Sanders v. Commissioner of Social Security
OPINION affirming the Commissioner's decision; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, jal)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
JEFFERY LEE SANDERS,
Case No. 1:15-cv-01268
HON. ELLEN S. CARMODY
COMMISSIONER OF SOCIAL
This is an action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. §
405(g), to review a final decision of the Commissioner of Social Security denying Plaintiff’s claim
for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) under Titles II and
XVI of the Social Security Act. The parties have agreed to proceed in this Court for all further
proceedings, including an order of final judgment. (ECF No. 9.)
Section 405(g) limits the Court to a review of the administrative record and provides
that if the Commissioner’s decision is supported by substantial evidence it shall be conclusive. The
Commissioner has found that Plaintiff is not disabled within the meaning of the Act. For the reasons
stated below, the Court concludes that the Commissioner’s decision is supported by substantial
evidence. Accordingly, the Commissioner’s decision is affirmed.
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 & Human
Servs., 847 F.2d 301, 303 (6th Cir. 1988). 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 & 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 & 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 evidence in the record fairly detracts from its
weight. See Richardson v. Sec’y of Health & Human Servs., 735 F.2d 962, 963 (6th Cir. 1984). 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.
Plaintiff was fifty-four years of age on the date of the ALJ’s decision. (PageID.371,
499, 507.) He possesses a high school education and previously worked as a sandblaster, paint
helper, concrete finisher, and labor helper. (PageID.473–474.) Plaintiff previously applied for DIB
on October 30, 2009. That application resulted in an unfavorable determination by an administrative
law judge (ALJ) on July 15, 2011, and does not appear to have been further pursued.
(PageID.483–498.) The application in the instant case was filed by Plaintiff on April 24, 2012.
(PageID.499, 507, 608–617.) Plaintiff alleged that he had been disabled since September 15, 2011,
due to seizures. (PageID.499, 507.) Plaintiff’s applications were denied on October 1, 2012, after
which time he requested a hearing before an ALJ. (PageID.520–529.) On August 6, 2013, Plaintiff
appeared with his counsel before ALJ Joseph Doyle for an administrative hearing at which time
Plaintiff, his girlfriend, and a vocational expert (VE) all testified. (PageID.438–481.) At the hearing,
Plaintiff’s counsel requested that the record be held open after the hearing for the submission of
Thereafter, Plaintiff requested a second hearing to explain alleged
discrepancies in those records. (PageID.720–721.) A supplemental hearing was held on June 16,
2014, with testimony provided by Plaintiff and his girlfriend. The ALJ did not take additional VE
testimony. (PageID.407–437.) In a written decision dated July 25, 2014, the ALJ determined that
Plaintiff was not disabled. (PageID.371–405.) On October 14, 2015, the Appeals Council declined
to review the ALJ’s decision, making it the Commissioner’s final decision in the matter.
(PageID.29–35.) Plaintiff subsequently initiated this action under 42 U.S.C. § 405(g).
The social security regulations articulate a five-step sequential process for evaluating
disability. See 20 C.F.R. §§ 404.1520(a-f), 416.920(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. §§
The regulations also provide that if a claimant suffers from a
nonexertional impairment as well as an exertional impairment, both are considered in determining
the claimant’s residual functional capacity (RFC). See 20 C.F.R. §§ 404.1545, 416.945.
The burden of establishing the right to benefits rests squarely on Plaintiff’s shoulders,
and he can satisfy his burden by demonstrating that his impairments are so severe that he is unable
to perform his previous work and cannot, considering his age, education, and work experience,
perform any other substantial gainful employment existing in significant numbers in the national
economy. See 42 U.S.C. § 423(d)(2)(A); Cohen. 964 F.2d at 528. While the burden of proof shifts
to the Commissioner at step five, Plaintiff bears the burden of proof through step four of the
procedure, the point at which his residual functional capacity (RFC) is determined. See Bowen v.
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), 416.920(b));
An individual who does not have a “severe impairment” will not be found “disabled” (20 C.F.R. §§
If an individual is not working and is suffering from a severe impairment which meets the duration
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), 416.920(d));
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), 416.920(e));
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), 416.920(f)).
Yuckert, 482 U.S. 137, 146 n.5 (1987); Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir.
1997) (noting that the ALJ determines RFC at step four, at which point the claimant bears the burden
The ALJ determined that Plaintiff’s claim failed at step four. At step one, the ALJ
found that Plaintiff had not engaged in substantial gainful activity since his alleged disability onset
date of September 15, 2011. (PageID.376.) At step two, the ALJ found that Plaintiff suffered from
the following severe impairments: (1) seizure disorder; (2) hypertension; and (3) polysubstance
abuse including alcohol and cannabis abuse. (PageID.377–380.) At step three, 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 found in 20 C.F.R. Pt. 404, Subpt. P, App. 1.
(PageID.380–382.) At step four, the ALJ determined Plaintiff retained the RFC based on all the
to perform a full range of work at all exertional levels but with the
following nonexertional limitations: can never climb ladders, ropes
or scaffolds; can occasionally climb stairs and ramps; should avoid
all exposure to operational controls of moving machinery and
(PageID.382.) Continuing with the fourth step, the ALJ posed the above RFC in a hypothetical
question to the VE. In response to the ALJ’s questioning, the VE testified that Plaintiff was able to
return to his past relevant work as a sandblaster. (PageID.474–475.) Relying on the VE’s
testimony, the ALJ determined that Plaintiff was capable of performing this work both as it was
generally and as it was actually performed. (PageID.397.) Having made his determination at step
four, the ALJ completed the analysis and was not required to go further. However, the ALJ also
included an alternative step five determination, noting that considering Plaintiff’s age, education,
work experience, and RFC, there are other jobs that exist in significant numbers in the national
economy that Plaintiff could perform. (PageID.397.) In doing so, the ALJ again relied on VE
testimony. See Richardson, 735 F.2d at 964. The VE testified that Plaintiff could perform other
work as a marker (9,000 regional jobs and 271,000 national jobs), inspector (22,000 regional jobs
and 454,000 national jobs), and assembler of small parts (8,000 regional jobs and 218,000 national
jobs). (PageID.476.) Based on this record, the ALJ found that Plaintiff was capable of making a
successful adjustment to work that exists in significant numbers in the national economy.
Accordingly, the ALJ concluded that Plaintiff was not disabled from September 15,
2011, the alleged disability onset date, through July 25, 2014, the date of decision.
The ALJ’s Analysis of Dr. Toya Malone’s Opinion.
On November 11, 2013, Dr. Toya Malone, M.D., signed a statement regarding her
opinion of Plaintiff’s impairments. (PageID.1135–1138.) Among other things, she noted she had
observed Plaintiff experience four complex partial seizures and two other episodes consistent with
panic attacks. (PageID.1135.) She stated that Plaintiff met the requirements of Listing 11.02,
further noting that based on Plaintiff’s reports of experiencing two to three seizures a month, he met
the listing’s frequency requirement. (PageID.1135.) She found Plaintiff’s reports were “not
inconsistent” with what was recorded while he was monitored. (PageID.1136.) When asked about
the non-epileptic panic attacks, Dr. Malone reported these episodes “can be” disruptive of a person’s
functioning. His panic attacks were more prolonged than his seizures, and she “would suspect that
in his everyday environment these would probably have more of an impact than his complex partial
seizures.” (PageID.1136.) She went on to provide several limitations including:
[T]he standard seizure precautions which include the Michigan State
law which says that he can’t drive for six months if he has a loss of
awareness or loss of consciousness. I always advise patients that they
should avoid engaging in any activity that could cause harm to
themselves or to someone else if they were to lose awareness or
consciousness. So that would include things like working with heavy
machinery, navigating heights, working with sharp objects that could
lead to dismemberment. Those would be standard. In terms of what
I would tell his employer, I would want his employer to know that
because seizures are unpredictable he may have a seizure while at
work requiring him to take a bit of time away from his task. He may
also be confused during that time and during his postictal periods.
(PageID.1137.) Dr. Malone further noted that after his recorded seizures, Plaintiff was “quite
confused and provided inappropriate responses to the nurses for at least 10 minutes.”
(PageID.1137.) She could not, however, predict how long his confusion would last following future
episodes, and further noted that the postictal period can vary between episodes. That said, she stated
“on average he may return to baseline within an hour” but she restated that it was unpredictable how
long Plaintiff would take to return to his previous state. (PageID.1137.) Finally, she opined Plaintiff
had an increased in the risk of having memory loss which may impair his ability to perform at work.
(PageID.1137.) Plaintiff claims the ALJ gave insufficient weight to these opinions.
By way of background, the treating physician doctrine recognizes that medical
professionals who have a long history of caring for a claimant and his maladies generally possess
significant insight into his medical condition. See Barker v. Shalala, 40 F.3d 789, 794 (6th Cir.
1994). An ALJ must, therefore, give controlling weight to the opinion of a treating source if: (1)
the opinion is “well-supported by medically acceptable clinical and laboratory diagnostic
techniques” and (2) the opinion “is not inconsistent with the other substantial evidence in the case
record.” Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 375–76 (6th Cir. 2013) (quoting 20 C.F.R.
Such deference is appropriate, however, only where the particular opinion “is based
upon sufficient medical data.” Miller v. Sec’y of Health & Human Servs., 1991 WL 229979, at *2
(6th Cir. Nov. 7, 1991) (citing Shavers v. Sec’y of Health & Human Servs., 839 F.2d 232, 235 n.1
(6th Cir. 1987)). The ALJ may reject the opinion of a treating physician where it is unsupported by
the medical record, merely states a conclusion, or is contradicted by substantial medical evidence.
See Cohen, 964 F.2d at 528; Miller, 1991 WL 229979 at *2 (citing Shavers, 839 F.2d at 235 n.1);
Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286–87 (6th Cir. 1994).
If an ALJ accords less than controlling weight to a treating source’s opinion, the ALJ
must “give good reasons” for doing so. Gayheart, 710 F.3d at 376. Such reasons must be
“supported by the evidence in the case record, and must be sufficiently specific to make clear to any
subsequent reviewers the weight the adjudicator gave to the treating source’s medical opinion and
the reasons for that weight.” Id. This requirement “ensures that the ALJ applies the treating
physician rule and permits meaningful review of the ALJ’s application of the rule.” Id. (quoting
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004)). Simply stating that the
physician’s opinions “are not well-supported by any objective findings and are inconsistent with
other credible evidence” is, without more, too “ambiguous” to permit meaningful review of the
ALJ’s assessment. Id. at 376–77. The ALJ discussed Dr. Malone’s opinion at length:
Little weight was afforded to the opinion of treating provider, Dr.
Malone, who concluded that the claimant’s seizure condition met
Listing 11.02. (Ex. 19F) She noted that the claimant was still having
2-3 seizures per month as of August 2013. (Ex. 10F/1) Yet, on closer
inspection of the record, the claimant actually admitted in midAugust that he had been seizure-free since his July 4th hospitalization.
(Ex. B16F/5) Moreover, the claimant had been using drugs and
alcohol prior to that hospitalization, evidence of non-compliance.
(Ex. B13F/4) Further, as of the late October report, the claimant had
only suffered one seizure since his July hospitalization, aside from
activity observed during an August study when the claimant was
purposefully taken off his medication for video monitoring. (Exs.
B17F/13 and B25F/12) Thus, Dr. Malone’s conclusion that the
claimant met Listing 11.02 was not supported by the record, and thus,
received little weight. Further, Dr. Malone opined that the claimant
might be off-task in a work setting due to unpredictable seizures.
(Ex. B19F/3) She added that the claimant might also be confused and
experience memory loss after a seizure. (Ex. B19F/3)
Notably, Dr. Malone had video monitored the claimant in August,
observing seven seizures and a period of confusion following the
(Ex. B17F/12) However, the claimant had been
purposefully taken off medication for that study. (Ex. B17F.12) In
addition, Dr. Malone noted two episodes of nausea, confusion and
restlessness. (Ex. B16F/1) Yet, these episodes were not seizures.
(Ex. B16F/1) It was also noted that the claimant’s blood pressure was
very high as of this date. (Ex. B16F/3) Further, the claimant had
demonstrated intact memory on a number of exams throughout the
record.. (Exs. B5F/8; B13F/18; B11F/3 and B14F/1) In addition, the
claimant regularly care for his young son while his girlfriend worked,
[an] indication that his girlfriend considered him able to focus and
able to remain oriented and alert. (August 2013 Hearing Testimony)
Further, while Dr. Malone suggest that the claimant was compliant
with his medication, the underlying record suggested periods of noncompliance and polysubstance abuse. (Ex. B13F/17; B16F/5, 7;
B4F/17; B6F/1; B12F/5 and B13F/4)
Moreover, Dr. Malone’s statements regarding potential memory loss,
confusion and off-task behavior were also speculative in nature.
There had been no evidence of any sustained memory loss.
Moreover, the confusion Dr. Malone observed after seizures, was
noted during a study where the claimant was taken off his
medication. (Ex. B17F/12) In addition, while Dr. Malone stated that
the claimant did not have nocturnal seizures, the claimant had
testified that his seizures were mainly nocturnal. (Ex. B19F/2) He
also reported nocturnal seizures within the record. (Ex. B14F/3)
Overall, Dr. Malone’s statements regarding seizure frequency and
treatment compliance and her denial of any nocturnal episodes
suggested that she was not fully aware of the claimant’s entire seizure
history, particularly regarding non-compliance matters. Ultimately,
the evidence failed to support Dr. Malone’s opinion regarding offtask behavior, memory loss and confusion. Thus, these statements
received little weight.
Still, significant weight was afforded to Dr. Malone’s opinion that the
claimant should avoid driving and use of other potentially harmful
machinery. (Ex. B19F/2-3) These standard hazard restrictions were
well-supported by the claimant’s long history of seizure disorder, and
thus, received significant weight.
(PageID.395.) The ALJ’s reasoning here is well supported. As an initial matter, the ALJ was not
required to give Dr. Malone’s opinion that Plaintiff met Listing 11.02 any special significance. See
Saucier v. Comm’r of Soc. Sec., 552 F. App’x 926, 928 (11th Cir. 2014); see also Vardon v. Colvin,
No. 5:13–cv–2531, 2015 WL 1346851, at *13 (N.D. Ohio March 23, 2015) (“The issue of whether
a claimant meets the requirements of a Listing, like the ultimate issue of disability, is not a medical
determination but rather a dispositive administrative finding reserved to the Commissioner.”) (citing
20 C.F.R. § 416.927(e)). The ALJ must still, however, “consider” these opinions. See 20 C.F.R.
§§ 404.1527(d)(2), 416.927(d)(2). The ALJ gave sufficient consideration here. Listing 11.02
requires convulsive epilepsy, (grand mal or psychomotor), documented by detailed description of
a typical seizure pattern, including all associated phenomena; occurring more frequently than once
a month in spite of at least 3 months of prescribed treatment. With:
Daytime episodes (loss of consciousness and convulsive seizures) or
Nocturnal episodes manifesting residuals which interfere significantly with activity
during the day.
20 C.F.R. Pt. 404, Subpt. P, App. 1 § 11.02. Here, Dr. Malone admitted that the frequency of
Plaintiff’s seizures was per the reports from Plaintiff and his family members. (PageID.1136.) But,
as the ALJ remarked, Plaintiff had provided numerous other statements which demonstrate his
seizures were not occurring with the requisite frequency. (PageID.666, 933, 1152) The ALJ also
correctly observed Plaintiff disregarded his doctors’ admonitions to curtail or cease his alcohol and
marijuana use and accordingly was not following prescribed treatment. (PageID.395, 808, 899, 933,
1151.) The ALJ accordingly gave sufficient consideration to this portion of Dr. Malone’s opinion.
Indeed Plaintiff does not spend much effort arguing with the above aspect of the
ALJ’s decision. Rather, he extensively argues the ALJ should have adopted Dr. Malone’s opinion
regarding his confusion, memory loss, and off-task behavior. (PageID.1360–1362.) Plaintiff
alleges, for example, the ALJ erred by referencing his continued marijuana use because there is no
evidence marijuana triggers his seizures. It appears he also alleges the ALJ improperly inferred his
symptoms were different when he was off medication than when he was following his prescribed
treatment. (PageID.1361.) The problem with Plaintiff’s argument is, even assuming he is correct,
the Court finds no reversible error here. As the ALJ observed, Dr. Malone’s statements regarding
Plaintiff’s postictal state provide little by way of functional limitations and are so speculative and
vague it is impossible to find they are in anyway inconsistent with Plaintiff’s RFC. (PageID.395.)
There are statements about Plaintiff becoming “confused” and that he loses time. (PageID.1136.)
He “may” have a seizure at work that would require him to “take a bit of time” off task.
(PageiD.1137.) How long he would be confused was “unpredictable.” (PageID.1137.) There was
an increased risk of memory loss (PageID.1137), but as the ALJ observed, Plaintiff consistently
demonstrated an intact memory. (PageID.820, 874, 947, 970.) None of these are in anyway
inconsistent with the RFC. Those functional limitations that the doctor did provide were given
significant weight. (PageID.395.)
In short, the ALJ provided good reasons, supported by substantial evidence, for
assigning little weight to these portions of Dr. Malone’s opinion and in doing so properly considered
the factors enumerated in 20 C.F.R. §§ 404.1527(c), 416.927(c): primarily, whether the doctor’s
opinion was consistent with the record and supported by medical signs and laboratory findings.
Regardless of the other factors which the regulation required the ALJ to consider—such as Dr.
Malone’s speciality and the length, nature and extent of the treatment relationship, 20 C.F.R. §§
404.1527(c), 416.927(c)—the evidence mentioned thus far provide substantial evidence for the
ALJ’s decision to accord Dr. Malone’s opinion little weight. No matter how long Dr. Malone had
been treating Plaintiff or how familiar she was with his treatment history, the record supports the
ALJ’s findings that the doctor’s opinion was not well supported and was speculative. The Court
does not doubt that Plaintiff is limited because of his impairments, but such limitations are
adequately accounted for in the RFC. Accordingly, this claim of error is denied.2
The ALJ’s RFC Determination is Supported by Substantial Evidence.
Plaintiff next contends that the RFC determination is not supported by substantial
evidence because it did not sufficiently acknowledge the limitations that his seizures would cause
if he was attempting substantial gainful activity on a full time basis. (PageID.1363–1364.) A
claimant’s RFC represents his ability to perform “work-related physical and mental activities in a
work setting on a regular and continuing basis,” defined as “8 hours a day, for 5 days a week, or an
equivalent work schedule.” SSR 96–8p, 1996 WL 374184, at *1 (S.S.A. July 2, 1996); see also
Plaintiff adds an additional argument that because the agency consultants did not have access to the entire
record, the ALJ erred in assigning greater weight to their opinions than to the opinion of his treating physician.
(PageID.1362.) “When an ALJ relies on a non-examining source who did not have the opportunity to review later
submitted medical evidence, especially when that evidence reflects ongoing treatment,” the Sixth Circuit requires “some
indication that the ALJ at least considered these [new] facts before giving greater weight to an opinion that is not based
on a review of a complete case record.” Brooks v. Comm’r of Soc. Sec., 531 F. App’x 636, 642 (6th Cir. 2013) (internal
citations and quotation marks omitted). The ALJ gave sufficient indication here, explicitly noting in his discussion of
the consultants’ opinion that “ in light of the evidence of a whole” a slightly more restrictive RFC determination was
Payne v. Comm’r of Soc. Sec., 402 F. App’x 109, 116 (6th Cir. 2010). The ALJ’s conclusion that
Plaintiff can perform a wide range of light work on a regular and continuing basis is supported by
Plaintiff first claims the ALJ’s RFC “does not account for medical evidence in the
record as to the number of grand mal or psychomotor seizures.” (PageID.1363.) Plaintiff fails to
demonstrate how this should compel a different result. As discussed above, the evidence more than
supports the ALJ’s determination that Plaintiff did not satisfy Listing 11.02. Similarly, the ALJ’s
RFC discussion provides a lengthy discussion of Plaintiff’s seizures, but nonetheless finds him
capable of work. This is supported not only by Plaintiff’s own admissions, but the opinions of Dr.
Lawrence Churchville and Dr. Saadat Abbasi, both agency medical consultants. (PageID.505,
833–841.) “Social Security regulations recognize that opinions from non-examining state agency
consultants may be entitled to significant weight, because these individuals are ‘highly qualified’
and are ‘experts in Social Security disability evaluation.’” Cobb v. Comm’r of Soc. Sec., No.
1:12-cv-2219, 2013 WL 5467172, at *5 (N.D. Ohio Sept. 30, 2013) (quoting 20 C.F.R. §§
404.1527(e)(2)(I), 416.927(e)(2)(I)); see also Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994).
As noted in the above footnote, the ALJ did not err in assigning these opinions significant weight.
Plaintiff also contends the ALJ erred in emphasizing his alcohol and marijuana usage,
claiming the ALJ was playing doctor by stating that cessation of substance abuse would cure his
seizures. (PageID.1365.) The ALJ said no such thing. There is extensive documentation in the
record that Plaintiff continued to abuse alcohol and marijuana despite repeated admonitions from
his physicians. The ALJ did not note this fact to allege Plaintiff’s seizures were caused by those
substances, but rather to note Plaintiff’s behavior was one of continued noncompliance with his
prescribed treatment. The Court discerns no error here.
As for Plaintiff’s argument that the ALJ’s RFC fails to sufficiently account for his
non-severe mental impairments, the Court is not persuaded. While the record reveals that Plaintiff
suffers from certain emotional impairments, the evidence does not suggest that such impair Plaintiff
to a greater degree than is reflected in the ALJ’s RFC. As Plaintiff correctly notes, he was twice
hospitalized for feelings of anger, confusion, and depression. (PageID.913–927, 1141–1144.) He
was treated with medication and advised to no longer abuse substances. (PageID.913, 1142.)
Presently, Plaintiff does not appear to be following this treatment plan, but he does not appear to be
undergoing any treatment for his mental conditions either. Moreover, Plaintiff fails to point to any
limitation inconsistent with the RFC. The record demonstrates Plaintiff was able to watch sporting
events with friends and follow spoken instructions.
(PageID.675–676.) Despite Plaintiff’s
complaints, the record, as discussed above, demonstrates he had an intact memory. He also had
normal concentration. (PageID.1091, 1094, 1150.)
For these reasons, Plaintiff has not undermined the ALJ’s assessment of his RFC.
This argument is accordingly rejected.
The ALJ’s Determination Plaintiff Could Return to His Past Relevant
Work is Supported by Substantial Evidence.
Finally, Plaintiff contends that the ALJ “failed to discuss the demands of Claimant’s
past work . . . The issue of whether Claimant could – with the RFC provided – perform his past
relevant work is completely speculative.” (PageID.1365.) Plaintiff presents no clear discussion on
this matter or authority for his proposition, and accordingly has waived this argument.
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 the most
skeletal way, leaving the court to . . . put flesh on its bones.’” United States v. Stewart, 628 F.3d 246,
256 (6th Cir. 2010) (quoting McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997)); see
United States v. Elder, 90 F.3d 1110, 1118 (6th Cir. 1996); accord Curler v. Comm’r of Soc. Sec.,
561 F. App’x 464, 475 (6th Cir. 2014) (“[P]laintiff develops no argument to support a remand, and
thus the request is waived.”). Even if the Court were to cobble together an argument, such would
fail. As noted above, the ALJ relied on VE testimony to determine Plaintiff could return to his past
work as a sandblaster. Vocational expert testimony is not required at step four of the sequential
analysis. See Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 544–45 (6th Cir. 2007); see also 20
C.F.R. §§ 404.1560(b)(2), 416.960(b)(2). However, the ALJ may use a vocational expert’s services
in determining whether a claimant can perform her past relevant work. 20 C.F.R. §§ 404.1560(b)(2),
416.960(b)(2) (a VE “may offer relevant evidence within his or her expertise or knowledge
concerning the physical and mental demands of a claimant’s past relevant work, either as the
claimant actually performed it or as generally performed in the national economy.”). It is common
practice for an ALJ to rely upon a VE’s testimony at step four of the sequential analysis. See, e.g.,
Delgado v. Comm’r of Soc. Sec., 30 F. App’x 542, 548 (6th Cir. 2002). Here, in response to the
ALJ’s hypothetical, the ALJ noted that Plaintiff could return to his past work as a sandblaster, as it
was unskilled work at the medium exertional level. (PageID.474.) Accordingly, substantial
evidence supports the ALJ’s step four determination that this work did not require the performance
of activities that were precluded by Plaintiff’s RFC. (PageID.397.)
Finally, Plaintiff points out that the VE responded to additional questioning that if
Plaintiff were to miss work two or more times a month, be off task fifteen percent of the day, or had
five or more unexcused absences a year, it would preclude all work. (PageID.1366.) But this
testimony does not affect the ALJ’s determination. It is well settled that a hypothetical question to
a VE need not include unsubstantiated complaints. See Casey v. Sec’y of Health & Human Servs.,
987 F.2d 1230, 1235 (6th Cir. 1993); see also Lee v. Comm’r of Soc. Sec., 529 F. App’x 706, 715
(6th Cir. 2013) (“An ALJ is only required to incorporate into a hypothetical question those
limitations he finds credible.”); Carrelli v. Comm’r of Soc. Sec., 390 F. App’x 429, 438 (6th Cir.
2010) (“[I]t 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.’ ”) (quoting Casey, 987 F.2d at 1235). The hypothetical question the ALJ posed to the VE was
accurate and was not required to include the other unsubstantiated limitations. This claim is
For the reasons articulated herein, the Commissioner’s decision will be AFFIRMED.
A separate judgment shall issue.
Date: February 23, 2017
/s/ Ellen S. Carmody
ELLEN S. CARMODY
United States Magistrate Judge
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