UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DONNA FOSTER, 

Case. No. 15-11368

Plaintiff, District Judge Matthew F. Leitman

Magistrate Judge R. Steven Whalen

v.

COMMISSIONER OF

SOCIAL SECURITY,

Defendant.

 /

REPORT AND RECOMMENDATION

Plaintiff Donna Foster (“Plaintiff”) brings this action under 42 U.S.C. §405(g)

challenging a final decision of Defendant Commissioner (“Defendant”) denying her

applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income

(“SSI”) under the Social Security Act. The parties have filed cross motions for summary

judgment 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 [Dock. #18] be GRANTED and that Plaintiff’s Motion for Summary

Judgment [Dock. #14] be DENIED. 

I. PROCEDURAL HISTORY

Plaintiff applied for DIB and SSI on July21, 2009, alleging disabilityas of November

15, 2008 (Tr. 123, 130). Upon initial denial of the claim, Plaintiff requested an

-1-

2:15-cv-11368-MFL-RSW Doc # 23 Filed 07/15/16 Pg 1 of 21 Pg ID 1352
administrative hearing, held on June 7, 2011 in Flint, Michigan before Administrative Law

Judge (“ALJ”) Andrew G. Sloss (Tr. 22). Plaintiff, unrepresented, testified (Tr. 26-30), as

did Vocational Expert (“VE”) Stephanie Leech (Tr. 30-33). On June 20, 2011, ALJ Sloss

found that Plaintiff was not disabled (Tr. 8-17). On December 14, 2011, the Appeals

Council declined to review the administrative decision (Tr. 1-3). On February 10, 2012,

Plaintiff filed suit in this Court. On March 27, 2013, the Honorable Lawrence P. Zatkoff

adopted my recommendation to remand the case under sentence four of 42 U.S.C. § 405(g) 

for further fact-finding on the basis that the medical transcript did not contain all of the

psychological treating records and that the VE’s job findings did not reflect Plaintiff’s full

degree of psychological limitation (Tr. 670-689). Case No. 12-11368, Docket #14-15. 

ALJ Kathleen Eiler held a second hearing on March 11, 2014 (Tr. 605-34). Plaintiff

(represented by attorney John Wildeboer) and VE Kenneth Browde testified (Tr. 609-630,

630-633). On May 2, 2014, ALJ Eiler found Plaintiff not disabled (Tr. 597-598). On

February 26, 2015, the Appeals Council declined to review the administrative decision (Tr.

486-491). Plaintiff filed the present action in this Court on April 14, 2015. 

II. BACKGROUND FACTS

Plaintiff, born September 2, 1962, was 51 at the time of the latest administrative

decision (Tr. 123, 598). She left school in ninth grade (Tr. 185) and worked previously as

a general laborer, fast food worker, and as a presser for a dry cleaner (Tr. 182). Her

application for benefits alleges disability as a result of depression, stress, an ovarian cyst,

-2-

2:15-cv-11368-MFL-RSW Doc # 23 Filed 07/15/16 Pg 2 of 21 Pg ID 1353
migraines, and anemia (Tr. 181). 

A. Plaintiff’s Testimony (March 11, 2014 Hearing) 

Plaintiff offered the following testimony:

She lived in Saginaw, Michigan with her mother (Tr. 609). Her mother had dementia

and was cared for by home health aides (Tr. 609). Plaintiff was unable to care for her mother

due to the medication side effect of fatigue (Tr. 611). She took Seroquel for sleep

disturbances (Tr. 611). Plaintiff experienced migraine headaches, stomach problems,

depression, and anxiety (Tr. 611). On occasion, she required emergency treatment for

migraines but was usually able to take medication and then “sleep” them off (Tr. 611-613). 

The migraines lasted around three days and sometimes caused nausea (Tr. 612-614).

Plaintiff experienced constipation, accompanied by bloating and abdominal pain (Tr.

614). In 2008 and 2009, she experienced significant hemorrhaging due to uterine fibroids 

and underwent a hysterectomy in February, 2011 (Tr. 615-616). The loss of blood due to

hemorrhaging prior to the hysterectomy weakened her to the point where she would “lay in

bed all day” (Tr. 616). 

Plaintiff’s current health plan allowed her to see a psychological counseler six times

a year, but she had kept only four appointments in the previous year due to transportation

problems (Tr. 617). Her psychological counseler tried to obtain additional appointments (Tr.

618). Despite taking Seroquel and Tramadol, she was still depressed (Tr. 618). Her

depression was characterized by weekly crying jags and agitation (Tr. 619). The agitation

-3-

2:15-cv-11368-MFL-RSW Doc # 23 Filed 07/15/16 Pg 3 of 21 Pg ID 1354
caused sleep disturbances (Tr. 619). She spent most of her time indoors and grocery shopped

only once a month (Tr. 620). She experienced nervousness in public places and spent most

of the day watching television in her room (Tr. 621). She spoke with her daughter by

telephone approximately three times a week (Tr. 622). Since the hysterectomy, Plaintiff had

gained weight and experienced abdominal bloating (Tr. 622). She experienced shortness of

breath climbing the stairs (Tr. 623). 

Plaintiff was able to care for her mother, albeit with difficulty, before the aides began

coming to the house about one year before the hearing (Tr. 623). She sought emergency

treatment for a number of conditions such as stomach and dental problems because she lived

across the street from a hospital (Tr. 624). She previously held a driver’s license but it had

been suspended for unpaid traffic tickets (Tr. 624). She was able to access van transportation

for her other medical appointments (tr. 624). She had not attended church since 2011 (Tr.

625). Plaintiff had not used alcohol in the past year (Tr. 626). She did not receive medical

or psychological care between August, 2006 to May, 2008 because she had recently moved

to Michigan and did not know where to obtain treatment (Tr. 627). 

In response to questioning by her attorney, Plaintiff reported that her sister and/or her

brother’s girlfriend helped Plaintiff’s mother before the aides began visiting the house (Tr.

628). She testified that she drank in the past to cope with the migraine headaches (Tr. 629). 

 

-4-

2:15-cv-11368-MFL-RSW Doc # 23 Filed 07/15/16 Pg 4 of 21 Pg ID 1355
B. The Medical Records1

1. Records Related to Plaintiff’s Treatment

In July, 2005, Plaintiff attempted suicide (Tr. 282, 284, 333). She was assigned a

GAF of 50 and diagnosed with a substance abuse disorder (alcohol) and major depression2

(Tr. 285, 334). In October, 2005, Plaintiff sought mental health treatment (Tr. 239-240). 

She was diagnosed with major depression and continued therapeutic trials of Lexapro and

Seroquel (Tr. 240, 285). Plaintiff denied physical problems, but reported changes in sleep

patterns (Tr. 243). She was assigned a GAF of 55 (Tr. 244). In March, 2006, Plaintiff

3

reported a decrease in psychological symptoms but complained of continued depression and

stress as a result of the impending death of her brother (Tr. 251). In May, 2006, Plaintiff

reported increased difficulty sleeping (Tr. 274). In June, 2008, Plaintiff reported heavy

menses for the past two months (Tr. 870). Treating notes for a tooth ache from the following

month note a normal mood and affect (Tr. 875, 1106). 

In January, 2009, Plaintiff sought emergency treatment for throat pain (Tr. 427). She

Conditions unrelated to the disability claim as well as records predating the 1

alleged onset date of November 15, 2008 by more than one year, while reviewed in full,

are discussed only for background purposes. 

2

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. American

Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (DSM-IVTR ), 34 (4th ed.2000) 

A GAF score of 51-60 indicates moderate symptoms (occasional panic attacks) or 3

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

-5-

2:15-cv-11368-MFL-RSW Doc # 23 Filed 07/15/16 Pg 5 of 21 Pg ID 1356
appeared fully oriented (Tr. 426-428). In May, 2009, Plaintiff received emergency treatment

for chest pain (Tr. 431). The same month, she received emergency treatment for vaginal

bleeding (Tr. 422). Treating notes state that she did not appear anxious or depressed (Tr.

432). She admitted smoking one pack of cigarettes each day and drinking two to three cans

of beer weekly (Tr. 432). Janes Street Academic Community Health Center treating records

from the following month show that Plaintiff continued to experience depression and

insomnia (Tr. 456). She was given samples of Seroquel (Tr. 455). 

In July, 2009, Plaintiff reported continued anxiety, panic attacks, mood swings, and

depression (Tr. 811). Her depression was characterized as “recurrent” and “mild” (Tr. 811,

1153). Psychological intake records state that Plaintiff experienced stress living with her

mother, an alcoholic, and a sister who smoked crack cocaine (Tr. 918). Plaintiff reported

independence in self-care and financial matters (Tr. 919). She reported abdominal bloating

(Tr. 879, 1110). She exhibited normal speech, perceptions, and thought processes (Tr. 921). 

In August, 2009, Plaintiff was informed by Janes Street staff that she would be required to

make an appointment with a psychologist to obtain Lexapro (Tr. 452, 811, 1111). 

Psychological treating records state that Plaintiffreported “isolating in her roomto avoid [her

mother and sister’s intoxication and violence” (Tr. 1163). October, 2009 records state that

the condition of bipolar disorder was stable (Tr. 882, 1113). Plaintiff was encouraged to

make social contacts outside of the home (Tr. 1170). November, 2009 treating records state

that Plaintiff experienced continued depression and anxiety characterized by “panic attacks

-6-

2:15-cv-11368-MFL-RSW Doc # 23 Filed 07/15/16 Pg 6 of 21 Pg ID 1357
sometimes at work . . .” (Tr. 812). She expressed her love of her grandchildren and

expressed the desire to take college courses (Tr. 931). She reported that “anxiety and

depression” kept her from leaving the house (Tr. 1173). Records from later the same month

note a normal affect (Tr. 1175). Plaintiff attributed her psychological problems to her mother

and sister (Tr. 1175). Treating notes from the following month note a history of migraines

(Tr. 887). 

January 10, 2010 records state that Plaintiff was discharged from therapy after

completing the six sessions allowed by her health care plan (Tr. 812). Medical notes from

the following month state that the bipolar disorder was stable (Tr. 1117). October, 2010

treating records state that Plaintiff required blood transfusions for excessive menstrual

bleeding (Tr. 890, 894, 1096-1097). 

In February, 2011, Plaintiff underwent a hysterectomywithout complications(Tr. 472-

478, 907, 1125). In January, 2012, Plaintiff requested a higher dose of Seroquel (Tr. 1028). 

February, 2012 psychological records state that Plaintiff had been crying “uncontrollabl[y]

for one month and experienced stress being a “chore provider” for her mother (Tr. 800, 810,

939). Plaintiff reported independence in meal preparation, shopping, money management,

and non-medical care (Tr. 808, 942, 1191). March, 2012 medical records state that Plaintiff

denied headaches (Tr. 1031). The same month, Plaintiff reported fatigue from having to take

care of her mother, but noted that she was applying for assistance from home health aides for

her mother (Tr. 1206). April, 2012 therapy discharge notes state that Plaintiff “completed

-7-

2:15-cv-11368-MFL-RSW Doc # 23 Filed 07/15/16 Pg 7 of 21 Pg ID 1358
her goals successfully” and did not request further service (Tr. 802, 966). She reported that

she had been able to set boundaries with her mother and that her depression had lessened (Tr.

1212). In June, 2012, Plaintiff sought emergency treatment for a migraine headache with

nausea and light sensitivity (Tr. 970). In October, 2012, Plaintiff sought emergency

treatment for a gastrointestinal condition (Tr. 975). Treating sources noted a normal affect

and orientation (Tr. 975). 

January, 2013 medical records state that Plaintiff experienced the conditions of

Gastroesophageal Reflux Disease (“GERD”), migraines, and a mood disorder (Tr. 1048). 

She exhibited intact judgment with a slightly flat mood and affect (Tr. 1048). The same

month, she sought emergency treatment, reporting migraines for the past three days (Tr.

1136). She exhibited a normal mood and affect (Tr. 1138). Emergency room notes from

April, 2013 state that Plaintiff was “negative” for psychiatric symptoms and denied any

symptomology (Tr. 979, 1055-1056). Emergency records from the following month and

July, 2013 also note a normal mood and affect (Tr. 984, 991). 

Plaintiff resumed therapy in September, 2013 (Tr. 793, 1222). She reported

independence in self-care, meal preparation, shopping, and money management (Tr. 1236). 

A summary of Plaintiff’s treatment fromthe next month states that her primary diagnosis was

bipolar I with a recent episode of mild depression (Tr. 792). The same month, Plaintiff

sought emergency treatment for a headache (Tr. 995). Medical records note a stable mood

(Tr. 1065). Plaintiff reported that she continued to take care of her mother but left the house

-8-

2:15-cv-11368-MFL-RSW Doc # 23 Filed 07/15/16 Pg 8 of 21 Pg ID 1359
to go to church (Tr. 1243). The following month, Plaintiff reported that a toothache was

causing headaches (Tr. 998). She exhibited a normal affect and mood (Tr. 1002). Plaintiff

admitted to smoking a half pack of cigarettes a day (Tr. 1005). At CT of the head taken later

the same month was unremarkable (Tr. 1011). Plaintiff sought emergency treatment for

abdominal bloat in January, 2014 (Tr. 1013). Laboratory and imaging tests were negative

for significant abnormalities (Tr. 1013-1014, 1016, 1145). Medical records note “no

depression, anxiety, or agitation” (Tr. 1075, 1145). 

2. Non-Treating Sources

In April, 2006, Debra C. Price completed a non-examining Psychiatric Review

Technique, finding the presence of an affective disorder and substance abuse disorders (Tr.

255, 258,263). She found that Plaintiff experienced moderate restrictions in daily living,

social functioning, and concentration, persistence, or pace (Tr. 265). Dr. Price also

completed a Mental Residual Functional CapacityAssessment, finding moderate limitations

in the ability to understand, remember, and carry out detailed instructions; maintain

concentration for extended periods; interact appropriately with the general public; and set

realistic goals (Tr. 270). Dr. Price found Plaintiff’s claims credible but noted that “due to

social avoidance, she would be best suited for a work setting with limited public contact” (Tr.

271). 

In June, 2006, consultive examination notes state that Plaintiff reported insomnia,

anemia, and depression (Tr. 278). She also reported one suicide attempt in the previous year

-9-

2:15-cv-11368-MFL-RSW Doc # 23 Filed 07/15/16 Pg 9 of 21 Pg ID 1360
(Tr. 278). A physical exam was unremarkable, but Plaintiff exhibited “some mannerisms

consistent with anxiety” (Tr. 280). A Psychiatric Review Technique and Mental Residual

Functional Capacity, performed in August, 2006, found identical limitations to those found

by Dr. Price two months earlier (Tr. 265, 270-271, 302, 306-307). 

In October, 2009, psychologist Bruce Fowler, Psy.D. conducted an examination on

behalf of the SSA (Tr. 465-471). Plaintiff reported that one brother had died from a drug

overdose and that her mother and sister were currently “doing drugs” (Tr. 465). She reported 

that she worked at Burger King “three or four months” before the hearing, but that the work

was limited to “four hours a day, once a month” (Tr. 465). Plaintiff stated that she stopped

working after experiencing an anxiety attack at work (Tr. 465). She reported taking Seroquel

for sleep, Lexapro for anxiety and depression, and Tylenol P.M. for headaches (Tr. 466). She

dropped out of school in the ninth grade after her mother left town (Tr. 466). Plaintiff

reported that she had no friends and “very difficult relationships” with her mother and twin

sister with whom she currently lived (Tr. 466). Dr. Fowler observed that it was “moderately

difficult to establish rapport” with Plaintiff (Tr. 467). Plaintiff appeared mildly anxious with

a normal affect (Tr. 467). She denied psychiatric treatment directly following her July, 2005

suicide attempt (Tr. 467). She reported that she had been experiencing a migraine headache

for the past three days (Tr. 468-469). Dr. Fowler assigned Plaintiff a GAF of 45 with a

“guarded to fair” prognosis (Tr. 469). He recommended that Plaintiff “remain in

psychotherapy and continue to receive psychotropic medication” (Tr. 469). He found that

-10-

2:15-cv-11368-MFL-RSW Doc # 23 Filed 07/15/16 Pg 10 of 21 Pg ID 1361
Plaintiff’s anxiety and depression “clearly interfere[d] with her ability to perform any job on

a consistent and reliable basis (Tr. 469). He determined that Plaintiff could manage her

benefits “with assistance” (Tr. 469). 

In October, 2013, Mark Zaroff, Ph.D. performed a consultative psychological

examination on behalf of the SSA, noting Plaintiff’s report of depression, characterized by

lack of motivation, crying jags, and sleep disturbances (Tr. 826). Plaintiff admitted to former

alcohol abuse (Tr. 827). Dr. Zaroff noted that Plaintiff was fully oriented with good

immediate and past memory but poor recent memory (Tr. 829). He found that Plaintiff had

a “poor” prognosis due to “poor attention and concentration” that would impact her work

abilities in a “typical work setting” (Tr. 830). He assigned her a GAF of 48 (Tr. 830). 

3. Record Created After the May 2, 2014 Administrative Decision4

May 12, 2014 emergency room records note Plaintiff’s report of intermittent suicidal

ideation but no plans to harm herself (Tr. 558-559). She reported that taking care of her

mother created stress (Tr. 558). A May 21, 2014 psychological evaluation states that

4

The Appeals Council declined to add these records to the medical exhibits because

they were created after administrative decision and thus presumptively irrelevant to

Plaintiff’s condition as of May 2, 2014 (Tr. 486-487). (Tr. 2). Sizemore v. Sec'y of Health

& Human Servs., 825 F.2d 709, 712 (6th Cir.1988)(where a claimant's condition has

worsened since the administrative decision, the proper remedy is to initiate a new claim for

benefits). 

The Court concludes that the newer records do not form a basis for remand of the

present case. 42 U.S.C. 405(g). While the earliest post-decision records refer to Plaintiff’s

condition as early as two weeks after the decision (Tr. 494), they do not provide additional

insight into her condition on or before May 2, 2014. 

-11-

2:15-cv-11368-MFL-RSW Doc # 23 Filed 07/15/16 Pg 11 of 21 Pg ID 1362
Plaintiff experienced ongoing depression but denied suicidal ideation (Tr. 553). She did not

exhibit psychotic symptoms (Tr. 553). May 30, 2014 psychological intake records state that 

Plaintiffreported that she was “constantlyfatigued, lethargic, listless, bored and despondent”

and experienced concentrational problems (Tr. 494, 526). The intake records note

appropriate dress and adequate grooming (Tr. 497). Plaintiff exhibited normal speech, an

organized thought process, full orientation, intact memory, and good concentration (Tr. 498-

499). The following month, Plaintiff reported continued anxiety, but denied hallucinations

(Tr. 502, 539). She denied medication side effects (Tr. 502). July, 2014 treating records note

better moods and “pretty good” sleep (Tr. 508). She denied suicidal thoughts (Tr. 508). 

C. Vocational Testimony (March 11, 2014 Hearing)

VE Browde classified Plaintiff’s past relevant work as fast food worker as

exertionally light and unskilled; and industrial cleaner, light/unskilled (Tr. 630-631). The 5

ALJ then described a hypothetical individual of Plaintiff’s age, education, and work

experience with the following limitations: 

5

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

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. Very Heavy work requires

“lifting objects weighing more than 100 pounds at a time with frequent lifting or carrying of

objects weighing 50 pounds or more. § 404.1567(e). 

-12-

2:15-cv-11368-MFL-RSW Doc # 23 Filed 07/15/16 Pg 12 of 21 Pg ID 1363
[A]ssume this person has no exertional limitations, however, she can never

climb ladders, ropes or scaffolds, but is unlimited in other postural positions. 

She must avoid [concentrated] exposure to temperature extremes, and avoid

all exposure to workplace hazards. She can performsimple, routine, repetitive

tasks in a routine work setting, and no production rate pace work. She cannot

be responsible for complex decision-making in the workplace. She can engage

in occasional interaction with supervisors but cannot interact with coworkers

or the general public. Could this person perform any of the claimant’s past

work? (Tr. 631). 

The VE responded that the individual could perform Plaintiff’s past relevant work as

an industrial cleaner but that the limitations would preclude the fast food work (Tr. 631). He

found that the hypothetical limitations would also allow for the exertionally medium,

unskilled work of a hand packager (58,000 positions in the national economy); the

exertionally light, unskilled work of a housekeeping cleaner (163,000); medium, unskilled

work of a hospital cleaner (42,000) (Tr. 632). The VE testified that if the hospital cleaner

position were limited to the third shift, the job numbers would be reduced to 12,000 (Tr. 632-

633). The VE found that if the above-described individual were also limited by the need to

be “off task at least 15 percent of each workday,” all work would be precluded (Tr. 633). In

response to questioning by Plaintiff’s attorney, the VE testified that if the same individual

had at least two unscheduled absences each month due to “abdominal pain, weakness,

migraine headache, and other conditions,” all work would be precluded (Tr. 633). 

 D. The ALJ’s Decision (May 2, 2014)

Citing the medical records, ALJ Eiler found that Plaintiff experienced the severe

impairments of “migraine headaches, anemia, an affective disorder, an anxiety disorder, and

-13-

2:15-cv-11368-MFL-RSW Doc # 23 Filed 07/15/16 Pg 13 of 21 Pg ID 1364
a substance abuse disorder” but that none of the conditions met or medically equaled a listed

impairment found in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr. 576, 578). The ALJ

found that Plaintiff had moderate limitation in activities of daily living, social functioning,

and concentration, persistence, and pace (Tr. 579-581). The ALJ determined that Plaintiff

had the Residual Functional Capacity (“RFC”) for work at all exertional levels with the

following additional limitations:

[S]he can never climb ladders, ropes, or scaffolds, but is unlimited in other

postural positions. She must avoid concentrated exposure to temperature

extremes and avoid all exposure to workplace hazards. She can perform

simple, routine, and repetitive tasks with minimal changes in a routine work

setting and no production rate pace work. She cannot be responsible for

complex decision-making in the workplace. She can engage in occasional

interaction with supervisors, but cannot interact with coworkers or the general

public (Tr. 582). 

Citing the VE’s testimony, the ALJ determined that while Plaintiff was unable to

perform any of her past relevant work, she could work as a hand packager, housekeeping

cleaner, and hospital cleaner (Tr. 596-597).

The ALJ discounted Plaintiff alleged degree of limitation (Tr. 590-592). She noted

that Plaintiff did not seek regular treatment for migraines between December, 2009 and

October, 2011 (Tr. 590). She noted that Plaintiff’s mental status evaluations at the time of

emergency treatment for various conditions were unremarkable (Tr. 590). The ALJ also

noted that SSA field office employees observed no cognitive or communicative difficulties

during telephone interviews (Tr. 595). She noted that Plaintiff was able to work part time

at the time of the 2009 application for benefits, denied problems in self care activities, and

-14-

2:15-cv-11368-MFL-RSW Doc # 23 Filed 07/15/16 Pg 14 of 21 Pg ID 1365
could shop, perform laundry chores, and clean without assistance (Tr. 591). 

The ALJ discounted Dr. Fowler’s October, 2009 “poor” prognosis, noting that the

one-time source did not find intellectual deficits or problems in self-care activities (Tr. 593-

594). The ALJ likewise discounted Dr. Zaroff’s October, 2013 “poor” prognosis, noting Dr.

Zaroff’s finding that Plaintiff’s poor performance “may have been affected by her

noncompliance with medication” (Tr. 594). She also noted that Dr. Zaroff over-relied on

Plaintiff’s subjective account of symptomology and limitation (Tr. 594). 

III. 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 “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

-15-

2:15-cv-11368-MFL-RSW Doc # 23 Filed 07/15/16 Pg 15 of 21 Pg ID 1366
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

 IV. 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

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).

V. ANALYSIS

Plaintiff, proceeding pro se, has submitted a one-page motion for summary judgment. 

Docket #14. She reports that since filing for disability, she has experienced additional

-16-

2:15-cv-11368-MFL-RSW Doc # 23 Filed 07/15/16 Pg 16 of 21 Pg ID 1367
medical problems, noting that she experienced a leg break requiring hardware implantation. 

Id. She alleges that she experiences continued depression, PTSD, and migraines. Id. She

reports financial difficulties due to her lack of income. Id. 

 After careful review of the latest administrative decision and medical transcript, I

find no basis for remand. First, ALJ Eiler’s May 2, 2014 opinion corrected the errors I found 

in the previous administrative opinion, and on which I recommended a remand. See Case

No. 12-11368, Doc.#14-15. In contrast to the previous opinion, ALJ Eiler accounted for

Plaintiff’s moderate concentrational limitation by restricting Plaintiff to “simple, routine,

repetitive tasks in a routine work setting” with a preclusion on “production rate pace work,”

“complex decision-making,” and “interaction with coworkers with coworkers or the general

public” (Tr. 582, 631). ALJ Eiler’s choice of hypothetical modifiers sufficiently account for

Plaintiff’s concentrational limitations (Tr. 580-581). See Smith–Johnson v. Commissioner

of Social Sec., 579 Fed. Appx. 426, 437, 2014 WL 4400999, *10 (6th Cir. September 8,

2014)(moderate concentrational limitations adequately addressed by restricting the claimant

to unskilled, routine, repetitive work). 

In further compliance with the remand order in the previous case, ALJ Eiler 

addressed Plaintiff’s psychological/psychiatric treating records. She cited January, 2012

records showing “normal insight, judgment, and memory, with no signs of depression,

anxiety, or agitation” (Tr. 587). The ALJ noted that during emergency treatment for physical

complaints, Plaintiff exhibited a normal mood and affect (Tr. 586, 589). The ALJ observed

-17-

2:15-cv-11368-MFL-RSW Doc # 23 Filed 07/15/16 Pg 17 of 21 Pg ID 1368
that Plaintiff was able to take care of her personal needs, shop, perform household chores,

and manage her money (Tr. 591). The ALJ also noted that the claims of limitation were

undermined by Plaintiff’s ability to care for her mother on a full time basis before procuring

the help of home health aides (Tr. 592). She also cited psychological treating records

showing that the anxiety and depression arose in large part to family stressors (Tr. 586, 588). 

In particular, the ALJ provided multiple reasons for rejecting Dr. Fowler’s finding of

a “poor” prognosis, noting that the one-time examination was based on Plaintiff’s subjective

complaints rather than the treating records and activities of daily living reflecting a lesser

degree of impairment (Tr. 594). The ALJ also noted that Dr. Fowler’s prognosis was

contradicted by his own finding of “good hygiene, good contact with reality, spontaneous

speech,” “no evidence of hallucinations, delusions, or obsessive thoughts,” and the ability

to perform simple calculations (Tr. 594). As to Plaintiff’s allegations of disabling migraines,

the ALJ noted that Plaintiff did not require emergency treatment for headaches until June,

2012 and that a November, 2013 CT of the head was negative for abnormalities (Tr. 583). 

She cited Plaintiff’s July, 2009 denial of daily headaches (Tr. 583). The ALJ also noted that

Plaintiff did not receive treatment for migraines between December, 2009 and October, 2011

(Tr. 584). She noted that while Plaintiff experienced anemia, the condition improved after

the February, 2011 hysterectomy(Tr. 585-586). The ALJ also observed that Plaintiff’s report

of disabling migraines and anemia was undermined by her ability to take care of her mother

and engage in “eight hours of television, gaming, or other electronic activity” on a daily basis

-18-

2:15-cv-11368-MFL-RSW Doc # 23 Filed 07/15/16 Pg 18 of 21 Pg ID 1369
(Tr. 591). 

Moreover, the ALJ’s conclusions are consistent with my own review of the transcript. 

Emergency treatment records for physical conditions show that Plaintiff’s mood and affect

were consistently unremarkable (Tr. 432, 975, 979, 984, 991, 1002, 1055-1056, 1065,

1075,1138, 1145). Psychological treating records characterize Plaintiff’s condition as “mild”

and that she exhibited normal speech, perceptions, and thought processes (Tr. 811, 921,

1153). The treating records state repeatedly that Plaintiff was independent in self-care,

housework, shopping, and money management (Tr. 808, 919, 942, 1191,1236). The records 

also indicate that Plaintiff’s depression and anxiety were exacerbated by family stressors

(mother’s dementia and alcoholism; sister’s crack cocaine habit; death of brothers)

suggesting that Plaintiff’s ability to hold employment was hampered in large part by the

home situation. Plaintiff herself attributed the mental problems to the stress of living with

her mother and sister (Tr. 800, 810, 918, 939, 1163, 1175, 1206). Her report to a treating

source that she stayed in her room to avoid dealing with her mother and sister’s problems is

not fully consistent with her testimony that she stayed in room because of anxiety and

depression (Tr. 621, 1163). She admitted that her depression lessened when she was able

“to set boundaries” with her mother (Tr. 1212). 

The Court has also made note of Plaintiff’s statement that since applying for benefits,

she broke her leg. Docket #14. However, the treating records from 2005 through October,

2014 do not mention treatment for a broken leg. Assuming that Plaintiff broke her leg,

-19-

2:15-cv-11368-MFL-RSW Doc # 23 Filed 07/15/16 Pg 19 of 21 Pg ID 1370
experienced a new medical condition, or had an exacerbation of her other conditions

sufficient to show disability after the May 2, 2014 administrative determination, the proper

remedy is to file a new application of benefits for the newer period. See Sizemore, supra,

825 F.2d at 712 (where a claimant's condition has worsened afterthe administrative decision,

the proper remedy is to initiate a new claim for benefits). 

 My recommendation to uphold the ALJ’s decision should not be read to trivialize

Plaintiff’s conditions for the relevant period, or to discourage her from reapplying for

benefits ifshe believes her condition has worsened. Nonetheless, because the determination

that the Plaintiff was not disabled is generously within the “zone of choice” accorded to the

fact-finder at the administrative hearing level, it should not be disturbed by this Court. 

Mullen v. Bowen, supra. 

VI. CONCLUSION

 For these reasons, I recommend that Defendant’s Motion for Summary Judgment

[Dock. #18] be GRANTED and that Plaintiff’s Motion for Summary Judgment [Dock.

#14] be 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 th

-20-

2:15-cv-11368-MFL-RSW Doc # 23 Filed 07/15/16 Pg 20 of 21 Pg ID 1371
(6 Cir. 1981). Filing of objections which raise some issues but fail to raise others with th

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 th

E.D. 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 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: July 15, 2016

CERTIFICATE OF SERVICE

I hereby certify on July 15, 2016 that I electronically filed the foregoing paper with

the Clerk of the Court sending notification of such filing to all counsel registered

electronically. I hereby certify that a copy of this paper was mailed to the following nonregistered ECF participants July 15, 2016.

s/Carolyn M. Ciesla 

Case Manager for the 

Honorable R. Steven Whalen

-21-

2:15-cv-11368-MFL-RSW Doc # 23 Filed 07/15/16 Pg 21 of 21 Pg ID 1372