UNITED STATES DISTRICT COURT

EASTERN DISTICT OF MICHIGAN

SOUTHERN DIVISION

RACHEL M. MUSCOTT,

Plaintiff, Civil Action No.: 14-13890

 Honorable Nancy G. Edmunds

v. Magistrate Judge Elizabeth A. Stafford

 

CAROLYN W. COLVIN, 

Acting Commissioner of 

Social Security,

 

Defendant. 

__________________________________/

REPORT AND RECOMMENDATION

ON CROSS-MOTIONS FOR SUMMARY JUDGMENT [R. 16, 19]

Plaintiff Rachel Muscott appeals a final decision of Defendant 

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

for Disability Insurance Benefits (“DIB”) under the Social Security Act (the 

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

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

636(b)(1)(B). The Court finds that Muscott has not shown error requiring 

remand under Sentence Four of the Act or satisfied the requirements for 

remand under Sentence Six. For these reasons, the Court 

RECOMMENDS that:

• the Commissioner’s motion [R. 19] be GRANTED; 

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• Muscott’s motion [R. 16] be DENIED; and,

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

four of 42 U.S.C. § 405(g).

I. BACKGROUND

A. Claimant’s Background and Claimed Disabilities

Muscott was a forty-two year old mother of three who had previously 

worked as an embroiderer, both in her own home and as an employee of 

another business. She claims disability as a result of limitations on social 

interaction and concentration related to her diagnoses of bipolar disorder 

and anxiety. 

B. Procedural History

Muscott filed an application for DIB, alleging disability as of July 1, 

2005. [R. 11-5, Tr. 189-95]. Her date last insured was December 1, 2010. 

[R. 11-2, Tr. 38]. Her claim was denied initially, and she filed a timely 

request for an administrative hearing, held on March 26, 2013, at which 

both she and a vocational expert (“VE”) testified. [R. 11-4, Tr. 137-41, 146-

47; R. 11-2, Tr. 50-77]. 

The day prior to the hearing, Muscott’s counsel sent additional 

records to the Administrative Law Judge (“ALJ”) and apologized for their 

tardy submission, stating that his mother had recently suddenly died. [R. 

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11-6, Tr. 279]. He also requested two weeks to obtain and submit 

additional treating records from Botsford Clinic, which the ALJ granted at 

the hearing. [Id.; R. 11-2, Tr. 52]. On April 25, 2013, after having received 

no additional records despite counsel’s representation, [R. 11-2, Tr. 44], the 

ALJ issued a written decision finding Muscott not disabled. [Id., Tr. 33-49]. 

Muscott subsequently obtained new counsel, who discovered that

several records from Muscott’s treating psychiatrist and therapist had not 

been submitted to the ALJ by prior counsel. [Id., Tr. 31, 78-84; R. 11-7, Tr. 

374-75]. The new counsel also obtained additional records from these 

providers and a hospital record, some dated after the ALJ’s decision. [Id., 

Tr. 8-14, 85-127; R. 11-7, Tr. 376-82]. The records were submitted and 

considered by the Appeals Council. [R. 11-2, Tr. 1-7; R. 16, PgID 437]. 

Nevertheless, the Appeals Council denied review, finding that the new 

evidence related to a time after Muscott’s date last insured, making them 

immaterial to the ALJ’s decision. [R. 11-2, Tr. 1-7]. The Appeals Council’s 

denial rendered the ALJ’s decision the final decision of the Commissioner 

for purposes of this review. Muscott timely filed for judicial review. [R. 1]. 

C. The ALJ’s Application of the Disability Framework

DIB is available for those who have a “disability.” See Colvin v. 

Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). A “disability” is the “inability to 

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engage in any substantial gainful activity by reason of any medically 

determinable physical or mental impairment which can be expected to 

result in death or which has lasted or can be expected to last for a 

continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 

1382c(a)(3)(A).

The Commissioner determines whether an applicant is disabled by 

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

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

404.1520(a)(4); 20 C.F.R. § 416.920(a)(4).

1

 Second, if the claimant has 

not had a severe impairment or a combination of such impairments2 for a 

continuous period of at least 12 months, no disability will be found. Id. 

Third, if the claimant’s severe impairments meet or equal the criteria of an 

impairment set forth in the Commissioner’s Listing of Impairments, the 

claimant will be found disabled. Id. If the fourth step is reached, the 

Commissioner considers its assessment of the claimant’s residual 

functional capacity (“RFC”), and will find the claimant not disabled if he or 

she can still do past relevant work. Id. At the final step, the Commissioner 

reviews the claimant’s RFC, age, education and work experiences, and 

 1 Sections 1520(a)(4) and 920(a)(4), which pertain to DIB and SSI 

respectively, list the same five-step analysis.

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

physical or mental ability to do basic work activities.” §§ 1520(c); 920(c).

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determines whether the claimant could adjust to other work. Id. The 

claimant bears the burden of proof throughout the first four steps, but the 

burden shifts to the Commissioner if the fifth step is reached. Preslar v. 

Sec’y of Health & Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994). 

Applying this framework, the ALJ concluded that Muscott was not 

disabled. At step one, he determined that she had not engaged in 

substantial gainful activity between her alleged onset date of July 1, 2005, 

and her date last insured, December 1, 2010. [R. 11-2, Tr. 38]. At step two 

he identified the severe impairments of bipolar disorder and anxiety. [Id.]. 

At step three, the ALJ concluded that none of Muscott’s impairments, either 

alone or in combination, met or medically equaled a listed impairment. [Id., 

Tr. 38-40]. In making this determination, the ALJ reasoned that Muscott 

suffered from no more than mild limitations in activities of daily living, 

moderate limitations in social functioning, and mild restrictions in 

maintaining concentration persistence and pace, with no episodes of 

decompensation. [Id.]. 

Next, the ALJ assessed Muscott’s residual functional capacity 

(“RFC”), finding her capable of work at all exertional levels that involved no 

interaction with the public and “mild concentration[,] persistence, and pace 

limitations (would be off task five percent of the workday).” [Id., Tr. 40]. At 

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step four, the ALJ concluded that, based on the foregoing RFC, Muscott 

could return to her past relevant work as an embroidery machine operator, 

and therefore she was not disabled. [Id., Tr. 45]. 

II. STANDARD OF REVIEW

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

whether the Commissioner’s decision is supported by substantial evidence 

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

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

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

relevant evidence as a reasonable mind might accept as adequate to 

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

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

Only the evidence in the record below may be considered when 

determining whether the ALJ’s decision is supported by substantial 

evidence. Bass v. McMahon, 499 F.3d 506, 513 (6th Cir. 2007). “If the 

[Commissioner’s] decision is supported by substantial evidence, it must be 

affirmed even if the reviewing court would decide the matter differently, and 

even if substantial evidence also supports the opposite conclusion.” Cutlip 

v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)

(internal citations omitted). 

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With these standards in mind, this Court finds that the ALJ’s 

determination that Muscott is not disabled is supported by substantial 

evidence.

III. ANALYSIS

Muscott argues that the ALJ erred in her application of the treating 

source rule with respect to the opinion of Dr. Jun Tae Cho, Muscott’s 

psychiatrist. She further argues that the ALJ’s rejection of the only medical 

opinion of record left her with no valid medical opinion upon which to rely in 

formulating her RFC and that, as a result, the ALJ “played doctor,” in 

violation of the pertinent regulations and case law. Finally, she argues that 

the ALJ’s decision should be remanded for consideration of the new 

evidence first presented to the Appeals Council, under Sentence Six of the 

Act. None of Muscott’s arguments has merit.

A. Treating Source Rule

Muscott argues that the ALJ erred in her evaluation of the opinions of 

Dr. Cho, a treating physician. The “treating physician rule” requires an ALJ 

to give controlling weight to a treating physician’s opinions regarding the 

nature and severity of a claimant’s condition when those opinions are wellsupported by medically acceptable clinical and diagnostic evidence, and 

not inconsistent with other substantial evidence. Gentry, 741 F.3d at 723, 

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727-29; Rogers, 486 F.3d at 242-43. “Even when not controlling, however, 

the ALJ must consider certain factors, including the length, frequency, 

nature, and extent of the treatment relationship; the supportability of the 

physician’s conclusions; the specialization of the physician; and any other 

relevant factors,” and give appropriate weight to the opinion. Gentry, 741 

F.3d at 723. 

Dr. Cho issued two opinions that were identical except that one was 

dated September 13, 2012 and the other February 18, 2013. [R. 11-7, Tr. 

361, 363]. Both are “To Whom It May Concern” letters stating that Muscott 

had been under Dr. Cho’s psychiatric care since January 16, 2012, when 

her admission diagnosis was bipolar affective disorder, mixed. Dr. Cho 

noted that her symptoms included severe mood swings, depression, 

euphoria, and a lack of interest or energy. [Id.]. According to Dr. Cho,

Muscott’s “mood disturbance is sufficiently severe to cause marked 

impairment in occupational functioning, or in usual social activities or 

relationships with others”; her condition warranted “continued monthly 

psychotherapy and medication management until conditions are feasible 

for remission”; and she was currently responding well to both 

psychotherapy and medication. [Id.]. The ALJ gave little weight to Dr. 

Cho’s conclusions regarding the severity of Muscott’s impairments. [R. 11-

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2, Tr. 43-45]. 

Muscott argues that the ALJ failed to give good reasons for rejecting 

Dr. Cho’s opinions, but the Court finds that the ALJ’s reasoning finds 

support in the record. The ALJ reasoned in part that Dr. Cho had not 

started treating Muscott until January 2012, more than two years after her 

date last insured of December 1, 2010. [R. 11-2, Tr. 36 & 44; R. 11-7, Tr. 

369]. That reasoning has merit. See Siterlet v. Sec’y of Health and Human 

Servs., 823 F.2d 918, 920 (6th Cir. 1987) (opinion only “minimally 

probative” where treating physician began treatment eight months after 

expiration of claimant’s insured status). 

The ALJ further noted that, with the exception of the first 

appointment, Dr. Cho spent only fifteen minutes for each appointment with 

Muscott and did not record therapy notes or mental status exams, 

suggesting that the appointments were merely for medication management. 

[R. 11-2, Tr. 44-45; R. 11-7, Tr. 364-72]. She was permitted to make such 

a “reasonable inference” from the records. SSR 82-62, 1982 SSR LEXIS 

27, at * 9, 1982 WL 31386 (Jan. 1, 1982). 

Another meritorious reason for rejecting Dr. Cho’s opinions was that 

his mental status exam of Muscott at her initial appointment resulted in him 

issuing a GAF score of 65 and indicating that her highest GAF in the past 

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year had been 70. [R. 11-2, Tr. 45; R. 11-7, Tr. 369-72]. As the ALJ 

further noted, nothing in Dr. Cho’s notes suggests the kind of severe 

limitations he alleges in his opinions, and he gave no indication that 

Muscott needed an adjustment of her medications. [R. 11-2, Tr. 43-45; R. 

11-7, Tr. 364-68]. 

For these reasons, the ALJ committed no reversible error in giving 

little weight to Dr. Cho’s opinions. 

B. Medical Basis for RFC

Muscott alleges that because the ALJ gave little weight to Dr. Cho’s 

opinion, the ALJ had no opinion upon which to base her RFC, effectively 

causing her to “[take] on the role of medical expert and translate[ ] the raw 

medical data into functional limitations, which was improper.” [R. 16, PgID 

449]. The Court disagrees. 

The RFC is an administrative determination solely within the province 

of the ALJ, who is required to formulate it “based on all of the relevant 

medical and other evidence” of record. 20 C.F.R. §§ 404.1545(a); 

404.1546(c); Coldiron v. Comm’r of Soc. Sec., 391 Fed. Appx. 435, 439 

(6th Cir. 2010) (the ALJ determines an RFC by considering “numerous 

factors” including “medical evidence, non-medical evidence, and the 

claimant’s credibility”). It is true that “an ALJ should resist the temptation to 

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substitute the ALJ’s own interpretation of medical records for that of a 

physician who has examined the records.” Brown v. Comm’r of Soc. Sec., 

602 Fed. Appx. 328, 331 (6th Cir. 2015). Nonetheless, at the same time, 

the Sixth Circuit in Brown emphasized that the precedent does not “even 

remotely suggests that an ALJ must, as a matter of law, seek out a 

physician’s medical opinion . . . .” Id. Thus, after the ALJ set forth good 

reasons for rejecting Dr. Cho’s opinions, the ALJ did not need to seek out 

another physician’s opinion.

Furthermore, the ALJ did not formulate her RFC in the complete 

absence of a medical opinion. The regulations state a treating physician’s 

opinion that is not entitled to controlling weight should still be considered 

and given appropriate weight. See SSR 96-2p, 1996 SSR LEXIS 9, at *9-

10, 1996 WL 374188 (July 2, 1996); Martin v. Comm'r of Soc. Sec., 170 

Fed. Appx. 369, 372 (6th Cir. 2006). The ALJ complied with this regulation

by including Dr. Cho’s diagnoses and restricting Muscott from working with 

the public. See Hammer v. Comm’r of Soc. Sec., No. 13-10176, 2014 U.S. 

Dist. LEXIS 44076, at *7-8 n.1, 2014 WL 1328190 (E.D. Mich. Mar. 31, 

2014) (finding that “the ALJ did not stray into the field of medicine” by 

evaluating treating physician opinion “in light of the record as a whole and 

determining whether, and to what extent, to incorporate the limitations 

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contained in these statements into the Plaintiff’s RFC.”). 

C. Ability to Work with Others

Muscott argues that the ALJ was required to incorporate a limitation 

based on her allegedly unrebutted testimony that she could not leave her 

house. In support, she cites the ALJ’s statement that Dr. Cho’s mental 

status exam “indicate[d] adequate functioning for working alone. . . .” [R. 

16, PgID 450 (quoting R. 11-2, Tr. 43)]. However, Muscott reads too much

meaning into the truncated sentence she quotes. The ALJ did not endorse 

Dr. Cho’s findings; to the contrary, she gave Dr. Cho’s opinions little weight 

because they were rendered outside of the disability period at issue, 

because Dr. Cho conducted only the one mental status examination, and 

for the other reasons stated above.

Furthermore, the ALJ found Muscott’s claims regarding the limiting 

effects of her impairment less than credible, [R. 11-2, Tr. 42]. The Court 

must accord that determination “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 of Soc. Sec., 127 F.3d 525, 531 (6th 

Cir. 1997). Nonetheless, the ALJ’s credibility finding must be supported by 

substantial evidence in the record. Id. Here, the ALJ’s discussion cited 

Muscott’s ability to care for her three young children; her marriage in 2009;

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her significant interaction with a friend, a sister and husband (from whom 

she was separated); the lack of evidence in the record to confirm Muscott’s 

longitudinal mental status during the insured period; and the lack of work or 

medical records to confirm that she could not sustain substantial gainful 

employment after 2009. [R. 11-2, Tr. 39, 41-44]. This evidence forms a 

substantial basis for the ALJ’s conclusion that, “[s]ince Claimant does have 

some mild depression and anxiety, her [RFC] includes a limitation for no 

contact with the public . . . but otherwise a more restrictive RFC is not 

supported by her records.” [Id., Tr. 45]. 

The Court finds that the ALJ properly considered all of the medical 

and non-medical evidence and generated an RFC based on the credible 

evidence of record. 

D. Sentence Six Remand

Muscott petitions the Court to remand this case under Sentence Six 

of the Act to allow consideration of evidence not before the ALJ. 

Specifically, Muscott seeks consideration of a letter from her therapist, 

Robin Sexton and a Mental Impairment Questionnaire completed by Dr. 

Cho, both dated March 2013, prior to the ALJ’s decision in April, but not 

tendered to the ALJ. [R. 11-2, Tr. 78-82; R. 11-7, Tr. 374-75]. She also

offers mental capacity evaluations completed by both of these providers

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dated after the ALJ’s decision, in July 2013. [R. 11-2, Tr. 8-14; R. 11-7, Tr. 

376-82]. Finally, she offers hospital records from Botsford Hospital from 

September 2012 through March 2013. [R. 11-2, Tr. 85-127]. 

Generally, if the Appeals Council declines to review an ALJ's 

decision, federal courts cannot consider evidence not presented to the ALJ.

Cline v. Comm'r of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996). Sentence 

Six of the Act permits remand only where a subsequent adjudicator is 

presented with “new evidence which is material and that there is good 

cause for the failure to incorporate such evidence in to the record in a prior 

proceeding.” 42 U.S.C. § 405(g) (emphasis added). Muscott must show 

that the records in question are “new,” as in “not in existence or available to 

the claimant at the time of the administrative proceeding.” Foster v. Halter, 

279 F.3d 348, 357 (6th Cir. 2001) (internal quotation marks and citation 

omitted). Evidence is “material” if there is a “reasonable probability” that 

the ALJ would have reached a different decision if the new evidence were 

considered. Id. With respect to the “good cause” requirement, the Sixth 

Circuit “has taken a harder line” and requires a claimant to “give a valid 

reason for his failure to obtain evidence prior to the hearing.” Oliver, 804 

F.2d at 966. It is the claimant’s burden to demonstrate that remand for 

consideration of new evidence is warranted. Foster v. Halter, 279 F.3d 

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348, 357 (6th Cir. 2002). Muscott has failed to meet her burden.

First, the March 2013 records and the Botsford Hospital records are 

not new. Muscott argues that they were new in that they were “not added 

to the record prior to the issuance of the ALJ’s decision . . . .” [R. 16, PgID 

422]. However, the question at hand is whether the records existed or 

were available to Muscott prior to the hearing, not whether they were added 

to the record. Foster, 279 F.3d at 357 (6th Cir. 2001). 

Second, Muscott has not met her burden to show that good cause 

exists for her failure to tender the proffered records at the prior proceeding. 

The ALJ gave Muscott’s prior attorney additional to submit medical records, 

but he did not provide any prior to the decision. [R. 11-2, Tr. 44 & 52]. 

Muscott may have cause to blame her prior counsel for failing to submit the 

March 2013 records and the Botsford Hospital records, but “[m]istakes by 

an attorney are not considered to be ‘good cause’ for purposes of a remand 

under Sentence Six.” Jackson v. Comm’r of Soc. Sec., No. 07-14184, 

2009 U.S. Dist. LEXIS 17243, at *10-11, 2009 WL 612343 (E.D. Mich. Mar. 

6, 2009) (citing Cline, 96 F.3d at 149). The July 2013 evaluations were 

prepared after the ALJ’s decision, but Muscott is required to give a valid 

reason for not securing them prior to the hearing. Oliver, 804 F.2d at 966. 

She provides no reason, let alone a valid one.

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Furthermore, the March and July 2013 evaluations were generated to 

support Muscott’s claim of disability rather than for treatment purposes. 

“[G]ood cause is shown for remand if the new evidence arises from 

continued medical treatment of the condition, and was not generated 

merely for the purpose of attempting to prove disability.” Koulizos v. Sec’y 

of Health & Human Servs., 802 F.2d 458 (unpublished table decision)

reported in full 1986 U.S. App. LEXIS 17275, at *5, 1986 WL 17488, at *2 

(6th Cir. 1986). See also Jackson v. Comm’r of Soc. Sec., No. 12-15036, 

2014 U.S. Dist. LEXIS 43858, at *9-10, 2014 WL 1304913 (E.D. Mich. Mar. 

31, 2014) (citing Koulizos). 

Since Muscott has failed to meet her burden of demonstrating that 

the evidence she proffers is new or that good cause existed for her failure 

to timely submit them, the Court will not reach the question of whether they 

would be material. See Willis v. Sec’y of Health &Human Servs., 727 F.2d 

551, 554 (6th Cir. 1984) (declining to reach issues of newness or 

materiality where good cause standard not met); see also Bass v. 

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

remand based on failure to show good cause alone). 

IV. CONCLUSION

For the foregoing reasons, the Court RECOMMENDS that Muscott’s

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Motion for Summary Judgment [R. 16] be DENIED, the Commissioner’s 

Motion [R. 19] be GRANTED and this case be AFFIRMED.

s/Elizabeth A. Stafford

ELIZABETH A. STAFFORD

United States Magistrate Judge

Dated: October 29, 2015

NOTICE TO THE PARTIES REGARDING OBJECTIONS

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

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

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

72(b)(2). Failure to file specific objections constitutes a waiver of any 

further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. 

Secretary of HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 

638 F.2d 947 (6th Cir. 1981). Filing objections which raise some issues but 

fail to raise others with specificity will not preserve all objections that party 

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

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

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

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

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

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

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

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

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

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

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

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

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

may rule without awaiting the response.

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

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

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

disclosed on the Notice of Electronic Filing on October 29, 2015.

s/Marlena Williams

MARLENA WILLIAMS

Case Manager

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