United States District Court, E.D. Michigan, Southern Division
AND ORDER OVERRULING OBJECTION , ADOPTING REPORT AND
RECOMMENDATION , GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT , AND
GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT 
STEPHEN J. MURPHY, III United States District Judge
Commissioner of the Social Security Administration denied
Plaintiff's application for Supplemental Security Income
and Disability Insurance Benefits in a decision issued by an
Administrative Law Judge ("ALJ"). The SSA Appeals
Council declined to review the ruling, and Plaintiff
appealed. The Court referred the matter to the magistrate
judge and the parties filed cross-motions for summary
judgment. The magistrate judge issued a Report and
Recommendation ("Report") suggesting the Court
grant in part and deny in part Plaintiff's motion and
grant in part and deny in part the Commissioner's motion.
The Commissioner filed a timely objection. Having examined
the record and considered the objection de novo, the Court
will overrule the objection, adopt the Report, grant in part
and deny in part Plaintiff's motion for summary judgment,
grant in part and deny in part the Commissioner's motion
for summary judgment, and remand the case to the ALJ for
further consideration consistent with the Report and this
Report properly details the events giving rise to
Plaintiff's action. ECF 15. The Court will therefore
adopt that portion of the Report.
Rule 72(b) governs the review of a magistrate judge's
report. A district court's standard of review depends
upon whether a party files objections. The Court need not
undertake any review of portions of a report to which no
party has objected. Thomas v. Arn, 474 U.S. 140, 153
(1985). De novo review is required, however, if the parties
"serve and file specific written objections to the
proposed findings and recommendations." Fed.R.Civ.P.
72(b)(2). In conducting a de novo review, "[t]he
district judge may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter
to the magistrate judge with instructions." Fed.R.Civ.P.
reviewing a case under 42 U.S.C. § 405(g), the Court
"must affirm the Commissioner's conclusions absent a
determination that the Commissioner has failed to apply the
correct legal standards or has made findings of fact
unsupported by substantial evidence in the record."
Longworth v. Comm'r Soc. Sec. Admin., 402 F.3d
591, 595 (6th Cir. 2005) (quotations omitted). Substantial
evidence consists of "more than a scintilla of evidence
but less than a preponderance" such that a
"reasonable mind might accept it as adequate to support
a conclusion." Rogers v. Comm'r of Soc.
Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quotations
omitted). An ALJ may consider the entire body of evidence
without directly addressing each piece in his decision.
Kornecky v. Comm'r of Soc. Sec., 167 Fed.Appx.
496, 507-08 (6th Cir. 2006). And an ALJ need not "make
explicit credibility findings as to each bit of conflicting
testimony, so long as his factual findings as a whole show
that he implicitly resolved such conflicts."
making a disability determination, an ALJ is required to
perform a five-step sequential analysis. Walters v.
Comm'r of Soc. Sec., 127 F.3d 525, 529 (6th Cir.
1997) (citing 20 C.F.R. § 404.1520(4)). The
Commissioner's objection pertains solely to the
Report's analysis of the fifth step, so the Court will
adopt the remainder of the Report without further review.
Thomas, 474 U.S. at 154. As to the fifth step, the
Report's analysis is accurate and the Court will overrule
court reaches the fifth step, it is determined that the
plaintiff has a severe impairment and that she can no longer
perform her previous work. See 20 C.F.R. §
404.1520(4)(i)-(iv). The remaining question is whether the
plaintiff can make an adjustment to other work despite her
impairment. Id. at § 404.1520(4)(v). The Report
found that the ALJ inadequately considered Plaintiff's
limitations when determining that Plaintiff could perform
other unskilled work. ECF 15, PgID 556-60. The Report
therefore recommends remanding the case for additional
questioning of a vocational expert. Id. at 558,
Commissioner argues that additional questioning is
unnecessary because the ALJ can (and did) base his decision
solely on the "Medical-Vocational Guidelines" at 20
C.F.R. Part 404, Subpart P, Appendix 2. ECF 16, PgID 565-66.
The pivotal question, then, is whether the ALJ was permitted
to proceed directly to the Medical-Vocational Guidelines. The
answer is no.
general rule is an ALJ may not rely solely on the
Medical-Vocational Guidelines if the plaintiff's
condition constitutes a nonexertional impairment. Mullins
v. Sec'y of Health & Human Servs., 836 F.2d 980,
985 (6th Cir. 1987). But for that rule to apply, the
plaintiff's nonexertional limitations must be severe
enough to restrict a full range of gainful employment at the
designated level. Id. Plaintiff's limitation
here- difficulties with concentration, persistence, or
pace-is nonexertional. See Lobdell v. Comm'r of Soc.
Sec., No. 14-cv-10399, 2015 WL 3441161, at *9 n.2 (E.D.
Mich. May 28, 2015). The key to resolving the
Commissioner's objection is therefore to resolve whether
Plaintiff's limitation was sufficiently severe to render
reliance on the Medical-Vocational Guidelines inappropriate.
Plaintiff argued that moderate limitations with
concentration, persistence, or pace are not automatically
accounted for by a limitation to unskilled work. ECF 15, PgID
556. And case law in this Court supports that position.
See Bonham-Conn v. Comm'r of Soc. Sec., No.
08-13248, 2009 WL 3211000, at *6 (E.D. Mich. Sept. 29, 2009)
("[S]ubstantial evidence does not support the ALJ's
conclusion that [plaintiff] could perform [unskilled work]
despite his moderate limitations in concentration,
persistence, or pace[.]"); Benton v. Comm'r of
Soc. Sec., 511 F.Supp.2d 842, 849 (E.D. Mich. 2007);
Edwards v. Barnhart, 383 F.Supp.2d 920, 930-31 (E.D.
Mich. 2005). Consequently, the ALJ needed to assess the
severity of Plaintiff's difficulties with concentration,
persistence, or pace to determine whether it was appropriate
to apply the Medical-Vocational Guidelines. The Report
concluded that the ALJ failed to adequately perform that
analysis. ECF 15, PgID 560-62.
Commissioner disagrees and argues that the Report's
holding is inconsistent. Specifically, the Commissioner
posits that an earlier portion of the Report affirmed the
ALJ's finding that Plaintiff could do unskilled work at
any exertional level. ECF 16, PgID 566 (citing ECF 15, PgID
555). Because of that purported finding, the Commissioner
contends that the ...