UNITED STATES DISTRICT COURT

EASTERN DISTICT OF MICHIGAN

SOUTHERN DIVISION

BOBBIE IRENE COX,

Plaintiff, Civil Action No. 15-12114

 Honorable Victoria A. Roberts

v. Magistrate Judge Elizabeth A. Stafford

 

CAROLYN W. COLVIN, 

Acting Commissioner of 

Social Security,

 

Defendant. 

___________________________/

REPORT AND RECOMMENDATION

ON CROSS-MOTIONS FOR SUMMARY JUDGMENT [R. 14, 16] 

Plaintiff Bobbie Cox appeals a final decision of defendant 

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

for supplemental security income benefits (“SSI”) under the Social Security 

Act (the “Act”). Both parties have filed summary judgment motions, 

referred to this Court for a Report and Recommendation pursuant to 28 

U.S.C. § 636(b)(1)(B). The Court finds that the administrative law judge’s 

(“ALJ”) decision is supported by substantial evidence, and thus 

RECOMMENDS that:

• the Commissioner’s motion [R. 16] be GRANTED;

• Cox’s motion [R. 14] be DENIED; and

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• the Commissioner’s decision be AFFIRMED, pursuant to sentence 

four of 42 U.S.C. § 405(g).

I. BACKGROUND 

A. Cox’s Background and Disability Application

Cox was 45 years old when she submitted her application for SSI in 

June 2014. [R. 7-2, Tr. 35; R. 7-3, Tr. 79]. She dropped out of school in the 

11th grade and has previously worked as a cleaner. [R. 7-6, Tr. 226; R. 7-

7, Tr. 282-94]. She alleged disabling impairments of bipolar disorder, 

posttraumatic stress disorder (PTSD), social anxiety, depression, and panic 

attacks, with an alleged onset date of January 1, 2012. [R. 7-3, Tr. 79]. 

After a December 1, 2014 oral hearing, Cox’s application for SSI benefits 

was denied in a written decision on December 22, 2014. [R. 7-2, Tr. 35-

45]. The Appeals Council denied review, making the ALJ's decision the 

final decision of the Commissioner. [Id., Tr. 1-7]. Sampson timely filed for 

judicial review. [R. 1].

B. The ALJ’s Application of the Disability Framework 

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

activity by reason of any medically determinable physical or mental 

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

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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 determines whether an applicant is disabled by 

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

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

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

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

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

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

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

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

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

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

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

education and work experiences, and determines whether the claimant 

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

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

 

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

physical or mental ability to do basic work activities.” § 920(c).

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

F.3d 1107, 1110 (6th Cir. 1994). 2

Applying this framework, the ALJ concluded that Cox was not 

disabled. At the first step, he found that Cox had not engaged in substantial 

gainful activity since the filing date of the application. [R. 7-2, Tr. 35]. At the 

second step, he found that Cox had the severe impairments of bipolar 

disorder, anxiety disorder, cannabis dependence, and carpal tunnel 

syndrome. [Id., Tr. 37]. Next, the ALJ concluded that Cox’s impairments did 

not meet or equal a listing. [Id., Tr. 13-14]. 

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

perform medium work as defined in 20 C.F.R. § 416.967(c) with the 

following exceptions:

Avoid all exposure to unprotected heights and hazardous machinery; 

avoid all operation of motor vehicles; frequent handling and fingering 

with the left upper extremity; avoid concentrated exposure to 

vibration; limited to simple, routine, and repetitive unskilled tasks 

performed at SVP1 or SVP2 as defined in the DOT, free of fast paced 

production requirements with few, if any work place changes; 

occasional interaction with supervisors and co-workers; no tandem 

tasks with co-workers; and no interaction with the general public.

[Id., Tr. 39]. At the fourth step, the ALJ found that Cox was able to perform 

her past relevant work as a cleaner, and thus was not disabled. [Id., Tr. 22]. 

 

2 Opinions analyzing applications for Disability Insurance Benefits are 

applicable because the same standards apply to SSI claims. See 20 

C.F.R. §§ 404.1520 and 416.920.

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II. ANALYSIS

A.

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

whether the Commissioner’s decision is supported by substantial evidence 

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

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

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

relevant evidence as a reasonable mind might accept as adequate to 

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

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

evidence in the record below may be considered when determining 

whether the prior decision is supported by substantial evidence. Bass v. 

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

The significant deference accorded the Commissioner’s decision is 

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

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

making a determination, including all objective medical evidence, medical 

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

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

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

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

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

The Commissioner must also adhere to its own procedures, but

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

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

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

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

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

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

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

940 (6th Cir. 2011). 

Cox argues that the ALJ erred in weighing the opinion evidence in 

the record and in assessing her RFC and credibility. In making her 

arguments, Cox cites to the record but not to legal authority that supports 

her request for remand. Cox and her counsel are warned that “issues 

adverted to in a perfunctory manner, unaccompanied by some effort at 

developed argumentation, are deemed waived. It is not sufficient for a 

party to mention a possible argument in the most skeletal way, leaving the 

court to ... put flesh on its bones.” McPherson v. Kelsey, 125 F.3d 989, 

995-96 (6th Cir. 1997) (citation and internal quotation marks omitted). 

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Nonetheless, the Court thoroughly reviewed the record and, for the reasons 

stated below, finds that substantial evidence supports the ALJ’s decision

and that Cox’s refusal to take prescribed psychotropic medications 

precludes her from being eligible for SSI benefits.

B.

Deborah Casey, L.M.S.W and Duncan Magoon, M.D are both 

associated with Hope Network. Prior to the ALJ’s decision, Casey had 

examined and provided therapy for Cox on several occasions from October 

3, 2013 until September 4, 2014. [R. 7-7, Tr. 228-59, 281-82, 371-72, 375-

76]. Her reports describe Cox as depressed, stressed, anxious, irritable, 

susceptible to explosive anger, but also compulsively clean, cooperative, 

polite, appropriate, possessing a coherent thought process and capable of 

communicating clearly and understanding communication from others. 

[Id.]. Casey assessed Cox as being “totally self sufficient” in all listed daily 

activities, including household responsibilities, shopping, handling personal 

finances, traveling, recognizing and avoiding common dangers, and use of 

medical and other community services, and as being highly or generally 

typical in all listed work skills, except that she was somewhat typical in her 

ability to sustain work. [Id., Tr. 257]. 

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Casey’s reports note that Cox, out of fear, will not take prescribed 

psychotropic medications and instead prefers natural options, primarily 

marijuana. [Id., Tr. 238-39, 263, 248, 258, 265-66, 303-06, 316-19, 320-23, 

371-72]. Although some of these reports describe Cox’s use of marijuana 

as being sporadic or in the past, her and Casey’s testimony at the hearing 

indicated that she had obtained a medical marijuana card and smoked 

marijuana every evening, despite professional advice that she quit and 

instead use low doses of prescribed medications. [R. 7-2, Tr. 61-62, 72-

73].

It appears that Dr. Magoon evaluated Cox only once during the 

relevant time period – in December 2013. [R. 7-7, Tr. 267-75]. He scored 

Cox as having mild depression, recorded her report that she had walked off 

jobs and cannot work or tolerate people, and noted that she does not take 

pills because she “really only wants some magic therapy.” [Id., Tr. 267-69]. 

Dr. Magoon described Cox as pleasant, clean, whimsical, funny and 

pleasant and self-aware, with normal eye contact and speech and no 

psychosis, but also as having panic attacks when meeting new people, 

having a labile mood, having racing thoughts that interfere with her 

attention, having minimal insight, and as being impulsive and self-aware. 

[Id., Tr. 273]. He diagnosed Cox with “bipolar depressed” and cannabis 

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dependence, noting her reluctance to take prescribed medication, which he 

described as “a major deterrent.” [Id., Tr. 274]. Dr. Magoon assessed Cox 

with a Global Assessment of Functioning (GAF) score of 50, which 

suggests serious impairment of function.3 [Id.].

C.

Casey issued an opinion letter on September 17, 2014, and a 

medical source statement on October 23, 2014 that was also signed off on 

by Dr. Magoon. [Id., Tr. 295, 444-46]. In Casey’s very brief letter, she 

opines that Cox is diagnosed with “Bipolar Depressed, Anxiety Disorder 

and Posttraumatic Stress Disorder,” and that Cox is unable to work due to 

the severity of her symptoms. [R. 7-7, Tr. 295]. The ALJ correctly noted that 

Casey, as a clinical therapist, is not an acceptable medical source, and that 

the opinion is not a medical source statement. [R. 7-2, Tr. 43]. 20 C.F.R. § 

416.913(a); 20 C.F.R. § 416.927(a)(2). A therapist’s opinion is still 

considered as evidence from “other sources.” 20 C.F.R. § 416.913(d)(1). 

But “[t]he mere diagnosis of [a condition], of course, says nothing about the 

severity of the condition,” Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir.

 

3 “The GAF scale is a method of considering psychological, social, and 

occupational function on a hypothetical continuum of mental health. The 

GAF scale ranges from 0 to 100, with serious impairment in functioning at a 

score of 50 or below.” Norris v. Comm'r of Soc. Sec., No. 11–5424, 461 F. 

Appx. 433, 436 n. 1 (6th Cir. 2012)

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1988), and as the ALJ observed, Casey’s opinion did not include particular 

medical or clinical findings. [R. 7-2, Tr. 43]. In addition, the ALJ had no 

obligation to give weight to Casey’s opinion that Cox cannot work, as that is 

an issue reserved for the Commissioner. See Brock v. Comm’r of Soc. 

Sec., 368 Fed. Appx. 622, 625 (6th Cir. 2010). Since this was the extent of 

Casey’s opinion letter, the ALJ acted within his discretion when he 

accorded it little weight.

The ALJ also accorded little weight to the October 2014 medical 

source statement, which was signed by both Casey and Dr. Magoon, 

though he addressed it as only Dr. Magoon’s opinion. [R. 7-2, Tr. 44]. 

Casey and Dr. Magoon opined that Cox had marked restrictions in her 

abilities to understand and remember complex instructions; interact 

appropriately with the public, supervisors and co-workers; and extreme 

restrictions in her abilities to carry out complex instructions, make 

judgments on complex work-related decisions, and respond appropriately 

to usual work situations and to changes in a routine work setting. [R. 7-7, 

Tr. 444-45]. 

In objecting to the weight given to this opinion, Cox refers to Dr. 

Magoon as her treating physician. The “treating physician rule” requires an 

ALJ to give controlling weight to a treating physician's opinions regarding 

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the nature and severity of a claimant's condition when those opinions are 

well-supported by medically acceptable clinical and diagnostic evidence, 

and not inconsistent with other substantial evidence. Gentry, 741 F.3d at 

723, 727-29; Rogers, 486 F.3d at 242-43. “A physician qualifies as a 

treating source if the claimant sees her ‘with a frequency consistent with 

accepted medical practice for the type of treatment and/or evaluation 

required for [the] medical condition.’” Smith v. Comm’r of Soc. Sec., 482 

F.3d 873, 876 (6th Cir. 2007) (quoting 20 C.F.R. § 404.1502). Having 

evaluated Cox only once, Dr. Magoon does not qualify as a treating 

physician under this rule. “Indeed, depending on the circumstances and the 

nature of the alleged condition, two or three visits often will not suffice for 

an ongoing treatment relationship.” Kornecky v. Comm’r of Soc. Sec., 167 

Fed. Appx. 496, 506, n.10 (6th Cir. 2006).

Having said that, the ALJ was still required to properly weigh Dr. 

Magoon’s opinion under 20 C.F.R. § 404.1527(c) and § 416.927(c). With 

respect to all medical opinions, the ALJ was required to consider “the 

examining relationship (if any); the length, nature and extent of the 

treatment relationship (if any); supportability of the opinion; consistency of 

the opinion with the record as a whole; the specialization of the source; and 

any other relevant factors which tend to support or contradict the opinion.” 

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Brumbaugh v. Comm’r of Soc. Sec., 989 F. Supp. 2d 690, 695 n. 5 (S.D. 

Ohio 2013) (citing Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 375 

(6th Cir. 2013).

The ALJ found that the “marked and extreme limitations” in Dr. 

Magoon’s opinion were “out of proportion” with the objective medical 

evidence, noting that several records indicate that Cox was maintaining 

psychiatric stability. [R. 7-2, Tr. 44; R. 7-7, Tr. 238, 240, 242, 244, 371].

The ALJ additionally noted that Cox had taken guardianship of her adult 

son and testified to being able to care for him. [R. 7-2, Tr. 44, 57]. The 

ALJ gave partial weight to Dr. Magoon’s assessment that Cox had a GAF 

of 50, emphasizing Cox’s refusal to follow treatment recommendations. 

“The claimant cannot qualify for benefits by causing a worsening of her 

condition by refusing to follow treatment.” [Id.]. 

Having given partial weight to Dr. Magoon’s GAF assessment, the 

ALJ crafted an RFC that limited Cox to simple, routine, and repetitive 

unskilled tasks, free of fast paced production requirements with few, if any 

work place changes, only occasional interaction with supervisors and coworkers, no tandem tasks with co-workers, and no interaction with the 

general public. [Id., Tr. 39]. Cox bears the burden of proving that she 

requires a more restrictive RFC. Her v. Comm'r of Soc. Sec., 203 F.3d 388, 

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391 (6th Cir. 1999); Jordan v. Comm'r of Soc. Sec., 548 F.3d 417, 423 (6th 

Cir. 2008). In attempting to sustain that burden, Cox relies upon Dr. 

Magoon’s and Casey’s treatment notes and opinions. [R. 14, 506-08]. 

Taking issue with the ALJ’s reliance on her refusal to take psychotropic 

drugs, she argues, “One need only go online or visit the herbal section of 

any drug store to know that the Claimant is not alone in her mistrust of big 

drug companies.” [R. 14, PgID 509]. Cox charges that the ALJ is overly 

concerned with her use of marijuana to calm her nerves, and that the ALJ 

should not expect her to have a rational explanation for her fear of 

psychotropic drugs given her mental illness. [Id.].

But the conundrum of Cox’s argument is that both Dr. Magoon and 

Casey have advised against Cox’s use of marijuana, and Dr. Magoon 

referred to her refusal to take prescribed psychotropic drugs as “a major 

deterrent.” [R. 7-7, Tr. 274]. Cox cannot credibly insist that the ALJ should 

have paid greater heed to Dr. Magoon’s and Casey’s opinions but at the 

same time fault the ALJ for finding that her functioning is hampered by her 

refusal to comply with their prescribed treatment.

More importantly, the ALJ’s insistence that Cox follow prescribed 

treatment before being granted SSI benefits is required by the law. The 

application regulation mandates, “If you do not follow the prescribed 

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treatment without a good reason, we will not find you disabled . . . .” 20 

C.F.R. § 416.930(b). There are limited exceptions to this rule, which 

include religious objections, major surgeries or amputations. § 416.930(c). 

Cox’s subjective fear of psychotropic medications is not an acceptable 

exception under § 416.930(c). Awad v. Sec’y of Health & Human Servs., 

734 F.2d 288, 289-90 (6th Cir. 1984) (upholding determination that 

claimant was not entitled to disability benefits because there was no 

objective evidence supporting fear of laminectomy). And even if popular 

opinion provides some principled support for Cox’s use of marijuana for 

medicinal purposes, federal and Social Security law do not. 

The Court thus finds that the weight that the ALJ gave to Casey’s and 

Dr. Magoon’s opinions was supported by substantial evidence, in that he 

was not required to give controlling weight to either opinion; he partially 

incorporated Dr. Magoon’s opinion by assessing an RFC with nonexertional limitations; he did not err in relying on Cox’s refusal to take 

medications given that Dr. Magoon’s called that refusal a major deterrent; 

and in fact Cox’s refusal to follow treatment advice renders her ineligible for 

SSI benefits. 

D.

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On a final and brief note, Cox complains that the ALJ’s assessment of 

her exertional RFC was deficient because it only places “handling and 

fingering restrictions” on her left hand, while the medical record indicated 

positive Phalens and Tinnel’s signs bilaterally. [R. 14, PgID 510, citing R. 

7-7, Tr. 314-15, 317, 392]. This argument is without merit because the 

record describes Cox as having pain in the left hand, [R. 7-7, Tr. 317];

because Cox testified that the carpal tunnel affected her left hand, [R. 7-2, 

Tr. 59-60]; and because Cox’s attorney told the ALJ that, although she had 

some problems with carpal tunnel, “this is primarily an emotional, non 

exertional type case.” [Id., Tr. 55].

III. CONCLUSION

The Court RECOMMENDS that the Commissioner’s motion for 

summary judgment [R. 16] be GRANTED, that Cox’s motion for summary 

judgment [R. 14] be DENIED, and the Commissioner’s decision be 

AFFIRMED pursuant to sentence four of 42 U.S.C. § 405(g).

s/Elizabeth A. Stafford

ELIZABETH A. STAFFORD

United States Magistrate Judge

Dated: August 16, 2016

NOTICE TO THE PARTIES REGARDING OBJECTIONS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

may rule without awaiting the response.

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

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

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

disclosed on the Notice of Electronic Filing on August 16, 2016.

s/Marlena Williams

MARLENA WILLIAMS

Case Manager

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