UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ALICIA ANN WILLIAMS, No. 14-14101

Plaintiff, District Judge Nancy G. Edmunds

v. Magistrate Judge R. Steven Whalen

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

 /

REPORT AND RECOMMENDATION

 Plaintiff Alicia Ann Williams brings this action under 42 U.S.C. §405(g),

challenging a final decision of Defendant Commissioner denying her application for

Supplemental Security Income (“SSI”) 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 that Defendant’s motion [Doc. #20] be GRANTED and that Plaintiff’s

motion [Doc. #16] be DENIED.

I. PROCEDURAL HISTORY

On November 7, 2011, Plaintiff filed an application for SSI benefits, alleging

disability as of April 11, 1984. Following initial denial of the claim, the Plaintiff

requested a hearing, which was conducted on May 8, 2013 before Administrative Law

Judge (“ALJ”) J. Thomas McGovern (Tr. 72-96). The Plaintiff, represented by attorney

Peter E. Bec, testified, as did Vocational Expert (“VE”) Don K. Harrison. On June 27,

2013, the ALJ found Plaintiff not disabled within the meaning of the Social Security Act

(Tr. 56-67). On August 27, 2014, the Appeals Council denied review (Tr. 1-4). The

-1-

2:14-cv-14101-NGE-RSW Doc # 24 Filed 03/08/16 Pg 1 of 20 Pg ID 786
Plaintiff filed for judicial review of the Commissioner’s final decision on October 24,

2014. 

II. FACTS

The Plaintiff, born April 11, 1984, was 29 years old at the time of the

administrative hearing (Tr. 173). She completed 11 grade (Tr. 217). She had no prior th

earnings (Tr. 182). She alleges disability resulting from a speech impairment, brain

tumors, seizures, kidney stones, lupus, fractured hip/tail bone, Attention Deficit Disorder

(“ADD”), depression/bipolar disorder, and anxiety (Tr. 216). 

A. Plaintiff’s Testimony

At the May 8, 2013 hearing, the Plaintiff testified as follows:

The Plaintiff lived with her brother (Tr. 77). Her current income was limited to

food stamps (Tr. 77). She had not worked since 1998 but had been looking for work

since (Tr. 78). She experienced problems sitting and walking due to a fractured hip (Tr.

78). She was unable to sit for more than two-and-a-half hours at one time (Tr. 78). She

coped by back pain caused by prolonged sitting by lying on a hard surface, ice packs, and

physical therapy (Tr. 79). She attributed her back pain to kidney stones (Tr. 79). She had

not yet followed through an a recommendation to see an orthopedic surgeon (Tr. 80). 

The Plaintiff experienced ongoing depression and was currently seeing a therapist

twice a week (Tr. 80). Symptoms of depression included frequent crying jags (Tr. 81-82). 

She looked for jobs by applying online (Tr. 82). Her online activity included “social

media” which she was able to access through her cell phone (Tr. 82-83). She currently

took Pamelor for depression and Xanax (on an as-needed basis) for anxiety (Tr. 83). She

experienced daily panic attacks characterized by shortness of breath and the desire to

-2-

2:14-cv-14101-NGE-RSW Doc # 24 Filed 03/08/16 Pg 2 of 20 Pg ID 787
“isolate” herself (Tr. 84). The panic attacks lasted between 10 minutes and two to three

hours (Tr. 84). Her ability to work was also affected by the condition of Attention Deficit

Hyperactivity Disorder (“ADHD”) for which she took Ritalin (Tr. 85). Symptoms of

ADHD included poor organizational skills and distraction (Tr. 86). 

The Plaintiff was independent in personal care and dressing tasks, but did not

perform any household chores besides picking up after herself and preparing simple

meals (Tr. 86-87). She read “self-help” books recommended by her counselors and

enjoyed playing online games with her 13-year-old daughter (Tr. 87). Her daughter lived

with the Plaintiff’s parents but the Plaintiff typically spent three to four hours with her

every day (Tr. 88). The Plaintiff belonged to the PTA but did not attend school activities

(Tr. 88). The Plaintiff had a valid driver’s license and was able to drive, but did not have

a car (Tr. 88-89). She shopped for groceries with the help of a family member due to “the

whole atmosphere” at a grocery store (Tr. 89). The Plaintiff’s physical condition had not

been “the same” since she fell off a bungalow roof in 2006 (Tr. 90).

B. The Medical Records

1. The Treating Records1

June, 2007 psychological intake records note a GAF of 45 due to bipolar disorder 2

(Tr. 342-346). April, 2008 psychological intake notes state a diagnosis of bipolar

disorder (Tr. 277). August, 2008 records state that she was not compliant with directions

for psychotropic medication (Tr. 375). An October, 2008 medication review states that

Records pertaining to conditions unrelated to the disability claim have been 1

reviewed in full but are omitted from the current discussion. 

A GAF score of 41 to 50 indicates ‘[s]erious symptoms ... [or] serious impairment 2

in social, occupational, or school functioning,’ such as inability to keep a job. Diagnostic

and Statistical Manual of Mental Disorders—Text Revision (“DSM–IV–TR”), 34 (4th ed.

2000).

-3-

2:14-cv-14101-NGE-RSW Doc # 24 Filed 03/08/16 Pg 3 of 20 Pg ID 788
her current medications were not helpful (Tr. 338). November, 2008 records state that

her psychological condition had stabilized (Tr. 273). In April, 2009, the Plaintiff reported

an improvement in mood swings but noted that she experienced “extreme anxiety” (Tr.

272, 337). A November, 2009 EEG taken in response to the Plaintiff’s report of “spells”

was unremarkable (Tr. 318). A physical examination showed full strength in all

extremities (Tr. 305). 

January, 2010 treating records note a diagnosis of sinus problems (Tr. 296). A

February, 2010 CT of the abdomen and pelvis showed a kidney stone (Tr. 320). June,

2010 treating notes state that “copious salt intake” was recommended for Plaintiff’s

report of dizziness (Tr. 283). In September, 2010, the Plaintiff claimed that she was

unable to take psychotropic medication “due to Lupus” (Tr. 334). She appeared wellgroomed with appropriate behavior and good short-term and long-term memory (Tr. 332). 

She was assigned a GAF of 55 (Tr. 334). October, 2010 treating records note a normal 3

gait and station (Tr. 279). A December, 2010 MRI of the brain taken in response to the

Plaintiff’s report of headaches was unremarkable (Tr. 322). 

In January, 2011, the Plaintiff quit therapy because she was “dissatisfied with [her]

therapist” (Tr. 329). The same month, an echogram of the kidneys showed a possible

lipoma on the left kidney but otherwise unremarkable results (Tr. 347). Also in January,

2011, J. Shavell, D.O. noted the Plaintiff’s report of seizures and “possible collagen

disease” (Tr. 354). He noted that the Plaintiff’s report of “sharp, shooting pains in her

arms” were “not terribly convincing” (Tr. 354). He noted that the physical examination

was otherwise normal (Tr. 354). The same month, Julia Bemer, M.D. noted the

A GAF score of 51 to 60 indicates moderate symptoms OR moderate difficulty in 3

social, occupational, or school functioning. DSM–IV–TR at 34.

-4-

2:14-cv-14101-NGE-RSW Doc # 24 Filed 03/08/16 Pg 4 of 20 Pg ID 789
Plaintiff’s report of back pain radiating into the lower extremities (Tr. 416-417). A

physical examination was “unremarkable” (Tr. 416). Dr. Bemer noted “no unusual

anxiety or evidence of depression (Tr. 417). She advised the Plaintiff to Motrin as needed

(Tr. 417). 

In April, 2011 Richard Grucz, M.D. noted the Plaintiff’s report of intermittent

back pain (Tr. 418-419). His physical examination was negative for abnormalities (Tr.

419). The Plaintiff failed to show up for an April, 2011 neurology appointment (Tr. 360). 

Dr. Grucz’s July, 2011 records note Plaintiff’s denial of radiating pain (Tr. 420). 

Also in July, 2011, the Plaintiff began physical therapy (Tr. 391). Plaintiff

reported that she was responsible for cooking, laundry, cleaning, and shopping chores (Tr.

393). She reported that her activities included “running, jogging, cardio, yoga, stretches,

[and] meditation” (Tr. 393). She reported exercising three to four times a week (Tr. 393). 

She reported that she was prevented from sitting for more than one hour but could walk

“any distance” (Tr. 397). Her rehabilitation potential was deemed excellent (Tr. 402). 

The following week, Plaintiff reported increased pain and less flexibility (Tr. 404). In

August, 2011, Plaintiff sought emergency treatment for an STD, reporting that it had

“probably . . . turned into pelvic inflammatory disease” (Tr. 366-367). She was referred

for an outpatient pelvic exam (Tr. 371). Dr. Grucz’s records state that Plaintiff reported

level “2" back pain on a scale of 1 to 10 (Tr. 422). The following month, a kidney stone

was fragmented by shockwave lithotripsy (Tr. 379, 388). Physical therapy discharge

records note a reduction in pain (Tr. 407-409). Plaintiff reported difficulty sitting for

more than four to six hours at a time (Tr. 409). 

October, 2011 treating records note the Plaintiff’s report of continuing headaches

(Tr. 357-358, 424-425). 

-5-

2:14-cv-14101-NGE-RSW Doc # 24 Filed 03/08/16 Pg 5 of 20 Pg ID 790
A January, 2012 “biopsychosocial assessment” noted the Plaintiff’s report that she

had been in an abusive relationship and had been obliged to file police reports (Tr. 439). 

She reported “chronic health issues including epileptic seizures” (Tr. 439). Assessment

records note “pressured speech and some stuttering” (Tr. 443). The Plaintiff reported that

she was being supported by her mother (Tr. 448). She reported that she did “various

volunteer work” including “advertisement and daycare” (Tr. 448). Psychiatric treating

records from the following month note the Plaintiff’s claims of seizures, lupus, and a

brain tumor (Tr. 483). She was assigned a GAF of 48 (Tr. 485). August, 2012 therapy

records note the Plaintiff’s report of depression and anxiety (Tr. 532). The Plaintiff was

encouraged to “think about supported employment to start” (Tr. 604). Later the same

month, the Plaintiff reported that she and her daughter had been cleaning after a fire at

their residence (Tr. 597, 599). She reported that she wanted to “get some errands done”

and have “some social time/shopping time” (Tr. 597). Her therapist noted “significant

speech issues/stuttering” and had a “difficult time trusting others” (Tr. 597). 

In September, 2012, Carlos Godoy, M.D. found that due to a “somatic

dysfunction” of the pelvis and back, the Plaintiff was “medically unable to use public

transportation” (Tr. 433). November, 2012 psychiatric and counseling records note an

improved affect (Tr. 464, 569). In December, 2012, the Plaintiff reported a break-in by a

former boyfriend, but noted that she felt “okay” and that her psychological condition had

“stabilized” with therapy (Tr. 643). 

February, 2013 therapy notes state that the Plaintiff’s mental status was

“improving” (Tr. 634). Therapy notes from later the same month state that the Plaintiff

requested a new psychiatrist after she was refused ADHD medication because she was

not in school (Tr. 622). A March, 2013 medication review noted only “mild” anxiety and

-6-

2:14-cv-14101-NGE-RSW Doc # 24 Filed 03/08/16 Pg 6 of 20 Pg ID 791
“mild” memory and language problems (Tr. 451). The following month, the Plaintiff

reported good results from a medication change (Tr. 453). 

2. The Non-Treating Records 

On December 10, 2006, R. Hasan, M.D. performed a consultive psychological

examination on behalf of the SSA, noting the Plaintiff’s report of lifelong behavioral

problems including suicidal ideation, mood swings, and sleep disturbances (Tr. 267). Dr.

Hasan noted that the Plaintiff had a seven-year-old daughter but had “never held a stable

job” (Tr. 268). He noted that Plaintiff denied legal problems (Tr. 268). 

Dr. Hasan observed “short term memory problems” but that the Plaintiff was able

to take care of her personal needs (Tr. 268). He observed that the Plaintiff “stuttere[d] a

lot,” noting her report of a speech impairment since childhood (Tr. 268). Dr. Hasan

found the presence of “bipolar, ADHD, speech impairment, stuttering, [and] learning

disability” (Tr. 270). He assigned the Plaintiff a GAF of 50 to 55 and found that she

could manage her benefit funds (Tr. 270). 

In February, 2012, Atul C. Shah, M.D. performed a consultative psychiatric

examination of the Plaintiff on behalf of the SSA, noting the Plaintiff’s stutter (Tr. 427). 

The Plaintiff reported anxiety attacks (Tr. 427) Dr. Shah observed that the Plaintiff had “a

snappy and frustrated mood and gets angry and upset very easily but no mood swings

appreciated” (Tr. 427). He noted the Plaintiff’s report that she had applied for benefits

twice before the current application (Tr. 428). He noted the Plaintiff’s report that she did

“nothing” but stay in bed, “make small meals,” and watched television (Tr. 428). Dr.

Shah found that the Plaintiff had “moderate functional impairment of occupational

activity” due to depression, a panic disorder, and ADHD which would interfere with the

ability to interact with coworkers or the public (Tr. 429). He assigned her a GAF of 60

-7-

2:14-cv-14101-NGE-RSW Doc # 24 Filed 03/08/16 Pg 7 of 20 Pg ID 792
(Tr. 429). Later the same month, Chokkanathapuram V. Krishnamoorthy, M.D.,

performed a non-examining review of the treating and consultative records on behalf of

the SSA, finding that Plaintiff had mild limitation in activities of daily living and

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

118). 

3. Records Submitted After the June 27, 2013 Administrative Decision

An August, 1998 discharge summary by Aurora Healthcare state that the Plaintiff,

14, was admitted for psychiatric hospitalization after throwing furniture around the house

and stating that she wanted to kill herself after her breakup with a boyfriend (Tr. 646). 

Treating notes state that the Plaintiff’s mother received disability benefits (Tr. 647, 651). 

Plaintiff’s actions were deemed “situational reaction” to the fight with her boyfriend (Tr.

652). She was placed on a suicide watch (Tr. 648, 650). She was discharged against

medical advice by her mother (Tr. 648). 

In September, 2012, Shlomo Mandel, M.D. examined the Plaintiff in response to

her report of back pain since a 2006 accident (Tr. 658). Dr. Mandel noted that a physical

examination and imaging studies were unremarkable (Tr. 656-660). He recommended

physical therapy (Tr. 658). In December, 2012, Dr. Mandel renewed his recommendation

for physical therapy (Tr. 663). May, 2013 therapy notes state that the Plaintiff had been

denied SSI six times in the past (Tr. 686). June 10, 2013 therapy notes state that Plaintiff

contemplating getting a job (Tr. 674). A June 27, 2013 medication review states that the

Plaintiff had “moderate” speech problems, but only mild anxiety (Tr. 665). 

On October 14, 2013, Dr. Godoy stated that the Plaintiff was unable to work due to

ADD, anxiety, chronic back pain, a speech impairment, and a pelvic fracture (Tr. 691). 

-8-

2:14-cv-14101-NGE-RSW Doc # 24 Filed 03/08/16 Pg 8 of 20 Pg ID 793
C. The Vocational Testimony

The ALJ asked VE Harrison to assume a hypothetical individual of Plaintiff’s age,

education, and lack of work experience with the ability to perform exertionally light4

work with the following limitations: 

[S]it for two hours, stand for six hours but would require the ability to sit

and stand at will The individual could perform postural activities

occasionally but there would be no climbing of ropes, ladders, scaffolding,

[etc]. The individual should not work around unprotected heights or open

hazards, or the individual would be limited to simple, unskilled work

activities. these would be work activities in a low stress work environment

meaning non-production. Only occasional work decisions. And minimal

changes in work settings with limited contact with the general public and

also limited contact with co-employees being only brief and superficial with

them. With that, would there be jobs at the [exertionally] light level . . .?

(Tr. 92-93). 

The VE responded that the individual could perform the light, unskilled work of a

hand packer (1,200 jobs in the regional economy) and linen sorter (1,200) (Tr. 93). The

VE stated that if the above-described individual were off task for 80 percent of the

workday, or, were required to miss up to two days of work each month due to her

impairments, all work would be precluded (Tr. 94). The VE finished by stating that his

testimony was consistent with the information found in the Dictionary of Occupational

Titles (“DOT”) except for his findings regarding the sit/stand option which was based on

his own professional experience (Tr. 94). 

4

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). 

-9-

2:14-cv-14101-NGE-RSW Doc # 24 Filed 03/08/16 Pg 9 of 20 Pg ID 794
D. The ALJ’s Decision

ALJ McGovern found that the Plaintiff had not engaged in substantial gainful

activity since the alleged onset of disability date of November 7, 2011 (Tr. 58). The ALJ

found next that the Plaintiff experienced the severe impairments of “chronic headaches,

somatic dysfunction of the pelvis, low back pain, bipolar disorder, major depressive

disorder, [ADHD] [and] marijuana abuse, but that none of the impairments met or

medically equaled an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr.

58). The ALJ found that the condition of nephrolithiasis was non-severe (Tr. 58). The

ALJ found that the Plaintiff experienced moderate limitation in activities of daily living,

social functioning, and concentration, persistence, or pace (Tr. 59). 

The ALJ determined that the Plaintiff had the Residual Functional Capacity

(“RFC”) for exertionally light work with the following additional limitations:

The claimant can stand and/or walk (with normal breaks) for a total of 2

hours in an 8-hour workday; the claimant requires a sit/stand option at the

workstation while remaining at the workstation (option means that the

individual can sit/stand at will while performing their assigned duties);

never climb ladders, ropes or scaffolds; occasionally climb ramps or stairs;

and can occasionally climb, balance, stoop, crouch, kneel, and crawl; should

avoid unprotected heights and open hazards, work is limited to simple,

routine and repetitive tasks employed in a low stress job, defined as having

only occasional decision making required and only occasional changes in

the work setting; the claimant should have limited contact with the public

and coworkers (Tr. 60). 

Citing the VE’s testimony the ALJ found that the Plaintiff could perform the jobs of

electrical accessories assembler, hand packer, or linen sorter (Tr. 66, 93). The ALJ found

that while the Plaintiff alleged disability as of the day of her birth, the proper period of

consideration was November 7, 2011 through June 27, 2013 (Tr. 56). 

The ALJ rejected the Plaintiff’s allegations of mental and physical limitation. He

cited June, 2010 treating records stating that the Plaintiff “vehemently” denied symptoms

-10-

2:14-cv-14101-NGE-RSW Doc # 24 Filed 03/08/16 Pg 10 of 20 Pg ID 795
of depression (Tr. 61). The ALJ observed that January, 2011 therapy discharge records

note moderate psychological symptoms (Tr. 62). He cited Dr. Gruez’s August, 2011 and

October, 2011 records stating that the back condition was improving (Tr. 62). The ALJ

noted that the Plaintiff’s treatment for the back condition was relieved by “exercise,

massage, movement, and physical therapy” (Tr. 62). The ALJ observed that the claims of

physical limitation were also undermined by the Plaintiff’s failure to follow through with

specialized treatment (Tr. 62-63). 

The ALJ adopted Dr. Shah’s February, 2012 consultative finding that the Plaintiff

experienced moderate psychological symptoms but rejected his findings to the extent that

they pertained to the Plaintiff’s vocational limitations (Tr. 63). The ALJ noted that the

Plaintiff failed to show up to numerous scheduled therapy sessions in 2012 and 2013 and

reported in April, 2013 that she felt “very good” and that therapy had changed her life for

the better (Tr. 64). 

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

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

-11-

2:14-cv-14101-NGE-RSW Doc # 24 Filed 03/08/16 Pg 11 of 20 Pg ID 796
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

 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.” 

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

V. ANALYSIS

At the outset, I note that the Plaintiff is unrepresented by counsel. Accordingly, her

pro se motion for summary judgment will not be held to the standard of a practicing attorney,

but will be given a liberal construction. See Martin v. Overton, 391 F.3d 710, 712 (6 Cir. th

2004), citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Herron v. Harrison, 203 F.3d

-12-

2:14-cv-14101-NGE-RSW Doc # 24 Filed 03/08/16 Pg 12 of 20 Pg ID 797
410, 414 (6 Cir. 2000) (pro se pleadings are held to “an especially liberal standard”); th

Fed.R.Civ.P. 8(e) (“Pleadings must be construed so as to do justice”). That said, the

Plaintiff’s motion for summary judgment, written largely in narrative form, may be fairly

read to encompass the following arguments: (1) the ALJ omitted severe impairments at Step

Two; (2) the ALJ erred in finding that the Plaintiff’s conditions did not meet or equal a listed

impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1; (3) the ALJ’s finding of nondisability was not supported by substantial evidence; and (4) the Plaintiff is entitled to a

remand under Sentence Six of 42 U.S.C. § 405(g).

A. Step Two-Severe Impairments

At Step Two, the ALJ found all ofthe Plaintiff’s claimed impairments “severe” except

for kidney stones (nephrolithiasis), which he explicitly found non-severe, brain tumors,

lupus, and speech impairment.

“[T]he second stage severity inquiry, properly interpreted, serves the goal of

administrative efficiency by allowing the Secretary to screen out totally groundless claims.” 

Farris v. Secretary of HHS , 773 F.2d 85, 89 (6th Cir. 1985). An impairment can be

considered “not severe . . . only if the impairment is a ‘slight abnormality which has such a

minimal effect on the individual that it would not be expected to interfere with the

individual's ability to work, irrespective of age, education and work experience.’" Id., 773

F.2d at 90 (citing Brady v. Heckler, 724 F.2d 914, 920 (11th Cir.1984)). 20 CFR §

416.921(a) defines a non-severe impairment as one that does not “significantly limit [the] 

physical or mental ability to do basic work activities.” The same regulation defines “basic

work activities” as “understanding, carrying out, and remembering simple instructions; use

of judgment; responding appropriately to supervision, co-workers and usual work situations;

and dealing with changes in a routine work setting." Id. 

-13-

2:14-cv-14101-NGE-RSW Doc # 24 Filed 03/08/16 Pg 13 of 20 Pg ID 798
First, there is nothing in the medical records showing that the Plaintiff was ever

diagnosed with or treated for lupus, a chronic autoimmune disease, much less that the

condition significantly limited her ability to do basic work activities. Likewise, there is no

evidence that Plaintiff suffered from a “brain tumor,” as that condition is generally and

clinically understood. A December, 2010 MRI of the brain was unremarkable (Tr. 322).

Notes fromPlaintiff’s neurological examination state, “Attention and concentration are good.

Speech is fluent with no dysarthria and no aphasia. Recent and remote memory function is

intact.” (Tr. 284). Neither the MRI nor an EEG proved “any clinical explanation” for her

claimed presyncopal episodes (Tr. 297). Plaintiff was diagnosed with a non-symptomatic

pineal cyst, and was referred to an ear-nose-and-throat specialist (Tr. 283-84, 297). There is

no evidence that the pineal cyst resulted in any work-preclusive limitations. The ALJ did not

err in omitting lupus or “brain tumor” at Step Two.

In terms of a speech impediment, there are indications in the record that at times,

Plaintiff presented with “pressured speech and some stuttering” (Tr. 443), and that at a

consultative psychological exam she “stutter[ed] a lot” (Tr. 270). On the other hand, treating

notes from June of 2010 indicate that Plaintiff’s “[s]peech is fluent with no dysarthria and

no aphasia” (Tr. 284). In any event, apart fromthe intermittent observations that the Plaintiff

stuttered, there is no evidence that she had any significant work-related limitations as a

result.5

Finally, the ALJ committed no error in finding that the Plaintiff’s previous condition

of kidney stones was non-severe. The Plaintiff underwent shockwave lithotripsy for a left

 Moreover, the limitations that the ALJ established in the RFC–low stress job, 5

limited contact with the public and coworkers–would reasonably account for the

Plaintiff’s occasional stuttering or measured speech, conditions that would have no

significant effect on the ALJ’s job findings of electrical accessories assembler, hand

packer, or linen sorter.

-14-

2:14-cv-14101-NGE-RSW Doc # 24 Filed 03/08/16 Pg 14 of 20 Pg ID 799
renal stone on September 19, 2011, with excellent results and no complications (Tr. 379).

The medical records contain no subsequent reference to any problem with kidney stones.

B. Step Three–Listings

At page 4 of her motion, the Plaintiff sets forth a number of Listings, which she

characterizes as “legal definitions that support the case.” The Plaintiff has the burden at Step

Three of proving that she meets a Listing. Bowen v. Yuckert, 482 U.S. 137, 140 (1987).

First, the ALJ specifically considered Listings 1.00 (musculoskeletal systems); 11.00

(neurological disorders); and 12.00 (mental disorders). The ALJ cited the findings of Dr.

Flores and Dr. Krishnamoorthy (the consultative physicians) that the Plaintiff’s conditions

did not meet any listings (Tr. 58). In terms of the Plaintiff’s claimed mental impairments,

the ALJ considered the criteria of Listings 12.04 and 12.09. Noting that a mental impairment

must result in at least two marked restrictions in the areas of activities of daily living,

maintaining social functioning, maintaining concentration, persistence, or pace, or repeated

episodes of decompensation, of extended duration, the ALJ undertook a detailed discussion

of each sphere. He thoroughly described the record evidence showing that at most, the

Plaintiff had moderate difficulties in these areas, and that she had experienced no repeated

episodes of decompensation, each of extended duration (Tr. 58-60). 

Nor do Plaintiff’s alleged conditions meet or equal the severity of the other Listings

that the Plaintiff sets forth in her brief. As discussed above, there is no evidence that she

suffers from or has any limitations as a result of lupus or brain tumors. Her “speech

impairment” (stuttering) is non-severe at Step Two, and consequently neither meets nor

equals any Listing at Step Three. The record is bereft of any significant objective evidence

-15-

2:14-cv-14101-NGE-RSW Doc # 24 Filed 03/08/16 Pg 15 of 20 Pg ID 800
that Plaintiff suffers limitations as the result of a current fracture (Listing 1.06) or digestive 6

disorders (Listing 5.01).

In short, the ALJ’s findings and conclusions that the Plaintiff was not entitled to a

finding of disability at Step Three were well within the standard of substantial evidence.

C. Substantial Evidence

“To meet the burden of showing that [Plaintiff] could perform work that is available

in the national economy, the Commissioner must make a finding ‘supported by substantial

evidence that [Plaintiff] has the vocational qualifications to performspecific jobs.’” Howard

v. Commissioner of Social Security, 276 F.3d 235, 238 (6 Cir. 2002)(citations omitted). th

Considering Plaintiff’s RFC, age, education, lack of past work experience, and the testimony

of the VE, the ALJ found that Plaintiff had the ability to perform other work in the economy,

specifically electrical assembly, hand packer, and sorting or inspecting jobs, such as linens. 

The RFC was reasonably restrictive–including a sit/stand option, a limitation of simple,

routine tasks in a low-stress job, and limited contact with the public and coworkers–and was

based on a detailed review of the objective medical evidence and fair consideration of the

Plaintiff’s objectively substantiated impairments (Tr. 60-65). See Statement of Facts, supra.

I appreciate that the Plaintiff disagrees with the ALJ’s conclusions. However, this

Court’s review under the “substantial evidence” standard is highly deferential, and it is not

our function to re-weigh the evidence or make our own, independent (de novo) disability

determination. Furthermore, the Commissioner’s findings are not subject to reversal merely

because substantial evidence exists in the record to support a different conclusion. Mullen

v. Bowen, 800 F.2d 535, 545 (6 Cir. 1986)(en banc). In this case, both the RFC and the th

 In her motion, the Plaintiff notes only TMJ of the jaw and a previous hip fracture 6

at age 22. Plaintiff’s Brief, p.4. 

-16-

2:14-cv-14101-NGE-RSW Doc # 24 Filed 03/08/16 Pg 16 of 20 Pg ID 801
ALJ’s ultimate non-disability decision are supported by substantial evidence.

D. Sentence Six Material

Based on the record, the Plaintiff’s argument for a remand can be construed to

reference the evidence submitted after the ALJ’s June 27, 2013 administrative opinion (Tr.

644-692). 

7

Under the sixth sentence of 42 U.S.C. § 405(g), records submitted after the

administrative decision are subject to a narrow review by the reviewing court. The reviewing

court cannot grant summary judgment based on the new material, but if warranted, remands

for further review. Melkonyan v. Sullivan, 501 U.S. 89, 97–99, 111 S.Ct. 2157, 2163, 115

L.Ed.2d 78 (1991). The court retains jurisdiction in a Sentence Six remand, and enters final

judgment only “after post-remand 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). To establish grounds for a Sentence Six remand, the claimant must show that

the “new evidence is material and that there is good cause for the failure to incorporate such

evidence into the record in a prior proceeding ... ” § 405(g); see Cotton v. Sullivan, 2 F.3d

692, 696 (6th Cir.1993). 

Assuming that the Plaintiff could show “good cause” for the tardy submission, she

cannot show that the newer evidence is “material.” 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 disability claim if presented with

the new evidence.” Sizemore v. Secretary of Health & Human Services, 865 F.2d 709, 711

(6th Cir.1988). The 1998 records stating that the Plaintiff threatened suicide after a fight

 A number of other records documenting the Plaintiff’s treatment after the 7

administrative opinion were not made part of the administrative record (Tr. 9-49). While

they have been reviewed in full, they are omitted from the present discussion. 

-17-

2:14-cv-14101-NGE-RSW Doc # 24 Filed 03/08/16 Pg 17 of 20 Pg ID 802
with her boyfriend at the age of 14 (deemed a “situational reaction” by a treater) does not

shed light on her psychological condition as of the November, 2011 SSI application date (Tr.

56, 67, 173, 646-650). While Dr. Mandel’s September and December, 2012 treating records

were created within the relevant period, they reinforce, rather than undermine the ALJ’s

finding that the Plaintiff could performexertionallylight work (Tr. 656-663). Likewise, May

and June, 2013 therapy records stating that Plaintiff contemplated getting a job and obtained

good results from psychotropic medication would not be likely to change the ALJ’s decision

(Tr. 665-686).

For differing reasons, Dr. Godoy’s October 14, 2013 disability opinion (Tr. 691) does

not provide grounds for remand. The opinion post-dates the administrative opinion byalmost

four months. Dr. Godoy’s opinion cannot be construed to state that the Plaintiff was disabled

on or before the June 27, 2013. Where a claimant's condition has worsened since the

administrative decision, the proper remedy is to initiate a new claim for benefits rather than

seek a Sentence Six remand See Sizemore v. Sec'y of Health & Human Servs., 825 F.2d 709,

712 (6th Cir. 1988). 

8

In recommending that the Commissioner’s denial of benefits be affirmed, I am not

suggesting that the Plaintiff has no limitations, and it is certainly not my intent to trivialize

her documented medical problems. However, the ALJ’s determination that the Plaintiffis not

disabled from all gainful employment is within the “zone of choice” accorded to the factfinder at the administrative hearing level and should not be disturbed by this Court. Mullen

v. Bowen, supra. 

Even assuming that Dr. Godoy’s opinion were construed to refer to the Plaintiff’s 8

condition on or before June 27, 2013, Plaintiff cannot show good cause for failing to

submit it before the administrative decision. 

-18-

2:14-cv-14101-NGE-RSW Doc # 24 Filed 03/08/16 Pg 18 of 20 Pg ID 803
VI. CONCLUSION

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

[Docket #20] be GRANTED and that Plaintiff’s Motion for Summary Judgment [Docket

#16] be DENIED.

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

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: March 8, 2016

-19-

2:14-cv-14101-NGE-RSW Doc # 24 Filed 03/08/16 Pg 19 of 20 Pg ID 804
CERTIFICATE OF SERVICE

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

March 8, 2016, electronically and/or by U.S. mail.

s/Carolyn M. Ciesla 

Case Manager to the

Honorable R. Steven Whalen

-20-

2:14-cv-14101-NGE-RSW Doc # 24 Filed 03/08/16 Pg 20 of 20 Pg ID 805