UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

SHANNON MARIE DOWNS,

CASE NO. 1:15-cv-11240

Plaintiff,

DISTRICT JUDGE ROBERT CLELAND

v. MAGISTRATE JUDGE PATRICIA T. MORRIS

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

____________________________________/

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION ON CROSS 

MOTIONS FOR SUMMARY JUDGEMENT

(Docs. 14, 15)

I. RECOMMENDATION

In light of the entire record in this case, I suggest that Plaintiff’s claim was tainted and 

she was prejudiced by the Commissioner’s use of an erroneous onset date. Accordingly, IT IS 

RECOMMENDED that Plaintiff’s Motion for Summary Judgment (Doc. 14) be GRANTED

and that the Commissioner’s Motion for Summary Judgment (Doc. 15) be DENIED.

II. REPORT

A. Introduction and Procedural History

Pursuant to 28 U.S.C. § 636(b)(1)(B), E.D. Mich. LR 72.1(b)(3), and by Notice of 

Reference, this case was referred to this magistrate judge for the purpose of reviewing a final 

decision by the Commissioner of Social Security (“Commissioner”) denying Plaintiff’s claims 

for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act 42 U.S.C. § 

401-34 and Supplemental Security Income (“SSI”) under Title XVI, 42 U.S.C. § 1381 et seq. 

(Doc. 3.) The matter is currently before the Court on cross-motions for summary judgment. 

(Docs. 14, 15.)

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On April 21, 2009, Plaintiff Shannon Downs filed a claim for DIB and SSI, alleging a 

disability onset date of July 19, 2006. (Tr. 137, 139.) Plaintiff’s claim proceeded to a hearing 

before Administrative Law Judge (“ALJ”) Joanne E. Adamczyk on April 15, 2011. (Tr. 87-

133.) On June 22, 2011, ALJ Adamczyk denied Plaintiff’s claim. (Tr. 134-51.) Plaintiff 

withdrew her request for review by the Appeals Council on June 6, 2012. (Tr. 251.) 

On May 9, 2012, Plaintiff filed the present claim for DIB and SSI, alleging that she 

became disabled on April 30, 2007. (Doc. 12; Tr. 239-40.) Plaintiff later amended the onset 

date to June 23, 2011 in her pre-hearing brief. (Tr. 325.) Plaintiff’s initial claim was denied on 

October 17, 2012. (Tr. 186-87), and Plaintiff requested a hearing. (Tr. 199.) She testified 

before Administrative Law Judge (“ALJ”) Kevin J. Detherage on September 12, 2013. (Tr. 30-

86.) On September 27, 2013, the ALJ denied Downs’ claim. (Tr. 10-24.) The ALJ’s decision 

became the Commissioner’s final decision on January 30, 2015, when the Appeals council 

denied Plaintiff’s request for review. (Tr. 1-4); see Wilson v. Comm’r of Soc. Sec., 378 F.3d 

541, 543-44 (6th Cir. 2004). On April 1, 2015, Plaintiff filed the instant suit seeking judicial 

review of the Commissioner’s unfavorable decision. (Pl compl., 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 standards 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 

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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).

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. Sec’y 

of Health and Human Servs., 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. (internal citations omitted).

C. Framework for Disability Determinations

Under the Act, “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 the 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 [twelve] months.

42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (DIB); 20 C.F.R. § 416.905(a) (SSI). The 

Commissioner’s regulations provide that 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 

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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). “Through step four, the claimant 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.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 

2003); see also Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 540 (6th Cir. 2007). The burden 

transfers to the Commissioner if the analysis reaches the fifth step without a finding that the 

claimant is not disabled. Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006). At 

the fifth step, the Commissioner is required to show that “other jobs in significant numbers 

exist in the national economy that [the claimant] could perform given her RFC [residual 

functional capacity] and considering relevant vocational factors.” Rogers, 486 F.3d at 241 

(citing 20 C.F.R. §§ 416.920(a)(4)(v), (g)).

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D. ALJ Findings

Following the five step analysis, the ALJ found Plaintiff was not disabled under the Act. 

At Step One, the ALJ found that Plaintiff met the insured status requirements through 

December 31, 2015, and had not engaged in substantial gainful activity since the alleged onset 

date of April 30, 2007. (Tr. 12.) At Step Two, the ALJ found Plaintiff had the following severe 

impairments: “pain due to cervical and lumbar spine degenerative disc disease, asthma, bipolar 

disorder, anxiety disorder, attention-deficit hyperactivity disorder (ADHD), and substance 

abuse disorder.” (Tr. 13.) At Step Three, the ALJ found that Plaintiff’s combination of 

impairments did not meet or equal one of the listings in the regulations. (Tr. 18.) The ALJ then 

found that Downs had the residual functional capacity (“RFC”) to perform sedentary work

except she can perform simple, routine, and repetitive work. She should sit or stand at 

will provided she be not off task more than 9% of the work period. She should never 

operate foot controls but can occasionally stop, kneel, crouch, or crawl. She can never 

climb ladders, ropes or scaffold [sic] and occasionally climb ramps or stairs. She should 

not overhead reach. She should not have concentrated exposure to dust, fumes, gases, 

odors, or poorly ventilated areas. She should not perform repetitive rotation, extension 

or flexing of the neck. She should avoid exposure to extreme cold, heat or humidity. She 

should avoid exposure to hazards such as heights or machinery with moving parts. She 

should not perform production rate pace work and have only occasional changes in a 

routine workplace setting. She should have occasional contact with coworkers or 

supervisors and no contact with the public. She is likely to be absent from work one day 

per month.

(Tr. 15.) At Step Four, the ALJ found that Plaintiff is unable to perform any past relevant 

work. (Tr. 22.) At Step Five, the ALJ found that a significant number of jobs existed which 

Downs could perform despite her limitations. (Id.) The ALJ also found that Plaintiff was 35 

and therefore a younger individual (age 18-44) as of the alleged onset date. (Id.) As a result, 

the ALJ found Plaintiff is not disabled under the Act. (Tr. 23.)

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E. Administrative Record

In her initial application, Plaintiff alleged that she suffered from the following 

impairments: hernia, bipolar disorder, ADHD, anxiety; panic disorder with agoraphobia,

cervical and lumbar spine degenerative disc disease, arthritis, asthma, torn meniscus, and 

Raynaud ’s phenomenon. (Tr. 154, 170.) However, it is not necessary to discuss Plaintiff’s 

medical records in detail because the primary issue in Plaintiff’s appeal is the legal standard 

applied by the ALJ. (Doc. 14, at 7-8.) Thus my review of the administrative record is limited to 

Plaintiff’s first application for SSI and DIB. 

ALJ Adamczyk issued the opinion on Plaintiff’s first claim for SSI and DIB on June 22, 

2011. (Tr. 137-47.) Following the five step analysis, the ALJ found Plaintiff was not disabled 

under the Act. At Step One, the ALJ found that Plaintiff met the insured status requirements 

through September 30, 2014, and had engaged in substantial gainful activity since the alleged 

onset date of July 19, 2006. (Tr. 139.) At Step Two, the ALJ found Plaintiff had the following 

severe impairments: “cervical and lumbar spine degenerative disc disease, arthritis, asthma, 

attention deficit hyperactive disorder (ADHD), bipolar disorder and an anxiety disorder and a 

history of substance abuse in full and complete remission.” (Id.) At Step Three, the ALJ found 

that Plaintiff’s combination of impairments did not meet or equal one of the listings in the 

regulations. (Tr. 18.) The ALJ then found that Downs had the RFC to perform “a restricted 

range of sedentary work.” The ALJ added that:

He need (sic) the opportunity for a sit/stand option; with no operation of foot 

controls; no climbing of ladders, ropes or scaffolds; and occasional climbing of 

ramps or stairs. The claimant is limited to jobs that do not require kneeling, 

crouching or crawling; no repetitive flexion, or extension of the neck; no overhead 

reaching; no exposure to extremes of cold, heat or humidity or concentrated 

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environmental irritants such as fumes, odors, dust and gases. The claimant must 

also avoid the use of moving machinery and unprotected heights. He [sic] is 

limited to simple, routine, repetitive work with a low stress environment, i.e. no 

decision making or changes in the work setting and no pace work or production 

rate and no working with the general public and only occasional interaction with 

co-workers and supervisors. 

(Tr. 140.) At Step Four, the ALJ found that Plaintiff is unable to perform any past relevant 

work. (Tr. 146.) At Step Five, the ALJ found that a significant number of jobs existed which 

Downs could perform despite her limitations. (Id.) She also found that Plaintiff was thirty-four 

and therefore a younger individual (age 18-44) as of the alleged onset date. (Id.) As a result, 

the ALJ found Plaintiff is not disabled under the Act. (Tr. 147.) Plaintiff voluntarily withdrew 

her appeal on June 21, 2012. (Tr. 251.)

F. Governing Law

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 SSR LEXIS 5, at *9, 1998 WL 283902, at *3 (acquiescing to Drummond v. 

Commissioner, 126 F.3d 837 (6th Cir. 1997)). The regulations also explicitly invoke res 

judicata: An ALJ can dismiss a hearing where “res judicata applied in that we have a previous 

[final] determination or decision under this subpart about your rights.” 20 C.F.R. §§ 404.957,

416.1457. Collateral estoppel is the branch of res judicata applied in this context. As the Third 

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Circuit explained, res judicata formally “consists of two preclusion concepts: issue preclusion 

and claim preclusion.” Purter v. Heckler, 771 F.2d 682, 689 n.5 (3d 1985); see also Groves v. 

Apfel, 148 F.3d 809, 810 (7th Cir. 1998) (Posner, J.) (discussing the “collateral estoppel branch 

of res judicata” in social security cases). Claim preclusion prevents renewing a judgment on 

the same cause of action; issue preclusion, or collateral estoppel is less expansive: “foreclosing 

relitigation on all matters that were actually and necessarily determined in a prior suit.” Purter, 

771 F.2d at 689 n.5. 

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.”). 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,” whether she has a severe impairment or combination 

of impairments, or whether she meets or equals a listing. Id.

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 U.S. Dist. LEXIS 110437, 2011 WL 

4478943, at *3 (E.D. Ky. Sept. 26, 2011) (citing Drummond, 126 F.3d at 842-43). In other 

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words, even though the first ALJ did not make any findings concerning later periods, her 

decision still applies to those periods absent the requisite proof. 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 U.S. Dist. LEXIS 

110513, 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 Slick v. Comm’r of Soc. Sec., 

No. 07-13521, 2009 U.S. Dist. LEXIS 3653, 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 843; see also 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 v. Sec’y of Health & Human Servs., 987 F.2d 

1230, 1232-33 (6th Cir. 1993) (same). The Sixth Circuit made this clear in Haun v. 

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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).

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

period, the claimant must proffer new and material evidence that her health declined. 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 v. Astrue, 247 F. App’x 761, 768 (6th Cir. 2007). In a case predating Drummond, 

the court explained. “[W]hen a plaintiff previously has been adjudicated not disabled, she must 

show that her condition so worsened in comparison to her earlier condition that she was unable 

to perform substantial gainful activity.” Casey, 987 F.2d at 1232-33. Later, it reiterated, “In 

order to be awarded benefits for her condition since [the previous denial], Priest must 

demonstrate that her condition has . . . worsened in comparison to her [previous] condition . . . 

.” Priest, 3 F. App’x at 276. The ALJ must scan the medical evidence “with an eye toward 

finding some change from the previous ALJ decision . . . .” Blackburn v. Comm’r of Soc. Sec., 

No. 4:1-cv-58, 2012 U.S. Dist. LEXIS 183493, 2012 WL 6764068, at *5 (E.D. Tenn. Nov. 14, 

2012), Report & Recommendation adopted by 2013 U.S. Dist. LEXIS 550, 2013 WL 53980, at 

*1 (Jan. 2, 2013). That is, the evidence must not only be new and material, but also must show 

deterioration. Drogowski v. Comm’r of Soc. Sec., No. 10-12080, 2011 U.S. Dist. LEXIS 

115925, 2011 WL 4502988, at *8 (E.D. Mich. July 12, 2011), Report & Recommendation 

adopted by 2011 U.S. Dist. LEXIS 110609, 2011 WL 4502955, at *4 (Sept. 28, 2011). In 

Drogowski, for example, the court rejected the plaintiff’s argument that a report met this test 

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simply because it was not before the first ALJ. 2011 WL 4502988 at *2, 8-9. These decisions 

make clear that the relevant change in circumstances is not a change in the availability of 

evidence but a change in Plaintiff’s condition. 

Res judicata is not a complete bar on reconsidering prior decisions or determinations: 

the regulations provide two mechanisms for such reexamination that escape the doctrine’s 

effects. Purter, 771 F.2d at 691-93 (discussing reopening as an exception to claim preclusion).

The first, less important to res judicata case law, occurs just after the initial determination, 

when the claimant’s first step in the review process is sometimes a request for 

“reconsideration” of that decision. 20 C.F.R. §§ 404.907, 416.1407. 

The more critical and complicated mechanism is reopening a prior ALJ decision. The 

regulations allow the Commissioner, through an ALJ or Appeals Council, to peel back the 

determination or decision and revise it. 20 C.F. R. §§ 404.987, 404.992, 416.1487, 416.1492. 

The claimant or the Commissioner can initiate the process. Id. The reopening of a 

determination or decision can occur “for any reason” within twelve months of the notice of the 

initial determination, but “good cause” must exist if the reopening occurs within two years of 

the initial determination for SSI claims and four years for DIB claims. Id. §§ 404.988, 

416.1488. A DIB claim can also be reopened at any time under a few scenarios not relevant to 

the instant case. Id. § 404.988(c). Good cause exists, among other reasons, if “[n]ew and 

material evidence is furnished” for either type of claim, SSI or DIB. Id. §§ 404.989, 416.1489. 

If a determination or decision is reopened, res judicata does not apply. Kaszer v. Massanari, 

40 F. App’x 686, 690 (3d Cir. 2002). 

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The decision whether to reopen, unless it implicates a colorable constitutional issue, 

evades judicial review: courts can only review the Commissioner’s final decisions made after a 

hearing. 42 U.S.C. § 405(g); Califano v. Sanders, 430 U.S. 99, 108-09 (1977) (holding that 

Commissioner’s decision not to reopen is unreviewable). A decision not to reopen does not 

meet those requirements. However, courts can review the case “to determine whether res 

judicata has been properly applied to bar the pending claim or whether, even though res 

judicata might properly have been applied, the prior claim has nevertheless been reopened.” 

Tobak v. Apfel, 195 F.3d 183, 187 (3d Cir. 1999); see also Kaszer, 40 F. App’x at 690 (“But 

‘we will examine the record to determine whether or not a reopening has occurred.’” (quoting 

Coup v. Heckler, 834 F.2d 313, 317 (3d Cir. 1987))). Implicit reopenings occur, with 

unfortunate frequency, where the ALJ does not explicitly reopen the case, but crafts a decision 

that appears to constructively do so. Gay v. Comm’r of Soc. Sec., 520 F. App’x 354, 358 (6th 

Cir. 2013). As the Sixth Circuit lamented, 

If an ALJ intends to reopen prior decisions, he or she should say so, say why, and

cite the appropriate regulation that permits reopening. If an ALJ intends instead to 

adjudicate only the subsequent period in light of changed circumstances, he or she 

should make this approach clear and cite the appropriate cases and acquiescence 

rulings. Regardless of which path the ALJs take, they must clearly state their 

approach. 

Id. The ALJ’s decision there was too muddled to determine whether it worked a 

reopening, and consequently the court remanded. Id. at 358-59; see also Haddix v. Astrue, No. 

10-30, 2010 U.S. Dist. LEXIS 120887, 2010 WL 4683766, at *1-4 (E.D. Ky. Nov. 12, 2010) 

(remanding where ALJ’s decision was unclear). 

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Constructive reopenings are found where the ALJ reviewed the entire record including 

the portions from the already adjudicated period, and decided “the merits of the claim.” Tobak, 

195 F.3d at 186. Thus, the Sixth Circuit found a reopening where the ALJ considered the entire 

period “in light of the new evidence . . . .” Wilson v. Califano, 580 F.2d 208, 212 (6th Cir. 

1978). An additional factor that could lead to finding an implicit reopening is the ALJ’s failure 

to discuss the prior determination or the res judicata doctrine. See Martin v. Comm’r of Soc. 

Sec., 82 F. App’x 453, 455 (6th Cir. 2003); Crady v. Sec’y of Health & Human Servs., 835 

F.2d 617, 620 (6th Cir. 1987). Nonetheless, an ALJ’s review of old or new evidence does not 

necessarily signify a constructive reopening, for such a review would be required to decide 

against reopening as well as for it. See Girard v. Chater, 918 F. Supp. 42, 44-45 (D.R.I. 1996). 

The ALJ’s discussion of new evidence likewise might relate to her independent determination 

of whether to grant benefits in the unadjudicated period, again indicated no reopening 

occurred. See id. at 44.

The ability to reopen, it must be recalled, is a power the regulations grant, thus whether 

it is done explicitly or implicitly it must meet certain requirements. 20 C.F.R. §§ 404.987-

404.996, 416.1487-416.1494. Chief among these is the two year (SSI) and four year (DBI) 

time limits for good cause reopenings. Id. §§ 404.988, 416.1488. Consequently, an ALJ is 

powerless to reopen a claim outside these periods and constructive reopenings beyond them are 

barred. See Glazer v. Comm’r of Soc. Sec., 92 F. App’x 312, 315 (6th Cir. 2004) (“The concept 

of constructive reopening cannot extend beyond the scope of authority granted under the 

regulations. Because more than four years had passed since the denial of the original 

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application, the Commissioner could not have constructively reopened Glazer’s case.” 

(citations omitted)).

G. Analysis 

The parties agree that ALJ Detherage erred by finding that the alleged onset date was 

April 30, 2007 instead of the amended onset date of June 23, 2011. (Doc. 14, at 8; Doc. 15, at 

6.) They further agree that under Drummond the first ALJ’s decision is res judicata as to the 

issue of whether Plaintiff was disabled as of June 22, 2011, the date of decision on Plaintiff’s 

first application. 126 F.3d at 842-43; (Tr. 134; Doc. 14, at 9; Doc. 15, at 6.) 

Defendant argues that this error is harmless “because the prior decision established that 

[P]laintiff was not disabled, and Plaintiff has not demonstrated that she was prejudiced.” (Doc. 

15, at 6.) Defendant cites Ehrob v. Commissioner of Social Security, which held that “an error 

in the alleged onset of disability is not itself a basis for remand, unless the Plaintiff can show 

that it caused her prejudice, either alone or in combination with other errors.” No. 309-13732, 

2011 U.S. Dist. LEXIS 27574, 2011 WL 977514, at *6 (E.D. Mich. Mar. 17, 2011). Plaintiff 

argues that she was prejudiced by the use of the erroneous onset date because the ALJ 

“essentially retried the earlier case.” (Doc. 16, at 3.) 

To decide this issue it is necessary to consider the three methods of analysis that the 

ALJ could have used to address Plaintiff’s claim. First, the ALJ could have decided that res 

judicata barred consideration of the second application. As the parties have agreed, the ALJ 

clearly did not apply res judicata here. (Doc. 14, at 9; Doc. 15, at 6.) Although he 

acknowledged the doctrine, the ALJ did not adopt the previous ALJ’s holdings. (Tr. 10). He 

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conducted his own thorough review of the record, and found, among other things, severe 

impairments and an RFC that differed from the 2011 decision.1 (Tr. 13, 15, 139-40.) 

Second, the ALJ could have decided that changed circumstances, or new and material 

evidence, did exist, which would permit the ALJ to consider the merits of plaintiff’s claim 

from June 23, 2011. See Drummond, 126 F.3d at 842-43. The parties agree that this is the 

standard the ALJ should have adopted. (Doc. 14, at 9; Doc. 15, at 6.) ALJ Detherage’s 

holdings on the merits of each claim would be appropriate under a changed circumstance 

analysis. (Tr. 13, 15-22.) It would also be appropriate for him to review the previous ALJ’s 

decision and medical records prior to June 23, 2011. Kennedy, 247 F. App’x at 768 (6th Cir. 

2007.) The ALJ would not review the case de novo, but would determine whether Plaintiff’s 

“condition so worsened in comparison to her earlier condition that she was unable to perform 

substantial gainful activity.” Casey, 987 F.2d at 1232-33. Res judicata would apply to the 

previously adjudicated, and those findings would remain undisturbed. Bailey, 2011 WL 

4478943, at *2. ALJ Detherage initially appeared to adopt this approach in his opinion by 

stating that Plaintiff’s impairments had not significantly changed since the prior decision. (Tr. 

10.) However, he does not discuss or support this finding in his decision and he disturbed the 

 1 Specifically, the 2013 decision differed from the 2011 decision by not including arthritis and 

“a history of substance abuse in full and complete remission” as severe impairments. Compare

(Tr. 13) with (Tr. 139). The RFC differed by including two additional restrictions. Compare 

(Tr. 15.) with (Tr. 140). First, that Plaintiff “not be off task more than 9% of the work period” 

and second that Plaintiff “is likely to be absent from work one day per month.” (Tr. 15.)

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previously adjudicated period by adopting an onset date clearly covered by the first decision.2

(Tr. 10-24). Thus it is clear that he did not apply the changed circumstances approach.

Third, the ALJ could have constructively reopened Plaintiff’s first application by 

reviewing it on the merits. See Tobak, 195 F.3d at 186. This appears to be the method of 

analysis adopted here. As previously discussed, to reopen Plaintiff’s claim the ALJ would need 

to find good cause, such as the production of new and material evidence. 20 C.F.R. §§ 

404.989, 416.1489. Although ALJ Detherage did not make an explicit finding of good cause,

his review of the evidence generated after June 22, 2011, his failure to discuss the prior 

determination or the res judicata doctrine, and his findings on the merits of the previously 

adjudicated period3 indicate that he implicitly reopened plaintiff’s first application. See Tobak, 

195 F.3d at 186; Wilson, 580 F.2d at 212; Martin, 82 F. App’x at 455; Crady, 835 F.2d at 620. 

Therefore, I find that the ALJ constructively reopened Plaintiff’s first application. 

The Court must next consider whether Plaintiff was prejudiced by the ALJ’s decision to 

reopen her claim and adopt an alleged onset date of April 30, 2007. As noted above, Defendant 

argues that “the ALJ’s error is harmless because the prior decision established that Plaintiff 

was not disabled and Plaintiff has not demonstrated that she was prejudiced by the ALJ’s 

 2 As discussed below the ALJ’s statement regarding changed circumstances is also 

contradicted by the ALJ’s implicit decision to open the first application because of new and 

material evidence. 

3 I note that the April 30, 2007 onset date, used by ALJ Detherage, differs from the July 19, 

2006 onset date adopted in the first application. (Tr. 12, 139.) This does not appear to be an 

issue to a finding that ALJ Detherage reopened Plaintiff’s first application because ALJ 

Detherage’s decision clearly encompassed a period that was previously adjudicated. Moreover, 

the first ALJ found that Plaintiff “did not submit any medical documentation for any treatment 

and diagnostic testing for . . . the year 2006.” (Tr. 145.) There is also no indication in the 

record, or in the first ALJ’s decision, that Plaintiff submitted medical records prior to April 30, 

2007. (Tr.139-47, 343-769.) 

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selection of the April 2007 onset date.” (Doc. 15, at 6 (citing Ehrob, 2011 WL 977514, at *6).) 

I find that Plaintiff has submitted sufficient evidence of prejudice to justify remand. As 

Plaintiff points out her situation can be distinguished from that in Ehrob. (Doc. 16, at 4.) In 

Ehrob, the onset date used by the ALJ was uncertain. 2011 WL 977514, at *6. However, the 

Court found no prejudice because the ALJ did not rely on any of the prejudicial medical 

records that predated Plaintiff’s alleged onset date. Id. Here, ALJ Detherage thoroughly 

reviewed the entire medical record beginning in April 30, 2007. (Tr. 15-22.) He relied on 

medical evidence generated prior to June 23, 2011 when considering Plaintiff’s allegations of 

back pain, (Tr. 16); chronic neck pain, (Tr. 16-17); left knee pain, (Tr. 17-18); asthma, (Tr. 18); 

anxiety, and depression. (Tr. 20.) He also considered previously generated evidence in 

assessing Plaintiff’s work history. (Tr. 21.) He found that her employment in 2008, 2009, 

2010, and 2011 suggested that her “abilities are somewhat greater than that to which [she] 

testified . . . [and] that [her impairments] would not currently prevent work.” (Id.) Plaintiff’s 

situation more closely resembles that in Hinchey v. Barnhart, 2007 U.S. Dist. LEXIS 25168, 

2007 WL 1047065, at *6 (W.D. Va. 2007). In Hinchey, the court found that the plaintiff was 

prejudiced because the ALJ considered work activities that otherwise would not have been part 

of the record, and his overall analysis of Plaintiff’s claim was tainted by the use of an onset 

date six years prior to the alleged date. Id. The court noted that “an ALJ’s determination of an 

individual’s functional capacity is, by its very nature, multi-dimensional. . . . As the agency’s 

regulations note, a full and fair consideration of functionality requires a look longitudinally at 

multiple factors, including duration, intensity, frequency and type of physical activity.” Id. 

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Here, Plaintiff’s claim was not fully and fairly considered because the ALJ used an onset date 

almost four years prior to the alleged date. 

Plaintiff’s argument is unusual. One could more easily argue that the thorough and 

comprehensive decision by ALJ Detherage in fact benefited Plaintiff, giving her a far more indepth review than the limited examination for changed circumstances that she now seeks. 

Moreover, the ALJ may consider prior medical records in determining whether changed 

circumstances do exist, thus a review under the analysis of changed circumstances may not 

overly differ from the one that is before the Court today. However, this is mere speculation and 

conjecture and the Court will not rest its decision on it. See Haddix, 2010 WL 4683766, at *1.

As Plaintiff points out, the key difference between an analysis that reopens the first application 

and one that examines the evidence for changed circumstances is that in the latter the ALJ must 

make some comparison of Plaintiff’s condition and circumstances as they were at the time of 

the 2011 decision to her condition and circumstances at the time of the 2013 decision. (Doc. 

14, at 8); see Priest, 3 F. App’x at 276; Blackburn, 2012 WL 6764068, at *5. Here the ALJ’s 

review of the record is comprehensive. He does not distinguish between a 2011 Plaintiff and a 

2013 Plaintiff in search of worsened circumstances but examines the entire period as one 

continuous application. (See tr. 15-22.)

In light of the ALJ’s use of a grossly erroneous onset date, and his failure to analyze 

Plaintiff’s claim under a changed circumstances approach, I suggest that Plaintiff has 

demonstrated sufficient prejudice to warrant remand for reconsideration under a changed 

circumstances standard. I also suggest that meaningful review of Plaintiff’s claim that the ALJ 

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failed to give appropriate weight to the Plaintiff’s treating physicians is not possible because of 

the erroneous legal standard applied by the ALJ. 

H. Conclusion

For the reasons stated above, the Court RECOMMENDS that Downs’ Motion for 

Summary Judgment (Doc. 14) be GRANTED, the Commissioner’s Motion (Doc. 15) be 

DENIED, and that this case be REMANDED for administrative reconsideration. 

III. REVIEW

Pursuant to Rule 72(b)(2) of the Federal Rules of Civil Procedure, “[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 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, 106 S. Ct. 466, 88 L. Ed.2d 

435 (1985); Howard v. Sec’y of Health & Human Servs., 932 F.2d 505 (6th Cir. 1991); United 

States v. Walters, 638 F.2d 947 (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). Pursuant 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 

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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: January 28, 2016 S/ patricia t. morris

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: January 28, 2016 By s/Kristen Krawczyk 

 Case Manager to Magistrate Judge Morris

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