accurately accounted for those limitations when she posed a series

of hypothetical questions to the vocational expert and learned there were still a substantial number
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of jobs Plaintiff could perform. Accordingly, the ALJ’s determination that Plaintiff is not disabled

and retains the RFC to perform simple unskilled work is supported by “substantial evidence.” 42

U.S.C. § 405(g). 

Accordingly, it is ORDERED that Plaintiff’s objection to Judge Hluchaniuk’s report and

recommendation [Dkt. # 19] is OVERRULED. 

It is further ORDERED that the Judge Hluchaniuk’s report and recommendation [Dkt. # 18]

is ADOPTED. 

It is further ORDERED that Plaintiff’s motion for summary judgment [Dkt. # 9] is

DENIED. 

It is further ORDERED that Defendant’s motion for summary judgment [Dkt. # 14] is

GRANTED. 

It is further ORDERED that the findings of the Commissioner are AFFIRMED and

Plaintiff’s complaint [Dkt. # 1] is DISMISSED WITH PREJUDICE. 

s/Thomas L. Ludington 

THOMAS L. LUDINGTON

United States District Judge

Dated: September 30, 2010

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on September 30, 2010.

s/Tracy A. Jacobs 

TRACY A. JACOBS