UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

DARLENE LEWIS, 

 

 Plaintiff, Civil Action No. 15-10963 

 Honorable Avern Cohn 

 v. Magistrate Judge Elizabeth A. Stafford 

 

CAROLYN W. COLVIN, 

Acting Commissioner of 

Social Security, 

 

 Defendant. 

___________________________/ 

REPORT AND RECOMMENDATION TO GRANT 

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [ECF No. 20] 

 Plaintiff Darlene Lewis appeals a final decision of Defendant 

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

for disability insurance benefits (“DIB”) under the Social Security Act (the 

“Act”). The parties were provided deadlines for filing motions for summary 

judgment, but Lewis did not file one, while the Commissioner did. [ECF 

Nos. 18, 20]. This matter was referred to this Court for a report and 

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

record, the Court finds that the administrative law judge’s (“ALJ”) decision 

is supported by substantial evidence, and thus RECOMMENDS 

GRANTING the Commissioner’s motion for summary judgment [ECF No. 

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20]. 

I. BACKGROUND 

A. Lewis’s Background and Disability Applications 

Born September 4, 1959, Lewis was 52 years old when she 

submitted her disability application in April 2012. [ECF No. 17-5, Tr. 160]. 

She worked as a manager for a bar from 1989 to 2004. [ECF No. 17-6, Tr. 

181]. Lewis alleged disability from traumatic brain injury, severe 

headaches, left knee pain, back pain, depression, possible chronic 

obstructive pulmonary disease, kidney disease, acute cholecystitis, carpal 

tunnel syndrome, and dry left eye, with an amended onset date of 

December 31, 2009, which was also her date last insured. [Id., Tr. 180; 

ECF No. 17-2, Tr. 22, 39]. 

After her application was denied initially, Lewis requested a hearing, 

which took place on September 9, 2013, and included testimony from 

Lewis and a vocational expert (“VE”). [ECF No. 17-2, Tr. 37-71]. In a 

November 8, 2013, written decision, the ALJ found Lewis to be not 

disabled. [Id., Tr. 47-60]. The Appeals Council denied review, making the 

ALJ’s decision the final decision of the Commissioner, and Lewis timely 

filed for judicial review. [Id., Tr. 1-4; ECF No. 1]. 

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B. The ALJ’s Application of the Disability Framework 

 A “disability” is the “inability to engage in any substantial gainful 

activity by reason of any medically determinable physical or mental 

impairment which can be expected to result in death or which has lasted or 

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

42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). 

 The Commissioner determines whether an applicant is disabled by 

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

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

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

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

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

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

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

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

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

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

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

 

1

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

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

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education and work experiences, and determines whether the claimant 

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

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

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

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

Applying this framework, the ALJ concluded that Lewis was not 

disabled. At the first step, she found that Lewis had not engaged in 

substantial gainful activity since her alleged onset date. [ECF No. 17-2, Tr. 

24]. At the second step, she found that Lewis had the severe impairments 

of “degenerative joint disease, carpal tunnel syndrome, chronic pulmonary 

disease, obesity, and residuals of hernia.” [Id.]. Next, the ALJ found that 

Lewis did not have an impairment or combination of impairments that met 

or medically equaled the severity of a listed impairment. [Id., Tr. 25]. 

Between steps three and four, the ALJ found that Lewis had the RFC 

to perform light work,2 but with “the opportunity to alternate position for up 

to 5 minutes approximately every 30 minutes; no climbing of ladders, 

 

2 “Light work involves lifting no more than 20 pounds at a time with frequent 

lifting or carrying of objects weighing up to 10 pounds....[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, [a claimant] must have the ability to do substantially all of these 

activities.” § 1567(b). 

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ropes, scaffolds, or stairs; occasional stooping; no kneeling, crouching, or 

crawling; frequent handling, fingering, and feeling; no exposure to hazards 

or vibration; no use of foot or leg controls; and no concentrated exposure to 

pulmonary irritants.” [Id., Tr. 25]. 

At step four, the ALJ found that Lewis could not perform past relevant 

work. [Id., Tr. 30]. With the assistance of VE testimony, the ALJ 

determined at step five that based on Lewis’s age, education, work 

experience and RFC, she could perform the positions of assembler or 

inspector, for which significant jobs existed in the economy. [Id., Tr. 31-32]. 

Thus, she found that Lewis was not disabled. 

II. ANALYSIS 

A. 

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

whether the Commissioner’s decision is supported by substantial evidence 

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

of Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014). Substantial evidence is 

“more than a scintilla of evidence but less than a preponderance; it is such 

relevant evidence as a reasonable mind might accept as adequate to 

support a conclusion.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 

(6th Cir. 2007) (internal quotation marks and citation omitted). Only the 

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evidence in the record below may be considered when determining 

whether the ALJ’s decision is supported by substantial evidence. Bass v. 

McMahon, 499 F.3d 506, 512-13 (6th Cir. 2007). 

The significant deference accorded the Commissioner’s decision is 

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

these is the rule that the ALJ must consider all evidence in the record when 

making a determination, including all objective medical evidence, medical 

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

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

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

the record fairly detracts from its weight.” Garner v. Heckler, 745 F.2d 383, 

388 (6th Cir. 1984) (internal quotation marks and citation omitted). 

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

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

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

Sec., 582 F.3d 647, 654 (6th Cir. 2009). An ALJ’s failure to use an 

“adjudicatory tool” that does not change the outcome of the decision is 

harmless. Id. at 655-56. On the other hand, substantial errors like ignoring 

evidence in the record or failing to follow the treating physician rule are not 

harmless. Id.; Gentry, 741 F.3d at 723, 729; Cole v. Astrue, 661 F.3d 931, 

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940 (6th Cir. 2011). 

Lewis was represented when her complaint was filed, but her 

attorney was terminated from this and other Social Security cases due to 

malfeasance before a motion for summary judgment was filed on her 

behalf. [See 13-cv-14544, ECF No. 16-4]. The malfeasance came to light 

after the attorney was “repeatedly criticized by judicial officers in this 

district, and the relief requested [in his briefs] routinely denied, due to their 

‘conclusory assertions’ and lack of any developed argument.” [14-cv10251, ECF No. 13, PgID 574]. Lewis was given an opportunity to file a 

motion for summary judgment [see ECF No. 18], but she did not do so. 

Lewis’s failure to prosecute her case could be considered a basis for 

dismissal, but there is some debate regarding the propriety of dismissing 

pro se social security complaints for want of prosecution. In Wright v. 

Comm’r of Soc. Sec., No. 09-15014, 2010 U.S. Dist. LEXIS 136402, 2010 

WL 5420990, at *3 (E.D. Mich. Dec. 27, 2010), the court held that dismissal 

for failure to file a motion for summary judgment is unwarranted because 

the plaintiff has “no burden to do anything in order to obtain judicial review 

of the administrative decision except file a timely complaint.” Other courts 

have held that dismissal of Social Security complaints for failure to 

prosecute is appropriate. See Salmo v. Comm’r of Soc. Sec., No. 11-

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14926, 2012 U.S. Dist. LEXIS 185107, 2012 WL 6929176, at *2 (E.D. Mich. 

Nov. 27, 2012) (collecting cases). Being mindful of this debate and the fact 

that Lewis did not voluntarily become pro se, the Court conducted an 

independent review of the evidence in the interests of justice. The Court 

finds that the ALJ’s decision is supported by substantial evidence. 

B.

The medical records reveal that Lewis complained of pain in the midback and sacroiliac in January 2006, which was described as 

musculoskeletal. [ECF No. 17-7, Tr. 290, 292]. She suffered a right knee 

fracture in March 2007 after falling in her garage. [Id., Tr. 233-34, 237-39, 

257]. She was diagnosed with carpal tunnel syndrome – severe in her left 

wrist and mild in her right. [Id., Tr. 243-44]. In 2009, Lewis was diagnosed 

with gallbladder disease in 2009 and received a laparoscopic 

cholecystectomy with concurrent umbilical repair. [Id., Tr. 246, 248; ECF No. 

17-8, Tr. 393]. A heavy smoker, Lewis was repeatedly noted in 2009 and 

2010 to have chest congestion and a productive cough. [ECF No. 17-9, Tr. 

311-12; ECF No. 17-8, Tr. 337, 340-43]. And the record demonstrates that 

Lewis was obese, and disregarded medical advice to adopt a low fat diet in 

order to control her gallbladder pain and bloating following her 2009 surgery. 

[ECF No. 17-7, Tr. 248, 265-67; ECF No. 17-8, Tr. 340-43]. 

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Despite her ailments, the record does not demonstrate that Lewis 

required a more restrictive RFC than that found by the ALJ through or after 

December 31, 2009, her last insured date. Her treating physician, Allan 

Ebert, D.O., reported during her April 2009 annual examination that her only 

medications were Retatisis (for dry eyes) and Omeprazole (for acid reflux). 

[ECF No. 17-8, Tr. 354-58]. Her musculoskeletal examination revealed a 

normal gait, station and posture, and her upper and lower extremities were 

within normal limits. [ECF No. 17-8, Tr. 354-58]. Not much had changed at 

Lewis’s April 2010 annual examination. She had severe nasal congestion 

that improved when she cut back on smoking; her musculoskeletal 

examination was still normal; and she added Bayer aspirin as a medication, 

but discontinued taking a medication for her high blood pressure. [Id., Tr. 

340-43]. An x-ray of Lewis’s lower back in 2011 revealed only mild 

degenerative changes with scoliosis. [Id., Tr. 453]. With respect to her 

pulmonary function, Lewis showed only mild restriction as of June 2012. 

[ECF No. 17-7, Tr. 468]. In April 2013, a doctor with Ortho Michigan 

reported that Lewis was well-appearing and in no acute distress, despite 

having mild right knee osteoarthritis. [Id., Tr. 333-34]. 

In June 2012, Myung Ho Hahn, M.D. rendered the only medical 

opinion regarding Lewis’s RFC in the record, finding that she could perform 

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light work with some exceptions. [ECF No. 17-3, Tr. 79-80]. The ALJ gave 

Dr. Hahn’s opinion significant weight, but added restrictions due to Lewis’s 

musculoskeletal and respiratory impairments. [ECF No. 17-2, Tr. 30]. This 

constitutes substantial evidence in support of the ALJ’s RFC. See Curler v. 

Comm'r of Soc. Sec., 561 F. App’x 464, 473 (6th Cir. 2014) (finding 

substantial evidence to support an RFC finding where the ALJ's finding was 

more restrictive than the opinion the plaintiff identified); Warren v. Comm'r of 

Soc. Sec., No. 13–13523, 2014 WL 3708565, at *4 (E.D.Mich. July 28, 2014) 

(Battani, J.) (finding substantial evidence to support an RFC finding where 

the ALJ's finding was more restrictive than the only medical opinion in the 

record). 

For these reasons, the ALJ’s decision is supported by substantial 

evidence. 

III. CONCLUSION 

 For the foregoing reasons, the Court RECOMMENDS that the 

Commissioner’s motion [ECF No. 20] be GRANTED, and the 

Commissioner’s decision be AFFIRMED. 

 s/Elizabeth A. Stafford 

 ELIZABETH A. STAFFORD 

 United States Magistrate Judge 

Dated: February 1, 2017 

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NOTICE TO THE PARTIES REGARDING OBJECTIONS 

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

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

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

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

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

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

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

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

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

HHS, 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers 

Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). A copy of any objection 

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

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

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

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

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

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

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

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

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

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

may rule without awaiting the response. 

CERTIFICATE OF SERVICE

 The undersigned certifies that the foregoing document was served 

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

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

disclosed on the Notice of Electronic Filing on February 1, 2017. 

 s/Marlena Williams 

 MARLENA WILLIAMS 

 Case Manager 

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