UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JESSICA J. MOORE,

Plaintiff,

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

_____________________________________/

Case No. 14-13202

United States District Judge

Marianne O. Battani

Michael Hluchaniuk

United States Magistrate Judge

REPORT AND RECOMMENDATION

CROSS-MOTIONS FOR SUMMARY JUDGMENT (Dkt. 14, 15)

I. PROCEDURAL HISTORY

A. Proceedings in this Court

On August 29, 2014, plaintiff filed the instant suit seeking judicial review of

the Commissioner’s unfavorable decision disallowing benefits. (Dkt. 1). Pursuant

to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(b)(3), District Judge Marianne O.

Battani referred this matter to the undersigned for the purpose of reviewing the

Commissioner’s decision denying plaintiff’s claims for disability insurance

benefits (DIB) and supplemental security income (SSI). (Dkt. 4). This matter is

before the Court on cross-motions for summary judgment. (Dkt. 14, 15).

B. Administrative Proceedings

Plaintiff filed the instant claim for disability insurance benefits on March

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26, 2008, alleging that she became disabled beginning February 27, 2008. (Tr.

210-218). Plaintiff also filed an application for supplement security income on

March 18, 2008, alleging that her disability started on the same day. (Tr. 206-

209). The Commissioner initially denied plaintiff’s claims on October 21, 2008. 

(Tr. 17). Plaintiff requested a hearing and on August 24, 2010, plaintiff appeared,

with counsel, before Administrative Law Judge (ALJ) John Volz, who considered

the case de novo. (Tr. 33-48). In a decision dated September 9, 2010, Judge Volz

found that plaintiff was not disabled. (Tr. 104-105). Plaintiff appealed, and on

April 4, 2012, the Appeals Council vacated the September 9, 2010 hearing

decision of Judge Volz and entered an order remanding the case for further

administrative proceedings. (Tr. 110-11). 

Following the remand order, on November 6, 2012, plaintiff appeared, with

counsel, and testified at a hearing before ALJ Laurence E. Blatnik. (Tr. 49-92). A

vocational expert also appeared and testified. (Tr. 78-91). Additional medical

evidence was received after the hearing, which was admitted into the record as

Exhibit 25F. (Tr. 636-672). In a decision dated February 28, 2013, Judge Blatnik

found that plaintiff was not disabled. (Dkt. 27). Judge Blatnik’s decision became

the final decision of the Commissioner when the Appeals Council, on June 25,

2014, denied plaintiff’s request for review. (Tr. 1-6).

For the reasons set forth below, the undersigned RECOMMENDS that

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plaintiff’s motion for summary judgment be DENIED, that the Commissioner’s

motion for summary judgment be GRANTED, and that the findings of the

Commissioner be AFFIRMED.

II. FACTUAL BACKGROUND

A. ALJ Findings

Plaintiff was born in 1974 and was 33 years of age on the alleged disability

onset date. (Dkt. 11-2, Pg ID 58). Plaintiff’s past relevant work included work as

a sales clerk, commercial cleaner, home attendant, child monitor, and laundry

worker. (Dkt. 11-2, Pg ID 57). The ALJ applied the five-step disability analysis

to plaintiff’s claim and found at step one that plaintiff had not engaged in

substantial gainful activity since the alleged onset date. (Dkt. 11-2, Pg ID 52). At

step two, the ALJ found that plaintiff’s degenerative disc disease of the lumbar

spine, right hip trochanteric bursitis, edema and cellulitis of both legs, left little

finder crush injury, status-post capsulectomy and open reduction/internal fixation,

comminuted fracture of the left second toe distal phalanx, and depression were

“severe” within the meaning of the second sequential step. (Dkt. 11-2, Pg ID 52). 

At step three, the ALJ found no evidence that plaintiff’s combination of

impairments met or equaled one of the listings in the regulations. Id.

The ALJ concluded that plaintiff had the following residual functional

capacity:

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After careful consideration of the entire record, the

undersigned finds that the claimant has the residual

functional capacity to perform light work as defined in

20 CFR 404.1567(b) and 416.967(b). The claimant can

lift or carry twenty pounds occasionally and ten pounds

frequently; can stand, walk, and sit for at least six hours

of an eight-hour shift; with the need for a sit/stand option

that enables her to change position every 20 to 30

minutes. The claimant can never climb ladders,

scaffolds, ropes; only occasionally balance, stoop,

crouch, kneel, crawl, squat, or climb ramps or stairs; only

occasionally reach overhead with the right upper

extremity; frequently handle, finger, push or pull with

the left hand; never use air, pneumatic, power, torque, or

vibratory tools; and never work with dangerous or

unprotected machinery or at unprotected heights.

Furthermore, the claimant can perform simple unskilled

work with a specific vocational preparation (SVP) rating

of 1 or 2.

(Dkt. 11-2, Pg ID 53). At step four, the ALJ found that plaintiff could not perform

her past relevant work. (Dkt. 11-2, Pg ID 57). At step five, the ALJ denied

plaintiff benefits because she could perform a significant number of jobs available

in the national economy. (Dkt. 11-2, Pg ID 58).

B. Plaintiff’s Claims of Error

Plaintiff asserts that the ALJ who made the second decision was bound by

the RFC from the first decision. In the first decision, the ALJ found that plaintiff

was capable of performing a full range of sedentary work. (Tr. 103-104). In the

second decision, the ALJ concluded that plaintiff was capable of performing light

work with a sit/stand option enabling her to change position every 20 to 30

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minutes. Other restrictions were included and the work was to be performed at the

simple, unskilled level. (Tr. 5). According to plaintiff, the initial ALJ’s RFC

determination must be followed on grounds of res judicata absent evidence of

improvement of her medical conditions. See Drummond v. Commissioner of

Social Security, 126 F.3d 837 (6th Cir. 1997). The ALJ in the second decision

found that plaintiff could perform light work with certain restrictions. Plaintiff

contends that absent was a finding of medical improvement in her condition to

support a finding of light work in the second ALJ’s RFC.

The ALJ summarized some of the medical evidence, considered assessments

made in a functional capacity report, cited a physical source statement but,

according to plaintiff, failed to assign any weight to the sources, nor the reasons

for doing so, and failed to cite medical documentation indicating an improvement

in plaintiff’s condition allowing her to be capable of light work. (Tr. 21-25). 

Further, the ALJ in the second decision found that plaintiff was incapable of

performing her past relevant work (Tr. 25) citing the vocational expert’s 

testimony, which was similar to the VE testimony in the first hearing. (Tr. 160).

The VE classified plaintiff’s past relevant work from light to medium. (Tr. 82).

According to plaintiff, finding that plaintiff was incapable of performing her past

relevant work at light exertional levels yet finding that she had a light RFC are

conflicting and she requests a remand for further findings based upon the

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applicable case law and for an explanation of the conflicting findings.

Plaintiff next contends that the second ALJ failed to discuss the restrictions

placed on her by her long-time treating physician, Dr. Lorna Pinson. (Tr.

300-303). This ALJ cited Dr. Pinson’s records from 2008 indicating a lack of

severe conditions or complications but failed to include any discussion of the

weight assessed to Dr. Pinson’s opinion. Further, plaintiff says that the ALJ

ignored her emergency room visits on February 8, 2007, October 14, 2007 and

February 25, 2008 for complaints of back pain. (Tr. 351-320; 347-348, 357-358,

360-362). Plaintiff also points out that the ALJ in the second decision cites the

findings of a consultative examination (Tr. 23; 575-584), but failed to discuss the

weight given to this report though appearing to rely on it in determining plaintiff’s

RFC. In sum, plaintiff contends that the second decision fails to provide specific

clear and good reasons for rejecting the opinions of plaintiff’s treating physician

and the weight assigned to treating physicians and consultative examiners

opinions were not discussed.

C. The Commissioner’s Motion for Summary Judgment

In the first decision, ALJ Volz held that plaintiff only had the RFC for

sedentary work. (Tr. 103, finding 5). In the second decision, ALJ Blatnik

determined she had the RFC for light work. (Tr. 21, finding 5). According to

Drummond v. Comm’r of Soc. Sec., 126 F.3d 837, 842 (6th Cir. 1997), “[a]bsent

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evidence of an improvement in a claimant’s condition, a subsequent ALJ is bound

by the findings of a previous ALJ.” Plaintiff claims ALJ Blatnik violated

Drummond by giving her a less restrictive RFC than ALJ Volz without ever

“indicating an improvement in [Plaintiff’s] condition allowing her to be capable of

light work.” The Commissioner argues, however, that Drummond does not apply

when, like here, the Appeals Council has vacated the findings of the previous ALJ.

(Tr. 110); see also Kearney v. Colvin, 14 F.Supp. 3d 943, 949-50 (S.D. Ohio 2014)

(collecting cases and noting that “Drummond applies only to final decisions issued

by the Commissioner, and does not apply when decisions have yet to become

administratively final. An ALJ’s decision on the merits of a disability application

does not become final and binding if the Appeals Council vacates that decision

and remands the matter for further proceedings”) (citation omitted). Thus, the

Commissioner maintains that this Court should reject plaintiff’s argument.

In November 2007, Dr. Pinson wrote that plaintiff could not lift more than

ten pounds and that she could not push, pull, bend, or squat until her neurosurgery

evaluation. (Tr. 301). That evaluation took place on February 29, 2008. (Tr. 305,

356). While ALJ Blatnik did not discuss this opinion, the Commissioner contends

that could not possibly make any difference. First, the proceeding was only

concerned with plaintiff’s physical condition as of February 27, 2008, her alleged

onset date. (Tr. 212). Opinions predating that period were “of limited relevance.”

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Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008).

While the Commissioner acknowledges that there was a two-day overlap between

the relevant period and the period covered by the opinion, she contends that the

restrictions in the opinion were only in place between November 2007 and

February 2008, which does not come close to meeting the Social Security Act’s

requirement that a disabling impairment last for “for a continuous period of at

least 12 months.” 20 C.F.R. §§ 404.1509 and 416.909. “In the face of this

unsatisfied requirement, [Plaintiff] fails to offer a tenable explanation as to how

the opinion[] of [Dr. Pinson] could lead to a legitimate finding of disability.”

Sharp v. Barnhart, 152 Fed.Appx. 503, 508 (6th Cir. 2005). In addition, the

Commissioner points out that the vocational expert testified that someone with the

limitations described in Dr. Pinson’s opinion could still perform one of

Michigan’s 2,100 office clerk positions. (Tr. 84, 87-88). Therefore, even if ALJ

Blatnik explicitly discussed this opinion and assigned it controlling weight,

plaintiff still would have been found not disabled at step five. (Tr. 26) (ALJ

Blatnik relying on the office clerk position in support of his step five finding); see

also C.F.R. §§ 404.1566(b) and 416.966(b) (“Work exists in the national economy

when there is a significant number of jobs (in one or more occupations) having

requirements which you are able to meet with your physical or mental abilities and

vocational qualifications...[I]f work that you can do does exist in the national

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economy, we will determine that you are not disabled”); Nejat v. Comm’r of Soc.

Sec., 359 Fed.Appx. 574, 579 (6th Cir. 2009) (2,000 jobs is a significant number).

Thus, any error in failing to discuss or weigh that opinion was harmless. See

Rutherford v. Comm’r of Soc. Sec., 67 Fed.Appx. 333, 334 (6th Cir. 2003)

(declining to remand where the error did not affect the outcome of the case).

Dr. Sachdev performed a consultative examination on plaintiff in April

2012, assigning various functional limitations in the process. (Tr. 575-584). ALJ

Blatnik thoroughly discussed Dr. Sachdev’s opinion (Tr. 23), and, as plaintiff

acknowledges, “appear[ed] to rely upon it in determining [her] RFC.” (Pl’s Mem.

8). Plaintiff does not argue that ALJ Blatnik improperly weighed Dr. Sachdev’s

opinion—she faults him for not assigning it any weight at all. (Pl’s Mem. 8).

The Commissioner acknowledges that ALJ Blatnik did not assign any weight one

way or the other to Dr. Sachdev’s opinion, however, because Dr. Sachdev was not

a treating source, ALJ Blatnik “had no heightened articulation requirement as to

[her] opinion[].” Hutchinson v. Comm’r of Soc. Sec., 2013 WL 4604561, at *16

(E.D. Mich. 2013); see also Tate v. Comm’r of Soc. Sec., 2014 WL 4536929, at

*19 (E.D. Mich. 2014), quoting Karger v. Comm’r of Soc. Sec., 414 Fed. Appx.

739, 744 (6th Cir. 2011) (“the ALJ is not ‘under any special obligation to defer to

[non-treating physician] opinion[s] or to explain why he elected not to defer to

[them]’”).

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Additionally, the Commissioner argues that plaintiff’s burden in this

proceeding is far more onerous than merely providing single-sentence arguments

that identify errors in ALJ Blatnik’s opinion writing technique. Strongson v.

Barnhart, 361 F.3d 1066, 1072 (8th Cir. 2004) (“We will not set aside an

administrative finding based on an arguable deficiency in opinion-writing

technique when it is unlikely it affected the outcome”) (citations and quotations

omitted). After all, just as “there can be no such thing as an error-free, perfect

trial,” there can be no such thing as an error-free, perfect administrative decision,

especially in an agency called upon to adjudicate a nearly inconceivable number of

claims every year. United States v. Hastings, 461 U.S. 499, 508 (1983); see also

Schweiker v. Chilicky, 487 U.S. 412, 424 (1988) (“The administrative structure

and procedures of the Social Security system, which affects virtually every

American, are of a size and extent difficult to comprehend. Millions of claims are

filed every year under the Act's disability benefits programs alone...”). Therefore,

as noted above, the only errors requiring remand are those that harm the claimant.

Rutherford, 67 Fed.Appx. at 334. According to the Commissioner, whatever ALJ

Blatnik did or did not do with respect to Dr. Sachdev’s opinion is harmless

because there is no scenario under which that opinion could have led to a finding

of disability. ALJ Blatnik asked the VE whether the limitations in Dr. Sachdev’s

opinion would prevent plaintiff from performing the some of the jobs he relied

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upon in support of his step five finding (Tr. 85), and the VE testified that they

would not. (Tr. 86). Thus, the Commissioner says that the Court should not

remand on this issue.

Plaintiff also claims that ALJ Blatnik ignored evidence contained in exhibits

2F and 3F (Pl’s Mem. 7), despite the fact that he cited directly to those exhibits.

(Tr. 24) (citing Exhibits 2F and 3F, Tr. 304-36). According to the Commissioner,

this claim is extremely difficult to credit. Bauer v. Soc. Sec. Admin., 734

F.Supp.2d 773, 811 (D. Minn. 2010), quoting Black v. Apfel, 143 F.3d 383, 386

(8th Cir. 1998) (holding that “an ALJ is not required to discuss every piece of

evidence, and finding it ‘highly unlikely’ that the ALJ did not consider an opinion

contained in treatment notes that the ALJ referenced”); see also Kornecky v.

Comm’r of Soc. Sec., 167 Fed.Appx. 496, 508 (6th Cir. 2006) (“An ALJ can

consider all the evidence without directly addressing in his written decision every

piece of evidence submitted by a party.”). The Commissioner also contends that it

is difficult to see how specific acknowledgment of the evidence plaintiff

highlights would make any difference. See Rutherford, 67 Fed.Appx. 333, 334

(error is harmless where it does not affect the outcome of the case). Plaintiff notes

that exhibits 2F and 3F contain “complaints of back pain” (Pl’s Mem. 7), but ALJ

Blatnik found that plaintiff had a severe back condition. (Tr. 20, finding 3) (noting

that plaintiff’s “degenerative disc disease of the lumbar spine” was a severe

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impairment). Because the sequential evaluation continued to the RFC stage, the

question became what plaintiff could or could not do in the workplace, not what

she did or did not suffer from. Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 239

(6th Cir. 2002). The Commissioner also asserts that if exhibits 2F and 3F contain

work-related limitations beyond those found in plaintiff’s RFC, she has not

explained what they are. Thus, the Commissioner maintains that the Court should

not remand on this issue.

Even though ALJ Blatnik decided step four in plaintiff’s favor (Tr. 25,

finding 6), plaintiff is not satisfied because the ALJ:

found [she] was incapable of performing her past

relevant work [Tr. 25, finding 6] citing the Vocational

Expert's (VE) testimony which was similar to the VE

testimony in the first hearing. [Tr. 160]. The VE

classified [Plaintiff’s] past relevant work from light to

medium. [Tr. 82]. Finding that [Plaintiff] was incapable

of performing her past relevant work at light exertional

levels yet finding that she had a light RFC are

conflicting.

(Pl’s Mem. 5-6). Plaintiff then “request[s] a remand for...for explanation of

conflicting findings.” (Pl’s Mem 6). According to the Commissioner, this

argument is overly simplistic. ALJ Blatnik did not simply find that plaintiff had a

“light RFC”—he found that she had a light RFC with roughly two dozen other

limitations (Tr. 21, finding 5, 82-83), any one of which could have led the VE to

determine that she was incapable of performing her past relevant work. (Tr. 83).

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In addition, the Commissioner contends that plaintiff was not harmed by this

decision because ALJ Blatnik decided step four in plaintiff’s favor (Tr. 25, finding

6), and, presumably, plaintiff would want him to do so again on remand. The

Commissioner maintains that sending this case back so ALJ Blatnik can provide

further rationale in support of an identical decision would be an empty exercise.

Ward v. Comm’r of Soc. Sec., 211 F.3d 652, 656 (1st Cir. 2000) (“a remand is not

essential if it will amount to no more than an empty exercise”); Kobetic v. Comm'r

of Soc. Sec., 114 Fed. Appx. 171, 173 (6th Cir. 2004), quoting Fisher v. Bowen,

869 F.2d 1055, 1057 (7th Cir. 1989) (“No principle of administrative law or

common sense requires us to remand a case in quest of a perfect opinion unless

there is reason to believe that the remand might lead to a different result”).

III. DISCUSSION

A. Standard of Review

In enacting the social security system, Congress created a two-tiered system

in which the administrative agency handles claims, and the judiciary merely

reviews the agency determination for exceeding statutory authority or for being

arbitrary and capricious. Sullivan v. Zebley, 493 U.S. 521 (1990). The

administrative process itself is multifaceted in that a state agency makes an initial

determination that can be appealed first to the agency itself, then to an ALJ, and

finally to the Appeals Council. Bowen v. Yuckert, 482 U.S. 137 (1987). If relief is

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not found during this administrative review process, the claimant may file an

action in federal district court. Mullen v. Bowen, 800 F.2d 535, 537 (6th Cir.1986).

This Court has original jurisdiction to review the Commissioner’s final

administrative decision pursuant to 42 U.S.C. § 405(g). Judicial review under this

statute is limited in that the court “must affirm the Commissioner’s conclusions

absent a determination that the Commissioner has failed to apply the correct legal

standard or has made findings of fact unsupported by substantial evidence in the

record.” Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005);

Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). In deciding

whether substantial evidence supports the ALJ’s decision, “we do not try the case

de novo, resolve conflicts in evidence, or decide questions of credibility.” Bass v.

McMahon, 499 F.3d 506, 509 (6th Cir. 2007); Garner v. Heckler, 745 F.2d 383,

387 (6th Cir. 1984). “It is of course for the ALJ, and not the reviewing court, to

evaluate the credibility of witnesses, including that of the claimant.” Rogers v.

Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007); Jones v. Comm’r of Soc.

Sec., 336 F.3d 469, 475 (6th Cir. 2003) (an “ALJ is not required to accept a

claimant’s subjective complaints and may ... consider the credibility of a claimant

when making a determination of disability.”); Cruse v. Comm’r of Soc. Sec., 502

F.3d 532, 542 (6th Cir. 2007) (the “ALJ’s credibility determinations about the

claimant are to be given great weight, particularly since the ALJ is charged with

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observing the claimant’s demeanor and credibility.”) (quotation marks omitted);

Walters, 127 F.3d at 531 (“Discounting credibility to a certain degree is

appropriate where an ALJ finds contradictions among medical reports, claimant’s

testimony, and other evidence.”). “However, the ALJ is not free to make

credibility determinations based solely upon an ‘intangible or intuitive notion

about an individual’s credibility.’” Rogers, 486 F.3d at 247, quoting Soc. Sec.

Rul. 96-7p, 1996 WL 374186, *4.

 If supported by substantial evidence, the Commissioner’s findings of fact

are conclusive. 42 U.S.C. § 405(g). Therefore, this Court may not reverse the

Commissioner’s decision merely because it disagrees or because “there exists in

the record substantial evidence to support a different conclusion.” McClanahan v.

Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006); Mullen v. Bowen, 800

F.2d 535, 545 (6th Cir. 1986) (en banc). 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, 486

F.3d at 241; Jones, 336 F.3d at 475. “The substantial evidence standard

presupposes that there is a ‘zone of choice’ within which the Commissioner may

proceed without interference from the courts.” Felisky v. Bowen, 35 F.3d 1027,

1035 (6th Cir. 1994) (citations omitted), citing, Mullen, 800 F.2d at 545. 

The scope of this Court’s review is limited to an examination of the record

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only. Bass, 499 F.3d at 512-13; Foster v. Halter, 279 F.3d 348, 357 (6th Cir.

2001). When reviewing the Commissioner’s factual findings for substantial

evidence, a reviewing court must consider the evidence in the record as a whole,

including that evidence which might subtract from its weight. Wyatt v. Sec’y of

Health & Human Servs., 974 F.2d 680, 683 (6th Cir. 1992). “Both the court of

appeals and the district court may look to any evidence in the record, regardless of

whether it has been cited by the Appeals Council.” Heston v. Comm’r of Soc.

Sec., 245 F.3d 528, 535 (6th Cir. 2001). There is no requirement, however, that

either the ALJ or the reviewing court must discuss every piece of evidence in the

administrative record. Kornecky v. Comm’r of Soc. Sec., 167 Fed. Appx. 496, 508

(6th Cir. 2006) (“[a]n ALJ can consider all the evidence without directly

addressing in his written decision every piece of evidence submitted by a party.”)

(internal citation marks omitted); see also Van Der Maas v. Comm’r of Soc. Sec.,

198 Fed. Appx. 521, 526 (6th Cir. 2006).

B. Governing Law

The “[c]laimant bears the burden of proving his entitlement to benefits.” 

Boyes v. Sec’y of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994);

accord, Bartyzel v. Comm’r of Soc. Sec., 74 Fed. Appx. 515, 524 (6th Cir. 2003). 

There are several benefits programs under the Act, including the Disability

Insurance Benefits Program (DIB) of Title II (42 U.S.C. §§ 401 et seq.) and the

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Supplemental Security Income Program (SSI) of Title XVI (42 U.S.C. §§ 1381 et

seq.). Title II benefits are available to qualifying wage earners who become

disabled prior to the expiration of their insured status; Title XVI benefits are

available to poverty stricken adults and children who become disabled. F. Bloch,

Federal Disability Law and Practice § 1.1 (1984). While the two programs have

different eligibility requirements, “DIB and SSI are available only for those who

have a ‘disability.’” Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). 

“Disability” means:

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), 1382c(a)(3)(A) (DIB); see also 20 C.F.R. § 416.905(a)

(SSI).

The Commissioner’s regulations provide that disability is to be determined

through the application of a five-step sequential analysis:

Step One: If the claimant is currently engaged in

substantial gainful activity, benefits are denied without

further analysis.

Step Two: If the claimant does not have a severe

impairment or combination of impairments, that

“significantly limits ... physical or mental ability to do

basic work activities,” benefits are denied without

further analysis.

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Step Three: If plaintiff is not performing substantial

gainful activity, has a severe impairment that is expected

to last for at least twelve months, and the severe

impairment meets or equals one of the impairments listed

in the regulations, the claimant is conclusively presumed

to be disabled regardless of age, education or work

experience.

Step Four: If the claimant is able to perform his or her

past relevant work, benefits are denied without further

analysis.

Step Five: Even if the claimant is unable to perform his

or her past relevant work, if other work exists in the

national economy that plaintiff can perform, in view of

his or her age, education, and work experience, benefits

are denied.

Carpenter v. Comm’r of Soc. Sec., 2008 WL 4793424 (E.D. Mich. 2008), citing,

20 C.F.R. §§ 404.1520, 416.920; Heston, 245 F.3d at 534. “If the Commissioner

makes a dispositive finding at any point in the five-step process, the review

terminates.” Colvin, 475 F.3d at 730. 

“Through step four, the claimant bears the burden of proving the existence

and severity of limitations caused by her impairments and the fact that she is

precluded from performing her past relevant work.” Jones, 336 F.3d at 474, cited

with approval in Cruse, 502 F.3d at 540. If the analysis reaches the fifth step

without a finding that the claimant is not disabled, the burden transfers to the

Commissioner. Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006). 

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At the fifth step, the Commissioner is required to show that “other jobs in

significant numbers exist in the national economy that [claimant] could perform

given [his] RFC and considering relevant vocational factors.” Rogers, 486 F.3d at

241; 20 C.F.R. §§ 416.920(a)(4)(v) and (g).

If the Commissioner’s decision is supported by substantial evidence, the

decision must be affirmed even if the court would have decided the matter

differently and even where substantial evidence supports the opposite conclusion. 

McClanahan, 474 F.3d at 833; Mullen, 800 F.2d at 545. In other words, where

substantial evidence supports the ALJ’s decision, it must be upheld.

C. Analysis and Conclusions

In Dennard v. Sec’y of Health & Human Servs., 907 F.2d 598 (6th Cir.

1990), the United States Court of Appeals for the Sixth Circuit held that a prior

administrative determination regarding the exertional level of a claimant’s past

work was binding in subsequent administrative proceedings. Dennard, 907 F.2d

at 600. Dennard “involved a final determination in a prior application being

applied in a subsequent application.” Melton ex rel. Est. of Melton v. Comm’r of

Soc. Sec., 178 F.3d 1295 (6th Cir. 1999) (emphasis added). Dennard “clearly

demonstrate[s] that the principles of res judicata can be applied against the

Commissioner. When the Commissioner has made a final decision concerning a

claimant’s entitlement to benefits, the Commissioner is bound by this

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determination absent changed circumstances.” Drummond v. Comm’r of Soc. Sec.,

126 F.3d 837, 842 (6th Cir.1997). 

Here, plaintiff claims that res judicata estops the second administrative law

judge from reversing the finding of the first administrative law judge that she was

limited to sedentary work. The earlier decision was not, however, a final decision

concerning plaintiff’s entitlement to benefits. Rather, as the Commissioner points

out, the Appeals Council vacated that decision and remanded the matter for further

consideration. The hearings were on the same application, so there was never a

binding prior adjudication of disability. Shope v. Comm’r of Soc. Sec., 2015 WL

3823165, at *4 (S.D. Ohio 2015), citing Melton ex rel. Est. of Melton, 178 F.3d

1295 at *6 (6th Cir. 1999); Wireman v. Comm’r of Soc. Sec., 60 Fed.Appx. 570,

571 (6th Cir. 2003) (“The only final decision in this case is the March 15, 2000,

hearing decision which is now before this court. All other decisions relevant to

Wireman’s social security disability insurance benefits never became final as they

were vacated pursuant to remands for further proceedings. Therefore, Wireman’s

contention that the ALJ was bound by the findings of ALJ Cogan is meritless.”);

Davis v. Callahan, 145 F.3d 1330 (6th Cir. 1998) (“Under Dennard, collateral

estoppel applies to a prior final decision. In this case, the Appeals Council vacated

the 1992 decision. Therefore, the 1992 decision was not a final decision and

Dennard is not applicable.”). Thus, plaintiff’s claim that the second ALJ was

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bound by the RFC as formulated by the first ALJ, absent a change in

circumstances, is without merit. 

Plaintiff next complains that the ALJ failed to mention or give any weight to

the opinions of plaintiff’s treating physician, Dr. Pinson. An ALJ’s failure to

precisely follow the treating physician regulations 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 Fed.Appx. 462, 470 (6th Cir.

2006), quoting Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 547 (6th Cir. 2004). 

Here, as the Commissioner points out, the vocational expert testified that someone

with the limitations described in Dr. Pinson’s opinion could still perform one of

Michigan’s 2,100 office clerk positions. (Tr. 84, 87-88). Therefore, the

undersigned agrees that even if the ALJ explicitly discussed this opinion and

assigned it controlling weight, plaintiff still would have been found not disabled at

step five. (Tr. 26) (ALJ Blatnik relying on the office clerk position in support of

his step five finding); see also C.F.R. §§ 404.1566(b) and 416.966(b) (“Work

exists in the national economy when there is a significant number of jobs (in one

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or more occupations) having requirements which you are able to meet with your

physical or mental abilities and vocational qualifications...[I]f work that you can

do does exist in the national economy, we will determine that you are not

disabled”); Nejat v. Comm’r of Soc. Sec., 359 Fed.Appx. 574, 579 (6th Cir. 2009)

(2,000 jobs is a significant number). Thus, any error in failing to discuss or weight

that opinion was harmless. See Rutherford v. Comm’r of Soc. Sec., 67 Fed.Appx.

333, 334 (6th Cir. 2003) (declining to remand where the error did not affect the

outcome of the case).

The same is true with respect to the ALJ’s treatment of consulting examiner,

Dr. Sachdev’s opinions. The undersigned agrees with the Commissioner’s

observation that whatever ALJ Blatnik did or did not do with respect to Dr.

Sachdev’s opinion is harmless because there is no scenario under which that

opinion could have led to a finding of disability. This is so because ALJ Blatnik

asked the VE whether the limitations in Dr. Sachdev’s opinion would prevent

plaintiff from performing the some of the jobs he relied on in support of his step

five finding (Tr. 85), and the VE testified that they would not. (Tr. 86). Thus, any

error in failing to give particular weight to Dr. Sachdev’s opinion is entirely

harmless.

The undersigned also concludes that plaintiff’s complaints that the ALJ

failed to mention certain exhibits and erred in the step four finding are without

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merit. As the Commissioner points out, the ALJ did, in fact, refer to these exhibits

in his decision. Specifically, while plaintiff notes that exhibits 2F and 3F contain

“complaints of back pain”, the Commissioner notes that the ALJ found that

plaintiff had a severe back condition. (Tr. 20, finding 3) (noting that plaintiff’s

“degenerative disc disease of the lumbar spine” was a severe impairment). Thus,

it is not clear why plaintiff believes the ALJ erred in this regard. Moreover,

plaintiff fails to argue or establish how these exhibits support any work-related

limitations beyond those found in plaintiff’s RFC. Thus, the undersigned finds no

error in the ALJ’s treatment of these exhibits. 

In addition, the ALJ found in plaintiff’s favor at step four. While plaintiff

claims that it is entirely inconsistent for the ALJ to conclude that she could not

perform her past relevant work, which is classified as light, but could perform

other light work, the Commissioner correctly points out that the ALJ did not

conclude that plaintiff could perform a full range of light work. Rather, the ALJ’s

RFC contains many specific restrictions and limits plaintiff to only certain types of

light work. There is no inconsistency between the ALJ’s conclusion that she

could not perform her past relevant work and the conclusion that she could still

perform a limited range of light work, as supported by the testimony of the

vocational expert. For these reasons, no remand is necessary or appropriate.

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IV. RECOMMENDATION

For the reasons set forth above, the undersigned RECOMMENDS that

plaintiff’s motion for summary judgment be DENIED, that defendant’s motion for

summary judgment be GRANTED, and that the findings of the Commissioner be

AFFIRMED.

The parties to this action may object to and seek review of this Report and

Recommendation, but are required to file any objections within 14 days of service,

as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule

72.1(d). 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. 1981). Filing objections that 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. 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 Cir. 1987). Pursuant to Local Rule

72.1(d)(2), any objections must be served on this Magistrate Judge.

Any objections must be labeled as “Objection No. 1,” “Objection No. 2,”

etc. Any objection must recite precisely the provision of this Report and

Recommendation to which it pertains. Not later than 14 days after service of an

objection, the opposing party may file a concise response proportionate to the

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objections in length and complexity. Fed.R.Civ.P. 72(b)(2), Local Rule 72.1(d). 

The response must specifically address each issue raised in the objections, in the

same order, and labeled as “Response to Objection No. 1,” “Response to Objection

No. 2,” etc. If the Court determines that any objections are without merit, it may

rule without awaiting the response.

Date: July 15, 2015 s/Michael Hluchaniuk

Michael Hluchaniuk

United States Magistrate Judge

CERTIFICATE OF SERVICE

I certify that on July 15, 2015 I electronically filed the foregoing paper with

the Clerk of the Court using the ECF system, which will send electronic

notification to all counsel of record.

s/Tammy Hallwood

Case Manager

(810) 341-7887

tammy_hallwood@mied.uscourts.gov

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