UNITED STATES DISTRICT COURT

EASTERN DISTICT OF MICHIGAN

SOUTHERN DIVISION

LUCY BALESTER,

Plaintiff, Civil Action No. 15-11050

 Honorable Denise Page Hood

v. Magistrate Judge Elizabeth A. Stafford

 

CAROLYN W. COLVIN, 

Acting Commissioner of 

Social Security,

 

Defendant. 

___________________________/

REPORT AND RECOMMENDATION

ON CROSS-MOTIONS FOR SUMMARY JUDGMENT [R. 13, 16] 

Plaintiff Lucy Balester appeals a final decision of defendant 

Commissioner of Social Security (“Commissioner”) denying her application

for disability insurance benefits (“DIB”). Both parties filed motions for 

summary judgment, which were referred to this Court for a Report and 

Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). After review of the 

record, the Court finds that the appeals council’s (“AC”) reversal of the 

administrative law judge’s (“ALJ”) decision is supported by substantial 

evidence, and thus RECOMMENDS that:

• the Commissioner’s motion [R. 16] be GRANTED;

• Balester’s motion [R. 13] be DENIED; and,

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• the Commissioner’s decision be AFFIRMED, pursuant to sentence 

four of 42 U.S.C. § 405(g). 

I. BACKGROUND 

A. Balester’s Background and Disability Application

Balester was 60 years old when she submitted her application for DIB 

in January 2013, alleging a disability onset date of December 1, 2010. [R.

11-5, Tr. 84-88]. She has held previous employment as a cashier and 

scheduling coordinator. [R. 11-6, Tr. 112]. Balester alleges disability based 

on migraines, osteoarthritis, rheumatoid arthritis, degenerative disc 

disease, malignant neoplasm of the renal pelvis, kidney issues, and 

gastroesophageal reflux disease (GERD). [R. 11-3, Tr. 54-55]. After a 

hearing, the ALJ found Balester to be disabled. [R. 11-2, Tr. 11]. However, 

the AC reviewed the matter and determined that Balester was not disabled; 

that constituted the final decision of the Commissioner. [Id., Tr. 8]. Balester

timely filed for judicial review. [R. 1].

B. The AC’s Application of the Disability Framework Analysis

A “disability” is 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 

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can be expected to last for a continuous period of not less than 12 months.” 

42 U.S.C. § 423(d)(1)(A).

The Commissioner determines whether an applicant is disabled by 

analyzing five sequential steps. First, if the applicant is “doing substantial 

gainful activity,” he or she will be found not disabled. 20 C.F.R. § 

404.1520(a)(4). Second, if the claimant has not had a severe impairment or 

a combination of such impairments1 for a continuous period of at least 12 

months, no disability will be found. Id. Third, if the claimant’s severe 

impairments meet or equal the criteria of an impairment set forth in the 

Commissioner’s Listing of Impairments, the claimant will be found disabled. 

Id. If the fourth step is reached, the Commissioner considers its 

assessment of the claimant’s residual functional capacity (“RFC”), and will 

find the claimant not disabled if he or she can still do past relevant work. 

Id. At the final step, the Commissioner reviews the claimant’s RFC, age, 

education and work experiences, and determines whether the claimant 

could adjust to other work. Id. The claimant bears the burden of proof 

throughout the first four steps, but the burden shifts to the Commissioner if 

the fifth step is reached. Preslar v. Sec’y of Health & Human Servs., 14 

F.3d 1107, 1110 (6th Cir. 1994).

 

1 A severe impairment is one that “significantly limits [the claimant’s] 

physical or mental ability to do basic work activities.” § 1520(c).

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Applying this framework, the AC concluded that Balester was not 

disabled. At the first step, it found that Balester had not engaged in 

substantial gainful activity since her alleged onset date. [R. 11-2, Tr. 7]. At 

the second step, it found that Balester had the severe impairments of 

cervical degenerative disc disease with radiculopathy, osteoarthritis, 

lumbago, rheumatoid arthritis, and migraine headaches. [Id.]. Next, it 

concluded that none of Balester’s impairments, either alone or in 

combination, met or medically equaled the severity of a listed impairment. 

[Id.]. 

Between the third and fourth steps, the AC found that Balester had 

the RFC to perform “light work”2 with the following additional limitations: 

[S]he could only occasionally climb ramps, stairs, ladders, 

ropes, and scaffolds; frequently stoop, kneel, crouch, and crawl; 

frequently handle with the bilateral upper extremities; and, must 

avoid concentrated exposure to noise and vibration.

[Id., Tr. 7-8]. At step four, the AC found that Balester could perform her past 

relevant work as an appointment clerk, as defined by the Dictionary of 

Occupational Titles. [Id., Tr. 8]. 

 

2 “Light work involves 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.” § 404.1567(b).

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II. ANALYSIS

Pursuant to § 405(g), this Court’s review is limited to determining 

whether the Commissioner’s decision is supported by substantial evidence 

and was made in conformity with proper legal standards. Gentry v. Comm’r 

of Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014). 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 quotation marks and citation omitted). Only the 

evidence in the record below may be considered when determining 

whether the prior decision is supported by substantial evidence. Bass v. 

McMahon, 499 F.3d 506, 513 (6th Cir. 2007). 

The significant deference accorded the Commissioner’s decision is 

conditioned on the AC’s adherence to governing standards. “Chief among 

these is the rule that the [AC] must consider all evidence in the record 

when making a determination, including all objective medical evidence, 

medical signs, and laboratory findings.” Gentry, 741 F.3d at 723. See also 

Rogers, 486 F.3d at 249. In other words, substantial evidence cannot be 

based upon fragments of the evidence, and “must take into account 

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whatever in the record fairly detracts from its weight.” Garner v. Heckler, 

745 F.2d 383, 388 (6th Cir. 1984) (internal quotation marks and citation 

omitted). 

The Commissioner must also adhere to its own procedures, but failure 

to do so constitutes only harmless error unless the claimant has been 

prejudiced or deprived of substantial rights. Rabbers v. Comm’r of Soc. Sec., 

582 F.3d 647, 654 (6th Cir. 2009). The AC’s failure to use an “adjudicatory 

tool” that does not change the outcome of the decision is harmless. Id. at 

655-56. On the other hand, substantial errors like ignoring evidence in the 

record or failing to follow the treating physician rule are not harmless. Id.; 

Gentry, 741 F.3d at 723, 729; Cole v. Astrue, 661 F.3d 931, 940 (6th Cir. 

2011). 

Balester argues that the AC did not follow Social Security regulations 

or due process in reaching its conclusion and that that its conclusions were

not based on substantial evidence. Before addressing these arguments, 

the Court must address the brief submitted by his counsel, Joshua L. 

Moore. Previously, this Court has warned him that he could face sanctions 

and referral for disciplinary action due to his “almost complete lack of 

argument development,” Spiteri v. Colvin, No. CV 14-14140, 2015 WL 

7258749, at *3 and n. 3 (E.D. Mich. Nov. 9, 2015), report and 

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recommendation adopted sub nom. Spiteri v. Comm’r of Soc. Sec., No. 14-

CV-14140, 2015 WL 8538036 (E.D. Mich. Dec. 11, 2015); discovered a 

relevant treating physician opinion that Moore failed to cite in Fisher v. 

Colvin, No. CV 14-13516, 2015 WL 7251308, at *3 (E.D. Mich. Oct. 30, 

2015), report and recommendation adopted sub nom. Fisher v. Comm’r of 

Soc. Sec., No. 14-CV-13516, 2015 WL 7717164 (E.D. Mich. Nov. 30, 

2015); found that he seriously misrepresented the ALJ in Rhodes v. Colvin, 

No. CV 14-13716, 2015 WL 6509151, at *3 (E.D. Mich. Oct. 7, 2015), 

report and recommendation adopted sub nom. Rhodes v. Comm’r of Soc. 

Sec., No. 14-13716, 2015 WL 6796594 (E.D. Mich. Nov. 6, 2015); and 

found that his client met a listing despite Moore’s “cursory and 

underdeveloped” argument. Harper v. Comm’r of Soc. Sec., No. 2:14-CV11630-LJM, 2015 WL 4509076, at *4 (E.D. Mich. July 24, 2015). Other 

judges have warned Moore, including the Honorable Gerald E. Rosen, 

whose rebuke emphasized that Moore was providing a disservice to his 

clients:

Such hyperbole and generalized accusations of ALJ 

misfeasance are no substitute for engagement with the actual 

evidence in the administrative record and the explanations and 

analysis actually put forward by the ALJ. Counsel ill serves his 

clients by charging the ALJs with wholesale dereliction of their 

duties, rather than identifying specific findings by the ALJs that 

might lack evidentiary support or rest upon legally deficient 

reasoning.

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Roberts v. Comm’r of Soc. Sec., No. 14-11994, 2015 WL 5439725, at 

*2 (E.D. Mich. Sept. 15, 2015).

As is Moore’s habit, his brief on behalf of Balester fails to cite to 

any of the medical record and makes unsupportable allegations 

regarding the AC’s analysis. (These deficiencies are described more 

fully below.) The Court notes that Moore filed the brief on behalf of 

Balester in June of 2015, prior to the warnings in the decisions 

described above. Should Moore’s subsequent briefing suffer from the 

same deficiencies, he is warned again that he could face sanctions 

and a referral for disciplinary action. 

“[I]ssues adverted to in a perfunctory manner, unaccompanied 

by some effort at developed argumentation, are deemed waived. It is 

not sufficient for a party to mention a possible argument in the most 

skeletal way, leaving the court to ... put flesh on its bones.” 

McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) (citation 

and internal quotation marks omitted). This quote is apropos to 

Balester’s brief, but in order to not prejudice Balester based upon her 

attorney’s deficient performance, the Court thoroughly reviewed the 

record. Having done so, the Court finds that her arguments are 

without merit.

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A.

To assess Balester’s argument that the AC reversed the ALJ’s 

decision without due process, the Court must determine whether the 

applicable procedures were followed, and if so, whether those procedures

provide due process to the claimant. Here, the Social Security appeals 

process was followed and Balester provides no evidence to the contrary. 

She cites to the Social Security Administration’s “Hearings, Appeals & 

Litigation Law Manual” at section I-2-6-1 for the proposition that the ALJ 

must conduct a full and fair hearing. 1993 WL 643020 (July 28, 2015)

(“HALLEX I-2-6-1”). But a hearing was conducted by an ALJ, and HALLEX 

I-2-6-1 does not dictate that a hearing is required by the AC.

Under the regulations, the AC may decide to review an ALJ’s 

decision sua sponte within sixty days, and must simply mail a notice of 

review to all parties stating the reasons for the review and the issues to be 

considered. 20 C.F.R. § 404.969, 20 C.F.R. § 404.973. Here, notice was 

sent to Balester within sixty days of the ALJ’s decision and it detailed the 

reasons that the AC determined that the ALJ’s decision was not supported 

by substantial evidence. [R. 11-4, Tr. 78-81]. The notice provided Balester 

with the opportunity to send additional information, to request an 

appearance before the appeals council, and to request a hearing before an 

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ALJ. [Id., Tr. 81-83]. Accordingly, Balester’s attorney sent a brief to the AC 

in support of the ALJ’s ruling and filed additional medical evidence. [R. 11-

6, Tr. 146-48; R. 11-8, Tr. 379-87]. The AC’s final decision was rendered 

only after this notice and opportunity to be heard was provided. [R. 11-2, 

Tr. 4-8],

Social Security proceedings before the AC implicate a claimant’s 

property interest in her benefits – an interest that is protected by the Fifth

Amendment. Flatford v. Chater, 93 F.3d 1296, 1304-05 (6th Cir. 1996). “At 

a minimum, the Due Process Clause requires that an individual is afforded 

notice and an opportunity to be heard before the deprivation of a protected 

interest through adjudication.” Ferriell v. Comm’r of Soc. Sec., 614 F.3d 

611, 620 (6th Cir. 2010). As noted, Balester was provided with notice and 

an opportunity to be heard in accordance with the regulations. Under 

similar circumstances, the Sixth Circuit found that due process was 

provided. Id. at 620-21 (due process provided when claimant had 

opportunity to contest AC’s revision of his onset date). Balester’s due 

process argument is without merit. 

B.

Using unwarranted hyperbole, Balester asserts, “There is absolutely 

no rationale nor discussion of Ms. Balester’s medical problems in the ALJ's 

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decision. The ALJ's decision makes zero legal justifications for his RFC and 

further the RFC is contradictory to his severe impairment findings.” [R. 13, 

PgID 441]. Then, Balester cites only to her testimony to support her 

attacks on the RFC, never to the evidence in the medical record. The 

original ALJ’s decision was also largely based on Balester’s testimony, 

which was a deficiency that the AC recognized in overturning it. [R. 11-2, 

Tr. 6]. Balester’s brief here suffers from the same overreliance on her 

subjective claims, and there is substantial evidence in the record to support 

the AC’s decision.

Much of the evidence in the record predates the alleged onset date of 

December 1, 2010. There are records from 1994 to 1995, [R. 11-7, Tr. 149-

73], and 2001 to 2014 [Id., Tr. 174-247; R. 11-8, Tr. 248-387], with the 

majority of the records being before the alleged onset date. Prior medical 

evidence is only considered “insofar as it bears on the claimant’s condition 

after the onset of disability.” Moore v. Comm’r of Soc. Sec., No. 11-11857, 

2013 WL 1278478, at *3 (E.D. Mich. Mar. 26, 2013). Here, there is little 

objective evidence from before or during the relevant period that would 

support a finding of disability.

In December 2006, a CT showed that Balester had a two centimeter 

lesion in the inferior pole of the right kidney that was “suspicious for a solid 

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enhancing mass.” [R. 11-7, Tr. 224]. Radiologist Stephan Loginsky, M.D., 

noted that neoplasm was not ruled out. [Id.]. Similar findings of a renal 

mass were made throughout 2007, 2008, and 2009. [Id., Tr. 225, 227, 230-

31, 241, 243-44, 245, 247; R. 11-8, Tr. 274-75, 276-80, 281-82, 332, 372-

73, 378]. All of the records indicate no growth in the size of the mass, and it 

is never confirmed whether the mass is malignant or benign. [Id.]. 

In September 2007, she was diagnosed with anxiety, migraines, 

osteoarthritis, and abdominal pain, in addition to her possible malignant 

neoplasm. [R. 11-8, Tr. 276]. Her physical examination showed normal and 

unchanged gait, station, and posture, and her head, spine, and extremities 

were normal. [Id., Tr. 279]. Follow up visits in October 2007, as well as 

March, May, and September, of 2008 were similar. [Id., Tr. 259-60, 262-63, 

264-65, 281-82]. In October 2008, her hypercholesterolemia was “at goal,” 

her migraine symptoms were greatly improved, and her hypothyroidism 

was stable with medications. [Id., 266-67]. She was seen several more 

times in 2009, when rheumatoid arthritis was added as a diagnosis. [Id., Tr. 

249, 250-51].

In April 2010, supine and upright radiographs of the abdomen were 

taken, showing early degenerative changes in the lumbar spine with 

minimal levoscoliosis. [R. 11-8, Tr. 293]. In July, a view of the lumbosacral 

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spine showed mild disc space narrowing at L5-S1 and mild degenerative 

changes generally, though her other disc spaces were normal and there 

were no other abnormal results. [Id., Tr. 283]. 

There are much fewer records postdating the alleged onset date of 

December 1, 2010. In February 2011, Balester complained that her “bones 

hurt,” and records indicate a history of fibromyalgia. [R. 11-8, Tr. 351-52]. 

The onset of the pain was said to be gradual and recurring for one year. 

[Id.]. Balester was seen again in November 2012. [Id., Tr. 346-48]. Her 

history of rheumatoid arthritis and fibromyalgia was noted, and she was 

provided medications for GERD, migraines, lumbago (lower back pain), 

arthritis, hypothyroidism, hypercholesterolemia, and anxiety. [Id.]. 

In March 2013, Balester saw Kenneth M. Kernen, M.D., about her 

renal mass. She reported blood in her urine, elevated cholesterol, 

depression, headaches, back pain and neck pain. [R. 11-8, Tr. 374-76]. 

She did not report any other urinary complaints, and the physical 

examination contained all normal findings, including normal gait and station 

of the head and neck. [Id., Tr. 374-75]. Dr. Kernen’s assessment was 

“[u]nspecified disorder of kidney and ureter.” [Id., Tr. 376].

Balester was also seen in March 2013 by state agency physician 

Leonidas Rojas, M.D., for a consultative examination. [Id., Tr. 356-58]. She 

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reported that she suffers from migraines about fifteen times per month, has 

pain and stiffness in her lower back that is aggravated by prolonged 

standing, walking, or sitting, and that her left thumb was unable to bend in 

recent weeks. [Id.]. Dr. Rojas found that Balester was able to drive and do 

most housekeeping tasks. [Id.]. Most of his findings were normal. [Id.]. In 

the supplemental report, Dr. Rojas found that Balester was able to do every 

activity listed under “current abilities,” though some unspecified limitations 

were noted for standing, bending, stooping, carrying, and pushing, due to 

degenerative disc disease. [Id., Tr. 359]. Except for Balester’s Babinski sign 

test, her test results for her reflexes of her extremities and ambulation were 

normal, and the clinical evidence did not show that she needed a walking 

aid. [Id., Tr. 359-60]. The ranges of motion in her lumbar spine and knees 

were somewhat limited, but the remainder of the testing of her joints was 

normal. [Id., Tr. 361-62]. 

Shortly thereafter, state agency consultants Paul Liu, D.O., and 

Myung Ho Hahn, M.D., provided non-consultative medical statements on 

Balester’s mental and physical impairments based on the medical record to 

that point. [R. 11-3, Tr. 54-63]. Dr. Liu found that Balester’s diagnosed 

anxiety caused no more than mild limitations in her activities of daily living, 

social functioning, and “concentration, persistence or pace,” and that there

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had been no repeated episodes of decompensation. [Id., Tr. 58]. With 

respect to Balester’s physical impairments, Dr. Hahn found that the alleged 

intensity of her symptoms were not consistent with the totality of the 

evidence, citing specifically her ability to complete necessary daily tasks,

her normal gait, and lack of a need for a walking aid. [Id., Tr. 59]. He found 

that Balester could occasionally lift twenty pounds, could frequently lift ten 

pounds, could stand or sit for six hours in an eight-hour work day, and had 

no postural limitations other than climbing ramps, stairs, ladders, ropes, or 

scaffolds, which she could only do occasionally. [Id., Tr. 60]. Dr. Rojas, Dr. 

Liu, and Dr. Hahn provided the only medical opinions regarding Balester’s 

limitations in the record. 

Contrary to Balester’s claims, the AC gave ample justification from 

the record for its findings. It noted initially that there is no medical source 

indicating the need for the severe limitations previously imposed by the 

ALJ. [R. 11-2, Tr. 5]. It also noted that during the alleged period of 

disability, Balester only sought medical care for her alleged impairments on 

a few occasions, at times over a year apart. [Id.; see also R. 11-8, Tr. 346-

48, 349-50, 351-52, 363-65, 366-68, 374-76, 381-84]. Balester argues that 

the AC failed to consider her lack of insurance and ability to afford 

treatment when citing the lack of records in the relevant time period. But 

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the records of her visits from 2012, 2013 and 2014 reflect normal 

musculoskeletal, motor, and sensory findings. [Id.]. The AC did not rely on 

the lack of treatment records per se, but on the lack of support for 

Balester’s disability claim within her records. See Lee v. Comm’r of the 

Soc. Sec. Admin., No. 14-CV-11292, 2015 WL 4394275, at *13 (E.D. Mich. 

July 16, 2015). It aptly deduced that “the treating source evidence in the 

record does not reflect deficits in grasping or fingering with the claimant’s 

hands, deficits with range of motion in the neck, or the need to change 

positions at will.” [R. 11-2, Tr. 5]. 

Balester objects to the AC’s reliance on the opinion of Dr. Hahn, who 

did not examine Balester before rendering his opinion. But the AC relied

equally on the findings of Dr. Rojas, who did examine Balester. [R. 11-2, Tr. 

5-6]. Dr. Rojas found no limitations that would prevent Balester from 

performing light work as defined by 20 C.F.R. § 404.1567. [R. 11-8, Tr. 

359]. Further, the AC was in fact required to consider the opinions of state 

agency medical consultants. 20 C.F.R. § 404.1527(e)(2)(i); SSR 96-6p, 

1996 WL 374180. And “while not always the most desirable route, the 

regulations permit an ALJ to give the greatest weight to the opinion of a 

non-examining medical source. This is particularly true in a case where 

there is no readily identifiable treating physician opinion to discount or 

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reject.” Grady v. Comm’r of Soc. Sec., No. 12-CV-13349, 2013 WL 

4670365, at *13 (E.D. Mich. Aug. 30, 2013). Given the lack of a treating 

physician’s opinion here, the AC was entitled to rely in part on a nonexamining source in crafting the RFC. 

Balester was found to have the RFC to perform light work with some

additional limitations. [R. 11-2, Tr. 7]. This finding is supported by the 

opinions of Dr. Rojas and Dr. Hahn and other substantial evidence within 

the record. In the absence of certain additional limiting factors that were not 

present here, a person who can do light work can also do sedentary work. 

20 C.F.R. § 404.1567(b). Therefore, the AC found that Balester could 

return to her past relevant work as an appointment clerk, which is a 

sedentary position. Directory of Occupational Titles 237.367-010, 1991 WL 

672185. [R. 11-2, Tr. 8]. These findings are in accordance with law, and the 

AC’s decision should be upheld. 

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III. CONCLUSION

The Court RECOMMENDS that the Commissioner’s motion for 

summary judgment [R. 16] be GRANTED, that Balester’s motion for 

summary judgment [R. 13] be DENIED, and the Commissioner’s decision 

be AFFIRMED pursuant to sentence four of 42 U.S.C. § 405(g).

s/Elizabeth A. Stafford

ELIZABETH A. STAFFORD

United States Magistrate Judge

Dated: July 14, 2016

NOTICE TO THE PARTIES REGARDING OBJECTIONS

Either party to this action may object to and seek review of this 

Report and Recommendation, but must act within fourteen days of service 

of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and Fed. R. Civ. 

P. 72(b)(2). Failure to file specific objections constitutes a waiver of any 

further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. 

Secretary of HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 

638 F.2d 947 (6th Cir. 1981). Filing objections which raise some issues but 

fail to raise others with specificity will not preserve all objections that party 

might have to this Report and Recommendation. Willis v. Secretary of 

HHS, 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). A copy of any objection 

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must be served upon this Magistrate Judge. E.D. Mich. LR 72.1(d)(2).

Each objection must be labeled as “Objection #1,” “Objection #2,” 

etc., and must specify precisely the provision of this Report and 

Recommendation to which it pertains. Not later than fourteen days after 

service of objections, the non-objecting party must file a response to 

the objections, specifically addressing each issue raised in the objections in 

the same order and labeled as “Response to Objection #1,” “Response to 

Objection #2,” etc. The response must be concise and proportionate in 

length and complexity to the objections, but there is otherwise no page 

limitation. If the Court determines that any objections are without merit, it 

may rule without awaiting the response.

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s ECF 

System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on July 14, 2016.

s/Marlena Williams

MARLENA WILLIAMS

Case Manager

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