Brzezinski v. Commissioner of Social Security
OPINION; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, sdb)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
DALE J. BRZEZINSKI,
Case No. 1:16-CV-522
HON. ROBERT J. JONKER
COMMISSIONER OF SOCIAL
This is a social security action brought under 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) under Title II of the Social Security Act. 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.
STANDARD OF REVIEW
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-three years of age on his date last insured, and fifty-five years old
on the date of the ALJ’s decision. (PageID.34, 73.) He obtained a high school education and a
certificate in labor law, and was previously employed as a construction worker and as a labor union
business manager. (PageID.74, 91.) Plaintiff applied for benefits on December 9, 2013, alleging that
he had been disabled since January 13, 2011, due to an arrhythmia-atrial fibrillation heart condition,
diabetes, sleep apnea, and a bad right knee. (PageID.97, 149–150.) Plaintiff’s application was
denied on February 21, 2014, after which time he requested a hearing before an ALJ.
(PageID.108–113.) On February 10, 2015, Plaintiff appeared with his counsel before ALJ Thomas
L. Walters with testimony offered by Plaintiff and a vocational expert (VE). (PageID.69–94.) In an
unfavorable decision dated February 18, 2015, the ALJ determined that Plaintiff was not disabled.
(PageID.34–46.) On March 22, 2016, the Appeals Council declined to review the ALJ’s decision,
making it the Commissioner’s final decision in the matter. (PageID.25–30.) Plaintiff subsequently
initiated this action under 42 U.S.C. § 405(g).
Plaintiff’s insured status expired on December 31, 2013. (PageID.97.) To be eligible
for DIB under Title II of the Social Security Act, Plaintiff must establish that he became disabled
prior to the expiration of his insured status. See 42 U.S.C. § 423; Moon v. Sullivan, 923 F.2d 1175,
1182 (6th Cir. 1990).
The social security regulations articulate a five-step sequential process for evaluating
disability. See 20 C.F.R. § 404.1520(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). The regulations
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));
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));
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));
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)).
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.
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 Walters determined Plaintiff’s claim failed at step four. At step one, the ALJ
found that Plaintiff had not engaged in substantial gainful activity between his alleged disability
onset date and his date last insured. (PageID.39.) At step two, the ALJ found that Plaintiff suffered
from the severe impairments of: (1) atrial fibrillation; (2) diabetes mellitus; (3) obstructive sleep
apnea; (4) hypertension; and (5) obesity. (PageID.39.) 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.40.) At step four,
the ALJ determined Plaintiff retained the RFC based on all the impairments, through his date last
insured, to perform:
sedentary work as defined in 20 CFR 404.1567(a) except he can
perform occasional bending, turning, crouching, and stooping. He
cannot perform climbing, crawling, or kneeling. Walking is limited
to less than two blocks and he cannot work around moving machinery
or unprotected heights. He is likely to be on task at least 90% of the
(PageID.40.) Continuing with the fourth step, the ALJ found that Plaintiff was capable of
performing his past relevant work as a labor union business manager as it was generally performed
within the national economy. (PageID.43.) The ALJ concluded that this work did not require the
performance of work-related activities precluded by Plaintiff’s RFC. In doing so, the ALJ relied in
part on the testimony from the VE at the administrative hearing.2 (PageID.91–93.)
Accordingly, the ALJ concluded that Plaintiff was not under a disability, as defined
in the Social Security Act, at any time from January 13, 2011, the alleged onset date, through
December 31, 2013, his date last insured. (PageID.43.)
The ALJ’s RFC Determination is Supported by Substantial Evidence.
A claimant’s RFC represents the “most [a claimant] can still do despite [the
claimant’s] limitations.” Sullivan v. Comm’r of Soc. Sec., 595 F. App’x 502, 505 (6th Cir. 2014.);
see also SSR 96-8p, 1996 WL 374184 at *1 (July 2, 1996) (stating a claimant’s RFC represents her
ability to perform “work-related physical and mental activities in a work setting on a regulation and
continuing basis,” defined as “8 hours a day, for 5 days a week, or an equivalent work schedule”).
Plaintiff argues that the ALJ’s RFC determination fails to account for the limitations he experiences
from several ailments.
The ailments listed in Plaintiff’s heading includes impairments that the ALJ found
A VE’s testimony is not required when the ALJ determines that a claimant is not disabled at step four of the
sequential evaluation. See Banks v. Massanari, 258 F.3d 820, 827 (8th Cir. 2001) (vocational expert testimony is not
required until step five of the sequential analysis); Parker v. Sec’y of Health & Human Servs., 935 F.2d 270, 1991 WL
100547 at *3 (6th Cir. 1991); Rivera v. Barnhart, 239 F. Supp. 2d 413, 421 (D. Del. 2002). 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) (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”); see, e.g., Dukes v. Barnhart, 436 F.3d 923, 928 (8th Cir. 2006) (observing that the ALJ may
use a VE’s “expert advice” to assist him in deciding whether the claimant can perform his past relevant work at step four
of the evaluation).
were severe (e.g., sleep apnea, hypertension), those that were not severe (e.g., diarrhea), as well as
alleged impairments that may be symptoms of other impairments (e.g., hypoxemia, a condition in
which oxygen levels in the blood are reduced and is often a complication present in sleep apnea.
Sleep Apnea, MAYO CLINIC, http://www.mayoclinic.org/diseases-conditions/sleep-apnea/
basics/complications/con-20020286 (last visited Mar. 31, 2017)). Plaintiff claims the ALJ failed
to consider all these impairments on his ability to work. (PageID.302.) But the ALJ expressly noted
his obligation to consider all Plaintiff’s impairments, including non-severe impairments, in crafting
Plaintiff’s RFC. (PageID.38.) Later, he noted he had considered “all symptoms” at step four.
(PageID.40.) Plaintiff has not demonstrated how the ALJ erred on this point. Moreover, he has not
established that these impairments impose limitations greater than those accounted for in the RFC.
One reason why Plaintiff’s claim is unsuccessful is that he fails to point the Court to
records in support of his position.
Indeed, while Plaintiff references his hypertension,
hypertriglyceridemia, hyperlipidemia, and diarrhea in the heading of his claim of error, as well as
in the closing sentence of this discussion, he provides no further discussion of these impairments in
this section of his brief, much less point the court to records indicating these conditions impose
limitations inconsistent with his RFC. “‘Issues 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.”).
Regarding the remaining impairments, Plaintiff claims his sleep apnea and hypoxemia
cause him to be fatigued, and that motor vehicle and work related injuries can happen due to
sleepiness. (PageID.302.) He notes that he takes naps during the day. (PageID.303.) Contrary to
Plaintiff’s assertion, Plaintiff’s sleep apnea and complaints of fatigue were thoroughly evaluated in
the RFC. (PageID.41.) Furthermore, the record does not support Plaintiff’s contention that these
impairments limit him to an extent greater than the extreme restrictions contained in the RFC.
Plaintiff had a sleep study on January 8, 2013, and was diagnosed with severe sleep
apnea. A repeated study was ordered. (PageID.222.) On March 19, 2013, Plaintiff scheduled a visit
to be fitted with a CPAP machine to treat his sleep apnea. (PageID.210.) Plaintiff appears to have
undergone another test on April 4, 2013, after which time he was prescribed a CPAP machine.
(PageID.206.) On June 25, 2013, Dr. Chandra Gera noted that Plaintiff had severe sleep apnea, but
that it was under good control with Plaintiff’s CPAP machine. It was noted he tolerated the machine
fairly well, and reported that it makes him feel better and he does not feel sleepy in the day time.
(PageID.205.) Later, however, on December 17, 2013, Plaintiff reported that he “gets tired more
easily especially in cold weather.” (PageID.242.) But such a vague statement does nothing to
indicate that Plaintiff is in any way more limited than as accounted for in his RFC.
Regarding his cardiomyopathy, Plaintiff points to an April 4, 2013, treatment note
containing a diagnosis of mild cardiomyopathy. (PageID.214.) Plaintiff also references a December
14, 2012, treatment note in which diagnosed him with shortness of breath. (PageID.234.) But “the
mere diagnosis of an impairment does not render an individual disabled nor does it reveal anything
about the limitations, if any, it imposes upon an individual.” McKenzie v. Comm’r of Soc. Sec., No.
99–3400, 2000 WL 687680 at *5 (6th Cir. May 19, 2000) (citing Foster v. Bowen, 853 F.2d 488, 489
(6th Cir. 1988)). The record does indicate Plaintiff’s heart condition rendered him incapable of
performing sedentary work. Indeed on several occasions it was noted Plaintiff’s arrythmia-atrial
fibrillation was “asymptomatic.” (PageID.202, 212.)
In support of his RFC determination, the ALJ noted Plaintiff reported being able to
prepare meals, do laundry, wash dishes, mow the yard with a riding mower, use a snow blower, go
shopping, and walk 150 to 200 feet. (PageID.42.) The ALJ also gave considerable weight to agency
physician Russell Holmes, who found Plaintiff could perform a reduced range of sedentary work.
(PageID.102.) All this provides substantial evidence in support of the ALJ’s RFC determination.
While the Court does not doubt Plaintiff is limited due to his sleep apnea, heart condition, and other
impairments, such impairments are adequately accounted for in his RFC. Plaintiff’s first claim of
error is denied.
The ALJ Properly Evaluated Plaintiff’s Obesity
Next, Plaintiff contends the ALJ failed to consider the effects of his obesity on his
ability to work. (PageID.304.) The effect of obesity on a claimant’s ability to work must be
specifically considered. See SSR 02–1P, 2002 WL 34686281 (Sept. 12, 2002); Shilo v. Comm’r of
Soc. Sec., 600 F. App’x 956, 959 (6th Cir. 2015) (“an ALJ must ‘consider the claimant’s obesity, in
combination with other impairments, at all stages of the sequential evaluation’”) (quoting Nejat v.
Comm’r of Soc. Sec., 359 F. App’x 574, 577 (6th Cir. 2009)).
The ALJ, however, is not obligated to employ any “particular mode of analysis” when
assessing the impact of a claimant’s obesity. See Shilo, 600 F. App’x at 959. Nevertheless, the ALJ
must do more than merely “mention the fact of obesity in passing.” Id. As the Sixth Circuit recently
Obesity . . . must be considered throughout the ALJ’s determinations,
‘including when assessing an individual’s residual functional
capacity,’ precisely because ‘the combined effects of obesity with
other impairments can be greater than the effects of each of the
impairments considered separately.’
Id. (quoting SSR 02–1P, 2002 WL 34686281 at *1–2). The rationale for specifically considering
the effect of obesity on a claimant’s ability to function and perform work activities is
Obesity ‘commonly leads to, and often complicates, chronic diseases
of the cardiovascular, respiratory, and musculoskeletal body systems.’
For example, ‘someone with obesity and arthritis affecting a
weight-bearing joint may have more pain and limitation than might
be expected from the arthritis alone.’ The ALJ also must specifically
take into account ‘the effect obesity has upon the individual’s ability
to perform routine movement and necessary physical activity within
the work environment,’ and consider how ‘fatigue may affect the
individual’ s physical and mental ability to sustain work activity’especially in ‘cases involving sleep apnea.’
Id. (quoting SSR 02–1P, 2002 WL 34686281 at *3–6). But SSR 02–1p cautions that the
Commissioner “will not make assumptions about the severity or functional effects of obesity
combined with other impairments. Obesity in combination with another impairment may or may not
increase the severity or functional limitations of the other impairment. [The Commissioner] will
evaluate each case based on the information in the case record.” SSR 02–1p, 2002 WL 3468281 at
*6. In other words, the ruling does nothing to relieve Plaintiff of the burden of marshaling
competent medical opinions and evidence to show specifically how his obesity exacerbated his other
impairments, or interacted with them, to render him incapable of all suitable work. Plaintiff has not
done so here.
Plaintiff argues that the ALJ’s discussion fails to explain how his obesity “effected
his remaining ability to perform work” and accordingly “the court is unable to review and judge
whether the ALJ correctly considered obesity and it’s [sic] effects on” his RFC. (PageID.305.) But
a review of the ALJ’s decision demonstrates that the ALJ provided an extensive discussion of
Plaintiff’s obesity. At step two, the ALJ found it was a severe impairment. At step three, the ALJ
stated he had considered Plaintiff’s obesity on the effect of his impairments. (PageID.40.) At step
four, the ALJ provided a thorough and accurate recitation of the medical record, including those
treatment notes mentioning Plaintiff’s obesity. The ALJ then concluded that he had “considered
the potential impact of obesity in causing or contributing to co-existing impairments as required by
[SSR] 02-1p. However there is no evidence of any specific or quantifiable impact on pulmonary,
musculoskeletal, endocrine, or cardiac functioning.” (PageID.43.) It is this statement that sets this
case apart from the case Plaintiff claims is analogous, Sleight v. Comm’r of Soc. Sec., 896 F. Supp.
2d 622, 632 (E.D. Mich. 2012). In that case the ALJ only mentioned the claimant’s obesity in
passing by providing a summary of Plaintiff’s treatment notes that discussed the claimant’s obesity.
While the court found the ALJ’s summary demonstrated that the ALJ was cognizant of the
claimant’s obesity, it did not show that the ALJ had considered the claimant’s obesity. Id. at 632633. Here the ALJ’s discussion is much more extensive, and specifically states that Plaintiff’s
obesity was considered in evaluating his RFC. The ALJ found, however, that Plaintiff’s obesity did
not limit him beyond those restrictions contained in the RFC. Plaintiff has not demonstrated
Plaintiff also argues this case must be reversed because the ALJ erroneously found no medical documentation
of sleep apnea. (PageID.306.) This contention is patently meritless and fails upon even a cursory review of the ALJ’s
decision. The ALJ found sleep apnea to be severe at step two. The ALJ noted that to qualify as a medically determinable
impairment, the impairment must be supported by objective clinical and diagnostic findings. (PageID.39.) That the ALJ
found Plaintiff’s sleep apnea to be a severe impairment clearly indicates he found the impairment was supported by
medical documentation. The ALJ also discussed this impairment in the RFC, and referenced sleep studies that diagnosed
Plaintiff with sleep apnea. (PageID.41.) Plaintiff’s contention is therefore rejected.
The ALJ’s Credibility Analysis.4
At the administrative hearing, Plaintiff testified that he was impaired to an extent far
greater than the ALJ recognized. He stated that his arrhythmia-atrial fibrillation caused him to feel
tired and dizzy. He would sleep twelve hours a day. (PageID.77.) He has side effects from his
medication that causes him to have diarrhea roughly three to four days a week. On those days, he
is indisposed five to six times, each for a period of thirty minutes. (PageID.78.) He thought he could
stand for twenty minutes at once and walk for two city blocks. (PageID.80.) He could do household
chores for fifteen to twenty minutes before needing a break, at which point he would lay down on
a recliner for twenty to thirty minutes. (PageID.83–84.) In total, he would spend six to eight hours
a day on the recliner. (PageID.84.) He felt like he could not return to his job as a business manager
for the union because he would retain water in his feet if he was sitting down for too long.
(PageID.89.) The ALJ began his credibility discussion by stating:
After careful consideration of the evidence, the undersigned finds that
the claimant’s medically determinable impairments could reasonably
be expected to cause the alleged symptoms; however, the claimant’s
statements concerning the intensity, persistence and limiting effects
of these symptoms are not entirely credible for the reasons explained
in this decision.
(PageID.42.) Plaintiff claims the ALJ erred in making this finding.
As the Sixth Circuit has long recognized, “pain alone, if the result of a medical
impairment, may be severe enough to constitute disability.” King v. Heckler, 742 F.2d 968, 974 (6th
Cir. 1984); see also Grecol v. Halter, 46 F. App’x 773, 775 (6th Cir. 2002). As the relevant Social
Security regulations make clear, however, a claimant’s “statements about [his] pain or other
Plaintiff presents this credibility argument as his fourth claim of error. The Court will consider this argument
before his third argument, however, as the ALJ’s credibility analysis has some bearing on Plaintiff’s claim that the ALJ’s
hypothetical questions to the VE were deficient.
symptoms will not alone establish that [he is] disabled.” 20 C.F.R. § 404.1529(a); see also Walters
v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997) (quoting 20 C.F.R. § 404.1529(a)); Hash
v. Comm’r of Soc. Sec., 309 F. App’x 981, 989 (6th Cir. 2009). Instead, a claimant’s assertions of
disabling pain and limitation are evaluated under the following standard:
First, we examine whether there is objective medical evidence of an
underlying medical condition. If there is, we then examine: (1)
whether objective medical evidence confirms the severity of the
alleged pain arising from the condition; or (2) whether the objectively
established medical condition is of such a severity that it can
reasonably be expected to produce the alleged disabling pain.
Walters, 127 F.3d at 531 (citations omitted). This standard is often referred to as the Duncan
standard. See Workman v. Comm’r of Soc. Sec., 105 F. App’x 794, 801 (6th Cir. 2004).
Accordingly, “subjective complaints may support a finding of disability only where
objective medical evidence confirms the severity of the alleged symptoms.” Id. (citing Blankenship
v. Bowen, 874 F.2d 1116, 1123 (6th Cir. 1989)). However, where the objective medical evidence
fails to confirm the severity of a claimant’s subjective allegations, the ALJ “has the power and
discretion to weigh all of the evidence and to resolve the significant conflicts in the administrative
record.” Id. (citing Walters, 127 F.3d at 531).
In this respect, it is recognized that the ALJ’s credibility assessment “must be
accorded great weight and deference.” Id. (citing Walters, 127 F.3d at 531); see also 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) (“[i]t [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”)). It is not for
this Court to reevaluate such evidence anew, and so long as the ALJ’s determination is supported
by substantial evidence, it must stand. The ALJ found Plaintiff’s subjective allegations to not be fully
credible, a finding that should not be lightly disregarded. See Varley v. Sec’y of Health & Human
Servs., 820 F.2d 777, 780 (6th Cir. 1987). In fact, as the Sixth Circuit has stated, “[w]e have held
that an administrative law judge’s credibility findings are virtually unchallengeable.” Ritchie v.
Comm’r of Soc. Sec., 540 F. App’x 508, 511 (6th Cir. 2013) (citation omitted).
Plaintiff begins his credibility argument by providing a lengthy excerpt from a seventh
circuit case, Bjornson v. Astrue, 671 F.3d 640 (7th Cir. 2012), that critiques the use of boilerplate
language, such as that quoted above, in discounting a claimant’s credibility. (PageID.308–309.) As
the Sixth Circuit has recognized, however, the “chief concern with the popularity [of boilerplate
credibility language] is the risk that an ALJ will mistakenly believe it sufficient to explain a
credibility finding, as opposed to merely introducing or summarizing one.” Cox v. Comm’r of Soc.
Sec., 615 F. App’x 254, 260 (6th Cir. 2015) (emphasis in original). Accordingly, the Sixth Circuit
has found no violation of Social Security policy when the use of boilerplate credibility language is
followed by a “thorough explanation elsewhere of [the ALJ’s] reasons for doubting [the claimant’s]
account.” Forrest v. Comm’r of Soc. Sec., 591 F. App’x 359, 366 (6th Cir. 2014). Here, the ALJ did
not solely discount Plaintiff’s credibility using the above language. Rather, the ALJ provided the
The undersigned finds that claimant’s medically determinable
impairments could reasonably be expected to cause the alleged
symptoms; however, claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not entirely
credible for the reasons explained in this decision. Claimant
indicated that she [sic] is primarily limited [due] to his atrial
fibrillation, diabetes, and hypertension. The claimant said he stopped
working in 2008 because the union was merged and he lost his job,
not due to his disability. He has not worked anywhere else because
no [one] would hire him as he was a union representative, however,
the undersigned notes that the inability to secure employment is not
the same as the inability to perform basic work activities if hire.
Office notes show the claimant continues to be obese and has been
somewhat noncompliant in his diabetic diet and he has not lost much
weight although his doctors recommended weight loss. The evidence
does not fully support claimant’s contentions as to the magnitude of
his symptomatology and dysfunction, including his expressed level
of fatigue, pain, dizziness, and need to rest for extended intervals. No
physician imposed a work preclusive limitation on claimant’s
functioning, or opined that he was disabled. Claimant’s alleged
impairments are not of a scale to reasonably conclude that he is
prohibited from performing work activity within the confines of the
residual functional capacity adopted.
(PageID.43.) As this discussion makes plain, the ALJ articulated several specific reasons for finding
Plaintiff’s allegations were not credible, and thus fulfilled his obligation to “all of the evidence in
the case record.” SSR 96-7p, 1996 WL 374186 at *5 (July 2, 1996). Plaintiff contends that the ALJ
could not reference his activities of daily living in his credibility discussion. (PageID.310–311.) But
agency regulations clearly allow an ALJ to consider a claimant’s daily activities in assessing the
credibility of the claimant’s statements. SSR 96-7p, 1996 WL 374186 at *3 (July 2, 1996.) In any
event, it does not appear the ALJ referenced Plaintiff’s activities of daily living when discounting
his credibility in this case. Plaintiff alleges no other error in regards to the reasons provided by the
ALJ for discounting his credibility.
Finally, Plaintiff contends the ALJ should have discussed his medication side effects
in connection to his credibility. Allegations of side effects must be supported by objective medical
evidence. See Essary v. Comm’r of Soc. Sec., 114 F. App’x 662, 665–66 (6th Cir. 2004) (where
claimant testified that she suffered from dizziness and drowsiness as a result of her medications, the
ALJ did not err in finding that she suffered no side effects where her medical records contain no such
reported side effects to her physicians); Farhat v. Sec’y of Health & Human Servs., No. 91–1925,
1992 WL 174540 at *3 (6th Cir. July 24, 1992) (“[claimant’s] allegations of the medication’s
side-effects must be supported by objective medical evidence”). Here, Plaintiff claims his
medications lead to frequent diarrhea, but he depends only on his testimony in support. The record
is devoid of any complaints regarding this side effect. To the contrary, while Plaintiff complained
he experiences side effects from Xarelto (PageID.77–78), a March 18, 2013, treatment note from Dr.
Daryl Melvin indicated he was tolerating the Xarelto well. (PageID.212.) As such Plaintiff has not
demonstrated error here.
For all the above reasons, Plaintiff’s claim of error is denied.
The ALJ’s Hypothetical to the Vocational Expert.
Plaintiff also argues that the ALJ’s finding at step four of the sequential evaluation
process is unsupported by the evidence. While the ALJ may satisfy his burden through the use of
hypothetical questions posed to a vocational expert, such questions must accurately portray
Plaintiff’s physical and mental impairments. See Cline v. Comm’r of Soc. Sec., 96 F.3d 146, 150
(6th Cir. 1996). The hypothetical question which the ALJ posed to the vocational expert simply
asked whether there existed jobs which an individual could perform consistent with Plaintiff’s RFC,
to which the vocational expert indicated that Plaintiff was capable of returning to his past relevant
work. The ALJ’s RFC determination is supported by substantial evidence and there was nothing
improper or incomplete about the hypothetical questions the ALJ posed to the vocational expert.
Plaintiff’s argument here is nothing more than an assertion the ALJ was required to
include his complaints regarding his fatigue and medication side effects. The ALJ found these
complaints were not credible, however, and the Court has found this determination is supported by
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 Court concludes, therefore, that the ALJ properly relied upon the vocational expert’s
For the reasons set forth herein, the Commissioner’s decision is supported by
substantial evidence and therefore will be AFFIRMED.
A separate judgment shall issue.
April 19, 2017
/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE
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