UNITED STATES DISTRICT COURT

EASTERN DISTICT OF MICHIGAN

SOUTHERN DIVISION

ARBURN RAINEY

Plaintiff, Civil Action No. 14-14396

 Honorable Thomas L. Ludington

v. Magistrate Judge Elizabeth A. Stafford

 

CAROLYN W. COLVIN, 

Acting Commissioner of 

Social Security,

 

Defendant. 

_____________________________/

REPORT AND RECOMMENDATION

ON CROSS-MOTIONS FOR SUMMARY JUDGMENT [R. 13, 24] 

Plaintiff Arburn Rainey appeals a final decision of Defendant 

Commissioner of Social Security (“Commissioner”) denying his application 

for disability insurance benefits (“DIB”) under the Social Security Act (the 

“Act”). Both parties have filed summary judgment motions, referred to this 

Court for a Report and Recommendation pursuant to 28 U.S.C. § 

636(b)(1)(B). The Court finds that the decision by the administrative law 

judge (“ALJ”) is supported by substantial evidence, and thus 

RECOMMENDS that:

• the Commissioner’s motion [R. 24] be GRANTED;

• Rainey’s motion [R. 13] be DENIED; and,

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• the Commissioner’s decision be AFFIRMED, pursuant to sentence 

four of 42 U.S.C. § 405(g). 

I. BACKGROUND

a. Procedural Background and Rainey’s Claimed Disabilities

Rainey was born in September 6, 1972, making him thirty-nine when 

he submitted his application for disability benefits in January 2012. [R. 10-

5, Tr. 151]. He alleged a disability onset date of March 10, 2006. [Id.]. 

Because he was previously denied benefits in a decision dated August 19, 

2009, the ALJ only considered whether he was disabled beginning the next 

day. [R. 10-2, Tr. 16; R. 10-3, Tr. 77-91]. Further, Rainey’s date last insured

was September 30, 2009, so the ALJ did not consider whether he was 

disabled beyond that date. [R. 10-2, Tr. 12; R. 10-5, Tr. 156]. 

Rainey alleged that he was disabled from severe impairments of his 

back, including lumbar degenerative disc disease and sacroilitis, and 

mental impairments including depressive symptomatology. [R. 10-6, Tr. 

190]. After an administrative hearing, the ALJ determined that Rainey was 

not disabled. [R. 10-2, Tr. 22]. The Appeals Council denied review, making 

the ALJ’s decision the final decision of the Commissioner. [Id., Tr. 1-3]. 

Rainey timely filed for judicial review. [R. 1].

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b. The ALJ’s Application of the Disability Framework Analysis

A “disability” is 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).

The Commissioner determines whether an applicant is disabled by 

analyzing five sequential steps. First, if the applicant is “doing substantial 

gainful activity,” he or she will be found not disabled. 20 C.F.R. § 

404.1520(a)(4). Second, if the claimant has not had a severe impairment or 

a combination of such impairments1 for a continuous period of at least 12 

months, no disability will be found. Id. Third, if the claimant’s severe 

impairments meet or equal the criteria of an impairment set forth in the 

Commissioner’s Listing of Impairments, the claimant will be found disabled. 

Id. If the fourth step is reached, the Commissioner considers its 

assessment of the claimant’s residual functional capacity (“RFC”), and will 

find the claimant not disabled if he or she can still do past relevant work. Id.

At the final step, the Commissioner reviews the claimant’s RFC, age, 

education and work experiences, and determines whether the claimant 

 

1 A severe impairment is one that “significantly limits [the claimant’s] 

physical or mental ability to do basic work activities.” § 1520(c).

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could adjust to other work. Id. The claimant bears the burden of proof 

throughout the first four steps, but the burden shifts to the Commissioner if 

the fifth step is reached. Preslar v. Sec’y of Health & Human Servs., 14 

F.3d 1107, 1110 (6th Cir. 1994).

The August 2009 ALJ ruling found Rainey capable of performing light 

work with an option to either sit or stand, so that he may “change positions 

at will.” [R. 10-3, Tr. 83]. Applying Acquiescence Ruling 98–4(6),2 the 

present ALJ concluded there was new and material evidence in the record

for him to consider, [R. 10-2, Tr. 16], so he proceeded to the five-step 

sequence to analyze Rainey’s claim.

At step one, the ALJ determined that Rainey had not engaged in 

substantial gainful activity since March 10, 2006. [R. 10-2, Tr. 14]. At step 

two, the ALJ identified the severe impairment of “degenerative disc 

disease.” [Id.]. At step three, the ALJ determined that Rainey’s impairment

did not meet or medically equal a listed impairment. [Id., Tr. 14-15]. In 

making this determination, the ALJ found that Rainey had mild limitations in 

activities of daily living, a mild limitation in social functioning, and a mild 

limitation in maintaining concentration, persistence and pace, with no 

 

2 This ruling is described below.

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erisodes of decompensation that have been of extended duration. [Id., Tr. 

15]. 

Next, the ALJ assessed Rainey’s RFC, finding him capable of 

performing light work with an option to either sit or stand, alternatively, 

“provided he is not off task more than 10% of the work period.” [Id., Tr. 16]. 

At the fourth step, the ALJ determined that Rainey did not have the RFC to 

perform past relevant work. [Id., Tr. 20]. At step five, with the assistance of 

VE testimony, the ALJ determined that a hypothetical claimant matching 

Rainey’s profile could perform a substantial number of jobs in the national 

economy, including machine operator (70,000 jobs nationally), office clerk

(190,000 jobs) and cashier (8,500 jobs), and was thus not disabled. [Id., Tr. 

21]. 

II. ANALYSIS

Pursuant to § 405(g), this Court’s review is limited to determining 

whether the Commissioner’s decision is supported by substantial evidence 

and was made in conformity with proper legal standards. Gentry v. Comm’r 

of Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014). Substantial evidence is 

“more than a scintilla of evidence but less than a preponderance; it is such 

relevant evidence as a reasonable mind might accept as adequate to 

support a conclusion.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 

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(6th Cir. 2007) (internal quotation marks and citation omitted). Only the 

evidence in the record below may be considered when determining 

whether the ALJ’s decision is supported by substantial evidence. Bass v. 

McMahon, 499 F.3d 506, 513 (6th Cir. 2007). 

A.

Rainey’s prior attorney of record filed a motion for summary 

judgment, but that attorney and his firm’s representation of Rainey was 

terminated from this and other Social Security cases due to malfeasance. 

[See R. 15; 13-cv-14544, R. 16-4]. The malfeasance came to light after the 

attorney was “repeatedly criticized by judicial officers in this district, and the

relief requested therein routinely denied, due to their ‘conclusory 

assertions’ and lack of any developed argument.” [14-cv-10251, R. 13, 

PgID 574]. After his attorney’s termination from this case, Rainey was given 

an opportunity to file another motion for summary judgment, [R. 21], but he 

did not do so. The Court has therefore considered the arguments in the 

motion filed by Rainey’s prior attorney, but it suffered from the same 

deficiencies previously described. Therefore, in the interest of justice, the 

Court has also independently considered the evidence in the record.

The motion filed on behalf of Hayes argues that the ALJ erred in 

assessing Rainey’s credibility and finding him less than credible. However, 

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because there is insufficient evidence of changed circumstances during the 

short window of Rainey’s remaining eligibility, his credibility argument is 

rendered moot and the ALJ’s decision should be affirmed.

B.

If a final decision of the Commissioner “on a prior disability claim 

contains a finding of a claimant’s residual functional capacity, [the 

Commissioner] may not make a different finding in adjudicating a 

subsequent disability claim with an unadjudicated period ... unless new and 

additional evidence or changed circumstances provide a basis for a different 

finding of the claimant’s residual functional capacity.” Acquiescence Ruling 

98-4(6), 1998 WL 283902, at *3 (June 1, 1998); see also Drummond v. 

Comm’r of Soc. Sec., 126 F.3d 837, 842-43 (6th Cir. 1997) (“When the 

Commissioner has made a final decision concerning a claimant’s entitlement 

to benefits, the Commissioner is bound by this determination absent 

changed circumstances.”). Rainey has the burden of establishing that 

changed circumstance warrants a different finding than the prior decision. 

See Drummond, 126 F.3d at 843. 

The Commissioner correctly notes that the ALJ is limited to considering 

the 42-day period from August 20, 2009 (the day after the previous ALJ’s 

decision) to September 30, 2009 (the date last insured), within which Rainey 

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may be found disabled. [R. 24, PgID 563]. The ALJ noted, “[T]here does not 

appear to be any medical treatment from August to September 2009 that 

showed a change in circumstances that provide a basis for a different 

finding.” [R. 10-2, Tr. 17]. It is true that “[m]edical evidence of a subsequent 

condition of health, reasonably proximate to a preceding time, may be used 

to establish the existence of the same condition at the preceding time.”

Begley v. Mathews, 544 F.2d 1345, 1354 (6th Cir. 1976). However, 

“[e]vidence of disability obtained after the expiration of insured status is 

generally of little probative value.” Strong v. Soc. Sec. Admin., 88 Fed. Appx.

841, 845 (6th Cir. 2004).

Here, there is no new evidence that could be considered material

until almost one year after the date last insured. [R. 10-7, Tr. 240-42]. 

Rainey visited Rama D. Rao, M.D., five times in 2010 for back pain,

beginning in September. [Id., Tr. 231-33, 239-42]. Subsequently, Rainey 

did not seek additional treatment until May 2011, when he saw Dr. Rao 

twice that month and once in June for back pain. [Id., 228-30, 237-38]. After 

that, he did not seek treatment again until January 2012. [Id., 251-52]. As to 

his alleged mental impairments, there is no medical evidence pertaining to

any such impairment until February 2012. [Id., Tr. 282-85]. This evidence 

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is too remote to be considered probative of Rainey’s condition between 

August and September 2009.

For these reasons, Rainey has not sustained his burden of 

demonstrating changed circumstances, and the ALJ was bound by the prior 

finding. This finding renders Rainey’s credibility argument moot. Kopacsi v. 

Comm’r of Soc. Sec., No. 12-14160, 2013 WL 5450133, at *5 (E.D. Mich. 

Sept. 30, 2013) (rejecting claimant’s credibility argument because the 

Acquiescence Ruling applied). 

III. CONCLUSION

The Court RECOMMENDS that the Commissioner’s Motion for 

Summary Judgment [R. 24] be GRANTED, Rainey’s Motion for Summary 

Judgment [R. 13] be DENIED, and the Commissioner’s decision be 

AFFIRMED pursuant to sentence four of 42 U.S.C. § 405(g).

s/Elizabeth A. Stafford

ELIZABETH A. STAFFORD

United States Magistrate Judge

Dated: June 15, 2016

NOTICE TO THE PARTIES REGARDING OBJECTIONS

Either party to this action may object to and seek review of this 

Report and Recommendation, but must act within fourteen days of service 

of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and Fed. R. Civ. 

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P. 72(b)(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. 

Secretary of HHS, 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 party 

might have to this Report and Recommendation. Willis v. Secretary of 

HHS, 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers 

Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). A copy of any objection 

must be served upon this Magistrate Judge. E.D. Mich. LR 72.1(d)(2).

Each objection must be labeled as “Objection #1,” “Objection #2,” 

etc., and must specify precisely the provision of this Report and 

Recommendation to which it pertains. Not later than fourteen days after 

service of objections, the non-objecting party must file a response to 

the objections, specifically addressing each issue raised in the objections in 

the same order and labeled as “Response to Objection #1,” “Response to 

Objection #2,” etc. The response must be concise and proportionate in 

length and complexity to the objections, but there is otherwise no page 

limitation. If the Court determines that any objections are without merit, it 

may rule without awaiting the response.

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CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s ECF 

System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on June 15, 2016.

s/Marlena Williams

MARLENA WILLIAMS

Case Manager

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