UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

 

CHRISTINA LYNN KIKOLSKI, 

 Plaintiff, CIVIL ACTION NO. 14-cv-14700 

 v. DISTRICT JUDGE DAVID M. LAWSON 

COMMISSIONER OF MAGISTRATE JUDGE MONA K. MAJZOUB

SOCIAL SECURITY, 

 

 Defendant. 

_______________________________/ 

 

REPORT AND RECOMMENDATION 

Plaintiff Christina Lynn Kikolski seeks judicial review of Defendant Commissioner of 

Social Security’s determination that she is not entitled to social security benefits for her physical 

and mental impairments under 42 U.S.C. § 405(g). (Docket no. 1.) Before the Court are 

Plaintiff’s Motion for Summary Judgment (docket no. 11) and Defendant’s Motion for Summary 

Judgment (docket no. 18). The motions have been referred to the undersigned for a Report and 

Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). (Docket no. 2.) The Court has 

reviewed the pleadings, dispenses with a hearing pursuant to Eastern District of Michigan Local 

Rule 7.1(f)(2), and issues this Report and Recommendation. 

I. RECOMMENDATION

 For the reasons that follow, it is recommended that Plaintiff’s Motion for Summary 

Judgment (docket no. 11) be DENIED and Defendant’s Motion for Summary Judgment (docket 

no. 18) be GRANTED. 

2:14-cv-14700-DML-MKM Doc # 19 Filed 01/27/16 Pg 1 of 20 Pg ID 885
2

II. PROCEDURAL HISTORY

 Plaintiff filed applications for child’s insurance benefits and supplemental security 

income in January 2010; Administrative Law Judge (ALJ) JoErin O’Leary issued an unfavorable 

decision with regard to those applications on August 12, 2011. (TR 66-82.) Plaintiff then filed 

the instant applications for child’s insurance benefits and supplemental security income with 

protective filing dates of January 23, 2012 and February 29, 2012, respectively, alleging that she 

has been disabled since August 13, 2011, due to posttraumatic stress disorder (PTSD), valvular 

heart disease, fibromyalgia, headaches, anxiety, panic attacks, depression, and high blood 

pressure. (TR 116-17, 208-15, 225, 229.) The Social Security Administration denied Plaintiff’s 

claims on June 26, 2012, and Plaintiff requested a de novo hearing. (TR 83-117, 139.) On 

August 1, 2013, Plaintiff appeared with a representative and testified at the hearing before ALJ 

Kim L. Bright. (TR 30-65.) In a September 4, 2013 decision, the ALJ found that Plaintiff was 

not entitled to benefits because she was capable of performing a significant number of jobs in the 

national economy. (TR 12-24.) The Appeals Council declined to review the ALJ’s decision (TR 

1-5), and Plaintiff commenced this action for judicial review. The parties then filed cross 

motions for summary judgment, which are currently before the Court. 

III. HEARING TESTIMONY AND MEDICAL EVIDENCE

Plaintiff (docket no. 12 at 2-14), Defendant (docket no. 18 at 5-13), and the ALJ (TR 18-

24) each set out a detailed, factual recitation with regard to Plaintiff’s medical record and the 

hearing testimony. Having conducted an independent review of Plaintiff’s medical record and 

the hearing transcript, the undersigned finds that there are no material inconsistencies among 

these recitations of the record. Therefore, the undersigned will incorporate these factual 

2:14-cv-14700-DML-MKM Doc # 19 Filed 01/27/16 Pg 2 of 20 Pg ID 886
3

recitations by reference. Additionally, the undersigned will include comments and citations to 

the record as necessary throughout this Report and Recommendation. 

IV. ADMINISTRATIVE LAW JUDGE’S DETERMINATION

 The ALJ found that Plaintiff had not engaged in substantial gainful activity since the 

alleged onset date of August 13, 2011, and that Plaintiff suffered from the following severe 

impairments: major depressive disorder, generalized anxiety disorder, attention deficit 

hyperactivity disorder (ADHD), postural orthostatic tachycardia syndrome (POTS), 

fibromyalgia, and migraine headaches. (TR 15.) Next, the ALJ found that Plaintiff’s 

impairments did not meet or medically equal the severity of an impairment listed in 20 C.F.R. 

Part 404, Subpart P, Appendix 1. (TR 16-17.) The ALJ then found that Plaintiff had the 

following residual functional capacity (RFC): 

[C]laimant has the residual functional capacity to perform light work as defined in 

20 CFR 404.1567(b) and 416.967(b) except: she may never climb ladders, ropes, 

or scaffolds; no exposure to occupational hazards such as dangerous machinery or 

unprotected heights; and must avoid extremes of either cold or heat. She retains 

the ability to perform simple work; no restrictions on social contact; cannot 

perform work that is completed at a production rate, but rather, she can perform 

goal-oriented work that is not on a production line; perform work best in a low 

stress work setting, which is defined as no more than occasional decision making, 

nor more than occasional changes in work setting and no more than occasional 

use of independent judgment. 

(TR 17-23.) Subsequently, in reliance on the VE’s testimony, the ALJ determined that Plaintiff 

was capable of performing a significant number of jobs in the national economy. (TR 23-24.) 

Therefore, the ALJ found that Plaintiff was not disabled under the Social Security Act at any 

time from August 13, 2011, through the date of the decision. (TR 13, 24.) 

2:14-cv-14700-DML-MKM Doc # 19 Filed 01/27/16 Pg 3 of 20 Pg ID 887
4

V. LAW AND ANALYSIS

A. Standard of Review

 Pursuant to 42 U.S.C. § 405(g), this Court has jurisdiction to review the Commissioner’s 

final decisions. Judicial review of the Commissioner’s decisions is limited to determining 

whether his findings are supported by substantial evidence and whether he employed the proper 

legal standards. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Walters v. Comm’r, 127 

F.3d 525, 528 (6th Cir. 1997). Substantial evidence is more than a scintilla but less than a 

preponderance; it is “‘such relevant evidence as a reasonable mind might accept as adequate to 

support a conclusion.’” Richardson, 402 U.S. at 401 (quoting Consolidated Edison Co. v. NLRB, 

305 U.S. 197, 229 (1938)); Walters, 127 F.3d at 528. It is not the function of this Court to try 

cases de novo, resolve conflicts in the evidence, or decide questions of credibility. See Brainard 

v. Sec’y of Health and Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v. Heckler, 745 

F.2d 383, 387 (6th Cir. 1984). 

 In determining the existence of substantial evidence, the court must examine the 

administrative record as a whole. See Kirk v. Sec’y of Health and Human Servs., 667 F.2d 524, 

536 (6th Cir. 1981), cert. denied, 461 U.S. 957 (1983). If the Commissioner’s decision is 

supported by substantial evidence, it must be affirmed, even if the reviewing court would decide 

the matter differently, Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983), and even if 

substantial evidence also supports the opposite conclusion. See Her v. Comm’r, 203 F.3d 388, 

389-90 (6th Cir. 1999); Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc) (noting 

that the substantial evidence standard “presupposes that there is a zone of choice within which 

the decisionmakers can go either way, without interference by the courts”). “But ‘[a]n ALJ's 

failure to follow agency rules and regulations denotes a lack of substantial evidence, even where 

2:14-cv-14700-DML-MKM Doc # 19 Filed 01/27/16 Pg 4 of 20 Pg ID 888
5

the conclusion of the ALJ may be justified based upon the record.’” Gayheart v. Comm'r of Soc. 

Sec., 710 F.3d 365, 374 (6th Cir. 2013) (quoting Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 

2011)). 

B. Framework for Social Security Determinations

 Plaintiff’s Social Security disability determination was made in accordance with a fivestep sequential analysis. In the first four steps, Plaintiff was required to show that: 

(1) Plaintiff was not presently engaged in substantial gainful employment; and 

(2) Plaintiff suffered from a severe impairment; and 

(3) the impairment met or was medically equal to a “listed impairment;” or 

(4) Plaintiff did not have the residual functional capacity (RFC) to perform relevant 

past work. 

See 20 C.F.R. § 404.1520(a)-(f). If Plaintiff’s impairments prevented Plaintiff from doing past 

work, the Commissioner, at step five, would consider Plaintiff’s RFC, age, education, and past 

work experience to determine if Plaintiff could perform other work. If not, Plaintiff would be 

deemed disabled. See id. at § 404.1520(g). The Commissioner has the burden of proof only on 

“the fifth step, proving that there is work available in the economy that the claimant can 

perform.” Her, 203 F.3d at 391. To meet this burden, the Commissioner must make a finding 

“supported by substantial evidence that [the claimant] has the vocational qualifications to 

perform specific jobs.” Varley v. Sec’y of Health and Human Servs., 820 F.2d 777, 779 (6th Cir. 

1987). This “substantial evidence” may be in the form of vocational expert testimony in 

response to a hypothetical question, “but only ‘if the question accurately portrays [the 

claimant’s] individual physical and mental impairments.’” Id. (citations omitted). 

 

2:14-cv-14700-DML-MKM Doc # 19 Filed 01/27/16 Pg 5 of 20 Pg ID 889
6

C. Analysis

 The Social Security Act authorizes “two types of remand: (1) a post judgment remand in 

conjunction with a decision affirming, modifying, or reversing a decision of the [Commissioner] 

(a sentence-four remand); and (2) a pre-judgment remand for consideration of new and material 

evidence that for good cause was not previously presented to the [Commissioner] (a sentence-six 

remand).” Faucher v. Sec’y of Health and Human Servs., 17 F.3d 171, 174 (6th Cir. 1994) 

(citing 42 U.S.C. § 405(g)). Under a sentence-four remand, the Court has the authority to “enter 

upon the pleadings and transcript of the record, a judgment affirming, denying, or reversing the 

decision of the [Commissioner], with or without remanding the cause for a hearing. 42 U.S.C. § 

405(g). Where there is insufficient support for the ALJ’s findings, “the appropriate remedy is 

reversal and a sentence-four remand for further consideration.” Morgan v. Astrue, 10-207, 2011 

WL 2292305, at *8 (E.D. Ky. June 8, 2011) (citing Faucher, 17 F.3d at 174). 

 Plaintiff asserts that this matter should be reversed and/or remanded under sentence four 

because the ALJ failed to properly weigh the medical evidence and failed to properly evaluate 

Plaintiff’s credibility. (Docket no. 12 at 15-26.) 

1. The ALJ’s Assessment of the Medical Evidence 

First, Plaintiff contends that the ALJ improperly weighed the medical evidence, which 

led to an improper application of the res judicata doctrine. (Docket no. 12 at 15-24.) In 

Drummond v. Comm’r of Soc. Sec., the Sixth Circuit held that social-security claimants and the 

Commissioner are barred by principles of res judicata from relitigating issues that have 

previously been determined. 126 F.3d 837 (6th Cir. 1997). The Commissioner is bound by the 

principles of res judicata unless there is new and material evidence of changed circumstances. 

Id. at 842; SSAR 98-4(6), 63 FR 29771-01 (June 1, 1998). Where a claimant who has previously 

2:14-cv-14700-DML-MKM Doc # 19 Filed 01/27/16 Pg 6 of 20 Pg ID 890
7

been adjudicated “not disabled” seeks to avoid application of res judicata, he must provide proof 

that his condition has worsened since the date of the prior decision to such a degree that he is no 

longer capable of engaging in substantial gainful activity. Vesey v. Comm’r of Soc. Sec., No. 11-

10967, 2012 WL 4475657, at *10 (E.D. Mich. Aug. 6, 2012) (citations omitted). 

On August 12, 2011, Plaintiff was found “not disabled” by ALJ JoErin O’Leary, despite 

her determination that Plaintiff suffered from severe impairments of major depressive disorder, 

generalized anxiety disorder, ADHD, POTS, fibromyalgia, and migraine headaches. (TR 66-82.) 

ALJ O’Leary also found that Plaintiff had the following RFC: 

[T]he claimant has the residual functional capacity to perform light work as 

defined in 20 CFR 404.1567(b) and 416.967(b) except the claimant can never 

climb ladders, ropes, or scaffolds. The claimant is limited to work that has no 

exposure to occupational hazards, such as dangerous machinery or unprotected 

heights. She should also avoid extremes of either cold or heat. The claimant 

retains the ability to perform simple work. She does not have any restrictions on 

social contact. The claimant cannot perform work that is completed at a 

production rate, but rather, she can perform goal-oriented work that is not on a 

production line. She would perform work best in a low-stress work setting, which 

is defined as no more than occasional decision making, nor more than occasional 

changes in work setting, and no more than occasional use of independent 

judgment. 

(TR 74-77.) Thus, ALJ Bright was bound by this determination unless she found new and 

material evidence of changed circumstances. Noting her responsibility under Drummond and the 

Acquiescence Rulings, ALJ Bright found that the severe impairments assessed by ALJ O’Leary 

remain severe in this matter. (TR 15.) The ALJ further found that the record does not support a 

worsening in Plaintiff’s condition since the previous determination. (TR 21.) The ALJ 

supported this assertion by pointing out that Plaintiff’s mood swings had been stable on 

medication and that she had been taking the same medications for a longitudinal period of time. 

2:14-cv-14700-DML-MKM Doc # 19 Filed 01/27/16 Pg 7 of 20 Pg ID 891
8

(TR 21-23.) The ALJ also noted that Plaintiff’s activity level had increased since the previous 

determination. (TR 21-23.) 

ALJ Bright then evaluated the medical evidence, giving little weight to the opinions of 

Plaintiff’s treating sources and great weight to the opinions of the state-agency consultants who 

made the initial unfavorable disability determination in this matter. (TR 18-23.) Plaintiff argues 

that the ALJ erred in this regard because there is new and material evidence from Plaintiff’s 

treating sources that was not available to ALJ O’Leary in the previous matter or to the stateagency consultants in this matter. (Docket no. 12 at 16-19.) According to Plaintiff, this new and 

material evidence consists of the disabling opinions provided by Plaintiff’s treating sources, Dr. 

Nancy J. Stadler, M.D. and nurse practitioner Beverly Karabin. (Id. at 17.) Plaintiff also claims 

that the opinion rendered by the consultative examiner, Gayle Oliver-Brannon, Ph.D., LP is new 

and material evidence that precludes the ALJ’s reliance on the previous ALJ disability 

determination. (Id. at 23-24.) Plaintiff does not specify the existence of or cite to any other new 

and material evidence. Plaintiff further asserts that the ALJ failed to evaluate Dr. Stadler and 

Ms. Karabin’s opinions, as well as the opinions from her other treating sources, in accordance 

with the treating physician rule and/or the corresponding regulations, 20 C.F.R. §§ 404.1527 and 

416.927. (Id. at 20-23.) 

It is well settled that the opinions of treating physicians are generally accorded substantial 

deference. In fact, the ALJ must give a treating physician’s opinion complete deference if it is 

supported by clinical and laboratory diagnostic evidence and it is not inconsistent with the other 

substantial evidence in the record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). When an ALJ 

determines that a treating source’s medical opinion is not controlling, he must determine how 

much weight to assign that opinion in light of several factors: (1) length of the treatment 

2:14-cv-14700-DML-MKM Doc # 19 Filed 01/27/16 Pg 8 of 20 Pg ID 892
9

relationship and the frequency of examination; (2) nature and extent of the treatment 

relationship; (3) supportability of the opinion; (4) consistency of the opinion with the record as a 

whole; (5) specialization of the treating source; and (6) other factors. 20 C.F.R. §§ 

404.1527(c)(2)-(6), 416.927(c)(2)-(6). 

 There is no per se rule that requires an articulation of each of the six regulatory factors 

listed in 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6). Norris v. Comm’r of Soc. Sec., No. 

11-CV-11974, 2012 WL 3584664, at *5 (E.D. Mich. Aug. 20, 2012) (citing Tilley v. Comm’r of 

Soc. Sec., 394 F. App’x 216, 222 (6th Cir. 2010)). An ALJ’s failure to discuss the requisite 

factors 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 F. App’x 462, 470 (6th Cir. 2006) (quoting Wilson v. Comm’r of Soc. Sec., 378 

F.3d 541, 547 (6th Cir. 2004)). 

 The Commissioner requires its ALJs to “always give good reasons in [their] notice of 

determination or decision for the weight [they] give [a] treating source’s opinion.” 20 C.F.R. 

§§ 404.1527(c)(2), 416.927(c)(2). Those good reasons must be “supported by the evidence in 

the case record, and must be sufficiently specific to make clear to any subsequent reviewers the 

weight the adjudicator gave to the treating source’s medical opinion and the reasons for that 

weight.” Wilson, 378 F.3d at 544 (quoting SSR 96-2p, 1996 WL 374188, at *5 (1996)). The 

district court should not hesitate to remand when the Commissioner has failed to identify the 

weight assigned to a treating physician’s opinion and provide good reasons for that weight. See 

2:14-cv-14700-DML-MKM Doc # 19 Filed 01/27/16 Pg 9 of 20 Pg ID 893
10

Cole v. Astrue, 661 F.3d 931, 939 (6th Cir. 2011) (“This Court has made clear that ‘[w]e do not 

hesitate to remand when the Commissioner has not provided ‘good reasons’ for the weight given 

to a treating physician's opinion and we will continue remanding when we encounter opinions 

from ALJ's that do not comprehensively set forth the reasons for the weight assigned to a treating 

physician's opinion.”) (citing Hensley v. Astrue, 573 F.3d 263, 267 (6th Cir. 2009)). 

a. Dr. Nancy J. Stadler, M.D. 

 In her decision, the ALJ noted Dr. Stadler’s status as Plaintiff’s primary care physician 

and discussed and considered Dr. Stadler’s treatment notes ranging from November 2011 to 

April 2013. (TR 20.) The ALJ also summarized the opinion evidence submitted by Dr. Stadler: 

Dr. Nancy Stadler indicated in a letter dated October 7, 2011, that the claimant 

was unable to work in the last year due to her multiple medical conditions 

including anxiety, PTSD, ADD, and depression (Exhibit B4F). In another letter 

dated January 30, 2012, Dr. Stadler indicated that the claimant’s conditions will 

be lifelong and she is unable to complete full time, competitive work for at least 

12 months (Exhibit B7F). A multiple impairment questionnaire completed by Dr. 

Stadler on January 30, 2012, limits the claimant to sitting two hours in an eighthour workday and standing/walking less than one hour in an eight-hour day. She 

further indicated that the claimant could lift and carry up to 50 pounds 

occasionally and up to 5 pounds frequently. Dr. Stadler stated the claimant was 

unable to lift overhead and unable to bend frequently. She also indicated that the 

claimant’s symptoms would frequently interfere with her attention and 

concentration and would likely miss work more than three times a month due to 

her impairments (Exhibit B8F). Dr. Stadler completed another questionnaire on 

May 21, 2012, in which she indicated that the claimant’s POTS syndrome 

prevented her from lifting more than 10 pounds occasionally or 5 pound[s] 

frequently and she would have constant interference with her attention and 

concentration due to her cardiac condition (Exhibit B11F). Dr. Stadler stated on 

August 4, 2012, that the claimant was not using drugs or alcohol and remained 

disabled (Exhibit B15F). 

(TR 22.) 

 The ALJ then assigned little weight to Dr. Stadler’s opinions. (TR 22.) In doing so, the 

ALJ reasoned that Dr. Stadler’s opinions were both internally inconsistent and inconsistent with 

2:14-cv-14700-DML-MKM Doc # 19 Filed 01/27/16 Pg 10 of 20 Pg ID 894
11

other portions of Plaintiff’s medical record. As examples of these inconsistencies, the ALJ 

pointed out Dr. Stadler’s January 30, 2012 opinion that Plaintiff could lift and/or carry up to 50 

pounds occasionally and her conflicting May 21, 2012 opinion that Plaintiff could only carry up 

to 10 pounds occasionally. The ALJ also noted that, in contrast to Dr. Stadler’s May 21, 2012 

opinion regarding Plaintiff’s limitations resulting from her POTS, in a May 3, 2012 treatment 

note submitted by Ms. Karabin, who actually treated Plaintiff for her POTS, Plaintiff reported 

that she had been doing well for a number of months and that her migraines were stable with 

medication. The ALJ also discounted Dr. Stadler’s opinions on the basis that she was not the 

treatment provider for Plaintiff’s mental conditions. 

 Plaintiff counters that Dr. Stadler’s findings are consistent with the treatment notes. 

(Docket no. 12 at 19 (citing TR 321, 390, 394, 585, 587, and 680).) The treatment notes cited by 

Plaintiff, however, do not reveal disabling symptoms; they reveal normal blood pressure without 

evidence of orthostatic hypotension, stable depression, medication adjustments, spinal and lower 

back tenderness, and increased orthostatic intolerance due to weather changes. Notably, the ALJ 

accounted for the latter in Plaintiff’s RFC by limiting her contact with extreme hot and cold 

temperatures. 

The reasons cited by the ALJ for discounting Dr. Stadler’s opinions are supported by the 

evidence of record and are sufficiently specific to make clear to any subsequent reviewers the 

“little weight” accorded to Dr. Stadler’s opinions. Moreover, it is evident that the ALJ 

considered the regulatory factors in her analysis of Dr. Stadler’s treatment notes and opinions, 

particularly, the length, nature, and extent of Plaintiff and Dr. Stadler’s treatment relationship; 

Dr. Stadler’s specialization; and the consistency of Dr. Stadler’s opinion with the record. The 

2:14-cv-14700-DML-MKM Doc # 19 Filed 01/27/16 Pg 11 of 20 Pg ID 895
12

ALJ’s assessment of Dr. Stadler’s opinion is supported by substantial evidence and should not be 

disturbed. 

b. Dr. Jill M. Fox, M.D. 

With regard to Plaintiff’s mental health treatment, the ALJ discussed and considered the 

treatment notes of Plaintiff’s treating psychiatrist, Dr. Jill M. Fox, M.D., dated August 2011 

through 2013. (TR 19-20.) The ALJ then summarized and assessed Dr. Fox’s January 31, 2012 

opinion: 

As for the opinion evidence, Dr. Jill Fox opined on January 31, 2012, that the 

claimant is markedly limited in the ability to interact appropriately with the 

general public and accept instructions and respond appropriately to criticism from 

supervisors. She also indicated that the claimant is markedly limited in her ability 

to understand, remember, and carry out detailed instructions and to maintain 

attention and concentration for extended periods. Dr. Fox noted that the claimant 

was very dependent on her parents and worried what others think of her. She 

listed clinical finds of poor memory, appetite disturbance, sleep disturbance, 

personality change, mood disturbance, emotional lability, feelings of 

guilt/worthlessness, difficulty thinking or concentrating, suicidal ideation, social 

withdrawal, intrusive recollections of a traumatic experience, somatization 

unexplained by organic disturbance, and pathological dependence. Lastly, Dr. 

Fox opined that the claimant would be capable of low stress work on good days 

(Exhibit B9F). Little weight is given to the opinion of Dr. Fox. The opinion is 

inconsistent with the claimant’s activities of attending college courses and 

participating in theater productions. Additionally, Dr. Fox has continued the 

claimant on the same medications of Effexor and Xanax for a longitudinal period. 

This suggests that her depression is stable, as also indicated by Ms. Karabin. 

(TR 21.) 

 Plaintiff asserts that the ALJ erred by finding Dr. Fox’s opinion to be inconsistent with 

Plaintiff’s ability to attend college courses and participate in theater, because those activities are 

“hardly indicative of the ability to perform full-time work on a sustained basis.” (Docket no. 12 

at 21 (citing Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 248 (6th Cir. 2007) (Minimal daily 

functions such as driving, doing laundry and other housework, reading, and caring for pets are 

2:14-cv-14700-DML-MKM Doc # 19 Filed 01/27/16 Pg 12 of 20 Pg ID 896
13

not comparable to typical work activities.)).) The authority Plaintiff cites, however, does not 

address the ability to go to school. As the ALJ reasoned, “attending school can be challenging 

both physically and mentally requiring many of the same attributes required for full time work 

including an ability to keep a schedule, commute on a daily basis, perform to specifications, and 

learn and apply new knowledge.” (TR 21.) The ALJ’s analysis on this issue is not erroneous 

and does not warrant remand. 

 Plaintiff also argues that the ALJ mischaracterized the record by finding that Plaintiff’s 

psychotropic medications did not change during the relevant period. (Docket no. 12 at 22.) 

Plaintiff expounds that she tried several different medications and that the doses of her 

medications were adjusted on multiple occasions during the period at issue. (Id.) But Plaintiff 

mischaracterizes the ALJ’s findings. The ALJ did not make findings with regard to all of 

Plaintiff’s medications; the ALJ made findings with regard to only two of her medications: 

Effexor and Xanax. (TR 21.) Specifically, the ALJ found that Dr. Fox continued Plaintiff on 

Effexor and Xanax for a longitudinal period, which suggested that Plaintiff’s depression was 

stable. (TR 21.) The ALJ’s lack of discussion with regard to Plaintiff’s other medications does 

not constitute error, as it is axiomatic that an ALJ need not discuss every piece of evidence in the 

record. Kornecky, 167 F. App’x at 508 (citation omitted). 

Here, the ALJ provided good reasons for discounting Dr. Fox’s opinion and, in doing so, 

considered the regulatory factors, such as the length, nature, and extent of Plaintiff’s treatment 

relationship with Dr. Fox and the consistency of Dr. Fox’s opinion with the record. The ALJ’s 

assessment of Dr. Fox’s opinion is supported by substantial evidence and should not be 

disturbed. 

2:14-cv-14700-DML-MKM Doc # 19 Filed 01/27/16 Pg 13 of 20 Pg ID 897
14

c. Beverly Karabin, NP, and Doreen Pant, MSW, LISW 

 Plaintiff also challenges the ALJ’s assessment of little weight to the opinions rendered by 

Beverly Karabin and Doreen Pant. At all relevant times, Ms. Karabin was a nurse practitioner at 

the University of Toledo Medical Center. (See TR 300-01.) Therefore, her opinions and 

assessments are not opinions from an acceptable medical source as defined in the regulations. 20 

C.F.R. §§ 404.1513, 416.913. Because a nurse is not an acceptable medical source, the ALJ can 

consider her opinion as evidence from an “other” medical source, but she is not required to 

accord the opinion any special weight or consideration. Taylor v. Comm’r of Soc. Sec., No. 1:11-

cv-46, 2012 WL 1029299, at *6 (W.D. Mich. Mar. 26, 2012) (citing 20 C.F.R. 

§ 404.1513(d)(1)). The ALJ is under no obligation to explain the weight given to a nurse 

practitioner’s opinion or give good reasons for why the opinion was discounted. Southward v. 

Comm’r of Soc. Sec., No. 11-CV-14208, 2012 WL 3887439, at *10 (E.D. Mich. May 17, 2012). 

These premises apply equally to the opinion of Plaintiff’s social worker, Ms. Pant, as a social 

worker is also not an acceptable medical source under the regulations. Accordingly, Plaintiff’s 

arguments regarding the ALJ’s assessments of Ms. Karabin and Ms. Pant’s opinions fail. 

 d. Dr. Gayle Oliver-Brannon, Ph.D., LP 

 Next, Plaintiff argues that “[t]he ALJ also completely ignored the opinions from the 

examining psychologist Dr. Oliver-Brannon who opined that [Plaintiff] is psychiatrically 

disabled.” (Docket no. 12 at 23 (citing TR 380).) Plaintiff claims that Dr. Oliver-Brannon’s 

opinion is “additional new and material evidence that precluded the ALJ from relying on the 

previous decision.” (Id. at 23-24.) 

Dr. Oliver-Brannon, a licensed psychologist, conducted a psychological evaluation of 

Plaintiff on June 14, 2012, with regard to Plaintiff’s alleged disability. (TR 377-80.) The parties 

2:14-cv-14700-DML-MKM Doc # 19 Filed 01/27/16 Pg 14 of 20 Pg ID 898
15

do not dispute that Dr. Oliver-Brannon was not a treating physician, as she only examined 

Plaintiff once on a consultative basis. The ALJ is not bound by a non-treating physician’s 

opinion. McKivens v. Comm’r, No. 11-cv-14268, 2012 WL 3263847, at *11 (E.D. Mich. Jul. 9, 

2012) (citation omitted). However, “[w]hen no treating physician opinion has been granted 

controlling weight ... the medical opinion of a consultative examiner is to be weighed 

considering all of the factors identified in 20 C.F.R. § 404.1527(c)(1) through (6).” Id. (citing 20 

C.F.R. § 404.1527(e)(2)(iii)). Nevertheless, there is no per se rule that requires an articulation of 

each of the six regulatory factors listed in 20 C.F.R. § 404.1527(c). Norris v. Comm’r, No. 11-

CV-11974, 2012 WL 3584664, at *5 (E.D. Mich. Aug. 20, 2012) (citing Tilley v. Comm’r, 394 

Fed. Appx. 216, 222 (6th Cir. 2010)). 

 Upon examining Plaintiff, Dr. Oliver-Brannon diagnosed Plaintiff with major depressive 

disorder, generalized anxiety disorder, ADHD, PTSD, panic disorder without agoraphobia, and 

borderline personality disorder. (TR 379.) Dr. Oliver-Brannon then issued the following 

medical source statement: 

The claimant has a history of mood, psychiatric, and physical/medical issues that 

has prevented her from participating in successful long term employment. She is 

non-trusting and tends to keep to herself. Brief encounters with others are best. 

She has been self isolating due to trust issues, mood issues, and poor coping 

skills. She is able to understand and engage in simple to some moderate daily 

living tasks. However she gives up easily on projects due to a low frustration 

tolerance. She seems motivated to improve her condition and recognizes the need 

for mental health treatment to function as normal as possible. 

(TR 380.) 

Contrary to Plaintiff’s assertion, the ALJ did not “completely ignore” Dr. OliverBrannon’s opinion that Plaintiff is “psychiatrically disabled” because Dr. Oliver-Brannon made 

no such finding. In fact, the ALJ, in her decision, acknowledged Dr. Oliver-Brannon’s diagnoses 

2:14-cv-14700-DML-MKM Doc # 19 Filed 01/27/16 Pg 15 of 20 Pg ID 899
16

and her statements that Plaintiff is non-trusting, keeps to herself, and is able to understand and 

engage in simple to moderate tasks but gives up easily due to frustration. (TR 20.) The ALJ did 

not assign weight to Dr. Oliver-Brannon’s opinions or consider the regulatory factors in her 

assessment of those opinions. Nevertheless, to the extent that the ALJ’s failure to do so is 

erroneous, any such error is harmless because the ALJ incorporated into the RFC the only 

opinion given by Dr. Oliver-Brannon regarding Plaintiff’s current functional limitations affecting 

her ability to work – that Plaintiff is able to understand and engage in simple to some moderate 

tasks. Notably, the remainder of Dr. Oliver-Brannon’s medical source statement consists of 

observations regarding Plaintiff past limitations, general characteristics, and future intentions. 

Plaintiff’s argument fails in this regard. 

 e. State-Agency Consultants 

In her decision, the ALJ assigned great weight to the opinions of the state-agency medical 

and psychological consultants, who opined that the prior ALJ’s RFC should be adopted. (TR 

23.) Plaintiff asserts that the ALJ erred by crediting the opinions of the state-agency nonexamining sources over the opinions of her treating providers and the consultative examiner, 

particularly because the state-agency consultants did not review the complete record, including 

the new and material evidence from Plaintiff’s treating sources. (Docket no. 12 at 17-18.) While 

a non-examiner’s review of a complete case record is an example of an appropriate circumstance 

in which to afford a non-examiner’s opinion more weight than an examiner’s opinion, SSR 96-

6p, 1996 WL 374180, at *3, there is no requirement that a non-examiner’s opinion be based on a 

review of the entire record in order to support an ALJ’s decision denying benefits. Indeed, the 

Sixth Circuit has held that “[a]n administrative law judge may give more weight to the opinions 

of examining or consultative sources where the treating physician's opinion is not well-supported 

2:14-cv-14700-DML-MKM Doc # 19 Filed 01/27/16 Pg 16 of 20 Pg ID 900
17

by the objective medical records.” Dyer v. Soc. Sec. Admin., 568 F. App'x 422, 428 (6th Cir. 

2014) (citing Gayheart at 379–80). As discussed above, the ALJ’s decision to discount the 

opinions of Plaintiff’s treating sources on the basis that they are inconsistent with the record 

evidence, among other things, is supported by substantial evidence. Accordingly, the ALJ did 

not err in adopting the opinions of the state-agency consultants in this matter. 

The discussion above provides that the ALJ properly assessed the medical evidence in 

this matter. More importantly, it provides that the ALJ properly discounted the purportedly new 

and material evidence submitted by Drs. Stadler and Oliver-Brannon and nurse practitioner 

Karabin that Plaintiff offers to support her position. Plaintiff has not sufficiently provided proof 

that her condition has worsened since the date of the prior decision to such a degree that she is no 

longer capable of engaging in substantial gainful activity. Accordingly, the ALJ’s determination 

that “the record does not suggest a worsening in [Plaintiff’s] condition since the prior 

determination” such that a departure from the prior ALJ’s findings and determinations would be 

warranted is supported by substantial evidence. The ALJ did not err in her application of the res 

judicata doctrine under the Acquiescence Rulings and Drummond; Plaintiff’s Motion should be 

denied with regard to this issue. 

2. The ALJ’s Assessment of Plaintiff’s Credibility 

Next, Plaintiff asserts that “[t]he ALJ’s brief credibility determination is not supported by 

substantial evidence.” (Docket no. 12 at 24-26.) “[A]n ALJ’s findings based on the credibility 

of the applicant are to be accorded great weight and deference, particularly since an ALJ is 

charged with the duty of observing a witness’s demeanor and credibility.” Walters v. Comm’r, 

127 F.3d 525, 531 (6th Cir. 1997). But credibility assessments are not insulated from judicial 

review. Despite the deference that is due, such a determination must nevertheless be supported 

2:14-cv-14700-DML-MKM Doc # 19 Filed 01/27/16 Pg 17 of 20 Pg ID 901
18

by substantial evidence. Id. An ALJ’s credibility determination must contain “specific reasons . 

. . supported by the evidence in the case record, and must be sufficiently specific to make clear to 

the individual and to any subsequent reviewers the weight the adjudicator gave to the 

individual’s statements and the reasons for that weight.” SSR 96–7p. “It is not sufficient to make 

a conclusory statement that ‘the individual’s allegations have been considered’ or that ‘the 

allegations are (or are not) credible.’” Id. “[T]he adjudicator may find all, only some, or none of 

an individual’s allegations to be credible” and may also find the statements credible to a certain 

degree. Id.

 Further, to the extent that the ALJ found that Plaintiff’s statements are not substantiated 

by the objective medical evidence in the record, the Regulations explicitly provide that “we will 

not reject your statements about the intensity and persistence of your pain or other symptoms or 

about the effect your symptoms have on your ability to work solely because the available 

objective medical evidence does not substantiate your statements.” 20 C.F.R. §§ 404.1529(c)(2), 

416.929(c)(2). The ALJ will consider: (1) the claimant’s daily activities, (2) the location, 

duration, frequency, and intensity of the claimant’s pain or other symptoms, (3) precipitating and 

aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication taken 

to alleviate pain or other symptoms, (5) treatment, other than medication, for symptom relief, (6) 

any measures used to relieve the symptoms, and (7) functional limitations and restrictions due to 

the pain or other symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); see also Felisky v. 

Bowen, 35 F.3d 1027, 1039-40 (6th Cir. 1994) (applying these factors). As part of her argument, 

Plaintiff asserts that the ALJ failed to consider these factors. (Docket no. 13 at 17-18.) 

 Here, the ALJ considered and discussed Plaintiff’s hearing testimony and other subjective 

complaints in conjunction with the record evidence, and she found that Plaintiff’s allegations 

2:14-cv-14700-DML-MKM Doc # 19 Filed 01/27/16 Pg 18 of 20 Pg ID 902
19

were not entirely credible. (TR 18-23.) In reaching this determination, the ALJ 

stated, “the claimant alleges worsening in her depression since the previous decision, but 

worsening is not reflected in her treatment notes or her activities of daily living.” (TR 21.) The 

ALJ then noted that Plaintiff’s daily activities had increased since the prior determination; 

particularly, Plaintiff was taking college courses and participating in a theater program, which 

the ALJ found required many of the same attributes as full-time work. The ALJ also pointed out 

that Plaintiff’s mood swings, depression, and migraine headaches were stable with medication, 

and that Plaintiff had been taking the same medication, namely Effexor and Xanax, for a 

longitudinal period of time. Additionally, the ALJ acknowledged Plaintiff’s reports that her 

symptoms increased with stress and changes in the weather, and the ALJ accounted for such 

situations in the RFC by limiting Plaintiff to low-stress work and prohibiting her contact with 

extreme temperatures. 

The immediate discussion demonstrates that the ALJ provided specific reasons for 

discounting Plaintiff’s credibility in her decision, and, in doing so, applied many of the factors 

set forth in 20 C.F.R. §§ 404.1529(c)(3) and 416.929(c)(3). Thus, the ALJ’s decision is 

sufficiently specific to make clear to Plaintiff and to the Court the weight that she gave to 

Plaintiff’s statements and the reasons for that weight. The ALJ’s assessment of Plaintiff’s 

credibility is supported by substantial evidence and should not be disturbed; Plaintiff’s Motion 

should be denied in this regard. 

VI. CONCLUSION

 For the reasons stated herein, the Court should DENY Plaintiff’s Motion for Summary 

Judgment (docket no. 11) and GRANT Defendant’s Motion for Summary Judgment (docket no. 

18). 

2:14-cv-14700-DML-MKM Doc # 19 Filed 01/27/16 Pg 19 of 20 Pg ID 903
20

REVIEW OF REPORT AND RECOMMENDATION

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

Recommendation, but must act within fourteen (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 (1985); Howard 

v. Sec’y of Health and Human Servs., 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 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 Rule 72.1(d)(2) of the Local Rules of the United States District Court for the Eastern 

District of Michigan, a copy of any objection must be served upon this Magistrate Judge. 

 Within fourteen (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 five (5) 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. 

Dated: January 27, 2016 s/ Mona K. Majzoub 

 MONA K. MAJZOUB 

 UNITED STATES MAGISTRATE JUDGE 

 

PROOF OF SERVICE

 I hereby certify that a copy of this Report and Recommendation was served upon counsel 

of record on this date. 

 

Dated: January 27, 2016 s/ Lisa C. Bartlett 

 Case Manager

2:14-cv-14700-DML-MKM Doc # 19 Filed 01/27/16 Pg 20 of 20 Pg ID 904