UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JAMES HONORABLE,

Plaintiff, CASE NO. 2:15-CV-10190-MFL-PTM

v.

COMMISSIONER OF DISTRICT JUDGE MATTHEW F. LEITMAN

SOCIAL SECURITY, MAGISTRATE JUDGE PATRICIA T. MORRIS

Defendant.

 /

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

I. RECOMMENDATION

In light of the entire record in this case, I suggest that substantial evidence does not 

support the Commissioner’s determination that Plaintiff is not disabled. Accordingly, IT IS 

RECOMMENDED that Plaintiff’s Motion for Summary Judgment be GRANTED, that 

Defendant’s Motion for Summary Judgment be DENIED, and that the case be remanded to the 

Commissioner under sentence four of 42 U.S.C. § 405(g).

II. REPORT

A. Introduction and Procedural History

This case was referred to the undersigned magistrate judge, see 28 U.S.C. § 

636(b)(1)(B); E.D. Mich. LR 72.1(b)(3), by Notice of Reference to review the Commissioner’s 

decision denying Plaintiff’s claims for Disability Insurance Benefits (“DIB”). This matter is 

currently before the Court on cross-motions for summary judgment. (Docs. 12, 15.)

Plaintiff James Honorable was almost fifty-one years old at the time of the 

administrative hearing on July 9, 2014. (Transcript, Doc. 10 at 30.) Plaintiff’s past work 

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included work most recently as a military police officer in the United States Army from 2000-

2012, as an armored car driver for less than one year, as a security guard for one year, and as a 

machine operator in a steel processing plant for six years. (Tr. at 216.) Plaintiff filed his claim

on March 15, 2013, alleging that he became unable to work on December 24, 2011. (Tr. at 

175.) The claim was denied at the initial administrative stage. (Tr. at 98.) In denying Plaintiff’s 

claims, the Commissioner considered affective disorders and essential hypertension. (Id.) On 

July 9, 2014, Plaintiff appeared before Administrative Law Judge (“ALJ”) Martha 

Gasparovich, who considered the application for benefits de novo. (Tr. at 25-76.) In a decision 

dated August 26, 2014, the ALJ found that Plaintiff was not disabled. (Tr. at 7-24.) 

On November 18, 2014, the ALJ’s decision became the final decision of the 

Commissioner, see Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004), when

the Appeals Council denied Plaintiff’s request for review. (Tr. at 1-5.) On January 18, 2015,

Plaintiff filed the instant suit, seeking judicial review of the Commissioner’s unfavorable 

decision. (Doc. 1.)

B. Standard of Review

The district court has jurisdiction to review the Commissioner’s final administrative 

decision pursuant to 42 U.S.C. § 405(g). The district court’s review is restricted solely to 

determining whether the “Commissioner has failed to apply the correct legal standard or has 

made findings of fact unsupported by substantial evidence in the record.” Sullivan v. Comm’r 

of Soc. Sec., 595 F. App’x 502, 506 (6th Cir. 2014) (internal citations omitted). 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 quotations omitted). 

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The Court must examine the administrative record as a whole, and may consider any 

evidence in the record, regardless of whether it has been cited by the ALJ. See Walker v. 

Secretary of Health and Human Services, 884 F.2d 241, 245 (6th Cir. 1989). The Court will 

not “try the case de novo, nor resolve conflicts in the evidence, nor decide questions of 

credibility.” Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994). 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.” Id. at 286 (internal citations omitted). 

C. The ALJ’s Five-Step Sequential Analysis

The “[c]laimant bears the burden of proving his [or her] entitlement to benefits.” Boyes 

v. Sec’y of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994); accord Bartyzel v. 

Comm’r of Soc. Sec., 74 F. App’x 515, 524 (6th Cir. 2003). While, in general, the claimant “is 

responsible for providing the evidence” to make a residual functional capacity (“RFC”) 

assessment, before a determination of not disabled is made, the Commissioner is “responsible 

for developing [a claimant’s] complete medical history, including arranging for a consultative 

examination[] if necessary.” 20 C.F.R. § 404.1545(a)(3).

Title II, 42 U.S.C. §§ 401-434, provides DIB to qualifying wage earners who become 

disabled prior to the expiration of their insured status; Title XVI, 42 U.S.C. §§ 1381-1385, 

provides Supplemental Security Income (“SSI”) to poverty-stricken adults and children who 

become disabled. F. Bloch, Federal Disability Law and Practice § 1.1 (1984). “DIB and SSI 

are available only for those who have a ‘disability.’” Colvin v. Barnhart, 475 F.3d 727, 730 

(6th Cir. 2007). “Disability” means:

inability to engage in any substantial gainful activity by reason of any 

medically determinable physical or mental impairment which can be 

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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); 20 C.F.R. § 416.905(a). Disability is to be 

determined through the application of a five-step sequential analysis:

Step One: If the claimant is currently engaged in substantial gainful 

activity, benefits are denied without further analysis.

Step Two: If the claimant does not have a severe impairment or 

combination of impairments that “significantly limits . . . physical or mental 

ability to do basic work activities,” benefits are denied without further 

analysis.

Step Three: If the claimant is not performing substantial gainful activity, 

has a severe impairment that is expected to last for at least twelve months, 

and the severe impairment meets or equals one of the impairments listed in 

the regulations, the claimant is conclusively presumed to be disabled 

regardless of age, education or work experience.

Step Four: If the claimant is able to perform his or her past relevant work, 

benefits are denied without further analysis.

Step Five: Even if the claimant is unable to perform his or her past relevant 

work, if other work exists in the national economy that plaintiff can 

perform, in view of his or her age, education, and work experience, benefits 

are denied.

20 C.F.R. §§ 404.1520, 416.920; see also Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534 

(6th Cir. 2001). “If the Commissioner makes a dispositive finding at any point in the five-step 

process, the review terminates.” Colvin, 475 F.3d at 730.

“Through step four, the claimant bears the burden of proving the existence and severity 

of limitations caused by” an impairment that precludes performance of past relevant work. 

Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003) (cited with approval in Cruse 

v. Comm’r of Soc. Sec., 502 F.3d 532, 540 (6th Cir. 2007)). If the analysis reaches step five,

the burden shifts to the Commissioner to show that “other jobs in significant numbers exist in 

the national economy that [the claimant] could perform given [his or] her RFC and considering 

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relevant vocational factors.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) 

(citing 20 C.F.R. §§ 416.920(a)(4)(v), 416.920(a)(4)(g)); see also Combs v. Comm’r of Soc. 

Sec., 459 F.3d 640, 643 (6th Cir. 2006).

D. The ALJ’s Findings

The ALJ applied the five-step disability analysis to Plaintiff’s claim and found at Step 

One that Plaintiff met the insured status requirements through December 31, 2017, and that 

Plaintiff had not engaged in substantial gainful activity since January 29, 2013, the amended 

alleged onset date. (Tr. at 12.) At Step Two, the ALJ found that Plaintiff’s conditions of 

hypertension, post-traumatic stress disorder (PTSD), degeneration and hallux vagus [sic] 

deformities of the bilateral feet, headaches, degenerative disc disease and osteoarthritis of the 

shoulders were “severe” within the meaning of 20 C.F.R. § 404.1520 and § 416.920. (Tr. at 

13.) At Step Three, she found that Plaintiff did not have an impairment or combination of 

impairments that met or was the medical equivalent of a listing in the regulations. (Tr. at 13-

15.) At Step Four, she found that Plaintiff could perform light work with several limitations

and was unable to perform any past relevant work. (Tr. at 15-20.) She also found that Plaintiff 

was forty-nine years old on the alleged onset date, putting him into the “individual closely 

approaching advanced age” category. (Tr. at 20.) At Step Five the ALJ found that, considering 

Plaintiff’s age, education, work experience and RFC, there were jobs existing in the economy 

in significant numbers that Plaintiff could perform, and therefore Plaintiff was not disabled. 

(Tr. at 20-21.)

E. Administrative Record

A review of the medical evidence of record shows that during his years of military 

service, Plaintiff was involved in an explosion in Afghanistan in 2011. (Tr. at 270.) Plaintiff 

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was treated for back pain, shoulder pain, PTSD, insomnia, memory problems, tinnitus, 

headaches, acid reflux, and hypertension since he returned from military service. (Tr. at 284-

484.)

Plaintiff was examined by Dr. Cynthia Shelby-Lane, M.D., of Disability Determination 

Services (DDS), on July 31, 2012. (Tr. at 267-74.) Dr. Shelby-Lane noted that Plaintiff brought 

a cane but did not use it, and that Plaintiff was alert, awake, and oriented. (Tr. at 269.) Dr. 

Shelby-Lane also noted that Plaintiff’s speech was slow, that he has a slight stutter, and that 

examination revealed some memory problems. (Tr. at 270.) She diagnosed history of chronic 

back pain with dextroscoliosis, chronic shoulder pain, hypertension, tinnitus, headaches, posttraumatic brain injury, insomnia with nightmares, PTSD, esophageal reflux, and erectile 

dysfunction. (Tr. at 270.) Dr. Shelby-Lane concluded that Plaintiff “will need long-term 

ongoing care for his post-traumatic stress disorder and traumatic brain injury.” (Id.)

On February 1, 2013, a Medical Source statement was completed by Michelle Sharp, 

PhD, PTSD Program, Detroit VAMC. Dr. Sharp opined that Plaintiff has moderate limitations 

as to understanding and remembering simple instructions, marked limitations as to 

understanding and remembering complex instructions and moderate limitations as to carrying 

out complex instructions and was otherwise mildly limited in the ability to understand, 

remember and carry out instructions. (Tr. at 277.) She indicated that “[d]uring treatment, vet 

has difficulty remembering material covered in previous sessions[,]” that he has “[t]rouble with 

concentration/focus; distractibility” and “extreme anxiety when around people or exposed to 

noise.” (Id.) As to interaction with others, Dr. Sharp indicated that Plaintiff was markedly 

limited in his ability to interact appropriately with the public, supervisors and co-workers and 

was moderately limited in his ability to respond appropriately to work situations and changes 

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in routine. (Tr. at 278.) Dr. Sharp explained that Plaintiff “experiences significant anxiety 

around others. Also has irritability, anger due to PTSD” and “reports trouble with changes in 

routine due to poor memory – having to ask others to repeat strains work relationships.” (Id.)

On February 28, 2013, Dr. Saroj Chowdhury completed a physical Residual Functional 

Capacity (RFC) Assessment wherein he opined that Plaintiff could not sit, stand, or work any 

hours in a day, could only sit for 30 minutes at a time, stand for 15 minutes at a time, could lift 

only 5 pounds occasionally or frequently, could perform occasional bending, stooping, 

manipulation of both hands and raise his arms over shoulder level. (Tr. at 281.) 

In addition, the record contains a July 24, 2013 decision by the Veteran’s 

Administration granting Plaintiff disability benefits at the 100% rate despite his 70% disabled

rating, beginning on April 19, 2012. (Tr. at 257.) The decision was based on a finding that 

Plaintiff “is unable to secure or follow a substantially gainful occupation as a result of serviceconnected disabilities.” (Tr. at 262.)

At the administrative hearing, Plaintiff testified that he has difficulty concentrating and 

remembering, has pain in his shoulders and back, and can only stand or sit for 15 minutes at a 

time because he has to “constantly move” and change positions. (Tr. at 34, 35-36.) Plaintiff 

walks only within the house or to the car for short distances and going up or down stairs causes 

him pain. (Tr. at 34-35.) Plaintiff stated that he would not even lift a gallon of milk for fear he 

would drop it. (Tr. at 35.) Plaintiff takes frequent naps throughout the day, “maybe eight to 10 

times” because his medication makes him “sleepy all the time.” (Tr. at 35-36.) Plaintiff also 

testified that he gets headaches “at least about four times a day[,]” that he has PTSD, 

depression, that he has flashbacks “[m]aybe three times a week” and anxiety attacks on a daily 

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basis. (Tr. at 36-37.) Plaintiff stated that he does not clean, do laundry, shop or cook, and that 

his fiancée does these jobs. (Tr. at 38.)

The ALJ asked the vocational expert (VE) to consider an individual with Plaintiff’s 

background who could

stand and walk six of eight hours; lift 20 pounds occasionally and 10 

pounds frequently; could only occasionally climb, balance, stoop, kneel, 

crouch, or crawl; is limited to simple, routine, one-to-three step tasks in a 

low-stress environment defined as no quick decision making and no quick 

judgment required on the job; there could be no interaction with the public 

and only occasional interaction with coworkers; the individual would need 

a non-production pace setting; there could be no reaching above shoulder 

level bilaterally.

(Tr. at 40.) 

The VE responded that such a person could perform 8,500 maid and housekeeping 

cleaner jobs, and the 14,000 machine feeder and off-bearer jobs available in the State of 

Michigan at the light level. (Tr. at 40-41.) When asked to limit the person to jobs requiring 

only two hours of standing and walking, and requiring a sit/stand option, the VE responded 

that such a person could perform the 3,100 general office clerk and document preparer jobs, 

the 400 surveillance system monitor jobs, and the 600 tester/sorter/sampler jobs available in 

the Michigan economy. (Tr. at 41-42.) If a person were off-task one-third of the day, or needed 

to take unscheduled breaks approximately three to four times per week for periods of up to 30 

minutes at a time, the VE indicated that such restrictions would preclude performance of any 

job. (Tr. at 42.) The VE answered that his testimony was consistent with the Dictionary of 

Occupational Titles (DOT) expect that the DOT does not address sit/stand options. (Tr. at 42.)

F. Governing Law and Analysis

1. Legal Standard

The ALJ determined that Plaintiff had the RFC

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to perform light work as defined in [the regulations], as the claimant is able 

to lift and/or carry 20 pounds occasionally and 10 pounds frequently and 

sit, stand and/or walk for six hours in an eight hour workday, except: the 

claimant is unable to reach above shoulder level bilaterally, is able to 

occasionally climb, balance, stoop, kneel, crouch or crawl. In addition, the 

claimant is able to perform simple, routine one to three step tasks that are 

performed in a low stress, non-production pace setting, that do not involve 

quick decision making and judgment and that involve no interaction with 

the public and occasional interaction with supervisors and co-workers.

(Tr. at 15-16.) The regulations define light work as involving

lifting no more than 20 pounds at a time with frequent lifting or carrying of 

objects weighing up to 10 pounds. Even though the weight lifted may be 

very little, a job is in this category when it requires a good deal of walking 

or standing, or when it involves sitting most of the time with some pushing 

and pulling of arm or leg controls. To be considered capable of performing 

a full or wide range of light work, you must have the ability to do 

substantially all of these activities. If someone can do light work, we 

determine that he or she can also do sedentary work, unless there are 

additional limiting factors such as loss of fine dexterity or inability to sit for 

long periods of time.

20 C.F.R. § 404.1567(b).

After review of the record, I suggest that the ALJ utilized the proper legal standard in 

his application of the Commissioner’s five-step disability analysis to Plaintiff’s claim. I turn 

next to the consideration of whether substantial evidence supports the ALJ’s decision.

2. Governing Law

The ALJ must “consider all evidence” in the record when making a disability decision. 

42 U.S.C. § 423(d)(5)(B). The regulations carve the evidence into various categories, but the 

only relevant distinction for present purposes is between “acceptable medical sources” and 

“other sources.” 20 C.F.R. § 404.1513. “Acceptable medical sources” include, among others, 

licensed physicians and licensed or certified psychologists. Id. § 404.1513(a). “Other sources” 

include medical sources who are not “acceptable” and almost any other individual able to 

provide relevant evidence. Id. § 404.1513(d). Only “acceptable medical sources” can establish 

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the existence of an impairment. SSR 06-03p, 2006 WL 2329939, at *2. Both “acceptable” 

and non-acceptable sources provide evidence to the Commissioner, often in the form of 

opinions “about the nature and severity of an individual’s impairment(s), including symptoms, 

diagnosis and prognosis, what the individual can still do despite the impairment(s), and 

physical and mental restrictions.” Id. at *2. When “acceptable medical sources” issue such 

opinions, the regulations deem the statements to be “medical opinions” subject to a multifactor test that weighs their value. 20 C.F.R. § 404.1527. Excluded from the definition of 

“medical opinions” are various decisions reserved to the Commissioner, such as whether the 

claimant meets the statutory definition of disability and how to measure his or her residual 

functional capacity. Id. at 404.1527(d).

The ALJ must use a six-factor balancing test to determine the probative value of 

medical opinions from acceptable sources. 20 C.F.R. § 404.1527(c). The test looks at whether 

the source examined the claimant, “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 specialization of the 

treating source.” Wilson, 378 F.3d at 544. See also 20 C.F.R. § 404.1527(c). ALJs must also 

apply those factors to “other source” opinions. See Cruse, 502 F.3d at 540-42; SSR 06-3p, 

2006 WL 2329939, at *2. 

Certain opinions of a treating physician, in contrast, receive controlling weight if they 

are “well-supported by medically acceptable clinical and laboratory diagnostic techniques” and 

are “not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. § 

404.1527(d)(2). See also Wilson, 378 F.3d at 544. The only opinions entitled to dispositive 

effect deal with the nature and severity of the claimant’s impairments. 20 C.F.R. § 

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404.1527(d); SSR 96-2p, 1996 WL 374188, at *1-2. Therefore, the ALJ does not owe a 

treating opinion deference on matters reserved to the Commissioner. 20 C.F.R. § 404.1527(d); 

SSR 96-2p, 1996 WL 374188, at *1-2. The ALJ “will not give any special significance to the 

source of an opinion” regarding whether a person is disabled or unable to work, whether an 

impairment meets or equals a Listing, the individual’s residual functional capacity (“RFC”), 

and the application of vocational factors. 20 C.F.R. § 404.1527(d)(3). 

The regulations mandate that the ALJ provide “good reasons” for the weight assigned to 

the treating source’s opinion in the written determination. 20 C.F.R. § 404.1527(c)(2). See also 

Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 875 (6th Cir. 2007). Therefore, a decision denying 

benefits

must contain specific reasons for the weight given to the treating source’s 

medical opinion, 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 opinion and the reasons for that 

weight. 

SSR 96-2p, 1996 WL 374188, at *5 (1996). See also Rogers, 486 F.3d at 242. For example, an 

ALJ may properly reject a treating source opinion if it lacks supporting objective evidence. 

Revels v. Sec. of Health & Human Servs, 882 F. Supp. 637, 640-41 (E.D. Mich. 1994), aff’d, 

51 F.3d 273, 1995 WL 138930, at *1 (6th Cir. 1995) (unpublished table decision).

An ALJ must analyze the credibility of the claimant, considering the claimant’s 

statements about pain or other symptoms with the rest of the relevant evidence in the record 

and factors outlined in Social Security Ruling 96-7p. Credibility determinations regarding a 

claimant’s subjective complaints rest with the ALJ. See Siterlet v. Sec’y of Health & Human 

Servs., 823 F.2d 918, 920 (6th Cir. 1987). Generally, an ALJ’s credibility assessment can be 

disturbed only for a “compelling reason.” Sims v. Comm’r of Soc. Sec., No. 09-5773, 2011 WL 

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180789, at *4 (6th Cir. Jan. 19, 2011) (citing Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 

2001)); Warner, 375 F.3d at 390. 

The Social Security regulations establish a two-step process for evaluating subjective 

symptoms, including pain. 20 C.F.R. § 404.1529; SSR 96-7p, 1996 WL 374186, at *2. The 

ALJ evaluates complaints of disabling pain by confirming that objective medical evidence of 

the underlying condition exists. The ALJ then determines whether that condition could 

reasonably be expected to produce the alleged pain or whether other objective evidence 

verifies the severity of the pain. See 20 C.F.R. § 404.1529; SSR 96-7p, 1996 WL 374186, at 

*2; Stanley v. Sec’y of Health & Human Servs., 39 F.3d 115, 117 (6th Cir. 1994). The ALJ 

ascertains the extent of the work-related limitations by determining the intensity, persistence, 

and limiting effects of the claimant’s symptoms. SSR 96-7p, 1996 WL 374186, at *2. 

While “objective evidence of the pain itself” is not required, Duncan v. Sec’y of Health 

& Human Servs., 801 F.2d 847, 853 (6th Cir. 1986) (quotation omitted), a claimant’s 

description of his physical or mental impairments alone is “not enough to establish the 

existence of a physical or mental impairment,” 20 C.F.R. § 404.1528(a). Nonetheless, the ALJ 

may not disregard the claimant’s subjective complaints about the severity and persistence of 

the pain simply because they lack substantiating objective evidence. SSR 96-7p, 1996 WL 

374186, at *1. Instead, the absence of objective confirming evidence forces the ALJ to 

consider the following factors:

(i) [D]aily activities;

(ii) The location, duration, frequency, and intensity of . . . pain;

(iii) Precipitating and aggravating factors;

(iv) The type, dosage, effectiveness, and side effects of any medication . . . 

taken to alleviate . . . pain or other symptoms;

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(v) Treatment, other than medication, . . . received for relief of . . . pain;

(vi) Any measures . . . used to relieve . . . pain.

20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). See also Felisky, 35 F.3d at 1039-40; SSR 96-7p, 

1996 WL 374186, at *3. Furthermore, the claimant’s work history and the consistency of her 

subjective statements are also relevant. 20 C.F.R. § 404.1527(c); SSR 96-7p, 1996 WL 

374186, at *5.

The claimant must provide evidence establishing his or her RFC. The statute lays the 

groundwork for this, stating, “An individual shall not be considered to be under a disability 

unless he [or she] furnishes such medical and other evidence of the existence thereof as the 

Secretary may require.” 42 U.S.C. § 423(d)(5)(A). See also Bowen, 482 U.S. at 146 n.5. The 

RFC “is the most he [or she] can still do despite his [or her] limitations,” and is measured using 

“all the relevant evidence in [the] case record.” 20 C.F.R. § 404.1545(a)(2). A hypothetical

question to the VE is valid if it includes all credible limitations developed prior to step five. 

Casey v. Sec. of Health & Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993); Donald v. 

Comm’r of Soc. Sec., No. 08-14784-BC, 2009 WL 4730453, at *7 (E.D. Mich. Dec. 9, 2009).

3. Analysis

Plaintiff contends that the ALJ’s RFC determination and credibility analysis were not 

made in proper compliance with the applicable standards and that they are not supported by 

substantial evidence. (Doc. 12 at 11-16.) In addition, Plaintiff contends that the ALJ erred in 

evaluating and failing to properly explain her evaluation of Plaintiff’s disability rating from the 

Veteran’s Administration. (Doc. 12 at 16-18.) 

a. Res judicata standards

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Although neither party addresses the issue, I note that there was a previous decision by 

an ALJ dated January 8, 2013. (Tr. at 77-91.) In the Sixth Circuit, a prior decision by the 

Commissioner can preclude relitigation in subsequent cases: 

When adjudicating a subsequent disability claim with an unadjudicated 

period arising under the same title of the Act as the prior claim, 

adjudicators must adopt such a finding from the final decision by an ALJ or 

the Appeals Council on the prior claim in determining whether the claimant 

is disabled with respect to the unadjudicated period unless there is new and 

material evidence relating to such a finding or there has been a change in 

the law, regulations or rulings affecting the finding or the method for 

arriving at the finding. 

AR 98-4(6), 1998 WL 283902, at *3 (acquiescing to Drummond, 126 F.3d at 837. The 

regulations also explicitly invoke res judicata: An ALJ can dismiss a hearing request where 

“res judicata applies in that we have made a previous [final] determination or decision under 

this subpart about your rights.” 20 C.F.R. §§ 404.957, 416.1457. The res judicata effect of past 

ALJ decisions is actually a form of collateral estoppel precluding reconsideration of discrete 

factual findings and issues. See Brewster v. Barnhart, 145 F. App’x 542, 546 (6th Cir. 2005) 

(“This Court will apply collateral estoppel to preclude reconsideration by a subsequent ALJ of 

factual findings that have already been decided by a prior ALJ when there are no changed 

circumstances requiring review.”).1 The Commissioner’s internal guide explains the different 

issues and factual findings precluded by res judicata under Drummond. Soc. Sec. Admin., 

Hearings, Appeals, and Litigation Law Manual, § I-5-4-62, 1999 WL 33615029, at *8-9 (Dec. 

30, 1999). These include the RFC and various other findings along the sequential evaluation 

process, such as “whether a claimant’s work activity constitutes substantial gainful activity,” or 

whether she meets or equals a listing. Id. In other words, even though the first ALJ did not 

 

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make any findings concerning later periods, his or her decision still applies to those periods 

absent the requisite proof. 

To overcome the presumption that the claimant remains able to work in a subsequent 

period, the claimant must proffer new and material evidence that his or her health declined. See 

Kennedy v. Astrue, 247 F. App’x 761, 768 (6th Cir. 2007). Evidence of “changed 

circumstances” after the prior decision allows the ALJ to make new findings concerning the 

unadjudicated period without disturbing the earlier decision. See Bailey ex rel. Bailey v. Astrue, 

No. 10-262, 2011 WL 4478943, at *3 (E.D. Ky. Sept. 26, 2011) (citing Drummond, 126 F.3d 

at 842-43). Thus, as applied in this Circuit, the AR 98-4(6) and Drummond essentially create a 

presumption that the facts found in a prior ruling remain true in a subsequent unadjudicated 

period unless “there is new and material evidence” on the finding. See Makinson v. Colvin, No. 

5:12CV2643, 2013 WL 4012773, at *5 (N.D. Ohio Aug. 6, 2013) (adopting Report & 

Recommendation) (“[U]nder Drummond and AR 98-4(6), a change in the period of disability 

alleged does not preclude the application of res judicata.”) (citing Click v. Comm’r of Soc. 

Sec., No. 07-13521, 2009 WL 136890, at *4 (E.D. Mich. Jan. 16, 2009))); cf. Randolph v. 

Astrue, 291 F. App’x 979, 981 (11th Cir. 2008) (characterizing the Sixth Circuit’s rule as 

creating a presumption); Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988) (“The claimant, 

in order to overcome the presumption of continuing nondisability arising from the first 

administrative law judge’s findings of nondisability, must prove ‘changed circumstances’ 

indicating a greater disability.” (quoting Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir. 

1985))). 

In Drummond, for example, the court held that the first ALJ’s RFC applied to a 

subsequent period unless the circumstances had changed. 126 F.3d at 838-39, 843. See also 

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Priest v. Soc. Sec. Admin., 3 F. App’x 275, 276 (6th Cir. 2001) (noting that in order to win 

benefits for a period after a previous denial, the claimant “must demonstrate that her condition 

has so worsened in comparison to her condition [as of the previous denial] that she was unable 

to perform substantial gainful activity”); Casey, 987 F.2d at 1232-33 (same). The Sixth Circuit 

made this clear in Haun v. Commissioner of Social Security, rejecting the argument that 

Drummond allowed a second ALJ to examine de novo the unadjudicated period following the 

first denial. 107 F. App’x 462, 464 (6th Cir. 2004). The Sixth Circuit has consistently anchored 

the analysis on the comparison between “circumstances existing at the time of the prior 

decision and circumstances existing at the time of the review . . . .” Kennedy, 247 F. App’x at

768.

As discussed below, the Court finds that the July 24, 2013, VA disability decision may 

have provided sufficient evidence of changed circumstances such that the ALJ was not bound 

by the earlier ALJ decision, and was thus obligated to consider Plaintiff’s condition during the 

unadjudicated period. 

b. The ALJ Failed to Explain the Weight Given to the VA’s Decision

Taking Plaintiff’s second issue first, “a disability rating from the Veteran’s 

Administration is entitled to consideration, but we have not specified the weight such a 

determination should carry when determining social security disability eligibility.” Ritchie v. 

Comm’r of Soc. Sec., 540 F. App’x 508, 510 (6th Cir. 2013), citing Stewart v. Heckler, 730 

F.2d 1065, 1068 (6th Cir. 1984); accord SSR 06-03, 2006 WL 2329939, at *3 (Aug. 9, 2006)

(“Evidence of a disability decision by another governmental [] agency cannot be ignored and 

must be considered.”). Several district courts within the Sixth Circuit have indicated that the 

ALJ must assign some weight to the VA’s decision and articulate her reasons for the weight 

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given. See King v. Comm’r of Soc. Sec., 779 F. Supp. 2d 721, 726 (E.D. Mich. 2011)

(“disability determinations of other governmental agencies should be taken into account.”); 

Partin v. Comm’r of Soc. Sec., No. 1:09-cv-368, 2010 WL 3779304, at *2 (W.D. Mich. Sept. 

22, 2010) (“the ALJ is not bound by the VA’s determination; however, as plaintiff points out, 

the law requires that the VA findings be taken into consideration.”); Gibson v. Astrue, No. 09-

105-GWU, 2010 WL 148807, at *5 (E.D. Ky. Jan. 14, 2010) (The ALJ should have addressed 

the VA’s disability finding); Proctor v. Comm’r of Soc. Sec., No. 1:09-cv-127, 2010 WL 

4026083, at *9 (S.D. Ohio Sept. 17, 2010) (“The Sixth Circuit, by implication, requires that 

the ALJ consider the decision of the Veteran[s] Administration and to articulate reasons for 

the amount of weight it assigns to the decision.”). In addition, the Fourth, Fifth, Ninth, and 

Eleventh Circuits have held that a VA decision is entitled to “great weight.” See DeLoatche v. 

Heckler, 715 F.2d 148, 150 (4th Cir. 1983); Chambliss v. Heckler, 269 F.3d 520, 522 (5th Cir. 

2001); McCartey v. Massanari, 298 F.3d 1072 (9th Cir. 2002); Brady v. Heckler, 724 F.2d 

914, 921 (11th Cir. 1984).

Here, as in Ritchie, the ALJ noted that she was not bound by the VA disability decision. 

In addition, she appeared to recognize the res judicata issue. The ALJ’s entire consideration of 

the VA decision reads:

I note that VA disability rating verification dated July 24, 2013 indicates 

that the claimant remains 70% disabled but will be paid at the 100% 

disability rate (Exhibit B9E). This suggests that the severity of his 

impairments have not worsened since the previous hearing decision. In 

addition, I give this assessment little weight during the disability analysis, 

as VA benefits are based upon different standards and criteria that Title II 

disability and disability insurance benefits.

(Tr. at 18.) As noted above, the prior ALJ decision which has the preclusive effect was dated 

January 8, 2013. The ALJ then concludes that the July 24, 2013 VA decision somehow 

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“suggests” that Plaintiff’s condition has not worsened since the prior ALJ decision. The ALJ 

was perhaps relying on the fact that only six months had passed between the prior ALJ 

decision and the VA decision, but even that small passage of time could result in changed 

severity. However, this is not a case where the prior VA decision was so distant in time as to 

be nearly irrelevant. Cf., Ritchie, 540 F. App’x at 511 (holding that a VA disability decision 

rendered in 1987 was so far removed from the question of whether the claimant was disabled 

between 2004 and 2009 that the ALJ was not obligated to discuss the weight given in detail). 

The ALJ’s reasoning is therefore not adequate to justify ignoring the VA decision. Because the 

VA decision post-dates the previous ALJ decision by six months, I find that this decision may 

provide sufficient evidence of deterioration in Plaintiff’s condition which could constitute 

“changed circumstances,” thus requiring that the ALJ to make new findings regarding the 

unadjudicated period.

In addition, simply noting that there is a difference in standards applied to VA decisions 

and social security decisions alone without explanation as to how those differences affect the 

findings is insufficient to explain why the VA decision should be ignored. The need for 

explanation as to why a VA decision was rejected is “particularly true in cases, such as this, 

where the VA’s disability determination was more recently dated than the other medical 

evidence in the record relied upon by the ALJ.” Briskey v. Astrue, No. 1:09-CV-2705, 2011 

WL 672553, at *5 (N.D. Ohio Feb. 15, 2011). I therefore suggest that substantial evidence 

does not support the ALJ’s decision.

Once it has been determined that the Commissioner’s administrative decisions are not 

supported by substantial evidence, a district court faces a choice. It may either remand the case 

to the Commissioner for further proceedings or direct the Commissioner to award benefits. The 

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court may reverse and direct an award of benefits if “all essential factual issues have been 

resolved and the record adequately establishes a plaintiff’s entitlement to benefits . . . where 

the proof of disability is overwhelming or where proof of disability is strong and evidence to 

the contrary is lacking.” Felisky, 35 F.3d at 1041; accord, Faucher v. Sec’y of Health and 

Human Servs., 17 F.3d 171, 176 (6th Cir. 1994). This comports with the principle that “where 

remand would be an idle and useless formality, courts are not required to convert judicial 

review of agency action into a ping-pong game.” Wilson v. Comm’r of Soc. Sec., 378 F3d 541, 

547 (6th Cir. 2004) (citations omitted).

I suggest that proof of disability is not so overwhelming as to justify remand for an 

award of benefits. I therefore recommend that the case be remanded under sentence four of 42 

U.S.C. § 405 (g) to the Commissioner to consider the VA decision and to explain, with 

reference to medical findings, the weight given the VA decision. Since remand is 

recommended, I need not address Plaintiff’s other issues.

G. Conclusion

For all these reasons, after review of the record, I suggest that the decision of the ALJ, 

which ultimately became the final decision of the Commissioner, is not supported by 

substantial evidence. Therefore, the case should be remanded under sentence four of 42 U.S.C. 

§ 405 (g) to the Commissioner to consider the VA decision and to explain, with reference to 

medical findings, the weight given the VA decision.

III. REVIEW

Rule 72(b)(2) of the Federal Rules of Civil Procedure states that “[w]ithin 14 days after 

being served with a copy of the recommended disposition, a party may serve and file specific 

written objections to the proposed findings and recommendations. A party may respond to 

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another party’s objections within 14 days after being served with a copy.” Fed. R. Civ. P. 

72(b)(2); see also 28 U.S.C. § 636(b)(1). Failure to file specific objections constitutes a waiver 

of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 155; Howard v. Sec’y of Health & 

Human Servs., 932 F.2d 505, 508 (6th Cir. 1991); United States v. Walters, 638 F.2d 947, 950 

(6th Cir. 1981). The parties are advised that making some objections, but failing to raise others, 

will not preserve all the objections a party may have to this Report and Recommendation. 

Willis v. Sec’y of Health & 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). According to E.D. Mich. 

LR 72.1(d)(2), a copy of any objections is to be served upon this magistrate judge.

Any objections must be labeled as “Objection No. 1,” “Objection No. 2,” etc. Any 

objection must recite precisely the provision of this Report and Recommendation to which it 

pertains. Not later than 14 days after service of an objection, the opposing party may file a 

concise response proportionate to the objections in length and complexity. Fed. R. Civ. P. 

72(b)(2); E.D. Mich. LR 72.1(d). The response must specifically address each issue raised in 

the objections, in the same order, and labeled as “Response to Objection No. 1,” “Response to 

Objection No. 2,” etc. If the Court determines that any objections are without merit, it may rule 

without awaiting the response.

Date: November 19, 2015 s/ Patricia T. Morri

Patricia T. Morris

United States Magistrate Judge

CERTIFICATION

I hereby certify that the foregoing document was electronically filed this date through 

the Court’s CM/ECF system which delivers a copy to all counsel of record.

Date: November 19, 2015 By s/Kristen Krawczyk 

 Case Manager to Magistrate Judge Morris

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