1

The ALJ, noting that a previous SSI application was denied on April 27, 2004,

found that the previous decision was “conclusive as to any disability up to that date” (Tr.

13). 

-1-

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

LINDA L. CHEEKS,

Plaintiff Civil Action No. 08-15183

v. HON. JOHN FEIKENS

 U.S. District Judge

HON. R. STEVEN WHALEN

COMMISSIONER OF SOCIAL U.S. Magistrate Judge

SECURITY,

Defendant.

__________________________________/

REPORT AND RECOMMENDATION

Plaintiff Linda L. Cheeks brings this action pursuant to 42 U.S.C. §405(g),

challenging a final decision of Defendant Commissioner denying her application for 

Supplemental Security Income (“SSI”) under the Social Security Act. Both parties have filed

summary judgment motions which have been referred for a Report and Recommendation

pursuant to 28 U.S.C. § 636(b)(1)(B). I recommend that Defendant’s Motion for Summary

Judgment be DENIED, and that Plaintiff’s Motion for Summary Judgment be GRANTED,

remanding the case for further proceedings consistent with this Report. 

PROCEDURAL HISTORY

On May 9, 2005, Plaintiff filed an application for SSI benefits, alleging an onset of

disability date of June 30, 19811 (Tr. 60-63). After the initial denial of the claim, Plaintiff

filed a timely request for an administrative hearing, held on March 21, 2007 in Flint,

Michigan before Administrative Law Judge (“ALJ”) John L. Christensen (Tr. 286). Plaintiff,

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2

However, because Plaintiff has not worked in the past 15 years, these positions do

not qualify as “past relevant work” (Tr. 117). 

-2-

represented by attorney Lewis Seward, testified, as did Vocational Expert (“VE”) Melody

Henry (Tr. 291-303, 304-308). On May 8, 2007, ALJ Christensen found that Plaintiff was

capable of a significant range of unskilled work (Tr. 20). On November 21, 2008, the

Appeals Council denied review (Tr. 3-5). Plaintiff filed for judicial review of the final

decision on December 17, 2008. 

BACKGROUND FACTS

Plaintiff, born May 18, 1958, was a few days shy of her 49th birthday when the ALJ

issued his decision (Tr. 20, 60). She quit school in 10th grade, working previously as a

laborer and housekeeper2 (Tr. 81). Plaintiff’s application alleges disability as a result of

Crohn’s Disease and arthritis (Tr. 70). 

A. Plaintiff’s Testimony

 Plaintiff testified that she lived in Flint Michigan with one adult and one teenaged

daughter (Tr. 291-292). Plaintiff, currently single, reported that her weight fluctuated

between 170 and 191 pounds as a result of Crohn’s Disease and diarrhea (Tr. 293). She

noted that she continued to use a colostomy bag (Tr. 293). Plaintiff, left-handed, reported

that she had never driven and did not possess a driver’s license, adding that her adult

daughter had driven her to the hearing (Tr. 293-294). 

Plaintiff testified that she dropped out of school in 10th grade, alleging that she read

only “a little bit” and wrote poorly (Tr. 294-295). She stated that arthritis had prevented her

from working for over 15 years (Tr. 295). She alleged that depression affected her ability

to work, noting that she took medication for both arthritis and depression (Tr. 296). She

denied medication side effects except for “sharp chest pains” from codeine (Tr. 296). 

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In response to questioning by her attorney, Plaintiff alleged constant back pain, adding

that she currently took steroids (Tr. 297). She indicated that she had been advised by her

physician to exercise to relieve ankle and knee pain, noting that she was currently scheduled

to be examined by a rheumatologist (Tr. 297). Plaintiff reported that she had been using a

colostomy bag for ten years (Tr. 297). She alleged that the bag “leak[ed] a lot” and “ma[d]e

funny noises” (Tr. 298). She characterized her situation as “embarrassing,” noting that it

required her to “stay close to home” (Tr. 298). Plaintiff indicated that she was required to

irrigate the bag at least twice a day (Tr. 298).

Plaintiff testified that she also experienced depression to the point of suicidal ideation

(Tr. 299). She stated that “an outstanding consumer bill” that she had been unable to pay 

required her to move to the basement of her adult daughter’s house (Tr. 300). She alleged

that back and foot pain obliged her to recline for 30 minutes at a time during her waking

hours (Tr. 300). Plaintiff reported that her depression was treated with medication and biweekly therapy sessions (Tr. 300). She estimated that she could walk for only one block

before her feet started “burning and swelling” (Tr. 301). Plaintiff alleged that she was able

to sit for 15 minutes and stand for 10 before requiring a change of position (Tr. 301-302). 

She added that arthritis limited her manipulative and reaching abilities (Tr. 302-303). She

alleged that she was unable to lift more than seven pounds and that she climbed stairs with

difficulty due to knee problems (Tr. 302). She denied cooking or performing household

chores (Tr. 303). 

B. Medical Evidence

1. Treating Sources

In December, 1993, Plaintiff sought emergency treatment for symptoms of Crohn’s

disease and severe anemia (Tr. 118-121, 130-131). Plaintiff was treated with hydrocortisone

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3

A GAF score of 31-40 indicates "[s]ome impairment in reality testing or

communication ... or major impairment in several areas, such as work, school, family

relations, judgment, thinking or mood." Diagnostic and Statistical Manual of Mental

Disorders--Text Revision at 34 (DSM-IV-TR ), 34 (4th ed.2000) 

-4-

with recommendations to begin prednisone therapy and adhere to a lactose free diet (Tr.

118). She was released in stable condition (Tr. 118-119). 

December, 2002 treating notes indicate that J. Tull, M.D. filled out forms on behalf

of an earlier application for benefits (Tr. 175). His treating notes indicate that he believed

that Plaintiff could perform “a desk job” (Tr. 175). In February, 2003, Plaintiff complained

of back pain and difficulty keeping her colostomy bag in place (Tr. 174). The following

month, T. Toshi, M.D. prescribed Elavil in response to Plaintiff’s reports of depression (Tr.

172). In June, 2003, S. Harrison, D.O., noted that Plaintiff now reported bilateral foot pain

(Tr. 161). In October, 2003, Plaintiff noted that epidural injections did not relieve back pain

(Tr. 158). December, 2003 treating notes by N. Espandiari, M.D. state that a recent EMG

of the lower extremities was negative (Tr. 154). Imaging studies of the chest were likewise

negative for abnormalities (Tr. 176). 

In March, 2004, Plaintiff reported that prednisone failed to ease her back pain (Tr.

153). In October, 2004, a psychological intake assessment indicated a GAF of 403

 (Tr. 261).

Plaintiff was referred to a psychiatrist for treatment of depression and socialization (Tr. 261).

Assessment notes indicate that Plaintiff experienced social withdrawal and depression after

receiving a permanent colostomy three years earlier (Tr. 260). Plaintiff was deemed “below

average” intellectually with normal memory and thought processes (Tr. 259). 

In January, 2005, Plaintiff, now complaining of “generalized joint pains,” remarked

that only Vicodin helped her pain (Tr. 147). In March, 2005, Plaintiff, again reporting

generalized pain, was encouraged to keep an appointment with a rheumatologist (Tr. 146).

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4

A GAF score of 41-50 indicates "[s]erious symptoms ... [or] serious impairment in

social, occupational, or school functioning," such as inability to keep a job. American

Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders at 34

(DSM-IV-TR ) (4th ed.2000). 

5

, A GAF score of 51-60 indicates moderate symptoms (occasional panic attacks)

or moderate difficulty in social, occupational, or school functioning. American

Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders--Text

Revision at 34 (DSM-IV-TR ) (4th ed.2000).

-5-

The same month, Debra Simmons, M.SW., opined that Plaintiff was unable to work due to

depression (Tr. 144). In October, 2005, an upper GI endoscopy indicated the presence of a

hiatal hernia (Tr. 219). Plaintiff was again encouraged to follow up with a rheumatologist

(Tr. 220). In December, 2005, psychological treating notes indicate that Plaintiff had moved

to an apartment and was up to date with her bills (Tr. 243). 

In November, 2006, Plaintiff sought mental health treatment for depression (Tr. 232).

She presented with average intellect with a depressed effect and poor self esteem (Tr. 230).

She was assigned a GAF of 454 (Tr. 231). She denied recent drug or alcohol use or legal

problems (Tr. 227, 229). In February, 2007, Plaintiff, reporting “less depression,” was

assigned a GAF of 48 (Tr. 223). April, 2007 psychiatric evaluation notes state that Plaintiff

was neat and cooperative with an appropriate affect (Tr. 237). Plaintiff was assigned a GAF

of 60 (Tr. 238).5

 The same month, William Foy, L.M.S.W., completed a “Mental Impairment

Questionnaire” on Plaintiff’s behalf, finding that she experienced poor memory, sleep and

mood disturbances, and social withdrawal, due to depression and the colostomy (Tr. 262).

Foy opined that Plaintiff “would not be able to show up for work on a reliable basis,” but that

“[i]f she stabilizes her other stressors” she would be “able to handle a part-time job” (Tr.

264). He found further that Plaintiff experienced marked restrictions in daily living, social

functioning, staying within a schedule and completing a workweek without psychologically

based interruptions (Tr. 265-266). He found that she also experienced moderate

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concentrational deficiencies (Tr. 265). Foy assigned Plaintiff a GAF of 45 (Tr. 262). 

 2. Non-Treating Sources

In June, 2005 Marianne Georgen, Psy.D conducted a psychological examination of

Plaintiff on behalf of the SSA (Tr. 183-186). Plaintiff reported that she had stopped working

2003 as a result of back problems (Tr. 183). Plaintiff claimed suicidal ideation, irritability,

and fatigue (Tr. 183). She exhibited fair hygiene and a “slumped” posture (Tr. 184).

Plaintiff was pessimistic about the future (Tr. 184). Dr. Georgen noted that testing showed

that Plaintiff exaggerated her symptoms (Tr. 184). Plaintiff was assigned a GAF of 60 with

a fair prognosis (Tr. 185). 

Also in June, 2005, Gregory F. Hackel, D.O. performed a physical examination of

Plaintiff on behalf of the SSA (Tr. 187-190). Plaintiff reiterated that she had worked up until

two years ago (Tr. 187). Noting a history of a colostomy and ileostomy as a result of

Crohn’s disease, Dr. Hackel noted that Plaintiff currently did not take medication for the

condition (Tr. 187). Plaintiff exhibited normal grip strength and dexterity, but moderate

difficulty getting on and off the examination table, heel and toe walking, and squatting (Tr.

188). Plaintiff denied the need for a cane or other ambulatory device (Tr. 190). 

A Physical Residual Functional Capacity Assessment performed the following month

determined that Plaintiff could lift 20 pounds occasionally and 10 pounds frequently; walk,

stand, or sit for about six hours in an eight-hour workday; and push and pull without

limitation (Tr. 211). Plaintiff was restricted to occasional climbing, stooping, kneeling,

crouching, and crawling and frequent (as opposed to constant) balancing (Tr. 212). The

Assessment found the absence of manipulative, visual, or communicative limitations, but

found that Plaintiff should avoid prolonged exposure to hazards such as machinery or heights

(Tr. 213-214). The Assessment concluded by noting that Plaintiff’s allegations of disability

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were “[n]ot fully credible” (Tr. 215). 

Also in July, 2005, a Psychiatric Review Technique performed on behalf of the SSA

determined that Plaintiff experienced an affective disorder (Tr. 191, 194). Under the “‘B’

Criteria of Listings,” Plaintiff’s daily living restrictions were deemed mild, but social

functioning and the ability to maintain “concentration, persistence, and pace” were deemed

moderate (Tr. 201). The same day, a Mental Residual Functional Capacity Assessment

found that her ability to understand, remember, and carry out detailed instructions; 

“maintain attention and concentration for extended periods;” accept instruction and criticism;

maintain socially appropriate behavior; and “respond appropriately” to workplace changes

were moderately limited (Tr. 205-206). The Assessment, showing the absence of other

significant limitations, concluded that Plaintiff was capable of performing unskilled work

(Tr. 207). 

3. Material Submitted After the ALJ’s May 8, 2007 Decision

January, 2007 imaging studies showed mild degenerative arthritis of the hip joints (Tr.

282). In April, 2007, Plaintiff was treated for a bladder infection (Tr. 278). In July, 2007

Plaintiff receive a refill of Darvocet (Tr. 277). Imaging studies from May, June, and August,

2007 were unremarkable (Tr. 281). In September, 2007, Plaintiff reported ongoing back and

joint pain (Tr. 276). Plaintiff received a refill of Darvocet (Tr. 276). October, 2007 imaging

results of the left kidney showed a mass (Tr. 281). The same month, Plaintiff complained

of level “10" pain on a scale of 1 to 10 (Tr. 276). In November, 2007, she alleged that

diffuse pain in most joints created activity restrictions (Tr. 275). Plaintiff demonstrated a

restricted range of motion in all directions, complaining of right hip pain (Tr. 275). Her

treating source suggested avacular necrosis of the hip, possible rheumatoid arthritis, or

arthropathy type II (Tr. 275). Plaintiff was advised to follow up with a rheumatologist and

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6

20 C.F.R. § 404.1567(a-d) defines sedentary work as “lifting no more than 10 pounds at a

time and occasionally lifting or carrying articles like docket files, ledgers, and small tools;

light work as “lifting no more than 20 pounds at a time with frequent lifting or carrying of

objects weighing up to 10 pounds;” medium work as “lifting no more than 50 pounds at a

time with frequent lifting or carrying of objects weighing up to 25 pounds;” and that

exertionally heavy work “involves lifting no more than 100 pounds at a time with frequent

lifting or carrying of objects weighing up to 50 pounds. 

-8-

was again prescribed Darvocet (Tr. 275). 

In December, 2007, Plaintiff complained of level “9" back and right hip pain (Tr.

274). Plaintiff alleged right hip/groin pain radiating into her upper leg, adding that she

experienced right leg numbness and tingling (Tr. 274). Now using a cane, Plaintiff noted

that she also experienced left leg pain, numbness, and tingling (Tr. 274). She demonstrated

4/5 power bilaterally in all extremities, in particular, showing limitations of the right leg (Tr.

274). Reflexes were 2+ bilateral in all extremities with straight leg raising positive (Tr. 274).

Plaintiff also complained of toe and foot pain (Tr. 274). Plaintiff was urged to take Ultram

regularly, limit her use of Darvocet to pain flare-ups, and exercise (Tr. 274). 

 C. Vocational Expert Testimony

VE Melody Henry noted that Plaintiff, not yet 50, was a “younger” individual with

a limited education (Tr. 305). The ALJ posed the following question to the VE, taking into

account Plaintiff’s age, education, and lack of past relevant work: 

“[The] individual has the following residual functional capacity. 6

 Can lift and

carry, push and pull, ten pounds frequently, 20 pounds occasionally; can stand,

walk six hours out of an eight-hour day, eight-hour workday that should be; can

sit at least six hours per eight-hour workday; no kneeling, crouching or

crawling; only occasional stooping; no use of either lower extremity for

pushing and pulling including the use of foot controls; can do simple, routine

tasks only in a low stress environment. By that I mean minimal changes in the

workplace setting, and no more than occasional contact with the general public.

Given these limitations, is there work an individual could perform, and if so,

please tell me what that work would be along with the occupational title, and

the number of jobs available in the region. By region I mean the [S]tate of

Michigan?” 

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(Tr. 306). The VE stated that given the above limitations, the individual could perform the

work of a hand packer (5,970 jobs in the regional economy), production inspector (2,890),

and assembler (40,295) (Tr. 306). The ALJ then added the following hypothetical

limitations:

“as a result of pain, depression secondary to pain, fatigue secondary to pain,

and medication, that individual cannot sustain sufficient concentration,

persistence and pace to do even simple, routine tasks on a regular, continuing

basis. By that I mean eight hours a day, five days a week, 40 hours a week.

Given those limitations, is there work an individual could perform, and if so,

please tell me what work would be along with the information that I requested

in my previous hypothetical” 

(Tr. 306). The VE replied that given the additional limitations, all work would be precluded

(Tr. 307). 

D. The ALJ’s Decision

Citing Plaintiff’s medical records and testimony, ALJ Christensen found that although

Plaintiff experienced the severe impairments of Crohn’s disease, arthritis, and depression,

the conditions did not meet or medically equal one of the impairments found in Part 404

Appendix 1 Subpart P, Appendix No. 1 (Tr. 15-16). The ALJ found that Plaintiff retained

the following Residual Functional Capacity (“RFC”):

“to lift, carry, push and pull 10 pounds frequently and 20 pounds occasionally,

standing and walking 6 hours during an 8-hour workday, sitting at least 6

hours during an 8-hour workday with no kneeling, crouching, and crawling,

with only occasional stooping with no use of either lower extremity for

pushing or pulling or use of foot controls, performing simple routine tasks in

a low stress environment (by that I mean minimal changes in workplace

settings) and no more tha[n] occasional contact with the general public”

(Tr. 17).

 Consistent with VE’s job findings, the ALJ determined that Plaintiff could

perform the work of an assembler, hand packer, and inspector (Tr. 19). In support of

the non-disability finding, he found that Plaintiff’s “statements concerning the

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intensity, persistence and limiting effects” of her conditions were “not entirely

credible” (Tr. 18). He noted that Plaintiff “sought only occasional treatment for her

alleged physical problems,” finding that “[t]here have been few exacerbations of her

Crohn’s disease” (Tr. 18). In addition, the ALJ found that Plaintiff’s “treatment

record for ‘depression’ [was] also spotty” (Tr. 18). 

 STANDARD OF REVIEW

 The district court reviews the final decision of the Commissioner to determine

whether it is supported by substantial evidence. 42 U.S.C. §405(g); Sherrill v.

Secretary of Health and Human Services, 757 F.2d 803, 804 (6th Cir. 1985).

Substantial evidence is more than a scintilla but less that a preponderance. It is “such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d

842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, S. Ct. 206,

83 L.Ed.126 (1938)). The standard of review is deferential and “presupposes that

there is a ‘zone of choice’ within which decision makers can go either way, without

interference from the courts.” Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)(en

banc). In determining whether the evidence is substantial, the court must “take into

account whatever in the record fairly detracts from its weight.” Wages v. Secretary

of Health & Human Services, 755 F.2d 495, 497 (6th Cir. 1985). The court must

examine the administrative record as a whole, and may look to any evidence in the

record, regardless of whether it has been cited by the ALJ. Walker v. Secretary of

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

FRAMEWORK FOR DISABILITY DETERMINATIONS

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Disability is defined in the Social Security Act as the “inability to engage in

any substantial gainful activity by reason of any medically determinable physical or

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

be expected to last for a continuous period of not less than 12 months.” 42 U.S.C.

§423(d)(1)(A). In evaluating whether a claimant is disabled, the Commissioner is to

consider, in sequence, whether the claimant: 1) worked during the alleged period of

disability; 2) has a severe impairment; 3) has an impairment that meets or equals the

requirements of an impairment listed in the regulations; 4) can return to past relevant

work; and 5) if not, whether he or she can perform other work in the national

economy. 20 C.F.R. §416.920(a). The Plaintiff has the burden of proof as steps one

through four, but the burden shifts to the Commissioner at step five to demonstrate

that, “notwithstanding the claimant's impairment, he retains the residual functional

capacity to perform specific jobs existing in the national economy.” Richardson v.

Secretary of Health & Human Services, 735 F.2d 962, 964 (6th Cir.1984).

ANALYSIS

 Vocational Expert Testimony

Plaintiff contends that remand is appropriate because the hypothetical question

posed to the VE did not include workplace limitations brought on by her need to

irrigate her ileostomy multiple times each day. Plaintiff’s Brief at 3-5, Docket #8. 

On a related note, she argues that the hypothetical question failed to account for her

moderate limitations in concentration, persistence, and pace which the ALJ adopted

from the Psychiatric Review Technique performed in July, 2005 (Tr. 18, 201). Id. at

5-6 (citing Varley v. Secretary of Health and Human Services, 820 F.2d 777 (6th Cir.

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7

While treating notes from February, 2003 suggest that Plaintiff experienced

trouble keeping the colostomy bag in place, consideration of records predating the prior

administrative decision (April 27, 2004) cannot be considered in the present case (Tr. 13,

174). Further, even if relevant to the present application, the February, 2003 and June,

2005 statements do not suggest that problems with the colostomy bag were ongoing. 

-12-

1987)). She contends that the hypothetical question’s non-exertional limitations of

“simple routine tasks,” and “low stress environment,” did not accurately portray her

level of concentrational and pacing impairment and thus, the VE’s job findings,

(adopted by the ALJ) cannot constitute substantial evidence. Id. 

 Varley v. Secretary of Health & Human Services, 820 F.2d 777, 779 (6th Cir.

1987), sets forth the Sixth Circuit’s requirements for a hypothetical question.

“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”

(internal citations omitted). Id. at 779; See also Webb v. Commissioner of Social Sec.

368 F.3d 629, 632 (6th Cir. 2004). The hypothetical question must be supported by

record evidence. However, “the ALJ is not obliged to incorporate unsubstantiated

complaints into his hypotheticals.” Stanley v. Secretary of Health and Human

Services, 39 F.3d 115,118-119 (6th Cir.1994)(citing Hardaway v. Secretary of Health

& Human Servs., 823 F.2d 922, 927-28 (6th Cir.1987)). 

Substantial evidence supports the ALJ’s omission of ileostomy care from the

hypothetical limitations. With the exception of Plaintiff’s June, 2005 statement to

a consultive examiner that the colostomy created “difficulty at work,” treatment

records do not contain indications that care of the ileostomy would create workplace

interruptions7

 (Tr. 187). In fact, the June, 2005 consultive examiner found that while

Plaintiff “may have episodes requiring further treatment for Crohn’s in the future . .

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. no pain [was] noted” and the ostomy was “stable” (Tr. 189). 

 Plaintiff submits that “[t]he simple fact remains that a colostomy bag requires

regular irrigation and is prone to unexpected leakage.” Reply at 2, Docket #14.

However, the need for regular irrigation, by itself, does not establish disability or

workplace limitations. See Cline v. Commissioner of Social Sec., 96 F.3d 146, 150

(6th Cir. 1996)(“colostomy patients normally adapt[] to their condition and manage[]

to live very comfortably with a colostomy” (internal citations omitted)). While

Plaintiff alleged that she was required to irrigate the bag at unexpected intervals

multiple times each day, the ALJ permissibly found that the record did not support her

claim that she experienced these complications regularly (Tr. 18). 

 Plaintiff contends that the ALJ did not follow through with his Step Two

finding that she experienced Crohn’s disease by acknowledging the condition in the

hypothetical question. However, while it is true that the ALJ omitted Plaintiff’s

alleged need to irrigate the colostomy bag at unexpected times, the question included

restrictions (“no kneeling, crouching or crawling; only occasional stooping; no use of

either lower extremity for pushing and pulling including the use of foot controls”)

consistent with the probable exertional and postural limitations required of a

colostomy patient (Tr. 306). As such, Plaintiff’s physical limitations are well

accounted for in the hypothetical question. 

Plaintiff’s argument that the hypothetical question’s limitations did not comport with

ALJ’s ultimate finding that she experienced moderate deficiencies of concentration,

persistence, and pace is a closer question. Generally, a failure to account for pacing

deficiencies constitutes reversible error. Bankston v. Commissioner, 127 F. Supp. 2d 820,

826 (E.D. Mich. 2000)(Zatkoff, J.). Under currently used PRT terminology, “moderate”

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8

 While the first hypothetical question contains no pacing limitations and the

second suggests severe limitations, neither addresses the moderate deficiencies in pacing

found by the ALJ>

-14-

deficiencies suggest substantial limitations which should be acknowledged in the

hypothetical question. The question here is whether “simple routine tasks” and “a low stress

environment,” along with the condition that she must work in a atmosphere with “minimal

changes,” may be read cumulatively to encompass Plaintiff’s non-exertional limitations (Tr.

306). 

The fact that a job is simple and routine has nothing to do with whether or to what

degree a worker’s moderate deficiencies in concentration will affect the timely completion

of that job, and indeed, courts have found such descriptions insufficient to address

deficiencies in pace. See, e.g., Newton v. Chater, 92 F.3d 688, 695 (8th Cir. 1996); McGuire

v. Apfel, 1999 WL 426035, 15 (D. Or. 1999). Nor does the qualifier “low stress” effectively

“capture the concrete consequences” of Plaintiff’s limitations in pace. Roe v. Chater, 92 F.3d

672, 676-77 (8th Cir. 1996). Stress does not necessarily correlate with pace and the ability

to complete tasks in a timely manner over an eight-hour workday. 

In the present case, the hypothetical question failed to adequately encompass

Plaintiff’s moderate pacing deficiencies as found in the administrative decision (Tr. 18).8

Mental status examiners in both October, 2004 and November, 2006 observed that Plaintiff

exhibited some degree of “motor retardation” (Tr. 230, 259). Consistent with the treating

observations, Dr. Goergen noted “slow psychomotor” skills at Plaintiff’s June, 2005

consultive psychological examination performed on behalf of the SSA (Tr. 184). To be sure,

the ALJ’s limitations of “simple routine tasks” or “a low stress environment,” along with the

condition that she must work in an atmosphere with “minimal changes,” are not intrinsically

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9

The DOT does not include the position of “production inspector.” An exhaustive review of

the DOT’s many “inspector” listings indicates that the descriptions of the unskilled positions

are either quota based or performed in tandem with production work. 

-15-

inadequate to account for moderate deficiencies of concentration, persistence and pace. 

However, in the present case, both treating and consultive opinion overwhelmingly support

the conclusion that Plaintiff’s psychomotor impairments, i.e., pacing limitations, warranted

mention in the question to the VE. 

The ALJ’s failure to address her pacing limitations is particularly critical given the

fact that the VE’s job findings (hand packer, production inspector, assembler) consist

exclusively of quota-driven positions9

 (Tr. 306). Plaintiff’s well documented psychomotor

limitations would appear to interfere with the pacing requirements of these jobs. Moreover,

while Smith v. Halter, 307 F.3d 377 (6th Cir. 2001), is often cited for the proposition that the

ALJ need not use talismatic language to avoid remand so long as the hypothetical limitations

address the claimant’s relative limitations, I note that in Smith, the ALJ’s hypothetical

limitations included a restriction against quotas in addition to limiting the stress level and

complexity of the work. 307 F.3d at 379. Because the hypothetical question inadequately

addresses Plaintiff’s limitations, the case should be remanded for further proceedings

consistent with this analysis. Faucher v. Secretary of Health and Human Services, 17 F.3d

171, 176 (6th Cir. 1994).

CONCLUSION

For the reasons stated above, I recommend that Defendant’s Motion for Summary

Judgment be DENIED, and Plaintiff’s Motion for Summary Judgment GRANTED for

further proceedings consistent with this Report. 

Any objections to this Report and Recommendation must be filed within ten (10)

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days of service of a copy hereof as provided for in 28 U.S.C. §636(b)(1) and E.D. Mich.

LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right

of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard

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

(6th Cir. 1981). Filing of objections which 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. Secretary of HHS, 931 F.2d 390, 401 (6th Cir. 1991); Smith v.

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

E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate

Judge.

Within ten (10) days of service of any objecting party’s timely filed objections, the

opposing party may file a response. The response shall be not more than twenty (20)

pages in length unless by motion and order such page limit is extended by the court. The

response shall address specifically, and in the same order raised, each issue contained

within the objections.

s/R. Steven Whalen 

UNITED STATES MAGISTRATE JUDGE

Dated: November 30, 2009

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing order was served on the attorneys and/or

parties of record by electronic means or U.S. Mail on November 30, 2009.

s/Susan Jefferson 

Case Manager

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