UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TINA M. KING,

Plaintiff,

v. CASE NO. 14-14330

COMMISSIONER OF DISTRICT JUDGE NANCY G. EDMUNDS

SOCIAL SECURITY,

Defendant.

___________________________/ 

OPINION AND ORDER DENYING PLAINTIFF’S OBJECTIONS TO MAGISTRATE

JUDGE'S REPORT AND RECOMMENDATION [21]; ADOPTING THE REPORT AND

RECOMMENDATION [18]; DENYING PLAINTIFF'S MOTION FOR SUMMARY

JUDGMENT [14]; GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

[16] AND AFFIRMING THE COMMISSIONER'S DECISION

This matter is before the Court on Plaintiff's objections to the magistrate judge's

report and recommendation. (Docket nos. 18, 21, 22.) Having conducted a de novo review

of the parts of the magistrate judge's report and recommendation to which objections have

been filed pursuant to 28 U.S.C. § 636(b)(1), and for the reasons set forth therein and

below, the Court denies Plaintiff's objections, adopts the magistrate judge's report and

recommendation, denies Plaintiff's motion for summary judgment and grants Defendant

Commissioner of Social Security's motion for summary judgment, affirming the

Commissioner's decision in accordance with 42 U.S.C. § 405(g). 

Plaintiff protectively filed for disability benefits ("DIB") and supplemental security

income ("SSI") on January 15 and 9, 2012, respectively. (Transcript 79, 80.) Plaintiff

alleged a disability onset date of June 8, 2006. (Tr. 129, 131.) Her claims were denied on

May 4, 2012, and she requested a hearing before an ALJ. (Tr. 83, 88, 93-94.) The hearing

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was held on May 23, 2013. (Tr. 26.) There was discussion at the hearing of amending

Plaintiff's alleged onset date to June 2, 2008, but the ALJ did not grant the request. (Tr. 30,

146.) In a decision dated June 6, 2013, the ALJ determined that Plaintiff had not been

disabled within the meaning of the Social Security act at any time from June 8, 2006,

through the date of the decision. (Tr. 13-21.) 

On September 13, 2014, the appeals council denied Plaintiff's request for review of

the ALJ's decision. (Tr. 1-6.) Plaintiff filed with this Court on November 11, 2014. (Dkt. 1.)

Plaintiff filed a motion for summary judgment on February 26, 2015. (Dkt. 14.) Defendant

filed a motion for summary judgment on April 27, 2015. (Tr. 16.) The magistrate judge

entered a report and recommendation on December 3, 2015, recommending denying

Plaintiff's motion for summary judgment. (Dkt. no. 18.) Plaintiff filed objections to the report

and recommendation on December 22, 2015, and Defendant filed its response to the

objections on January 4, 2016. (Dkt. nos. 21, 22.)

The Court has reviewed the pleadings, including the ALJ's decision, the record

transcript, the magistrate judge's report and recommendation and the objections and

response. The administrative law judge's ("ALJ") findings and the pertinent portions of the

administrative record are accurately and adequately set forth in the magistrate judge's

report and recommendation as necessary to the analysis, and the Court adopts them here.

(Report and Recommendation, dkt. no. 18.) The Court agrees with the magistrate judge. 

I. Standard of Review

Where a party has properly objected to a magistrate judge's report and

recommendation, the "district judge must determine de novo any part of the magistrate

judge's disposition that has been properly objected to. The district judge may accept, reject,

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or modify the recommended disposition; receive further evidence; or return the matter to

the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3). Pursuant to 42 U.S.C. §

405(g), this Court has jurisdiction to review the Commissioner’s final decisions. "This court

must affirm the Commissioner's conclusions absent a determination that the Commissioner

has failed to apply the correct legal standards or has made findings of fact unsupported by

substantial evidence in the record." Walters v. Comm’r of Soc. Sec., 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.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th

Cir. 2007)(quoting Cutlip v. Sec’y of Health and Human Servs., 25 F.3d 284, 286 (6th Cir.

1994)); see also Richardson v. Perales, 402 U.S. 389, 401 (1971)(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).

 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 another conclusion. See Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th

Cir. 1999). “The substantial evidence standard presupposes that there is a ‘zone of choice’

within which the Secretary may proceed without interference from the courts.” Felisky v.

Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994)(citing Mullen v. Bowen, 800 F.2d 535, 545 (6th

Cir. 1986)).

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II. Analysis

Plaintiff first objects that the ALJ failed to analyze how her obesity was a severe

impairment and its resultant effects on her other severe impairments as required under

Social Security Rulings (SSR) 96-3p and 02-1p. At the time of the May 23, 2013

administrative law judge hearing, Plaintiff testified that she was approximately 5 feet 5

inches tall and weighed 267 pounds. (Tr. 33.) The magistrate judge correctly considered

this issue in the Report and Recommendation and Plaintiff does not raise a new issue here.

As the magistrate judge pointed out, the ALJ found that Plaintiff's obesity was a

severe impairment and both explicitly stated that he had considered its affect on her

medical problems, citing aspects which were considered, and also properly relied on a

consulting physician's opinion which took into account Plaintiff's obesity. (Report and

Recommendation, dkt. no. 18 at 8-9; Tr. 15.) See generally Coldiron v. Comm'r of Soc.

Sec., 391 Fed. Appx. 435, 443 (6th Cir. 2010) (finding that the ALJ sufficiently accounted

for the effect of obesity where he discussed it multiple times in his findings of fact,

concluded that it constituted a "severe impairment", acknowledged that it contributed to the

plaintiff's other medical conditions and "considered RFCs from physicians who explicitly

accounted for" the plaintiff's obesity). The physician on which the ALJ relied, Dr. Choi, had

the benefit of reviewing the record as of May 3, 2012, the date of his opinion, and in the

"additional explanation" of the physical residual functional capacity opinion he reported

Plaintiff's conditions including morbid obesity (BMI-43). (Tr. 66, 76.) The ALJ also

considered and cited examining physician Bharti Sachdev's report, in which the doctor

reported Plaintiff's weight at 261 pounds, assessed morbid obesity and considered her 

insulin resistence in association with the obesity. (Tr. 16, 286.) 

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The magistrate judge noted that Plaintiff in her motion for summary judgment did

"not cite to any portion of the medical record that the ALJ failed to, but should have,

considered in evaluating Plaintiff's obesity," and Plaintiff's objections similarly do not identify

specific evidence that has not been considered in this context. (Report and

Recommendation, dkt. no. 18 at 8.) The magistrate judge properly analyzed this issue and

the ALJ's decision shows that he properly considered Plaintiff's obesity.

In response to Plaintiff's objections related to the ALJ's residual functional capacity

(RFC) finding, the Court notes that the ALJ properly relied on vocational expert testimony

to support his finding that there were significant numbers of jobs in the national economy

which an individual with Plaintiff's residual functional capacity could perform, including the

need for "a sit/stand option that allows her to change position every 20 to 30 minutes." (Tr.

18.) Contrary to Plaintiff's objection, this case is not like Wages v. Sec'y of Health & Human

Servs., wherein the ALJ relied solely on the Medical-Vocational Rules, App. 2 (the "grid").

See Wages v. Sec'ty of Health & Human Servs., 755 F.2d 495, 499 (6th Cir. 1985)

("reliance on the grid was error"). Here, the ALJ did not simply rely on the grid to determine

that Plaintiff has the ability to perform a limited range of sedentary work in the economy and

he properly elicited vocational expert testimony as to what jobs were available for an

individual with Plaintiff's limitations, including the "sit/stand option that allows her to change

position every 20 to 30 minutes." (Tr. 18, 53, 55.) See SSR 83-12 ("Another situation where

VS [vocational specialist] assistance is advisable is where an individual's exertional RFC

does not coincide with the full range of sedentary work." "In cases of unusual limitation of

ability to sit or stand, a VS should be consulted to clarify the implications for the

occupational base."). 

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Next, Plaintiff objects that the ALJ did not analyze severe impairments in sufficient

detail for the Court to review them. (Dkt. 21, p. 4.) Specifically, Plaintiff takes issue with the

role of her obesity, fatigue, and, as the magistrate judge categorized it, her "alleged"

shortness of breath, in the ALJ's RFC. The magistrate judge correctly pointed out that the

ALJ found that Plaintiff's obesity was a severe impairment and that he cited evidence of her

symptoms of fatigue and observations related to her respiratory system. The Court does

not find error, nor does Plaintiff provide legal support for her criticism of the magistrate

judge's terminology categorizing her shortness of breath as "alleged." The ALJ cited the

medical record regarding Plaintiff's reported fatigue, as well as respiratory testing, and

observations on exam, which ranged from clear lungs with no wheezing to the presence

of wheezing. (Tr. 15-18, 253 (fatigue).) In the context of the RFC, the ALJ noted that results

of objective respiratory and cardiac testing did not reveal debilitating pathology, citing for

example, pulmonary function testing in April 2012 and a cardiac work-up in April 2013. (Tr.

17, 19, 297-301, 310-17, 356-70.) 

The ALJ also considered Plaintiff's allegations regarding her limitations and the

credibility of the same. Plaintiff has not cited evidence of shortness of breath which was

ignored, and at least one medical record notes that shortness of breath was controlled with

use of her nebulizer. (Tr. 360.) With respect to obesity, the ALJ cited the record reports that

she was able to ambulate and retained a functional range of motion, yet he also severely

limited her required movement within the workplace by including limitations on movements

such as balancing, stooping, crouching, crawling, squatting and climbing stairs, precluding

the climbing of ladders, ropes or scaffolds. (Tr. 18-19.) He addressed respiratory

impairments and related limitations by including environmental restrictions, and limiting

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Plaintiff's exertional level to sedentary with a sit/stand option. (Tr. 18-19.) 

The ALJ also noted that Plaintiff was diagnosed with an ascending aortic aneurysm,

and that the record does not show that this condition compromised her ability to perform

work activity beyond those limitations set forth in the RFC. (Tr. 17.) The record shows that

even upon being diagnosed with the ascending aortic aneurysm, Plaintiff was counseled

to lose weight and exercise, without providing limitations. (Tr. 363.) The ALJ's RFC was

supported by substantial evidence and he properly explained the basis for the RFC. 

Plaintiff objected to the ALJ's credibility determination because the ALJ included the

statement that "no physician imposed a work preclusive limitation on the claimant's

functioning, or opined that she was completely disabled." (Pl.'s Objections p. 5, dkt. 21; Tr.

19.) Plaintiff argues that Dr. Glick stated that Plaintiff's breathing difficulties disabled her.

(Pl.'s Objections p. 5, dkt. 21.) Plaintiff raised the same issue in her motion for summary

judgment and the magistrate judge fully considered it. The statement to which Plaintiff

refers appears in the following paragraph, which is part of the "History of Present Illness"

portion of Dr. Glick's cardiology consultation report dated April 7, 2013: "She evidently has

significant problems with her back and her knees and is trying to be certified for disability.

She cannot work because of her shortness of breath." (Tr. 310.) This portion of the report

also contains a report of her family member's history, various medical treatment, no

reported drug allergies and her history as a cigarette smoker. (Tr. 310.) There is no basis

for finding that this statement was the doctor's opinion. The next section of the report is

"Physical Exam." (Tr. 311.) The "Impression" and "Plan" portions of the report contain no

limitations. Even if this notation were the doctor's opinion, the Commissioner is responsible

for determining whether a claimant meets the statutory definition of disability; the ALJ "will

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not give any special significance to the source of an opinion[, including treating sources],

on issues reserved to the Commissioner described in paragraphs (d)(1) and (d)(2) of this

section[,]" i.e., whether a person is disabled or unable to work, whether an impairment

meets or equals a Listing, residual functional capacity, and application of vocational factors.

See 20 C.F.R. §§ 404.1527(d)(3); 416.927(d)(3) . To the extent that Plaintiff objects that

Dr. Sachdev's examination revealed "truncal obesity" and testing suggested "mild to

moderate" obstructive airway disease, this was considered by the ALJ. The ALJ properly

explained his credibility determination, relying on required factors under the Regulations,

and it was supported by substantial evidence. See 20 C.F.R. §§ 404.1529(c)(3),

416.929(c)(3). 

Finally, Plaintiff objects that because the state agency examining doctor diagnosed

probable sleep apnea and recommended testing, the ALJ should have sent Plaintiff for

such testing when it had not been performed by the time of the hearing. Dr. Sachdev in his

March 14, 2012 report stated: "At this point, I think she needs aggressive measures in

lifestyle which would include dietary regimen, a walking program to lose weight, as well as

quitting smoking, and a lot of her symptoms may resolve. She will need evaluation for sleep

apnea." (Tr. 286.) Earlier in the report the doctor noted that Plaintiff "thinks she may have

sleep apnea. Her family tells her she snores and quits breathing but she has not been

tested. She states her insurance does not cover the evaluation for sleep apnea and she

cannot afford it herself." (Tr. 285.) The magistrate judge considered this argument at least

in part in the report and recommendation, and correctly noted that the record did not

contain sleep apnea testing nor a resulting diagnosis of sleep apnea. This finding is

supported by Dr. Sachdev's reports which noted Plaintiff's self-report of sleep apnea; sleep

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apnea was not mentioned again in the report from the following April 20, 2012 examination

and pulmonary function testing/spirometry. (Tr. 285.) The case cited by Plaintiff, Sleight v.

Comm'r of Soc. Sec., 896 F. Supp. 2d 622, 630-36 (E.D. Mich. 2012), is distinguishable

from the case at bar. In Sleight the ALJ made a factual error in the decision when he found

there was "no documentation of sleep apnea, the need for oxygen on a daily basis, or

severe limitations due to asthma or depression"; the record contained evidence of a sleep

study, a diagnosis, and the prescribed use of a CPAP machine. Id. at 634. The Sleight

plaintiff also weighed over 400 pounds, and the ALJ found severe impairments of only low

back pain, migraine headaches and bipolar disorder, with no evidence that he had

considered the effect of obesity on these impairments. The court found that the factual error

related to sleep apnea, "taken together" with the failure to consider her obesity under SSR

02-1p, merited remand. Id. at 635. This case does not support Plaintiff's argument that the

ALJ was obligated to send her for sleep apnea testing. Here, the agency ordered an

examination and Plaintiff underwent pulmonary function testing at a second examination.

(Tr. 285-87, 297-301.) The Court also notes that Plaintiff has not identified a resultant

limitation from sleep apnea that was not already considered by the ALJ. 

The ALJ's decision was supported by substantial evidence and the Court does not

find error in the magistrate judge's report and recommendation.

III. Conclusion

For the foregoing reasons, the Court DENIES Plaintiff's Objections (dkt. no. 21),

ADOPTS the Magistrate Judge's Report and Recommendation (dkt. no. 18), DENIES

Plaintiff's Motion for Summary Judgment (dkt. no. 14), GRANTS Defendant's Motion for

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Summary Judgment (dkt. no. 16) and AFFIRMS the decision of the Commissioner pursuant

to 42 U.S.C. § 405(g).

SO ORDERED.

s/Nancy G. Edmunds 

Nancy G. Edmunds

United States District Judge

Dated: March 4, 2016

I hereby certify that a copy of the foregoing document was served upon counsel of record

on March 4, 2016, by electronic and/or ordinary mail.

s/Johnetta Curry-Williams 

Case Manager

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