Petition for Writ of Certiorari — Michael J. Biestek, Petitioner v. Nancy A. Berryhill, Acting Commissioner of Social Security

Supreme Court briefFeb 21, 2018

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No. ______

IN THE

Supreme Court of the United States

_________

MICHAEL J. BIESTEK,

Petitioner,

COMMISSIONER OF SOCIAL SECURITY,

Respondent.

________

On Petition for a Writ of Certiorari

To the United States Court of Appeals

For the Sixth Circuit

________

PETITION FOR A WRIT OF CERTIORARI

________

FREDERICK J. DALEY, JR.

MEREDITH MARCUS

DALEY DISABILITY LAW, PC

601 W. Randolph Street,

Suite 300

Chicago, IL 60661

(312) 561-3030

ISHAN K. BHABHA

Counsel of Record

NATACHA Y. LAM

Jenner & Block LLP

1099 New York Ave., NW,

Suite 900

Washington, DC 20001

(202) 637-6327

ibhabha@jenner.com

QUESTION PRESENTED

When assessing an applicant’s eligibility for social

security benefits on the basis of a disability, an

administrative law judge (“ALJ”) must determine

whether the applicant “can make an adjustment to other

work.”

20 C.F.R. § 404.1520(a)(4)(v).

This

determination must be supported by substantial

evidence. See 42 U.S.C. § 405(g). In making the

determination, an ALJ is authorized to call a vocational

expert to testify about other work available to an

applicant.

See 20 C.F.R. § 404.1566(e).

These

assessments occur hundreds of thousands of times

annually.

The question presented is:

Whether a vocational expert’s testimony can

constitute substantial evidence of “other work,” 20

C.F.R. § 404.1520(a)(4)(v), available to an applicant

for social security benefits on the basis of a disability,

when the expert fails upon the applicant’s request to

provide the underlying data on which that testimony

is premised.

TABLE OF CONTENTS

QUESTION PRESENTED .............................................. i

TABLE OF AUTHORITIES .......................................... v

PETITION FOR A WRIT OF CERTIORARI ............ 1

OPINION BELOW............................................................ 1

JURISDICTION ................................................................ 1

STATUTES

AND

REGULATIONS

INVOLVED........................................................................ 1

INTRODUCTION ............................................................. 2

STATEMENT OF THE CASE ....................................... 5

Statutory

and

Regulatory

Framework .................................................. 5

Factual Background ................................... 8

REASONS FOR GRANTING THE WRIT ................ 11

THERE IS AN ACKNOWLEDGED

CONFLICT OF AUTHORITY ON THE

QUESTION PRESENTED. .............................. 12

The Seventh Circuit Requires

Vocational Experts to Produce

Upon Request the Data Underlying

Their Opinions Regarding “Other

Work” Available to an Applicant. .......... 13

iii

The Second, Sixth, and Ninth

Circuits Do Not Require Vocational

Experts to Produce Upon Request

the

Data

Underlying

Their

Opinions Regarding “Other Work”

Available to an Applicant. ....................... 15

II.

THIS

CASE

PRESENTS

RECURRING, IMPORTANT ISSUE

THAT WARRANTS THIS COURT’S

REVIEW. .............................................................. 19

III.

THIS CASE PRESENTS AN IDEAL

VEHICLE

RESOLVE

THIS

CONFLICT. .......................................................... 20

IV.

THE SIXTH CIRCUIT’S DECISION

WAS INCORRECT............................................. 21

CONCLUSION ................................................................ 24

Appendix A

Biestek v. Commissioner of Social Security,

880 F.3d 778 (6th Cir. 2017) ........................................ 1a

Appendix B

Biestek v. Berryhill, Civil Case No. 16-10422,

Opinion and Order Adopting Magistrate

Judge’s Report and Recommendation (E.D.

Mich. Mar. 30, 2017) ................................................... 25a

Appendix C

Biestek v. Berryhill, Civil Case No. 16-10422,

2017 WL 1173775 (E.D. Mich. Mar. 30, 2017) ........ 35a

Appendix D

In re Biestek, Office of Disability Adjudication

and Review, Decision (SSA Nov. 24, 2015) ............ 75a

Appendix E

Excerpt of Hearing Transcript, In re Biestek,

Office of Disability Adjudication and Review,

Decision (SSA July 21, 2015) .................................. 114a

Appendix F

Excerpt of Questioning of the Vocational

Expert Excerpt from Hearing at Issue in,

Mckinnie v. Barnhart, 368 F.3d 907 (7th Cir.

2004) ........................................................................... 120a

TABLE OF AUTHORITIES

CASES

Allen v. Califano, 613 F.2d 139 (6th Cir. 1980) ......... 7

Bauzo v. Bowen, 803 F.2d 917 (7th Cir. 1986) ........... 7

Bayliss v. Barnhart, 427 F.3d 1211 (9th Cir.

2005) ............................................................... 4, 10, 17

Brault v. Social Security Administration,

Commissioner, 683 F.3d 443 (2d Cir.

2012) ............................................... 4, 7, 10, 15, 16, 17

Britton v. Astrue, 521 F.3d 799 (7th Cir. 2008) ....... 23

CIBA Corp. v. Weinberger, 412 U.S. 640

(1973) ....................................................................... 22

Donahue v. Barnhart, 279 F.3d 441 (7th Cir.

2002) ................................................... 4, 10, 14, 21, 22

Early v. Colvin, No. 3:14-CV-06015-DWC,

2015 WL 4231598 (W.D. Wash. July 10,

2015) .................................................................... 17-18

Federal Power Commission v. Florida Power

& Light Co., 404 U.S. 453 (1972) .......................... 22

McKinnie v. Barnhart, 368 F.3d 907 (7th Cir.

2004) ....................................... 4, 10, 13, 14, 20, 21, 23

Merryflorian v. Astrue, No. 12-CV-2493-IEG

(DHB), 2013 WL 4783069 (S.D. Cal. Sept. 6,

2013) ......................................................................... 18

Richardson v. Perales, 402 U.S. 389 (1971) ............. 21

Welsh v. Commissioner Social Security, 662 F.

App’x 105 (3d Cir. 2016) ........................................ 18

STATUTES

28 U.S.C. § 1254(1) ......................................................... 1

42 U.S.C. § 405(b)(1) ............................................ 1, 7, 11

42 U.S.C. § 405(g)................................... 1, 3, 6, 7, 21, 24

42 U.S.C. § 423 ............................................................... 7

42 U.S.C. § 423(a) ........................................................... 5

42 U.S.C. § 423(d)(1)(A) ................................................ 6

42 U.S.C. § 423(d)(2)(A) ............................................ 6, 7

42 U.S.C. § 1381(a) ......................................................... 2

42 U.S.C. § 1381a ........................................................... 7

42 U.S.C. § 1382(a) ......................................................... 5

42 U.S.C. § 1382c(a)(3)(A)............................................. 6

42 U.S.C. § 1382c(a)(3)(B) ......................................... 6, 7

OTHER AUTHORITIES

20 C.F.R. § 404.907 .................................................... 2, 6

20 C.F.R. § 404.929 .................................................... 2, 6

20 C.F.R. § 404.967 ........................................................ 6

20 C.F.R. § 404.981 ........................................................ 6

20 C.F.R. § 404.1503(a).............................................. 2, 6

20 C.F.R. § 404.1503(b) ............................................. 2, 6

20 C.F.R. § 404.1520(a)(4) ......................................... 3, 6

20 C.F.R. § 404.1520(a)(4)(i) ......................................... 6

vii

20 C.F.R. § 404.1520(a)(4)(ii) ........................................ 6

20 C.F.R. § 404.1520(a)(4)(iii) ....................................... 7

20 C.F.R. § 404.1520(a)(4)(iv) ....................................... 7

20 C.F.R. § 404.1520(a)(4)(v) ...... 1, 2, 3, 5, 7, 12, 17, 18

20 C.F.R. § 404.1563(d) ................................................. 9

20 C.F.R. § 404.1566(e).................................................. 3

20 C.F.R. § 416.410 ........................................................ 7

20 C.F.R. § 416.903(a)................................................ 2, 6

20 C.F.R. § 416.903(b) ............................................... 2, 6

20 C.F.R. § 416.920(a)(4) ........................................... 3, 6

20 C.F.R. § 416.920(a)(4)(i) ........................................... 6

20 C.F.R. § 416.920(a)(4)(ii) .......................................... 6

20 C.F.R. § 416.920(a)(4)(iii) ......................................... 7

20 C.F.R. § 416.920(a)(4)(iv) ......................................... 7

20 C.F.R. § 416.920(a)(4)(v) ...................................... 3, 7

20 C.F.R. § 416.963(d) ................................................... 9

20 C.F.R. § 416.966(e).................................................... 3

20 C.F.R. § 416.1407 .................................................. 2, 6

20 C.F.R. § 416.1414 .................................................. 2, 6

20 C.F.R. § 416.1467 ...................................................... 6

20 C.F.R. § 416.1481 ...................................................... 6

viii

Social Security Administration, SSA Pub. No.

13-11826, Annual Statistical Report on the

Social Security Disability Insurance

Program,

2016

(Oct.

2017),

http://www.ssa.gov/policy/docs/statcomps/

di_asr/2016/di_asr16.pdf ............................. 4, 12, 19

Social Security Administration, SSI Federal

Payment Amounts For 2018, Social

Security,

http://www.ssa.gov/oact/cola/

SSI.html (last visited Feb. 13, 2018) .................. 7-8

PETITION FOR A WRIT OF CERTIORARI

Michael J. Biestek petitions for a writ of certiorari to

review the judgment of the United States Court of

Appeals for the Sixth Circuit.

OPINION BELOW

The decision of the Sixth Circuit (Pet. App. 1a) is

reported at 880 F.3d 778 (6th Cir. 2017). The decision of

the district court (Pet. App. 25a) is unreported.

JURISDICTION

The judgment of the Sixth Circuit was entered on

December 27, 2017.1 This Court has jurisdiction

pursuant to 28 U.S.C. § 1254(1).

STATUTES AND REGULATIONS INVOLVED

42 U.S.C. § 405(b)(1) provides:

Evidence may be received at any hearing before

the Commissioner of Social Security even though

inadmissible under rules of evidence applicable to

court procedure.

42 U.S.C. § 405(g) provides:

The findings of the Commissioner of Social

Security as to any fact, if supported by

substantial evidence, shall be conclusive.

20 C.F.R. § 404.1520(a)(4)(v) provides:

At the fifth and last step, we consider our

assessment of your residual functional capacity

and your age, education, and work experience to

The district court had jurisdiction over this case pursuant to 42

U.S.C. § 405(g).

see if you can make an adjustment to other work.

If you can make an adjustment to other work, we

will find that you are not disabled. If you cannot

make an adjustment to other work, we will find

that you are disabled.

INTRODUCTION

A person is not eligible for social security disability

benefits if the person can “make an adjustment to other

work.” 20 C.F.R. § 404.1520(a)(4)(v). This case presents

the question whether the Social Security Administration

may permissibly deny benefits based on only a

vocational expert’s testimony that “other work” exists,

when the vocational expert refuses to disclose the data

underlying that testimony. There is a well-established,

and entrenched, conflict among the circuits on this

question, and this case presents the ideal vehicle for this

Court to resolve the issue.

Applications for social security benefits on the basis

of disability are first reviewed by either an employee of

the relevant state agency or an employee of the Social

Security Administration (“SSA”).2

20 C.F.R.

§§ 404.1503(a)–(b), 416.903(a)–(b). If an application is

denied, the applicant may request reconsideration. 20

C.F.R. §§ 404.907, 416.1407. If the application is denied

again upon reconsideration, the applicant may request

review by an administrative law judge (“ALJ”). 20

C.F.R. §§ 404.929, 416.1414. The ALJ must make factual

This petition will use the term “social security benefits” to refer to

both Social Security Disability Income, see 42 U.S.C. § 423(a), and

Supplemental Security Income, see 42 U.S.C. § 1381(a). For the

purposes of the question presented, the distinctions between the

two programs are immaterial.

findings regarding an applicant’s eligibility for social

security benefits pursuant to a five-step process laid out

in 20 C.F.R. § 404.1520(a)(4) and repeated in 20 C.F.R.

§ 416.920(a)(4).

Each of these findings must be

supported by substantial evidence. See 42 U.S.C.

§ 405(g). Under the fifth of these steps, the ALJ must

determine whether the applicant “can make an

adjustment

other

work.”

C.F.R.

§§ 404.1520(a)(4)(v), 416.920(a)(4)(v). To make this

finding, ALJs may rely on vocational experts who testify

regarding jobs that would be available to an applicant

given the applicant’s disability, age, education, and work

experience. 20 C.F.R. §§ 404.1566(e), 416.966(e).

Petitioner Michael Biestek applied for social security

benefits on the basis of disability in light of a severe, and

disabling, physical impairment. Pet. App. 3a. During a

hearing before an ALJ, a vocational expert testified

regarding various jobs that would have been available to

Mr. Biestek notwithstanding his disability. Pet. App.

116a-117a.

When requested by Mr. Biestek, the

vocational expert declined to produce the data and

analyses underlying her conclusions, citing “the

confidentiality of her files.” Pet. App. 20a, 118a-119a.

The ALJ refused to require the expert to produce this

information, even in a redacted form. Pet. App. 20a,

118a-119a. The ALJ then denied Mr. Biestek disability

benefits for the full time-period specified in his

application, finding based on only the expert’s testimony

that Mr. Biestek could have secured certain forms of

employment for a limited period of time. Pet. App. 78a79a, 109a-110a.

Reviewing the ALJ’s findings for substantial

evidence, The Sixth Circuit affirmed the ALJ. Pet. App.

24a. In its decision, the court recognized that it was

ruling on a question over which there was “a divide . . .

between the Seventh Circuit and several other circuits

that have staked a position.” Pet. App. 20a. In ruling

that “substantial evidence” supported the ALJ’s finding

of other work available to Mr. Biestek, despite the

expert’s refusal to produce any data whatsoever

substantiating her conclusion, the Sixth Circuit joined

the Second and Ninth Circuits. See Pet. App. 21a-22a;

Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d 443, 45051 (2d Cir. 2012); Bayliss v. Barnhart, 427 F.3d 1211,

1217-18 (9th Cir. 2005). The Seventh Circuit has held

directly to the contrary: a vocational expert’s testimony

cannot constitute substantial evidence of other work

available to a social security benefits applicant if the

expert fails to produce on demand any data underlying

the expert’s conclusions. See McKinnie v. Barnhart, 368

F.3d 907, 911 (7th Cir. 2004) (per curiam); Donahue v.

Barnhart, 279 F.3d 441, 446-47 (7th Cir. 2002).

As the number of cases addressing this question

demonstrates, the issue arises frequently because the

§ 404.1520(a)(4)(v) determination must be made in

hundreds of thousands of cases each year before an

applicant receives social security benefits on the basis of

a disability. See Soc. Sec. Admin., SSA Pub. No. 1311826, Annual Statistical Report on the Social Security

Disability Insurance Program, 2016 tbl. 65 (Oct. 2017)

(finding that from 1999 to 2015, 30-40% of all medicalbased denials of benefits, of which there are hundreds of

thousands, were based on the applicant’s ability to do

other types of work) (hereinafter “SSA Data”),

http://www.ssa.gov/policy/docs/statcomps/di_asr/2016/d

i_asr16.pdf. This issue is also important, as an adverse

ruling automatically renders an applicant ineligible for

valuable government benefits.

This circuit split,

therefore, frustrates the fair and uniform distribution of

federal benefits.

This case is a clean vehicle for resolving this

question. The facts are undisputed. The Sixth Circuit

squarely held as a matter of law that the vocational

expert’s testimony—absent any of the underlying data

Mr. Biestek requested—could constitute substantial

evidence of other work available to Mr. Biestek under

§ 404.1520(a)(4)(v). Had Mr. Biestek’s case arisen in the

Seventh rather than the Sixth Circuit, the case would

have come out the other way. Indeed, the Sixth Circuit

expressly identified the conflict among the circuits in its

decision.

The petition for certiorari should be granted.

STATEMENT OF THE CASE

A. Statutory and Regulatory Framework

Under the Social Security Act, individuals with a

qualifying disability may receive supplemental security

income (“SSI”) if they present sufficient financial need,

42 U.S.C. § 1382(a), and social security disability

insurance (“SSDI”) if they have worked for a designated

period of time and paid sufficient Social Security taxes

on their income, 42 U.S.C. § 423(a).

To be eligible for either form of social security

benefits on the basis of disability, the applicant must be

unable “to engage in any substantial gainful activity by

reason of any medically determinable physical or mental

impairment” that is expected to result in death or last

for at least twelve continuous months. 42 U.S.C.

§§ 423(d)(1)(A), 1382c(a)(3)(A).

This requirement

includes an inability to perform both the applicant’s

prior work and any work that exists in significant

numbers nationally or in the applicant’s region, taking

into consideration the applicant’s age, education, and

work experience.

42 U.S.C. §§ 423(d)(2)(A),

1382c(a)(3)(B). Initial responsibility for determining

eligibility rests with either the relevant state agency

authorized to make disability determinations or the

Social Security Administration.

20 C.F.R.

§§ 404.1503(a)–(b), 416.903(a)–(b). An applicant who

receives an adverse determination may appeal the

determination by, first, petitioning for reconsideration,

20 C.F.R. §§ 404.907, 416.1407; second, seeking a hearing

before an administrative law judge, 20 C.F.R.

§§ 404.929, 416.1414; third, requesting review by the

SSA Appeals Council, 20 C.F.R. §§ 404.967, 416.1467;

and fourth, seeking judicial review, see 42 U.S.C.

§ 405(g); 20 C.F.R. §§ 404.981, 416.1481.

Pursuant to 20 C.F.R. § 404.1520(a)(4) for SSDI and

20 C.F.R. § 416.920(a)(4) for SSI, an individual must

satisfy a “five-step sequential evaluation process” to

qualify for social security benefits on the basis of a

disability. First, the applicant must not be engaged in

any substantial gainful activity.

20 C.F.R.

§§ 404.1520(a)(4)(i), 416.920(a)(4)(i).

Second, the

applicant must have a severe medically determinable

physical or mental impairment.

20 C.F.R.

§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).

Third, if the

applicant’s impairments meet or equal one of the

impairments listed in Appendix 1 of the regulation, the

applicant is disabled and eligible for benefits. 20 C.F.R.

§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the applicant’s

impairments do not satisfy the third step, the applicant

must satisfy two additional requirements. Fourth, the

applicant’s impairments must render the applicant

unable to perform their prior work.

20 C.F.R.

§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). And, fifth, the

applicant must be unable, based on the applicant’s

impairments, age, education, and work experience, to

adjust to another readily available profession. 20 C.F.R.

§§ 404.1520(a)(4)(v), 416.920(a)(4)(v); see 42 U.S.C.

§§ 423(d)(2)(A), 1382c(a)(3)(B) (defining “work” for

disability determinations as only “work which exists in

significant numbers either in the region where such

individual lives or in several regions in the country”).

The burden of proof lies with the applicant for the

first four steps, but the burden shifts to the

Commissioner for the fifth. See Brault, 683 F.3d at 445;

Bauzo v. Bowen, 803 F.2d 917, 923 (7th Cir. 1986); Allen

v. Califano, 613 F.2d 139, 145 (6th Cir. 1980). While the

ALJ may consider evidence otherwise inadmissible in a

court of law, see 42 U.S.C. § 405(b)(1), all of the ALJ’s

factual findings must be supported by substantial

evidence regardless of admissibility, 42 U.S.C. § 405(g).

If an applicant satisfies the five steps, then the

applicant is disabled and may be eligible for SSDI under

42 U.S.C. § 423 and for SSI under 42 U.S.C. § 1381a.3

This year, based on cost-of-living adjustments, SSI is $750 per

month, minus certain amounts of the individual’s income, 20 C.F.R.

§ 416.410. Soc. Sec. Admin., SSI Federal Payment Amounts For

2018, http://www.ssa.gov/oact/cola/SSI.html (last visited Feb. 13,

Failure on any of these steps, except for step three,

renders the applicant ineligible for social security

benefits on the basis of disability.

B. Factual Background

Petitioner Michael Biestek worked for most of life as

a carpenter and laborer, building scaffolding on

construction sites. Pet. App. 3a, 109a. In June 2005 he

became unemployed, and has remained unemployed

since because of lower back pain caused by a

degenerative disc disease, depression, and Hepatitis C.

Pet. App. 3a.

In March 2010, Mr. Bietsek applied for social security

benefits, alleging that his disability commenced on

October 28, 2009. Pet. App. 3a. His application was

denied by the SSA and by an ALJ that reviewed his

application. Pet. App. 3a. The Appeals Council denied

review. Pet. App. 3a. Mr. Biestek sought district court

review of the ALJ’s decision. Pet. App. 3a. The district

court vacated and remanded the denial of Mr. Biestek’s

application, finding the ALJ had failed to procure

necessary medical opinions and had made an improper

assumption regarding the vocational expert’s testimony.

Pet. App. 3a.

On remand, the ALJ denied Mr. Biestek’s application

for benefits from October 28, 2009, his alleged onset date,

to May 2013, finding that Mr. Biestek had “the residual

functional capacity to perform sedentary work” with

several limitations, and that such work was readily

2018). The amount of an individual’s SSDI benefit is based on the

amount of income upon which the individual had paid Social

Security taxes.

available. Pet. App. 89a-90a, 109a-110a. The ALJ found,

however, that Mr. Biestek was eligible for disability

benefits beginning on May 2013, when his advanced

age seriously impacted his ability to adjust to other

work. Pet. App. 112a; see 20 C.F.R. §§ 404.1563(d),

416.963(d). In determining that Mr. Biestek could have

found alternate employment from October 28, 2009, to

May 2013, the ALJ relied solely on the testimony of a

vocational expert. Pet. App. 111a-112a. The expert

opined that Mr. Biestek “would have been able to

perform the requirements of representative sedentary

unskilled occupations,” such as a bench assembler, with

240,000 jobs nationally and 6,000 jobs in Southeast

Michigan, and a sorter, with 120,000 jobs nationally and

1,500 jobs in Southeast Michigan. Pet. App. 111a, 116a.

The expert further opined that such jobs were available

to Mr. Biestek despite his additional limitations “based

on her knowledge and experience of the job market in

Southeastern Michigan.” Pet. App. 111a; see also Pet.

App. 117a (testifying that her estimate of jobs available

to Mr. Biestek despite his additional severe limitations

“is based on [her] professional experience”).

Before the ALJ, Mr. Biestek questioned the accuracy

of the vocational expert’s opinion, and requested that the

expert produce the job analyses and labor market

surveys she had relied upon to reach her conclusions on

each job’s requirements and availability. Pet. App. 117a119a. The vocational expert refused to provide this data

in any form, citing the confidentiality of her files. Pet.

App. 118-119a. Instead, she claimed her opinion could be

relied upon based solely on her “professional

experience” and the Department of Labor’s Dictionary

of Occupational Titles, which does not address any of

Mr. Biestek’s additional limitations and which defines

various types of jobs but provides no data on their

current availability in regions throughout the country.

See Pet. App. 117a. The ALJ refused to require the

expert to provide the relied-upon data, even in redacted

form, Pet. App. 118a-119a, and found that significant

numbers of positions were available to Mr. Biestek from

October 28, 2009, to May 2013, based on the expert’s

testimony alone. Pet. App. 109a-110a.

Reviewing the ALJ’s findings for substantial

evidence, the district court affirmed. Pet. App. 33a. The

court found, as a matter of law, that the ALJ was

entitled to rely solely on the vocational expert’s

testimony to find substantial evidence of jobs available

to Mr. Biestek, notwithstanding the expert’s refusal to

provide any of the data underlying that testimony. Pet.

App. 28a-30a.

The Sixth Circuit affirmed, recognizing that it was

ruling on a question over which there was “a divide . . .

between the Seventh Circuit and several other circuits

that have staked a position.” Pet. App. 20a. Quoting the

Second Circuit’s observation that the Seventh Circuit’s

rule “has not been a popular export,” Pet. App. 21a

(quoting Brault, 683 F.3d at 449), the Sixth Circuit

joined the Second and Ninth Circuits, holding that there

exists no “oblig[ation for] vocational experts to provide

the data and reasoning used in support of their

conclusions upon request.” Pet. App. 21a. See Brault,

683 F.3d at 449; Bayliss, 427 F.3d at 1217-18. But see

Donahue, 279 F.3d at 446; McKinnie, 368 F.3d at 910-11.

The Sixth Circuit found that in 42 U.S.C. § 405(b)(1),

“Congress specifically exempted Social Security

disability proceedings from the strictures of the Federal

Rules of Evidence, allowing ALJs to consider a broader

range of potentially relevant information than would be

admissible in an ordinary court of law.” Pet App. 21a.

See 42 U.S.C. § 405(b)(1) (“Evidence may be received at

any hearing before the Commissioner of Social Security

even though inadmissible under rules of evidence

applicable to court procedure.”). Yet, the Court held,

requiring a vocational expert to produce the data

underlying his or her opinion would “effectively import

a key provision of the Federal Rules of Evidence into

Social Security proceedings.” Pet. App. 21a. The Sixth

Circuit also rejected the Seventh Circuit’s rule that

vocational experts must produce the data supporting

their conclusions because the Sixth Circuit found “little

clarity on how to apply the Donahue and McKinnie

standards.” Pet. App. 22a.

The Court observed that while “vocational expert

testimony that is ‘conjured out of whole cloth’ cannot be

considered substantial evidence,” here Mr. Biestek

“aired his concerns to the ALJ who accepted the

vocational expert’s testimony over his objections.” Pet.

App. 22a (quoting Donahue, 279 F.3d at 446). The Sixth

Circuit thus concluded “the ALJ’s acceptance of [the

vocational expert’s] testimony cannot be said to have

been improper.” Pet. App. 23a (alteration in original)

(quoting Sias v. Sec’y of Health & Human Servs., 861

F.2d 475, 481 (6th Cir. 1988)).

REASONS FOR GRANTING THE WRIT

This case presents the ideal vehicle for this Court to

resolve an acknowledged and entrenched conflict among

the circuits on an important and frequently recurring

legal issue that arises in hundreds of thousands of social

security ALJ proceedings annually. See SSA Data at tbl.

63. If Mr. Biestek’s case had arisen in the Seventh

Circuit, the vocational expert’s testimony would not

have constituted substantial evidence of the “other

work,” 20 C.F.R. § 404.1520(a)(4)(v), available to Mr.

Biestek, once the vocational expert refused upon

request to provide any data or analysis supporting her

conclusions. Because his case arose in the Sixth

Circuit—as it would were it to have arisen in the Second

or Ninth Circuits—the expert’s challenged testimony

alone did constitute substantial evidence.

This circuit conflict has existed for over fifteen years,

and further percolation is unnecessary. There is no

justification for the current geographic discrepancy in

how ALJs assess vocational expert testimony in the

hundreds of thousands of social security benefits

proceedings in which vocational experts testify annually,

and this Court’s review is warranted.

The petition for certiorari should be granted.

I. THERE IS AN ACKNOWLEDGED CONFLICT

OF AUTHORITY ON THE QUESTION

PRESENTED.

As the Sixth Circuit acknowledged in ruling against

Mr. Biestek, its decision was squarely in conflict with

rulings of the Seventh Circuit and in agreement with

decisions from the Second and Ninth Circuits. Pet. App.

20a.

A. The Seventh Circuit Requires Vocational

Experts to Produce Upon Request the Data

Underlying Their Opinions Regarding “Other

Work” Available to an Applicant.

In McKinnie v. Barnhart, 368 F.3d 907, 911 (7th Cir.

2004), a vocational expert testified that notwithstanding

an applicant’s disability, the applicant could perform

various specific jobs, several thousand of which existed

in the applicant’s region. Id. at 909. When challenged by

the applicant’s lawyer to “show us how you arrived at

[your] figure[s],” the expert stated that she used her

“personal labor market surveys” to extrapolate the

numbers from other data. Pet. App. 120a.

The

applicant’s lawyer asked for the personal labor market

surveys to be included in the record. Pet. App. 120a.

Despite the expert’s willingness, the ALJ found the

expert need not supplement the record with the data and

references she had relied upon in reaching her

conclusions unless the applicant compensated the expert

for her time. See Pet. App. 120a-121a; McKinnie, 368

F.3d at 909. The record was never supplemented, and

based on the expert’s unsupported testimony the ALJ

found substantial evidence of other work available to the

applicant. McKinnie, 368 F.3d at 909.

In vacating the ALJ’s decision, the Seventh Circuit

observed, “the standards by which an expert’s reliability

is measured may be less stringent at an administrative

hearing than under the Federal Rules of Evidence.” Id.

at 910. Nonetheless, “because an ALJ’s findings must be

supported by substantial evidence, an ALJ may depend

upon expert testimony only if the testimony is reliable.”

Id. Thus, the Seventh Circuit held “[a] vocational expert

is ‘free to give a bottom line,’ but the data and reasoning

underlying that bottom line must be ‘available on

demand’ if the claimant challenges the foundation of the

vocational expert’s opinions.” Id. at 911 (quoting

Donahue, 279 F.3d at 446) (emphasis added).

Recognizing “[i]t is the Commissioner’s burden at Step

5 to establish the existence of a significant number of

jobs that the claimant can perform,” the court found no

reason an applicant “should pay a vocational expert to do

the preparatory research that she should have

completed prior to testifying.” Id. “The data and

reasoning underlying a vocational expert’s opinions are

not ‘available on demand,’” as the court found they must

be, “if the [applicant] must pay for them.” Id. Because

the expert had not made available the data underlying

her conclusions, the Seventh Circuit found the ALJ

could not rely upon those conclusions as substantial

evidence on the step five inquiry and vacated and

remanded the ALJ’s decision. Id.

In so ruling, the Seventh Circuit reaffirmed the rule

of its prior decision in Donahue, 279 F.3d at 446. There,

Judge Easterbrook writing for the court observed

“[e]vidence is not ‘substantial’ if vital testimony has been

conjured out of whole cloth.” Donahue, 279 F.3d at 446.

Thus, “an expert is free to give a bottom line, provided

that the underlying data and reasoning are available on

demand.”4 Id.

In Donahue, the Seventh Circuit affirmed the ALJ’s denial of

supplemental security income because the applicant had not

challenged the vocational expert’s conclusions, or requested the

data underlying them before the ALJ. 279 F.3d at 446-47.

B. The Second, Sixth, and Ninth Circuits Do Not

Require Vocational Experts to Produce Upon

Request the Data Underlying Their Opinions

Regarding “Other Work” Available to an

Applicant.

In the decision below, the Sixth Circuit held that

substantial evidence supported the ALJ finding that

other jobs were available to Mr. Biestek, based solely on

a vocational expert’s unsupported testimony and

notwithstanding the expert’s failure to provide the

data—namely, personally conducted labor market

surveys and job analyses—underlying that testimony

when requested. Pet. App. 20a-22a, 117a-119a. That

decision squarely conflicts with the rule in the Seventh

Circuit, and is consistent with the rule in Second and

Ninth Circuits.

In Brault v. Social Security Administration,

Commissioner, 683 F.3d 443 (2d Cir. 2012), an applicant

challenged a vocational expert’s estimate of the number

of jobs available to the applicant notwithstanding his

disability. In providing this estimate, the expert had

relied upon one source—the Labor Department’s

Dictionary of Occupational Titles (“DOT”)—to identify

potential jobs available to the applicant, but on a

different source—The Occupational Employment

Quarterly II—to identify the number of jobs available to

the applicant in Vermont, where he lived. Id. at 446-47.

The applicant argued that these two sources of data

contained different job definitions, and thus that the

expert could not opine on available jobs by merging the

two. Id. The expert did not provide any data or analysis

underlying his conclusions, and instead claimed that he

counted only “jobs . . . that I know exist.” Id. at 447

(quotation marks omitted). The ALJ did not respond to

the applicant’s objections, did not demand the

underlying data from which the expert based his

conclusions, and instead issued a decision relying on the

vocational expert’s testimony and agreeing that the

positions the expert had identified were available in the

numbers the expert had given. Id.

On appeal to the Second Circuit, the applicant argued

that “once [the vocational expert’s] testimony had been

challenged, the ALJ was required: . . . to grant an

opportunity to inspect and challenge the proffered

evidence[.]” Id. at 448. Recognizing that this was an

issue over which there exists “a split among our sister

circuits,” the court criticized the Seventh Circuit for

“acknowledg[ing] in Donahue that ALJs are not bound

by the Rules of Evidence, but then turn[ing] around and

requir[ing] ALJs to hew so closely to Daubert’s

principles.” Id. at 449. Citing its own precedent, the

Court also noted “the marked absence of any ‘applicable

regulation or decision of this Court requiring a

vocational expert to identify with greater specificity the

source of his figures or provide supporting

documentation.’” Id. at 450 (quoting Galiotti v. Astrue,

266 F. App’x 66 (2d Cir. 2008) (summary order)).

The Second Circuit found the ALJ had considered

the applicant’s challenge to the vocational expert’s

testimony because the applicant’s counsel had been

afforded the opportunity on cross-examination to

“explore

the

limitations

the . . . mapping

methodology” the expert must have used to reach a

conclusion despite using two inconsistent sources. Id. at

451. The Second Circuit clarified that it was “not

hold[ing] that an ALJ never need question reliability.”

Id. at 450. Nonetheless, the Second Circuit held the ALJ

could rely on only the vocational expert’s testimony in

finding substantial evidence of other work available to

the applicant, even when the expert produced none of

the data or analyses underlying his conclusions. Id. at

450-51.

The Sixth Circuit’s decision is also consistent with

the Ninth Circuit’s decision in Bayliss v. Barnhart, 427

F.3d 1211 (9th Cir. 2005), to reject the Seventh Circuit’s

rule. In Bayliss, an applicant challenged an ALJ’s

reliance on a vocational expert’s testimony regarding

the relevant number of other jobs that existed in the

national economy notwithstanding the applicant’s

disability. Id. at 1218. In rejecting this challenge, the

Ninth Circuit held “[a vocational expert’s] recognized

expertise provides the necessary foundation for his or

her testimony. Thus, no additional foundation is

required.” Id. Unlike the Seventh Circuit, therefore,

which does not permit an ALJ to rely upon a vocational

expert’s unsupported testimony once that testimony is

challenged and the data underlying it is requested, in the

Ninth Circuit a vocational expert’s testimony alone

constitutes

substantial

evidence

the

§ 404.1520(a)(4)(v) factor.

Indeed, some district courts in the Ninth Circuit have gone even

further and read Bayliss as holding that a vocational expert’s

testimony is per se reliable because of the expert’s recognized

expertise, even in the face of contrary evidence. See Early v.

Colvin, No. 3:14-CV-06015-DWC, 2015 WL 4231598, at *8 (W.D.

Finally, in an unpublished opinion, the Third Circuit

indicated that it, too, was likely to reject the Seventh

Circuit’s rule. In Welsh v. Commissioner Social

Security, 662 F. App’x 105 (3d Cir. 2016), the Third

Circuit noted that it had not yet adopted the Donahue

rule “with good reason.” Id. at 109–10. Yet, because the

petitioner failed to question the basis of the vocational

expert’s testimony, id. at 109, the Court never decided

whether a vocational expert must provide evidence if

questioned by opposing counsel or the ALJ.

* * *

Had Mr. Biestek’s case arisen in the Seventh Circuit,

the ALJ would not have been permitted to find

substantial evidence of other work available to Mr.

Biestek based solely on the vocational expert’s

Wash. July 10, 2015) (finding under Bayliss that even assuming

applicant did not waive challenge, ALJ was entitled to rely solely on

vocational expert’s testimony despite applicant’s contradicting

evidence on number of available jobs, because the vocational

expert’s “recognized expertise provides the necessary foundation

for his or her testimony” (quoting Bayliss, 427 F.3d at 1217-18));

Merryflorian v. Astrue, No. 12-CV-2493-IEG (DHB), 2013 WL

4783069, at *6 (S.D. Cal. Sept. 6, 2013) (holding, and summarizing

unreported cases finding, that an applicant cannot challenge the

validity of a vocational expert’s unsupported testimony on number

of available jobs, even with contradicting evidence, because a

vocational expert’s “recognized expertise provides the necessary

foundation for his or her testimony” (quoting Bayliss, 427 F.3d at

1217-18). To the extent Bayliss holds that a vocational expert’s

testimony is per se reliable, no matter what evidence an applicant

provides in response, the Ninth Circuit has taken an even more

permissive approach as to what constitutes substantial evidence of

other work available to an applicant pursuant to 20 C.F.R.

§ 404.1520(a)(4)(v). This only further demonstrates the necessity of

this Court’s review.

unsupported testimony once Mr. Biestek requested the

data underlying that testimony. Because Mr. Biestek’s

case arose in the Sixth Circuit, the ALJ made exactly

that finding. There is a clear and entrenched conflict of

authority on this issue that has existed for over fifteen

years and further percolation is unnecessary.

II. THIS CASE PRESENTS A RECURRING,

IMPORTANT ISSUE THAT WARRANTS THIS

COURT’S REVIEW.

More than two million individuals apply for

supplemental security income on the basis of disability

annually. SSA Data at tbl. 60. Each of these applications

must go through the same five-step analysis for

eligibility and as noted above, failure on any step except

the third renders the applicant ineligible for benefits.

If an applicant reaches the fifth step, disability

benefits are denied if the Commissioner of Social

Security can show that other work would be available to

the applicant notwithstanding the applicant’s disability,

and thus the benefits eligibility rises or falls based on

this inquiry. Although exact numbers are unavailable,

in at least hundreds of thousands of these proceedings

annually, vocational experts provide testimony on the

availability of other jobs. And, in the three circuits

identified above, testimony bereft of any underlying

data, even when challenged by an applicant, can be

sufficient to satisfy the government’s burden and result

in a denial of benefits.

Resolution of this conflict is important because there

is no logical justification—and significant unfairness—in

the current heterogeneity among the circuits on the

standard for accepting the testimony of vocational

experts. Moreover, as discussed below, the majority

rule is wrong and can, as in Mr. Biestek’s case, result in

the denial of vitally needed benefits in many situations

where an expert’s testimony regarding other jobs

available to an applicant is completely untested, and thus

potentially entirely inaccurate.

III. THIS CASE PRESENTS AN IDEAL

VEHICLE TO RESOLVE THIS CONFLICT.

This case presents a strong vehicle for this Court to

review the circuit split. The facts are undisputed, and

the Sixth Circuit squarely ruled on the question

presented. That ruling was determinative of Mr.

Biestek’s case and in its ruling the Sixth Circuit

explicitly considered and rejected the contrary rule of

the Seventh Circuit that Mr. Biestek had proposed.

Moreover, this case is a particularly strong vehicle

because the facts precisely frame the question presented

and highlight the circuit split. Before the ALJ, Mr.

Biestek specifically requested the personal labor market

surveys underlying the vocational expert’s opinion, and

the expert acknowledged the existence of that data but

refused to provide it. Pet. App. 118a-119a. The Sixth

Circuit held that the ALJ’s reliance on only that

testimony provided substantial evidence for the ALJ’s

finding. Pet. App. 22a. Similarly, in McKinnie¸ the

applicant requested, and the vocational expert failed to

produce, the labor market surveys upon which she

relied. Pet. App. 120a-121a. In contrast to the Sixth

Circuit, the Seventh Circuit held that the ALJ’s reliance

on only that testimony failed to provide substantial

evidence for his finding. McKinnie, 368 F.3d at 911.

Because many social security proceedings—including

before ALJs—include uncounseled applicants, the

record below is rarely as clean as it is in this case, and

requests for the data underlying a vocational expert’s

conclusions are not usually made with the precision with

which they were made here.

Thus, this record, and the courts’ decisions based

upon it, present the ideal vehicle for review of this

question.

IV. THE SIXTH CIRCUIT’S DECISION WAS

INCORRECT.

Finally, the Sixth Circuit’s decision merits review

because it is wrong. As the Seventh Circuit recognized,

the fact that the Federal Rules of Evidence are

inapplicable in social security benefits proceedings is

irrelevant because, regardless of the rules of evidence

that apply, an ALJ’s decision must be supported by

“substantial evidence” to withstand judicial review. 42

U.S.C. § 405(g). See Donahue, 279 F.3d at 446 (“[T]he

idea that experts should use reliable methods does not

depend upon Rule 702 alone, and it plays a role in the

administrative process because every decision must be

supported by substantial evidence.”). The substantial

evidence standard requires “more than a mere scintilla.

It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.”

Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting

Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229

(1938)). And, as the Seventh Circuit stressed, “because

an ALJ’s findings must be supported by substantial

evidence, an ALJ may depend upon expert testimony

only if the testimony is reliable.” McKinnie, 368 F.3d at

910. Evidence regarding the number of jobs available to

an applicant cannot be reliable, and therefore cannot be

substantial, if it “has been conjured out of whole cloth,”

Donahue, 279 F.3d at 446, or if it is not correctly derived

from statistical data.

Yet, under the rule in the Sixth, Second, and Ninth

Circuits a vocational expert can opine—without

providing any supporting data—on the number of jobs

available to a disability applicant. And that unsupported

testimony alone can constitute “substantial evidence” to

satisfy the government’s burden to prove that other jobs

are available to the applicant and thus that social

security benefits on the basis of a disability need not be

granted.

There is virtually no other area of the law where an

expert’s conclusions regarding data constitute

“substantial evidence” of a fact when an opposing party

challenges the accuracy of those conclusions but the

expert refuses to supply—or cannot supply—any

underlying data. Further, an individual’s opinion based

on her expertise alone, absent any empirical data

whatsoever, does not constitute “substantial evidence”

of a fact in other administrative contexts. See, e.g.,

CIBA Corp. v. Weinberger, 412 U.S. 640, 642 (1973)

(requiring “adequate and well-controlled investigations”

before the FDA can, based on substantial evidence,

determine a drug’s safety (quotation marks omitted));

Fed. Power Comm’n v. Fla. Power & Light Co., 404 U.S.

453, 464 (1972) (holding that “well-reasoned expert

testimony—based on what is known and uncontradicted

[sic] by empirical evidence” may be substantial

evidence). Yet, the majority rule places social security

benefits proceedings separate and apart in this respect.

Moreover, this rule is not only unfair; it is also

irrational.

As the Seventh Circuit observed,

“[p]resumably a vocational expert establishes the

foundation for her opinions,” and the underlying data

constitutes “the preparatory research that she should

have completed prior to testifying.” McKinnie, 368 F.3d

at 911. In cases where that data actually exists—as the

expert in Mr. Biestek’s case claimed it did—there is

simply no justification (nor do the courts adopting the

majority rule provide one) for denying the applicant

access to that data at least in a redacted form or in an in

camera review, if confidentiality concerns exist. If in

fact no such data exists to justify the expert’s

conclusions, then it is hard indeed to see how the

expert’s unmoored conclusions on jobs that are available

to an applicant could constitute “substantial evidence”

necessary to satisfy the government’s burden on that

point. Adopting the Seventh Circuit’s rule that an

expert must provide the data underlying her

conclusions—even in redacted form—would impose a

minimal burden on the expert or the ALJ, but would

allow applicants to probe and challenge the expert’s

conclusions.

Contrary to the Sixth Circuit’s characterization, the

Seventh Circuit’s Donahue rule does not require a

Daubert-like hearing for every vocational expert’s

testimony. It merely asks that, if challenged, the

vocational expert make available the data underlying

the expert’s opinion. See, e.g., Britton v. Astrue, 521 F.3d

799, 802-04 (7th Cir. 2008) (finding that substantial

evidence supported ALJ’s decision, where vocational

expert offered upon request to provide the pages of data

she relied upon and counsel instead insisted on the

whole, voluminous publication). This interpretation of

42 U.S.C. § 405(g)’s substantial evidence standard gives

ALJs the flexibility Congress intended when exempting

social security adjudications from the Federal Rules of

Evidence, while ensuring that ALJs’ decisions—and the

expert conclusions upon which they rely—are supported

by substantial evidence. The Sixth Circuit’s decision to

the contrary was wrongly decided.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

FREDERICK J. DALEY, JR.

MEREDITH MARCUS

DALEY DISABILITY LAW,

601 W. Randolph Street,

Suite 300

Chicago, IL 60661

(312) 561-3030

February 21, 2018

ISHAN K. BHABHA

Counsel of Record

NATACHA Y. LAM

JENNER & BLOCK LLP

1099 New York Ave., NW,

Suite 900

Washington, DC 20001

(202) 637-6327

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

________________________

Michael J. Biestek,

Plaintiff-Appellant,

No. 17-1459

Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court

For the Eastern District of Michigan at Flint.

No. 4:16-cv-10422 – Linda V. Parker, District Judge.

Argued: October 6, 2017

Decided and Filed: December 27, 2017

Before: CLAY, COOK, and WHITE, Circuit Judges.

This decision was originally filed as an unpublished opinion on

December 27, 2017. The court has now designated the opinion for

publication.

COUNSEL

ARGUED:

Meredith E. Marcus, DALEY

DISABILITY LAW, P.C., Chicago, Illinois, for

Appellant. Michael L. Henry, SOCIAL SECURITY

ADMINISTRATION, Boston, Massachusetts, for

Appellee. ON BRIEF: Meredith E. Marcus, Frederick

J. Daley, Jr., DALEY DISABILITY LAW, P.C.,

Chicago, Illinois, for Appellant. Michael L. Henry,

SOCIAL SECURITY ADMINISTRATION, Boston,

Massachusetts, for Appellee.

____________________

OPINION

____________________

COOK, Circuit Judge.

Plaintiff-Appellant

Michael J. Biestek (“Biestek”) alleges that he became

disabled on October 28, 2009, for purposes of receiving

Disability Insurance Benefits and Supplemental

Security Income under the Social Security Act. An

Administrative Law Judge (“ALJ”) issued a partially

favorable decision finding Biestek disabled beginning

May

2013, some three-and-a-half years short of the

time he claimed.

Biestek sought judicial review of the ALJ’s

finding of non-disability for the period between October

28, 2009, and May 2013. The district court rejected his

claims. We AFFIRM.

BACKGROUND

Biestek, fifty-four, worked for most of his life as a

carpenter and a laborer in various construction-related

roles.

His work frequently entailed transporting

scaffolding, panels, and other construction materials

around work sites. He completed at least twelve years

of education, plus one year of college, and received

additional vocational training as a bricklayer and

carpenter. He stopped working in June 2005, allegedly

due to degenerative disc disease, Hepatitis C, and

depression.

Biestek applied for Supplemental Security

Income and Disability Insurance Benefits in March 2010,

alleging a disability onset date of October 28, 2009. The

Social Security Administration (“SSA”) initially denied

this application in August 2010. Biestek requested a

hearing before an ALJ, the ALJ denied Biestek’s

application, and the Social Security Administration

Appeals Council denied review. Biestek timely appealed

to the district court. That court adopted a magistrate

judge’s report and recommendation and remanded the

case to the SSA because the ALJ had not obtained

necessary medical-expert testimony and did not pose a

sufficiently specific hypothetical to the vocational

expert.

Following a second hearing and additional opinion

gathering, the ALJ issued a partially favorable decision

finding Biestek disabled starting on his fiftieth birthday

(May 2013)—the point at which the Agency deems an

applicant “closely approaching advanced age” and thus

presumptively disabled pursuant to 20 C.F.R. Pt. 404,

Subpt. P, App. 2, § 201.14; see also 20 C.F.R.

§ 404.1563(d) (defining persons “closely approaching

advanced age” as between ages fifty and fifty-four). The

ALJ found that Biestek was “not disabled” before May

2013, however.

Biestek again appealed to the district court. This

time, though, the magistrate judge’s report and

recommendation found that the ALJ’s decision should be

affirmed in full. Rejecting Biestek’s objections, the

district court then adopted the report and

recommendation. This timely appeal followed.

II.

ANALYSIS

Biestek briefs five issues, but because he

forfeited one by failing to timely raise it before the

district court, just four are properly before us. We will

affirm the SSA’s conclusions unless the ALJ applied

incorrect legal standards or her findings were not

supported by substantial evidence in the record. WrightHines v. Comm’r of Soc. Sec., 597 F.3d 392, 395 (6th Cir.

2010). Substantial evidence supports a decision if “such

relevant evidence as a reasonable mind might accept as

adequate to support a conclusion” backs it up.

Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting

Consol. Edison Co. of N.Y. v. N.L.R.B., 305 U.S. 197, 229

(1938)). Thus, a decision supported by substantial

Biestek also argues that the ALJ erred by not accounting for

alleged moderate limitations in his concentration, persistence, or

pace. But because Biestek failed to address this issue in his

objections to the magistrate judge’s report and recommendation,

we consider it forfeited on appeal. Willis v. Sullivan, 931 F.2d 390,

401 (6th Cir. 1991).

evidence must stand, even if we might decide the

question differently based on the same evidence.

Wright-Hines, 597 F.3d at 395. It is not our role to “try

the case de novo, nor resolve conflicts in evidence, nor

decide questions of credibility.” Walters v. Comm’r of

Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997) (quoting

Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984)).

Substantial Evidence Supports the ALJ’s

Finding that Biestek’s Medical Condition Did

Not “Medically Equal” the Listing

Biestek contends the ALJ incorrectly found that

he did not meet or medically equal the back-pain-related

impairment listed at 20 C.F.R. Pt. 404, Subpt. P, App. 1,

Pt. A1, § 1.04(A). The impairment must last for at least

twelve months to meet the terms of the listing. Id. at

§ 1.00(B)(2)(a). The ALJ determined Biestek did not

meet or medically equal the listed impairment because

Biestek “lack[ed] the requisite motor and sensory

deficits, and there [was] no evidence of spinal

arachnoiditis or spinal stenosis resulting in

pseudoclaudication.” The ALJ relied significantly on

agency-appointed expert Dr. Frank L. Barnes’s opinion

This listing, for “disorders of the spine,” requires (in relevant part)

“[e]vidence of nerve root compression characterized by neuroanatomic distribution of pain, limitation of motion of the spine,

motor loss (atrophy with associated muscle weakness or muscle

weakness) accompanied by sensory or reflex loss and, if there is

involvement of the lower back, positive straight-leg raising test

(sitting and supine).” 20 C.F.R. Pt. 404, Subpt. P, App. 1, Pt. A1,

§ 1.04(A).

that Biestek’s physical condition neither met nor

equaled a medical listing while assigning minimal weight

to the opinions of Biestek’s retained expert, Dr.

Alexander J. Ghanayem.

Biestek claims that he “medically equaled” the

listing because he displayed all the required criteria at

one point or another during the relevant period, even if

not concurrently or consistently over twelve months. He

also argues that Dr. Ghanayem offered analysis and

explanations superior to the allegedly flawed testimony

of Dr. Barnes, so that reliance on Barnes’s testimony

cannot constitute “substantial evidence” in support of

the ALJ’s opinion.

The ALJ Reasonably Found Biestek Did

Not “Medically Equal” the Listing

Biestek argues that “medically equaling” the

listing does not require all symptoms to be present

consistently for a twelve-month period, and that to

impose such a requirement would erase the distinction

between “meeting” and “medically equaling” a listing.

He maintains that displaying different deficits at

different times over the course of twelve months is

enough to satisfy the duration requirement.

As the Commissioner points out, however,

medical equivalency is not a refuge for claimants who

show only intermittent signs of impairment. The

Commissioner’s own regulation makes clear that

equivalency exists where a claimant’s impairment “is at

least equal in severity and duration to the criteria of any

listed impairment.” 20 C.F.R. § 404.1526(a) (emphasis

added); see also Kidd v. Colvin, No. CV 115-207, 2017

WL 914061, at *4 (S.D. Ga. Feb. 2, 2017) (magistrate’s

report and recommendation) (finding a failure to meet

the duration requirement where the claimant’s back pain

was only demonstrated by “a handful of abnormal

findings scattered throughout the record”), adopted in

full sub nom. Kidd v. Berryhill, No. CV 115-207, 2017

WL 901896, at *1 (S.D. Ga. Mar. 7, 2017). Medical

equivalency does not relieve claimants of the need to

demonstrate the long-term nature of an impairment.

The Commissioner’s regulation allows for variation in

the number, type, or severity of the claimant’s

conditions, so long as the claimant’s overall impairment

is “at least of equal medical significance” to a listed

impairment. 20 C.F.R. § 404.1526(b)(ii). The regulations

make no provision, however, for claimants whose

condition is reasonably found to be sporadic or

intermittent.

The ALJ Reasonably Relied on Dr. Barnes’s

Testimony

Dr. Barnes noted the absence of positive straight

leg-raising on most examinations, and that numbness,

reflex change, and atrophy were not consistently

present over a twelve-month period. In Barnes’s

opinion, Biestek did not meet or equal any listing.

A straight-leg raising test (also called a Lasegue test) evaluates a

patient’s lower back pain. The patient lies on his back and his care

provider raises his leg upward, keeping the knee straight. If the

patient experiences pain, the test is positive (an abnormal result).

See 2 Dan J. Tennenhouse, Attorneys Medical Deskbook § 18:4 (4th

ed. 2017).

Furthermore, the ALJ noted that MRI images in the

record show “only mild-to-moderate degenerative

changes with no more than mild stenosis.”

Biestek’s expert, Dr. Ghanayem, assessed the

evidence differently, concluding that Biestek more than

met or medically equaled the terms of the listing. The

ALJ gave “little weight” to Dr. Ghanayem’s opinion,

however, due to inconsistencies between Dr.

Ghanayem’s assessments and other objective medical

evidence in the record. Dr. Ghanayem’s opinion of

Biestek’s condition is in tension with the findings of

multiple radiologists interpreting multiple MRIs over

several years.

Additionally, we note other evidence showing

Biestek had, at best, inconsistent back issues during the

period he was under the care of treating physician Dr.

Howard Wright. Some appointment notes do not

reference back pain, only reporting Biestek as having

“normal gait and station,” while others only a short time

later mention some pain.

Dr. Ghanayem also attempted to explain the

inconsistent straight-leg raising test results. According

to Dr. Ghanayem, if the underlying nerve condition

becomes chronic and persists for a significant period, the

affected nerves can become so damaged and desensitized

that a person can pass the test. Dr. Barnes presented an

alternative explanation: in some cases, a patient’s spinal

injuries heal by themselves, resulting in increased

mobility sufficient to pass the straight- leg raising test.

Biestek argues that the ALJ inappropriately

credited Dr. Barnes’s testimony over Dr. Ghanayem’s

opinions. But just because Dr. Ghanayem offered

explanations that could reconcile elements of the

objective medical record with Biestek’s claims does not

mean that the ALJ was required to accept those

explanations. The ALJ faced dueling opinions from two

highly qualified medical experts and found Dr. Barnes’s

testimony more credible after assessing how well his

testimony fit with the objective medical record—a

determination she was fully empowered to make. See

Crum v. Sullivan, 921 F.2d 642, 644 (2d Cir. 1990) (“The

[Commissioner], and not the court, is charged with the

duty to weigh the evidence, to resolve material conflicts

in the testimony, and to determine the case

accordingly.”).

The ALJ based her decision on

substantial evidence.

The ALJ Acceptably

Opinion Evidence

Evaluated

Medical

Next, Biestek contends that the ALJ failed to

properly weigh opinion evidence from two medical

experts, Drs. Wright and Barnes.

1. Dr. Wright’s Opinions

Dr. Wright saw Biestek frequently between

October 2012 and April 2013, and filled out a residual

functional capacity (“RFC”) questionnaire detailing

Biestek’s condition in July 2015. Biestek argues that the

ALJ erred in not according controlling weight to any of

Dr. Wright’s assessments.

An ALJ is required to give controlling weight to

a treating physician’s opinion, so long as that opinion is

supported by clinical and laboratory diagnostic evidence

not inconsistent with other substantial evidence in the

10a

record. 20 C.F.R. § 404.1527(c)(2); see also Wilson v.

Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).

But if the ALJ concludes that a treating source’s medical

opinion is not entitled to controlling weight, she must

weigh the opinion in light of several factors. See 20

C.F.R. § 404.1527(c) (listing factors). The ALJ need not

perform an exhaustive, step-by-step analysis of each

factor; she need only provide “good reasons” for both her

decision not to afford the physician’s opinion controlling

weight and for her ultimate weighing of the opinion.

Francis v. Comm’r of Soc. Sec., 414 F. App’x 802, 804–05

(6th Cir. 2011); Blakley v. Comm’r of Soc. Sec., 581 F.3d

399, 406–07 (6th Cir. 2009); 20 C.F.R. § 404.1527(c)(2).

Dr. Wright provided three opinions on Biestek’s

condition. Two are reports to the Michigan Department

of Human Services from April and October 2013. The

third is a residual functional capacity questionnaire

created for Biestek’s present disability application, from

July 2015.

The ALJ declined to give any of Dr. Wright’s

opinions controlling weight and instead assigned them

minimal weight. The ALJ discounted the July 2015

opinion entirely, noting that by then Dr. Wright had not

seen Biestek for over two years. Additionally, the ALJ

stated that Dr. Wright’s earlier opinions were not

supported by the objective medical record evidence. She

pointed to the “numerous MRI studies [which] showed

no more than mild-to-moderate degenerative findings”

as the “most notabl[e]” example, but did not specifically

refer to any additional evidence in the record to support

her reasoning.

11a

Biestek claims the ALJ gave Dr. Wright’s

opinions short shrift. At a minimum, he asserts the ALJ

should have afforded Dr. Wright’s 2013 opinions the

substantial weight generally accorded a treating

physician’s opinions. The magistrate judge’s report and

recommendation agrees that Dr. Wright was one of

Biestek’s treating physicians during this period. Biestek

states that MRI evidence was “the only reason offered

by the ALJ to reject Dr. Wright’s assessment,” and that

the ALJ ignored substantial evidence in the record

demonstrating Biestek’s efforts to alleviate significant

pain. Additionally, Biestek argues that the ALJ’s

reliance on the MRI findings is misplaced in light of Dr.

Ghanayem’s alternative explanation of the MRI imaging

as consistent with Biestek’s alleged impairments.

The ALJ had adequate reason to assign minimal

weight to Dr. Wright’s July 2015 questionnaire. By that

time, Dr. Wright had not provided Biestek with medical

care for over two years, clearly indicating that Dr.

Wright and Biestek were no longer in a treatment

relationship. See 20 C.F.R. § 404.1527(c)(2)(i)–(ii).

As for Dr. Wright’s earlier opinions, while they

may be somewhat in accord with other evidence, they

are nonetheless inconsistent with prior MRI results

showing only mild-to- moderate degeneration. Biestek

alleges that the ALJ’s failure to elaborate on her specific

rationale for discounting Dr. Wright’s 2013 opinions

beyond referencing the MRI evidence amounts to a

failure to provide “good reasons,” warranting reversal.

But the MRIs were only the “most notabl[e]” evidence

the ALJ relied on; other evidence in the record also

supports the ALJ’s decision. We may consider this

12a

evidence, even if the ALJ failed to mention it. Heston v.

Comm’r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001)

(“Judicial review of the Secretary’s findings must be

based on the record as a whole. Both the court of appeals

and the district court may look to any evidence in the

record, regardless of whether it has been cited [in prior

SSA proceedings].”).

Here, the ALJ provided a rationale and referred

to particular evidence in the record. The point of the

“good reasons” rule is to permit meaningful review of

the ALJ’s decision and to ensure that a claimant is not

“bewildered” when an administrative bureaucracy tells

him that he is not disabled. Wilson, 378 F.3d at 544

(quoting Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999)).

There are no such problems in this case. In addition to

the MRIs, other record evidence supports the ALJ’s

conclusion, even if she referenced such evidence in a

more general way.

As the Commissioner points out, the examination

notes from Biestek’s various visits to Dr. Wright during

the six-month period when Dr. Wright was Biestek’s

Other Sixth Circuit cases finding that an ALJ failed to provide

“good reasons” where the ALJ did not cite material in the record

that could have supported the ALJ’s decision are distinguishable.

In Wilson, the ALJ offered only a summary rejection of the opinion

of the claimant’s treating physician, with no analysis or support

whatsoever. 378 F.3d at 545–46. And in Rogers v. Commissioner of

Social Security, the ALJ dismissed the reports of multiple treating

physicians based on evidence that could not reasonably outweigh

the evidence proffered by the treating physicians. 486 F.3d 234,

243–44 (6th Cir. 2007).

13a

treating physician provide some of the most notable

evidence apart from the MRIs.

There is little

consistency regarding the back pain alleged. The first

report describes Biestek as possessing “normal gait and

station,” and makes no mention of any back pain issues.

The next two exams identified back pain as an issue, but

no back pain is reported in the following three exams.

Back pain then re-emerges on the final set of

examination notes. These exam notes are difficult to

reconcile with the stark portrait of Biestek’s condition

that Dr. Wright painted in the two 2013 medical

examination reports.

Substantial evidence supported the ALJ’s

decision, and the ALJ provided a sufficient rationale.

“No purpose would be served by remanding for the ALJ

to explicitly address the shortcomings of [Dr. Wright’s]

opinion and the evidence and methods underlying it.”

Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 507

(6th Cir. 2006).

Dr. Barnes’s Opinion

Restriction on Bending at the Waist and

Lifting Weight

Dr. Barnes testified that Biestek could

occasionally squat and pick up objects weighing up to ten

pounds, but that he would not be able to bend at the

waist to do so. The ALJ gave this portion of Dr. Barnes’s

testimony “great weight,” but did not incorporate a

specific restriction on bending at the waist to lift up to

ten pounds into her RFC analysis or into a hypothetical

posed to the vocational expert. Biestek contends that, as

a result, the hypothetical “did not fairly portray

14a

Biestek’s limitations as supported by the objective

evidence and the ultimate findings by the ALJ,” an error

that “cannot be deemed harmless” because the ALJ

specifically granted this portion of Barnes’s testimony

great weight.

The ALJ actually did incorporate a restriction on

“occasional stooping,” however. The Agency defines

“stooping” as “bending the body downward and forward

by bending the spine at the waist.” SSR 83-14, 1983 WL

31254, at *2 (Jan. 1, 1983). Biestek replies that the ALJ’s

reference to “occasional stooping” conflicts with Dr.

Barnes’s total prohibition on bending at the waist. But

Biestek is mistaken: Dr. Barnes did not impose a

restriction on all bending at the waist. He only opined

that Biestek could not bend at the waist and lift weight.

The ALJ not only incorporated a limit on weight lifting

into her hypothetical, she was even more restrictive

than Dr. Barnes. The ALJ asked the vocational expert

if jobs would be available for someone who “could not lift

more than five pounds at a time.” Overall, the ALJ

adequately addressed the ultimate issue—Biestek’s

ability to lift up to ten pounds of weight.

Biestek also claims that because the SSA has

itself held that some stooping is required to do most

work, the ALJ should have sought further clarification

on the impact of stooping. The vocational expert

proposed two jobs—bench (final) assembler and nut

sorter—from the Dictionary of Occupational Titles

(“DOT”) that the ALJ incorporated into her RFC

analysis. But neither of these jobs requires any stooping

at all. DOT § 713.687-018, 1991 WL 679271 (“Stooping:

15a

Not Present – Activity or condition does not exist.”); see

also DOT § 521.687-086, 1991 WL 674226 (same).

Exertion of Force

Biestek also complains that according to the DOT,

the bench assembler and nut sorter jobs may have

required Biestek to “exert[] up to 10 pounds of force

occasionally . . . and/or a negligible amount of force

frequently to lift, carry, push, pull, or otherwise move

objects,” in violation of Dr. Barnes’s prohibition on

lifting ten pounds from the waist. DOT § 713.687-018,

1991 WL 679271 (final assembler); DOT § 521.687-086,

1991 WL 674226 (nut sorter). Yet nothing in the DOT

indicates that such exertion requires lifting objects from

ground level. As the Commissioner points out, Biestek

could have exerted the necessary force in other ways,

such as while seated or while working with objects at

table height.

The ALJ Acceptably

Credibility

Assessed

Biestek’s

The ALJ described the various treatments

Biestek has received over the years as “relatively

effective in controlling his symptoms.” The efficacy of

these treatments diminished Biestek’s credibility. The

The DOT defines “occasionally” as an “activity or condition

exist[ing] up to 1/3 of the time.” DOT § 713.687-018, 1991 WL

679271; see also DOT § 521.687-086, 1991 WL 674226 (same).

“Frequently” is defined as an “activity or condition exist[ing] from

1/3 to 2/3 of the time.” DOT § 713.687-018, 1991 WL 679271; see also

DOT § 521.687-086, 1991 WL 674226 (same).

16a

ALJ also noted that, throughout the record, Biestek

reported engaging in a variety of daily activities

suggestive of physical capacity to perform at least some

sedentary work. Further, the ALJ discussed Biestek’s

history of non-compliance with his treatment regimen,

citing numerous examples of Biestek cancelling or noshowing his medical appointments and his failure to take

many of his medications as prescribed. These findings

factored into the ALJ’s RFC assessment.

Biestek takes issue with each of these alleged

faults in his credibility, and additionally charges that the

opinions of Drs. Barnes and Ghanayem should have

enhanced his credibility. His task is especially difficult:

while an ALJ’s credibility determinations must be

supported by substantial evidence, we accord them

special deference. Walters v. Comm’r of Soc. Sec., 127

F.3d 525, 531 (6th Cir. 1997). Given this standard, we

cannot say the ALJ erred.

1. Symptom Control

The ALJ cited Biestek’s favorable reaction to

Demerol, as well as nerve blocks, physical therapy, and

back injections as examples of treatments that provided

Biestek relief. Biestek alleges that the ALJ wrongly

characterized these treatments as permanently

“controlling” his pain rather than granting temporary

respite. There is certainly record evidence showing that

these measures did not completely negate Biestek’s

pain, and that in some cases treatment benefits did not

persist for an extended period. But the ALJ never

characterized Biestek’s pain as permanently and

comprehensively mitigated, instead describing the

various treatments Biestek received as “relative[ly]

17a

effective[].” Moreover, she acknowledged the pain

Biestek continued to endure by restricting his RFC to a

narrow range of sedentary work with a variety of

accommodations.

Daily Activities Considered

The ALJ noted that, at various times, Biestek

said he engaged in a range of activities indicative of his

RFC. For example, Biestek reported reading the

newspaper, preparing simple meals, visiting his son at

least twice a week, driving, doing laundry, shopping,

cashing checks, providing childcare, watching television,

running errands, playing video games, and making

appointments.

Biestek objects to the ALJ’s characterization of

these activities, noting that he could do several of them

from any position, including reading the newspaper,

making appointments, and watching TV. He disputes

the ALJ’s assertion that he participated in childcare as

Biestek’s son was seventeen years old at the time of the

2015 hearing, making it unclear what “childcare” he

could be engaged in. He also attempts to add color to

several of the other tasks. He describes driving a car as

a rare event, perhaps only occurring once a month. He

says he confines his meal preparation to the microwave,

does the laundry just once every two to three weeks, and

only goes to the grocery store approximately once a

month (and that even at the store, he has had to lie down

in the aisle to relieve bouts of pain).

While Biestek’s ability to perform many of these

activities is definitely limited, the ALJ also cited other

activities much more obviously at odds with his claims of

18a

debilitating pain. For example, once Biestek started

taking Vicodin, his quality of life improved such that he

was able to exercise and play football with his son.

Overall, the ALJ based her conclusions on a reasonable

interpretation of the record.

Non-Compliance with Treatment Regimen

The ALJ also noted that Biestek has been noncompliant with his prescribed treatments, undercutting

his testimony concerning the severity of his condition.

In particular, the ALJ pointed to Biestek’s repeated noshows and cancellations for his medical appointments.

Additionally, the ALJ referred to Biestek’s admitted

habit of selectively taking his prescribed medication. He

took his pain medication “once in a while as needed.”

Other medications reveal even more problematic usage

patterns. His care provider noted that Biestek stopped

taking Wellbutrin (an antidepressant) both because it

made him feel “weird,” and because “he does not believe

much in medication so that is why he does not take it.”

The care provider also noted that Biestek “reports he

does not tell Gianina Cristiu, NP about not taking

medication because he does not want to hurt his chances

of obtaining SSI.” While adverse side effects are a

reasonable excuse for an applicant to interrupt a

prescribed treatment regimen, see SSR 16-3P, 2016 WL

1119029, at *9 (Mar. 16, 2016), the other rationales

Biestek supplied for not taking certain medications

display a pattern of behavior the ALJ reasonably

interpreted as undermining Biestek’s credibility.

19a

Testimony of Drs. Barnes and Ghanayem

Biestek further contends that because Drs.

Barnes and Ghanayem concurred that Biestek’s

subjective statements were “entirely consistent with his

pathology,” the ALJ erred in failing to address this

favorable credibility evidence. But the ALJ had

significant reasons for discounting Dr. Ghanayem’s

testimony, and Dr. Barnes testified that Biestek could

tolerate a range of sedentary work. The ALJ’s failure to

respond to these opinions does not deprive her decision

of the support of substantial evidence.

The ALJ’s Use of Evidence from After

Biestek’s Disability Date

Some of the evidence discussed by the ALJ

postdates May

2013, when the ALJ found Biestek

disabled upon his fiftieth birthday. For example, the

ALJ referenced a July 23, 2013, report by Edward

Czarnecki, Ph.D., indicating that Biestek “could perform

simple, rote, repetitive unskilled work.” Citing no

authority, Biestek claims that it was unfair to point to

evidence after Biestek’s disability date to impugn his

credibility before that time. This is a flawed argument.

Nothing about Biestek’s substantive medical condition

changed on May 2013; he simply turned fifty years old,

thereby creating an administrative presumption that he

was disabled. 20 C.F.R. Part 404, Subpt. P, App. 2,

§ 201.00(g). Evidence from after his formal disability

date is as relevant to discerning Biestek’s credibility as

evidence predating it.

20a

The ALJ Did Not Err in Refusing to Require

the Vocational Expert to Provide Specific Data

in Support of Her Opinions

Finally, Biestek argues that the ALJ erred by

refusing to require the vocational expert to produce data

or other documentation to support her opinions

regarding the work available to Biestek. Instead, the

vocational expert based her testimony on the Dictionary

of Occupational Titles and her “professional

experience,” gained from talking with employers and

conducting job analyses. When Biestek’s counsel

requested the vocational expert produce underlying

data or analyses in support of her statements, she

refused, citing the confidentiality of her files, and the

ALJ declined to require her to produce such information,

even in a redacted format.

Biestek alleges reversible error because little

substantiates the reliability of the vocational expert’s

testimony other than her word. Biestek argues such

testimony falls short of “substantial evidence.”

This court has not yet squarely addressed the

extent to which vocational experts must produce

underlying data in support of their opinions. There is a

divide, however, between the Seventh Circuit and

several other circuits that have staked a position. The

Seventh Circuit adopted a rigorous approach in a pair of

cases, Donahue v. Barnhart, 279 F.3d 441 (7th Cir. 2002),

and McKinnie v. Barnhart, 368 F.3d 907 (7th Cir. 2004),

incorporating the essence, if not the explicit

requirements, of Federal Rule of Evidence 702 into the

administrative adjudicative process as applied to

vocational expert testimony. See McKinnie, 368 F.3d at

21a

910–11.

Expressing fear that vocational expert

testimony could be “conjured out of whole cloth,”

Donahue, 279 F.3d at 446, the Seventh Circuit obliges

vocational experts to provide the data and reasoning

used in support of their conclusions upon request,

McKinnie, 368 F.3d at 910–11. Biestek would like us to

establish a similar rule for the Sixth Circuit.

But the Seventh Circuit’s rule “has not been a

popular export.” Brault v. Comm’r of Soc. Sec., 683 F.3d

443, 449 (2d Cir. 2012). Congress specifically exempted

Social Security disability proceedings from the

strictures of the Federal Rules of Evidence, allowing

ALJs to consider a broader range of potentially relevant

information than would be admissible in an ordinary

court of law. 42 U.S.C. § 405(b)(1) (“Evidence may be

received at any hearing before the Commissioner of

Social Security even though inadmissible under rules of

evidence applicable to court procedure.”). Yet despite

Congress’s explicit command, Donahue and McKinnie

effectively import a key provision of the Federal Rules

of Evidence into Social Security proceedings. As the

Second Circuit noted, “[i]t is unclear . . . why the Seventh

Circuit would acknowledge in Donahue that ALJs are

not bound by the Rules of Evidence, but then turn

around and require ALJs to hew so closely to [them].”

Brault, 683 F.3d at 449. Other courts of appeals have

followed the Second Circuit’s lead. See Welsh v. Comm’r

of Soc. Sec., 662 F. App’x 105, 109–10 (3d Cir. 2016)

(rejecting the Seventh Circuit approach due to conflict

with 42 U.S.C. § 405(b)(1)); see also Bayliss v. Barnhart,

427 F.3d 1211, 1218 (9th Cir. 2005) (“An ALJ may take

administrative notice of any reliable job information,

22a

including information provided by a [vocational expert].

A [vocational expert]’s recognized expertise provides

the necessary foundation for his or her testimony. Thus,

no additional foundation is required.” (internal citation

omitted)).

Furthermore, there is little clarity on how to

apply the Donahue and McKinnie standards. The

Seventh Circuit required the Commissioner to

implement an evidentiary rule “similar though not

necessarily identical to that of Rule 702,” but it is unclear

what, precisely, such a rule would look like. Donahue,

279 F.3d at 446.

While it is undoubtedly true that vocational

expert testimony that is “conjured out of whole cloth”

cannot be considered substantial evidence, see id., the

Commissioner rightly points out that “guarding against

baseless testimony is very different” from incorporating

the stringent evidentiary requirements embodied in the

Federal Rules of Evidence. Moreover, Biestek aired his

concerns to the ALJ, who accepted the vocational

expert’s testimony over his objections. There is “no

reason to suppose that the ALJ did not carefully weigh

the credibility of witnesses who testified, and the ALJ’s

acceptance of [the vocational expert’s] testimony cannot

be said to have been improper.” Sias v. Sec’y of Health

& Human Servs., 861 F.2d 475, 481 (6th Cir. 1988).

Ultimately, responsibility for weighing the credibility of

witnesses belongs to the ALJ, who in this case

acceptably fulfilled that obligation.

23a

III.

CONCLUSION

For these reasons, we AFFIRM the district

court’s decision.

24a

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 17-1459

FILED

MICHAEL J. BIESTEK,

Plaintiff - Appellant,

December 27, 2017

DEBORAH S. HUNT, Clerk

COMMISSIONER OF SOCIAL SECURITY,

Defendant - Appellee.

Before: CLAY, COOK, and WHITE, Circuit Judges.

JUDGMENT

On Appeal from the United States District Court

for the Eastern District of Michigan at Flint.

THIS CAUSE was heard on the record from the

district court and was argued by counsel.

IN CONSIDERATION THEREOF, it is

ORDERED that the judgment of the district court is

AFFIRMED.

ENTERED BY ORDER OF

THE COURT

/s/

Deborah S. Hunt, Clerk

25a

Appendix B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MICHAEL J. BIESTEK,

Plaintiff,

Civil Case No.

16-1010422

Honorable Linda V.

Parker

NANCY A. BERRYHILL,

ACTING COMMISSIONER

OF SOCIAL SECURITY

Defendant.

OPINION AND ORDER (1) ADOPTING

MAGISTRATE JUDGE’S FEBRUARY 24, 2017

REPORT AND RECOMMENDATION [ECF NO.

28]; (2) DENYING PLAINTIFF’S MOTION FOR

SUMMARY JUDGMENT [ECF NO. 22]; (3)

GRANTING DEFENDANT’S MOTION FOR

SUMMARY JUDGMENT [ECF NO. 23]; (4)

GRANTING DEFENDANT’S EX PARTE

MOTION FOR LEAVE TO FILE EXCESS

PAGES [ECF NO. 30] AND (5) GRANTING

PLAINTIFF’S MOTION FOR LEAVE TO FILE

REPLY TO RESPONSE TO OBJECTIONS

[ECF NO. 32]

26a

On February 5, 2016, Plaintiff filed this lawsuit

challenging Defendant’s final decision denying his

application for benefits under the Social Security Act.

(ECF No. 1.) On February 12, 2016, the matter was

referred to Magistrate Judge Mona K. Majzoub for all

pretrial proceedings, including a hearing and

determination of all non-dispositive matters pursuant to

28 U.S.C. § 636(b)(1)(A) and/or a report and

recommendation (“R&R”) on all dispositive matters

pursuant to 28 U.S.C. § 636(b)(1)(B). (ECF No. 13.) The

parties subsequently filed cross- motions for summary

judgment. (ECF Nos. 22, 23.)

Background

On February 24, 2017, Magistrate Judge Majzoub

issued her R&R in which she recommends that this

Court deny Plaintiff’s motion, grant Defendant’s motion,

and affirm Defendant’s decision finding Plaintiff not

disabled under the Social Security Act. (ECF No. 28.)

In her thorough analysis, Magistrate Judge Majzoub

first rejects Plaintiff’s argument that the administrative

law judge (“ALJ”) erred in determining that Plaintiff’s

impairments do not meet or medically equal Listing 1.04.

(Id. at Pg ID 2195.) Magistrate Judge Majzoub next

declines Plaintiff’s argument that the ALJ improperly

evaluated the medical opinion evidence. (Id. at Pg ID

2199.) Magistrate Judge Majzoub dismisses Plaintiff’s

third argument that the ALJ failed to adequately

account for Plaintiff’s limitations in concentration,

persistence, or pace. (Id. at Pg ID 2208.) The magistrate

This matter was first referred to Magistrate Judge R. Steven

Whalen on February 8, 2016. (ECF No. 5.)

27a

judge also deferred to the ALJ’s determinations that

Plaintiff’s statements were not entirely credible and that

the statements made by Plaintiff’s mother should be

given little weight. (Id. at Pg ID 2215). Lastly,

Magistrate Judge Majzoub rejected Plaintiff’s

contention that the ALJ’s step-five determination is not

supported by substantial evidence. (Id.)

Magistrate Judge Majzoub concludes by advising

the parties that they may object to and seek review of

the R&R within fourteen days of service upon them. (Id

at 2218.) She further specifically advises the parties that

“[f]ailure to file specific objections constitutes a waiver

of any further right to appeal.” (Id.) Plaintiff filed

objections on March 10, 2017. (ECF No. 29.) Defendant

responded to Plaintiff’s objections on March 21, 2017.

(ECF No. 31.)

II.

Standard of Review

When objections are filed to a magistrate judge’s

R&R on a dispositive matter, the Court “make[s] a de

novo determination of those portions of the report or

specified proposed findings or recommendations to

which objection is made.” 28 U.S.C. § 636(b)(1). The

Court, however, “is not required to articulate all of the

reasons it rejects a party’s objections.” Thomas v.

Halter, 131 F. Supp. 2d 942, 944 (E.D. Mich. 2001)

(citations omitted). A party’s failure to file objections to

Defendant filed an ex parte motion requesting leave to file excess

pages in their response to Plaintiff’s objections. (ECF No. 30.) The

Court grants Defendant’s motion.

28a

certain conclusions of the report and recommendation

waives any further right to appeal on those issues. See

Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d

1370, 1373 (6th Cir. 1987). Likewise, the failure to object

to certain conclusions in the magistrate judge’s report

releases the Court from its duty to independently

review those issues. See Thomas v. Arn, 474 U.S. 140,

149 (1985).

III.

Applicable Law & Analysis

Objection 1

In Plaintiff’s first objection, he reiterates the

argument asserted in his summary judgment motion

that the ALJ’s step-five determination is not supported

by substantial evidence. (ECF No. 22 at Pg ID 2129.) In

particular, Plaintiff argues that the testimony of the

vocational expert (“VE”) was not supported by

substantial evidence because the VE based her

testimony on her experience. (Id. at Pg ID 2130.) As

Magistrate Judge Majzoub notes, the VE based her

testimony “on her eleven-year experience as a

vocational rehabilitation consultant, which included

talking with employers, performing on-the-job analysis,

and conducting her own individual labor market

surveys.” (ECF No. 28 at Pg ID 2215.) At the end of

VE’s testimony, counsel for Plaintiff requested evidence

of VE’s experience. (Id.) The VE testified that it would

require revealing patient’s private confidential files;

therefore, the ALJ determined that she would not

require the VE to produce those files. (Id.)

Plaintiff contends that the VE was required to

provide support for her testimony, relying on a standard

29a

articulated by the Seventh Circuit in Donahue v.

Barnhart, 279 F.3d 441, 446 (7th Cir. 2002). In Donahue,

the Seventh Circuit stated that:

If the basis of the vocational expert’s

conclusions is questioned at the hearing,

however, then the ALJ should make an

inquiry (similar though not necessarily

identical to that of Rule 702) to find out

whether

the

purported

expert’s

conclusions are reliable. Social Security

Ruling 00–4p, promulgated in December

2000 (and thus not directly applicable to

this case), is to much the same effect.

This ruling requires the ALJ to

“[e]xplain [in the] determination or

decision how any conflict [with the

Dictionary] that has been identified was

resolved.” (Emphasis added.) The ruling

requires an explanation only if the

discrepancy was “identified”—that is, if

the claimant (or the ALJ on his behalf)

noticed the conflict and asked for

substantiation.

Donahue, 279 F.3d at 446-47. The Sixth Circuit has not

adopted this standard. See Masters v. Astrue, No. 07123, 2008 WL 4082965 (E.D. Ky. Aug. 29, 2008) (rejecting

Seventh Circuit standard requiring remand due to

failure to inquire into reliability because “reliability is a

factor only in the Sixth Circuit”). Plaintiff re- asserts his

summary judgment argument that this Court should

rely on Donahue although it has not been expressly

30a

adopted by the Sixth Circuit. This Court declines to do

so.

Objection 2

Plaintiff next argues that the magistrate judge

erred when she did not apply SSR 16-3p retroactively.

(ECF No. 29 at Pg ID 2227.) SSR 16-3p, which went into

effect on March 28, 2016, supersedes SSR 96-7p. See

SSR 16-3p, 2016 WL 1119029 at *1; 2016 WL 1237954

(amending the effective date). SSR 16-3p provides

guidance on how the Social Security Administration

should “evaluate statements regarding the intensity,

persistence, and limiting effects of symptoms in

disability claims[.] SSR 16-3p, 2016 WL 1119029 at *1.

Because SSR 16-3p went into effect after the ALJ’s

decision, Magistrate Judge Majzoub complied with its

precursor, SSR 96-7p. (ECF No. 28 at Pg ID 2211.)

Plaintiff contends that Magistrate Judge Majzoub

should have applied SSR 16-3p retroactively. (ECF No.

29 at Pg ID 2227.)

Plaintiff does not provide any binding authority

to support its claim that the ruling should be applied

retroactively. Further, as Defendant notes, Plaintiff did

not raise an argument to apply SSR 16-3p retroactively

in his initial brief and has thus waived the argument. See

Emmons v. Comm’r of Soc. Sec., No. 12-15235, 2014 WL

1304936 at *1 (E.D. Mich. Feb. 13, 2014) (citing United

States v. Jerkins, 871 F.2d 598, 601 (6th Cir. 1989)).

Objection 3

Next, Plaintiff argues that Magistrate Judge

Majzoub erred in evaluating the opinion evidence. (ECF

No. 29 at Pg ID 2234.) First, Plaintiff notes that the

31a

magistrate judge found that Dr. Wright’s opinion was

inconsistent with objective evidence. (Id.) Plaintiff

mischaracterizes the magistrate judge’s opinion.

Magistrate Judge Majzoub stated that it would be

inconsistent to state that Dr. Wright had an “ongoing

treatment relationship” with Plaintiff pursuant to the

requirement in 20 C.F.R. 1502. (ECF No. 28 at Pg ID

2202.) Magistrate Judge Majzoub’s R&R makes clear

that Dr. Wright would not qualify as a treating physician

pursuant to the statute because he had not treated

Plaintiff for over two years. (Id.)

Plaintiff also contends that Magistrate Judge

Majzoub is incorrect with her analysis of Dr. Barnes’

assessment. Plaintiff states that “Dr. Barnes specifically

stated that he did not believe Plaintiff could even

occasionally bend at the waist and the ALJ so found.”

(ECF No. 29 at Pg ID 2237.) However, Plaintiff’s

citations do not support that assertion. In fact, Plaintiff

cites to the following:

At the second hearing, Dr. Barnes opined

the claimant could occasionally lift 10

pounds of weight and frequently lift 5

pounds of weight; sit for 8 hours of the

day, a couple hours at a time; stand or

walk for 2-4 hours, in increments of about

a half hour at a time before having to sit

down for about 10 minutes; and could

squat to pick up 10 pounds but not bend

at the waist to do so.”

(ECF No. 17-9 at Pg ID 801-02.) (emphasis added).

Plaintiff also cites to the testimony of Dr. Barnes, where

the doctor states that Plaintiff “could probably squat

32a

down to pick up ten pounds occasionally, but I don’t

think he would be able to bend over at the waist

(INAUDIBLE) occasionally.” (Id. at Pg ID 973.) His

testimony was in reference to Plaintiff’s ability to lift

certain weights. An interpretation that Dr. Barnes

meant Plaintiff could not bend over at the waist to lift

certain weights is consistent with Dr. Barnes’ testimony

at the second hearing.

Objections 4 and 5

Plaintiff’s fourth objection states that the

magistrate judge erred in determining that Plaintiff’s

impairments did not meet or medically equal Listing

1.04. (ECF No. 29 at Pg ID 2238.) The fifth objection

argues that Plaintiff was denied his right to due process

when the ALJ denied his request to allow Dr. Ghanayem

appear as a rebuttal witness. (Id. at Pg ID 2243.)

To properly object to the R&R, Plaintiff must do

more than merely restate the arguments set forth in his

summary judgment motion. See Owens v. Comm’r of

Soc. Sec., 1:13-47, 2013 WL 1304470, at *3 (W.D. Mich.

Mar. 28, 2013) (indicating that the “Court is not obligated

to address objections [which are merely recitations of

the identical arguments made before the magistrate

judge] because the objections fail to identify the specific

errors

the

magistrate

judge’s

proposed

recommendations”) (emphasis in original); see also

Camardo v. Gen. Motors Hourly-Rate Emps. Pension

Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992) (recitations

of nearly identical arguments are insufficient as

objections and constitute an improper “second bite at

the apple”); Nickelson v. Warden, No. 1:11 - cv-334, 2012

WL 700827, at *4 (S.D. Ohio Mar. 1, 2012) (“[O]bjections

33a

to magistrate judges’ reports and recommendations are

not meant to be simply a vehicle to rehash arguments set

forth in the petition.”). In both the fourth and fifth

objections, Plaintiff re-asserts the arguments stated in

his summary judgment motion to support his claims of

error in the ALJ’s analysis without identifying how

Magistrate Judge Majzoub erred in evaluating those

arguments. (ECF No. 29 at Pg ID 2238, 2243.) For the

reasons Magistrate Judge Majzoub provided in her

R&R, Plaintiff’s arguments are without merit.

For these reasons, the Court rejects Plaintiff’s

objections to Magistrate Judge Majzoub’s February 24,

2017 R&R and adopts the recommendations in the R&R.

Accordingly,

IT IS ORDERED that Plaintiff’s motion for

summary judgment (ECF No. 22) is DENIED;

IT IS FURTHER ORDERED that Defendant’s

motion for summary judgment (ECF No. 23) is

GRANTED;

IT IS FURTHER ORDERED that Defendant’s

ex parte motion for leave to file excess pages (ECF No.

30) is GRANTED;

IT IS FURTHER ORDERED that Plaintiff’s

motion for leave to file reply to Defendant’s response to

objections (ECF No. 32) is GRANTED;

IT IS FURTHER ORDERED that Defendant’s

decision denying Plaintiff’s application for benefits

under the Social Security Act is AFFIRMED.

34a

s/ Linda V. Parker

LINDA V. PARKER

U.S. DISTRICT JUDGE

Dated: March 30, 2017

I hereby certify that a copy of the foregoing document

was mailed to counsel of record and/or pro se parties on

this date, March 30, 2017, by electronic and/or U.S. First

Class mail.

s/ Richard Loury

Case Manager

35a

Appendix C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MICHEAL J. BIESTEK,

Plaintiff,

CIVIL ACTION NO.

16-CV-10422

DISTRICT JUDGE

LINDA V. PARKER

COMMISSIONER OF

SOCIAL SECURITY

MAGISTRATE

JUDGE MONA K.

Defendant. MAJZOUB

REPORT AND RECOMMENDATION

Plaintiff Michael J. Biestek seeks judicial review

of Defendant Commissioner of Social Security’s

determination that he is not entitled to social security

benefits for his physical and mental impairments under

42 U.S.C. § 405(g). (Docket no. 1.) Before the Court are

Plaintiff’s Motion for Summary Judgment (docket no. 22)

and Defendant’s Motion for Summary Judgment (docket

no. 23). Plaintiff has also filed a reply brief in support of

his Motion for Summary Judgment. (Docket no. 25.) The

motions have been referred to the undersigned for a

Report and Recommendation pursuant to 28 U.S.C.

§ 636(b)(1)(B). (Docket no. 13.) The Court has reviewed

the pleadings, dispenses with a hearing pursuant to

Eastern District of Michigan Local Rule 7.1(f)(2), and

issues this Report and Recommendation.

36a

RECOMMENDATION

For the reasons that follow, it is recommended

that Plaintiff’s Motion for Summary Judgment (docket

no. 22) be DENIED and Defendant’s Motion for

Summary Judgment (docket no. 23) be GRANTED.

II.

PROCEDURAL HISTORY

The undersigned adopts and incorporates by

reference the procedural history of this matter set forth

in the ALJ’s decision. (TR 721-22.)

III.

HEARING TESTIMONY AND MEDICAL

EVIDENCE

In his brief, Plaintiff sets forth the procedural

history of this matter and a brief statement of the case,

informing that his medical records are incorporated by

reference in the argument portion of his brief. (Docket

no. 22 at 2-3.) The ALJ summarized Plaintiff’s hearing

testimony, Plaintiff’s medical record, and the vocational

expert’s (VE’s) testimony in her decision. (TR 724-38.)

Defendant adopts the ALJ’s recitation of the facts.

(Docket no. 23 at 5.)

There are no material

inconsistencies between the ALJ’s summary of the facts

and the record; therefore, the undersigned will

incorporate the summary by reference. Additionally,

the undersigned has conducted an independent review

of Plaintiff’s medical record and the hearing transcript

and will include comments and citations as necessary

throughout this Report and Recommendation.

37a

IV.

ADMINISTRATIVE LAW JUDGE’S

DETERMINATION

The ALJ found that Plaintiff met the insured

status requirements of the Social Security Act through

December 31, 2010, and that he had not engaged in

substantial gainful activity since the alleged onset date.

(TR 724.) The ALJ also found that Plaintiff suffered

from the following severe impairments: degenerative

disc disease, hepatitis C, asthma, and depression, but his

impairments did not meet or medically equal the

severity of an impairment listed in 20 C.F.R. Part 404,

Subpart P, Appendix 1. (TR 724-27.) The ALJ then

found that Plaintiff had the following RFC:

[C]laimant has the residual functional

capacity to perform sedentary work as

defined in 20 CFR 404.1567(a) and

416.967(a) except [he] requires work in a

relatively clean air work environment,

such as no fumes, gases, concentrated dust

or other pollutants; no climbing of ladders,

ropes, or scaffolds; no climbing of ramps or

stairs; no crawling; occasional stooping,

crouching or kneeling; occasional flexion,

extension, or rotation of the neck; no

operation at hazardous heights or around

dangerous machinery; no operation in

temperature extremes; no work in food

service or medical assistance areas;

requires a sit/stand option at will, but not

to exceed 30 minutes at a time in either

position; is limited to simple, routine tasks

such as those jobs at the SVP 1 or 2 level

38a

due to pain, fatigue, and depression

causing occasional limitations in ability to

maintain concentration for extended

periods, but not off task for more than 10%

of the workday, as well as occasional

limitations in ability to carry out detailed

instructions; requires use of a can for

prolonged ambulation; and is limited to

brief and superficial interaction (i.e.

infrequent and not very involved) with the

public, coworkers, and supervisors.

(TR 727-36.) Subsequently, the ALJ noted that prior to

the established disability onset date, Plaintiff was a

younger individual age 45-49, but his age category

changed to that of an individual closely approaching

advanced age on May 2013. (TR 737.) Then, in reliance

on the VE’s testimony, the ALJ determined that prior

to May

2013, Plaintiff was capable of performing a

significant number of jobs in the national economy, but

beginning on May 2013, there were no such jobs that

Plaintiff could perform. (TR 737-38.) Therefore, the

ALJ found that Plaintiff was not disabled under the

Social Security Act at any time prior to May 2013, but

became disabled on that date and continued to be

disabled through the date of the decision. (TR 722-23,

738-39.)

LAW AND ANALYSIS

Standard of Review

Pursuant to 42 U.S.C. § 405(g), this Court has

jurisdiction to review the Commissioner’s final

decisions.

Judicial review of the Commissioner’s

39a

decisions is limited to determining whether his findings

are supported by substantial evidence and whether he

employed the proper legal standards. See Richardson v.

Perales, 402 U.S. 389, 401 (1971); Walters v. Comm’r, 127

F.3d 525, 528 (6th Cir. 1997). Substantial evidence is

more than a scintilla but less than a preponderance; it is

“‘such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.’”

Richardson, 402 U.S. at 401 (quoting Consolidated

Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Walters,

127 F.3d at 528. It is not the function of this Court to try

cases de novo, resolve conflicts in the evidence, or decide

questions of credibility. See Brainard v. Sec’y of Health

and Human Servs., 889 F.2d 679, 681 (6th Cir. 1989);

Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).

In determining the existence of substantial

evidence, the court must examine the administrative

record as a whole. See Kirk v. Sec’y of Health and

Human Servs., 667 F.2d 524, 536 (6th Cir. 1981), cert.

denied, 461 U.S. 957 (1983). If the Commissioner’s

decision is supported by substantial evidence, it must be

affirmed, even if the reviewing court would decide the

matter differently, Kinsella v. Schweiker, 708 F.2d 1058,

1059 (6th Cir. 1983), and even if substantial evidence also

supports the opposite conclusion. See Her v. Comm’r,

203 F.3d 388, 389-90 (6th Cir. 1999); Mullen v. Bowen,

800 F.2d 535, 545 (6th Cir. 1986) (en banc) (noting that

the substantial evidence standard “presupposes that

there is a zone of choice within which the decisionmakers

can go either way, without interference by the courts”).

“But ‘[a]n ALJ’s failure to follow agency rules and

regulations denotes a lack of substantial evidence, even

40a

where the conclusion of the ALJ may be justified based

upon the record.’” Gayheart v. Comm’r of Soc. Sec., 710

F.3d 365, 374 (6th Cir. 2013) (quoting Cole v. Astrue, 661

F.3d 931, 937 (6th Cir. 2011)).

Framework for Social Security

Determinations

Plaintiff’s

Social

Security

disability

determination was made in accordance with a five- step

sequential analysis. In the first four steps, Plaintiff was

required to show that:

(1)

Plaintiff was not presently engaged in

substantial gainful employment; and

(2)

Plaintiff suffered

impairment; and

(3)

the impairment met or was medically

equal to a “listed impairment;” or

(4)

Plaintiff did not have the residual

functional capacity (RFC) to perform

relevant past work.

from

severe

See 20 C.F.R. § 404.1520(a)-(f). If Plaintiff’s impairments

prevented Plaintiff from doing past work, the

Commissioner, at step five, would consider Plaintiff’s

RFC, age, education, and past work experience to

determine if Plaintiff could perform other work. If not,

Plaintiff would be deemed disabled.

See id. at

§ 404.1520(g). The Commissioner has the burden of

proof only on “the fifth step, proving that there is work

available in the economy that the claimant can perform.”

Her, 203 F.3d at 391. To meet this burden, the

Commissioner must make a finding “supported by

41a

substantial evidence that [the claimant] has the

vocational qualifications to perform specific jobs.”

Varley v. Sec’y of Health and Human Servs., 820 F.2d

777, 779 (6th Cir. 1987). This “substantial evidence” may

be in the form of vocational expert testimony in response

to a hypothetical question, “but only ‘if the question

accurately portrays [the claimant’s] individual physical

and mental impairments.’” Id. (citations omitted).

Analysis

The Social Security Act authorizes “two types of

remand: (1) a post judgment remand in conjunction with

a decision affirming, modifying, or reversing a decision

of the [Commissioner] (a sentence-four remand); and (2)

a pre-judgment remand for consideration of new and

material evidence that for good cause was not previously

presented to the [Commissioner] (a sentence-six

remand).” Faucher v. Sec’y of Health and Human

Servs., 17 F.3d 171, 174 (6th Cir. 1994) (citing 42 U.S.C.

§ 405(g)). Under a sentence-four remand, the Court has

the authority to “enter upon the pleadings and

transcript of the record, a judgment affirming, denying,

or reversing the decision of the [Commissioner], with or

without remanding the cause for a hearing. 42 U.S.C.

§ 405(g). Where there is insufficient support for the

ALJ’s findings, “the appropriate remedy is reversal and

a sentence-four remand for further consideration.”

Morgan v. Astrue, 10-207, 2011 WL 2292305, at *8 (E.D.

Ky. June 8, 2011) (citing Faucher, 17 F.3d at 174).

Plaintiff asserts that this matter should be

reversed for an award of benefits or remanded for

further proceedings under sentence four because (1) the

ALJ erred in evaluating Listing 1.04; (2) the ALJ erred

42a

in evaluating the medical opinion evidence; (3) the ALJ

erred in evaluating Plaintiff’s restrictions in

concentration, persistence, or pace; (4) the ALJ’s

credibility assessment is erroneous; and (5) the ALJ’s

step-five determination is not supported by substantial

evidence. (Docket no. 22.)

The ALJ’s Assessment of

Plaintiff’s Impairments under

Listing 1.04

Plaintiff challenges the ALJ’s determination at

step three of the sequential evaluation process that

Plaintiff’s impairments do not meet or medically equal

Listing 1.04. (Docket no. 22 at 3-7.) At the third step of

the sequential evaluation process, a claimant will be

deemed presumptively disabled and eligible for benefits

if his impairment meets or medically equals one of the

listings in the Listing of Impairments. 20 C.F.R.

§§ 404.1520(a)(4)(iii),

416.920(a)(4)(iii).

“When

considering presumptive disability at Step Three, an

ALJ must analyze the claimant’s impairments in relation

to the Listed Impairments and give a reasoned

explanation of his findings and conclusions in order to

facilitate meaningful review.” Christephore v. Comm’r

of Soc. Sec., No. 11-13547, 2012 WL 2274328, at *6 (E.D.

Mich. June 18, 2012) (citing Reynolds v. Comm’r of Soc.

Sec., 424 F. App’x 411, 416 (6th Cir. 2011)). A claimant

must satisfy all of the criteria to meet a listing, or have

impairments that are medically equivalent to or equal in

severity and duration to the criteria of a listed

impairment. Id.; Rabbers v. Comm’r, 582 F.3d 647, 653

(6th Cir. 2009). “Moreover, all of the criteria must be

met concurrently for a period of twelve continuous

43a

months.” McKeel v. Comm’r of Soc. Sec., No. 14-cv12815, 2015 WL 3932546, at*8 (E.D. Mich. June 26, 2015)

(citing 20 C.F.R. § 404.1525(c)(3), (4); 20 C.F.R. Pt. 404,

Subpt. P, App. 1, § 1.00D (“[b]ecause abnormal physical

findings may be intermittent, their presence over a

period of time must be established by a record of ongoing

management and evaluation”)). It is the claimant’s

burden to demonstrate that she meets or equals a listed

impairment at the third step of the sequential evaluation

process. Foster v. Halter, 279 F.3d 348, 354 (6th Cir.

2001).

(“A claimant must demonstrate that her

impairment satisfies the diagnostic description for the

listed impairment in order to be found disabled

thereunder.”).

Under Listing 1.04, disorders of the spine (e.g.,

herniated nucleus pulposus, spinal arachnoiditis, spinal

stenosis, osteoarthritis, degenerative disc disease, facet

arthritis, vertebral fracture) are defined as those:

resulting in compromise of a nerve root

(including the cauda equina) or the spinal

cord. With:

Evidence of nerve root compression characterized by neuroanatomic distribution of pain,

limitation of motion of the spine,

motor

loss

(atrophy

with

associated muscle weakness or

muscle weakness) accompanied by

sensory or reflex loss and, if there

is involvement of the lower back,

positive straight-leg raising test

(sitting and supine); or

44a

Spinal arachnoiditis, confirmed by an operative note or

pathology report of tissue biopsy,

or by appropriate medically

acceptable imaging, manifested by

severe

burning

painful

dysesthesia, resulting in the need

for changes in position or posture

more than once every 2 hours; or

Lumbar spinal stenosis

resulting in pseudoclaudication,

established

findings

appropriate medically acceptable

imaging, manifested by chronic

nonradicular pain and weakness,

and resulting in inability to

ambulate effectively, as defined in

1.00B2b.

20 C.F.R. Part 404, Subpart P, Appendix 1, Section 1.04.

For a disorder of the spine to meet Listing 1.04A, “the

simultaneous presence of all of the medical criteria in

paragraph A must continue, or be expected to continue,

for a continuous period of at least 12 months.” Social

Security Acquiescence Ruling (AR) 15-1(4), 80 FR

57418-02, 2015 WL 5564523, at *57420 (Sept. 23, 2015)

(citing 20 C.F.R. §§ 404.1525(c)(4), 416.925(c)(4)). Stated

differently, when the paragraph A criteria “are

scattered over time, wax and wane, or are present on one

examination but absent on another, the individual’s

nerve root compression would not rise to the level of

severity required by listing 1.04A.” Id.

45a

Here, the ALJ found that Plaintiff did not have an

impairment or combination of impairments that met or

medically equaled the severity of one of the listed

impairments. (TR 725.) With regard to Listing 1.04, the

ALJ explained:

The degenerative disc disease does not

meet or medically equal listing 1.04

because the claimant lacks the requisite

motor and sensory deficits, and there is no

evidence of spinal arachnoiditis or spinal

stenosis resulting in pseudoclaudication.

This finding is supported by the opinion of

medical expert, Dr. Barnes, who testified

that, in his opinion, the claimant did not

meet or equal a medical listing. The

undersigned gives significant weight to

this opinion from Dr. Barnes, as it is

consistent with the evidence in the record.

Namely, in supporting this opinion, Dr.

Barnes indicated that positive straight leg

raising was not found on most of the

examinations, as will be discussed in more

detail below. Furthermore, Dr. Barnes

noted that the physical findings of

numbness, reflex changes, and atrophy

were not consistently present over a 12month period, consistent with the medical

records. In addition, the MRI findings in

the record, as discussed below, reflect only

mild-to-moderate degenerative changes

with no more than mild stenosis (Exhibits

B2F/9, B12F/6, B22F/45, and B30F/22).

46a

In making this finding regarding listing

1.04, the undersigned give [sic] little

weight to the medical opinion of Alexander

J. Ghanayem, M.D., who opined that the

claimant “met and exceeded the criteria

set forth for disability related to disorders

of the spine as listed in section 1.04”

(Exhibit B43F). Dr. Ghanayem noted “in

2005 he had significant lumbar spine disc

disease”; however, the radiologist noted in

August 2005 that the claimant had “mild

degenerative disc disease and facet

osteoarthritis” (Exhibit B38F/3). The

doctor then noted that, by December 2009,

the claimant’s lumbar spine “showed

significant and diffuse evidence of lumbar

disc disease”; yet, the MRI study dated

December 05, 2009, and re-interpreted on

January 19, 2010 revealed no more than

moderate abnormalities with no evidence

of spinal canal stenosis, neural foramina

stenosis, or disc protrusion (Exhibits

B2F/9 and B12F/6). Mild-to-moderate

degenerative changes were seen on a 2013

lumbar spine MRI, and an October 2014

MRI revealed only mild central canal

stenosis (Exhibits B22F/45 and B30F/22).

Dr. Ghanayem’s opinion is contrary to the

objective findings of multiple radiologists

who reviewed the claimant’s images. The

undersigned also notes that Dr. Ghanayem

only reviewed the claimant’s medical

records and never had the opportunity to

47a

examine, or even meet with and question,

the claimant (Exhibit B43F).

(TR 725.)

Plaintiff argues that the ALJ erred in adopting

the opinion of Dr. Barnes over that of Dr. Ghanayem.

(Docket no. 22 at 4.) Plaintiff also argues that even if he

cannot demonstrate that that he meets Listing 1.04A,

Dr. Ghanayem testified that Plaintiff’s impairments

“more than equaled” the Listing. (Docket no. 25 at 1.)

“However, the ALJ has the right to resolve conflicting

respectable medical opinions.” Morreale v. Heckler, 595

F. Supp. 907, 910 (E.D. Mich. 1984) (citing LeMaster v.

Weinberger, 533 F.2d 337, 349 (6th Cir. 1976); Halsey v.

Richardson, 441 F.2d 1230 (6th Cir. 1971)). See also

Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001) (It is

not the court’s role to resolve conflicting evidence in the

record.). While the ALJ’s notation that Dr. Ghanayem

did not personally examine Plaintiff is questionable,

particularly where Dr. Barnes also did not personally

examine Plaintiff, it does not constitute a significant

legal error requiring remand. Here, there is substantial

evidence in the record that supports the ALJ’s decision

that Plaintiff did not meet or medically equal Listing

1.04, including the MRI reports, which the ALJ

accurately cited as revealing only mild-to moderate

degenerative changes; the objective medical evidence

revealing the lack of a simultaneous presence of the

paragraph A criteria (TR 245-46, 250, 252, 255, 285, 328330, 410, 412, 414, 469, 486, 590, 636, 639, 1554, 1570, 1609,

1617, 1914, 1922-23, 1931, and 1957); and Dr. Barnes’s

opinion, upon which the ALJ was entitled to rely.

Although there is also record evidence, including Dr.

48a

Ghanayem’s opinion, that tends to support Plaintiff’s

assertions, the ALJ’s step-three determination is

supported by substantial evidence, and it must be

affirmed. See Her v. Comm’r, 203 F.3d at 389-90.

Therefore, Plaintiff’s Motion should be denied with

regard to this issue.

The ALJ’s Assessment of the

Medical Opinion Evidence

Next, Plaintiff argues that the ALJ improperly

evaluated the medical opinion evidence, specifically that

of his treating physician, Dr. Wright, consultative

examiner Dr. Jack Salomon, and the non-examining

medical experts, Dr. Barnes and Dr. Ghanayem. (Docket

no. 22 at 7-15.)

Dr. Wright

It is well settled that the opinions of treating

physicians are generally accorded substantial deference.

In fact, the ALJ must give a treating physician’s opinion

complete deference if it is supported by clinical and

laboratory diagnostic evidence and it is not inconsistent

with the other substantial evidence in the record. 20

C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). When an ALJ

determines that a treating source’s medical opinion is

not controlling, he must determine how much weight to

assign that opinion in light of several factors: (1) length

of the treatment relationship and the frequency of

examination; (2) nature and extent of the treatment

relationship; (3) supportability of the opinion; (4)

consistency of the opinion with the record as a whole; (5)

specialization of the treating source; and (6) other

factors. 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6).

49a

There is no per se rule that requires an

articulation of each of the six regulatory factors listed in

20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6). Norris

v. Comm’r of Soc. Sec., No. 11-CV-11974, 2012 WL

3584664, at *5 (E.D. Mich. Aug. 20, 2012) (citing Tilley v.

Comm’r of Soc. Sec., 394 F. App’x 216, 222 (6th Cir.

2010)). An ALJ’s failure to discuss the requisite factors

may constitute harmless error (1) if “a treating source’s

opinion is so patently deficient that the Commissioner

could not possibly credit it;” (2) “if the Commissioner

adopts the opinion of the treating source or makes

findings consistent with the opinion;” or (3) “where the

Commissioner has met the goal of [§ 1527(c)]—the

provision of the procedural safeguard of reasons—even

though she has not complied with the terms of the

regulation.” Nelson v. Comm’r of Soc. Sec., 195 F. App’x

462, 470 (6th Cir. 2006) (quoting Wilson v. Comm’r of

Soc. Sec., 378 F.3d 541, 547 (6th Cir. 2004)).

The Commissioner requires its ALJs to “always

give good reasons in [their] notice of determination or

decision for the weight [they] give [a] treating source’s

opinion.” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).

Those good 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.” Wilson, 378 F.3d at

544 (quoting SSR 96-2p, 1996 WL 374188, at *5 (1996)).

The district court should not hesitate to remand when

the Commissioner has failed to identify the weight

assigned to a treating physician’s opinion and provide

good reasons for that weight. See Cole v. Astrue, 661

50a

F.3d 931, 939 (6th Cir. 2011) (“This Court has made clear

that ‘[w]e do not hesitate to remand when the

Commissioner has not provided ‘good reasons’ for the

weight given to a treating physician’s opinion and we

will continue remanding when we encounter opinions

from ALJ’s that do not comprehensively set forth the

reasons for the weight assigned to a treating physician’s

opinion.”) (citing Hensley v. Astrue, 573 F.3d 263, 267

(6th Cir. 2009)).

Plaintiff treated with Harold M. Wright, DO from

October 2012 to April 2013. (TR 1552-71.) On April 25,

2013 and October 7, 2013, Dr. Wright completed

substantially similar Medical Examination Reports with

regard to Plaintiff, in which he opined that Plaintiff could

lift less than 10 pounds occasionally but never more than

10 pounds; stand and/or walk for less than 2 hours in an

8-hour workday, sit for less than six hours in an 8-hour

workday; use his arms for simple grasping and reaching

but never for pushing, pulling, or fine manipulating; and

operate foot/leg controls. (TR 1592-94, 1945-47.) Dr.

Wright also opined that Plaintiff was limited in

comprehension, memory, sustaining concentration,

following simple directions, reading and writing, and

social interaction. (Id.) Dr. Wright then completed a

Physical Residual Functional Capacity Questionnaire

with regard to Plaintiff on July 10, 2015. (TR 1888-96.)

In this report, Dr. Wright opined that Plaintiff could

occasionally lift less than 10 pounds but never more than

10 pounds; could sit or stand for only 10 minutes at time;

could sit for less than 2 hours total in an 8-hour workday;

could stand for less than 2 hours in an 8-hour workday;

would need to walk around every 10 minutes in an 8-hour

51a

workday for 5 minutes each time; would need to take 2030 minute breaks every 10-15 minutes; would need a

cane to ambulate; would be incapable of performing even

low stress jobs; and would never be able to twist, stoop,

crouch, or climb ladders or stairs, among other things.

The ALJ summarized Dr. Wright’s

opinions and then assessed them as

follows:

The undersigned gives minimal weight to

Dr. Wright’s opinions for numerous

reasons. First, despite preparing the most

recent disabling opinion in July 2015, the

doctor admitted to not having seen the

claimant since April 2013, or over two

years prior (Exhibit B31F/1). Moreover,

the objective medical evidence in the

record does not support the significant

limitations proposed by Dr. Wright. Most

notably, the numerous MRI studies

showed no more than mild-to-moderate

degenerative

findings,

which

inconsistent

with

Dr.

Wright’s

suggestions.

(TR 734.)

“A physician qualifies as a treating source if the

claimant sees her ‘with a frequency consistent with

accepted medical practice for the type of treatment

and/or evaluation required for [the] medical condition.’”

Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 876 (6th Cir.

2007) (alteration in original) (quoting 20 C.F.R.

§ 404.1502). Dr. Wright certainly qualified as Plaintiff’s

52a

treating physician from October 2012 to April 2013; thus,

his April 2013 opinion qualifies as that of a treating

physician and is generally entitled to substantial

deference. Also, the undersigned concludes that his

October 2013 opinion is not so far removed from the

period of treatment to prevent it from being considered

as a treating physician’s opinion. But, it is undisputed

that Dr. Wright had not treated Plaintiff for over two

years when he rendered his July 2015 opinion. It would

be inconsistent with the “ongoing treatment

relationship” requirement of 20 C.F.R. § 404.1502 to

treat that opinion as one authored by a treating

physician. See Tate v. Comm’r of Soc. Sec., 467 F. App’x

431, 433 (6th Cir. 2012). Accordingly, the ALJ properly

discounted Dr. Wright’s July 2015 opinion on this basis.

That being said, Dr. Wright’s April and October

2013 opinions were entitled to controlling weight as long

as they were “well-supported by medically acceptable

clinical and laboratory diagnostic techniques” and “not

inconsistent with the other substantial evidence in [the]

case record.” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).

Plaintiff argues that Dr. Wright’s opinions are entitled

to deference because Dr. Wright was well aware of

Plaintiff’s conditions and treatment, particularly the

treatment that Plaintiff underwent to alleviate his pain.

(Docket no 22 at 8.) Plaintiff further argues that Dr.

Wright’s opinions are consistent with and were

bolstered by the testimony of the non-examining medical

expert, Dr. Ghanayem. (Id. at 8-9.) But Plaintiff’s

reliance on opinion evidence to support his argument in

this regard does not defeat the ALJ’s finding that Dr.

Wright’s opinions were inconsistent with the objective

53a

medical evidence, specifically, the results of Plaintiff’s

MRIs, which constitute substantial evidence in this

matter. The ALJ did not err in discounting Dr. Wright’s

April and October 2013 opinions as inconsistent with the

mild-to-moderate MRI results. Based on the discussion

above, the undersigned concludes that the ALJ provided

good reasons for assigning little weight to Dr. Wright’s

opinions, which reasons are supported by the evidence

of record and are sufficiently specific to clarify the

reasons for that weight. Plaintiff’s Motion should be

denied with regard to this issue.

Dr. Salomon

Next, Plaintiff argues that the ALJ erred by

assigning little weight to the opinion of consultative

examiner Jack Salomon, M.D. and instead assigning

great weight to the opinion of the non-examining

medical expert, Dr. Barnes. (Docket no. 22 at 9-10.) Dr.

Salomon conducted a physical evaluation of Plaintiff on

July 2, 2013, with regard to Plaintiff’s alleged disability.

(TR 1615-21.) The parties do not dispute that Dr.

Salomon was not a treating physician, as he only

examined Plaintiff once on a consultative basis. The

ALJ is not bound by a non-treating physician’s opinion.

McKivens v. Comm’r, No. 11-cv-14268, 2012 WL

3263847, at *11 (E.D. Mich. Jul. 9, 2012) (citation

omitted). However, “[w]hen no treating physician

opinion has been granted controlling weight ... the

medical opinion of a consultative examiner is to be

weighed considering all of the factors identified in 20

C.F.R. § 404.1527(c)(1) through (6).” Id. (citing 20 C.F.R.

§ 404.1527(e)(2)(iii)). Nevertheless, there is no per se

rule that requires an articulation of each of the six

54a

regulatory factors listed in 20 C.F.R. § 404.1527(c).

Norris v. Comm’r, No. 11- CV-11974, 2012 WL 3584664,

at *5 (E.D. Mich. Aug. 20, 2012) (citing Tilley v. Comm’r,

394 Fed. Appx. 216, 222 (6th Cir. 2010)).

Upon examining Plaintiff, Dr. Salomon rendered

the following assessment: “Mr. Biestek probably has

hepatitis C. He has lumbar radiculopathy. He may have

some other problems also. At this time, he is not very

functional. (TR 1617.) The ALJ evaluated Dr. Salomon’s

assessment as follows:

At the conclusion of the consultative

examination, Dr. Salomon opined that the

claimant was “not very functional”

(Exhibit B23F/3). The undersigned gives

little weight to Dr. Salomon’s opinion, as he

does not give specific functional limitations

but merely makes a blanket statement.

Moreover, Dr. Salomon only examined the

claimant on one occasion, and thus, has no

treating relationship with the claimant.

Although Dr. Salomon found positive

straight leg raising upon examination, the

diagnostic findings on the various MRIs do

not support the disabling statement from

the examiner.

(TR 734.) Here, the ALJ appropriately considered and

discussed some of the regulatory factors in weighing Dr.

Salomon’s assessment. And to the extent that Dr.

Salomon’s vague statement that Plaintiff is “not very

functional” constitutes a medical opinion under the

regulations, the ALJ’s failure to adopt Dr. Salomon’s

“opinion” is harmless because it is patently deficient

55a

with regard to any functional limitations related thereto.

See 20 C.F.R. §§ 404.1527(a)(1), 416.927(a)(1); Nelson,

195 F. App’x at 470. Moreover, Plaintiff does not allege

any additional functional limitations that he believes the

ALJ should have included based on Dr. Salomon’s

report. Therefore, Plaintiff’s Motion should be denied in

this regard.

Drs. Ghanayem and Barnes

First, with regard to Dr. Ghanayem, Plaintiff

alleges that although the ALJ permitted Dr. Ghanayem

to testify at the hearing regarding his previouslysubmitted written opinion, the ALJ erred by depriving

Plaintiff of the ability to use Dr. Ghanayem as rebuttal

evidence to the testimony of Dr. Barnes. (Docket no. 22

at 10-13.) Plaintiff relies on several authorities to

support his argument: POMS § DI 27540.001; the

Administrative Procedure Act (APA), 5 U.S.C. § 556(d);

20 C.F.R. § 404.929; 20 C.F.R. 404.950(a); and HALLEX

I-2-6-60. POMS § DI 27540.001, however, is inapplicable

to this matter, as it applies to proceedings in which the

SSA plans to re-open the case of an individual who is

already receiving disability benefits.

The APA provides that “[a] party is entitled to

present his case or defense by oral or documentary

evidence, to submit rebuttal evidence, and to conduct

such cross-examination as may be required for a full and

true disclosure of the facts.” 5 U.S.C. § 556(d). As

Defendant points out, however, this provision does not

dictate the time and manner of rebuttal. (Docket no. 23

at 17.) In fact, the APA further provides that in

determining claims for benefits, “an agency may, when a

party will not be prejudiced thereby, adopt procedures

56a

for the submission of all or part of the evidence in

written form.” 5 U.S.C. § 556(d). Accordingly, Plaintiff’s

argument that he should have been able to present

rebuttal evidence at the hearing through Dr.

Ghanayem’s testimony is not supported by the APA.

Notably, there is no evidence that Plaintiff sought to

present his rebuttal evidence in any other manner.

The social security regulations also do not

support Plaintiff’s argument. 20 C.F.R. § 404.929

provides that a claimant may present and question

witnesses at the hearing before the ALJ, but it does not

provide any guidance regarding rebuttal evidence. 20

C.F.R. § 404.950(a) states that any party to a hearing has

a right to appear before the ALJ to present evidence and

state his or her position. Again, this regulation does not

specifically address rebuttal evidence. Notably, neither

of these regulations specifies that an ALJ’s decision to

disallow rebuttal evidence at the hearing constitutes

legal error.

HALLEX I-2-6-60, which governs the testimony

of claimants and witnesses, provides, in relevant part,

that

The ALJ determines the subject and scope

of testimony from a claimant and any

witness(es), as well as how and when the

person testifies at the hearing. . . . If a

claimant or witness requests to testify in a

particular way, or asks to testify at a

particular time during the hearing, the

ALJ will consider whether there is a good

reason for the request. . . . If the ALJ does

not grant the request, the ALJ will either

57a

deny the request in writing before the

hearing (and exhibit the document) or

deny the request on the record during the

hearing. In either circumstance, the ALJ

will explain the reason(s) he or she denied

the request.

Plaintiff argues that the ALJ offered no reasons

for denying his request to present Dr. Ghanayam as a

rebuttal witness at the hearing. (Docket no. 22 at 12.)

Plaintiff is incorrect. At the hearing, the ALJ informed

Plaintiff’s attorney that her procedure was to direct

questions selected from a pre-approved list to the

medical expert and then provide the attorney with the

opportunity to ask that witness questions. (TR 881.)

The ALJ advised that she would not engage in a

discussion among professionals. (TR 881.) The ALJ’s

actions in this regard are consistent with HALLEX I-26-70, which governs medical expert (ME) testimony and

provides that “[t]he claimant and the representative

have the right to question the ME fully on any pertinent

matter within the ME’s area of expertise. However, the

ALJ will determine when they may exercise this right

and whether questions asked or answers given are

appropriate.” Accordingly, Plaintiff’s argument fails in

this regard.

Next, Plaintiff argues that the ALJ erred by only

evaluating Dr. Ghanayem’s opinion at step three of the

sequential evaluation process and failing to make any

mention of Dr. Ghanayem’s opinion in the RFC

determination. (Docket no. 22 at 13.) Plaintiff argues in

this regard that Dr. Ghanayem explained in his letter

opinion

that

Plaintiff’s

subjective

complaints

58a

documented in the medical records were consistent with

the nature of Plaintiff’s condition and would render

Plaintiff disabled. Plaintiff adds that Dr. Ghanayem

testified at the hearing that statements of sitting or

standing were reasonable and that the fact that Plaintiff

needed to lie down or elevate his legs was entirely

consistent with his pathology. Plaintiff argues that the

ALJ’s failure to mention this evidence warrants remand.

“[I]t is well settled that ‘[a]n ALJ can consider all

the evidence without directly addressing in his written

decision every piece of evidence submitted by a party.’”

Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 50708 (6th Cir. 2006) (quoting Loral Def. Sys.-Akron v.

N.L.R.B., 200 F.3d 436, 453 (6th Cir. 1999)). Here, the

record demonstrates that the ALJ did in fact consider

both the letter opinion and the testimony presented by

Dr. Ghanayem, as she presided over the hearing at

which Dr. Ghanayem testified, and she indicated at that

hearing that she “really did understand [Dr.

Ghanayem’s] letter very clearly.” (TR 883.) Thus, the

ALJ’s failure to explicitly discuss the evidence cited by

Plaintiff above in the decision does not constitute

reversible error. Furthermore, the ALJ sufficiently

discussed her reasons for assigning little weight to Dr.

Ghanayem’s opinion at step-three of the sequential

evaluation process, and her failure to repeat those

reasons later in her decision was not erroneous.

With regard to Dr. Barnes, Plaintiff argues that

the ALJ erred by assigning his opinion great weight

while failing to account for all of the functional

limitations he assessed in Plaintiff’s RFC. (Docket no.

22 at 14-15.) There is only one limitation specifically

59a

assessed by Dr. Barnes that the ALJ did not incorporate

fully into the RFC – that Plaintiff would not be able to

bend over at the waist to pick up ten pounds. (TR 906.)

But an ALJ is not required to adopt all of a nonexamining source’s findings, even if the ALJ gives the

opinion great weight. See Smith v. Comm’r of Soc. Sec.,

Case No. 5:11 CV 2104, 2013 WL 1150133, at *11 (N.D.

Ohio Mar. 19, 2013) (“Simply put, there is no legal

requirement for an ALJ to explain each limitation or

restriction he adopts or, conversely, does not adopt from

a non-examining physician’s opinion, even when it is

given significant weight.”). For the reasons stated

above, Plaintiff’s Motion regarding the ALJ’s

assessment of the medical opinion evidence should be

denied.

The ALJ’s Assessment of

Plaintiff’s Limitations in

Concentration, Persistence, or

Pace

Plaintiff argues that the ALJ failed to adequately

account for Plaintiff’s moderate limitations in

concentration, persistence, or pace in Plaintiff’s RFC

and in her hypothetical question to the VE. (Docket no.

22 at 15-17.) Specifically, Plaintiff argues that the ALJ’s

RFC and hypothetical question limiting Plaintiff to

“simple, routine tasks” at the SVP 1 or 2 level essentially

limited Plaintiff to unskilled work, and the skill level of a

job does not necessarily relate to the difficulty an

individual would have in meeting the demands of the job,

including how quickly the individual could meet those

demands. (Docket no. 22 at 15-16.) As Defendant points

out, however, “[c]ase law in this Circuit does not support

60a

a rule that a hypothetical providing for simple, unskilled

work is per se insufficient to convey moderate

limitations in concentration, persistence and pace.”

(Docket no. 23 at 22 (quoting Kepke v. Comm’r of Soc.

Sec., 636 F. App’x 625, 635 (6th Cir. 2016).) See also

Lewicki v. Comm’r of Soc. Sec., No. 09- 11844-BC, 2010

WL 3905375, at *2 (E.D. Mich. Sept. 30, 2010) (citations

omitted) (Findings of moderate limitations in

concentration, persistence, or pace do not necessarily

preclude “simple, routine, unskilled work.”).

Courts in this district draw a distinction between

cases in which a medical expert finds a moderate

deficiency in concentration, persistence, or pace from

those in which the ALJ independently finds such a

limitation. “When the ALJ has found such a limitation,

the ALJ must incorporate these limitations into the

hypothetical questions.” McPhee v. Comm’r of Soc. Sec.,

No. 11-13399, 2013 WL 1277889, at *2 (E.D. Mich. Mar.

27, 2013) (citations omitted). Courts are more likely to

order a sentence-four remand in cases where the ALJ

made the finding of moderate deficiencies in

concentration, persistence, or pace in the absence of a

medical opinion that found similar moderate deficiencies

and indicated that the plaintiff was still capable of

sustained work. Cwik v. Comm’r of Soc. Sec., No. 1015121, 2012 WL 1033578, at *10 (E.D. Mich. Feb. 23,

2012) (citing Hicks v. Comm’r of Soc. Sec., No. 10-13643,

2011 WL 6000701, at *4 (E.D. Mich. Nov. 28, 2011)).

Here, the ALJ did not make an independent

decision regarding Plaintiff’s ability to maintain

concentration, persistence, or pace. In fact, the ALJ

relied upon the opinion of Dr. Hugh Bray, Ph.D., LP in

61a

making such a determination. (TR 727 (citing TR 162426).) Dr. Bray conducted a consultative evaluation of

Plaintiff’s mental status on July 11, 2013, after which he

found that Plaintiff’s mental abilities to relate to others,

to understand, remember, and carry out tasks, to

maintain concentration, persistence, pace, and effort,

and to withstand stress and pressure associated with

day to day work activities were moderately impaired.

(TR 1623-27.) Despite these findings, Dr. Bray opined

that Plaintiff was able to perform simple, repetitive

tasks and that he could likely handle more complex

tasks, although he may have moderate difficulty in

performing multiple-step tasks. (TR 1626.) Notably, Dr.

Bray did not assess any additional functional limitations

related to his findings, including the finding that Plaintiff

had moderate limitations in maintaining concentration,

persistence, or pace. The ALJ then discussed and

assigned great weight to Dr. Bray’s opinion, and

incorporated the limitations assessed by Dr. Bray into

Plaintiff’s RFC by limiting him to work involving:

simple, routine tasks such as those jobs at

the SVP 1 or 2 level due to pain, fatigue,

and

depression

causing

occasional

limitations in ability to maintain

concentration for extended periods, but

not off task for more than 10% of the

workday, as well as occasional limitations

in ability to carry out detailed instructions;

. . . and [he] is limited to brief and

superficial interaction (i.e. infrequent and

not very involved) with the public,

coworkers, and supervisors.

62a

(TR 728, 733.)

The ALJ also relied upon and assigned great

weight to the opinion of Dr. Edward Czarnecki, Ph.D.,

the non-examining state-agency consultant who made an

unfavorable disability determination in this matter on

July 23, 2013. (TR 735, 953-68.) In making that

determination, Dr. Czarnecki assessed moderate

difficulties in Plaintiff’s ability to maintain

concentration, persistence, or pace, yet he found that

Plaintiff continued to retain the mental capacity for

simple, rote, repetitive, unskilled work-related activity.

(TR 961, 966.)

The discussion above demonstrates that the ALJ

relied upon and adopted the opinions of two medical

sources that assessed Plaintiff’s moderate difficulties in

maintaining concentration, persistence, and pace, and

found that Plaintiff was still able to engage in substantial

gainful activity, albeit with limitations. The ALJ then

incorporated those limitations into Plaintiff’s RFC and

the hypothetical questions that she posed to the VE, to

which the VE responded that there were jobs existing

in significant numbers in the national economy that

Plaintiff could perform. (TR 855-62.) There is no error

here on the part of the ALJ, as the ALJ appropriately

accommodated

for

Plaintiff’s

limitations

concentration, persistence, or pace in the RFC and the

hypothetical questions. It is therefore recommended

that Plaintiff’s Motion for Summary Judgment on this

issue be denied.

63a

The ALJ’s Credibility Assessment

Plaintiff asserts that the ALJ erred in assessing

Plaintiff’s credibility and in rejecting the statements of

Plaintiff’s mother, Rita Biestek. (Docket no. 22 at 17-22.)

“[A]n ALJ’s findings based on the credibility of the

applicant are to be accorded great weight and deference,

particularly since an ALJ is charged with the duty of

observing a witness’s demeanor and credibility.”

Walters v. Comm’r, 127 F.3d 525, 531 (6th Cir. 1997).

But credibility assessments are not insulated from

judicial review. Despite the deference that is due, such

a determination must nevertheless be supported by

substantial evidence.

Id.

An ALJ’s credibility

determination must contain “specific reasons . . .

supported by the evidence in the case record, and must

be sufficiently specific to make clear to the individual

and to any subsequent reviewers the weight the

adjudicator gave to the individual’s statements and the

reasons for that weight.” SSR 96–7p. “It is not

sufficient to make a conclusory statement that ‘the

individual’s allegations have been considered’ or that

‘the allegations are (or are not) credible.’” Id. “[T]he

adjudicator may find all, only some, or none of an

individual’s allegations to be credible” and may also find

the statements credible to a certain degree. Id.

Further, to the extent that the ALJ found that

Plaintiff’s statements are not substantiated by the

SSR 96-7p has been superseded by SSR 16-3p, effective March 28,

2016. See SSR 16-3p, 2016 WL 1119029, at *1; 2016 WL 1237954.

Nevertheless, because the ALJ’s decision in this matter was

rendered prior to the effective date of SSR 16-3p, the ALJ was

obligated to comply with SSR 96-7p. See Combs v. Comm’r of Soc.

64a

objective medical evidence in the record, the

Regulations explicitly provide that “we will not reject

your statements about the intensity and persistence of

your pain or other symptoms or about the effect your

symptoms have on your ability to work solely because

the available objective medical evidence does not

substantiate

your

statements.”

C.F.R.

§§ 404.1529(c)(2), 416.929(c)(2). The ALJ will consider:

(1) the claimant’s daily activities, (2) the location,

duration, frequency, and intensity of the claimant’s pain

or other symptoms, (3) precipitating and aggravating

factors; (4) the type, dosage, effectiveness, and side

effects of any medication taken to alleviate pain or other

symptoms, (5) treatment, other than medication, for

symptom relief, (6) any measures used to relieve the

symptoms, and (7) functional limitations and restrictions

due to the pain or other symptoms. 20 C.F.R.

§§ 404.1529(c)(3), 416.929(c)(3); SSR 96-7p; see also

Felisky v. Bowen, 35 F.3d 1027, 1039-40 (6th Cir. 1994)

(applying these factors).

Here, the ALJ considered and discussed

Plaintiff’s hearing testimony and other subjective

complaints in conjunction with the record evidence, and

she found that Plaintiff’s allegations were not entirely

credible. (TR 729.) The ALJ explained this assessment

as follows:

In assessing the credibility of the

claimant, the undersigned notes that the

treatment for his various impairments

Sec., 459 F.3d 640, 642 (6th Cir. 2006) (“The Act does not generally

give the SSA the power to promulgate retroactive regulations.”)

65a

were [sic] described as being relatively

effective in controlling his symptoms. For

instance, in January 2011, he reported

that “Demerol help[ed] his pain” (Exhibit

B13F/6). The claimant received bilateral

medial branch blocks on April 6, 2011, and

indicated that his pain level was 1/10 in

severity (Exhibits B11F/27 and B20F/16).

On January 20, 2012, he reported that

physical therapy was helpful and that the

injections provided at the prior office visit

were “extremely beneficial” (Exhibit

B17F/2). On May 22, 2014, the claimant

reported that the back injections helped

“some” (Exhibit B29F/6). The relative

effectiveness of the treatment diminishes

the credibility of the completely disabling

allegations and supports a finding that he

has been capable of performing work

within the restricted range of sedentary

work identified.

At one point or another in the record

(either in forms completed in connection

with the application and appeal, in

medical reports or records, or in the

claimant’s testimony), the claimant

reported the following daily activities:

reading the newspaper, preparing simple

meals, visiting his son at least twice a

week, driving, taking care of his basic

needs on a consistent basis, doing some

laundry, shopping, cashing checks,

66a

providing childcare, watching television,

running errands, playing video games,

and making appointments (Exhibits

B14E, B5F, and B24F/2; testimony).

These activities require functioning

within the limited range of sedentary

work identified.

The undersigned also notes that the

claimant has been noncompliant with

prescribed treatment.

Most notably,

records from Hegira reflect numerous no

shows and cancelations by the claimant

(Exhibits B18F, B21F, B27F, and B28F).

Moreover, as of June 18, 2014, he reported

only using pain medications “once in a

while as needed” (Exhibit B29F/4). The

claimant’s noncompliance with his

treatment suggests that the symptoms

may not be as limiting as the claimant has

alleged in connection with this application

and reflects poorly on the credibility of his

allegations.

(TR 735-36.)

Plaintiff raises a few specific issues with regard

to the ALJ’s credibility analysis. First, Plaintiff claims

that the ALJ’s characterization of his treatment as

“relatively effective” is flawed and that the ALJ played

doctor in making such a characterization. (Docket no. 22

at 18-19; docket no. 25 at 7.) Plaintiff’s argument lacks

merit, as the regulations specifically provide that the

ALJ may consider the effectiveness of Plaintiff’s

treatment, as well as the intensity of his pain in

67a

determining the credibility of Plaintiff’s disabling

allegations. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3);

SSR 96-7p. Plaintiff argues that the ALJ “cherrypicked” the evidence in this regard and points to

instances in the record in which his treatment was not

effective in controlling his symptoms. (Docket no. 22 at

18-19.) However, as Defendant points out, where there

is evidence in the record that tends to support the

positions of both parties, “the same process can be

described more neutrally as weighing the evidence.”

(See docket no. 23 at 24 (quoting White v. Comm’r of Soc.

Sec., 572 F.3d 272, 284 (6th Cir. 2009)).) Here, the ALJ

properly cited to the evidence in the record that explains

her reasons for finding Plaintiff’s disabling statements

to be not entirely credible in accordance with her duty to

do so under SSR 96-7p.

Next, Plaintiff argues that the ALJ

inappropriately characterized his daily activities,

relying on the Sixth Circuit’s decision in Rogers v.

Comm’r of Soc. Sec., 486 F.3d 234, 248-49 (6th Cir. 2007)

for the principle that minimal daily activities are not

comparable to typical work activities. (Docket no. 22 at

19-20.) The ALJ, however, did not equate Plaintiff’s

daily activities to work activities; she discounted

Plaintiff’s disabling statements on the basis that

Plaintiff’s daily activities “require functioning within the

limited range of sedentary work identified.” (TR 736.)

Moreover, the ALJ did not rely solely on Plaintiff’s

ability to perform daily activities in determining that

Plaintiff is not disabled or in finding that Plaintiff’s

allegations were not entirely credible. The ALJ relied

on several items, such as the objective medical evidence,

68a

the medical opinion evidence, Plaintiff’s daily activities,

and Plaintiff’s treatment, among other things. The

ALJ’s consideration of Plaintiff’s daily activities is not

error. To the contrary, the ALJ is required to consider

Plaintiff’s daily activities as part of her analysis.

Plaintiff also argues that the ALJ erred in

discounting his credibility based on his non- compliance

with treatment. (Docket no. 22 at 20-21.) To support his

argument, Plaintiff cites Dr. Barnes’s testimony that he

did not find evidence of non-compliance in Plaintiff’s file.

(Id. at 21 (citing TR 904).) But the fact that Dr. Barnes

did not find such evidence does not mean that it does not

exist. The ALJ specifically identified the records of

Plaintiff’s numerous no shows and cancellations of his

appointments at Hegira as evidence of this noncompliance. (TR 736.) In his brief, Plaintiff cites a lack

of medical insurance for his failure to attend these

appointments, but the record evidence does not

necessarily support Plaintiff’s allegation in this regard.

(See, e.g., TR 683, 699-700, 709-10, 1725, 1741, 1763, 1779.)

The ALJ also cites to Plaintiff’s June 18, 2014 report that

he was only taking his pain medication as needed as

evidence of Plaintiff’s non-compliance with treatment.

While this report does not necessarily reflect Plaintiff’s

credibility during the period at issue in this matter, the

ALJ did cite to other evidence of Plaintiff’s noncompliance with his medication during the relevant

period. Specifically, the ALJ pointed out that on

September 28, 2012, Plaintiff indicated that he was not

telling the nurse practitioner about not taking his

medication because he did not want to hurt his chances

of getting SSI. (TR 732 (citing 1522).)

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The immediate discussion demonstrates that the

ALJ set forth numerous legitimate reasons for

discrediting Plaintiff’s hearing testimony and written

statements in her decision, many of which apply the

factors set forth in 20 C.F.R. §§ 404.1529(c)(3) and

416.929(c)(3), and SSR 96-7p. Moreover, the ALJ

supported her finding that the severity of Plaintiff’s

subjective complaints was not supported by the

objective medical evidence by explicitly discussing and

citing to several examples of inconsistency between

Plaintiff’s complaints and the medical record. Thus, the

ALJ’s decision is sufficiently specific to make clear to

Plaintiff and to the court the weight that she gave to

Plaintiff’s statements and the reasons for that weight.

The ALJ’s assessment of Plaintiff’s credibility is

supported by substantial evidence and should not be

disturbed. Because the ALJ’s determination that

Plaintiff’s statements were not entirely credible is

supported by substantial evidence, her decision to assign

little weight the statements made by Plaintiff’s mother,

Rita Biestek, on the basis that her statements were

consistent with Plaintiff’s statements is not erroneous.

Plaintiff’s Motion should be denied in this regard.

The ALJ’s Step-Five

Determination

Plaintiff argues that the ALJ’s step-five

determination is not supported by substantial evidence

because the VE’s testimony upon which she relies

appears to be “conjured out of whole cloth.” (Docket no.

22 at 22 (quoting Donahue v. Barnhart, 279 F.3d 441, 446

(7th Cir. 2002)).) As Plaintiff points out, the VE based

her testimony regarding off-task tolerance, the sit-stand

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option, the use of a cane, and the number of jobs

available (issues not addressed by the Dictionary of

Occupational Titles (DOT)), on her eleven-year

experience as a vocational rehabilitation consultant,

which included talking with employers, performing onthe-job analysis, and conducting her own individual

labor market surveys. (Docket no. 22 at 23; TR 859, 86566, 869-71.) After Plaintiff’s attorney requested this

evidence of the VE’s experience, the VE explained that

the job analyses were part of “people’s private

confidential files;” the ALJ then informed Plaintiff’s

counsel that she would not require the VE to produce

the job analyses or the surveys and told counsel that he

could appeal the issue if he so desired. (TR 865, 870.)

Plaintiff argues that the ALJ’s acceptance and

reliance upon the VE’s testimony without any

supporting evidence or verification of the VE’s

qualifications constitutes reversible error. (Docket no

22 at 22-24.)

Plaintiff relies on Seventh Circuit

precedent to support his argument in this regard,

including McKinnie v. Barnhart, 368 F.3d 907, 911 (7th

Cir. 2004) (quoting Donahue, 279 F.3d at 446) (“A

vocational expert is ‘free to give a bottom line,’ but the

data and reasoning underlying that bottom line must be

‘available on demand’ if the claimant challenges the

foundation of the vocational expert’s opinions. ‘If the

basis of the vocational expert’s conclusions is questioned

at the hearing . . . then the ALJ should make an inquiry

. . . to find out whether the purported expert’s

conclusions are reliable.’”). As Defendant points out,

however, the Sixth Circuit has not adopted the Seventh

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Circuit precedent on which Plaintiff relies, and the Court

will not do so here.

According to the law of this Circuit, an ALJ is

entitled to “rely solely on the vocational expert’s

testimony,” even where that testimony is not based on

the DOT, but on the VE’s professional experience. Conn

v. Sec’y of Health & Human Servs., 51 F.3d 607, 610 (6th

Cir. 1995); Lee v. Comm’r of Soc. Sec., 529 F. App’x 706,

715 (6th Cir. 2013). See also SSR 00-4P, 2000 WL

1898704, at *2 (S.S.A. Dec. 4, 2000) (Evidence from VEs

can include information obtained directly from

employers or from a VE’s own professional experience.).

“Moreover, ‘[n]othing in SSR 00–4p places an

affirmative duty on the ALJ to conduct an independent

investigation into the testimony of witnesses to

determine if they are correct.’” Wilson v. Comm’r of

Soc. Sec., No. 10-13828, 2011 WL 2607098, at *6 (E.D.

Mich. July 1, 2011) (quoting Martin v. Comm’r of Soc.

Sec., 170 F. App’x 369, 374 (6th Cir. 2006)). Indeed, the

ALJ is responsible for determining the credibility of the

VE’s testimony, and the ALJ’s credibility findings are

subject to substantial deference on review. Sias v. Sec’y

of Health & Human Servs., 861 F.2d 475, 480 (6th Cir.

1988); King v. Heckler, 742 F.2d 968, 974 (6th Cir. 1984).

Here, the credibility of the VE’s testimony was fully

probed at the hearing in accordance with the law of this

Circuit, the VE testified that her testimony was based

upon the DOT and her extensive experience as a

vocational rehabilitation consultant, and the ALJ

appropriately accepted and relied upon the VE’s

testimony on this basis. Accordingly, the ALJ did not

commit legal error here.

72a

Plaintiff also argues that the VE’s descriptions of

the jobs available to Plaintiff do not exactly match the

job descriptions of the DOT codes provided by the VE.

(Docket no. 22 at 25.) Specifically, Plaintiff argues that

the VE named the job associated with DOT code

713.687-018 as “bench assembler,” but the actual title of

this occupation as provided by the DOT is “final

assembler,” and while the VE named the job associated

with DOT code 521.687-086 as “sorter,” the actual job

title under the DOT is “nut sorter.” (Id.) Plaintiff’s

argument in this regard is undeveloped, as it fails to

demonstrate that the VE’s alleged misstatements

amount to any cognizable error. Furthermore, an ALJ

“may rely on the testimony of the vocational expert even

if it is inconsistent with the job descriptions set forth in

the [DOT].” Conn, 51 F.3d at 610 (citing Basinger v.

Sec’y of Health and Human Servs., 33 F.3d 54 (6th Cir.

1994)).

Plaintiff then questions whether the jobs cited by

the VE even exist because the DOT descriptions for

these occupations have not been updated since 1977.

(Docket no. 22 at 25.) But while the DOT descriptions

are not necessarily current, the Social Security

Administration continues to rely primarily on the DOT

for information about the requirements of work in the

national economy in making disability determinations.

SSR 00-4P, 2000 WL 1898704, at *2. Therefore, the ALJ

and the VE’s reliance on the DOT in this regard was not

erroneous.

Finally, Plaintiff argues that the ALJ erred by

assigning little weight to the vocational opinion of Lee

Knutson, which was purportedly obtained by Plaintiff’s

73a

counsel in this matter. (Docket no. 22 at 24-25; TR 129698.) Plaintiff’s argument lacks merit. Mr. Knutson

opined regarding occupations that are completely

different from those which the ALJ found that Plaintiff

can perform. (TR 1297.) The ALJ appropriately found

that Mr. Knutson’s opinion was irrelevant and assigned

it little weight. Plaintiff’s Motion regarding the

propriety of the ALJ’s step-five determination should be

denied.

VI.

CONCLUSION

For the reasons stated herein, the court should

DENY Plaintiff’s Motion for Summary Judgment

(docket no. 22) and GRANT Defendant’s Motion for

Summary Judgment (docket no. 23).

REVIEW OF REPORT AND

RECOMMENDATION

Either party to this action may object to and seek

review of this Report and Recommendation, but must

act within fourteen (14) days of service of a copy hereof

as provided for in 28 U.S.C. § 636(b)(1) and E.D. Mich.

LR 72.1(d)(2). Failure to file specific objections

constitutes a waiver of any further right of appeal.

Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of

Health and Human Servs., 932 F.2d 505 (6th Cir. 1991);

United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

Filing objections which raise some issues but fail to raise

others with specificity will not preserve all objections

that a party might have to this Report and

Recommendation. Willis v. Sec’y of Health and Human

Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit

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

74a

Cir. 1987). Pursuant to Rule 72.1(d)(2) of the Local Rules

of the United States District Court for the Eastern

District of Michigan, a copy of any objection must be

served upon this Magistrate Judge.

Within fourteen (14) days of service of any

objecting party’s timely filed objections, the opposing

party may file a response. The response shall be not

more than five (5) pages in length unless by motion and

order such page limit is extended by the Court. The

response shall address specifically, and in the same order

raised, each issue contained within the objections.

Dated: February 24, 2017 s/ Mona K. Majzoub

MONA K. MAJZOUB

UNITED STATES

MAGISTRATE JUDGE

PROOF OF SERVICE

I hereby certify that a copy of this Report and

Recommendation was served upon counsel of record on

this date.

Dated: February 24, 2017

/ Lisa C. Bartlett

Case Manager

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Appendix D

SOCIAL SECURITY ADMINISTRATION

Office of Disability Adjudication and Review

DECISION

IN THE CASE OF

Michael John Biestek

(Claimant)

____________________

(Wage Earner)

CLAIM FOR

Period of Disability,

Disability Insurance

Benefits, and

Supplemental Security

Income

[REDACTED]

(Social Security Number)

JURISDICTION AND PROCEDURAL HISTORY

This case is before the undersigned Administrative Law

Judge on remand from the Appeals Council pursuant to

a remand from the United States District Court for the

Eastern District of Michigan (Exhibit B12A). On

March 25, 2010, the claimant filed a Title II application

for a period of disability and disability insurance

benefits. The claimant also filed a Title XVI application

for supplemental security income on March 25, 2010. In

both applications, the claimant alleged disability

beginning October 28, 2009. These claims were denied

initially on August 17, 2010. Thereafter, the claimant

filed a written request for hearing on October 8, 2010 (20

76a

CFR 404.929 et seq. and 416.1429 et seq.). The claimant

appeared and testified at a hearing before an

Administrative Law Judge (ALJ) on June 24, 2011, in

Detroit, Michigan, after which, an unfavorable decision

was issued (Exhibit B7A).

The claimant then appealed the unfavorable decision;

however, the Appeals Council denied the claimant’s

request for review on February 21, 2013, thus, making

that decision the final decision of the Commissioner

(Exhibit B8A). The claimant subsequently filed an

action for judicial review in the United States District

Court for the Eastern District of Michigan (Exhibit

B11A). On May 30, 2014, Magistrate Judge, Mona

Majzoub, issued a Report and Recommendation

granting the claimant’s Motion for Summary Judgment

in part and denying it in part (Exhibit B11A). The

magistrate’s Report and Recommendation indicated

that the hearing decision did not include the opinion of a

medical expert to confirm that the claimant did not

medically equal Listing 1.04 (Exhibit B11A/15). The

Report and Recommendation further found that the

hearing decision failed to define the duration of the

sit/stand option in the residual functional capacity

(Exhibit B11A/18).

Magistrate Judge Majzoub denied the claimant’s motion

regarding issues related to consideration of his hepatitis

C, mental restrictions, credibility, and the claimant’s

mother’s opinions (Exhibit B11A). On July 31 2014,

Chief Judge Gerald Rosen adopted Magistrate Judge

Majzoub’s Report and Recommendation and remanded

the case to the Commissioner (Exhibit B11A/3-4). The

Appeals Council subsequently issued an Order vacating

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the decision and remanding the case for further

proceedings, consistent with the District Court’s Order

(Exhibit B12A). The Appeals Council further noted that

the claimant filed a subsequent SSI claim on April 2,

2013, which should be consolidated into a single

electronic record, with a new decision issued on the

consolidated claims (Exhibit B12A).

Upon remand, the claimant appeared and testified at a

hearing held on July 21, 2015, in Detroit, Michigan. Also

appearing and testifying was Erin O’Callaghan, an

impartial vocational expert. A supplemental hearing

took place on November 6, 2015, where Frank L. Barnes,

an impartial medical expert, appeared and testified by

telephone.

At the request of the claimant’s

representative, Alexander J. Ghanayem, M.D., also

appeared and testified via telephone at that hearing.

The claimant is represented by Frederick J. Daley, Jr,

an attorney.

The claimant previously filed Title II and Title XVI

applications on February 7, 2007, with an alleged onset

date of June 3, 2005. The claim was denied initially, and

the claimant filed a request for hearing. After a hearing

was held, an unfavorable decision was issued on October

29, 2009, finding the claimant not disabled from June 3,

2005, through the date of the decision (Exhibit B1A).

The claimant did not appeal the unfavorable decision,

and that unfavorable decision, dated October 29, 2009,

became the final decision of the Commissioner, binding

on all parties. Accordingly, the issue of disability is res

judicata through the date of that decision. While the

undersigned has considered all of the medical records,

the undersigned attributes less weight to the evidence

78a

of disability prior to October 30, 2009, since the issue of

disability is res judicata up to that date.

As further discussed below, the undersigned finds there

has been a change in the claimant’s condition since the

October 2009 decision, and the substantial evidence of

record supports a change in the claimant’s residual

functional capacity.

ISSUES

The issue is whether the claimant is disabled under

sections 216(i), 223(d) and 1614(a)(3)(A) of the Social

Security Act. Disability is defined as the inability to

engage in any substantial gainful activity by reason of

any medically determinable physical or mental

impairment or combination of impairments that can be

expected to result in death or that has lasted or can be

expected to last for a continuous period of not less than

12 months.

With respect to the claim for a period of disability and

disability insurance benefits, there is an additional issue

whether the insured status requ

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