UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

TEHEA L. MINKE, 

 

 Plaintiff, Civil Action No. 15-12516 

 Honorable Stephen J. Murphy, III 

 Magistrate Judge David R. Grand 

v. 

 

COMMISSIONER OF 

SOCIAL SECURITY, 

 

 Defendant. 

__________________________________/ 

REPORT AND RECOMMENDATION 

ON CROSS-MOTIONS FOR SUMMARY JUDGMENT [13, 15] 

Plaintiff Tehea Minke (“Minke”) brings this action pursuant to 42 U.S.C. §405(g), 

challenging the final decision of Defendant Commissioner of Social Security (“Commissioner”) 

denying her application for Supplemental Security Income (“SSI”) under the Social Security Act 

(the “Act”). Both parties have filed summary judgment motions [13, 15], which have been 

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

I. RECOMMENDATION 

For the reasons set forth below, the Court finds that the Administrative Law Judge’s 

(“ALJ”) conclusion that Minke is not disabled under the Act is not supported by substantial 

evidence. Accordingly, the Court recommends that the Commissioner’s Motion for Summary 

Judgment [15] be DENIED, Minke’s Motion for Summary Judgment [13] be GRANTED IN 

PART to the extent it seeks remand and DENIED IN PART to the extent it seeks an award of 

benefits, and that, pursuant to sentence four of 42 U.S.C. §405(g), this case be REMANDED to 

the ALJ for further proceedings consistent with this Report and Recommendation. 

 

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II. REPORT 

A. Procedural History 

On January 20, 2012, Minke filed an application for SSI, alleging disability as of that 

date.1

 (Tr. 226, 374-80). This application was denied initially on March 26, 2012. (Tr. 323-26). 

Minke filed a timely request for an administrative hearing, which was held on July 2, 2013, 

before ALJ Kevin Detherage. (Tr. 203-58). Minke, who was represented by attorney Lewis 

Seward, testified at the hearing, as did vocational expert David Holwerda. (Id.). On July 26, 

2013, the ALJ issued a written decision finding that Minke is not disabled. (Tr. 184-97). On 

May 18, 2015, the Appeals Council denied review. (Tr. 45-50). Minke timely filed for judicial 

review of the final decision on July 15, 2015. (Doc. #1).2

B. Framework for Disability Determinations

Under the Act, SSI is available only for those who have a “disability.” See Colvin v. 

Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). The Act defines “disability” 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. §1382c(a)(3)(A). The Commissioner’s regulations provide that a disability is to be 

determined through the application of a five-step sequential analysis: 

Step One: If the claimant is currently engaged in substantial gainful 

activity, benefits are denied without further analysis. 

Step Two: If the claimant does not have a severe impairment or 

combination of impairments that “significantly limits . . . physical or 

 

1

 Minke had filed previous applications for DIB and SSI. On February 26, 2010, ALJ Joel Fina 

issued a written decision finding that Minke was not disabled under the Act. (Tr. 300-07). On 

May 19, 2010, the Appeals Council denied review, and Minke did not appeal this claim any 

further. (Tr. 184). 

2

 Apparently, Minke has since been approved for SSI after filing a new claim. (Doc. #13 at 9). 

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mental ability to do basic work activities,” benefits are denied without 

further analysis. 

Step Three: If the claimant is not performing substantial gainful activity, 

has a severe impairment that is expected to last for at least twelve months, 

and the severe impairment meets or equals one of the impairments listed in 

the regulations, the claimant is conclusively presumed to be disabled 

regardless of age, education, or work experience. 

Step Four: If the claimant is able to perform his or her past relevant work, 

benefits are denied without further analysis. 

Step Five: Even if the claimant is unable to perform his or her past 

relevant work, if other work exists in the national economy that the 

claimant can perform, in view of his or her age, education, and work 

experience, benefits are denied. 

Scheuneman v. Comm’r of Soc. Sec., 2011 WL 6937331, at *7 (E.D. Mich. Dec. 6, 2011) (citing 

20 C.F.R. §404.1520); see also Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 

2001). “The burden of proof is on the claimant throughout the first four steps .... If the analysis 

reaches the fifth step without a finding that claimant is not disabled, the burden transfers to the 

[defendant].” Preslar v. Sec’y of Health & Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994). 

C. Background 

 1. Minke’s Reports and Testimony

At the time of the administrative hearing, Minke, who was born in 1967, was 5’3” tall 

and weighed 150 pounds. (Tr. 206-07, 393). She lived in an apartment with her 20-year-old son 

(her 17-year-old autistic son lived with his father). (Tr. 207-08, 420). Minke graduated from 

high school but had no further education. (Tr. 207, 399). She stopped working in 1999 or 2000, 

because of “issues with [her] health” and because her son needed care. (Tr. 209, 398). 

Minke alleges disability as a result of various medical conditions, including fibromyalgia, 

brittle diabetes, neuropathy, back pain, and depression. (Tr. 212-13, 245-46, 398). She takes 

numerous medications, and injects herself with insulin multiple times a day; nonetheless, she still 

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frequently experiences diabetic ketoacidosis (“DKA”), which occurs when her blood sugar gets 

so high that it cannot be controlled with insulin, her body starts to “shut down,” and she requires 

an IV insulin drip. (Tr. 212-15, 243, 401). According to Minke, she experiences DKA monthly 

or every couple of months, and this condition requires immediate hospitalization. (Tr. 243-44). 

Her diabetes is complicated by a prior gastric bypass surgery, which makes it difficult for her 

body to absorb food and medications. (Tr. 244-45). 

Minke indicated that she is able to get dressed in the morning and, some days, prepare 

simple meals. (Tr. 224, 227, 422). Her adult son does all of the laundry, as well as most of the 

cooking and cleaning. (Tr. 422). She cannot stand at the sink to wash dishes, and she no longer 

drives because her legs “jerk” and “twitch,” and she worries she will cause an accident. (Tr. 

224-25). She has difficulty lifting, squatting, bending, standing, reaching, walking, sitting, 

kneeling, and stair climbing. (Tr. 425). She uses a cane when she leaves her apartment, and uses 

an electric cart when she goes to the store. (Tr. 426). Minke testified that some days, she is 

unable to walk at all; indeed, just prior to the administrative hearing, she had been hospitalized 

twice because she “could not stand up.” (Tr. 216-17). 

Minke also testified that she was put on probation for taking her son’s Adderall; 

subsequently, she pled guilty to a probation violation when her “pill counts” were off. (Tr. 234-

37). While in jail on this probation violation, Minke refused to eat and to take her insulin so that 

she could die “of natural causes,” so she was hospitalized for what was viewed as an apparent 

suicide attempt. (Id.). She continues to have suicidal thoughts and is seeing a counselor on a 

regular basis. (Tr. 238). She has difficulty with her memory and with maintaining attention and 

concentration. (Tr. 238-39). 

 

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2. Medical Evidence

The Court has thoroughly reviewed Minke’s medical record. In lieu of summarizing her 

medical history here, the Court will make references and provide citations to the record as 

necessary in its discussion of the parties’ arguments. 

3. Vocational Expert’s Testimony

David Holwerda testified as an independent vocational expert (“VE”) at the 

administrative hearing. (Tr. 248-55). The ALJ asked the VE to imagine a claimant of Minke’s 

age, education, and work experience, who could perform sedentary work, with the following 

additional limitations: limited to simple, routine, and repetitive tasks; can work only in a work 

environment free of fast paced production requirements and involving only simple work-related 

decisions; work environment can have only routine workplace changes; only occasional 

stooping, kneeling, crouching, and crawling; no climbing ladders, ropes, or scaffolds; occasional 

climbing of ramps or stairs; frequent handling and fingering with the bilateral upper extremities; 

and no exposure to hazardous conditions such as heights and machinery with moving parts. (Tr. 

252-53). The VE testified that the hypothetical individual would be capable of performing the 

jobs of assembler (28,000 jobs nationally), inspector (13,000 jobs), and machine operator tender 

(44,000 jobs). (Tr. 253-54). Upon questioning by Minke’s attorney, however, the VE testified 

that if the hypothetical individual missed two or more days per month because of medical 

problems, she would be precluded from all competitive work. (Tr. 255). 

D. The ALJ’s Findings 

Following the five-step sequential analysis, the ALJ found that Minke is not disabled 

under the Act. At Step One, the ALJ found that Minke has not engaged in substantial gainful 

activity since January 20, 2012, the application date. (Tr. 186). At Step Two, the ALJ found that 

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Minke has the severe impairments of diabetes mellitus, fibromyalgia, depression, restless leg 

syndrome, arthritis, and back pain. (Tr. 187). At Step Three, the ALJ found that Minke’s 

impairments, whether considered alone or in combination, do not meet or medically equal a 

listed impairment. (Id.). 

The ALJ then assessed Minke’s residual functional capacity (“RFC”), concluding that she 

is capable of performing sedentary work, with the following additional limitations: limited to 

simple, routine, and repetitive tasks; can work only in a work environment free of fast paced 

production requirements and involving only simple work-related decisions; work environment 

can have only routine workplace changes; only occasional stooping, kneeling, crouching, and 

crawling; no climbing ladders, ropes, or scaffolds; occasional climbing of ramps or stairs; 

frequent handling and fingering with the bilateral upper extremities; and no exposure to 

hazardous conditions such as heights and machinery with moving parts. (Tr. 189). 

At Step Four, the ALJ determined that Minke has no past relevant work. (Tr. 195). At 

Step Five, the ALJ concluded, based in part on the VE’s testimony, that Minke is capable of 

performing a significant number of jobs that exist in the national economy. (Tr. 196). As a 

result, the ALJ concluded that Minke is not disabled under the Act. (Tr. 197). 

E. Standard of Review 

The District Court has jurisdiction to review the Commissioner’s final administrative 

decision pursuant to 42 U.S.C. §405(g). Judicial review under this statute is limited in that the 

court “must affirm the Commissioner’s conclusions absent a determination that the 

Commissioner has failed to apply the correct legal standard or has made findings of fact 

unsupported by substantial evidence in the record.” Longworth v. Comm’r of Soc. Sec., 402 F.3d 

591, 595 (6th Cir. 2005) (internal citations omitted); Rabbers v. Comm’r of Soc. Sec., 582 F.3d 

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647, 654 (6th Cir. 2009) (“[I]f an agency has failed to adhere to its own procedures, we will not 

remand for further administrative proceedings unless the claimant has been prejudiced on the 

merits or deprived of substantial rights because of the agency’s procedural lapses.”) (internal 

quotations omitted). 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 quotations omitted). In deciding whether substantial evidence supports the ALJ’s 

decision, the court does “not try the case de novo, resolve conflicts in evidence or decide 

questions of credibility.” Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007); Rogers, 486 

F.3d at 247 (“It is of course for the ALJ, and not the reviewing court, to evaluate the credibility 

of witnesses, including that of the claimant.”). 

When reviewing the Commissioner’s factual findings, the court is limited to an 

examination of the record and must consider the record as a whole. Bass, 499 F.3d at 512-13; 

Wyatt v. Sec’y of Health & Human Servs., 974 F.2d 680, 683 (6th Cir. 1992). The court “may 

look to any evidence in the record, regardless of whether it has been cited by the Appeals 

Council,” or in this case, the ALJ. Heston, 245 F.3d at 535; Walker v. Sec’y of Health & Human 

Servs., 884 F.2d 241, 245 (6th Cir. 1989). There is no requirement, however, that either the ALJ 

or this court discuss every piece of evidence in the administrative record. See Kornecky v. 

Comm’r of Soc. Sec., 167 F. App’x 496, 508 (6th Cir. 2006) (“[A]n ALJ can consider all 

evidence without directly addressing in his written decision every piece of evidence submitted by 

a party.”) (internal quotations omitted). If the Commissioner’s decision is supported by 

substantial evidence, “it must be affirmed even if the reviewing court would decide the matter 

differently and even if substantial evidence also supports the opposite conclusion.” Cutlip v. 

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Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (internal citations omitted);

Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (“if substantial evidence 

supports the ALJ’s decision, this Court defers to that finding ‘even if there is substantial 

evidence in the record that would have supported an opposite conclusion’”). 

F. Analysis

As set forth above, the ALJ found that Minke retains the RFC to perform sedentary work, 

with certain additional limitations. (Tr. 189). In her motion for summary judgment, Minke 

argues that the ALJ’s RFC finding is not supported by substantial evidence because it fails to 

take into account her multiple hospitalizations, which impact her ability to perform work on a 

regular and continuous basis.3

 (Doc. #13 at 11-14). For the reasons set forth below, the Court 

agrees and, thus, finds that remand is warranted. 

As the Sixth Circuit has recognized, “Residual functional capacity is defined as the most 

a claimant can still do despite the physical and mental limitations resulting from her 

impairments.” Poe v. Comm’r of Soc. Sec., 342 F. App’x 149, 155 (6th Cir. 2009) (citing 20 

C.F.R. §§404.1545(a) and 416.945(a)). Pursuant to Social Security Ruling (“SSR”) 96-8p: 

In assessing RFC, the adjudicator must discuss the individual’s ability to 

perform sustained work activities in an ordinary work setting on a 

regular and continuing basis (i.e., 8 hours a day, for 5 days a week, or 

an equivalent work schedule), and describe the maximum amount of 

each work-related activity the individual can perform based on the 

evidence available in the case record. The adjudicator must also explain 

how any material inconsistencies or ambiguities in the evidence in the 

case record were considered and resolved. 

Soc. Sec. Rul. 96-8p, 1996 WL 374184, at *6-7 (July 2, 1996) (emphasis added). Minke argues, 

 

3

 In her response, the Commissioner asserts that this argument is waived because Minke did not 

raise it before the ALJ. (Doc. #15 at 16-17). The Court disagrees. Evidence of Minke’s 

multiple hospitalizations is contained in the record and was discussed by the ALJ in his decision 

(Tr. 189-94), and Minke’s attorney specifically questioned the VE as to the effect of missing 

time from work due to medical problems (Tr. 255). Thus, this issue was adequately preserved. 

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then, that the ALJ erred in failing to consider how her numerous hospitalizations impact her 

ability to perform sustained work activities on a regular and continuing basis within the meaning 

of SSR 96-8p. (Doc. #13 at 11). 

While the ALJ does discuss some of Minke’s hospitalizations (Tr. 190-94), he fails to 

mention many others. Thus, the Court will begin its analysis with a summary of all of Minke’s 

numerous hospital visits during the relevant period of time.4

 On February 6, 2012, Minke presented to the emergency room with vomiting. 

(Tr. 997-1009). Her blood sugars were elevated, and she was administered IV 

medications. (Id.). 

 On May 11, 2012, Minke was seen in the emergency room for a migraine 

headache. (Tr. 987-96). Again, she received IV medications. (Id.). 

 On June 5, 2012, Minke presented to the emergency room with right ankle pain. 

(Tr. 976-86). After x-rays were negative, she was diagnosed with a sprained 

ankle and discharged. (Id.). 

 On June 28, 2012, Minke returned to the emergency room with continued ankle 

pain. (Tr. 962-74). X-rays were again negative and she was discharged early the 

next morning. (Id.). 

 Minke was hospitalized from August 8-10, 2012, for DKA. (Tr. 905-08). She 

reported nausea and vomiting, and her blood sugars were elevated. She was 

admitted and placed on an insulin drip until she could be stabilized. (Id.). 

 Minke returned to the emergency room on August 29, 2012, with a migraine 

headache and difficulty breathing. (Tr. 1072-85). Again, her blood sugars were 

elevated, and she was administered IV medications. (Id.). 

 From September 4-9, 2012, Minke was back in the hospital with “moderate to 

severe” DKA, along with intractable nausea and vomiting (a result of diabetic 

gastroparesis). (Tr. 909-22). She was placed on an insulin drip and eventually 

 

4

 Prior to the application date (January 20, 2012), Minke had several other hospital visits: 

August 19-21, 2011 (for weakness, pain, hyperglycemia); August 30, 2011 (elevated blood 

sugars, pain); November 1-2, 2011 (elevated blood sugars); and November 8-9, 2011 (DKA, 

shortness of breath). (Tr. 468-79, 568-87, 588-616, 650-53, 671). At this last visit, the 

emergency room physician noted that Minke had a “do not resuscitate” order, questioning her as 

to “why she would make such a decision at such a young age.” (Tr. 651). Minke responded by 

indicating that she was “sick of suffering from pain on a daily basis ....” (Id.). 

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stabilized. 

 On September 24, 2012, Minke returned to the emergency room with nausea and 

vomiting. (Tr. 1052-66). Again, her blood sugars were elevated (436), and she 

was administered IV medications. (Id.). 

 Minke was again hospitalized with DKA from November 6-8, 2012. (Tr. 1086-

1117). She was treated with IV insulin and discharged with diagnoses of DKA, 

dehydration, diabetes mellitus, fibromyalgia, chronic back pain, and scoliosis. 

(Tr. 1106). 

 From November 18-20, 2012, Minke was again hospitalized, this time after she 

attempted suicide by stopping taking her insulin in the hope that “she would go 

into DKA and pass [away].” (Tr. 875). When she presented to the emergency 

room, her blood sugars were 703; she was started on IV insulin and eventually 

stabilized. (Tr. 875-85). 

 Minke was admitted to the hospital from November 23-24, 2012, when she again 

stopped taking her insulin “because she wants to die unless they can figure out a 

way of managing her chronic pain due to degenerative disk disease and 

fibromyalgia.” (Tr. 939-40). She was administered IV insulin and stabilized. 

 On January 5, 2013, Minke presented to the emergency room with confusion and 

altered mental status. (Tr. 1013-30). A CT of her brain was negative, and it was 

determined that she had experienced “drug-induced hypoglycemia” as a result of 

a recent medication change. (Tr. 1013, 1028). 

 On January 18, 2013, Minke returned to the emergency room with a knee injury 

(an apparent sprain). (Tr. 1152-60). 

 A few days later, on January 22, 2013, Minke again presented to the emergency 

room with knee pain, which was characterized as a suspected occult fracture. (Tr. 

1138-51). 

 From February 5-6, 2013, Minke was again in the hospital with nausea, vomiting, 

and elevated blood sugar levels (over 600). (Tr. 1239-44). She was admitted, 

started on an insulin drip, and monitored until her blood sugar levels normalized. 

(Tr. 1240). 

 Minke was seen in the emergency room on April 10, 2013, with elevated blood 

sugars. (Tr. 1334). Again, she was administered IV insulin, stabilized, and 

released. (Id.). 

 Minke was hospitalized from April 17-22, 2013, this time after she refused to take 

her insulin (while in jail on a probation violation) in an attempt to commit suicide 

because she was reportedly in so much pain. (Tr. 1315). 

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 From May 30-31, 2013, Minke was again in the hospital, diagnosed with 

generalized weakness with the inability to ambulate and uncontrolled diabetes. 

(Tr. 1537-42). A CT of her brain was normal, and it was suspected that a recent 

change in her medications could have caused a movement disorder. (Tr. 1542). 

 The next day, June 1, 2013, Minke returned to the hospital with continued 

weakness and shaking in the lower extremities and an inability to ambulate. (Tr. 

1529-34). MRIs of her brain and spine were negative, but she remained in the 

hospital until June 4, 2013. (Id.). 

 Minke was back in the emergency room on June 15, 2013, with weakness in her 

legs. (Tr. 1525-28). She was administered IV medication and discharged. (Id.).5

In summary, then, between the application date (January 20, 2012) and the last visit prior to the 

ALJ’s decision (June 15, 2013) – an approximately sixteen month period of time – Minke spent 

all or part of 39 days in the hospital. On average, then, Minke was in the hospital for some or all 

of 2.4 days per month during this time. And, as Minke points out, the VE specifically testified at 

the hearing before the ALJ that if the hypothetical individual missed two or more days per month 

because of medical problems, she would be precluded from all competitive work. (Tr. 255). 

Courts have recognized that an ALJ’s failure to consider the effect of numerous 

hospitalizations on a claimant’s ability to work constitutes reversible error. For example, in 

O’Mahony v. Colvin, 2015 WL 3505211, at *3 (M.D.N.C. June 3, 2015), a case cited by Minke, 

the plaintiff argued that the ALJ erred “by not considering and explaining the effect of [his] 

recent history of frequent hospitalizations on his ability to obtain and sustain employment.” In 

that case, the plaintiff spent approximately 25 days hospitalized during a ten-month period, 

which the vocational expert testified “would not allow for competitive employment.” Id. The 

 

5

 After the ALJ’s July 26, 2013 decision, Minke had numerous other hospital visits: November 

18, 2013 (for nausea and vomiting related to gastroparesis); November 26-28, 2013 (nausea and 

vomiting); December 2-4, 2013 (nausea, vomiting, DKA); January 10-11, 2014 (weakness, 

confusion, disorientation); February 15, 2014 (leg swelling); March 2, 2014 (weakness); March 

16, 2014 (bleeding from Medport); April 7, 2014 (vomiting); April 8, 2014 (vomiting); April 12, 

2014 (leg swelling); April 27, 2014 (difficulty breathing); May 2-3, 2014 (suspected seizure); 

May 5-6, 2014 (nosebleed); May 9, 2014 (GI bleed); July 15-16, 2014 (DKA); July 29, 2014 

(hyperglycemia). (Tr. 56, 63, 73, 80, 94, 110, 120, 123, 127, 135, 138, 145, 154, 169, 172, 176). 

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O’Mahony court found that the ALJ erred in failing to analyze the effect of the plaintiff’s history 

of frequent hospitalizations on his ability to obtain employment and remanded the case for 

further consideration of that issue. Id. at *4. 

Similarly, in Hawke-Dingman v. Comm’r of Soc. Sec., 2012 WL 5328674 (E.D. Mich. 

Sept. 11, 2012), the court remanded the case pursuant to sentence six of 42 U.S.C. §402(g) when 

presented with evidence of several hospitalizations after the administrative hearing. In that case, 

the court recognized that the new evidence – when viewed in light of evidence previously 

presented – might establish that the plaintiff was unable to work on a regular and continuing 

basis. Specifically, the court observed: 

Between November 2009 and October 2010, Plaintiff was hospitalized for 

44 days. She has now produced evidence that she was hospitalized for 14 

days in 2011, and, so far in 2012, 11 days. It is far from plain that a 

person requiring hospitalization as frequently as Plaintiff – 69 days in less 

than three years (about two days per month) – would be able to maintain 

substantial gainful employment. In fact, the VE testified that missing 

more than two days of work per month would likely preclude full-time 

employment. 

Id. at *12 (internal citations omitted). Other courts have reached similar conclusions when 

presented with similar facts. See, e.g., Castaneda v. Colvin, 2014 WL 1097864, at *6 (N.D. Ill. 

Mar. 17, 2014) (remanding where the ALJ failed to “build an adequate and logical bridge” 

between the evidence of multiple hospitalizations and the conclusion that the plaintiff retained 

the RFC to “consistently be at work”); Jones v. Sec’y of Health & Human Servs., 758 F.2d 653 

(6th Cir. 1985) (remanding where there was “no indication that the ALJ considered [the 

plaintiff’s] repeated, lengthy hospitalizations in concluding that she was capable of performing 

sedentary work on a sustained basis”); Rocco v. Heckler, 826 F.2d 1348, 1350 (3d Cir. 1987) 

(remanding to determine whether claimant’s repeated hospitalizations would preclude work on a 

regular and continuing basis). 

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In the face of this case law, the Commissioner advances two arguments. First, she argues 

that, because the majority of Minke’s hospitalizations were for physical impairments, “it was 

incumbent on [her] to comb through this excruciatingly long record and cite to evidence proving 

that her physical impairments stayed at a disabling level in between her hospitalizations – 

something that required far more than simply creating a table summarizing the dates and 

purported reasons for these hospitalizations.” (Doc. #15 at 16 (citing Maher v. Sec’y of Health & 

Human Servs., 898 F.2d 1106, 1109 (6th Cir. 1989)). But this argument misses the mark as 

many, if not the majority, of Minke’s hospitalizations related to issues she was having with her 

diabetes, depression, and pain, all of which are impairments the ALJ found to be severe. (Tr. 

187). In this regard, the Court finds Maher distinguishable. In that case, the issue was whether 

the plaintiff met the twelve-month durational requirement necessary to establish disability where 

he underwent six surgical procedures in five years, but his “period of convalescence was never 

more than several months for each procedure.” Maher, 898 F.2d at 1108. In this case, however, 

the issue is not whether Minke met the durational requirement6

, but whether, considering the 

effects of all of her impairments – both “severe” and “non-severe” – the evidence establishes that 

she retains the RFC to perform sustained work activities on a regular and continuing basis. See 

Soc. Sec. Rul. 96-8p, 1996 WL 374184, at *6-7 (July 2, 1996). Here, where all of Minke’s 

hospitalizations (save for those pertaining to her knee and ankle sprains) relate in some way to 

her severe impairments, the ALJ erred in failing to consider the effect of those frequent 

hospitalizations on her ability to perform work on a regular and continuing basis. 

 

6

 Indeed, the ALJ specifically found at Step Two of the sequential analysis that Minke suffers 

from six “severe” impairments, including diabetes mellitus, fibromyalgia, and back pain, and 

proceeded to Step Three of the analysis. Thus, the ALJ must have concluded that these severe 

impairments lasted or could be expected to last for a continuous period of not less than twelve 

months. See 20 C.F.R. §416.920(a)(4)(ii). 

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The Commissioner also argues that Minke’s repeated hospitalizations were not disabling 

because eleven of those hospitalizations “lasted less than a day” and because the hospitalizations 

“result[ed] in improvement,” suggesting that her impairments “‘can be controlled with proper 

treatment.’” (Doc. #15 at 17-18 (quoting Bryce v. Comm’r of Soc. Sec., 2014 WL 1328277, at *3 

(E.D. Mich. Mar. 28, 2014)). The Court finds Bryce distinguishable, however. In that case, the 

ALJ specifically considered the plaintiff’s hospitalizations, finding that they were not for 

extended durations, that his condition improved through the course of each hospitalization, and 

that his treatment was effective when he was compliant with it. See Bryce, 2014 WL 1328277, at 

*3. In contrast, the ALJ here conducted no such analysis and, indeed, failed to discuss the 

impact of these hospitalizations on Minke’s ability to perform sustained work activities. 

Moreover, when the Court conducts its own review of the relevant medical evidence, the fact 

that she was hospitalized repeatedly, and usually required IV insulin to stabilize her high blood 

sugars, suggests that her diabetes and chronic pain were far from “controlled.”7

In summary, then, the evidence establishes that between January 2012 and June 2013, 

Minke spent all or part of 39 days in the hospital (an average of 2.4 days per month). Given 

these facts, and the VE’s testimony discussed above, the Court cannot say that the ALJ’s failure 

to discuss and analyze the impact of Minke’s frequent hospitalizations on her ability to perform 

sustained work activities on a regular and continuing basis was harmless error. As such, remand 

 

7

 The Commissioner also seeks to minimize the import of Minke’s hospitalizations by arguing 

that some were the result of “questionable compliance with her insulin” or “refusing her diabetes 

medications.” (Doc. #15 at 19, 21). This argument is not persuasive where the ALJ found 

Minke to suffer from the severe impairment of depression (Tr. 187), and the evidence indicates 

that when she failed to take her insulin, she did so in an effort to enter DKA and “die ‘naturally’” 

so as to end her continued pain. (Tr. 872). Thus, it certainly appears at least possible that any 

alleged noncompliance with treatment was, at least in part, the result of Minke’s severe mental 

impairment, a fact that the ALJ should have considered. 

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is warranted.8

III. CONCLUSION 

For the foregoing reasons, the Court RECOMMENDS that the Commissioner’s Motion 

for Summary Judgment [15] be DENIED, Minke’s Motion for Summary Judgment [13] be 

GRANTED IN PART to the extent it seeks remand and DENIED IN PART to the extent it seeks 

an award of benefits, and that, pursuant to sentence four of 42 U.S.C. §405(g), this case be 

REMANDED to the ALJ for further proceedings consistent with this Report and 

Recommendation. 

Dated: July 18, 2016 s/David R. Grand 

Ann Arbor, Michigan DAVID R. GRAND 

 United States Magistrate Judge 

NOTICE TO THE PARTIES REGARDING OBJECTIONS 

Within 14 days after being served with a copy of this Report and Recommendation and 

Order, any party may serve and file specific written objections to the proposed findings and 

recommendations and the order set forth above. See 28 U.S.C. §636(b)(1); Fed. R. Civ. P. 

72(b)(2); E.D. Mich. LR 72.1(d)(1). Failure to timely file objections constitutes a waiver of any 

further right of appeal. See Minke v. Arn, 474 U.S. 140, (1985); United States v. Sullivan, 431 

F.3d 976, 984 (6th Cir. 2005). Only specific objections to this Report and Recommendation will 

be preserved for the Court’s appellate review; raising some objections but not others will not 

preserve all objections a party may have. See Smith v. Detroit Fed’n of Teachers Local 231, 829 

 

8

 Minke also argues that the ALJ’s credibility determination is not supported by substantial 

evidence. (Doc. #13 at 15-22). Because the Court is recommending remand on other grounds, it 

need not pass on this alleged error. However, on remand, the ALJ should re-evaluate Minke’s 

credibility based on a review of the full record. 

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F.2d 1370, 1373 (6th Cir. 1987); see also Frontier Ins. Co. v. Blaty, 454 F.3d 590, 596-97 (6th 

Cir. 2006). Copies of any objections must be served upon the Magistrate Judge. See E.D. Mich. 

LR 72.1(d)(2). 

A party may respond to another party’s objections within 14 days after being served with 

a copy. See Fed. R. Civ. P. 72(b)(2); 28 U.S.C. §636(b)(1). Any such response should be 

concise, and should address specifically, and in the same order raised, each issue presented in the 

objections. 

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 July 18, 2016. 

 s/Eddrey O. Butts 

 EDDREY O. BUTTS 

 Case Manager 

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