UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

LORI ANN MORIN,

Plaintiff, CIVIL ACTION NO. 15-cv-11985

v. DISTRICT JUDGE SEAN F. COX

COMMISSIONER OF MAGISTRATE JUDGE MONA K. MAJZOUB

SOCIAL SECURITY,

Defendant.

_____________________________/

REPORT AND RECOMMENDATION

Plaintiff Lori Ann Morin seeks judicial review of Defendant Commissioner of Social 

Security’s determination that she is not entitled to Title II social security disability benefits under 

42 U.S.C. § 405(g). (Docket no. 1.) Before the Court are Plaintiff’s Motion for Summary 

Judgment (docket no. 15) and Defendant’s Motion for Summary Judgment (docket no. 16). The 

matter was originally assigned to District Judge David M. Lawson and Magistrate Judge David 

R. Grand, but was subsequently reassigned to District Judge Sean F. Cox and the undersigned 

magistrate judge. (Docket no. 3, 18.) On February 23, 2016, Judge Cox referred the case to the 

undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). (Docket 

no. 19.) The Court has reviewed the pleadings, dispenses with a hearing pursuant to Eastern 

District of Michigan Local Rule 7.1(f)(2), and issues this Report and Recommendation. 

I. RECOMMENDATION

For the reasons that follow, it is recommended that the Court should GRANT Plaintiff’s 

Motion for Summary Judgment (docket no. 15) and DENY Defendant’s Motion for Summary 

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Judgment (docket no. 16), and REVERSE and REMAND the decision of the Commissioner for 

further proceedings in accordance with this Report and Recommendation.

II. PROCEDURAL HISTORY

On June 28, 2012, plaintiff filed a Title II application for a period of disability and 

disability insurance benefits, alleging a disability beginning December 1, 2009.1 (Tr. 151-159.) 

The Social Security Administration initially denied plaintiff’s claim on September 17, 2012, and 

plaintiff requested a de novo hearing. (Tr. 95-111.) On September 16, 2013, plaintiff appeared 

with counsel and testified at a hearing before Administrative Law Judge (ALJ) Jerome B. Blum. 

(Tr. 30-52.) In a November 26, 2013 decision, the ALJ found that plaintiff was not entitled to 

benefits because she was capable of performing her past relevant work. (Tr. 15-29.) The 

Appeals Council declined to review the ALJ’s decision (Tr. 1-4), and plaintiff commenced this

action for judicial review. (Docket no. 1.)

III. HEARING TESTIMONY AND MEDICAL EVIDENCE

Defendant (docket no. 16 at 2-5) and the ALJ (Tr. 21-25) each set out a detailed, factual 

recitation with regard to plaintiff’s medical record and the hearing testimony. Having conducted 

an independent review of plaintiff’s medical record and the hearing transcript, the undersigned 

finds that there are no material inconsistencies among these recitations of the record. Therefore, 

the undersigned will incorporate the factual recitations by reference. Additionally, the 

undersigned will include comments and citations to the record as necessary throughout this 

Report and Recommendation.

IV. ADMINISTRATIVE LAW JUDGE’S DETERMINATION

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 As discussed more thoroughly herein (supra at Section 5C), plaintiff filed previous applications for Title II and 

Title XVI benefits, on September 15, 2006 and March 20, 2007, respectively, which were both denied.

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The ALJ found that plaintiff had not engaged in substantial gainful activity during the 

period from her amended alleged onset date of December 12, 2009 through her last date insured 

of December 31, 2011. (Tr. 21.) Next, the ALJ concluded that through her last date insured, 

plaintiff had the following severe impairments: hypertension, hyperthyroidism (20 CFR § 

404.1520(c)). (Id.) Further, through the last date insured, plaintiff did not have an impairment 

or combination of impairments that met or medically equaled the severity of one of the listed 

impairments in 20 CFR, Subpart P, Appendix 1. (Id. at 22.) The ALJ then found that plaintiff 

had the residual functional capacity (“RFC”) to perform unskilled light work as defined in 20 

CFR § 404.1567(b). (Id.) The ALJ then determined that plaintiff was capable of performing her 

past relevant work as this work did not require the performance of work-related activities 

precluded by her RFC. (Id. at 25.) The vocational expert classified plaintiff’s past relevant work 

as being stock retail, which was unskilled in nature and performed at the light exertional level. 

(Id.) The ALJ also determined that plaintiff was capable of performing other jobs in the national 

economy. (Id at 25-26.) Subsequently, in reliance on the VE’s testimony, the ALJ determined 

that based on claimant’s age, education, work experience, and RFC, plaintiff was capable of 

making a successful adjustment to other work that existed in significant numbers in the national 

economy. (Tr. 26.) Therefore, the ALJ found that plaintiff was not disabled under the Social 

Security Act at any time from December 12, 2011, the amended alleged onset date, through 

December 31, 2011, the last date insured. (Id.)

V. LAW AND ANALYSIS

A. Standard of Review

Pursuant to 42 U.S.C. § 405(g), this Court has jurisdiction to review the Commissioner’s 

final decisions. Judicial review of the Commissioner’s decisions is limited to determining 

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whether his findings are supported by substantial evidence and whether he employed the proper 

legal standards. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Walters v. Comm’r, 127 

F.3d 525, 528 (6th Cir. 1997). Substantial evidence is more than a scintilla but less than a 

preponderance; it is “‘such relevant evidence as a reasonable mind might accept as adequate to 

support a conclusion.’” Richardson, 402 U.S. at 401 (quoting Consolidated Edison Co. v. NLRB, 

305 U.S. 197, 229 (1938)); Walters, 127 F.3d at 528. It is not the function of this Court to try 

cases de novo, resolve conflicts in the evidence, or decide questions of credibility. See Brainard 

v. Sec’y of Health and Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v. Heckler, 745 

F.2d 383, 387 (6th Cir. 1984).

In determining the existence of substantial evidence, the court must examine the 

administrative record as a whole. See Kirk v. Sec’y of Health and Human Servs., 667 F.2d 524, 

536 (6th Cir. 1981), cert. denied, 461 U.S. 957 (1983). If the Commissioner’s decision is 

supported by substantial evidence, it must be affirmed, even if the reviewing court would decide 

the matter differently, Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983), and even if 

substantial evidence also supports the opposite conclusion. See Her v. Comm’r, 203 F.3d 388, 

389-90 (6th Cir. 1999); Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc) (noting 

that the substantial evidence standard “presupposes that there is a zone of choice within which 

the decisionmakers can go either way, without interference by the courts”). “But ‘[a]n ALJ’s 

failure to follow agency rules and regulations denotes a lack of substantial evidence, even where 

the conclusion of the ALJ may be justified based upon the record.’” Gayheart v. Comm’r of Soc. 

Sec., 710 F.3d 365, 374 (6th Cir. 2013) (quoting Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 

2011)).

B. Framework for Social Security Determinations

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Plaintiff’s Social Security disability determination was made in accordance with a fivestep sequential analysis. In the first four steps, plaintiff was required to show that:

(1) Plaintiff was not presently engaged in substantial gainful employment; and

(2) Plaintiff suffered from a severe impairment; and

(3) The impairment met or was medically equal to a “listed impairment;” or

(4) Plaintiff did not have the residual functional capacity (RFC) to perform relevant 

past work.

See 20 C.F.R. § 404.1520(a)-(f). If plaintiff’s impairments prevented plaintiff from doing past 

work, the Commissioner, at step five, would consider plaintiff’s RFC, age, education, and past 

work experience to determine if plaintiff could perform other work. If not, plaintiff would be 

deemed disabled. See id. at § 404.1520(g). The Commissioner has the burden of proof only on 

“the fifth step, proving that there is work available in the economy that the claimant can 

perform.” Her, 203 F.3d at 391. To meet this burden, the Commissioner must make a finding 

“supported by substantial evidence that [the claimant] has the vocational qualifications to 

perform specific jobs.” Varley v. Sec’y of Health and Human Servs., 820 F.2d 777, 779 (6th Cir. 

1987). This “substantial evidence” may be in the form of vocational expert testimony in 

response to a hypothetical question, “but only ‘if the question accurately portrays [the 

claimant’s] individual physical and mental impairments.’” Id. (citations omitted). 

C. Analysis

The Social Security Act authorizes “two types of remand: (1) a post judgment remand in 

conjunction with a decision affirming, modifying, or reversing a decision of the [Commissioner] 

(a sentence-four remand); and (2) a pre-judgment remand for consideration of new and material 

evidence that for good cause was not previously presented to the [Commissioner] (a sentence-six 

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remand).” Faucher v. Sec’y of Health and Human Servs., 17 F.3d 171, 174 (6th Cir. 1994) 

(citing 42 U.S.C. § 405(g)). Under a sentence-four remand, the Court has the authority to “enter 

upon the pleadings and transcript of the record, a judgment affirming, denying, or reversing the 

decision of the [Commissioner], with or without remanding the cause for a hearing. 42 U.S.C. § 

405(g). Where there is insufficient support for the ALJ’s findings, “the appropriate remedy is 

reversal and a sentence-four remand for further consideration.” Morgan v. Astrue, 10-207, 2011 

WL 2292305, at *8 (E.D. Ky. June 8, 2011) (citing Faucher, 17 F.3d at 174). 

Plaintiff asserts that this matter should be reversed for an award of benefits or, 

alternatively, for further proceedings under sentence four because: (1) the ALJ here (ALJ Blum)

failed to properly adopt the prior ALJ’s (ALJ McKay’s) findings regarding plaintiff’s learning 

disability; (2) the ALJ failed to provide a complete RFC; and (3) the ALJ failed to properly 

weigh the medical restrictions provided by the treating physician. (Docket no. 15 at 6-12.) 

In Drummond, the Sixth Circuit held that social security claimants and the Commissioner 

are barred by principles of res judicata from litigating issues that have previously been 

determined. Drummond v. Comm’r of Soc. Sec., 126 F.3d 837 (6th Cir. 1997). The 

Commissioner is therefore bound by the principles of res judicata unless there is new and 

material evidence of changed circumstances. Id. at 842; SSAR 98-4(6). The Commissioner may 

not offer proof of just any change in circumstance; rather, for the Commissioner to successfully 

argue that the effects of res judicata do not apply, there must be proof showing that the 

claimant’s condition has improved. McClain v. Comm’r, No. 12-11172, 2013 WL 5182089, at 

*9 (E.D. Mich. Sept. 13, 2013). Thus, without evidence of improvement, a prior disability 

determination is binding on an ALJ in a subsequent proceeding. Drummond, 126 F.3d at 842-43 

(“It is apparent that substantial evidence was not introduced that [the claimant’s] condition 

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improved significantly between the two hearing dates. As a result, we conclude that the second 

ALJ was bound by the determination that [the claimant] retained the RFC for sedentary work.”). 

Conversely, where a claimant who has previously been adjudicated “not disabled” seeks to avoid 

application of res judicata, he must provide proof that his condition has worsened since the date 

of the prior decision to such a degree that he is no longer capable of engaging in substantial 

gainful activity. See Vesey v. Comm’r, No. 11-10967, 2012 WL 4475657, at *10 (E.D. Mich. 

Aug. 6, 2012).

Here, plaintiff filed a previous Title II application on September 15, 2006 and a Title XVI 

application on March 20, 2007. In both applications, plaintiff had alleged disability beginning 

January 19, 2006. Both applications were initially denied, and resulted in a hearing held on June 

17, 2009. On November 3, 2009, administrative law judge Patricia S. McKay issued a decision 

denying benefits to the plaintiff and the Appeals Council later denied plaintiff’s request for 

review. (Tr. 53-66, 67-71.) The plaintiff then commenced an action for judicial review with this 

court and plaintiff’s complaint was subsequently dismissed. (Tr. 72-94.) Since a prior decision

was issued, the ALJ rightly acknowledged the necessity of examining the issue of res judicata. 

In this regard, the ALJ concluded that the time period from January 19, 2006 through November 

3, 2009, had already been adjudicated in the previous decision, and he was bound by those prior 

findings. (Tr. 19.) Furthermore, the ALJ concluded that “there has been no new and material 

evidence relating to the previous findings, nor has there been any change in the law, regulations, 

or rulings affecting the finding or the method for arriving at the finding.” (Id.) Therefore, the 

ALJ determined that the principles of res judicata dictated that he only evaluate the case from 

November 4, 2009 forward. (Id.)

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The Commissioner concedes that ALJ Blum erred when he failed to adopt the findings in 

ALJ’s McKay’s prior decision absent new and material evidence. AR 98-4(6); 1998 WL 

283902, at *3. Specifically, ALJ McKay concluded that plaintiff had four severe impairments: 

obesity, learning disabled, hypothyroidism, and hypertension. (Tr. 59.) ALJ McKay concluded 

that plaintiff had the RFC to perform

light work as defined in 20 CFR 404.1567(b) and 416.967(b) with 

occasional climbing of stairs and/or ramps, crouching, crawling, 

kneeling, or stooping/bending; no climbing of ropes, ladders or 

scaffolds; avoiding work where the rate of pay is determined by 

the quantity produced (i.e. production line work); with no more 

than occasional contact with the general public, coworkers or 

supervisors; and which is simple in nature and does not require 

sustained concentration and focus.

(Tr. 62.) ALJ McKay also concluded that plaintiff was unable to perform her past relevant work 

as a file clerk and in retail sales. (Tr. 64.) In contrast, ALJ Blum concluded that plaintiff only 

had the following severe impairments: hypertension, hyperthyroidism. (Tr. 21.) ALJ Blum also 

concluded that plaintiff had the RFC to perform unskilled light work. (Tr. 22). Light work as 

defined in 20 CFR § 404.1567(b) 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. If someone can do light work, we determine 

that he or she can also do sedentary work, unless there are 

additional limiting factors such as loss of fine dexterity or inability 

to sit for long periods of time.

The Commissioner argues that any error that the ALJ committed is harmless because 

plaintiff is not capable of showing any deterioration in her condition that would change ALJ 

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Blum’s finding at Step Five of the sequential analysis that other jobs exist in the national 

economy that plaintiff is still capable of performing. This court disagrees. For one, ALJ McKay 

specifically concluded that plaintiff was not capable of performing her past relevant work in 

stock retail, therefore, ALJ Blum’s conclusion that plaintiff could perform this past relevant 

work runs contrary to the holding in Drummond. Indeed, the Commissioner concedes that ALJ 

Blum failed to adopt ALJ McKay’s conclusion regarding plaintiff’s past relevant work and 

instead focuses on ALJ Blum’s alternative finding that plaintiff could perform other work 

existing in significant numbers in the national economy. On this point, ALJ McKay concluded 

that based on vocational expert testimony, plaintiff remained able to do work existing in 

significant numbers in the national economy (Tr. 65-66) and, according to Commissioner, this 

court has already found this conclusion supported by substantial evidence. See Morin v. Comm’r 

of Soc. Sec., 10-13040, 2012 WL 1004790, at *7-8 (E.D. Mich. Jan. 26, 2012), aff’d, 2012 WL 

1004787 (E.D. Mich. Mar. 26, 2012). As discussed above, ALJ Blum failed to adopt ALJ

McKay’s factual findings despite no new and material evidence. The Commissioner argues that

ALJ Blum’s alternate finding that plaintiff could perform other work proves that any error is 

harmless. However, it is well-settled in this court that “[i]n order for a vocational expert’s 

testimony in response to a hypothetical question to serve as substantial evidence in support of the 

conclusion that a claimant can perform other work, the question must accurately portray a 

claimant’s physical and mental impairments.” Ealy v. Comm’r, 594 F.3d 504, 516 (6th Cir. 

2010). As the Commissioner has conceded that ALJ Blum did not adopt the factual findings of 

ALJ McKay, including two Step Two findings regarding severe impairments that were not

adopted by the ALJ or, as a result, incorporated into the hypothetical questions to the vocational 

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expert, a remand is necessary to allow an ALJ to re-evaluate plaintiff’s RFC and take additional 

vocational testimony, if necessary.

Because the undersigned has concluded that a remand is appropriate, it is not necessary to 

review plaintiff’s additional arguments at this time.

VI. CONCLUSION

For the reasons stated herein, the Court should GRANT Plaintiff’s Motion for Summary 

Judgment (docket no. 15) and DENY Defendant’s Motion for Summary Judgment (docket no. 

16), and REVERSE and REMAND the decision of the Commissioner for further proceedings in 

accordance with this Report and Recommendation.

REVIEW OF REPORT AND RECOMMENDATION

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

Recommendation, but must act within fourteen (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 (1985); Howard 

v. Sec’y of Health and Human Servs., 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 a party might have to this Report and 

Recommendation. Willis v. Sec’y of Health and Human Servs., 931 F.2d 390, 401 (6th Cir. 

1991); Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). 

Pursuant to Rule 72.1(d)(2) of the Local Rules of the United States District Court for the Eastern 

District of Michigan, a copy of any objection must be served upon this Magistrate Judge.

Within fourteen (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 five (5) 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.

Dated: July 8, 2016 s/ Mona K. Majzoub 

MONA K. MAJZOUB

UNITED STATES MAGISTRATE JUDGE

PROOF OF SERVICE

I hereby certify that a copy of this Report and Recommendation was served upon counsel 

of record on this date.

Dated: July 8, 2016 s/ Lisa C. Bartlett 

Acting in the absence of Lisa Bartlett

Case Manager

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