UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

DEBORAH ELLEN FURLO, 

 Plaintiff, Case No. 14-cv-14392 

v Honorable Thomas L. Ludington 

CAROLYN W. COLVIN, acting 

Commissioner of social security, 

 

Defendant. 

__________________________________________/ 

ORDER OVERRULING PLAINTIFF’S OBJECTIONS, ADOPTING THE REPORT 

AND RECOMMENDATION, DENYING PLAINTIFF’S MOTION FOR SUMMARY 

JUDGMENT, GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, 

AND AFFIRMING THE DECISION OF THE COMMISSIONER 

 Magistrate Judge Patricia T. Morris authored a Report and Recommendation addressing 

Plaintiff Deborah Ellen Furlo’s motion for summary judgment and Defendant commissioner of 

social security Carolyn W. Colvin’s motion for summary judgment. ECF Nos. 13, 17. In the 

report and recommendation, Judge Morris recommends denying Plaintiff’s motion for summary 

judgment and granting Defendant’s motion for summary judgment. ECF No. 19. Plaintiff 

timely filed objections. ECF No. 21. Plaintiff Furlo’s objections will be overruled and the report 

and recommendation will be adopted. Accordingly, Plaintiff’s motion for summary judgment 

will be denied, Defendant’s motion for summary judgment will be granted, and Plaintiff’s claims 

will be dismissed with prejudice. 

I. 

Plaintiff Deborah Furlo was 50 years old at the most recent administrative hearing. Tr. 

19, 32. Plaintiff’s highest education level is the 11th grade, and she does not have a driver’s 

license. Tr. 34. She testified that she has two children from a previous marriage, ages 25 and 23, 

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but that she divorced her husband because of physical abuse. Tr. 33, 47. At the time of her ALJ 

hearing on July 30, 2013, Plaintiff testified that she was currently living in a duplex with her 

boyfriend and his father. Tr. 33, 47-48. 

A. 

Plaintiff Furlo has a notably sparse work history. Furlo’s most recent full-time 

employment was in 1998, at which time she worked at a motel cleaning rooms and doing 

laundry. Tr. 35-36. According to Plaintiff, that employment lasted a while, but she could not 

recall specifically how long she held that job. 

B. 

Plaintiff Furlo has a number of ongoing medical issues, including Hepatitis C, arthritis, 

depression, and substance abuse. Furlo has seen numerous doctors regarding these medical 

issues, including her primary care provider, Nurse Practitioner Barbara Kish, Psychologist 

Nathalie Menendes, Psy.D., Doctor Siva Sankaran, M.D., and Rheumatologist Albert Manlapit, 

M.D. Additionally, Doctor Bruce Douglass, Ph.D. performed a mental residual functional 

capacity assessment on behalf of the state on September 4, 2012 but did not personally examine 

Furlo. 

i. 

Furlo was diagnosed with Hepatitis C sometime during or before 2005. Tr. 261. Pursuant 

to an October 3, 2012 state medical examination, Dr. Sankaran noted that Furlo had no current 

problems related to hepatitis C such as nausea, vomiting, or diarrhea, or chronic liver disease. 

Tr. 211-12. 

ii. 

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Furlo has been diagnosed with joint pain in her neck and hands. In April of 2011, Furlo’s 

primary care provider N.P. Kish found that Furlo had arthralgia in her hands. Dr. Sankaran 

found that Plaintiff struggled with joint pain during the October 3, 2012 state medical exam. He 

noted that Furlo had been to the emergency room at Covenant Health Center about two years 

earlier, where she underwent a number of X-Rays. Tr. 210. Based on those X-rays, Furlo had 

been informed that she had arthritis in her neck and that she might have early degenerative 

arthritis in her hands. Id. Dr. Sankaran concluded that, despite Furlo’s alleged history of 

arthritis, clinical data showed no limitation of motion in her neck and no arthritis in her hands. 

Id. He further concluded that she had good intact grip, did not use a cane or walker, had no 

difficulty doing day-to-day chores, and was able to walk a mile without difficulty. Tr. 211. He 

found that Furlo was able to open a jar, button clothing, write legibly, pick up a coin, and tie 

shoelaces with either hand. Tr. 212. 

In a subsequent November 2012 visit to N.P. Kish, N.P. Kish determined that Furlo had 

rheumatoid arthritis, and referred her to Dr. Manlapit, a rheumatologist. Furlo saw Dr. Manlapit 

on April 18, 2013. Tr. 261. At that time, Furlo denied any weight loss, anorexia, fever, or chills, 

but noted that she was fatigued. Id. In a report, Dr. Manlapit noted that both Furlo’s wrists were 

slightly irritable on extension, and that her right wrist was more tender than her left. Tr. 262. She 

determined that Furlo had “Mild Mixed Cryoglobulinemia associated with inflammatory type 

arthralgia and paresthesias but without any renal involvement, palpable purpura, or hepatic 

involvement.” Dr. Manlapit concluded that Furlo had “no distinct features of Rheumatoid 

Arthritis and her CCP antibody is negative.” Id.

iii. 

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Furlo also struggles with mental health. Furlo was examined by Psychologist Menendes, 

on August 30, 2012. Tr. 205. In her report, Dr. Menendez noted that Furlo was diagnosed with 

depression years ago and that Furlo slept a lot, that her appetite was poor, and that she was often 

irritated. Menendez also noted that Furlo had some suicidal ideation and often felt “hopeless and 

helpless.” Furthermore, Menendez noted that Furlo had poor motivation, low energy, and 

difficulty concentrating, and did not socialize much. Id. Despite these limitations, Dr. Menendez 

found that Furlo was able to function independently and able to “perform and remember 

concrete, repetitive, and tangible tasks such as activities of daily living and housekeeping 

duties.” Tr. 206-208. Dr. Menendez also found: 

[Furlo] likely has the capability to perform complex or multi-step tasks, make 

independent work related decisions, and engage in abstract thinking and work that 

is not routine. However, her symptoms of depression will interfere with her 

ability to perform any job duty, simple or complex, on a consistent and reliable 

basis. Further, she would likely not handle frustrating situations well and should 

not be expected to be able to cope with stress or difficult situation in the work 

setting. Her social skills are adequate and she should be able to interact 

appropriately with others. 

Tr. 208. 

 Doctor Bruce Douglass, Ph.D. performed a mental residual functional capacity 

assessment on behalf of the state on September 4, 2012, but did not personally examine Furlo. 

Tr. 69-71. Based on the medical evidence, Dr. Douglass found that Furlo had a severe affective 

disorder that moderately restricted her daily living, social functioning, and concentration, 

persistence or pace. Tr. 68. Dr. Douglass also found that there was no evidence of repeated 

episodes of decompensation, or any evidence of “C” criteria. Dr. Douglass found Furlo’s claims 

that she was very sick with hepatitis C and had “really bad” arthritis in her neck and hands to be 

unsupported by the evidence. Tr. 69. Dr. Douglass accordingly found her claims to be “Not 

credible.” Id. 

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Dr. Douglass concluded that “[c]oncentration, pace, and persistence are 

mildly/moderately impaired, and workplace performance will vary with mood and/or 

distractibility in demanding work settings.” Id. He also explained that “[s]ocial functioning is 

moderately restricted, and the claimant might not work well with the public. She will work best 

alone or in small, familiar groups without significant contact with the public. Self care is intact.” 

Id. Ultimately, Dr. Douglass determined that Furlo had the capacity to perform routine, 2-step 

tasks on a sustained basis. Id. 

iv. 

Finally, Furlo has a history of substance abuse. Following the October 3, 2012 

appointment, Dr. Sankaran noted that Furlo drank a couple of glasses of vodka twice a week. 

Dr. Menendes noted that Furlo had abused alcohol, heroin, cocaine, and prescription medications 

in the past, and that Furlo had been in substance abuse treatments about four times in the past. 

Tr. 205-06. 

In a January 21, 2013 episode, emergency medical services were called to Furlo’s home 

after she had been drinking all day and abusing recently prescribed medications. Tr. 256. At the 

time Furlo complained of depression and suicidal thoughts, and so she was taken to the hospital 

where she tested positive for alcohol, benzodiazepine, and cocaine. Tr. 240. She was ultimately 

diagnosed with acute alcohol intoxication, acute generalized malaise, acute generalized pain, and 

acute cocaine abuse. Tr. 41. On July 10, 2013, N.P Kish informed Furlo that she could no longer 

receive any narcotic medications due to her intermittent cocaine use. Tr. 286. 

A. 

On June 28, 2012, Plaintiff filed the present claim for Social Security Insurance, alleging 

that she became unable to work on June 19, 2012, when she was 49 years old. Tr. 119. Under 

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the Social Security Act (“The Act”), a claimant is entitled to disability benefits if she can 

demonstrate that she is in fact disabled. Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). 

Disability is defined by The Act as an “inability to 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); 20 C.F.R. §§ 404.1505, 416.05. Plaintiff Furlo 

carries the burden of establishing that she meets this definition. 42 U.S.C. §§ 423(d)(5)(A); see 

also Dragon v. Comm’r of Soc. Sec., 470 F. App’x 454, 459 (6th Cir. 2012). 

 Corresponding federal regulations outline a five-step sequential process to determine 

whether an individual qualifies as disabled: 

First, the claimant must demonstrate that he has not engaged in substantial gainful 

activity during the period of disability. Second, the claimant must show that he 

suffers from a severe medically determinable physical or mental impairment. 

Third, if the claimant shows that his impairment meets or medically equals one of 

the impairments listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1, he is deemed 

disabled. Fourth, the ALJ determines whether, based on the claimant’s residual 

functional capacity, the claimant can perform his past relevant work, in which 

case the claimant is not disabled. Fifth, the ALJ determines whether, based on the 

claimant’s residual functional capacity, as well as his age, education, and work 

experience, the claimant can make an adjustment to other work, in which case the 

claimant is not disabled. 

Courter v. Comm’r of Soc. Sec., 479 F. App’x 713, 719 (6th Cir. 2012) (quoting Wilson v. 

Comm’r of Soc. Sec., 378 F.3d 541, 548 (6th Cir. 2004)). Through Step Four, Furlo bears the 

burden of proving the existence and severity of limitations caused by her impairments and the 

fact that she is precluded from performing her past relevant work. At Step Five, the burden 

shifts to the Commissioner to identify a significant number of jobs in the economy that 

accommodate the claimant’s residual functional capacity (determined at step four) and 

vocational profile. See Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). 

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B. 

The ALJ conducted a hearing and considered Furlo’s application for benefits de novo on 

July 30, 2013. Tr. 30. At the hearing, the ALJ questioned Furlo about her past work experience 

and medical history. A Vocational Expert testified that, as performed, Plaintiff’s past job as a 

cleaner was a strength level of medium, but that under the Dictionary of Occupational Titles

(“DOT”) it is a strength level of light. Tr. 59. The ALJ then posed a hypothetical to the 

Vocational Expert: 

I’d like you to assume a hypothetical individual with the past jobs you described. 

Further assume this individual would be limited to light work. In addition, she 

would have to avoid extreme vibration and limit the use of her upper extremities 

to frequent as opposed to constant. She would be limited to simple, routine tasks 

with no interaction with the public, occasional interaction with co-workers and 

supervisors. 

Tr. 60. The Vocational Expert replied that, according to the DOT, such an individual could 

perform past work consistent with Plaintiff’s. Id. He further testified that the hypothetical 

individual could perform the following work having a strength level of light: (1) a collator 

operator, of which there are 225,310 jobs nationally and 5,650 in Michigan; (2) a lining scrubber, 

of which there are 419,840 jobs nationally and 17,940 jobs in Michigan; and (3) a screen tacker, 

of each of which there are 218,740 jobs nationally and 14,470 jobs in Michigan. Tr. 60-61. 

The ALJ then asked the Vocational Expert to imagine a hypothetical individual with the 

previously described impairments who also “would not have the persistence, pace or 

concentration to perform work activities on an eight-hour day, five-day-a-week, 40-hour work 

week or equivalent schedule and would be absent three or more days a month due to 

impairments.” Tr. 61. The Vocational Expert testified that such an individual would be 

precluded from working. Tr. 61-62. 

C. 

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In a decision issued on August 16, 2013, the ALJ denied Plaintiff’s claim. The ALJ found 

that neither Furlo’s Hepatitis C nor her drug use was a severe impairment under Step Two of the 

SSA evaluation process. The ALJ found that Furlo’s affective disorder and joint pain constituted 

severe impairments under Step Two. Tr. 14-18. However, under Step Three the ALJ concluded 

that Furlo did not have an impairment or combination of impairments that met or was equal to 

the severity of one of the listed impairments in 20 CFR 404A Appx 1. Tr. 16-17. Under Step 

Four the ALJ found that Furlo had the residual functional capacity to perform light work, but that 

she must avoid extreme vibration and limit the use of her upper extremities to frequent as 

opposed to constant. Id. The ALJ further found that Furlo was limited to “performing simple 

routine tasks with no interaction with the public and only occasional interaction with co-workers 

and supervisors.” Tr. 18-19. Accordingly, the ALJ determined that Furlo was capable of 

performing her past relevant work as a cleaner. Tr. 22. Alternatively, under Step Five the ALJ 

concluded that Furlo could perform other light work such as a collator operator, a lining 

scrubber, or a screen tacker. Tr. 23. The ALJ accordingly determined that Furlo was not disabled 

under the Act. 

 In reaching her decision, the ALJ relied on the medical testimony of several medical 

professionals. She gave “great weight” to the medical testimony of Dr. Douglass, but only gave 

“some weight” to the opinion of Dr. Menendes, noting that Dr. Menendes had failed to fully 

assess “the impact of the claimant’s drug and alcohol use on her mental impairment.” Tr. 21. 

D.

The Commissioner adopted the ALJ’s decision on September 16, 2014. Plaintiff Furlo 

then filed the instant suit on November 14, 2014, seeking review of the Commissioner’s 

unfavorable decision. The matter was referred to Magistrate Judge Patricia T. Morris on 

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November 17, 2014. After both parties filed motions for summary judgment, the Magistrate 

Judge issued a report and recommendation in which she recommended denying Furlo’s motion 

for summary judgment and granting Defendant Commissioner’s motion for summary judgment. 

II. 

 Pursuant to Federal Rule of Civil Procedure 72, a party may object to and seek review of 

a Magistrate Judge’s report and recommendation. See Fed. R. Civ. P. 72(b)(2). Objections must 

be stated with specificity. Thomas v. Arn, 474 U.S. 140, 151 (1985) (citation omitted). If 

objections are made, “[t]he district judge must determine de novo any part of the magistrate 

judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). De novo review 

requires at least a review of the evidence before the Magistrate Judge; the Court may not act 

solely on the basis of a Magistrate Judge’s report and recommendation. See Hill v. Duriron Co., 

656 F.2d 1208, 1215 (6th Cir. 1981). After reviewing the evidence, the Court is free to accept, 

reject, or modify the findings or recommendations of the Magistrate Judge. See Lardie v. Birkett, 

221 F. Supp. 2d 806, 807 (E.D. Mich. 2002). Plaintiff Furlo now raises six objections. 

III.

 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) (citations omitted). Substantial evidence is “such evidence as a 

reasonable mind might accept as adequate to support a conclusion.” Id. (citation omitted). 

A.

 Plaintiff Furlo first objects to the Magistrate Judge’s conclusion that Furlo could perform 

her past relevant work. Furlo asserts that the ALJ erred in ignoring the conclusions of Dr. 

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Menendes that Furlo’s symptoms of depression would interfere with her ability to perform any 

job on a regular basis, and that Furlo would likely not be able to handle frustrating situations or 

stress. Furlo therefore argues that the ALJ’s first hypothetical question was not reflective of and 

supported by sufficient evidence of record because it did not reflect Plaintiff’s inability to focus, 

her ongoing depression, her suicidal ideation, her drug and alcohol abuse, and her inability to be 

consistently present at work. Furlo concludes that, because the first hypothetical question was 

defective, Defendant has failed to establish that Furlo could perform either her past relevant 

work or the light work enumerated by the Vocational Expert. This objection goes to Steps Four 

and Five of the analysis, in which the ALJ determined that Furlo could perform her past relevant 

work as a cleaner as well as other light work. 

To the extent that Furlo argues that the ALJ needed to include her drug and alcohol abuse 

in her first hypothetical, her objection is misplaced. The Act expressly provides that “an 

individual shall not be considered to be disabled... if alcoholism or drug addiction would...be a 

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

42 U.S.C.A. § 1382c(a)(3)(J). Therefore the ALJ did not err in failing to include any reference 

to Furlo’s substance abuse issues in her first hypothetical, as any material consideration of those 

issues would have precluded Furlo from receiving benefits as a matter of law. Moreover, under 

Step Two the ALJ specifically found that Furlo’s drug use was not a severe impairment because 

no medical evidence suggested that it imposed any limitations on Furlo’s ability to “perform 

basic work activities.” Tr. 17. 

 Furlo’s argument that the ALJ was required to adopt the findings of Dr. Menendes is also 

without merit. As explained by the regulations, “[a]lthough we consider opinions from medical 

sources on issues such as whether your impairment(s) meets or equals the requirements of any 

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impairment(s) ... your residual functional capacity...or the application of vocational factors, the 

final responsibility for deciding these issues is reserved to the Commissioner.” 20 CFR § 

404.1527(d)(2). The regulation further provides that the Commissioner will not “give any 

special significance to the source of an opinion on issues reserved to the Commissioner.” Id. at 

(d)(3). 

 Here, the ALJ’s determination that Furlo could perform light work limited to simple, 

routine tasks with no interaction with the public and occasional interaction with co-workers and 

supervisors was supported by substantial evidence in the record. Specifically, the ALJ’s 

determination was supported by Dr. Douglass’s conclusion that Furlo had the capacity to 

perform routine, 2-step tasks on a sustained basis. Dr. Douglass’s additional conclusion that 

Furlo’s concentration, pace and persistence were mildly/moderately impaired and that her social 

functioning was moderately restricted are not in conflict with this finding, since mild or 

moderate impairment is not severe impairment. Because the ALJ’s first hypothetical question 

was supported by substantial evidence, Furlo’s first objection is without merit. 

B.

 Furlo’s next objection goes to the ALJ’s determination that Furlo’s arthritis, alcoholism, 

and cocaine abuse were not severe impairments at Step Two. Furlo also argues that the 

Magistrate Judge erred in affirming the ALJ’s determination that Furlo’s joint pain did not meet 

one of the impairments listed at 20 C.F.R. Pt. 404, Subpt. P app 1. 

With regard to Furlo’s alcohol and drug abuse, Furlo’s second objection is without merit 

for the same reason that her first objection was without merit: The Act expressly provides that 

“an individual shall not be considered to be disabled... if alcoholism or drug addiction 

would...be a contributing factor material to the Commissioner’s determination that the 

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individual is disabled.” 42 U.S.C.A. § 1382c(a)(3)(J). Accordingly, any finding that Furlo’s 

alcohol or cocaine use was a material factor in her alleged disability would disqualify her from 

benefits. Any error in this regard was therefore harmless to Furlo. 

With regard to Furlo’s alleged arthritis, the ALJ did find that Furlo’s joint pain was a 

severe impairment at Step Two. Tr. 16. The ALJ properly relied on the opinions of experts in 

refusing to “diagnose” Furlo with rheumatoid arthritis. As explained by the Magistrate Judge, the 

Sixth Circuit has noted that, “ALJ’s must not succumb to the temptation to play doctor and make 

their own independent medical findings.” Simpson v. Comm’r of Soc. Sec., 344 F. App’x 181, 

194 (6th Cir. 2009) (quoting Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996). Furlo’s second 

objection is without merit and will be overruled. 

C.

 Plaintiff’s third objection is related to her second. She argues that the Magistrate Judge 

incorrectly affirmed the ALJ’s determination that Furlo’s joint pain did not meet or equal the 

criteria of Listed Impairment 14.09, which addresses inflammatory arthritis. In order to meet the 

criteria of 14.09, the alleged arthritis must result in an extreme limitation. In other words, 

inflammatory arthritis that does not result in an extreme limitation does not qualify as an 

impairment under 14.09. In order to qualify as an impairment, a Plaintiff’s condition must meet 

the following criteria: 

 B. Inflammation or deformity in one or more major peripheral joints with: 

1. Involvement of two or more organs/body systems with one of the organs/body 

systems involved to at least a moderate level of severity; and 

2. At least two of the constitutional systems and signs (severe fatigue, fever, 

malaise, or involuntary weight loss). 

OR 

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D. Repeated manifestations of inflammatory arthritis, with at least two of the 

constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary 

weight loss) and one of the following at the marked level 

 

1. Limitations of activities of daily living. 

2. Limitation in maintaining social functioning. 

3. Limitation in completing tasks in a timely manner due to deficiencies in the 

concentration, persistence, or pace. 

20 C.F.R. pt. 404 Subpt. P, app 1, § 14.09B, D. 

Furlo repeats her previous arguments that she qualifies under 14.09B because N.P. Kish 

diagnosed her with rheumatoid arthritis. However, the ALJ did not err in choosing not to rely on 

N.P. Kish’s opinion. As a nurse practitioner, N.P. Kish is not considered an “acceptable medical 

source” under 20 U.S.C. § 404.1513(a). Instead, a nurse practitioner is an “other source” under 

20 U.S.C. § 404.1513(d). As such, NP Kish is not a “treating source” whose opinion is entitled 

to controlling weight. See 20 U.S.C. § 404.1502; Social Security Ruling 06-03P, 2006 WL 

2329939 *2 (August 9, 2006) (“[O]nly ‘acceptable medical sources’ can be considered treating 

sources... whose medical opinions may be entitled to controlling weight.”). Although the ALJ 

may use evidence from nurse practitioners to show the severity of an impairment and how it 

affects the individual’s ability to function, information from nurse practitioners “cannot establish 

the existence of a medically determinable impairment.” SSR 06-03P WL 2329939 at *2. The 

ALJ properly relied on substantial evidence from acceptable medical sources, Dr. Sankarin and 

Dr. Manlapit, in refusing to classify Furlo’s joint pain as rheumatoid arthritis. 

Furlo further argues that the ALJ’s reliance on Dr. Sankarin and Dr. Manlapit’s opinions 

was improper because “inflammatory arthritis is a condition that waxes and wanes, a condition 

of flare-ups and remissions...” Again, however, it is for acceptable medical sources to determine 

the presence and severity of medical issues: not for the ALJ, and not for Plaintiff Furlo. 

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Furlo also suggests that the ALJ was required to conclude that Furlo had qualifying 

arthritis because Furlo showed the ALJ swollen hands at the hearing. Swollen hands are not 

solely a symptom of rheumatoid arthritis, but instead can result from any number of causes, 

some qualifying as listed impairments and others not qualifying as listed impairments. Because 

under binding Sixth Circuit precedent the ALJ could not play doctor and make medical findings, 

the ALJ did not err in refusing to attribute Furlo’s swollen hands to rheumatoid arthritis in the 

absence of any acceptable medical source testimony making such a diagnosis. 

 Finally, Furlo argues that the Magistrate Judge erred in affirming the ALJ’s 

determination that Furlo did not have arthritis. Furlo argues that the ALJ’s decision that Furlo 

did not have arthritis was not supported by substantial evidence because Dr. Manlapit found that 

Furlo suffered from some form of inflammatory arthralgias and paresthesias. To the contrary, 

these findings do support the ALJ’s findings. Arthralgia is defined as “severe ache or pain in a 

joint, without swelling or other signs of arthritis.” Arthralgia, OXFORD CONCISE MED.

DICTIONARY (9th ed. 2015) (emphasis added). C.f. arthritis, OXFORD CONCISE MED.

DICTIONARY (9th ed. 2015) (“inflammation of one or more joints, characterized by pain, 

swelling, warmth, redness of the overlying skin, and diminished range of joint motion.”).1

 

Because Dr. Manlapit determined that Furlo had arthralgia, as opposed to determining that she 

had arthritis, her report supports the ALJ’s conclusion. The ALJ’s conclusion was further 

supported by Dr. Sankaran’s conclusions that Furlo had no limitation of motion in her neck and 

no arthritis in her hands. Furlo’s third objection will thus be overruled. 

D.

 

1

 Parethesia is defined as “an abnormal sensation such as tingling, burning, prickling, pins and needles, or numbness 

in an area of the skin or a part of the body. Paraesthesia, OXFORD DICTIONARY OF PYSCHOLOGY (3d ed. 2008). 

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 In her fifth objection2

 Plaintiff Furlo argues that the Magistrate Judge erred in affirming 

the ALJ’s conclusion that Furlo does not meet the criteria of Listed Impairment 12.04. Furlo 

argues that the ALJ erred in affording greater weight to the testimony of Dr. Douglass, a nonexamining source, over Dr. Menedes, an examining source. Furlo also argues that Dr. Douglass 

was biased against her. 

 The Magistrate Judge fully addressed Furlo’s argument that the ALJ erroneously gave 

greater weight to the testimony of Dr. Douglass as follows: 

Plaintiff is correct that examining physicians are generally entitled to more 

deference than non-examining physicians. See 20 C.F.R. § 404.1527; Brooks v. 

Comm’r of Soc. Sec., 531 F. App’x 636, 642 (6th Cir. 2013); McKnight v. 

Comm’r of Soc. Sec., No. 11-13376, 2012 WL 3966337, at *13 (E.D. Mich. Sept. 

10, 2012) (“An examining physician’s medical opinion is entitled to greater 

deference than a nonexamining source, such as the Department of Disability 

Service consultants.”). However, as Defendant points out, “‘in appropriate 

circumstances, opinions from state agency medical and psychological consultants 

. . .may be entitled to greater weight than the opinions of treating or examining 

sources.’” Brooks, 531 F.App’x 642 (citing SSR 96-6p, 1996 SSR LEXIS 3, at 

*7)). Here the ALJ determined that Dr. Douglass, the nonexamining consultant 

was entitled to greater deference than the examining consultant because Dr. 

Menendes “failed to full[y] assess the impact of the claimant’s drug and alcohol 

use on her mental impairment.” (Tr. 21.) He further found that Dr. Douglass’s 

opinion was consistent with the medical evidence and the record as a whole. (Tr. 

20-21.) Thus the ALJ cited adequate reasons for giving greater weight to the 

opinion of Dr. Douglass. (Doc. 18, at 6.) 

 ECF No. 19, 37. The Magistrate Judge also addressed Furlo’s claim of bias: 

In evaluating a claim of bias the “court must begin with the presumption that 

[ALJ’s] exercise their power with honesty and integrity.” Collier v. Comm’r of 

Soc. Sec., 108 F. App’x 358, 363 (6th Cir. 2004) (internal quotations omitted). 

“The burden of overcoming the presumption of impartiality rests on the party 

making the assertion of bias, and the presumption can be overcome only with 

convincing evidence that a risk of actual bias or prejudgment is present.” Id. at 

364 (internal quotations omitted). 

Here, Plaintiff clearly does not meet her burden. The claims of impartiality and 

prejudice raised throughout her brief and her reply are merely speculation. The 

 

2

 Plaintiff has not raised a fourth objection in her objections. 

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only evidence she supplies is the ALJ’s deference to the opinion of a nonexamining consultant over an examining one. However, as discussed above the 

ALJ did not err in this regard. Thus Plaintiff’s claim that the ALJ was biased is 

unfounded. 

ECF No. 19, 37-39. Because the ALJ provided a basis for giving more weight to the 

testimony of Dr. Douglass than to the testimony of Dr. Menendes, the ALJ’s reliance on 

Dr. Douglass’s testimony was proper. The Magistrate Judge’s opinion in this regard is 

adopted in full, and Furlo’s objection will be overruled. 

E.

 Furlo next objects the Magistrate Judge’s affirmance of the ALJ’s finding that Furlo did 

not meet the B criteria of Listed Impairment 12.04. Furlo argues that the testimony of Dr. 

Menendes supports a finding that Furlo’s activities, social functioning, and focus were restricted 

such that she could not engage in gainful employment. As explained above, however, the ALJ 

did not err in giving limited weight to the testimony of Dr. Menendes. The ALJ’s determination 

that Furlo did not meet the B criteria of Listed Impairment 12.04 is supported by substantial 

evidence, and so Furlo’s sixth objection will be overruled. 

F.

 Finally, in her seventh objection, Furlo argues that the Magistrate Judge erred in finding 

that Plaintiff had past relevant work because she never had sufficient FICA income from her 

work as a cleaner. However, as noted in Defendant’s reply brief, the Act and related regulations 

place no such restriction on the definition of relevant work. The eastern district of Texas case 

cited by Plaintiff has no bearing on this case, as it addresses Title II disability insurance benefits, 

not Title XVI supplemental insurance benefits. As explained by the Supreme Court in Bowen v. 

Galbreath, 485 U.S. 74, 75 (1988), “Title II is an insurance program. Enacted in 1935, it 

provides old-age, survivor, and disability benefits to insured individuals irrespective of financial 

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need.... Title XVI is a welfare program. Enacted in 1972, it provides SSI benefits to financially 

needy individuals who are aged, blind, or disabled regardless of their insured status.” (emphasis 

added). 

 Furlo also argues that the ALJ erred in finding that she had performed her previous work 

as a cleaner at a medium-exertion level, despite the fact that cleaning work is generally 

performed as light-exertion work. However, any error in the ALJ’s finding that Furlo performed 

her cleaning work at a medium-exertion level is harmless for two reasons. First, because the 

ALJ expressly agreed with Vocational Expert Hostetler’s testimony that Furlo could perform 

cleaning work “as it is generally performed”; and second, because the ALJ found that Furlo 

could perform a variety of other light-exertion work available in the state and national economies 

under Step Five. Tr. 22. 

VII. 

Because the ALJ reached her decision using correct legal standards and because those 

findings were supported by substantial evidence, the Court must affirm it, even if reasonable 

minds could disagree on whether the individual was disabled or substantial evidence could also 

support a contrary result. Wright v. Massanari, 321 F.3d 611, 614 (6th Cir. 2003); see also 

Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2006) (“If substantial evidence 

supports the Commissioner’s decision, this Court will defer to that finding even if there is 

substantial evidence in the record that would have supported an opposite conclusion.”).

 Accordingly, it is ORDERED that Plaintiff Furlo’s objections, ECF No. 21, are 

OVERRULED. 

 It is further ORDERED that the report and recommendation, ECF No. 19, is 

ADOPTED. 

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 It is further ORDERED that Plaintiff Furlo’s motion for summary judgment, ECF No. 

13, is DENIED. 

 It is further ORDERED that Defendant Colvin’s motion for summary judgment, ECF 

No. 17, is GRANTED. 

 It is further ORDERED that the Commissioner of Social Security’s decision is 

AFFIRMED. 

s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

Dated: January 13, 2016 

 

PROOF OF SERVICE 

The undersigned certifies that a copy of the foregoing order was served 

upon each attorney or party of record herein by electronic means or first 

class U.S. mail on January 13, 2016. 

 s/Michael A. Sian 

 MICHAEL A. SIAN, Case Manager 

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