1 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

KENNETH HOLDEN, 

Plaintiff, CIVIL ACTION NO. 14-CV-14877 

vs. DISTRICT JUDGE AVERN COHN 

MAGISTRATE JUDGE MONA K. MAJZOUB 

COMMISSIONER OF 

SOCIAL SECURITY, 

Defendant. 

___________________________________________/ 

REPORT AND RECOMMENDATION 

Plaintiff Kenneth Holden seeks judicial review of Defendant the Commissioner of Society 

Security’s determination that he is not entitled to Social Security benefits for his 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. 13) and Defendant’s Motion for Summary Judgment 

(docket no. 16). Plaintiff filed a Response to Defendant’s Motion. (Docket no. 17.) 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. 5.) The Court has reviewed the pleadings, dispenses with a 

hearing pursuant to E.D. Mich. L.R. 7.1(f)(2), and issues this Report and Recommendation. 

I. Recommendation 

The undersigned recommends that Plaintiff’s Motion for Summary Judgment (docket no. 

13) be GRANTED and that Defendant’s Motion for Summary Judgment (docket no. 16) be 

DENIED. This matter should be remanded for further consideration as discussed herein. 

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II. Procedural History 

Plaintiff initially filed applications for Disability Insurance Benefits and Supplemental 

Security Income on April 3, 2012, alleging that he had been disabled since May 25, 2010, due to 

back pain, knee pain, cardiovascular problems, and depression. (See TR 13, 16.) Plaintiff filed 

an earlier application for benefits, which was denied in a decision dated May 24, 2010.1 (TR 

73-85.) The Social Security Administration denied benefits. (See TR 157.) Plaintiff requested 

a de novo hearing, which was held on June 28, 2013, before Administrative Law Judge (ALJ) 

Michael R. Dunn, who subsequently found that Plaintiff was not entitled to benefits because he 

was capable of performing a significant number of jobs in the national economy. (TR 13-22.) 

The Appeals Council declined to review the ALJ’s decision, and Plaintiff commenced this action 

for judicial review. The parties then filed their instant Motions. 

III. Plaintiff’s Testimony, Medical Evidence, and Vocational Expert Testimony

Plaintiff (docket no. 13 at 4-6), Defendant (docket no. 16 at 4-10), and the ALJ (TR 18-20) 

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

hearing testimony, and the VE’s testimony. Having conducted an independent review of 

Plaintiff’s medical record and the hearing transcript, the undersigned finds that there are no 

material inconsistencies between these recitations of the record. Therefore, the undersigned will 

incorporate the ALJ’s factual recitation by reference. Additionally, the undersigned will include 

comments and citations as necessary throughout this Report and Recommendation. 

IV. Administrative Law Judge’s Determination

 

1 There appears to be some discrepancy in the record with regard to the date of the prior 

decision as the ALJ indicates that the decision was dated April 18, 2012. (See TR 13.) The April 

18, 2012 date is also reflected in the Transcript Index. (See docket no. 11-3 at 1.) The correct 

date for the decision, however, is May 24, 2010. (TR 73-85.) 

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 The ALJ found that Plaintiff met the insured status requirements of the act through 

December 31, 2010; that he had not engaged in substantial gainful activity since May 25, 2010, his 

alleged onset date; and that he suffered from severe “chronic low back pain; degenerative joint 

disease right knee; alcoholic cardiomyopathy, well compensated; hypertension; chronic 

obstructive pulmonary disorder [COPD]; polysubstance abuse in reported recent remission; and 

depressive disorder.” (TR 16.) The ALJ then found that his impairments did not meet or equal 

those listed in the Listing of Impairments. (TR 16-17.) 

Next, The ALJ found that Plaintiff’s allegations regarding the extent of his symptoms were 

not wholly credible and that Plaintiff could perform light work with the following additional 

limitations: 

[T]he claimant must avoid climbing ladders, ropes, or scaffolds but can 

occasionally climb ramps/stairs, balance, stoop, crouch, and kneel. The claimant 

must avoid crawling but can occasionally engage in overhead reaching and 

handling. The work must be free of concentrated exposure to extreme cold or 

extreme heat, excessive vibrations, and environmental irritants such as fumes, 

odors, dusts, and gases, as well as concentrated exposure to poorly ventilated areas, 

moving machinery, and unprotected heights. The claimant requires low-stress 

work with only occasional decision-making, occasional changes in the work 

setting, and occasional interaction with the public. 

(TR 18-20.) The ALJ then determined, in reliance on the VE’s testimony, that Plaintiff was 

capable of performing work as an office helper, assembler, or inspector. (TR 21-22.) Therefore, 

the ALJ found that Plaintiff was not disabled under the Social Security Act from May, 25, 2010, 

through the date of his decision. (TR 22.) 

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 

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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”). 

B. Framework for Social Security Determinations

 Plaintiff’s Social Security disability determination was made in accordance with a 

five-step sequential analysis. In the first four steps, Plaintiff was required to show that: 

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(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). 

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 

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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 argues that this 

matter should be reversed or remanded because the ALJ failed to properly apply to doctrine of res 

judicata to the May 24, 2010 findings of the prior ALJ; (2) the ALJ failed to properly credit the 

opinions of Plaintiff’s treating physician, Dr. Ammar Kanaan; and (3) the ALJ improperly 

considered Plaintiff’s alcoholism as a “contributing factor” to his disability without conducting an 

alcoholism-addiction analysis. (Docket no. 13.) 

1. The ALJ’s Application of the Res Judicata Doctrine

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). But the Commissioner may not offer proof of just any change in 

circumstance; rather, for the Commissioner to successfully argue that the effects of res judicata do 

not apply, there must be proof showing that the claimant’s condition has improved. McClain v. 

Comm’r, No. 12-11172, 2013 WL 5182089, at *9 (E.D. Mich. Sept. 13, 2013). Thus, without 

evidence of improvement, a prior disability determination is binding on an ALJ in a subsequent 

proceeding. Drummond, 126 F.3d at 842-43 (“It is apparent that substantial evidence was not 

introduced that [the claimant’s] condition improved significantly between the two hearing dates. 

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As a result, we conclude that the second ALJ was bound by the determination that [the claimant] 

retained the RFC for sedentary work.”). Additionally, where a claimant who has previously 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. See Vesey v. Comm’r, No. 11-10967, 2012 

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

On May 24, 2010, Plaintiff was found “not disabled” by ALJ John Rabaut, who determined 

that Plaintiff suffered from severe dilated cardiomyopathy and depression with polysubstance 

abuse of alcohol and crack cocaine. (TR 78.) He further found that Plaintiff had the RFC to 

perform sedentary work with the following additional limitations: 

[T]he claimant can lift or carry up to 10 pounds frequently and up to 10 pounds 

occasionally (from very little, up to 1/3 or (sic) an 8-hour workday); the claimant 

can stand and/or walk (with normal breaks) for a total of 2 hours in an 8-hour 

workday; the claimant can sit (with normal breaks) for a total of 6 hours in an 

8-hour workday; the claimant should never climb ladders, ropes or scaffolds; the 

claimant can occasionally climb ramps or stairs; balance; stoop, crouch, kneel but 

not crawl; the claimant can occasionally engage in overhead reaching and handling; 

the claimant should avoid concentrated exposure to either extreme cold or extreme 

heat; avoid concentrated exposure to excessive vibrations; avoid concentrated 

exposure to environmental irritants such as fumes, odors, dusts, and gases; avoid 

concentrated exposure to poorly ventilated areas; avoid concentrated exposure to 

moving machinery; and avoid all exposure to unprotected heights; the claimant 

requires low stress jobs having only occasional decision making and changes in the 

work setting; and only occasional interaction with the public. 

(TR 80.) Thus, ALJ Dunn was bound by this determination unless he found new and material 

evidence to show an improvement in claimant’s condition. Plaintiff argues that ALJ Dunn erred 

in finding that he was capable of performing light work instead of sedentary work because he 

summarily dismissed Dr. Kanaan’s May 2013 opinion (more on this below) and because he 

ignored evidence “well into the middle of 2013, consistently show[ing] worsening conditions, 

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including congestive heart failure; chronic obstructive pulmonary disease; and knee, back and 

neck pain.” (Docket no. 13 at 8-9 (citing TR 361-68, 416-17, 436-38, 441-46, 451-52, 496-97).) 

Defendant argues that the ALJ did not err because “as the ALJ explained . . . , Plaintiff’s ‘cardiac 

condition appears to have significantly improved.’”2

 (Docket no. 16 at 15 (citing TR 19).) 

 Noting his responsibility under Drummond, ALJ Dunn found that “the medical record 

shows a change in the claimant’s condition since the prior decision and the substantial evidence of 

record supports [his] residual functional capacity [finding].” (TR 19.) The ALJ supports this 

assertion by pointing to a June 15, 2012 consultative examination and further noting that in 

February 2009, Plaintiff’s echocardiogram showed an ejection fraction of 55%, while an April 

2010 echocardiogram showed an improved ejection fraction of 55% to 60%. (Id.) The ALJ also 

noted that Plaintiff’s cardiomyopathy was “well compensated,” and as Defendant notes, Dr. 

Kanaan “characterized Plaintiff’s condition as ‘stable.’” (TR 19; docket no. 16 at 15.) 

 While the ALJ did not mischaracterize any of Plaintiff’s medical records, the undersigned 

agrees with Plaintiff that the evidence cited to by the ALJ is not substantial evidence of an 

improvement in Plaintiff’s condition. To the extent that Plaintiff’s cardiomyopathy and his 

congestive heart failure are characterized as distinct conditions, this is a distinction without 

substantial difference, as both conditions affect Plaintiff’s heart’s ability to pump blood efficiently 

and result in exertional limitations. Moreover, though, the ALJ’s citation to an improved ejection 

fraction from 55% to 55%-60% is inapposite for two reasons: (1) the improvement is marginal, at 

 

2

 As Defendant correctly notes, to the extent Plaintiff’s argument relies on his overall

condition, including his diagnoses of chronic low back pain, degenerative joint disease in his right 

knee, or COPD, ALJ Rabaut did not consider these conditions as they have developed since the 

time of his decision. Thus, ALJ Dunn did not err in failing to consider a prior determination 

related to these impairments, and his findings related thereto are not in question. 

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best; and (2) the second echocardiogram took place in April 2010, before ALJ Dunn’s decision. 

Further, the ALJ’s reliance on Plaintiff’s “well compensated” cardiomyopathy and Defendant’s 

reliance on his “stable” conditions are unpersuasive. The record on which the ALJ relies is from 

February 2009. And while Defendant is correct that Plaintiff’s condition was “stable,” Plaintiff 

points out that the form on which Dr. Kanaan articulated this finding allowed for three choices: 

improving; stable; and deteriorating. (TR 417.) Dr. Kanaan’s choice to mark “stable” over 

“improving” is contrary to the ALJ’s finding that Plaintiff’s condition had improved since 2010. 

Therefore, this matter should be remanded for further consideration of Plaintiff’s residual 

functional capacity in light of ALJ Dunn’s prior determination.3

 

2. Dr. Kanaan’s Opinion 

In connection with his assertion regarding the ALJ’s res judicata application, Plaintiff 

contends that the ALJ failed to properly credit the opinion of his treating physician, Dr. Kanaan. 

(Docket no. 13 at 9.) 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). But it is equally well settled 

that the ultimate issue of disability is reserved to the Commissioner and not the treating or 

examining physician. Kidd v. Comm’r, 283 Fed. Appx. 336, 341 (6th Cir. 2008). Thus, when a 

medical or non-medical source offers an opinion on “an issue reserved to the Commissioner, such 

 

3 Notably, the undersigned does not recommend reversing the ALJ’s disability 

determination. The ALJ’s failure to support his determination that Plaintiff’s condition has 

improved with substantial evidence does not equate to a finding that Plaintiff’s condition has not 

improved. Moreover, as Defendant notes, even if the ALJ determines that Plaintiff is limited to 

sedentary work, a disability determination would turn on the ALJ’s finding with regard to 

Plaintiff’s transferable job skills, and the ALJ has not yet addressed this issue. (See docket no. 16 

at 14 n.4.) 

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as whether the claimant is disabled, the ALJ need not accord that opinion controlling weight.” Id.

(citing Bass v. McMahon, 499 F.3d 506, 511 (6th Cir. 2007)). The opinion of an examining 

source is generally accorded more weight than is the opinion of a source who did not examine the 

claimant. 20 C.F.R. § 404.1527(c)(1). The opinion of a state agency medical or psychological 

consultant is reviewed in the same manner as is the opinion of a nonexamining physician or 

psychologist. 20 C.F.R. §404.1527(e). 

Additionally, 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). 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 

v. Comm’r, 378 F.3d 541, 544 (6th Cir. 2004) (citing Social Security Ruling (SSR) 96-2p, 1996 

WL 374188, at *5 (1996)). If the opinion of a treating source is not afforded controlling weight, 

an ALJ must apply certain factors in determining what weight to give the opinion, including the 

length of the treatment relationship and the frequency of examination, the nature and extent of the 

treatment relationship, supportability of the opinion, consistency of the opinion with the record as 

a whole, and the specialization of the treating source. Wilson, 378 F.3d at 544 (citation omitted). 

Even then, a finding that a treating-source medical opinion is not well supported by medically 

acceptable clinical and laboratory diagnostic techniques or is inconsistent with the other 

substantial evidence in the case record means only that the opinion is not entitled to controlling 

weight, not that the opinion should be rejected. Social Security Ruling (SSR) 96-2p, 1996 WL 

374188, at *4. Notably, though, “it is not the Court’s job to conduct a de novo review of the 

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evidence or to rubber stamp the ALJ’s decision. The Court must ensure both that the ALJ applied 

the correct legal standard and that his decision is supported by substantial evidence. See 

Christephore v. Commissioner of Social Sec., No. 11-13547, 2012 WL 2274328, *6 (E.D. Mich. 

June 18, 2012) (Roberts, J.) 

Nevertheless, the Sixth Circuit has upheld the decision of an ALJ which gave less than 

controlling weight to a treating physician without specifically analyzing the factors set forth in 20 

C.F.R. § 404.1527(c) where the ALJ provided “good reason” for the decision. See Infantado v. 

Astrue, 263 Fed.Appx. 469, 473-74 (6th Cir. 2008). 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). Norris 

v. Comm’r, No. 11-11974, 2012 WL 3584664, at *5 (E.D. Mich. Aug. 20, 2012) (citing Tilley v. 

Comm’r, 394 Fed. Appx. 216, 222 (6th Cir. 2010)). Moreover, an ALJ’s failure to discuss the 

factors of § 1527(c)(2)-(6) 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 [Section 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, 195 Fed. Appx. 462, 470 (6th Cir. 2006) (citing Wilson v. Comm’r, 378 F.3d 

541, 547 (6th Cir. 2004)). 

Here, the ALJ considered Dr. Kanaan’s opinion in light of his assessments in August 2012 

and May 2013: 

As for the opinion evidence, a medical report dated August 2012 by Anmar 

Kanaan, M.D., the claimant’s treating physician, indicated that the claimant was 

medically “stable” and was able to meet his needs in the home. Dr. Kanaan 

reported that the claimant had some swelling and tenderness in the back but all 

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other systems were normal, including normal respiratory, abdominal, neurological 

and mental systems. In a Medical Source Statement dated May 2013, however, 

Dr. Kanaan indicated that the claimant is able to perform less than sedentary work 

exertion with the ability to lift/carry less than 10 pounds at all times, stand/walk for 

less than 2 hours in an 8-hour workday, never perform any postural activities, and 

avoid temperature extremes, dust, vibration, humidity/wetness, hazards, and 

pulmonary irritants. 

These two opinions contradict each other and are not reconciled by the claimant’s 

treatment record between the dates that both opinions were made. In fact, a 

progress note sharing the same dates as the Medical Source Statement indicates that 

the claimant presented for a regular check-up and to have his disability paperwork 

completed. Physical examination was normal and was inconsistent with the 

limitations described by Dr. Kanaan in the Medical Source Statement. 

Accordingly, Dr. Kanaan’s functional assessment that the claimant is able to 

perform less than sedentary work is given little weight. 

(TR 20.) A review of the records to which the ALJ cites does not reveal any readily apparent 

“contradiction.” In August 2012, Dr. Kanaan diagnosed Plaintiff with congestive heart failure 

and dilated cardiomyopathy, noting that Plaintiff’s condition was “stable.” 4

 (TR 416-17.) 

Likewise, and contrary to the ALJ’s finding that Plaintiff’s physical examination was “normal,” in 

May 2013, Dr. Kanaan diagnosed Plaintiff with dilated cardiomyopathy and COPD, also noting 

that Plaintiff presented with “dizziness when he bends down.” (TR 451-52.) Particularly where 

the ALJ failed to consider the factors set forth in C.F.R. § 404.1527(c), these unsupported findings 

do not provide substantial evidence to uphold the ALJ’s determination. 

 Moreover, though, the ALJ gives “little weight” to Dr. Kanaan’s opinion and “no weight” 

to the state agency’s physical assessment without considering any other medical opinions. (TR 

19.) Thus, it is unclear on what opinion the ALJ did rely. It is well settled that “ALJs must not 

succumb to the temptation to play doctor and make their own independent medical 

 

4

 As discussed, supra, Dr. Kanaan’s deliberate decision not to mark Plaintiff’s condition as 

“improving” leads to the logical assumption that Plaintiff’s condition had not (in Dr. Kanaan’s 

opinion) improved from prior visits. 

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findings.” Simpson v. Comm’r of Soc. Sec., 344 App’x 181, 194 (6th Cir. 2009) (quotation 

omitted). So while the ALJ may have considered other evidence in reaching his determination that 

Plaintiff can perform light work, his findings are unclear. This matter should be remanded for 

further consideration of Dr. Kanaan’s opinion and further determination of Plaintiff’s RFC. 

3. Plaintiff’s Alcoholism 

Plaintiff also argues that the ALJ improperly found that his alcoholism contributed to his 

disability without conducting a proper analysis. Under 42 U.S.C. § 423 (d)(2)(C) and 20 C.F.R. 

§§ 404.1535(b)(1), 416.935(b)(1) an ALJ is required to make a determination about whether 

alcoholism or drug addiction is a contributing factor material to a disability determination. 42 

U.S.C. § 423(d)(2)(C) provides that “[a]n individual shall not be considered to be disabled for 

purposes of this [subchapter] if alcoholism or drug addiction would (but for this subparagraph) be 

a contributing factor material to the Commissioner’s determination that the individual is disabled.” 

See also 20 C.R.F. §§ 404.1535(a), 416.935(a). The regulations provide that “[t]he key factor we 

will examine in determining whether drug addiction or alcoholism is a contributing factor material 

to the determination of disability is whether we would still find you disabled if you stopped using 

drugs or alcohol.” 20 C.F.R. §§ 404.1535(b)(1), 416.935(b)(1). As Defendant notes: 

The DAA analysis only applies if an ALJ finds that a claimant is disabled and that 

there is evidence of drug addiction or alcoholism. 20 C.F.R. §§ 404.1535, 416.935. 

In that instance, the ALJ must determine whether the substance abuse is material to 

the disability determination, i.e., whether the claimant would still be disabled if 

they stopped using drugs or alcohol. Id. (“If we determine that your remaining 

limitations would not be disabling [if you stopped using drugs or alcohol], we will 

find that your drug addiction or alcoholism is a contributing factor material to the 

determination of disability.”). If the ALJ finds that substance abuse is “material” to 

the finding of disability, the claimant must avail himself of appropriate treatment in 

order to receive benefits. Id. §§ 404.1536, 416.936. 

(Docket no. 16 at 22.) Thus, Defendant contends, because the ALJ did not find that Plaintiff was 

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disabled, no DAA analysis was necessary. Further, Defendant asserts, the ALJ only referenced 

Plaintiff’s alcoholism in connection with his finding that the state examining physician’s diagnosis 

of schizophrenia was invalid because the physician was “not privy to claimant’s substance abuse,” 

which does not require a DAA analysis. (TR 21.) 

 A review of the ALJ’s decision does not support Defendant’s arguments. The ALJ 

discussed Plaintiff’s alcoholism as follows: 

. . . Other treatment records show that alcohol use was a contributing factor to the 

claimant’s cardiac impairment and the record also showed that the claimant was 

instructed by his treating physician to quit smoking and drinking alcohol 

completely but subsequent progress notes revealed continued use despite these 

instructions. At the hearing, the claimant admitted to recent substance abuse but 

the record shows that he denied such use to treating doctors and mental health 

professionals, including the consultative examiner. Accordingly, the claimant’s 

diagnosis of schizophrenia is invalid since the examining physician was not privy 

to claimant’s substance use. The claimant’s continued substance use also explains 

his severe agitation, as demonstrated at the consultative examination. 

. . . . The record supports the claimant’s alleged impairments but progress notes 

shows that the claimant’s symptoms improved with treatment and he has not 

continue (sic) to require treatment of an ongoing, consistent, or invasive nature. 

Further, the claimant’s impairments all appear to be aggravated by his substance 

abuse, which is in reported remission. 

(TR 21 (emphasis added).) Moreover, the ALJ found at Step 2 that Plaintiff suffered from 

“alcoholic cardiomyopathy.” (TR 16.) Defendant is correct that the ALJ referred to Plaintiff’s 

substance use when declining to adopt the consultative examiner’s diagnosis and that such a 

finding was not inappropriate. But the ALJ’s findings that Plaintiff’s alcohol use was “a 

contributing factor” to his cardiac impairment and that Plaintiff’s impairments “all appear to be 

aggravated by his substance abuse” imply that the ALJ conducted a DAA analysis without 

articulating it in his decision. Therefore, it is unclear whether the ALJ would have found Plaintiff 

disabled had his alcoholism not been a contributing factor. This matter should be remanded for 

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further discussion of this issue by the ALJ. 

 VI. Conclusion 

For the reasons stated herein, Plaintiff’s Motion for Summary Judgment (docket no. 13) 

should be GRANTED, and Defendant’s Motion for Summary Judgment (docket no. 16) should be 

DENIED. This matter should be remanded for further consideration as discussed herein. 

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. 

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16 

Dated: October 6, 2015 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 on counsel of 

record on this date. 

Dated: October 6, 2015 s/ Lisa C. Bartlett 

Case Manager 

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