UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CAROLYN MARIE HARRISON, 

Plaintiff, Civil Action No. 14-12986

v. District Judge MATTHEW F. LEITMAN

Magistrate Judge R. STEVEN WHALEN

 

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

 /

REPORT AND RECOMMENDATION 

Plaintiff Carolyn Marie Harrison (“Plaintiff”) brings this action under 42 U.S.C.

§405(g) challenging a final decision of Defendant Commissioner (“Defendant”) denying her

applications for supplemental Security Income Benefits (“SSI”) and Disability Insurance

Benefits (“DIB”) under the Social Security Act. The 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 as follows:

(1) that the case be remanded for further review pursuant to Sentence Six of 42 U.S.C.

§ 405(g);

(2) that pursuant to Sentence Six, the Court retain jurisdiction, and that the

Commissioner be directed to file the results of the post-remand proceedings with the Court;

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(3) that the pending motions for summary judgment be stayed pending completion of

post-remand proceedings.1

PROCEDURAL HISTORY

On December 12, 2011, Plaintiff filed applications for SSI and DIB, alleging

disability as of November 13, 2009 (Tr. 112-118, 119-127). After the initial denial of the

1

The fourth sentence of 42 U.S.C. § 405(g) provides that “[t]he Court shall have power to

enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or

reversing the decision of the Commissioner of Social Security, with or without remanding

the cause for a rehearing.” See Shalala v. Schaefer, 509 S.Ct. 292, 303, 113 S.Ct. 2625, 125

L.Ed.2d 239 (1993) (a sentence four remand, allowing the court to remand for further hearing

or an award of benefits, requires entry of judgment); Melkonyan v. Sullivan, 501 U.S. 89,

101-02, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991) (a final judgment must accompany a sentence

four remand order); Berkowski v. Commissioner of Social Sec., 652 F.Supp.2d 846, 849

(E.D.Mich.,2009) (“the remand must be made post-judgment pursuant to sentence four of 42

U.S.C. § 405(g)”); Siuta v. Commissioner of Social Sec., 2009 WL 275732, *1 (E.D.Mich.

2009) (“A judgment must be entered immediately with a sentence four remand and the

district court does not retain jurisdiction during the administrative proceedings on

remand”)(citing Melkonyan, supra). 

In contrast, a remand under the sixth sentence of the same subsection (in which the

district court retains jurisdiction) “does not attach to any substantive ruling but merely

remands the matter for further review in light of newly discovered evidence which is to be

considered by the administrative law judge and therefore does not constitute a ‘judgment’

from which appeal can be taken.” Melkonyan v. Sullivan, 501 U.S. 89, 97-99, 111 S.Ct.

2157, 2163, 115 L.Ed.2d 78 (1991). The reviewing court does not grant summary judgment,

but merely remands for further review. Id. The court “may consider the additional evidence

only for purposes of determining whether remand is appropriate under the sixth sentence of

42 U.S.C. §405(g).” Cotton v. Sullivan, 2 F.3d 692, 696 (6 Cir. 1993). However, the court th

retains jurisdiction in a Sentence Six remand, and enters final judgment only “after postremand agency proceedings have been completed and their results filed with the court.” 

Shalala v. Schaefer, 509 U.S. 292, 297, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993); see also

Melkonyan, 501 U.S. at 98.

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applications, Plaintiff requested an administrative hearing, held January 23, 2013 in Oak

Park, Michigan before Administrative Law Judge (“ALJ”) Melvyn B. Kalt (Tr. 25). Plaintiff,

represented by Howard Slusky, testified (Tr. 28-40), as did Vocational Expert (“VE”) Harry

Cynowa (Tr. 40-44). On March 19, 2013, ALJ Kalt found Plaintiff not disabled (Tr. 21). 

On May 27, 2014, the Appeals Council denied review (Tr. 1-4). Plaintiff filed suit in this

Court on July 30, 2014. 

 BACKGROUND FACTS

Plaintiff, born February 1, 1960, was 53 when ALJ Kalt issued his decision (Tr. 21,

112). She completed two years of college (Tr. 146) and worked previously as a cashier and

machine operator (Tr. 146). She alleges disability due to diabetes mellitus, hypertension,

hyperlipidemia, and chronic back and right shoulder pain (Tr. 145). 

A. Plaintiff’s Testimony

 Plaintiff offered the following testimony:

She had not worked since November, 2009 when she was laid off due to a corporate

buyout (Tr. 28). After being laid off, she applied for unemployment benefits but did not

attempt to find a new job (Tr. 29). 

Plaintiff underwent right wrist surgery in 1996 (Tr. 29). By the time she was laid off

in 2009, she was wearing hand splints every day (Tr. 30). She experienced constant tingling

and numbness of the elbow, wrist, hand, and fingers (Tr. 31). She was prone to dropping

objects and required help getting out of a bathtub (Tr. 31). Her inability to grip created the

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most significant limitation (Tr. 32). She was unable to lift more than eight pounds (Tr. 32). 

In addition to the hand problems, Plaintiff experienced “constant” right shoulder and neck

pain (Tr. 33). She had not undergone an MRI (Tr. 33). Plaintiff was diagnosed with diabetes

in the spring of 2010 (Tr. 33). Despite taking daily medication, Plaintiff experienced

dizziness three to four times a month for around 10 minutes at a time (Tr. 34). As a result

of back pain, she was unable to sit or walk for more than 30 minutes at a time (Tr. 35). She

coped with back pain by taking hot baths with Epsom salts (Tr. 36). She initially denied

medication side effects, but then prompted by her attorney, stated that she was not sure

whether pain medications caused daytime drowsiness (Tr. 37-38). In addition to back pain,

she experienced left hip pain (Tr. 38). She was no longer able to swim or skate and was not

able to crochet as quickly as before (Tr. 38). She opined that she would be unable to work

as a gate attendant due to the medication side effect of drowsiness (Tr. 40). 

 B. Medical Evidence2

1. Records Related to Plaintiff’s Treatment

July, 2009 treating records show elevated glucose levels (Tr. 214). Plaintiff reported

using Tylenol 3 “maybe two times per week” for “multiple aches and pains” (Tr. 199). A

physical examination was unremarkable (Tr. 199). In November, 2009, Rhona A. Fingal,

M.D. examined Plaintiff, noting the conditions of hypertension and “lumbago” (Tr. 198). 

Medical records significantly predating the alleged onset of disability date of 2

November 13, 2009, reviewed in full, are omitted from the present discussion. 

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In March, 2010, Dr. Fingal recommended “yoga and exercises for the back” (Tr. 196). Dr.

Fingal’s July, 2010 notes state that Plaintiff’s diabetes was “poorly controlled” (Tr. 195). 

December, 2010 records state that Plaintiff denied fatigue and was not in acute distress (Tr.

193). In December, 2011, Dr. Fingal prescribed Vicodin, noting Plaintiff’s report of lower

back pain and neck/right arm pain (Tr. 190). Dr. Fingal completed a medical examination

report, stating that Plaintiff required medical insurance to address the conditions of diabetes,

and neck and lower back pain (Tr. 229-230). In February, 2012, Dr. Fingal again

recommended yoga to address complaints of lower back pain (Tr. 188). 

May, 2012 imaging studies show minimal degenerative changes of the lumbar spine

and right shoulder (Tr. 260-262). October, 2012 physical therapy intake records note

Plaintiff’s report of level “8" pain on a scale of 1 to 10 (Tr. 263). She reported limitations

in upper extremity-related functions and the inability to sit or stand for more than 30 minutes

at a time (Tr. 263). In November, 2012, Sruthi Rudraeju, M.D. noted Plaintiff’s report of

constant neck, shoulder, and low back pain (Tr. 231). Plaintiff denied medication side

effects (Tr. 231). She reported a recent diagnosis of rheumatoid arthritis (Tr. 231). She

exhibited mild tenderness of the cervical spine but normal muscle strength and a full range

of motion (Tr. 233). She demonstrated full muscle strength in the right upper extremity (Tr.

233). 

2. Non-Treating Records

In February, 2012, Florence Thomas, M.D. performed a consultative examination on

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behalf of the SSA, noting Plaintiff’s report of low back, right shoulder, and neck pain (Tr.

220). Dr. Thomas observed a full range of shoulder motion and the absence of muscle

atrophy (Tr. 221). She noted lumbar spine tenderness but no muscular spasms or range of

motion limitations (Tr. 221). Plaintiff demonstrated 5/5 strength in the lower extremities (Tr.

222). Dr. Thomas found that Plaintiff “may have difficulty with repetitive bending and

heavy lifting” (Tr. 222). An x-ray of the lumbar spine found “minimal” osteoarthritis

changes (Tr. 223). 

 3. Records Submitted After the ALJ’s March 19, 2013 Decision

A March 17, 2013 MRI of the cervical spine showed degenerative disc disease at all

levels but no spinal cord abnormality (Tr. 275). The study showed “possible” impingement

of the nerve root at C7 (Tr. 275). The same day, an MRI of the lumbar spine showed “likely”

nerve root impingement (Tr. 276). 

C. Vocational Expert Testimony

VE Harry Cynowa classified Plaintiff’s prior work as a packager/assembler as

unskilled at the medium exertional level; production assembler, unskilled/light; and packer

inspector, unskilled/light (Tr. 41). The VE stated that if Plaintiff’s testimony were fully 3

3

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

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credited, she would not be able to perform any of her past relevant work, due to the alleged

need to lie down at unpredicted intervals (Tr. 41). 

The VE found that if Plaintiff’s need to lie down were limited to “authorized rest

periods and at lunch,” she would be capable of performing all of her former jobs (Tr. 41). 

He testified that the same restrictions would allow Plaintiff to perform the unskilled,

exertionally light work of an information clerk (4,000 positions in the regional economy);

lobby attendant or gate attendant (2,500); and hand packager (2,500) (Tr. 42). He stated that

the jobs of information clerk and lobby attendant would require, at a maximum, less than 20

pounds lifting on an occasional basis (Tr. 42). He stated that all three positions included a

sit/stand “at will” option (Tr. 42, 44). In response to questioning by Plaintiff’s attorney, the

VE stated that if Plaintiff were limited to occasional gripping, she could perform the

information clerk and lobby attendant positions but not the hand packager position (Tr. 44). 

 D. The ALJ’s Decision

Citing the medical transcript, the ALJ found that Plaintiff experienced the severe

impairments of “type 2 diabetes, anemia, hypertension, history of bilateral carpal tunnel

syndrome, degenerative changes of the right shoulder, spondylolisthesis of L3 over L4, and

sclerotic changes of the intervertebral disc space at L5-S1” but that none of the conditions

met or medically equalled any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix

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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1 (Tr. 15). ALJ Kalt found that Plaintiff retained the residual functional capacity (“RFC”)

for “light work with a sit/stand option” (Tr. 16). Citing the VE’s testimony, he determined

that although Plaintiff was unable to perform any of her past relevant work, she could work

as an information clerk and a gate/lobby attendant (Tr. 20). 

The ALJ discounted Plaintiff’s allegations of limitation, noting that she “stopped

working due to a business-related layoff rather than because of her impairments” (Tr. 16). 

He found “no evidence” supporting a “significant deterioration” of Plaintiff’s condition since

her layoff (Tr. 16). He found that Plaintiff’s credibility was undermined by her failure to

seek work after the layoff, despite that the receipt of unemployment benefits were

conditioned on her promise to seek new work (Tr. 16-17). 

The ALJ found that Plaintiff’s admitted ability to care for her grandchildren for four

hours three days a week stood at odds with the professed inability to perform exertionally

light work (Tr. 17). He rejected a March, 2012 disability finding by the Department of

Human Services, stating that the findings of the state agency were “conclusory, based on

subjective complaints alone, and lacking in adequate analysis (Tr. 19). 

 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 than a preponderance. It is “such relevant evidence as a reasonable

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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 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 from its 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

 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

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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.” 

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

ANALYSIS

 A. The RFC

Plaintiff argues first that the RFC found in administrative opinion did not contain all

of her relevant limitations. Plaintiff’s Brief, 9-15, Docket #15. Citing SSR 96-8p, Plaintiff

faults the ALJ for failing to consider her history of right shoulder problems, gripping

limitations, and lower back pain. Id.

SSR 96–8p requires that “[t]he RFC assessment must first identify the individual's

functional limitations or restrictions and assess his or her work-related abilities on a

function-by-function basis . . .” 1996 WL 374184 (July 2, 1996). The analysis of the physical

functions is governed by § 404.1545 which pertains to “sitting, standing, walking, lifting,

carrying, pushing, [and] pulling” as well as “manipulative or postural functions, such as

reaching, handling, stooping or crouching.” Id. 

Contrary to Plaintiff’s argument, the ALJ’s finding that she could perform unskilled,

exertionally light work with a sit/stand option is adequately supported and discussed (Tr. 16). 

As to the allegations of right shoulder problems, the ALJ acknowledged the imaging studies

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showing possible tendonitis and “compromise to the rotator cuff,” but noted that the absence

of right shoulder tenderness at the February, 2012 consultative examination (Tr. 18, 221-

222). He observed that while Plaintiff complained of left-sided CTS in 1998, it did not

prevent her from performing exertionally medium work until her November, 2009

termination (Tr. 17, 249). Likewise, while the ALJ took note of the x-rays showing

spurring at L2-L5, he cited the consultative examination records showing a straight back, no

spasms, and the ability to stand and walk without difficulty (Tr. 18). 

Further, based on the record before him, the ALJ did not err in finding that Plaintiff’s

allegations of limitation were undermined by her ability to care for her grandchildren, cook

meals, and perform a wide range of household chores (Tr. 19). He noted that the alleged

onset of disability date correlated with Plaintiff’s layoff rather than a downturn in her

physical condition (Tr. 16). He found that Plaintiff’s receipt of unemployment benefits for

two years after being laid off (requiring her to certify that she was looking for work) stood

at odds with the claim that she was disabled as of the month of her termination (Tr. 16-17). 

See Workman v. Commissioner of Social Sec., 105 Fed.Appx. 794, 801, 2004 WL 1745782,

*7 (6th Cir. June 29, 2004)(citing Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th

Cir.1983)(Claimant's collection unemployment benefits, requiring her to state that she is

ready and able to work, while at the same time alleging disability can be used in support of

a non-disability finding). 

Because the ALJ provided a well supported rationale for the RFC, remand on this

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basis is not warranted. 

B. A Sentence Six Remand

Plaintiff also argues that the March, 2013 MRIs of the cervical and lumbar spine,

submitted after the March 19, 2013 administrative decision, constitute independent grounds

for remand. Plaintiff’s Brief at 15-17(citing Tr. 275-276).

Sentence Six of 42 U.S.C. § 405(g) states that the court “may at any time order

additional evidence to be taken before the Commissioner of Social Security, but only upon

a showing that there is new evidence which is material and that there is good cause for the

failure to incorporate such evidence into the record in a prior proceeding . . .” Material

submitted to the Appeals Council subsequent to the administrative decision is subject to a

narrow review by the district court. Cotton v. Sullivan, 2 F.3d 692, 696 (6th Cir.1993). The

court mayconsider the additional evidence only for purposes of determining whether remand

is appropriate under the sixth sentence of § 405(g). Id. 

The MRIs in question are dated March 17, 2013 (Tr. 275-276). Plaintiff argument 

that she “could not possibly have obtained,” (much less submitted) the imaging studies prior

to the ALJ’s March 19, 2013 determination is well taken. Accordingly, she has established

“good cause” under § 405(g) for the late submission. 

The question of whether the newer evidence is “material” is a closer call. To show

that the newer evidence is material, the claimant “must demonstrate that there was a

reasonable probability that the Secretary would have reached a different disposition of the

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disability claim if presented with the new evidence.” Sizemore v. Secretary of Health &

Human Services, 865 F.2d 709, 711 (6th Cir.1988). The MRI of the lumbar spine, while

showing possible nerve root impingement, would not be likely to change the fairly restrictive

RFC limiting Plaintiff to work allowing her to change positions “at will” (Tr. 44). Plaintiff’s

own testimony that she was able to sit or walk for up to 30 minutes at a time suggests a lesser

degree of exertional limitation than that found in the RFC (Tr. 35). 

However, in contrast, the March 17, 2013 cervical spine MRI showing nerve root

impingement at C7 lends credence to Plaintiff’s testimony of tingling and numbness of the

elbow, wrist, hand, and fingers; the inability to grip; and “constant” right shoulder and neck

pain (Tr. 31-33, 275). Admittedly, the newer evidence does not directly contradict the

finding that Plaintiff could perform jobs requiring “less than 10 pounds repeatedly, and less

than 20 pounds occasionally” with a sit/stand “at will” option (Tr. 42, 44). However, as

stated by the VE, the inability to grip for one third of the work day (occasionally) would

preclude both the jobs of information clerk and gate/lobby attendant (Tr. 20, 43-44). At a

minimum, the MRI of the cervical spine supports Plaintiff’s claims of right upper extremity

radiculopathy, thereby casting doubt on the finding that she is capable of “occasional”

gripping or other manipulative functions required to performthese jobs. While the MRI does

not amount to proof certain that Plaintiff is disabled, it creates a reasonable probability that

upon review, the ALJ would reach a different disposition. Accordingly, a remand for

consideration of the newer evidence is appropriate. 

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 CONCLUSION

 For the reasons set forth below, I recommend as follows:

(1) that the case be remanded for further review pursuant to Sentence Six of 42 U.S.C.

§ 405(g);

(2) that pursuant to Sentence Six, the Court retain jurisdiction, and that the

Commissioner be directed to file the results of the post-remand proceedings with the Court;

(3) that the pending motions for summary judgment be stayed pending completion of

post-remand proceedings.

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

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

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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: May 20, 2015

CERTIFICATE OF SERVICE

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

on May 20, 2015, electronically and/or by U.S. mail.

s/Carolyn M. Ciesla 

Case Manager to the

Honorable R. Steven Whalen

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