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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

KIMBERLY HALL,

Plaintiff,

Case No. 09-13101

-vs- HON. AVERN COHN

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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MEMORANDUM AND ORDER

GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

I. Introduction

This is a Social Security case. Plaintiff Kimberly Hall (Hall) appeals from the final

decision of the Commissioner of Social Security (Commissioner) denying her application

for Social Security disability benefits. Hall claims disability since February 24, 2000, due

to neck and shoulder injury, depression, and bipolar disorder. 

The parties filed cross motions for summary judgment. The motions were

referred to a Magistrate Judge (MJ) for a report and recommendation (MJRR). The MJ

recommends that Hall’s motion for summary judgment be denied and that the

Commissioner’s motion for summary judgment be granted. Hall filed timely objections

to the MJRR. For reasons that follow, the Court adopts the MJRR.
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II. Background

A. Facts

The MJRR sets forth the facts, many of which are repeated here. Hall applied for

disability benefits on January 26, 2003, alleging a February 24, 2000, onset of disability

due to neck and shoulder injury, depression, and bipolar disorder. The Social Security

Administration (SSA) denied Hall’s claim on April 2, 2003. A hearing was held before an

Administrative Law Judge (ALJ) on May 13, 2005, at Hall’s request. The ALJ issued a

decision denying benefits, finding that Hall was not disabled under the Social Security

Act and concluding that Hall could perform a limited range of light work activity. 

On October 12, 2006, the Appeals Council (AC) remanded Hall’s case back to

the ALJ after the case file could not be located, determining that further evaluation was

needed. On June 8, 2007, a second hearing was held before the ALJ. On June 25,

2007, the ALJ again denied Hall’s claim, determining that Hall’s neck and shoulder pain,

carpal tunnel syndrome, fibromyalgia, and bipolar disorder were severe, but that she did

not did not have a disability under the SSA. The ALJ determined that considering Hall’s

age, education, work experience, and residual functional capacity (RFC) she could

perform a significant number of jobs in the national economy. The AC denied review.

Hall then brought this action for judicial review, arguing that the ALJ’s decision

was not supported by substantial evidence because 1) the ALJ failed to pose an

accurate hypothetical question to the vocational expert, and 2) the ALJ failed to properly

assess Hall’s credibility. The MJRR rejected Hall’s assertions and found that there was

substantial evidence in the record to support the ALJ’s decision.

B. MJRR Objections
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Hall now objects to the MJRR on the same grounds that the MJ erred by 1)

concluding that the ALJ’s hypothetical questions adequately described her limitations

and abilities, and 2) supporting the ALJ’s adverse credibility finding.

III. Standard of Review

Judicial review of a Social Security disability benefits application is limited to

determining whether the “the commissioner has failed to apply the correct legal

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

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

reviewing court may not resolve conflicts in the evidence or decide questions of

credibility. Brainard v. Sec’y of HHS, 889 F.2d 679, 681 (6th Cir. 1989). 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). It is “more

than a scintilla but less than a preponderance.” Consol. Edison Co. v. NLRB, 305 U.S.

197, 299 (1938). The substantiality of the evidence must be based upon the record

taken as a whole. Futernick v. Richardson, 484 F.2d 647, 649 (6th Cir. 1973). The

substantial evidence standard “presupposes that there is a zone of choice within which

the decisionmakers can go either way, without interference with the courts.” Mullen v.

Bowen, 800 F.2d 535, 545 (6th Cir. 1986). The portions of the MJRR that the claimant

finds objectionable are reviewed de novo. 28 U.S.C. § 636(b)(1)(C); Smith v. Detroit

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

IV. Discussion

As stated, Hall raises two objections to the MJRR. For the following reasons, the

Court finds the objections to be without merit. 
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A. Hypotheticals Included Accurate Concentration Limitations

First, Hall says that the MJ erred in concluding that the ALJ’s hypothetical

questions adequately described her limitations and abilities. Hall asserts that her

moderate concentrational deficiencies were not reflected in the hypothetical. Thus, Hall

says that it should not have been relied upon to support a disability finding. This

argument lacks merit.

An ALJ’s hypothetical “need only include the alleged limitations of the claimant

that the ALJ accepts as credible and that are supported by the evidence.” Delgado v.

Comm’r of Soc. Sec., 30 Fed. App’x 542, 548 (6th Cir. 2002); see also Casey v. Sec’y

of HHS, 987 F.2d 1230, 1235 (6th Cir. 1993) (“It is well established that an ALJ may

pose hypothetical questions to a vocational expert and is required to incorporate only

those limitations accepted as credible by the finder of fact.”). Further, an ALJ should

ask hypotheticals that include concentration difficulties accurately characterizing a

claimant’s impairments. Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001). 

Hall says that limiting the hypothetical to simple, unskilled worked was insufficient

to describe the her ability and limitations from psychiatric impairments. She cites

Bonham-Conn v. Commissioner to support this argument. No. 08-13248, 2009 WL

3211000, *7 (E.D. Mich. Sept. 29, 2009). Hall’s argument is not persuasive, however,

because Bonham held that an ALJ erred by failing to include any kind of concentration

limitation in the hypothetical. Id. Here, the ALJ asked two hypotheticals that included

concentration limitations. The first asked about jobs available to someone who could

not concentrate at a level necessary to fulfill an eight-hour workday, a greater

concentration limitation than that considered equal to Hall’s “moderate”
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unskilled/sedentary residual functional capacity (RFC) assessment. The VE responded

that no jobs would be available. The ALJ also asked, however, whether jobs would be

available to someone with an expected concentration level equivalent to Hall’s RFC,

which the VE said would be 20%. The VE stated that jobs would be available for

someone in that condition.

The ALJ relied on the latter hypothetical as a more accurate characterization of

claimant’s impairments because of supporting medical evidence showing that Hall had

mild concentration limitations and considering that no medical source found that Hall

had concentration limitations to the extent she alleged. Thus, together with Hall’s age,

education, work experience and RFC, the ALJ found that Hall was not disabled under

the SSA. The Court agrees that there was substantial evidence to support the ALJ’s

finding. 

B. Adverse Credibility Assessment Supported by Substantial Evidence

Next, Hall says that the ALJ’s adverse credibility finding is not supported by

substantial evidence. Particularly, Hall asserts that her daily activities are not

comparable to typical work activities. Thus, Hall says they should not be used to

support a finding that she is not disabled. 

An ALJ’s findings regarding a claimant’s credibility “are to be accorded great

weight and deference, particularly since an ALJ is charged with the duty of observing a

witness’s demeanor and credibility.” Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531

(6th Cir. 1997). Any credibility assessment made by an ALJ must be supported by

substantial evidence in the record. Id. However, “there is nothing patently erroneous in

the ALJs decision to rely on her own reasonable assessment of the record over the
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claimant's personal testimony.” White v. Comm’r of Soc. Sec., 572 F. 3d 272, 287 (6th

Cir. 2009). Finally, “[a]n ALJ may also consider household and social activities engaged

in by the claimant in evaluating the claimant’s assertion of pain or ailments.” Kidd v.

Comm’r of Soc. Sec., 283 Fed. App’x 336, 342 (6th Cir. 2008) (quoting Walters, 127

F.3d at 532). 

Here, the ALJ found that Hall suffered from severe impairments. However, the

ALJ also found that the claimant’s statements concerning the intensity, persistence, and

limiting effects of these symptoms were not credible. Particularly, the ALJ determined

that Hall’s daily lifestyle, which included driving, exercising, performing household

chores, and visiting with her boyfriend and family members, contradicted her reported

symptoms of being completely disabled. 

Hall says that her daily activities are not comparable to work activities and that

they should not be used to preclude a finding of disability. Hall relies on Rogers v.

Comm’r of Soc. Sec. as the most recent case in support of this proposition. 486 F.3d

234, 247 (6th Cir. 2007). However, Hall’s case is distinguishable from Rogers. In

Rogers, there was no objective evidence to support the ALJ’s credibility determination.

In other words, Rogers holds that credibility determinations may consider daily activities,

but that the determinations must also be supported by the record. This is consistent

with the more recent case of Kidd v. Comm’r of Soc. Sec., supra, where the Sixth Circuit

found that an ALJ’s adverse credibility decision relying on daily activities and medical

opinion evidence was supported by substantial evidence. 

Here, in addition to Hall’s daily activities, the ALJ considered medical opinion

evidence that Hall had mild concentration limitations. The ALJ also noted that no
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medical source found Hall to have concentration limitations to the extent that she

alleged. Because the ALJ also considered contradictory medical evidence on the

record when making her adverse credibility finding, it was appropriate for the ALJ to

consider daily activities in her credibility finding. 

Thus, the Court agrees that there is substantial evidence to support the ALJ’s

adverse credibility finding, especially in light of the deference given to ALJ’s related to

these determinations.

V. CONCLUSION

For the reasons stated above and in the MJRR, Hall’s motion for summary

judgment is DENIED and the Commissioner’s motion for summary judgment is

GRANTED. The case is DISMISSED.

SO ORDERED.

 S/Avern Cohn 

AVERN COHN

UNITED STATES DISTRICT JUDGE

Dated: September 13, 2010

I hereby certify that a copy of the foregoing document was mailed to the attorneys of

record on this date, September 13, 2010, by electronic and/or ordinary mail.

 S/Shawntel Jackson 

Relief Case Manager, (313) 234-5160