UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

SHERRY LYNN HERRON, 

Plaintiff Civil Action No. 15-11825

v. HON. DENISE PAGE HOOD 

 U.S. District Judge

HON. R. STEVEN WHALEN

COMMISSIONER OF SOCIAL U.S. Magistrate Judge

SECURITY,

Defendant.

__________________________________/

REPORT AND RECOMMENDATION

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

challenging a final decision of Defendant Commissioner denying her application for

Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) 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 for Summary Judgment be DENIED.

PROCEDURAL HISTORY

On March 9, 2012, Plaintiff filed applications for SSI and DIB, alleging disability as 

of August 4, 2006 (Tr. 249-251, 252-258). After the initial denial of the claim, Plaintiff filed

a request for an administrative hearing, held on July 23, 2013 in Flint, Michigan before

Administrative Law Judge (“ALJ”) Kevin W. Fallis (Tr. 46). Plaintiff, represented, testified

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(Tr. 56-104), as did Vocational Expert (“VE”) Kimberly Warner (Tr. 104-111). On

November 14, 2013, ALJ Fallis found Plaintiff not disabled, determining that Plaintiff’s

condition had not materially changed since an earlier, May 19, 2009 administrative denial

of benefits (Tr. 22, 37, 138-149)(citing Drummond v. CSS, 126 F.3d 837 (6 Cir. 1997)). On th

March 16, 2015, the Appeals Council denied review (Tr. 1-3). Plaintiff filed for judicial

review of the final decision in this Court on May 20, 2015. 

BACKGROUND FACTS

Plaintiff, born March 17, 1971, was 42 when ALJ Fallis issued his decision (Tr. 37,

249). She completed 12 grade and worked previously as a nurse’s aide (Tr. 280). She th

alleges disability as a result of a mitral valve replacement, fatigue, pain, cognitive problems,

depression, left eye problems, arthritis, headaches, extremity numbness and tingling (Tr.

279). 

A. Plaintiff’s Testimony

Plaintiff’s counsel prefaced his client’s testimony by amending the alleged onset of

disability date to May 20, 2009, one day after the prior administrative determination (Tr.

51). 

Plaintiff then offered the following testimony:

She lived in Flint, Michigan (Tr. 56). She had gained 60 pounds in the last two years

and currently weighed 210 (Tr. 57). She was left-handed (Tr. 57). She did not use the

basement of her house and relied on her son or husband to do laundry (Tr. 58). Her husband

was disabled due to schizophrenia (Tr. 58). She relied on her son, 20, to help her with

household chores (Tr. 58). She had not held a driver’s license since receiving a DUI

conviction in 2006 (Tr. 58). She relied on her mother or sisters for transportation (Tr. 59). 

She took a bus to the hearing, but did not use public transportation regularly (Tr. 59).

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Plaintiff graduated from high school and received training as a medical assistant and

as a cosmetologist (Tr. 59-60). On weekends, she cared for the daughter of a friend with

cerebral palsy for 10 hours, receiving a stipend from the State of Michigan (Tr. 61). She

previously worked full time at a factory (Tr. 63). The factory job involved lifting of no more

than five pounds but required her to be on her feet all day (Tr. 64). She occasionally helped

her mother plant flowers (Tr. 69). 

Plaintiff experienced the medication side effects of light-heatedness and fatigue (Tr.

70). She had recently reduced dosages, but had not yet seen an improvement (Tr. 71). She

believed that her disability was due primarily to fatigue resulting from her heart valve

condition (Tr. 72). She had mitral and aortic valve replacements in 2006 but continued to

experience chronic fatigue as well as chest pain approximately once every two weeks (Tr.

73). She alleviated the chest pain with nitroglycerin (Tr. 73). She also experienced mood

swings and had received treatment from a psychiatrist since May, 2012 (Tr. 74). 

Plaintiff’s counsel interjected that her client was experiencing valve deterioration

resulting in uncontrolled hypertension and mild mitral valve regurgitation and moderate to

severe regurgitation in the aortic valve (Tr. 76). She noted that a treating source recently

found that due to the valve condition, Plaintiff was limited to working part-time (Tr. 77).

She noted further that since a previous application for benefits was decided, Plaintiff had

been diagnosed with bipolar disorder (Tr. 77). She stated that Plaintiff’s failure to take

heart medication regularly was due to financial and mental health issues (Tr. 79). 

Plaintiff resumed her testimony:

Because oftransportation limitations, she was unable to have her blood checked every

day as recommended by her treating source (Tr. 80). She would be unable to lift one-and-ahalf pounds on a continuous basis (Tr. 86). She was unable to stand for more than an hour

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at a time due to foot swelling (Tr. 86). She was unable to walk even one block due to

shortness of breath (Tr. 87). She spent most of the day reclining, watching television, or

performing light household chores (Tr. 87). She did not shop more than once a month and

was unable to lift grocery bags (Tr. 88-89). Her regular outings were limited to church once

a week (Tr. 90). She used a computer around twice a week to check Facebook or to obtain

information on gardening (Tr. 91-92). She enjoyed making decorative keychains (Tr. 93). 

She experienced occasional reading comprehension problems (Tr. 92). She had not traveled

out-of-state since 2009 except to attend a funeral in Ohio and that during the trip, she

required four stops to stretch over the course of the four-hour drive (Tr. 93). She smoked one

or two cigarettes every two or three days (Tr. 95). She had not drunk alcohol or used

marijuana in the past year but admitted to one-time cocaine use the previous December after

experiencing marital problems (Tr. 95-96). She was convicted of shoplifting at the age of

18 (Tr. 96). 

In response to questioning by her attorney, Plaintiff stated that her condition had

worsened since May, 2009 (Tr. 97). Psychotropic medication caused concentrational

problems (Tr. 98). She attended AA meetings and had worked with an addiction counselor

(Tr. 104). 

 B. Medical Evidence1

1. Treating Records 

a. Records Predating May 20, 2009

July, 2006 hospital records note that Plaintiff admitted to past cocaine abuse and

current tobacco use (Tr. 321). The following month, Plaintiff underwent valve replacement

Records predating the alleged onset date (amended) of May 20, 2009 are included 1

for background purposes only. 

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surgery (Tr. 326-328). September, 2006 post-operative notes by G. Predeteanu, M.D. state

that Plaintiff’s incision fromaortic and mitral valve replacement was well healed and that the

vital signs were normal (Tr. 317). In August, 2007, Dr. Predeteanu noted “prosthetic valve

disfunction with aortic insufficiency” (Tr. 318). He found that the condition was not severe

enough to warrant replacing the valve (Tr. 318). The following month, Plaintiff admitted to

continued tobacco use (Tr. 330). G. Michael Deeb, M.D. found “moderate -to-severe aortic

insufficiency” (Tr. 331). The following month, he found “mild-to-moderate” aortic

regurgitation (Tr. 332). 

b. Records Pertaining to the Relevant Period

April, 2009 treating records by P. Kerseri, M.D. and Cristian Hutanu, M.D. note

reports of recent shortness of breath and heart palpitations (Tr. 589-590). Plaintiff reported

that her grandmother passed away the day before (Tr. 590, 872). Plaintiff denied chest pains

(Tr. 590). The following month, Plaintiff again reported shortness of breath but denied chest

pains (Tr. 586). An MRA of the carotid arteries was unremarkable (Tr. 601). An MRI of

the brain was also unremarkable except for a small lesion (Tr. 660). 

Plaintiffsought emergency treatment in September, 2009 for a superficial stab wound

to the abdomen (Tr. 419, 424, 864). A chest examination was unremarkable (Tr. 426). The

following month, she reported chest pain (Tr. 579). Dr. Kerseri noted “chronic shortness of

breath” upon moderate physical activity such as “walking one to two blocks,” but noted that

Plaintiff reported that she could “do all the house chores with no problems” (Tr. 579, 861). 

A chest x-ray was unremarkable (Tr. 654). Later the same month, she reported a cessation

of chest pain (Tr. 576). At the end of the month, she denied shortness of breath or chest pain

(Tr. 573, 855). 

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A January, 2010 echocardiogram, taken in response to an episode of dizziness (Tr.

569), showed mild aortic and mitral valve regurgitation (Tr. 360, 699). An ultrasound of the

carotid artery was normal (Tr. 380, 700). Saad Sirop, M.D. noted that May, 2009 MRI and

MRAs were normal (Tr. 850). Dr. Predeteanu found that Plaintiff was “doing fairly well,”

but complained of occasional lightheadedness, shortness of breath and chest pain (Tr. 376,

851). He found that Plaintiff’s mental status was good (Tr. 377). June, 2010 treating notes

state that Plaintiff was “poorlycompliant” with office visits and medication checks (Tr. 565). 

The following month, Plaintiff was cautioned to improve compliance with medication orders

(Tr. 562). In August, 2010, her cardiac condition was deemed “very good” (Tr. 721). 

October, 2010 treating records state that Plaintiff, now compliant with medication

instructions, denied shortness of breath of other cardiac symptoms (Tr. 560). Treatment

notes fromthe following month state that Plaintiff was again non-compliant with office visits

and medication instructions (Tr. 556, 839). In March, 2011, Dr. Predeteanu noted that an

EKG was unremarkable (Tr. 718). He increased her dosage of Atenolol in response to

complaints of chest pain (Tr. 718). A September, 2011 echocardiogram showed an ejection

fraction of 60 to 65 percent with moderate to severe aortic regurgitation (Tr. 344-345, 781-

782). The same month, a stress test was terminated due to shortness of breath, but showed

normal results (Tr. 346-347, 696-696, 780). A physical examination the following month

was unremarkable (Tr. 716). 

February, 2012 treating notes state that Plaintiff denied cardiac symptoms but reported

depression (Tr. 538, 820). Talluri Siva, M.D. prescribed Zoloft (Tr. 537). In March, 2012,

Plaintiff sought emergency treatment for chest pain (Tr. 389-390, 518, 535, 817). An EKG

was normal (Tr. 693). Plaintiff admitted to current tobacco use (Tr. 392). She was

discharged after her symptoms improved (Tr. 390). Imaging studies of the heart performed

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the same month were unremarkable (Tr. 648, 650). Treating notes from the following month

state that the chest pains had resolved (Tr. 758, 814). 

May, 2012 counseling notes by Jodi Barnes, M.A. state that Plaintiff experienced

depression, nightmares, anger, mood swings, trauma, and relationship problems (Tr. 1009). 

She admitted to recent alcohol and marijuana use (Tr. 1013). Plaintiff appeared fully

oriented with an intact memory (Tr. 1016). She admitted to previously shoplifting chargecards and drunk driving charges (Tr. 1018). She reported auditory hallucinations (Tr. 1022). 

The intake records note that Plaintiff did not require residential services (Tr. 1025). She was

assigned a GAF of 55 due to bipolar disorder with psychotic features and polysubstance

dependence (Tr. 1029). C. Kremer found assigned a GAF of 35 (Tr. 1033). 2 3

Dr. Predeteanu’s August, 2012 records note Plaintiff’s complaints of chronic fatigue

“moderately” limiting activities (Tr. 770). He advised Plaintiff to lose weight, increase

physical activity, and make good dietary choices (Tr. 774). The same month, emergency

imaging studies of the chest, taken in response to chest pain and shortness of breath, were

deemed “worrisome for congestive heart failure” (Tr. 895, 897). Plaintiff was diagnosed

with acute pulmonary edema (Tr. 939). Treating records note a normal mood and affect (Tr.

929). Imaging studies fromthe following day showed “mild pulmonary vascular congestion,

significantly improved . . .” fromthe previous day’s result (Tr. 899). Doppler studies showed

A GAF score of 51–60 indicates moderate symptoms (occasional panic attacks) or 2

moderate difficulty in social, occupational, or school functioning. Diagnostic and

Statistical Manual of Mental Disorders–Text Revision (“DSM–IV–TR” ), 34 (4th

ed.2000).

A GAF score of 31–40 indicates “some impairment in reality testing or 3

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

relations, judgment, thinking or mood.” “DSM–IV–TR” at 34. 

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“trivial to mild” mitral regurgitation (Tr. 903, 980). 

November, 2012 records note “normal heart sounds” with an ejection systolic murmur

in the aortic area (Tr. 796). The same month, Plaintiff sought emergency treatment for

shortness of breath, palpitations, and chest discomfort after using cocaine (Tr. 959). She

admitted to continued tobacco use and reported that she administered private care to a

handicapped individual (Tr. 960). She was diagnosed with “acute exacerbation of congestive

heart failure likely secondary to cocaine use” (Tr. 962). Imaging studies of the chest showed

vascular congestion consistent with congestive heart failure (Tr. 976, 1004). 

April, 2013 treating notes note clear lungs and no edema (Tr. 786). The following

month, Dr. Predeteanu completed an assessment of Plaintiff’s physical abilities, finding that

she could walk stand or sit for no more than a total of four hours in an eight-hour workday,

and was limited to lifting five pounds frequently and 10 occasionally (Tr. 879). He did not

find any manipulative limitations, but found that Plaintiff was unable to push or pull with

the lower extremities on a sustained basis (Tr. 879-880). He found that she would be

required to rest for 20 minutes each hour, but did not need to recline for significant periods

(Tr. 880). A June, 2013 mental health assessment resulted in a GAF of 49 (Tr. 1038). In 4

August, 2013, Dr. Predeteanu stated that the limitations that he found in May, 2013 (see

above) existed as of the alleged onset date of May 20, 2009 (Tr. 1043-1044). 

 2. Non-Treating Records

In May, 2012, Karen Marshall, Psy.D. performed a consultative psychological

examination on behalf of the SSA, noting Plaintiff’s reported of chronic depression and

A GAF score of 41–50 indicates “[s]erious symptoms ... [or] serious impairment 4

in social, occupational, or school functioning,” such as inability to keep a job.

DSM–IV–TR at 34.

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fatigue (Tr. 766). Plaintiff also reported “seeing stars” and “having chest pain” (Tr. 766). 

She reported a recent weight gain of 20 pounds (Tr. 766). Plaintiff alleged that she became

fatigued doing housework and grocery shopping (Tr. 767). 

Dr. Marshall noted that Plaintiff appeared depressed but was fully oriented (Tr. 767). 

She concluded that Plaintiff would be able “to understand, remember and complete simple

repetitive tasks” but “may be more withdrawn due to her feelings of worthlessness” due to

her physical limitations (Tr. 768). Dr. Marshall assigned Plaintiff a GAF of 55 (Tr. 769). 

The same month, Elaine M. Tripi, Ph.D. examined Plaintiff and administered

intelligence testing, classifying Plaintiff in the “low average” range of intelligence (Tr. 882). 

Dr. Tripi assigned a GAF of 47, opining that Plaintiff was “not a viable rehabilitation

candidate or capable of substantial gainful activity based on her “physical and emotional

complaints” (Tr. 883). She found that Plaintiff was markedly limited in the ability to

understand, remember, or carry out detailed instructions; maintain concentration or be

punctual; complete a work-period without psychologically-related interruptions; travel to

unfamiliar places; or use public transportation (Tr. 1039-1041). 

Also in May, 2012, Elaine Pinaire, Ph.D. completed a non-examining psychological

evaluation on behalf of the SSA, finding that Plaintiff experienced moderate limitation in

activities of daily living, social functioning, and concentration, persistence or pace (Tr. 161-

162). Dr. Pinaire found that Plaintiff could “understand, remember, and carry out simple

instructions” consistent with unskilled work (Tr. 166). The following month, U. Gupta, M.D.

performed a non-examining review of Plaintiff’s treating and consultative records on behalf

of the SSA, finding that Plaintiff could lifting 20 pounds occasionally and 10 frequently; sit,

stand, or walk for six hours in an eight-hour workday, and push and pull without limitation

(Tr. 164). He found no other limitations (Tr. 164). 

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C. Vocational Expert Testimony

VE Kimberly Warner classified Plaintiff’s past relevant work as a nurse aide as

exertionally medium and semiskilled (Tr. 105-106, 307). The ALJ then described a

5

hypothetical individual of Plaintiff’s age, educational level, and work experience:

[T]his individual is limited to light work. They’d be able to lift up to 20

pounds occasionally, lift and carry up to 10 pounds frequently, stand and walk

for about six hours and sit for up to six hours in an eight-hour work day with

normal breaks. They could never perform pushing or pulling. They can never

operate foot controls. They could never climb ladders, ropes, or scaffolds. 

They could occasionally climb ramps or stairs, occasionally balance, stoop,

kneel, crouch, and crawl. They would have to avoid all exposure to extreme

cold, extreme heat, and to humidity. They would have to avoid concentrated

exposure to excessive vibration. They would have to avoid concentrated use

of hazardous moving machinery, and avoid all exposure to unprotected

heights. Additionally, the work is limited to simple, routine, repetitive tasks

performed in a work environment free of fast-paced production requirements,

involving only simple, work-related decisions and routine workplace changes. 

There could only be occasional and superficial interaction with the public.

(Tr. 106-107). 

 The VE testified that the above-limited hypothetical individual could not perform

Plaintiff’s past relevant work, but could perform the light, unskilled work of a sorter (11,000

positions in the State of Michigan); inspector (5,800) and bench assembler (12,000) (Tr. 107-

108). The VE testified that if the limitations included the need for a sit/stand “at will”

option, the bench assembly positions would be reduced by half but the job numbers would

be otherwise unchanged (Tr. 108). 

The VE testified further that if the individual described in the original query were 

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. 

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limited to sedentary work, she could perform the work of a sorter (sedentary) (2,100);

inspector (4,800); and document preparer (2,200) (Tr. 108-109). She testified that the need

for a sit/stand at will option would not change the sedentary findings (Tr. 109). The VE

testified that the need to be off task for 20 percent of the work day, or, the need to miss two

days of work each month due to “doctor visits, symptoms,” or medication side effects, would

preclude all work (Tr. 109-110). 

In response to questioning byPlaintiff’s counsel, the VE testified that the need to take

a rest period for 20 minutes each hour, or, the inability to sit, stand, or walk for more than a

total of four hours in an eight-hour workday would preclude all work (Tr. 110-111). 

D. The ALJ’s Decision

Citing Drummond v. CSS, 126 F.3d 837 (6 Cir. 1997), the ALJ found that Plaintiff’s th

condition had not materially worsened since the prior May 19, 2009 administrative decision

(Tr. 22, 138-149). He found that Plaintiff was last eligible for DIB on March 31, 2008 (Tr.

22). ALJ Fallis determined that Plaintiff experienced the severe impairments of “aortic and

mitral valve insufficiency status post valve replacement, obesity, bipolar disorder and

substance abuse in remission” but that none of the conditions met or medically equaled an

impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr. 24, 35). He found that

the conditions of dyslipidermia, hypertension, vision problems, ovarian cyst and dermatitis

would not create more than minimal work limitations (Tr. 25). He found that Plaintiff

experienced moderate restriction in activities of daily living, social functioning, and in

concentration, persistence, or pace (Tr. 35-36). He found that Plaintiff retained the residual

functional capacity (“RFC”) to perform light work with the following restrictions: 

[Requires no more than standing/walking for about six hours in an eight-hour

work day; allowing person to sit or stand alternatively, provided this person is

not off task more than 10 percent of the work period. Never perform pushing

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or pulling or operate foot controls. Never climb ladders, ropes or scaffolds. 

Can perform occasional climbing of ramps or stairs, balancing, stooping,

kneeling, crouching and crawling. Must avoid all exposure to extreme cold,

heat and humidity. Avoid concentrated exposure to excessive vibration and

use of hazardous moving machinery. Must avoid all exposure to unprotected

heights. Work is limited to simple, routine and repetitive tasks performed in

a work environment free of fast-paced production requirements involving only

simple work related decisions and routine work place changes; and only

occasional superficial interation with the public (Tr. 36-37). 

Citing the VE’s testimony, the ALJ found that although Plaintiff was unable to perform her 

former work, she could work as a sorter, inspector, or bench assembler (Tr. 41). 

The ALJ found that Plaintiff’s allegations of disability were undermined by her

partial compliance with treatment for the valve conditions (Tr. 38). He noted that Plaintiff

continued to smoke and had used cocaine as recently as November, 2012 (Tr. 38). He noted

further that an April, 2013 examination showed “clear lungs and no edema” (Tr. 38). He

cited August, 2012 studies showing an ejection fraction of 67 percent (Tr. 38). 

TheALJ accorded only“moderate weight” to Dr. Predeteanu’s May, 2013 assessment,

finding that it was inconsistent with the medical record (Tr. 39). He also found that

Plaintiff’s psychological symptoms did not preclude work, citing Dr. Marshall’s consultative

finding that she was fully oriented with an intact memory (Tr. 39). 

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 than 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 from its 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

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).

 

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ANALYSIS6

A. The Treating Physician Analysis

Plaintiff argues first that the ALJ failed to provide an adequate rationale for the partial

rejection of Dr. Predeteanu’s May, 2013 assessment of her work-related abilities. Plaintiff’s

Brief, 12-17, Docket #17. 

As the VE testified, Dr. Predeteanu’s May, 2013 finding that Plaintiff could walk

stand or sit for no more than a total of four hours in an eight-hour workday, or his finding

that Plaintiff needed to recline for 20 minutes each hour (Tr. 879-880), if adopted, would

direct a finding of disability (Tr. 110-111). Dr. Predeteanu also found that Plaintiff was

limited to lifting up to five pounds frequently and up to 10 occasionally and was not able to

6

Acknowledging the prior administrative decision of May 19, 2009, ALJ Fallis

performed his analysis pursuant to Acquiescence Ruling (“AR”) 98-4(6), which states that

in the absence of new and material evidence postdating an earlier decision under the same

Title, the latter fact finder must adopt the previous RFC (Tr. 37)(emphasis added). AR 98-

4(6), codifying Drummond v. Commissioner of Social Security, 126 F.3d 837 (6th Cir. 1997)

provides as follows:

When adjudicating a subsequent disability claim with an unadjudicated period

arising under the same title of the Act as the prior claim, adjudicators must

adopt such a finding from the final decision by an ALJ or the Appeals Council

on the prior claim in determining whether the claimant is disabled with respect

to the unadjudicated period unless there is new and material evidence relating

to such a finding or there has been a change in law, regulations, or rulings

affecting the finding or method for arriving at the finding. 

In order to be awarded benefits subsequent to the original finding of non-disability,

a claimant “must demonstrate that her condition has so worsened . . . that she was unable

to perform substantial gainful activity.” Priest v. Social Security Admin, 3 Fed.Appx. 275,

276, 2001 WL 92121, *1 (6 Cir. January 26, 2001)(citing Casey v. Sec'y of Health and th

Human Servs., 987 F.2d 1230, 1232-33 (6th Cir.1993)). 

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use leg-controlled equipment for pushing or pulling on a sustained basis (Tr. 879-880). 

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

regarding a claimant’s medical condition constitutes reversible error. Gayheart v. CSS, 710

F.3d 365, 376 (6th Cir. 2013); Wilson v. CSS, 378 F.3d 541, 544 (6th Cir. 2004); §

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.

The ALJ accorded “moderate weight” to Dr.Predeteanu’s opinion (Tr. 33). He agreed

with Dr. Predeteanu’s finding that Plaintiff did not experience manipulative limitations but

rejected the finding that Plaintiff was limited to lifting five pounds (Tr. 33). He cited March,

2012 records showing full strength in all extremities and the lack of neurological deficits (Tr.

33). The ALJ noted that it was unclear whether Dr. Predeteanu considered Plaintiff’s abuse

of cocaine in making the residual capacity findings (Tr. 33, 35). 

The ALJ supplemented his rationale for rejecting Dr. Predeteanu’s assessment later

in the administrative determination (Tr. 37-38). The ALJ noted that the assessment was

undermined by Plaintiff’s ability to care for her personal needs, perform light housekeeping

chores, attend church, visit her mother, use a computer, and attend AA meetings (Tr. 37-38). 

The ALJ noted that Dr. Predeteanu’s assessment (including the finding that Plaintiff needed

to rest of 20 minutes of each hour) stood at odds with both Plaintiff’s admitted activities and

the treating notes stating that Plaintiff’s intermittent health crises were attributable to her

failure to follow medical advice (Tr. 38). The ALJ noted that Dr. Predeteanu’s May, 2013

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assessment also stood at odds with his August, 2012 advice for Plaintiff to increase her

physical activity (Tr. 38). 

Plaintiff’s criticisms of the ALJ’s treating physician analysis do not provide a basis

for remand. She faults the ALJ for citing only the March, 2012 medical records to support

the partial rejection of Dr. Predeteanu’s opinion, arguing that the March, 2012 finding of full

muscle strength is irrelevant to the question of whether the cardiac condition caused

disabling limitation. Plaintiff’s Brief at 14. Contrary to Plaintiff’s argument, the ALJ

supported the partial rejection of Dr. Predeteanu’s opinion with other medical evidence. The

ALJ’s conclusion that “the overall record does not support [Dr. Predeteanu’s] opinion and

assessment” is directly prefaced by a citation to an April, 2013 cardiac follow-up

examination “showing no chest abnormalities, clear lungs and no edema” (Tr. 38). The ALJ

pointed out that as of April, 2013, no surgery had been recommended and that no physician

had recommended that Plaintiff required daily rest periods (Tr. 38). The finding that Dr.

Predeteanu’s assessment was not supported by the “overall record” is prefaced by the ALJ’s

observation that Plaintiff was able to engage in a wide variety of daily activities (Tr. 37-38). 

The ALJ noted that Dr. Predeteanu’s August, 2012 recommendation for Plaintiffto “increase

her physical activity” stood at odds with the May, 2013 assessment. Notably, in May, 2012,

a psychological intake interviewer concluded that Plaintiff did not require “residential

services” for help taking care of her personal or household needs (Tr. 1025). 

For the same reasons, the ALJ did not err by instead adopting Dr. Gupta’s nonexamining finding that Plaintiff was capable of a significant range of light work (Tr. 39,

164). See Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 409 (6th Cir. 2009)( “‘In

appropriate circumstances, opinions from State agency medical ... consultants ... may be

entitled to greater weight than the opinions of treating or examining sources.’” Blakley v.

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Comm'r Of Soc. Sec., 581 F.3d 399, 409 (6th Cir. 2009)(citing SSR 96–6p, 1996 WL 374180,

at *3 (July 2, 1996)). Dr. Gupta’s finding that Plaintiff was capable of a significant range

of exertionally light work is supported by both the medical records and Plaintiff’s ability to

engage in a fairly wide range of activities, including part-time work. 

Plaintiff also faults the ALJ for discounting Dr. Predeteanu’s opinion on the basis that

it was unclear “whether the Doctor was aware of or considered” Plaintiff’s cocaine abuse (Tr.

33). Plaintiff’s Brief at 15. She contends that if the ALJ believed that the substance abuse

played a role in causing the disability, he was required to make a disability finding before

“discounting or disregarding the assumed effects” of the substance abuse. Id. (citing 20

C.F.R. § 404.1535. In her response to Defendant’s arguments, she argues that “substance

abuse should have been considered as contributing to disability instead of being used to

minimize the degree of disability.” Docket #19 at 6. 

Section 404.1535(a) states that “If we find that you are disabled and have medical

evidence of your drug addiction or alcoholism, we must determine whether your drug

addiction or alcoholism is a contributing factor material to the determination of disability.”

Id.; § 416.935. If so, the ALJ then determines “whether drug addiction or alcoholism is a

contributing factor material to the determination of disability” and whether the claimant

would still be disabled is s/he “stopped using drugs or alcohol.” § 404.1535(b). Thus, prior

to finding that substance abuse is a “contributing factor” to the disability, the ALJ must make

a threshold finding that the claimant is disabled. Id. 

Plaintiff’s argument is without merit. First, while the ALJ permissibly noted that

Plaintiff’s health problems were exacerbated by substance abuse prior to and at one point

during the relevant period, he factored the limitations resulting from the medical conditions

and drug abuse in finding that she was capable of a significant range of exertionally light

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work (Tr. 36). See Warren v. Comm'r of Soc. Sec., 2015 WL 1245936, *20 (E.D. Mich. Mar.

18, 2015)(“Because plaintiff was found not to be disabled [even when considering the effects

of substance abuse] the ALJ was not required to decide the issue of whether substance abuse

was material to a finding of disability”). 

7

Moreover, the ALJ’s observation that Dr. Predeteanu’s assessment did not demarcate

between limitations caused by drug abuse and other conditions, by itself, does not suggest

that the ALJ used the drug abuse prematurely to support a non-disability finding. Notably,

the ALJ found that that the substance abuse was “in remission” (Tr. 25), notwithstanding a

one-time relapse in November, 2012. The ALJ did not err in observing that Dr. Predeteanu

may have over-relied on limitations caused by the isolated relapse in making the assessment,

which was made purportedly for assessing limitations resulting from heart disease. While

Plaintiff attempts to frame the issue as one where the ALJ improperly discounted the drug

abuse-related limitations before making a disabilityfinding, a more reasonable interpretation

is that the ALJ discounted Dr. Predeteanu’s opinion (in part) on its possible overemphasis

on a one-time event rather than Plaintiff’s ongoing limitations. 

Finally, even assuming that the “drug abuse” criticism of Dr. Predeteanu’s opinion

lacked merit, the ALJ provided numerous additional reasons for discounting the treating

assessment. As such, the ALJ’s treating physician analysis does not provide grounds for

7

Plaintiff relies on Williams v. Barnhart, 338 F. Supp. 2d 849, 862-863 (M.D. Tenn.

2004) in support of her reliance on § 404.1535. The Williams court remanded the case

because the ALJ found that the claimant’s polysubstance abuse was “‘material’” to the

determination; “that is . . . would not be disabled is she stopped the polysubstance abuse” but

nonetheless went on to finding the claimant not disabled. Id. In contrast here, the

administrative opinion contains no indication that the ALJ found that substance abuse was

the “but for” cause of the disability. Rather, he found that she was not disabled

notwithstanding her cocaine use (Tr. 25-26). See Warren, supra. 

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remand. 

B. The Mental Limitations

Plaintiff also faults the ALJ for discounting Dr. Tripi’s May, 2013 consultative

examination and intelligence testing. Plaintiff’s Brief at 17-19. She notes that while Dr.

Tripi found that Plaintiff’s scores were “low average,” the intellectual limitations were not

reflected in the RFC. Id. at 17-18. However, as noted by Defendant, Plaintiff does not

suggest how the RFC could be modified to better reflect “low average” intelligence scores. 

The RFC for “simple, routine and repetitive tasks,” as found by the ALJ (Tr. 36-37) is wholly

consistent with Dr. Marshall’s consultative findings (Tr. 768). Defendant’s Brief, 15-16,

Docket #18. Further, the ALJ did not err by rejecting Dr. Tripi’s finding of “marked”

psychological limitations by noting that Plaintiff’s activities and the treating records pointed

to a lesser degree of mental limitation (Tr. 377, 553, 726, 1016). The ALJ also observed that

Dr. Tripi’s finding that Plaintiff experienced “marked” limitation in the ability to use public

transportation (Tr. 1041) was contradicted by Plaintiff’s testimony that she was able to travel

by herself on a bus to attend the administrative hearing (Tr. 59). The finding that Plaintiff

was capable of simple and routine work is also supported by Plaintiff’s testimony that she

was able to work as a care giver for approximately 10 hours a week (Tr. 61). 

Plaintiff points out that treating source Dr. Kremer’s October, 2012 assignment of a

GAF score of 35 (see fn 3, above) supports Dr. Tripi’s finding of finding of multiple marked

limitations. However, the ALJ’s omission of mention of the October, 2012 GAF does not

warrant remand. “[W]e are not aware of any statutory, regulatory, or other authority

requiring the ALJ to put stock in a GAF score in the first place.” Kornecky v. Commissioner

of Social Security, 167 Fed.Appx. 496, 511 (6 Cir. February 9, 2006). Moreover, the ALJ th

“failure” to acknowledge the one-time GAF score of 35 does not warrant remand. Kornecky

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at 507-508 (citing Loral Defense Systems-Akron v. N.L.R.B., 200 F.3d 436, 453 (6th

Cir.1999))(“‘ALJ can consider all the evidence without directly addressing in his written

decision every piece of evidence submitted by a party’”). Moreover, the mental health

treating records, noting an intact memory and full orientation, support a lessor degree of

limitation (Tr. 1016). Accordingly, the ALJ did not err in concluding that Plaintiff was

capable of a significant range of unskilled work. 

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

trivialize Plaintiff’s limitations as a result of mitral and aortic valve disease. However,

because the decision that Plaintiff was not disabled falls 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.

CONCLUSION

For the reasons stated above, I recommend that Defendant’s Motion for Summary

Judgment be GRANTED and that Plaintiff’s Motion for Summary Judgment 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 (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.

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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 6, 2016

CERTIFICATE OF SERVICE

I hereby certify on July 6, 2016 that I electronically filed the foregoing paper

with the Clerk of the Court sending notification ofsuch filing to all counsel registered

electronically. I hereby certify that a copy of this paper was mailed to the following

non-registered ECF participants July 6, 2016.

s/Carolyn M. Ciesla 

Case Manager for the 

Honorable R. Steven Whalen

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