UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

NATALIE YARGEAU,

Plaintiff Civil Action No. 14-14165

v. HON. STEPHEN J. MURPHY, III

 U.S. District Judge

HON. R. STEVEN WHALEN

COMMISSIONER OF SOCIAL U.S. Magistrate Judge

SECURITY,

Defendant.

__________________________________/

REPORT AND RECOMMENDATION

Plaintiff Natalie Yargeau (“Plaintiff”) brings this action pursuant to 42 U.S.C.

§405(g), challenging a final decision of Defendant Commissioner (“Defendant”) denying her

application for Supplemental Security Income and Disability Insurance Benefits under the

Social Security Act. Both parties have filed summary judgment motions which have been

referred for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the

reasons set forth below, I recommend that Defendant’s motion for summary judgment be

GRANTED and that Plaintiff’s motion be DENIED. 

PROCEDURAL HISTORY

On October 13, 2011, Plaintiff filed applications for Supplemental Security Income

(“SSI”) and Disability Insurance Benefits (“DIB”), alleging disability as of September 19,

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2011 (Tr. 174-179, 180-186). After the initial denial of the claim, Plaintiff requested an

administrative hearing, held on April 11, 2013 before Administrative Law Judge (“ALJ”)

Lawrence E. Blatnik (Tr. 40). Plaintiff, represented by attorney Karl Bender testified (Tr.

44-68), as did Vocational Expert (“VE”) Georgette Gunther (Tr. 68-77). On June 21, 2013,

ALJ Blatnik found that Plaintiff was capable of performing her past relevant work as a data

entry clerk (Tr. 32-33). On September 9, 2014, the Appeals Council denied review (Tr. 1-3). 

Plaintiff filed for judicial review of the final decision on October 29, 2014. 

BACKGROUND FACTS

Plaintiff, born March 22, 1960, was 53 when ALJ Blatnik issued his decision (Tr. 33,

174). She completed one year of college and worked previously as a bookkeeper, legal

assistant, cafeteria worker, and medical biller (Tr. 213). She alleges disability as a result of

migraine headaches, seizures, depression, anxiety, arthritis, degenerative disc disease,

osteoporosis, and substance abuse (Tr. 212). 

A. Plaintiff’s Testimony

 Plaintiff offered the following testimony:

She stood 5'3" and weighed 112 pounds (Tr. 45). She lived with her parents in

Owosso, Michigan (Tr. 45). She held a valid driver’s license and drove about once a week

(Tr. 46). In 2011, she received an OUI conviction (Tr. 46). She worked full time as a data

entry clerk until June, 2011 (Tr. 47). Her attempts to work after June, 2011 were stymied

by migraine headaches and stress (Tr. 47-48). Between 1997 and 2001, she worked in

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accounts payable at an automotive plant (Tr. 48). After the accounts payable job, she worked

for a law firm for approximately one year but was forced to quit due to health problems (Tr.

49). 

Plaintiff was unable to work due to migraine headaches and back pain (Tr. 50). She

experienced migraine headaches about once a week lasting for up to three days (Tr. 50). Her

migraine medication was effective only part of the time (Tr. 51). She performed exercises

recommended by a physical therapist, but continued to experience constant, non-radiating

low back pain (Tr. 51-52). She had not experienced seizures since November, 2011 (Tr. 54). 

Plaintiff was unable to walk for more than 30 minutes, stand for 15, or sit for 60 at

one time (Tr. 55). She experienced difficulty bending, but was able to squat and climb stairs

(Tr. 55). She experienced occasional hand numbness but no other manipulative limitations

(Tr. 55-56). She smoked around 10 cigarettes each day (Tr. 56). She had not used alcohol

since June, 2012 (Tr. 56-58, 63). She had been admitted for inpatient treatment for alcohol

abuse for 52 days in 2012 and currently attended AA meetings twice a week (Tr. 57-58). She

was able to take care of her personal needs and perform light household chores (Tr. 58). 

During long car trips, she required stops for position changes around once an hour (Tr. 60). 

Plaintiff was unable to work due to unpredictable back problems or headaches (Tr. 62). Her

backaches were worse in cold, damp weather (Tr. 62). Lumbar spine epidural injections did

not improve her condition (Tr. 62-63). 

In response to questioning by her attorney, Plaintiff testified that she moved in with

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her parents in August, 2012 after she lost her house (Tr. 63). Her back pain became worse

after giving up alcohol (Tr. 64). She experienced sensitivity to “light and sound” (Tr. 64). 

On a scale of one to ten, she typically experienced level “two to three” but up to level “nine”

back pain on a “bad” day (Tr. 64-65). On such days, she spent most of the time in bed with

pillows under her knees (Tr. 65). She had sought emergency treatment on several occasions

for migraines (Tr. 65). She also took medication for depression and anxiety (Tr. 66). She

visited her children and grandchildren approximately twice a month (Tr. 67). 

B. Medical Evidence

1. Treating Sources1

In January, 2011, Plaintiff sought emergency treatment after reporting a seizure (Tr.

379). She was assessed with a “syncopal episode with possible seizure” (Tr. 380). Treating

staff found that the seizure was “provoked” by the use of Wellbutrin (Tr. 386). She was

prescribed a substitute medication (Tr. 386). In June, 2011, Plaintiff sought treatment for

migraine headaches (Tr. 399). She was prescribed Motrin 800 upon discharge (Tr. 400). The

same month, she sought emergency treatment for seizures (Tr. 265). Treating staff noted a

history of alcohol and “possibly drug abuse” (Tr. 265). A CT of the brain was unremarkable

(Tr. 267). A clinical examination performed in response to Plaintiff’s report of migraine

headaches was unremarkable (Tr. 491, 494). Umesh Verma, M.D. stated that Plaintiffshould

Records created in the year prior to the September 19, 2011 alleged onset of 1

disability are included for background purposes only. 

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be “wean[ed]” off pain medication (Tr. 491). July, 2011 emergency records note a history

of “drug seeking behaviors” (Tr. 411-412). The same month, Plaintiff sought treatment for

chest pain (Tr. 367). A stress test and other studies were negative for abnormalities (Tr. 429,

462-464). Plaintiff reported drinking one half to one pint of vodka daily but denied the use

of street drugs (Tr. 367). She reported chronic back pain (Tr. 368). She was diagnosed as

a “chronic alcoholic” (Tr. 433). An MRI of the brain was negative for abnormalities (Tr.

440). 

In August, 2011, Plaintiff received emergency treatment for back pain (Tr. 401). 

Nerve conduction studies of the lower extremities were normal (Tr. 496). The same month,

she was charged with driving under the influence (Tr. 853). Dr. Verma’s September, 2011

notes state that Plaintiff passed out in a bathroom (Tr. 497). An EMG was unremarkable (Tr.

498). She was advised to “quit narcotics” (Tr. 498). The same month, Gary Mikesell, D.O.

noted Plaintiff’s report that she injured her back while performing yard work (Tr. 507). In

October, 2011, Plaintiffsought treatment for “depression, anxiety, and feelings of decreased

self-worth” (Tr. 483). Plaintiff reported suicidal ideation (Tr. 484). She was admitted for

inpatient psychiatric treatment for seven days (Tr. 485). Upon discharge, she was diagnosed

with major depression, alcohol dependence, and “possible bipolar affective disorder” (Tr.

485). Upon discharge, Plaintiff was advised to “stay sober, go to AA and NA and get a

sponsor” (Tr. 486). She was assigned a GAF of 40 to 45 (Tr. 485). The following week, 2

2

A GAF score of 31 to 40 indicates “some impairment in reality testing or

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treating records by Dr. Mikesell state that Plaintiff was attempting to receive disability

benefits but was “prepared to go back to work if it doesn’t happen” (Tr. 505). The same

month, imaging studies of the left hip were unremarkable but showed “marked disc space

narrowing” at L4-L5 (Tr. 482). The following month, Plaintiff reported ongoing migraine

headaches (Tr. 501). University of Michigan hospital records state that inpatient psychiatric

treatment was not warranted (Tr. 613). Examination notes by Joshua D. Bess, M.D. state that

it was “very difficult to differentiate” if Plaintiff’s reported psychiatric and seizure-related

symptoms were “conversion, factitious or malingering” (Tr. 613). She was assigned a GAF

of 55 (Tr. 613). In December, 2011, Plaintiff was admitted for opiate and alcohol 3

dependence treatment for 14 days (Tr. 842). 

 In January, 2012, Plaintiff was readmitted for substance abuse treatment (Tr. 854-

855). April, 2012 treating notes state that Plaintiff relapsed after being discharged from a 

detox program (Tr. 680, 691). The following month, Plaintiff reported back pain after taking

a fall (Tr. 756). Plaintiff reported that she was “[worn] out taking care of elderly parents”

(Tr. 796). In June, 2012 Plaintiff sought treatment for ongoing symptoms of back pain and

communication OR major impairment in several areas such as work, school, familyrelations,

judgment, thinking or mood.” Diagnostic and Statistical Manual of Mental Disorders–Text

Revision (“DSM–IV–TR” ), 34. A GAF score of 41-50 indicates ‘[s]erious symptoms...[or]

serious impairment in social, occupational, or school functioning,‘ such as inability to keep

a job. Id. at 34. 

3

A GAF score of 51-60 indicates moderate symptoms (occasional panic attacks) or

moderate difficulty in social, occupational, or school functioning. DSM-IV-TR, at 34. 

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depression (Tr. 752). The same month, Plaintiff, intoxicated, sought emergency treatment

for alcohol abuse (Tr. 776). She exhibited adequate strength in all extremities with a full

range of motion (Tr. 777). A physical therapy evaluation states that Plaintiff was unable to

sit for more than 60 minutes at a time (Tr. 934). In August, 2012, Plaintiffsought emergency

treatment for migraine headaches (Tr. 863). Emergency notes state “drug seeking behavior

suspected” (Tr. 867). She was denied a request for narcotics (Tr. 869). 

In October, 2012, Wael Salman, M.D. examined Plaintiff, noting chronic moderate

to severe low back pain (Tr. 262). Plaintiff reported that Norco kept the back pain under

“fair” control and that anxietyand depression were “well controlled” with current medication

(Tr. 262). She reported headaches “every few weeks” (Tr. 262). Plaintiff reported that she

had recently begun caring for her elderly parents (Tr. 262). Dr. Salman observed a normal

gait (Tr. 263). In January, 2013, Plaintiff sought treatment for migraine-induced nausea (Tr.

899). She was advised to take Motrin and Norco for pain (Tr. 902). 

In March, 2013, neurologist Allan Clague, M.D. examined Plaintiff, noting her report

of lower back pain and the inability to stand or walk for more than 20 minutes (Tr. 1323). 

Plaintiff also reported that pain interfered with her ability to concentrate (Tr. 1323-1324). 

Dr. Clague observed good strength in the lower extremities (Tr. 1324). He found that she

was unable to lift more than 10 pounds or push, pull, bend, twist, crawl, climb, or squat (Tr.

1325). He opined that Plaintiff was “totally and permanently medically disabled . . .” He

noted that the physical limitations were exacerbated by anxiety and depression (Tr. 1325). 

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Treating records from the following month state that Plaintiff experienced weekly migraine

headaches, then later, “daily” migraine headaches (Tr. 1328, 1330). 

2. Non-Treating Sources

In February, 2012, Douglas Chang, M.D. performed a non-examining review of

Plaintiff’s medical records, finding that she could perform a limited range of exertionally

light work (Tr. 94). He found that her allegations of disability were “partially” credible

4

(Tr. 91). Darrell Snyder, Ph.D. found mild limitation in activities of daily living and social

functioning and moderate limitation in concentration, persistence, or pace (Tr. 92-93). He

found that Plaintiff did not experience significant limitations in carrying out detailed

instructions (Tr. 96). 

 C. Vocational Expert Testimony

VE Georgette Gunter classified Plaintiff’s former work as a legal assistant as

sedentary and skilled and work as a data entry clerk as sedentary and semiskilled (Tr. 70). 

The ALJ then posed the following question to the VE, describing an individual of Plaintiff’s

age, education, and work background: 

[A]ssume we have an individual that cannot lift or carry more than 20 pounds

20 C.F.R. § 404.1567(a-d) defines sedentary work as “lifting no more than 10 pounds 4

at a time and occasionally lifting or carrying articles like docket files, ledgers, and small

tools; light work as “lifting no more than 20 pounds at a time with frequent lifting or

carrying of objects weighing up to 10 pounds;” medium work as “lifting no more than 50

pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds;” and

that exertionally heavy work “involves lifting no more than 100 pounds at a time with

frequent lifting or carrying of objects weighing up to 50 pounds. 

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occasionally and 10 pounds frequently. Let’s assume for right now the

individual can sit, stand or walk, all for at least six hours in an eight hour

workday. Would be restricted to no climbing of ladders, ropes or scaffolds,

only occasional climbing of ramps or stairs, as well as only occasional stooping,

kneeling, crouching, crawling or squatting. She could do frequent balancing. 

No work that involves exposure to dangerous unprotected machinery, work at

unprotected heights. No use of air powered, torque, pneumatic or vibratory

tools. In addition she’d be able to understand, remember and carry out short,

simple to moderately complex instructions. Also limited to routine work that

does not involve frequent significant changes or adaptions. Work that does not

involve meeting production quotas or goals or keeping pace with co-workers. 

Could an individual with those restrictions do any of the claimant’s past work?

(Tr. 70-71). 

The VE found the above restrictions would not preclude Plaintiff’s past relevant work as a

data entry clerk, or the light, unskilled work of an interviewer (2,385 jobs in the regional

economy); mail clerk (1,505); or, the light, semi-skilled jobs of mail sorter (1,255); or file

clerk (4,665) (Tr. 71-72). 

The VE testified that if the above-described hypothetical individual were limited to

sedentary, rather than light work, the job of data entry clerk would still be available, along

with the semiskilled work of interviewer (2,400) and file clerk (1,175); and, the unskilled

work of information clerk (2,470) and ticket checker (1,780) (Tr. 72). 

The VE testified further that if the individual were additionally limited by the need

to change positions every 30 to 45 minutes (sit/stand option), the numbers for the sedentary,

semiskilled interviewer positionwould be reduced to 1,250 but the light unskilled interviewer

positions would be unchanged (Tr. 73). She stated that the data entry, file clerk, mail clerk,

and mail sorter positions would be eliminated (Tr. 73). 

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The VE stated that if the same individual required “frequent, unscheduled rest

breaks,” or, were required to miss work more than one day a month, all work would be

eliminated (Tr. 74). The VE stated that her testimony was consistent with the information

found in the Dictionary of Occupational Titles (“DOT”) except for her findings regarding a

sit/stand option which were drawn from Employment Statistics Quarterly (Tr. 74-75). 

 D. The ALJ’s Decision

Citing Plaintiff’s medical records and testimony, the ALJ found that Plaintiff

experienced the severe impairments of “[d]egenerative disc disease of the lumbar spine;

migraine headaches; depression; and a history of alcohol abuse, in current remission” but that

none of the conditions met or medically equaled the impairments found in Part 404 Appendix

1 Subpart P, Appendix No. 1 (Tr. 25). As to the mental impairments, the ALJ found that

Plaintiff experienced mild limitation in activities of daily living and social functioning and

moderate limitation in concentration, persistence, or pace (Tr. 25-26). The ALJ found that

Plaintiffretained the Residual Functional Capacity(“RFC”) for light workwith the following

additional restrictions:

She is limited to never climbing ladders, ropes, or scaffolds; can occasionally

kneel, stoop, crouch, crawl, squat, or climb ramps or stairs; and can frequently

balance. She can never use air, pneumatic, dangerous or unprotected

machinery or work at unprotected heights. In addition, she is able to

understand, remember, and carry out short and simple to moderately complex

instructions; perform routine work that does not require frequent significant

changes or adaptations; and perform work that does not involve meeting

production quotas or goals or keeping pace with co-workers 

(Tr. 27). Citing the VE’s final job findings, the ALJ determined that Plaintiff could perform

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her past relevant semiskilled work as a data entry clerk “as actually and generally performed”

(Tr. 32). The ALJ found further that Plaintiff could perform the semiskilled, light positions

of mail sorter and file clerk and unskilled, light positions of interviewer and mail clerk (Tr.

33). 

The ALJ discounted Plaintiff’s allegations of disability, noting that she could perform

household and cooking chores; take care her parents and pets; and “driving[] and socializing

daily” (Tr. 30). He observed that Plaintiff went out independently and did not experience

problems getting along with family, friends, or authority figures (Tr. 30). He noted that the

conservative treatment prescribed by Plaintiff’s treating sources was “relatively effective”

in controlling symptoms of headaches and back pain (Tr. 30). He discounted Dr. Clagues’s 

March, 2013 opinion, noting that it was based on Plaintiff’s “subjective report” of limitations

(Tr. 30, 32). 

 STANDARD OF REVIEW

The district court reviews the final decision of the Commissioner to determine

whether it is supported by substantial evidence. 42 U.S.C. §405(g); Sherrill v. Secretary of

Health and Human Services, 757 F.2d 803, 804 (6 Cir. 1985). Substantial evidence is more th

than a scintilla but less that a preponderance. It is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.

389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB,

305 U.S. 197, 229, S. Ct. 206, 83 L.Ed.126 (1938)). The standard of review is deferential and 

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“presupposes that there is a ‘zone of choice’ within which decision makers can go either way,

without interference from the courts.” Mullen v. Bowen, 800 F.2d 535, 545 (6 Cir. th

1986)(en banc). In determining whether the evidence is substantial, the court must “take into

account whatever in the record fairly detracts fromits weight.” Wages v. Secretary of Health

& Human Services, 755 F.2d 495, 497 (6 Cir. 1985). The court must examine the th

administrative record as a whole, and may look to any evidence in the record, regardless of

whether it has been cited by the ALJ. Walker v. Secretary of Health and Human Services,

884 F.2d 241, 245 (6 Cir. 1989). th

FRAMEWORK FOR DISABILITY DETERMINATIONS

Disability is defined in the Social Security Act as 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 12 months.” 42 U.S.C. §423(d)(1)(A). In

evaluating whether a claimant is disabled, the Commissioner is to consider, in sequence,

whether the claimant: 1) worked during the alleged period of disability; 2) has a severe

impairment; 3) has an impairment that meets or equals the requirements of an impairment

listed in the regulations; 4) can return to past relevant work; and 5) if not, whether he or she

can perform other work in the national economy. 20 C.F.R. §416.920(a). The Plaintiff has

the burden of proof at steps one through four, but the burden shifts to the Commissioner at

step five to demonstrate that, “notwithstanding the claimant's impairment, he retains the

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residual functional capacity to perform specific jobs existing in the national economy.” 

Richardson v. Secretary of Health & Human Services, 735 F.2d 962, 964 (6th Cir.1984).

ANALYSIS

A. The Treating Sources

Plaintiff argues first that the ALJ erred by failing to mention or evaluate the opinion

of Dr. Gary Mikesell, a treating source. Plaintiff’s Brief, 10, Docket #14 (citing Tr. 503-

513). She also faults the ALJ for according only “minimal weight” to Dr. Clague’s March,

2013 opinion. 

1. Applicable Law

“If the opinion of the claimant's treating physician is well-supported by medically

acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other

substantial evidence in [the] case record, it must be given controlling weight." Hensley v.

Astrue, 573 F.3d 263, 266 (6th Cir.2009)(internal quotation marks omitted)(citing Wilson v.

CSS, 378 F.3d 541, 544 (6th Cir.2004); 20 C.F.R. § 404.1527(c)(2)). However, in the

presence of contradicting substantial evidence, the ALJ may reject all or a portion of the

treating source's findings, see Warner v. Commissioner of Social Sec., 375 F.3d 387, 391-392

(6th Cir.2004), provided that he supplies "good reasons" for doing so. Wilson, at 547; 20

C.F.R. § 404.1527(c)(2)). In explaining the reasons for giving less than controlling weight

to the treating physician opinion, the ALJ must consider (1) "the length of the ... relationship”

(2) “frequency of examination,” (3) “nature and extent of the treatment,” (4) the

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“supportability of the opinion,” (5) “consistency ... with the record as a whole,” and, (6) “the

specialization of the treating source." Wilson, at 544.

The failure to articulate “good reasons” for rejecting a treating physician's opinion

constitutes reversible error. Gayheart v. CSS, 710 F.3d 365, 376 (6th Cir.2013); Wilson, 378

F.3d at 544–546 (6th Cir.2004)(citing § 404.1527(c)(2)). “[T]he Commissioner imposes on

its decision-makers a clear duty to ‘always give good reasons in our notice of determination

or decision for the weight we give [a] treating source's opinion.’” Cole v. Astrue, 661 F.3d

931, 937 (6th Cir.2011). “These reasons must be ‘supported by the evidence in the case

record, and must be sufficiently specific to make clear to any subsequent reviewers the

weight the adjudicator gave to the treating source's medical opinion and the reasons for that

weight.’” Gayheart, at 376 (citing SSR 96–2p, 1996 WL 374188, *5 (1996)).

2. Dr. Gary Mikesell (Argument 1)

During the period under review, Dr. Mikesell noted Plaintiff’s complaint that she was

dizzy, nauseous, and “shakey” (June, 2011); supplied a work excuse and noted that Plaintiff’s

depression should be reevaluated (August, 2011); noted that Plaintiff injured her back while

doing yard work (September, 2011); and noted reports of seizures, migraines, and chronic

pain (October, 2011) (Tr. 504-513). 

However, because Dr. Mikesell did not issue an opinion as to Plaintiff’s ability to

work or her functional limitations, the treating source rule does not apply. Dr. Mikesell’s

treating records showing that he acknowledged her reports of pain and limitation do not

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qualify as an “opinion.” “[R]ecords containing a physician's observations do not qualify as

‘medical opinions’ under the Social Security regulations and ‘without more, are not the type

of information from a treating physician which will be provided great weight....’” Miller v

CSS, 2015 WL 350570 *14-15 (S.D. Ohio January 26, 2015)(citing Bass v. McMahon, 499

F.3d 506, 510 (6th Cir.2007)). Plaintiff’s argument that the ALJ violated the “treating

source rule” in declining to weigh Dr. Mikesell’s “opinion” is rebutted by the absence of an

opinion. Further, while Plaintiff also faults the ALJ for failing to refer to Dr. Mikesell by 5

name, the administrative determination references his treating records by exhibit number

twice (Tr. 28-29). 

3. Dr. Clague’s Opinion (Argument 2)

For contrasting reasons, the ALJ’s rejection of Dr. Clague’s March, 2013 opinion (Tr.

1327-1331) likewise does not provide grounds for remand. Plaintiff contends that the

opinion was rejected on the sole basis that Dr. Clague was hired by Plaintiff’s attorney to

perform an evaluation. Plaintiff’s Brief at 12-14. However, the ALJ provided additional

reasons for according only “minimal weight” to the opinion, noting that (1) Dr. Clague relied

heavily on Plaintiff’s subjective (but unsubstantiated) complaints, (2) it was unclear whether

the “disability” finding referred to Plaintiff’s inability to perform past relevant work or all

substantial gainful activity as required for a disability finding under the Social Security Act,

Plaintiff’s argument is particularly specious, given that Dr. Mikesell’s records 5

contain her report that she was “prepared to go back to work if” if she were not awarded

disability benefits (Tr. 505). 

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and, (3) Dr. Clague’s disability finding was inconsistent with Plaintiff’s acknowledged

ability to perform light housework, prepare meals, shop, take care of her parents, caring for

herself, and handle her own finances (Tr. 30, 32). Moreover, while Plaintiff faults the ALJ

for noting Dr. Clague’s limited treating history, in fact, the ALJ properly took note of the

brief treating relationship and that Dr. Clague became a treating source only shortly before

the April, 2013 hearing. See Wilson, 378 F.3d at 544; § 404.1527(c)(2)(ALJ must consider

length of the treating relationship when according less than controlling weight to a treating

opinion). 

B. Weight Accorded to the Non-Examining Source (Argument 3)

On a related note, Plaintiff argues that the ALJ erred by crediting the February, 2012

non-examining source findings over the findings of Drs. Mikesell and Clague. Plaintiff’s

Brief at 14-15. She points out that the February, 2012 findings do not reflect Plaintiff’s

treatment between that month and the June, 2013 administrative decision. Id. 

In February, 2012, Dr. Chang, a non-examining source, found that Plaintiff was

capable of a range of exertionally light work (Tr. 94). As to the psychological limitations,

Darrell Snyder, Ph.D. found mild limitation in activities of dailyliving and social functioning

and moderate limitation in concentration, persistence, or pace but found that she did not

experience significant limitations in carrying out detailed instructions (Tr. 92-93, 96). 

Under the treating source rule, discussed above, “the opinions of a claimant's treating

physician are generally given more weight than those of non-treating and non-examining

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physicians.” Webb v Commr of Soc Sec, No. 14-12332, 2015 WL 4756589, at *6 (E.D. Mich

August 11, 2015)(Cohn, J.); 20 C.F.R. § 404.1527(c)(2). See Gayheart , supra, 710 F3d at

375 (6 Cir. 2013)(“As a general matter, an opinion from a medical source who has th

examined a claimant is given more weight than that from a . . . non-examining source”). 

However, because the rejection of the Dr. Clague’s treating source opinion was well

supported and explained, the ALJ did not err in adopting the non-examining findings. The

ALJ noted that the the non-examining findings that Plaintiff could perform a limited range

of light work was consistent with her ability to care for aged parents, shop, socialize, read,

dance, handle her finances and get along with others (Tr. 30). While the non-examining

opinions are not entitled the deference accorded a treating physician, they are supported by

other portions of the record and thus, constitute substantial evidence. Atterberry v. HHS, 871

F.2d 567, 570 (6th Cir.1989); 20 C.F.R. § 416.927(e). 

Plaintiff’s argument that the non-examining findings are undermined by the lack of

access to the later treating records is also unavailing. To be sure, in some instances, favoring

older findings over more current ones may constitute reversible error. See Hamblin v. Apfel,

2001 WL 345798, *2 (6th Cir. March 26, 2001)(affirmingALJ's rejection of a treating

physician's “outdated” opinion on basis consultive physician had performed a more recent

appraisal with contradicting findings). The Sixth Circuit's holding favoring the use of

updated medical information is potentially more applicable when the older evidence was

created by a non-treating source. See Sayles v. Barnhart, 2004 WL 3008739, *23 (N.D.Ill.

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December 27, 2004)(adoption of “outdated and inadequate” non-treating findings created

prior to a diagnosis of diabetes grounds for remand). 

Here, however, the more recent clinical evidence tends to support, rather than

undermine the February, 2012 findings. In April, 2012, Plaintiff reported that she was taking

care of her elderly parents (Tr. 796). In June, 2012, she exhibited adequate strength in all

extremities with a full range of motion (Tr. 777). October, 2012 records by Dr. Salman state

that her back pain was under fair control and that anxiety and depression were well controlled

(Tr. 262). Dr. Salman’s records from the same month state that she experienced migraine

headaches only once “every few weeks” (Tr. 262). “[T]he entry of additional medical

documentation into the record, without more, does not automatically invalidate the opinions

of a reviewing state agency medical expert.” Norgren v Commr of Soc Sec, 2015 WL

5026173, *14 (E.D. Mich August 25, 2015)(Patti, M.J.)(citing Helm v. Commissioner of

Social Sec. Admin., 405 Fed.Appx. 997, 1002 (6th Cir. January 4, 2011). Likewise here, the

presence of newer records, by itself, does not undermine the ALJ’s reliance on the February,

2012 findings. 

C. The Credibility Determination (Argument 4)

In her last argument, Plaintiff disputes the finding that her claims were not credible.

Plaintiff’s Brief at 15-16. She contends that the ALJ did not consider the totality of evidence

in rejecting her allegations of physical limitations due to pain. 

The credibility determination, guided bySSR 96–7p, describes a two-step process for

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evaluating symptoms. “First, the adjudicator must consider whether there is an underlying

medically determinable physical or mental impairment ... that can be shown by medically

acceptable clinical and laboratory diagnostic techniques.” 1996 WL 374186, *2 (July 2,

1996). The second prong of SSR 96–7p directs that whenever a claimant's allegations

regarding “the intensity, persistence, or functionally limiting effects of pain or other

symptoms are not substantiated by objective medical evidence,” the testimony must be

evaluated “based on a consideration of the entire case record.” Id. at *3. In addition to an

analysis of the medical evidence, the ALJ must consider “(i) [] daily activities; (ii) the

location, duration, frequency, and intensity of []pain or other symptoms; (iii) precipitating

and aggravating factors; (iv) the type, dosage, effectiveness, and side effects of any

medication . . . taken to alleviate [] pain or other symptoms; (v) treatment, other than

medication . . . received for relief of [] pain or other symptoms; (vi) any measures . . . used

to relieve[] pain or other symptoms ... and (vii) other factors concerning [] functional

limitations and restrictions due to pain or other symptoms.” C.F.R. 404.1529(c)(3). 

The ALJ’s credibility determination does not contain either procedural or substantive

error. The determination begins with a page-long summation of Plaintiff’s allegations of

limitation (Tr. 27-28). In support of RFC for light work, the ALJ went on to note that despite

claims of disabling back pain, “the majority of . . . clinicians’ findings were normal,” with

a full range of motion and normal strength in all extremities (Tr. 28). The ALJ also noted

that Plaintiff had experienced migraine headaches long before the alleged onset of disability

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and that symptoms were “generally relieved with medication” (Tr. 29). The ALJ

acknowledged some degree of psychological limitation by limiting Plaintiff to work that did

“not require frequent significant changes or adaptations orinvolvemeeting production quotas

or goals . . . .” (Tr. 29). 

The ALJ also noted that Plaintiff’s wide range of daily activities undermined the

disability claim. He noted that Plaintiff was able to take of her elderly parents,and pets; got

along with familymembers, friends, and neighbors; and was able to handle her own finances

(Tr. 30). Plaintiff faults the ALJ’s observation that she was able to take multiple vacations

since the alleged onset of disability. However, the ALJ acknowledged that taking a vacation,

by itself, did not establish non-disability, noting that “a vacation and a disability are not

necessarily mutually exclusive” (Tr. 31). Rather, she found that the ability to take vacations

(considered in tandem with the medical records and daily activities) pointed to a nondisability finding (Tr. 30-31). 

Plaintiff also criticizes the ALJ for failing to consider that her ability to access

treatment was hampered by financial limitations. She is correct that an ALJ “must not draw

any inferences about an individual's symptoms and their functional effects from a failure to

seek or pursue regular medical treatment without first considering any explanations that the

individual may provide, or other information in the case record, that may explain infrequent

or irregular medical visits or failure to seek medical treatment.” SSR 96-7p at *7; SSR

82–59, 1982 WL 31384, *4 (1982)(The ALJ must consider an individual's claim he is unable

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to afford the prescribed treatment). However, the ALJ permissibly found that despite

Plaintiff’s allegations of financial hardship, she did not seek “no-cost treatment alternatives” 

(Tr. 30). The ALJ remarked that during the period under consideration, Plaintiff had “been

prescribed” and had “taken appropriate medications,” finding that her adherence to the

prescribed regime supported rather than undermined the claim (Tr. 30). However, the ALJ

reasonably concluded that because the prescribed medications had “been relatively effective

in controlling [her] symptoms,” a disability finding was not warranted (Tr. 31). 

My own review of the medical records supports the ALJ’s findings. For example,

while Plaintiff alleged weeklymigraines (Tr. 50), she told Dr. Mikesell in October, 2012 that

she experienced migraine headaches every few weeks (Tr. 262). Likewise, while Plaintiff

testified that she did not perform outdoor chores (Tr. 59), September, 2011 records state that

she injured her back while performing yard work (Tr. 507). Other records, showing possible

malingering and drug seeking behavior also undermine the allegations of disability (Tr. 613,

867). Because the credibility determination is well explained and supported by substantial

evidence it should not be disturbed. “[A]n ALJ's credibility determinations about the

claimant are to be given great weight, ‘particularly since the ALJ is charged with observing

the claimant's demeanor and credibility.’ ” Cruse v. Commissioner of Social Sec., 502 F.3d

532, 542 (6th Cir.2007) (citing Walters v. Commissioner of Social Sec., 127 F.3d 525, 531

(6th Cir.1997)). 

In closing, I note that the transcript supports the finding that Plaintiff experienced

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some degree of limitation and my decision to uphold the ALJ’s findings should not be read

to trivialize her documented limitations. Nonetheless, the ALJ’s determination that Plaintiff

was capable of returning to her former work or a significant range of other work is well

within the “zone of choice” accorded to the fact-finder at the administrative hearing level and

should not be disturbed by this Court. Mullen v. Bowen, supra. 

CONCLUSION

For the reasons stated above, I recommend Defendant’s motion for summary

judgment be GRANTED and Plaintiff’s motion DENIED. 

Any objections to this Report and Recommendation must be filed within 14 days of

service of a copy hereof as provided for in 28 U.S.C. §636(b)(1) and E.D. Mich. LR

72.1(d)(2). 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.

Secretary of HHS, 932 F.2d 505 (6 Cir. 1991); United States v. Walters, 638 F.2d 947 (6 th th

Cir. 1981). Filing of objections which raise some issues but fail to raise others with

specificity will not preserve all the objections a party might have to this Report and

Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6 Cir. 1991); Smith v. th

Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6 Cir. 1987). Pursuant to E.D. th

Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge.

Within 14 days of service of any objecting party’s timely filed objections, the

opposing party may file a response. The response shall be not more than 20 pages in length

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unless by motion and order such page limit is extended by the court. The response shall

address specifically, and in the same order raised, each issue contained within

the objections. 

s/R. Steven Whalen 

R. STEVEN WHALEN

UNITED STATES MAGISTRATE JUDGE

Dated: December 3, 2015

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was sent to parties of record

on December 3, 2015, electronically and/or by U.S. mail.

s/Carolyn M. Ciesla 

Case Manager 

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