UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DINO A. SCHMIDT,

No. 14-13885

Plaintiff, District Judge Sean F. Cox

v. Magistrate Judge R. Steven Whalen

COMMISSIONER OF

SOCIAL SECURITY,

Defendant.

 /

REPORT AND RECOMMENDATION

Plaintiff Dino A. Schmidt (“Plaintiff”) brings this action under 42 U.S.C. §405(g),

challenging a final decision of Defendant Commissioner denying his application for

Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under the

Social Security Act. Parties have filed cross motions for summary judgment which have

been referred for a Report and Recommendation pursuant to 28 U.S.C. §636(b)(1)(B). For

the reasons set forth below, I recommend that Defendant’s Motion for Summary Judgment

be DENIED and that Plaintiff’s Motion for Summary Judgment be GRANTED to the

following extent: 

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(1) A remand for an award of benefits for, at a minimum, a closed period of

at least 12 months under Listing 3.03B;

(2) A remand for determination of whether Dr. Long’s treating opinion is

entitled controlling weight; and 

(3) A remand for determination of whether Plaintiff is entitled to ongoing

benefits. 

I. PROCEDURAL HISTORY

Plaintiff applied for DIB and SSI on January 12, 2012, alleging disability as of

August 28, 2008 (Tr. 169, 176). After the initial denial of the claim, Plaintiff requested an

administrative hearing, held on April 11, 2013 in Mount Pleasant, Michigan before

Administrative Law Judge (“ALJ”)Kathleen Eiler (Tr. 37). Plaintiff, represented byattorney

Matthew Taylor, testified, (Tr. 40-51), as did vocational expert (“VE”) Donald Heckler (Tr.

51-53). On July 3, 2013, ALJ Eiler found Plaintiff not disabled (Tr. 32). On September 5,

2014, the Appeals Council denied review (Tr. 1-3). Plaintiff filed suit in this Court on

October 7, 2014. 

II. BACKGROUND FACTS

Plaintiff, born October 9, 1968, was 44 at the time of the administrative decision (Tr.

32, 169). He left school after 10 grade and worked previously as a bartender/server (Tr. th

198). He alleges disability due to seizures, asthma, difficulty breathing, lumbar spine

radiculopathy, anxiety, and sleep apnea (Tr. 197).

A. Plaintiff’s Testimony

Plaintiff offered the following testimony:

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He did not hold a driver’s license and had not driven in over 10 years (Tr. 40). He

last worked on August 28, 2008 (Tr. 40). Severe back pain, the inability to lift more than 10

pounds, and anxiety prevented him from working (Tr. 41). He experienced daily back pain

shooting from his lower back to the back of his neck (Tr. 41). The back condition was

exacerbated by too much standing or walking (Tr. 41). He was unable to stand or walk for

more than 20 minutes before needing to sit (Tr. 41). He was unable to walk more than half

a block (Tr. 42). He coped with back pain with the use of pillows and by using a heating pad

three times each day (Tr. 42). Turning his neck quickly also caused discomfort (Tr. 47). 

Plaintiff experienced the medication side effects of memory problems (Tr. 48). 

Plaintiff also experienced breathing problems as a result of asthma, Chronic

Obstructive Pulmonary Disease (“COPD”), and emphysema (Tr. 43). Walking more than

half a block caused shortness of breath (Tr. 43). He used a nebulizer two times a day (Tr.

44). He was hospitalized in 2011 for breathing problems (Tr. 44). He also experienced

anxiety attacks twice a day at which time he needed to “sit down and calm [him]self” (Tr.

45). He coped with anxiety by shopping before the stores became crowded (Tr. 46). He also

experienced anxiety during doctors’ appointments (Tr. 46). 

In response to questioning by his attorney, Plaintiff denied cooking or grocery

shopping (Tr. 49). He relied on family and friends for rides (Tr. 50). He had been told that

he needed an oxygen tank but was unable to afford one (Tr. 50). He passed the time by doing

crossword puzzles and reading the newspaper (Tr. 50). He drank on an occasional basis (Tr.

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50). 

A. Medical Records

1. Treating Records

In February, 2011, Chythanya Arikati, M.D. observed that Plaintiff was fully oriented

with a normal mood and affect despite reports of memory loss (Tr. 446). Dr. Arikati noted

that recent seizure activity could be attributable to alcohol withdrawal (Tr. 440). 

In March, 2011 neurosurgeon Naman A. Salibi, M.D. noted a history of an August,

2008 “severe traumatic brain injury with a C07 spinal fracture and broken nose” (Tr. 302). 

Plaintiff reported forgetfulness as a result of the accident (Tr. 302). Dr. Schell noted that an

MRI of the brain from the same month showed “mild cortical atrophy” (Tr. 304, 482). Dr. 

Salibi noted a normal affect (Tr. 480). Treating notes state that Plaintiff exhibited shortness

of breath due to chronic asthma (Tr. 302-303). April, 2011 emergency room records state

that Plaintiff experienced a grand mal seizure while at home watching television (Tr. 278). 

An EEG, EMG of the lower extremities, and CT scan of the brain were all normal (Tr. 281-

282, 473, 477). He was discharged in stable condition (Tr. 283). The same month, an EMG

study conducted in response to Plaintiff’s complaints of back pain was normal (Tr. 306). Dr.

Arikati’s May, 2011 records state that the seizure condition resolved with medication (Tr.

435). 

In June, July, and August, 2011 Plaintiff sought emergency treatment for asthma

attacks (Tr. 270, 317). A July, 2011 chest x-ray was unremarkable (Tr. 468). Later in

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August, 2011, Plaintiff underwent a bronchial stent placement after experiencing asthmatic

symptoms (Tr. 295, 349-350, 458-460). A spirometrytesting performed the following month

showed severe pulmonary obstructive lung disease (Tr. 511). 

October, 2011 imaging studies of the lumbar spine showed moderate stenosis at L4-

L5 but were otherwise unremarkable (Tr. 310-311, 455-456). The same month, Dr. Salibi

recommended continued conservative care for the back condition (Tr. 299). Plaintiff sought

emergency treatment for a respiratory infection (Tr. 357). He appeared fully oriented with

normal strength and cognitive abilities (Tr. 359). The following month, Plaintiff sought

emergency treatment for a cough and anxiety (Tr. 376, 378). Later the same month, Plaintiff

sought emergency treatment for anxiety (Tr. 384). He was diagnosed with pneumonia (Tr.

385). Toby Long, M.D.’s hospital followup notes from the same month state that Plaintiff

requested medication for anxiety (Tr. 415). In December, 2011, Plaintiff reported that his

anxiety was “much improved” and reported only occasional wheezing (Tr. 410). Dr. Long’s

January, 2012 treating notes state that Plaintiff denied shortness of breath (Tr. 405). The

following month, Plaintiff was transported to the hospital by ambulance after experiencing

breathing difficulties (Tr. 513). He was diagnosed with “acute asthma exacerbation” and

treated with steroids (Tr. 515-516). Dr. Long noted that Plaintiff experienced relief from

anxiety with the use of Sertraline (Tr. 518). March, 2012 emergency records show that

Plaintiff sought emergency treatment for rib pain caused by a “coughing fit” (Tr. 522-523). 

 May and June, 2012 records state “no changes” in the asthma condition (Tr. 527). 

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July, 2012 emergency room notes state that Plaintiff reported blacking out after

missing a dose of anti-seizure medication (Tr. 533). Treating records state that Plaintiff was

fully oriented (Tr. 535). A CT of the brain was unremarkable (Tr. 558). Other treating

records from the same month state that he experienced shortness of breath on exertion but

exhibited a normal mood and affect (Tr. 564). Dr. Long’s July 30, 2012 records state that

Plaintiff was “doing well” but needed to obtain a CPAP machine for sleep apnea (Tr. 566). 

The same month, a chest x-ray showed possible scar tissue and left rib fractures (Tr. 557). 

August, 2012 records show that Plaintiff experienced “severe” restrictive lung disease (Tr.

562, 564). September, 2012 treating notes state that Plaintiff was “feeling well” but appeared

to have broken ribs due to severe coughing (Tr. 572). In November, 2012, Dr. Long noted

current diagnoses of sleep apnea (severe) and emphysema (Tr. 577). 

In March, 2013, Dr. Long completed a medical assessment of Plaintiff’s work-related

activities, finding that Plaintiff was unable to lift more than five pounds, stand or walk for

more than 14 minutes at a time, or sit for more than one hour (Tr. 578). Dr. Long precluded

Plaintiff from all climbing, stooping, crouching, kneeling, crawling, pushing/pulling, and

bending with a restriction of occasional balancing and reaching (Tr. 579). He found that

Plaintiff would be restricted from work involving heights, moving machinery, temperature

extremes, chemicals, fumes, and humidity (Tr. 579). He found that Plaintiff’s discomfort

would affect his ability to concentrate and that his conditions would cause him to miss work

80 percent of the time (Tr. 580). He found that the “most severe” condition of emphysema,

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along with chronic pain, and anxiety, precluded all work (Tr. 580). 

2. Non-Treating Records

In May, 2012, Siva Sankaran, M.D. performed a consultative physical exam, noted

Plaintiff’s report of anxiety, a neck injury, and the inability to walk more than half of a block

(Tr. 485). Plaintiff denied current breathing problems but noted that the condition worsened

in “hot and humid or cold and rainy” weather (Tr. 486). He reported drinking two beers each

week (Tr. 486). 

Dr. Sankaran noted lumbar spine tenderness with muscle spasms, postural limitations,

and a slow, but steady gait (Tr. 488-490). A pulmonary function report showed mild airway

obstruction and “abnormallylow” forced vital capacityconsistent with asthma (Tr. 495). The

following month, Bruce Fowler, Psy. D. L.P. performed a consultative psychological

evaluation, observing that Plaintiff was fully oriented but experienced anxiety (Tr. 500-501). 

He assigned Plaintiff a GAF of 51, concluding that Plaintiff’s psychological symptoms

“should not be as prohibitive about working as are [the] medical complaints” (Tr. 501). 1

The following month, Mark Garner, Ph.D. performed a non-examining review of the

treating records, finding that Plaintiff experiencedmild restriction in activities of dailyliving,

and moderate limitation in social functioning and concentration, persistence, or pace (Tr. 82). 

The same month, Sarah Bancroft-Treadway, M.D. performed a non-examining review of the

1

A GAF score of 51-60 indicates moderate symptoms (occasional panic attacks) or

moderate difficulty in social, occupational, or school functioning. Diagnostic and Statistical

Manual of Mental Disorders--Text Revision, 32 (“DSM-IV-TR” )(4th ed.2000). 

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treating records as to the physical problems, finding that Plaintiff could lift 10 pounds

frequently and 20 occasionally; sit for six hours in an eight-hour workday and stand/walk for

four; and push or pull without limitation (Tr. 84). Dr. Bancroft-Treadway precluded all

climbing of ladders, ropes, and scaffolds and crawling (Tr. 85). She found that Plaintiff

would be precluded from work involving machinery and heights (Tr. 85). 

 C. Vocational Testimony

VE Hecker classified Plaintiff’s former work as a bartender as exertionally light and

semiskilled; fast food worker, light/unskilled; and stocker, unskilled/medium (Tr. 51-52). 2

The ALJ then posed the following question to the VE, taking into account Plaintiff’s age,

education, and work experience: 

[Assume this person can perform work at the sedentary exertional level. He

can occasionally reach overhead with his bilateral upper extremities. He can

never climb ladders, ropes, or scaffolds and can never crawl. He can

occasionally climb ramps or stairs. Occasionally balance, stoop, crouch, or

kneel. He must avoid concentrated exposure to temperature extremes and

pulmonary irritants. And avoid all exposure to workplace hazards and

vibration. He can perform simple, routine, repetitive tasks with occasional

changes in a routine work setting and no production rate pace work. He can

occasionally interact with supervisors, co-workers, and the general public. 

2

20 C.F.R. § 404.1567(a-d) defines sedentary work as “lifting no more than 10 pounds

at a time and occasionally lifting or carrying articles like docket files, ledgers, and small

tools; light work as “lifting no more than 20 pounds at a time with frequent lifting or

carrying of objects weighing up to 10 pounds;” medium work as “lifting no more than 50

pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds;” and

that exertionally heavy work “involves lifting no more than 100 pounds at a time with

frequent lifting or carrying of objects weighing up to 50 pounds. Very Heavy work requires

“lifting objects weighing more than 100 pounds at a time with frequent lifting or carrying of

objects weighing 50 pounds or more. § 404.1567(e). 

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Could this person perform any of the claimant’s past work? (Tr. 52). 

The VE responded that given the hypotheticallimitations, the above-limited individual

would be unable to perform any of Plaintiff’s past relevant work but could work as a

surveillance systems monitor (750 jobs in the state economy); inspector/checker (4,500); and

packager (4,500) (Tr. 53). The VE testified that if the individual were required to miss two

or more days of work each month, all work would be precluded (Tr. 53). In response to

questioning by Plaintiff’s attorney, the VE stated that the need to be “off task” two to four

times a day for 30 minutes due to breathing problems would preclude all work (Tr. 53). He

stated further that if the individual was prone to “drifting off for at least 15 minutes” every

hour, all work would be precluded (Tr. 53). 

 D. The ALJ’s Decision

Citing the medical records, ALJ Eiler found that Plaintiff experienced the severe

impairments of degenerative disc disease, seizure disorder, asthma, COPD, and anxiety but

that none of the conditions met or equaled a listed impairment found in 20 C.F.R. Part 404,

Subpart P, Appendix 1 (Tr. 23-24). As to the mental impairments, the ALJ found that

Plaintiff experienced mild limitation in activities of daily living and moderate limitation in 

social functioning and concentration, persistence, and pace (Tr. 25). 

The ALJ determined that Plaintiff had the Residual Functional Capacity (“RFC”) for

sedentary work with the following additional restrictions:

[H]e can occasionallyreach overhead, balance, kneel, stoop, crouch, and climb

ramps or stairs but never climb ladders, ropes, or scaffolds and crawl. He must

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avoid concentrated exposure to temperature extremes and pulmonary irritants. 

The claimant must avoid all exposure to workplace hazards and vibration. He

is limited to simple routine repetitive task with occasional changes in a routine

work setting and no production pace work. The claimant can occasionally

interact with supervisors, coworkers, and the general public (Tr. 26). 

Citing the VE’s testimony, the ALJ determined that while Plaintiff was unable to

perform his past relevant work, he could work as a surveillance system monitor, inspector,

and packager (Tr. 31). 

The ALJ discounted Plaintiff’s alleged degree of limitation, noting that he was able

to perform self-care tasks, watch television, and get along with authority figures (Tr. 28). 

She noted that Plaintiff’s treatment had been “routine and conservative” (Tr. 28). She cited

the consultative examiner’s finding that the psychological limitations were “not serious” (Tr.

28). 

III. STANDARD OF REVIEW

The district court reviews the final decision of the Commissioner to determine

whether it is supported by substantial evidence. 42 U.S.C. §405(g); Sherrill v. Secretary of

Health and Human Services, 757 F.2d 803, 804 (6 Cir. 1985). Substantial evidence is more th

than a scintilla but less that a preponderance. It is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.

389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB,

305 U.S. 197, 229, S. Ct. 206, 83 L.Ed.126 (1938)). The standard of review is deferential

and “presupposes that there is a ‘zone of choice’ within which decision makers can go either

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way, without interference from the courts.” Mullen v. Bowen, 800 F.2d 535, 545 (6 Cir. th

1986)(en banc). In determining whether the evidence is substantial, the court must “take into

account whatever in the record fairly detracts fromits weight.” Wages v. Secretary of Health

& Human Services, 755 F.2d 495, 497 (6 Cir. 1985). The court must examine the th

administrative record as a whole, and may look to any evidence in the record, regardless of

whether it has been cited by the ALJ. Walker v. Secretary of Health and Human Services,

884 F.2d 241, 245 (6 Cir. 1989). th

 IV. FRAMEWORK FOR DISABILITY DETERMINATIONS

 Disability is defined in the Social Security Act as the “inability to engage in any

substantial gainful activity by reason of any medically determinable physical or mental

impairment which can be expected to result in death or which has lasted or can be expected

to last for a continuous period of not less than 12 months.” 42 U.S.C. §423(d)(1)(A). In

evaluating whether a claimant is disabled, the Commissioner is to consider, in sequence,

whether the claimant: 1) worked during the alleged period of disability; 2) has a severe

impairment; 3) has an impairment that meets or equals the requirements of an impairment

listed in the regulations; 4) can return to past relevant work; and 5) if not, whether he or she

can perform other work in the national economy. 20 C.F.R. §416.920(a). The Plaintiff has

the burden of proof at steps one through four, but the burden shifts to the Commissioner at

step five to demonstrate that, “notwithstanding the claimant's impairment, he retains the

residual functional capacity to perform specific jobs existing in the national economy.” 

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Richardson v. Secretary of Health & Human Services, 735 F.2d 962, 964 (6th Cir.1984).

V. ANALYSIS

A. Listing 3.03

Plaintiff argues the ALJ’s Step Three finding that he did not meet Listing 3.03B

(asthma) was not well supported or explained (Tr. 24). Plaintiff contends that he meets the

Listing 3.03B because he was hospitalized for asthma at least six times in a 12-month period

as required to establish disability under the Listing. 20 C.F.R Part 404, Subpart P, Appendix

1 § 3.03B. In response, Defendant contends that the ALJ’s Step Three finding was supported

by Dr. Bancroft-Treadway’s non-examining finding that Plaintiff did not meet the Listing. 

Defendant notes further that Plaintiff’s hospitalizations for asthma occurred within an eightmonth period and thus, he cannot show that he experienced the condition for the 12-month

period required to establish disability. 42 U.S.C. §423(d)(1)(A); 20 C.F.R. § § 404.1505(a),

416.905(a). 

To meet Listing 3.03B (asthma), a claimant must demonstrate asthmatic bronchitis

characterized by the following 

“Attacks (as defined in 3.00C), in spite of prescribed treatment and requiring

physician intervention, occurring at least once every 2 months or at least six

times a year. Each in-patient hospitalization for longer than 24 hours for

control of asthma counts as two attacks, and an evaluation period of at least 12

consecutive months must be used to determine the frequency of attacks.” 

Under Listing 3.00C, “attacks” of asthma are defined as follows:

[P]rolonged symptomatic episodes lasting one or more days and requiring

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intensive treatment, such as intravenous bronchodilator or antibiotic

administration or prolonged inhalational bronchodilator therapy in a hospital,

emergency room or equivalent setting. Hospital admissions are defined as

inpatient hospitalizations for longer than 24 hours. The medical evidence must

also include information documenting adherence to a prescribed regimen of

treatment as well as a description of physical signs. For asthma, the medical

evidence should include spirometric results obtained between attacks that

document the presence of baseline airflow obstruction. 

The ALJ found that Plaintiff did not meet Listing 3.03B because “an evaluation

period of at least 12 consecutive months must be used to determine the frequency of the

attacks,” noting that the hospitalizations for asthma began in June, 2011 and ended in

February, 2012 (Tr. 24). The ALJ’s rationale for finding that Plaintiff did not meet Listing

3.03Bis not well taken. First, the ALJ’s conclusion that the asthma attacks needed to occur

at least every two months over a 12-month period to show disability amounts to an erroneous

interpretation of the Listing. Under Listing 3.03B a claimant can establish disability by

experiencing attacks by either (1) “at least once every 2 months” or (2)“at least six times a

year.” (Emphasis added). While the following sentence states that “an evaluation period of

at least 12 consecutive months must be used to determine the frequency of attacks, it cannot

be interpreted to state that an individual experiencing at least six attacks over the course of

eight to nine months, followed by a three to four month period without a hospitalization, does

not meet the Listing. The medical records and objective testing shows that Plaintiff

experienced significant and severe symptoms of asthma as early as March, 2011 to May,

2012 at which time a Sprirometry report (Tr. 495) showed that the asthma was “poorly

controlled” (Tr. 302-303, 495, 511, 522-523, 527, 564). Moreover, the ALJ acknowledged

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that Plaintiff experienced asthma for more than 12 months byincluding it among the “severe”

impairments at Step Two (Tr. 23-24). Thus, consistent with the Listing, the “evaluation 3

period” during which Plaintiff suffered from asthma exceeded 12 months, and the Plaintiff

had six hospitalizations within a 12-month period.

Moreover, Defendant’s argument that the ALJ permissibly relied on Dr. BancroftTreadway’s non-examining conclusions in making her Step Three findings is not well taken. 

The ALJ did not cite Dr. Bancroft-Treadway’s findings in support of the Step Three findings

and noted elsewhere in the opinion that the non-examining findings (including findings that

Plaintiff could perform light work and was not required to avoid respiratory irritants) were 

entitled to only “some” weight (Tr. 28, 102-103). 

Defendant points out that Dr. Bancroft-Treadway concluded that some of the

hospitalizations were “related to tranchael stenosis rather than true asthma exacerbations”

(Tr. 86). However, the ALJ’s Step Three analysis is problematic even assuming that she

adopted these conclusions. Contrary to Dr. Bancroft-Treadway’s summation, the June 5,

2011 (Tr. 276), June 23, 2011 (Tr. 317), July 11, 2011 (Tr. 273), August 2, 2011 (Tr. 273),

and August 17, 2011 (Tr. 337) emergency department records all indicate that Plaintiff was

treated for asthma attacks. The November 29, 2011 emergency treatment, while primarily

addressing a diagnosis of pneumonia, note that Plaintiff’s breathing problems were

Notably in contrast, the ALJ declined to include sleep apnea among the severe 3

impairments because the medical evidence did not support a finding that the condition

lasted for 12 months (Tr. 24). 

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exacerbated by chronic asthma (Tr. 385-386). And even assuming that the November, 2011

treatment was for a respiratory condition other than asthma, the February 2, 2012 emergency

department records mark the sixth time in one year that Plaintiff received emergency hospital

treatment for asthma “attacks” (Tr. 515). Defendant does not dispute that Plaintiff required

repeated emergency intervention even after adhering to the prescribed medical treatment. 

To the extent that the ALJ relied on Dr. Bancroft-Treadway’s findings in determining that

Plaintiff did not meet Listing 3.03B, Dr. Bancroft-Treadway’s findings were based on an

erroneous interpretation of the hospital records. For these reasons, the Step Three errors

warrant a remand. 

B. The Treating Physician Analysis

Plaintiff also argues that the ALJ erred by failing to adopt Dr. Long’s March, 2013

disability opinion. He contends that the ALJ’s reasons for rejecting Dr. Long’s opinion are

not supported by the record. 

If the opinion of the claimant's treating physician is well-supported by medically

acceptable clinical and laboratorydiagnostic techniques and is not inconsistent with the other

substantial evidence in [the] case record, it must be given controlling weight." Hensley v.

Astrue, 573 F.3d 263, 266 (6th Cir.2009) (internal quotation marks omitted) (citing Wilson

v. CSS, 378 F.3d 541, 544 (6th Cir.2004); 20 C.F.R. § 404.1527(c) (2)). However, in the

presence of contradicting substantial evidence, the ALJ may reject all or a portion of the

treating source's findings, see Warner v. Commissioner of Social Sec., 375 F.3d 387, 391-392

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(6th Cir.2004), provided that he supplies "good reasons" for doing so. Wilson, at 547; 20

C.F.R. § 404.1527(c)(2)). In explaining the reasons for giving less than controlling weight

to the treating physician opinion, the ALJ must consider (1) "the length of the ... relationship”

(2) “frequency of examination,” (3) “nature and extent of the treatment,” (4) the

“supportability of the opinion,” (5) “consistency ... with the record as a whole,” and, (6) “the

specialization of the treating source." Wilson, at 544.

The failure to articulate “good reasons” for rejecting a treating physician's opinion

constitutes reversible error. Gayheart v. CSS, 710 F.3d 365, 376 (6th Cir.2013); Wilson, 378

F.3d at 544–546 (6th Cir.2004)(citing § 404.1527(c)(2)). “[T]he Commissioner imposes on

its decision-makers a clear duty to ‘always give good reasons in our notice of determination

or decision for the weight we give [a] treating source's opinion.’” Cole v. Astrue, 661 F.3d

931, 937 (6th Cir.2011). “These 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.’” Gayheart, at 376 (citing SSR 96–2p, 1996 WL 374188, *5 (1996)).

The ALJ found that Dr. Long’s opinion was entitled to “some,” but not controlling

weight (Tr. 29). She reasoned that Dr. Long’s conclusion that Plaintiff would be unable to

work 80 percent of the time was based on Plaintiff self-reported psychological symptoms

which were “outside” Dr. Long’s “area of expertise” (Tr. 29). The ALJ concluded that Dr.

Long’s finding that “breathing problems” created disabling limitations was undermined by

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“mixed results in diagnostic findings” (Tr. 29). She noted that Dr. Long’s finding of

exertional limitations stood in contrast with “minimal findings regarding seizures and back

pain” (Tr. 29). 

The ALJ’s conclusion that Dr. Long based the bulk of his findings on subjective but

unsupported complaints is inaccurate. While the ALJ discounted Plaintiff’s claim of back

problems, the 2008 cervical spine fracture and ensuing back pain is well documented by the

treating sources (Tr. 570). Although the ALJ appeared to conclude that Dr. Long found that

the exertional limitations were attributable to back problems alone, his assessment notes that

Plaintiff’s exertional abilities were not just limited by back problems but primarily, the

“most severe” diagnosis of emphysema which “markedly” limited the ability to function (Tr.

580). Dr. Long noted that the emphysema, combined with chronic pain and a history of

anxiety would severely restrict his work abilities (Tr. 580). Dr. Long’s treating records,

documenting the long-term respiratory problems due to asthma, emphysema, and COPD,

support the finding that Plaintiff experienced significant exertional limitations as a result of

respiratory problems (Tr. 572-577). Dr. Long’s finding that Plaintiff experienced disabling

respiratory problems is supported by the hospital records and objective testing (Tr. 495, 511). 

Because the ALJ’s explanation for discounting the treating opinion does not constitute 

“good reasons,” under § 404.1527(c)(2), a remand on this basis is also appropriate. 

C. Remand

The final question is whether the above mistakes warrant a remand for an award of

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benefits or further fact-finding. It is well established that “[a] judicial award of benefits is

proper only where the proof of disability is overwhelming or where the proof of disability

is strong and evidence to the contrary is lacking. Faucher v. Sec. of Health and Human

Services, 17 F.3d 171, 176 (6th Cir. 1994). “[T]he court can reverse the decision and

immediately award benefits only if all essential factual issues have been resolved and the

record adequately establishes plaintiff’s entitlement to benefits. Id. 

The ALJ’s weakly supported rejection of Dr. Long’s opinion points to a remand for

further fact-finding rather than an award of benefits. In contrast, the record shows that

Plaintiff’s hospitalizations for asthma attacks in 2011 and 2012 establish disability under

Listing 3.03B, at a minimum, for a closed period of at least one year. See Pena v. Barnhart,

2002 WL 31487903, *11 (S.D.N.Y. October 29, 2002); 42 U.S.C. §§ 1382c(a)(3)(A), 

423(d)(1)(A)(“In determining whether Plaintiff is entitled to disability benefits, it is also

necessary to consider every period during which Plaintiff may have been disabled”). While

Plaintiff was hospitalized for asthma for the first time in June, 2011 and the last time in

February, 2012, the hospitalizations cannot be used as “bookends” to establish that he did not

experience disabling symptoms of the condition before and after those dates. Notably, the

transcript shows that he exhibited severe symptoms as early as March, 2011 until at least

May, 2012, at which time Spriometry report (Tr. 495) showed that the condition was “poorly

controlled” (Tr. 302-303, 495, 522-523, 527, 564). Although the focus of Plaintiff’s

treatment shifted to the conditions of COPD and emphysema in the second half of 2012, the

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record shows that he met Listing 3.03B for a minimum of 12 months. Moreover, while the

record does not establish overwhelmingly that Plaintiff met the listings for either COPD or

emphysema for the period in question, his extensive treatment for these conditions, in

combination with the other physical and mental conditions, casts doubt on the Step Five

finding that he is capable of even sedentary work. thus, Plaintiff is entitled, at a minimum,

to an award of benefits for a closed period, ad reconsideration of his entitlement to further

or ongoing benefits. 

VI. CONCLUSION

For these reasons, I recommend that Defendant’s Motion for Summary Judgment be

DENIED and that Plaintiff’s Motion for Summary Judgment be GRANTED to the following

extent:

(1) A remand for an award of benefits for, at a minimum, a closed period of

at least 12 months under Listing 3.03B;

(2) A remand for determination of whether Dr. Long’s treating opinion is

entitled controlling weight; and 

(3) A remand for determination of whether Plaintiff is entitled to ongoing

benefits.

 Any objections to this Report and Recommendation must be filed within 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, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v.

Secretary of HHS, 932 F.2d 505 (6 Cir. 1991); United States v. Walters, 638 F.2d 947 (6 th th

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Cir. 1981). Filing of objections which raise some issues but fail to raise others with

specificity will not preserve all the objections a party might have to this Report and

Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6 Cir. 1991); Smith v. th

Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6 Cir. 1987). Pursuant to E.D. th

Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge.

Within 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 20 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. 

s/ R. Steven Whalen 

R. STEVEN WHALEN

UNITED STATES MAGISTRATE JUDGE

Dated: October 26, 2015

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was sent to parties of record

on October 26, 2015, electronically and/or by U.S. mail.

s/Carolyn M. Ciesla 

Case Manager to the

Honorable R. Steven Whalen

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