UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

NICOLE C. MCPHERSON, 

Plaintiff, Civil Action No. 15-12010

v. District Judge John Corbett O’Meara

Magistrate Judge R. Steven Whalen

 

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

 /

REPORT AND RECOMMENDATION 

Plaintiff Nicole C. McPherson (“Plaintiff”), proceeding pro se, brings this action

under 42 U.S.C. §405(g), challenging a final decision of Defendant Commissioner denying

her application for DisabilityInsurance Benefits (“DIB”) and Supplemental Security Income

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

judgment which have been referred for a Report and Recommendation pursuant to 28 U.S.C.

§636(b)(1)(B). For the reasons discussed below, I recommend that Defendant’s Motion for

Summary Judgment [Docket #15] be GRANTED, and that Plaintiff’s Motion for Summary

Judgment [Docket #14] be DENIED. 

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PROCEDURAL HISTORY

On July 31, 2012, Plaintiff applied for DIB and SSI, alleging disability as of June

15, 2009 (Tr. 115-120, 121-124). After the initial denial of her claim, Plaintiff requested an

administrative hearing, held on November 18, 2013 in Oak Park, Michigan (Tr. 26). 

Administrative Law Judge (“ALJ”) Gerald A. Freedman presided. Plaintiff, unrepresented,

testified (Tr. 31-44), as did Vocational Expert (“VE”) Scott Silver (Tr. 44-49). On February

12, 2014, ALJ Freedman found that Plaintiff was not disabled (Tr. 20-22). On May 8, 2015,

the Appeals Council denied review (Tr. 1-5). Plaintiff filed the present action on June 2,

2015. 

 BACKGROUND FACTS

Plaintiff, born September 30, 1971, was 42 at the time of the administrative decision

(Tr. 22, 115). She completed 12 grade and worked previously as a cashier (Tr. 146). She th

alleges disability as a result of rectal bleeding, hypertension, left-sided hearing loss, and back

and knee problems (Tr. 145). 

A. Plaintiff’s Testimony

The ALJ prefaced Plaintiff’s testimony by amending the alleged onset date to July 26,

2012 (Tr. 28). He noted that Plaintiff had filed for disability benefits a total of eight times

and had lost the first seven times (Tr. 29). Plaintiff waived her right to legal representation

(Tr. 30). 

Plaintiff then offered the following testimony: 

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She stood 5' 4" and weighed more than 250 pounds (Tr. 31). Her son was 17 (Tr. 31). 

She had not taken college classes or received vocational training (Tr. 32). She had not

worked since being terminated from a job at WalMart three years earlier due to knee and low

back problems (Tr. 32-35). Due to her physical condition, she became fatigued even waiting

for a bus (Tr. 33). Her treatment had been limited to therapy and steroid injections (Tr. 34). 

She also experienced left-sided hearing loss and hypertension (Tr. 35). She had been told

that the hearing loss was not treatable (Tr. 35). She took Naproxen and Hydrocodone for the

back condition and Itinerol for hypertension (Tr. 36). Her treating sources currently

suspected a diagnosis of Lupus (Tr. 37). 

Plaintiff was unable to walk even one city block due to back and knee problems (Tr.

38). She experienced difficulty climbing a flight of stairs (Tr. 38). She was unable to lift

anything with her left hand due to an injury and was limited to lifting one gallon of milk with

the right (Tr. 39). Although she used a CPAP machine and took sleeping medicine, she

experienced daytime sleepiness (Tr. 40). She relied on her son to perform household chores

(Tr. 41-42). She did not have a driver’s license and had been driven to the hearing by her

mother (Tr. 42). 

Plaintiff admitted that she could perform the sedentary job of bench inspector, but 1

1

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

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did not know if she was capable of obtaining transportation to work (Tr. 43). 

B. Medical Evidence

1. Records Related to Plaintiff’s Treatment2

December, 2008 treatment records by Dr. Jean Sinkoff note Plaintiff’s report of right

knee weakness (Tr. 182). Plaintiff reported that she was currently working as a cashier (Tr.

182). Dr. Sinkoff referred her for physical therapy (Tr. 183). January, 2009 records note that

Plaintiff experienced some improvement with physical therapy, but currently reported level

“10” pain on a scale of 1 to 10 (Tr. 180). She requested a different knee brace (Tr. 180). A

CT of the right knee showed degenerative arthritis and joint effusion (Tr. 177). In March,

2009, Dr. Sinkoff administered a steroid injection to the right knee (Tr. 177). Plaintiff

reported that she took Vicodin on an as-needed basis (Tr. 176). 

In August, 2011, Plaintiff was diagnosed with hemorrhoids (Tr. 206). December,

2011 records noted a diagnosis of sleep apnea (Tr. 194, 196-197, 202). Treatment records

note “no acute respiratory distress walking to the clinic” and that Plaintiff’s insomnia and

daytime malaise were improved with the use of a CPAP device (Tr. 202). A February, 2012

ultrasound of the thyroid was negative for malignancy (Tr. 240). March, 2012 records note

that exertionally heavy work “involves lifting no more than 100 pounds at a time with

frequent lifting or carrying of objects weighing up to 50 pounds. Very Heavy work requires

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

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

Medical records created prior to the alleged onset date of July 26, 2012 are 2

included for background purposes only. 

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Plaintiff’s report that she felt “much better” and “more refreshed” since beginning the use

of a CPAP device (Tr. 187). April, 2012 treating records state that a colonoscopy performed

in September, 2011 was unremarkable (Tr. 184). Treating notes also state that Plaintiff’s

thyroid hormone levels were normal (Tr. 241). July, 2012 records note a full range of left

elbow motion (Tr. 186). 

In January, 2013, Dr. Sinkoff treated Plaintiff for bronchitis (Tr. 235). Imaging

studies of the chest from the same month showed “borderline heart size” but no other

abnormalities (Tr. 234). Dr. Sinkoff’s March, 2013 records state that Plaintiff sought

treatment for an ear ache (Tr. 229). An April, 2013 x-ray of the left shoulder showed mild

degenerative changes with rotator cuff tendinitis (Tr. 232). In May, 2013, Plaintiff sought

emergency treatment for arm pain (Tr. 224). She was prescribed Motrin 800 and discharged

without a diagnosis (Tr. 224-225). The following month, she reported chest pain during

physical activity (Tr. 230). July, 2013 treating notes state that Plaintiff experienced

bronchitis and reported knee pain (Tr. 230). Dr. Sinkoff prescribed Benadryl and an

antibiotic (Tr. 230). 

2. Non-Treating Records

 In December, 2013, Ernesto Bedia, M.D. performed a consultative examination on

behalf of the SSA, noting Plaintiff’s complaints of back and right knee pain since 1996 (Tr.

208). Plaintiff also reported daily rectal bleeding, sleep apnea, and left-sided hearing loss

(Tr. 209). Dr. Bedia noted that a colonoscopy yielded normal results (Tr. 208). The back

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examination and neurological testing were unremarkable (Tr. 209, 215). Dr. Bedia noted full

muscle strength, normal hearing, and a normal gait (Tr. 209-210). X-rays of the lumbar

spine and bilateral knees showed “minimal” degenerative changes (Tr. 211-212). Range of

motion studies were normal (Tr. 213-214). 

Dr. Bedia also completed an assessment of Plaintiff’s work-related abilities, finding

that she could lift or carry up to 20 pounds frequently and 50 pounds occasionally (Tr. 217). 

He found that Plaintiff could sit for six hours a day, stand for five, and walk for four (Tr.

218). He found that Plaintiff was capable of reaching, handling, fingering, feeling, 

push/pulling, and operating foot controls on a frequent basis (Tr. 219). He precluded the

climbing of ladders and scaffolds but found that Plaintiff could climb stairs, balance, stoop,

kneel, crouch, and crawl on a frequent basis (Tr. 220). He found no limitation in vision or

hearing (Tr. 220). He precluded Plaintiff from working at unprotected heights but found that

she could operate a motor vehicle and work with environmental changes on a frequent basis

(Tr. 221). Dr. Bedia found that Plaintiff could work with moving mechanical parts on an

occasional basis (Tr. 221). He found that Plaintiff did not require the use of a cane and could

use public transportation (Tr. 222). 

3. Records Submitted After the ALJ’s February 12, 2014 Decision (Tr. 242-243)

A February 17, 2014 “Medical Needs - Path” signed by Dr. Sinkoff states that 

Plaintiff was unable to perform any work (Tr. 242). Dr. Sinkoff found that Plaintiff

experienced hypertension and breathing problems and was unable to lift even 10 pounds on

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an occasional basis (Tr. 242). Incosistently, Dr. Sinkoff found both that Plaintiff was unable

to stand or walk for even two hours in an eight-hour workday and could stand/walk for about

six hours in an eight-hour workday (Tr. 242). An unsigned assessment faxed to an SSA

office on February 13, 2014 states that due to vascular necrosis of the elbow and cervical and

lumbar disc disease, Plaintiff was limited to lifting less than 10 pounds occasionally and

standing/walking for two hours in an eight-hour workday (Tr. 243). 

C. Vocational Expert Testimony

VE Scott Silver classified Plaintiff’s former work as a cashier as unskilled at the light

level of exertion (Tr. 45). 

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

work experience:

[Sedentary . . . work with lifting five pounds on a frequent basis, 10 pounds at

the maximum level. She would have to have a sit/stand option, based upon her

own physical needs, provided with the customary breaks of 15 minutes every

two hours, and a 30 to 45 minute break at lunch time. Could she perform her

past relevant work, with these conditions? (Tr. 45). 

In response, the VE testified that the above limitations would preclude Plaintiff’s past

relevant work but would allow for work as a surveillance monitor (1,000 jobs in the local

economy); sorter (1,700); and telephone information clerk (1,300) (Tr. 45, 47-48). He

testified further that if Plaintiff’s allegations of limitations were fully credited, she would be

unable to perform any work due to daytime sleepiness, left-sided hearing loss, distractions

from constant pain, and knee instability (Tr. 46). The ALJ closed the hearing by ordering a

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consultative examination and requesting updated information from Plaintiff’s treating

physician (Tr. 50-51). 

D. The ALJ’s Decision

The ALJ began his opinion by noting that he was bound by a prior June 22, 2010

decision, barring new and material evidence of a change in Plaintiff’s condition (Tr. 10-11,

68-83)(citing Drummond v. Commissioner of Social Security, 126 F.3d 837 (6 Cir. 1997); th

Acquiescence Ruling 98-4(6)). Citing the medical records, the ALJ found that Plaintiff

experienced the severe impairments of “morbid obesity; obstructive sleep apnea;

degenerative changes in the left shoulder and elbow; bronchitis/chronic obstructive

pulmonary disease; arthralgia and osteoarthritis changes of the knees; degenerative

osteoarthritis changes in the lumbar spine; and hypertension” but that none of the conditions

met or equaled any impairment listed in 20 C.R.F. Part 404, Subpart P, Appendix 1 (Tr. 13-

14). The ALJ found that Plaintiff retained the residual functional capacity (“RFC”) for

sedentary work allowing her “to alternate between sitting and stand as she deems necessary

throughout the day” (Tr. 16). Citing the VE’s testimony, the ALJ found that while Plaintiff

was unable to perform her past relevant work, she could work as a surveillance monitor,

assembler, or sorter (Tr. 21). 

The ALJ discounted Plaintiff’s allegations of disability, noting that her claims of

limitation were undermined by “consistently benign clinical presentation, isolated

complaints, and [the] lack of remarkable findings with radiographic evidence” (Tr. 19). He

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noted that while Plaintiff claimed that she had not worked since 2010, “her earnings records

reveal that she worked as a home health aide throughout 2013” (Tr. 20). He noted that

Plaintiff had not received treatment from Dr. Sinkoff since July, 2013 (Tr. 18). 

 STANDARD OF REVIEW

The district court reviews the final decision of the Commissioner to determine

whether it is supported by substantial evidence. 42 U.S.C. §405(g); Sherrill v. Secretary of

Health and Human Services, 757 F.2d 803, 804 (6 Cir. 1985). Substantial evidence is more th

than a scintilla but less that a preponderance. It is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.

389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB,

305 U.S. 197, 229, S. Ct. 206, 83 L.Ed.126 (1938)). The standard of review is deferential and 

“presupposes that there is a ‘zone of choice’ within which decision makers can go either way,

without interference from the courts.” Mullen v. Bowen, 800 F.2d 535, 545 (6 Cir. th

1986)(en banc). In determining whether the evidence is substantial, the court must “take into

account whatever in the record fairly detracts 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

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 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).

ANALYSIS

Plaintiff, proceeding pro se, submits that she is unable to work due to neck, foot,

elbow, knee, and leg pain; lower extremity swelling; and incontinence. Plaintiff’s Brief, 2,

Docket #14; Reply, Docket #16. 

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A. Acquiscence Ruling 98-4(6)

ALJ Freedman found that Plaintiff’s condition had not materially worsened since the

June 22, 2010 decision by another ALJ (Tr. 10-11, 68-83). ALJ Freedman found that he was

bound by the earlier findings under Acquiscence 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 later fact-finder must adopt the previous RFC. (emphasis added). 1998 WL 274052

(June 1, 1998)(codifying Drummond v. Commissioner of Social Security, 126 F.3d 837 (6th

Cir. 1997)). 

ALJ Freedman did not err in finding that Plaintiff’s condition had not worsened since

the previous decision. 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 th

Health and Human Servs., 987 F.2d 1230, 1232-33 (6th Cir.1993)). The ALJ noted that

while Dr. Sinkoff recorded Plaintiff’s report of “generic back pain” on one occasion, the

treating records did not include clinical examination findings related to the condition (Tr.

17). The ALJ observed that although Plaintiff reported left elbow pain, she demonstrated a

normal range of motion and no swelling (Tr. 17). He noted that while Plaintiff complained

of shortness of breath in April, 2013, a physical examination and imaging studies were

essentially unremarkable (Tr. 18). He noted that Dr. Sinkoff did not recommend specialized

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treatment for the alleged back and knee conditions (Tr. 18). The ALJ also noted that Plaintiff

did not seek any treatment after July, 2013 (Tr. 18). 

As discussed by the ALJ, Dr. Bedia’s consultative findings of no pulmonary rales or

lower extremity swelling also stand at odds with Plaintiff’s claims of limitation (Tr. 18, 209-

212). The ALJ noted that Plaintiff demonstrated a normal gait and range of motion (Tr. 19,

209-210, 213,-214). He reasonably found that Plaintiff’s claims of extreme physical

limitation were undermined by her ability to perform some work as a home health aide in

2013 (Tr. 20). The ALJ also considered Plaintiff’s obesity in crafting the RFC for sedentary

work (Tr. 15) under SSR 02–1p, which requires an ALJ to perform an assessment of the

impact of the claimant's obesity on his or her functional abilities. 2002 WL 34686281

(September 12, 2002). 

B. Evidence Submitted After the Administrative Opinion

I have also considered whether the material submitted after the ALJ’s February 14,

2014 decision provides grounds for remand (Tr. 5, 242-243). 

Where the Appeals Council denies a claimant's request for a review of an application

based on new material (Tr. 5), the district court cannot consider that new evidence in

deciding whether to “uphold, modify, or reverse the ALJ's decision.” Cotton v. Sullivan, 2

F.3d 692, 696–696 (6th Cir.1993). Sentence six of 42 U.S.C. § 405(g) states that the court

“may at any time order additional evidence to be taken before the Commissioner of Social

Security, but only upon a showing that there is new evidence which is material and that there

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is good cause for the failure to incorporate such evidence into the record in a prior

proceeding ....” As such, this Court may consider the newer evidence only for purpose of

determining whether remand is appropriate under the sixth sentence of § 405(g). 

Even assuming that Plaintiff could provide “good cause” for the failure to submit the

newer evidence prior to the administrative decision, she cannot show that it is “material” to

the ALJ’s decision. To show that the newer evidence is material, the claimant “must

demonstrate that there was a reasonable probability that the Secretary would have reached

a different disposition of the disability claim if presented with the new evidence.” Sizemore

v. Secretary of Health & Human Services, 865 F.2d 709, 711 (6th Cir.1988). The February

17, 2014 assessment signed by Dr. Sinkoff states that Plaintiff was unable to perform any

work (Tr. 242). The assessment states further that Plaintiff experienced hypertension and

breathing problems and was unable to lift even 10 pounds on an occasional basis (Tr. 242). 

An opinion of limitation by a treating source is generally entitled to deference. See

Hensley v. Astrue, 573 F.3d 263, 266 (6th Cir.2009)(“[I]f the opinion of the claimant's

treating physician is well supported by medically acceptable clinical and laboratory

diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case

record, it must be given controlling weight”). As such, under some circumstances, a treating

opinion oflimitation pertaining to a claimant’s condition for the relevant period would satisfy

the materiality requirement for remand under the sixth sentence of 405(g). 

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Nonetheless, Dr. Sinkoff’s one-page assessment does not provide groundsforremand. 

First, Dr. Sinkoff’s statement that Plaintiff was unable to perform any work is not entitled

to any deference. The Commissioner, not a treating source, is responsible for deciding

whether a claimant meets “the statutorydefinition of disability.” 20 C.F.R. § 404.1527(d)(1). 

While a treating source opinion regarding a claimant's medical condition is entitled to

deference, the SSA “will not give any special significance to the source of an opinion on

issues reserved to the Commissioner.” § 404.1527(d)(3)(emphasis added). 

Second, as noted by the ALJ, Plaintiff did not receive treatment from Dr. Sinkoff or

any source after July, 2013. While Dr. Sinkoff’s found that “control of hypertension” and

“breathing” problems contributed to the disability, none of the treating or consultative

records support the conclusion that the conditions “can be expected to last for a continuous

period of not less than 12 months” as required by 42 U.S.C. §423(d)(1)(A) for a disability

finding. While Plaintiff received treatment for bronchitis in January and July, 2013 (Tr. 230,

235), records created in the interim show that she did not experience the condition

continuously (229). Dr. Sinkoff’s April, 2013 records specifically state that Plaintiff’s

“lungs [were] clear” (Tr. 230). In December, 2013, Dr. Bedia noted “no crackles or

wheezes” or the need for environmental restrictions due to lung problems (Tr. 209, 221). His

finding that Plaintiff experienced only “mildly elevated” blood pressure (Tr. 210) is

consistent with the treating records (Tr. 230). None of the evidence supports the finding that

Plaintiff experienced disabling lung conditions or hypertension continuously for at least 12

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months. 

Third, Dr. Sinkoff’s disability opinion is undermined by internal inconsistencies. 

Most confusingly, she found that Plaintiff was unable to stand or walk for even two hours

in an eight-hour workday or stand or walk for at least two hours, and that she could

stand/walk for about six hours in an eight-hour workday (Tr. 242). Dr. Sinkoff also found

both that Plaintiff could “sit less” than six hours and “sit about six hours” in an eight-hour

workday (Tr. 242). While Plaintiff also submitted an assessment on February 13, 2014

stating diagnoses of vascular necrosis of the elbow and cervical and lumbar disc disease, it

is unsigned by a medical source (Tr. 243) and thus not entitled to any weight. Moreover, the

unsigned assessment states that Plaintiff is capable of performing work limited to occasional

lifting of 10 pounds (Tr. 243). The unsigned document is not inconsistent with the RFC for

sedentary work found in the administrative decision (Tr. 16). For these reasons, a Sentence

Six remand for review of the new evidence is not warranted. 

After considering Plaintiff’s motion and reviewing the transcript for other possible

grounds for remand, I conclude that the the ALJ’s decision is well within the “zone of

choice” accorded the administrative fact-finder and thus, should not be disturbed by this

Court. Mullen supra, 800 F.2d at 545. 

 CONCLUSION

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

Judgment [Docket #15] be GRANTED, and that Plaintiff’s Motion for Summary Judgment

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[Docket #14] be DENIED. 

Any objections to this Report and Recommendation must be filed within 14 days of

service of a copy hereof as provided for in 28 U.S.C. §636(b)(1) and E.D. Mich. LR

72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of

appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v.

Secretary of HHS, 932 F.2d 505 (6 Cir. 1991); United States v. Walters, 638 F.2d 947 (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. 

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. 

Dated: June 21, 2016 s/R. Steven Whalen 

R. STEVEN WHALEN

UNITED STATES MAGISTRATE JUDGE

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CERTIFICATE OF SERVICE

I hereby certify on June 21, 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 June 21, 2016.

s/Carolyn M. Ciesla 

Case Manager for the 

Honorable R. Steven Whalen 

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