UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

MARY BETH OLIVER, 

 Plaintiff, CIVIL ACTION NO. 14-13318 

 v. 

DISTRICT JUDGE DAVID M. LAWSON

MAGISTRATE JUDGE CHARLES E. BINDER

COMMISSIONER OF 

SOCIAL SECURITY, 

 Defendant. 

_______________________/ 

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

 

I. RECOMMENDATION

For the reasons set forth below, IT IS RECOMMENDED that Plaintiff's Motion for

Summary Judgment should be DENIED, and that of Defendant GRANTED, as there is

substantial evidence on the record that claimant retained the residual functional capacity for

a limited range of sedentary work.

II. REPORT

A. Introduction and Procedural History

Plaintiff filed an application for Social Security disability income benefits on

December 1, 2011, alleging that she had been disabled and unable to work since December

20, 2010, at age 40, due to coronaryheart disease, vestibulopathy, depression and generalized

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anxiety. Benefits were initially denied by the Social Security Administration. A requested de

novo hearing was held on March 14, 2013, before Administrative Law Judge (ALJ) Oksana

Xenos. The ALJ subsequently found that the claimant was not entitled to disability benefits

because she retained the ability to perform a limited range of sedentary work. The Law

Judge restricted claimant from jobs that exposed her to unprotected heights and moving

machinery. She could only have occasional contact with the general public, and was unable

to climb ladders, ropes or scaffolds. She was also prohibited from driving commercial

vehicles. The Appeals Council declined to review that decision and Plaintiff commenced 1

the instant action for judicial review of the denial of benefits. The parties have filed Motions

for Summary Judgment and the issue for review is whether Defendant's denial of benefits

was supported by substantial evidence on the record. 

Claimant was 43 years old at the time of the administrative hearing (TR 31). She had

a limited ninth grade education, and had worked as a hairdresser until December 2010, when

she began experiencing severe chest pain (TR 32). Plaintiff underwent a heart catheterization

with stent replacement (TR 17). Following the procedures, claimant testified that she

remained disabled and unable to work due to “vesibular nerve damage”, that caused vertigo

Where, as here, the Appeals Council denies review, the ALJ’s decision stands as the final decision 1

of the Commissioner. 20 C.F.R. § 404.981. Judicial review is limited to determining whether substantial

evidence supports the ALJ’s findings and whether the ALJ applied the correct legal standard in reaching his

decision. Warner v. Commissioner., 375 F.3d 387, 390 (6th Cir. 2004); Key v. Callahan, 109 F.3d 270, 273

(6th Cir. 1997). Therefore, the medical evidence attached to Plaintiff’s Brief in Support of Summary

Judgment was not considered by the undersigned. The evidence presented to this Court does not warrant a

remand for further administrative consideration because Plaintiff has failed to show that good cause existed

for failing to incorporate such evidence into the record in a prior proceeding.

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and eyesight problems (TR 33-34). As a result of the condition, Plaintiff indicated that she

could not use a computer due to poor hand-eye coordination (TR 33). Claimant explained

that she was able to performsome household chores, such as dusting, mopping and sweeping,

but she quickly experienced general weakness, chest pain and shortness of breath upon

exertion (TR 34-35, 38-39). Plaintiff estimated that she could sit or stand for five minutes,

lift about five pounds and walk approximately a half block before becoming fatigued (TR

36-37). 

A Vocational Expert (VE), Lawrence Zatkin, testified that if claimant were capable

of sedentary work, there were numerous unskilled sorting, packaging, inspection and small

assembly jobs that she could still perform with minimal vocational adjustment (TR 41-42). 

These jobs did not expose her to unprotected heights, uneven terrain or moving machinery. 

She would only have to occasionally interact with the general public, never climb ladders,

and not perform any commercial driving (TR 41).

B. ALJ Findings

The Administrative Law Judge found that Plaintiff was impaired as a result of coronary

artery disease, vestibulopathy, depression and anxiety. Claimant did not have an impairment

or combination of impairments severe enough to meet or equal the Listing of Impairments.

Nevertheless, the ALJ determined that Plaintiff remained capable of performing a range of

sedentarywork that would not expose her to unprotected heights, moving machinery, uneven

terrain, climbing ladders or frequent contact with the general public. She was further limited

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to jobs that did not require any driving of commercial vehicles. The ALJ found that Plaintiff

retained the residual functional capacity to perform a significant number of sedentary jobs,

within those limitations, as identified by the Vocational Expert (TR 14-22). 

C. Standard of Review

Pursuant to 42 U.S.C. § 405(g), this court has jurisdiction to review the

Commissioner's decisions. Judicial review of those decisions is limited to determining

whether her findings are supported by substantial evidence and whether she employed the

proper legal standards. Richardson v. Perales, 402 U.S. 389, 401 (1971). 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. See Kirk v.

Secretary, 667 F.2d 524, 535 (6th Cir. 1981), cert. denied, 461 U.S. 957 (1983). This court

does not try the case de novo, resolve conflicts in the evidence, or decide questions of

credibility. See Brainard v. Secretary, 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. Kirk, 667 F.2d at 536. If the Commissioner's decision is

supported by substantial evidence, it must be affirmed even if even substantial evidence also

supports the opposite conclusion, Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en

banc), Casey v. Secretary, 987 F.2d 1230 (6th Cir. 1993), and even if the reviewing court

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would decide the matter differently, Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir.

1983).

Plaintiff maintains that substantial evidence does not exist on the record supporting

the Commissioner’s determination that her cardiac condition was not severe enough to meet

or equal section 4.04C of the Listing of Impairments. Furthermore, claimant contends that

the ALJ improperly discounted her allegations of disabling functional limitations, given the

medical evidence of record. Defendant counters that the claimant retains the residual

functional capacity for a reduced range of sedentary work because the objective clinical

evidence ofrecord did not confirmthe disabling nature of her heart impairment, coordination

problems or mental difficulties. 

D. Discussion and Analysis

After review of the record, I suggest that there is substantial evidence on the record

supporting the Commissioner's conclusion that Plaintiff retained the residual functional

capacity for a restricted range of sedentary work. The medical evidence, as a whole, fails to

provide objective support for claimant’s allegations ofsevere and totallydisabling functional

limitations stemming fromher cardiac impairments, poor hand-eye coordination, depression

or anxiety.

Plaintiff initially asserts that she should have been found disabled since her

cardiovascular impairment was severe enough to meet the criteria of section 4.04C of the

Listing ofImpairments. (See Plaintiff’s Briefin Support of Summary Judgment at pp.11-13). 

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Listed Impairment 404 deals with ischemic heart disease. To meet the requirements

of Listing 4.04C, the claimant must establish that she has:

C. Coronary artery disease demonstrated by angiography (obtained

independent of Agency disability evaluation) or other appropriate medically

acceptable imagining. In the absence of a timely exercise tolerance test or a

timely normal drug induced stress test, a medical consultant (preferable one

experienced in the care of patients with cardiovascular disease) has concluded

that the performance of exercise tolerance test would present a significant risk

to an individual with 1 and 2:

1. angiographic evidence showing

a. 50% or more narrowing of a non-bypassed left main coronary

artery;

 b. 70% or more narrowing of another non-bypassed coronary

artery;

 c. 50% or more narrowing involving a long segment of a nonbypassed coronary artery;

 d. 50% or more narrowing of at least two non-bypassed coronary

arteries;

 e. 70% or more narrowing of a bypass graft vessel; and

2. resulting in very serious limitations in the individual’s ability to

independently initiate, sustain, or complete activities of daily living. 20

C.F.R. Pt. 404, Subpt. P, App. 1, § 4.04C.

The ALJ evaluated Plaintiff’s impairment under the requirements for Listing 4.04C,

and determined that there was neither angiographic evidence to show that she had the

required narrowing of non-bypassed arteries or graft vessels, nor the required serious

limitations in performing daily activities (TR 15). Moreover, the state agency physician who

considered Plaintiff’s heart impairment pursuant to Listing 4.04 (Tr. 51), determined that she

had the residual functional capacity to perform light work activity (TR 53). 

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I suggest that a review of the medical evidence of record supports these findings and

reveals that the claimant’s heart condition fails to satisfythe introductorysection ofthe above

listing, which states that she must present evidence that a medical professional has

determined that performance of an exercise tolerance test would present a significant risk. 

A review of the medical evidence fails to find any indication that Plaintiff would be at

significant risk if she engaged in exercise tolerance testing. In fact, claimant underwent two

exercise tests in 2011 and 2012, where she demonstrated that she had good exercise tolerance

(TR 239, 254, 386). 

Plaintiff also alleges that the ALJ failed to evaluate whether her impairments were

equivalent to the severity requirements of Listing 4.04C (Plaintiff’s Brief in Support of

Summary Judgment at pp. 13-14). While the Law Judge did not specifically state that

claimant’s impairments did not medically equal Listing 4.04C, the ALJ did find that

Plaintiff’s impairments, and combination of impairments, did not meet or medically equal

a listed impairment (TR 15). Claimant failed to point to any evidence demonstrating that her

impairments equaled the severity of the listing. Given that the burden rests on Plaintiff at

step three, she failed to meet her burden of proving that she should have automatically

qualified for disability benefits as a result of meeting or equaling a listed impairment.

I further suggest that substantial evidence supports the finding that the claimant did

not suffer fromdisabling depression or anxiety. Contrary to Plaintiff’s assertion that she had

serious limitations in her ability to perform daily activities, she previously acknowledged in

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a Function Report that she could feed her pets, prepare meals on a daily basis, shop for 

groceries twice a month, pay bills, handle a savings account, use a checkbook, and visit with

her mother several times a week (TR 141-144). Despite experiencing mild difficulties with

concentration, persistence and pace , claimant was able pay her bills, count change, handle 2

a savings account, drive, watch television and read books, newspapers and magazines (TR

16, 143, 146, 347, 350). The ALJ also noted that a field office representative, who

interviewed Plaintiff face-to-face, noted no difficulties in claimant’s ability to understand,

concentrate, talk, or answer questions (TR 16, 129-130). 

Nor is there objective medical evidence suggesting that she suffered severe side

effects from pain medications, or that she needed to rest frequently throughout the day. The

ALJ also took into consideration claimant’s objectively proven functional limitations by

restricting her to simple, routine jobs that did not require frequent climbing, exposure to

unprotected heights, or having much interaction with the general public.

It is the rare case, indeed the exception, in which every piece of evidence points

incontrovertibly toward a decision to deny benefits. There was evidence in the record which,

taken in isolation, might suggest that the Plaintiff was totally disabled and that her testimony

was fullycredible. However, special deference is owed to the credibility findings of the ALJ,

Contrary to claimant’s assertion, her GAF score of 55 is not indicative of severe restrictions in 2

concentration, persistence and pace. (See Plaintiff’s Brief in Support of Summary Judgment at p. 16), A

GAF score of 55 denotes that claimant had moderate mental health symptoms, which were accounted for in

the ALJ’sstep two determination that her depression and anxiety were severe impairments (TR 14). The ALJ

took into consideration Plaintiff’s difficulties in this area by restricting her contact with the general

public.(TR 16).

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who was the only one who had the opportunity to observe the demeanor of the witness,

evaluate what was said and how it was said, and to consider how that testimony fit in with

the rest of the medical evidence. Such observation is invaluable and should not be discarded

lightly. Beavers v. Secretary, 577 F.2d 383 (6th Cir. 1978). See also Williamson v.

Secretary, 796 F.2d 146, 150 (6th Cir. 1986).

By establishing that she could not return to her past relevant work, the Plaintiff here

effectively shifted to the Commissioner the burden of proving that she had the vocational

qualifications to perform alternative jobs in the economy, notwithstanding her various

impairments. The Commissioner, however, met her burden of proving the existence of jobs

which accommodated claimant's known restrictions. In response to a hypothetical question

that took into consideration claimant's educational and vocational background, along with

her significant impairments , the Vocational Expert testified that there were numerous 3

unskilled sorting, packaging, inspection and small assembly jobs that she could still perform

with minimal vocational adjustment (TR 41-42). These jobs did not expose her to

unprotected heights, uneven terrain or moving machinery. She would only have to

occasionally interact with the general public, never climb ladders and not perform any

The Administrative Law Judge’s hypothetical questions to the Vocational Expert (VE) accurately 3

described Plaintiff’s moderate limitations caused by her periodic angina, poor hand-eye coordination and

emotional difficulties. The ALJ reasonably determined that claimant’s on-going chest pain limited her to

jobsthat did not involve frequent climbing, or exposed herto such hazards as moving machinery, unprotected

heights or uneven terrain (TR 16-17). She was also limited to fairly simple tasks that did not require much

contact with the general public (TR 16). The Sixth Circuit has held that hypothetical questions to experts are

not required to included lists of claimant’s medical conditions. Webb v. Commissioner, 368 F.3d 629, 633

(6 Cir. 2004). Under these circumstances, I suggest that the ALJ’s hypothetical question accurately th

portrayed Plaintiff’s impairments.

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commercial driving (TR 41). Given the objective clinical findings of the examining

physicians of record during the relevant period, substantial evidence existed on the record

that Plaintiff retained the residual functional capacity for a restricted range ofsedentarywork

activity. 

 In sum, the Commissioner's decision to deny benefits was within the range of

discretion allowed by law and there is simply insufficient evidence for the undersigned to

find otherwise. Accordingly, Plaintiff's Motion for Summary Judgment should be denied,

that of Defendant granted and the instant Complaint dismissed. 

III. REVIEW

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

Recommendation, but are required to act within fourteen (14) days of service of a copy

hereof as provided for in 28 U.S.C. § 636(b)(1). Failure to file specific objections constitutes

a waiver of any further right of appeal. United States v. Walters, 638 F.2d 947 (6th Cir.

1981), Thomas v. Arn, 474 U.S. 140 (1985), Howard v. Secretary of HHS, 932 F.2d 505 (6th

Cir. 1991). 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. Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th

Cir. 1987), Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir. 1991). 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 objections is to be served upon this Magistrate Judge.

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Within fourteen (14) days of service of any objecting party's timely filed objections,

the opposing party may file a response. The response shall address specifically, and in the

same order raised, each issue contained within the objections.

 s/ Charles`E Binder 

CHARLES E. BINDER 

Dated: April 15, 2015 United States Magistrate Judge

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