Smith v. Commissioner of Social Security

Filing 17

OPINION; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMES SMITH,
Plaintiff,

Case No. 1:14-cv-984

v.
HON. JANET T. NEFF
COMMISSIONER OF SOCIAL
SECURITY

Defendant,
/
OPINION
This is a social security action brought under 42 U.S.C. § 405(g) seeking judicial
review of a final decision of the Commissioner of the Social Security Administration
(Commissioner). Plaintiff James Smith seeks review of the Commissioner’s decision denying his
claim for disability insurance benefits (DIB) and supplemental security income (SSI) under Titles
II and XVI of the Social Security Act.
STANDARD OF REVIEW
The Court’s jurisdiction is confined to a review of the Commissioner’s decision and
of the record made in the administrative hearing process. See Willbanks v. Sec’y of Health and
Human Servs., 847 F.2d 301, 303 (6th Cir. 1998). The scope of judicial review in a social security
case is limited to determining whether the Commissioner applied the proper legal standards in
making her decision and whether there exists in the record substantial evidence supporting that
decision. See Brainard v. Sec’y of Health and Human Servs., 889 F.2d 679, 681 (6th Cir. 1989).
The Court may not conduct a de novo review of the case, resolve evidentiary conflicts, or decide

questions of credibility. See Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). It is the
Commissioner who is charged with finding the facts relevant to an application for disability benefits,
and her findings are conclusive provided they are supported by substantial evidence. See 42 U.S.C.
§ 405(g).
Substantial evidence is more than a scintilla, but less than a preponderance. See
Cohen v. Sec’y of Health and Human Servs., 964 F.2d 524, 528 (6th Cir. 1992) (citations omitted).
It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
See Richardson v. Perales, 402 U.S. 389, 401 (1971); Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir.
1993). In determining the substantiality of the evidence, the Court must consider the evidence on
the record as a whole and take into account whatever in the record fairly detracts from its weight.
See Richardson v. Sec’y of Health and Human Servs., 735 F.2d 962, 963 (6th Cir. 1984). As has
been widely recognized, the substantial evidence standard presupposes the existence of a zone
within which the decision maker can properly rule either way, without judicial interference. See
Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (citation omitted). This standard affords to the
administrative decision maker considerable latitude, and indicates that a decision supported by
substantial evidence will not be reversed simply because the evidence would have supported a
contrary decision. See Bogle, 998 F.2d at 347; Mullen, 800 F.2d at 545.
PROCEDURAL POSTURE
Plaintiff was 43 years of age on the date of the Administrative Law Judge’s (ALJ)
decision. (Tr. 29, 32). He completed high school and previously worked as a construction laborer,
material handler, and inspector. (Tr. 390–92). Plaintiff applied for benefits on June 6, 2011, alleging
that he had been disabled since December 17, 2010, due to lumbar problems, HIV, L4-L5 bulging

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disc, learning disability, reading problems, writing problems, bi-polar disorder, and ADHD. (Tr. 32,
116–19). Plaintiff’s application was denied on October 4, 2011, after which time he requested a
hearing before an ALJ. (Tr. 91–94). On December 4, 2012, Plaintiff appeared with his counsel
before ALJ James Prothro with testimony being offered by Plaintiff and a vocational expert (VE).
(Tr. 372–430). In a written decision dated September 13, 2013, the ALJ determined that Plaintiff
was not disabled. (Tr. 17–30). The Appeals Council declined to review the ALJ’s determination,
making it the Commissioner’s final decision in the matter. (Tr. 4–7). Plaintiff subsequently initiated
this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the ALJ’s decision.
ALJ’S DECISION
The social security regulations articulate a five-step sequential process for evaluating
disability. See 20 C.F.R. §§ 404.1520(a-f), 415.920(a-f).1 If the Commissioner can make a
dispositive finding at any point in the review, no further finding is required. See 20 C.F.R. §§
404.1520(a), 416.920(a).

1

The regulations also provide that if a claimant suffers from a

1.

An individual who is working and engaging in substantial gainful activity will not be found to be
“disabled” regardless of medical findings (20 C.F.R. § 404.1520(b));

2.

An individual who does not have a “severe impairment” will not be found “disabled” (20 C.F.R. §
404.1520(c));

3.

If an individual is not working and is suffering from a severe impairment which meets the
durations requirement and which “meets or equals” a listed impairment in Appendix 1 of Subpart P
of Regulations No. 4, a finding of “disabled” will be made without consideration of vocational
factors (20 C.F.R. § 404.1520(d));

4.

If an individual is capable of performing work he or she has done in the past, a finding of “not
disabled” must be made (20 C.F.R. § 404.1520(e));

5.

If an individual’s impairment is so severe as to preclude the performance of past work, other
factors including age, education, past work experience, and residual functional capacity must be
considered to determine if other work can be performed (20 C.F.R. § 404.1520(f)).

3

nonexertional impairment as well as an exertional impairment, both are considered in determining
the claimant’s residual functional capacity. See 20 C.F.R. §§ 404.1545, 416.945.
The Plaintiff has the burden of proving the existence and severity of limitations
caused by his impairments and that he is precluded from performing past relevant work through step
four. Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). At step five, it is the
Commissioner’s burden “to identify a significant number of jobs in the economy that accommodate
the claimant’s residual functional capacity (determined at step four) and vocational profile.” Id.
ALJ Prothro determined Plaintiff’s claim failed at the fifth step of the evaluation. The
ALJ initially found that Plaintiff had not engaged in substantial gainful activity since his alleged
onset date, December 17, 2010. (Tr. 22). At the second step in the sequential evaluation, the ALJ
determined Plaintiff had the following severe impairments: (1) lumbar spine degenerative disc
disease; (2) right leg pain and weakness; (3) HIV; (4) mood disorder; (5) anxiety disorder; and (6)
ADHD. (Tr. 22). At the third step, the ALJ found that Plaintiff did not have an impairment or
combination of impairments that met or equaled the requirements of the Listing of Impairments. (Tr.
23–24). At the fourth step, the ALJ found that Plaintiff retained the residual functional capacity
(RFC) based on all the impairments:
to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a)
except: he requires a sit/stand option in the workplace and is limited to
simple, repetitive tasks, and no fast-paced work or production quotas.
(Tr. 24). The ALJ next determined that Plaintiff was not able to perform any of his past relevant
work. (Tr. 29).
At the fifth step, the ALJ questioned the VE to determine whether a significant
number of jobs exist in the economy which plaintiff could perform given his limitations. See

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Richardson, 735 F.2d at 964. Using the VE testimony, the ALJ concluded that there existed
approximately 9,000 national jobs which an individual similar to Plaintiff could perform. This
included work as a surveillance system monitor. (Tr. 30). This represents a significant number of
jobs. See Hall v. Bowen, 837 F.2d 272, 274 (6th Cir. 1988); McCormick v. Sec'y of Health & Human
Servs., 861 F.2d 998, 1000 (6th Cir. 1988).
DISCUSSION
Plaintiff presents the following statement of error: “The ALJ’s Residual Functional
Capacity (RFC) and credibility determination does not comply with Social Security rules and
regulations.”(Dkt. #12, PageID 31). Under that heading, Plaintiff’s argument section raises a variety
of related claims. The Court will discuss them below.
A.

The ALJ Engaged in “Cherry–Picking.”

Plaintiff accuses the ALJ of bias and “cherry-picking” the portions of the record that
were unfavorable to his claim for benefits. (Dkt. #12, PageID 34). The argument that the ALJ
mischaracterized or “cherry-picked” the record is frequently made and seldom successful, because
“the same process can be described more neutrally as weighing the evidence.” White v. Comm’r of
Soc. Sec., 572 F.3d 272, 284 (6th Cir. 2009). The narrow scope of judicial review of the
Commissioner’s final administrative decision does not include re-weighing evidence, deciding
questions of credibility, or substituting the court’s judgment for that of the ALJ. See Ulman v.
Comm’r of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2012); Bass v. McMahon, 499 F.3d 506, 509 (6th
Cir. 2007). The Court finds that the ALJ’s decision provides an accurate summary of the
administrative record, and rejects Plaintiff’s claim.

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B.

The RFC Failed to Include Certain Severe Impairments.

Plaintiff next claims that the ALJ did not include “in his RFC determination his own
previous conclusion that [Plaintiff] suffers from the severe impairments of an anxiety disorder, a
mood disorder, and ADHD.” (Dkt. #12, PageID 34–35). This conclusion, however, lacks any
accompanying analysis or discussion of case law. Issues raised in a perfunctory manner are deemed
waived. See Clemente v. Vaslo, 679 F.3d 482, 497 (6th Cir. 2012); see also Curler v. Comm’r of Soc.
Sec., 561 F. App’x 464, 475 (6th Cir. 2014).
Even assuming that Plaintiff did not waive this issue, it is meritless. Plaintiff argues
that the Commissioner’s decision must be overturned because anxiety disorder, mood disorder, and
ADHD were included in the list of his severe impairments, but the ALJ’s RFC finding did not
include functional limitations based on those impairments. Plaintiff’s argument improperly
collapses multiple steps of the sequential analysis. The ALJ found at step 2 of the sequential
analysis that Plaintiff had severe impairments. (Tr. 22). The Sixth Circuit considers the step two
severity regulation as a “de minimis hurdle” intended to “screen out totally meritless claims.” Nejat
v. Comm’r of Soc. Sec., 359 F. App’x 574, 576 (6th Cir. 2009) (quoting Rogers v. Comm’r of Soc.
Sec., 486 F.3d 234, 243 n. 2 (6th Cir. 2007) and Farris v. Sec’y of Health & Human Servs., 773 F.2d
85, 89 (6th Cir. 1985)). The ALJ is not bound later, at step 4, to find that impairments exist based
on his step 2 finding. Corley v. Comm’r of Soc. Sec., No. 98–3785, 1999 WL 970306, at * 1 (6th
Cir. Oct.13, 1999) (“The ALJ did not err in finding that a severe impairment can exist without
finding that a significant limitation and disability exist.”). “A claimant’s severe impairment may
or may not affect his or her functional capacity to do work. One does not necessarily establish the

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other.” Griffeth v. Comm’r of Soc. Sec, 217 F. App’x 425, 429 (6th Cir. 2007) (citation and internal
quotation omitted).
RFC is the most, not the least, a claimant can do despite his impairments. 20 C.F.R.
§ 404.1545(a)(1); Griffeth, 217 F. App’x at 429. The administrative finding of a claimant’s RFC
is made between steps 3 and 4 of the sequential analysis and it is applied at steps 4 and 5. See 20
C.F.R. § 404.1520(a)(4) (“Before we go from step three to step four, we assess your residual
functional capacity. We use the residual functional capacity assessment at both step four and step
five when we evaluate your claim at these steps.”). The ALJ found that Plaintiff retained the RFC
for sedentary work. (Tr. 24–25). The ALJ also carefully considered the evidence related to
Plaintiff’s mental impairments. (Tr. 27–29). Plaintiff has not shown that there are restrictions that
the RFC failed to adequately take into account which stem from the aforementioned impairments.
C.

The RFC Failed to Include Limitations in Concentration, Persistence,
and Pace.

Similar to the above discussion, Plaintiff next contends that the ALJ erred because
although he determined at step 3 that Plaintiff had “moderate” limitations in maintaining
concentration, persistence or pace, the ALJ did not include those limitations in the RFC. Plaintiff
specifically argues that while the RFC may have accounted for Plaintiff’s limitations in persistence
or pace, it did not account for Plaintiff’s limitations in his concentration. (Dkt. #12, PageID 35).
Like the claim raised above, however, Plaintiff conflates the analysis conducted at separate points
of the ALJ’s decision.
At step 3 in the sequential analysis, the ALJ considered whether Plaintiff met or
medically equated the criteria of Listings 12.02, 12.04, and 12.06 of the Listing of Impairments. To

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meet the criteria of these listings, a plaintiff must demonstrate, among other things, that he or she
satisfies the requirements of Paragraph B of the listings, a portion of which requires a plaintiff to
demonstrate marked difficulties in maintaining concentration, persistence, or pace. (See, e.g., 20
C.F.R. Pt. 404, Subpt. P., App. 1 § 12.02). Here, Plaintiff is attempting to take a portion of the
ALJ’s step 3 finding out of context and substitute it for the ALJ’s factual finding at step 4. It is well
established, however, that the paragraph B criteria used in determining whether a claimant meets
or equals a listed impairment “are not an RFC assessment.” See SSR 96–8p, Policy Interpretation
Ruling Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims, 1996 WL
374184, at * 4 (July 2, 1996). RFC is a more detailed assessment made by “itemizing various
functions contained in the broad categories found in paragraphs B and C of the adult mental disorder
listings in 12.00 or the Listing of Impairments.” Id. at *4; see also Collier v. Comm’r of Soc. Sec.,
No. 1:11–cv–1144, 2013 WL 4539631, at *5–6 (W.D. Mich. Aug. 27, 2013). The ALJ’s findings
at earlier steps in the sequential analysis do not undermine his RFC determination. See Pinkard v.
Comm’r of Soc. Sec., No. 1:13–cv–1339, 2014 WL 3389206, at *10 (N.D. Ohio July 9, 2014)
(making a similar analysis). Accordingly, the ALJ was not required to account for his findings at
step 3 in his step 4 analysis, and Plaintiff has shown no error.
D.

The RFC Failed to Include Limitations Found by Dr. Tareen.

Plaintiff next claims that the RFC is not supported by substantial evidence because
although the ALJ gave “great weight” to the opinion of Dr. Tareen, a state reviewing psychologist,
he failed to specifically include Dr. Tareen’s opinion that Plaintiff would be “moderately limited”
in “[t]he ability to complete a normal workday and workweek without interruptions from

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psychologically based symptoms and to perform at a consistent pace without an unreasonable
number and length of rest periods.” (Tr. 41; Dkt. #12, PageID 35–36).
On October 3, 2011, Dr. Tareen reviewed Plaintiff’s record and completed an
assessment regarding Plaintiff’s mental RFC. The assessment asked Dr. Tareen to rate the Plaintiff
regarding certain limitations. After noting that Plaintiff was “moderately limited” in the
aforementioned ability, Dr. Tareen was asked to explain the limitation she noted. Dr. Tareen wrote
that “[t]he claimant seems capable of maintaining basic attention, concentration and pace for simple
tasks, but would have difficulty with detailed, complex and sequential tasks. The ability to sustain
concentration and pace while performing such tasks will be moderately affected. The claimant may
have moderate difficulties to complete a normal workweek secondary to psychologically based
symptoms.” (Tr. 41–42). Dr. Tareen further concluded “There is no objective data to support the
presence of any mental disorder affecting the cognitive abilities markedly at present, which can
preclude [claimant] from performing [simple, repetitive task] work related activities on [a] sustained
level.” (Tr. 42). The ALJ included these limitations in the RFC by limiting Plaintiff to simple work
and restricted him from fast-paced work and production quotas. Plaintiff has not shown how Dr.
Tareen’s opinion is inconsistent with the RFC.
Moreover, “an ALJ is not required to adopt verbatim the opinion of a physician or
psychologist.” Woods v. Astrue, No. 4:11-CV-2306, 2012 WL 5415327, at *13 (N.D. Ohio Oct. 5,
2012) report and recommendation adopted, No. 4:11 CV 2306, 2012 WL 5457475 (N.D. Ohio Nov.
5, 2012). “The Social Security Act instructs that the ALJ—not a physician—ultimately determines
a claimant’s RFC.” Coldiron v. Comm'r of Soc. Sec., 391 F. App’x 435, 439 (6th Cir. 2010). That
is what the ALJ has done in this case, and the Plaintiff has shown no error.

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E.

The RFC Failed to Include Plaintiff’s Use of a Cane.

Plaintiff next claims that the RFC is deficient because it did not account for Plaintiff’s
use of a cane. (Dkt. #12, PageID 36). At the administrative hearing, Plaintiff stated that he used a
cane roughly fifty percent of the time. (Tr. 394). On September 30, 2011, Dr. Saadat Abbasi, a state
examiner, completed a physical RFC assessment and noted, among other things, that Plaintiff
required a hand-held assistive device (or a cane) to assist ambulation. (Tr. 39). The ALJ rejected
this portion of the doctor’s assessment, noting that “the clinical record, though containing references
to the claimant’s use of a cane, does not consistently document this, nor does it show a cane was
prescribed by any physician.” (Tr. 28). A review of the record shows that while some examiners
noted Plaintiff used a cane, none of the examiners actually prescribed a cane. (Tr. 202). As a nonexamining source, the ALJ was only required to consider the opinion of Dr. Abbasi. 20 C.F.R. §
416.927(e). This the ALJ did, and his reasons for rejecting Dr. Abbasi’s opinion that Plaintiff
required the use of a cane is supported by substantial evidence. Accordingly, Plaintiff’s claim fails.
F.

The ALJ’s Conclusion That a Significant Number of Jobs Exist That
Plaintiff Could Perform is Not Supported by Substantial Evidence.

Plaintiff next claims that the ALJ’s conclusion at step 5 that there exist a significant
number of jobs Plaintiff could perform is not supported by substantial evidence. (Dkt. #12, PageID
38–39). An ALJ’s finding that a plaintiff possesses the capacity to perform substantial gainful
activity that exists in the national economy must be supported by substantial evidence that the
plaintiff has the vocational qualifications to perform specific jobs. Parley v. Sec’y of Health and
Human Servs., 820 F.2d 777, 779 (6th Cir. 1987). Social Security Rulings also direct an ALJ to seek
out the testimony of a VE where, as here, a claimant’s RFC requires a sit/stand option. SSR 83-12,

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Titles II & XVI: Capability to Do Other Work-Themedical-Vocational Rules As A Framework for
Evaluating Exertional Limitations Within A Range of Work or Between Ranges of Work, 1983 WL
31253 at *4 (1983); see also Sharp v. Barnhart, 152 F. App’x 503, 506–07 (6th Cir. 2005). That
is what the ALJ purported to do in this case, however after a review of the relevant portion of the
transcript, the Court concludes the ALJ’s finding is unsupported by substantial evidence.
At the administrative hearing, ALJ Prothro posed several different hypotheticals to
the VE. The ALJ started by posing the following:
Q.

This hypothetical person would be able to do the following.
Would be able to lift and carry maximum of 10 pounds. Standing
and walking would be limited to two out of eight hours in a day,
and sitting for six out of eight. He is required to change positions
about every two hours, but can do this using the regular breaks
during the day; that would be the lunch brake (sic) and the other
breaks that are customarily given; with no climbing of ladders,
ropes, or scaffolds. Can occasionally climb ramps or stairs. Can
occasionally balance, stoop, kneel, crouch, and crawl.

(Tr. 419). The VE responded that Plaintiff would be unable to do any of his past relevant work. (Tr.
419). The VE went on to note, however, that under that hypothetical, a person similar to Plaintiff
could perform the duties of a callout operator (600 jobs in the State of Michigan and 50,000 in the
national economy), surveillance systems monitor (370 jobs in the State of Michigan and 9,000 jobs
in the national economy), and bench hand (12,000 jobs in the State of Michigan and 200,000 jobs
nationally). (Tr. 419–20).
After posing two related hypotheticals to the VE, the ALJ next presented a fourth
hypothetical which he stated was a “new scenario.” (Tr. 423). In this hypothetical, the claimant
would be able to lift a maximum of 10 pounds, required a sit/stand option in the workplace, and
would be limited to simple, repetitive tasks with no fast-paced work or production quotas. (Tr. 423).

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This was the hypothetical ultimately adopted as the Plaintiff’s RFC. (Tr. 24). The VE responded
to the hypothetical by stating that:
A.

I don’t know–I’m not hearing the hypothetical as being different
[than] hypothetical No. 1, your honor, unless I’m
misunderstanding you. You’re adding a sit/stand option, which
actually is not defined in the Dictionary of Occupational Titles;
that would be considered an accommodation probably, with
regard to work. So the surveillance system monitor that I used
earlier could potentially be performed with a sit/stand opinion,
although the DOT does not indicate that a sit/stand option exists.

(Tr. 424). In response to further questioning by the ALJ, however, the VE noted “I believe that a
sit/stand option would certainly be available, but I think it would be dependent on the work
environment . . . And so, in order to fully–to give you a complete answer, I think we would have to
be able to know what kind of work environment we were talking about.” (Tr. 425). The ALJ did not
further discuss the issue with the VE.
The Court finds the VE’s answers in response to the ALJ to be nebulous at best. The
VE never definitively said that Plaintiff could perform the position of surveillance system monitor
under the last hypothetical. This point is bolstered the VE’s later statement that more information
is needed to give an answer. Accordingly, the Court is unable to say the ALJ’s step 5 determination
is supported by substantial evidence. The matter will therefore be remanded under sentence four
of § 405(g). On remand, the Commissioner should reevaluate whether a significant number of jobs
exist which Plaintiff could perform.
G.

The ALJ Erred in Discounting Plaintiff’s Credibility.

At the administrative hearing, and on his function report, Plaintiff argued that he was
impaired to an extent far greater than that recognized by the ALJ. Specifically, he stated that he was
distracted to the point where he was unable to watch a half-hour TV program. (Tr. 403). Plaintiff
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also stated that, on average, he placed his back pain at 7.5 on a scale of 1-10, and that when someone
shook his hand, it felt like his arm was being torn off. (Tr. 404, 410). He further noted that he was
unable to carry anything over 7 pounds. (Tr. 134). Plaintiff argues that he is entitled to relief
because the ALJ’s rationale for discounting his testimony is not supported by substantial evidence.
An ALJ may discount a claimant’s credibility where the ALJ “finds contradictions
among the medical records, claimant’s testimony, and other evidence.” Walters v. Comm’r of Soc.
Sec., 127 F.3d 525, 531 (6th Cir. 1997). “It [i]s for the [Commissioner] and his examiner, as the
fact-finders, to pass upon the credibility of the witnesses and weigh and evaluate their
testimony.”Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 536 (6th Cir. 2001) (quoting Myers v.
Richardson, 471 F.2d 1265, 1267 (6th Cir. 1972). The court “may not disturb” an ALJ’s credibility
determination “absent [a] compelling reason.” Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001).
The threshold for overturning an ALJ’s credibility determination on appeal is so high, that in recent
years, the Sixth Circuit has expressed the opinion that “[t]he ALJ’s credibility findings are
unchallengeable,” Payne v. Comm’r of Soc. Sec., 402 Fed. Appx. 109, 113 (6th Cir. 2010), and that
“[o]n appeal, we will not disturb a credibility determination made by the ALJ, the finder of fact ...
[w]e will not try the case anew, resolve conflicts in the evidence, or decide questions of credibility.”
Sullenger v. Comm’r of Soc. Sec., 255 Fed. Appx. 988, 995 (6th Cir. 2007). Nevertheless, an ALJ’s
credibility determinations regarding subjective complaints must be reasonable and supported by
substantial evidence. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 249 (6th Cir. 2007).
In support of his decision to discount Plaintiff’s subjective allegations, the ALJ noted
that the record did not support the Plaintiff’s assertions. Specifically, the ALJ noted that despite
plaintiff’s statements he could only walk short distances. Plaintiff engaged in a wide variety of daily

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activities. (Tr. 25). This included shopping at the grocery store, going to the mall, and going to
church. (Tr. 136–37). In March 2012, a treatment note by Brian Powell, DO, noted no back pain
and joint swelling. Plaintiff had normal range of motion, strength, and stabilities in all his
extremities with no pain on inspection. (Tr. 275-77). At an examination in February he appeared
well tanned for the time of year. (Tr. 218). Despite his reports of extreme pain, Plaintiff did not
want an injection for pain relief. (Tr. 203). In short, the ALJ’s conclusion is supported by
substantial evidence.
Plaintiff further argues that the ALJ failed to “properly consider the factors set forth
in 20 C.F.R. § 404.1529(c)(3). As the CFR and associated Social Security Rulings direct, in
addition to the objective evidence, the ALJ is to consider the following factors when assessing the
credibility of a claimant’s statements regarding his symptoms:
1.

The individual’s daily activities;

2.

The location, duration, frequency, and intensity of the individual’s pain or other
symptoms;

3.

Factors that precipitate and aggravate the symptoms;

4.

The type, dosage, effectiveness, and side effects of any medication the individual
takes or has taken to alleviate pain or other symptoms;

5.

Treatment, other than medication, the individual receives or has received for relief
of pain or other symptoms;

6.

Any measures other than treatment the individual uses or has used to relieve pain or
other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes
every hour, or sleeping on a board); and

7.

Any other factors concerning the individual’s functional limitations and restrictions
due to pain or other symptoms.

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See SSR 96–7p, Policy Interpretation Ruling Titles II and XVI: Evaluation of Symptoms in
Disability Claims: Assessing the Credibility of an Individual’s Statements, 1996 WL 374186 at *3
(1996). Under SSR 96–7p the ALJ is required to “consider” the seven-listed factors, but there is no
requirement that the ALJ discuss every factor. See White, 572 F.3d at 287; see also Coleman v.
Astrue, No. 2:09–cv–36, 2010 WL 4094299, at *15 (M.D. Tenn. Oct.18, 2010) (“There is no
requirement [ ] that the ALJ expressly discuss each listed factor.”); Roberts v. Astrue, No.
1:09–cv–1518, 2010 WL 2342492, at * 11 (N.D. Ohio June 9, 2010) (“[T]he ALJ need not analyze
all seven factors contained in SSR 96–7p to comply with the regulations.”). SSR 96–7p sets forth
a list of factors for the ALJ to consider in addressing the claimant’s credibility. See White, 572 F.3d
at 287; see also Reynolds v. Comm’r of Soc. Sec., 424 F. App’x 411, 417 (6th Cir. 2011); Parsons
v. Astrue, No. 1:09–cv–2695, 2011 WL 887618, at * 6 (N.D. Ohio Feb.17, 2011) (“The ALJ
conducted the appropriate analysis pursuant to SSR 96–7p, although not articulated in the manner
Plaintiff would prefer.”). The ALJ’s discussion of plaintiff’s credibility began with the relevant
regulations and social security rulings, including SSR 96–7p. (Tr. 25). The ALJ’s reference to SSR
96–7p indicates that he “considered” all the ruling’s factors. Brown v. Comm’r of Soc. Sec., No.
1:10–cv–705, 2012 WL 951556, at * 5 (W.D. Mich. Feb 27, 2012).
While the ALJ was not required to explicitly discuss each of the above mentioned
factors, it is clear that he did discuss many of them. For example the ALJ mentioned the Plaintiff’s
daily activities of shopping, driving a car, using the internet, and handling financial matters. (Tr. 25).
He also considered the Plaintiff’s allegations of pain and the treatment he had received. (Tr. 25–26).
This included Plaintiff’s decision not to receive injections. (Tr. 26). Plaintiff puts great emphasis
on the ALJ’s failure to discuss the side effects that Plaintiff experienced from his medications,

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mentioning that Plaintiff testified that he would often soil himself. (Dkt. #12, PageID 37–38). While
Plaintiff did testify at the hearing that he experienced the sudden need to use the restroom and
sometimes soiled himself, this was not directly connected to his medications. (Tr. 400–02). The
record shows Plaintiff sought treatment for this condition only once (Tr. 291), and at several other
appointments did not complain of similar symptoms. (Tr. 196, 226, 275). Dr. Karen Kennedy
treated Plaintiff for this complaint. The record shows Dr. Kennedy was aware of Plaintiff’s HIV
status and knew Plaintiff was taking the medications he alleges lead to his side effects. (Tr. 291,
294). However, the treatment notes demonstrate that Dr. Kennedy believed Plaintiff’s condition was
connected to his depression, and in the treatment plan noted only that Plaintiff should follow up with
a mental health clinic. (Tr. 293).
Plaintiff presents new evidence in his brief that alleges a side effect of Plaintiff’s
medications include diarrhea. When a plaintiff submits evidence that has not been presented to the
ALJ, the Court may consider the evidence only for the limited purpose of deciding whether to issue
a sentence-six remand under 42 U.S.C. § 405(g). See Sizemore v. Sec’y of Health and Human
Servs., 865 F.2d 709, 711 (6th Cir. 1988). Under sentence-six, “[t]he court ... may at any time order
the additional evidence to be taken before the Commissioner of Social Security, but only upon a
showing that there is new evidence which is material and that there is good cause for the failure to
incorporate such evidence into the record in a prior proceeding ...” 42 U.S.C. § 405(g). In a
sentence-six remand, the court does not rule in any way on the correctness of the administrative
decision, neither affirming, modifying, nor reversing the Commissioner’s decision. Melkonyan v.
Sullivan, 501 U.S. 89, 98, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991). “Rather, the court remands
because new evidence has come to light that was not available to the claimant at the time of the

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administrative proceeding and that evidence might have changed the outcome of the prior
proceeding.” Id. “The party seeking a remand bears the burden of showing that these two
requirements are met.” Hollon ex rel. Hollon v. Comm’r of Soc. Sec., 447 F.3d 477, 483 (6th Cir.
2006). Plaintiff has failed to show good cause for failing to incorporate this evidence into the
record. Moreover, Plaintiff has failed to show how this evidence is material. Evidence is deemed
“material” if “there is a probability that the [Commissioner] would have reached a different
disposition of the disability claim if presented with new evidence.” Foster v. Halter, 279 F.3d 348,
357 (6th Cir. 2001). Plaintiff is arguing the ALJ should have explicitly discussed Plaintiff’s
medication side effects in evaluating Plaintiff’s credibility, but as noted above, there is no
requirement that the ALJ must do so, and the record shows the ALJ adequately considered the
relevant factors. Accordingly, Plaintiff cannot show how this evidence, if presented before the ALJ,
would have led to a different outcome. Plaintiff’s claim therefore fails.
Finally, the Court notes that Plaintiff may have raised other cryptic arguments in his
brief. The Court deems these other arguments as waived. See McPherson v. Kelsey, 125 F.3d 989,
995–96 (6th Cir. 1997) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some
effort at developed argumentation, are deemed waived. It is not sufficient for a party to mention a
possible argument in a most skeletal way, leaving the court to ... put flesh on its bones.”).
CONCLUSION
For the reasons set forth herein, the Commissioner’s decision will be REVERSED and
REMANDED. A separate judgment shall issue.

Dated: November 2 , 2015

/s/ Janet T. Neff
JANET T. NEFF
United States District Judge
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