UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

DWAYNE BLAKELY,

CASE NO. 1:15-cv-10625

Plaintiff,

DISTRICT JUDGE LAURIE J. MICHELSON

v. MAGISTRATE JUDGE PATRICIA T. MORRIS

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

____________________________________/

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION ON CROSS 

MOTIONS FOR SUMMARY JUDGEMENT

(Docs. 9, 10)

I. RECOMMENDATION

In light of the entire record in this case, I suggest that substantial evidence supports the 

Commissioner’s determination that Plaintiff is not disabled. Accordingly, IT IS 

RECOMMENDED that Blakely’s Motion for Summary Judgment (Doc. 9) be DENIED and 

that the Commissioner’s Motion for Summary Judgment (Doc. 10) be GRANTED.

II. REPORT

A. Introduction and Procedural History

Pursuant to 28 U.S.C. § 636(b)(1)(B), E.D. Mich. LR 72.1(b)(3), and by Notice of 

Reference, this case was referred to this magistrate judge for the purpose of reviewing a final 

decision by the Commissioner of Social Security (“Commissioner”) denying Plaintiff’s claims 

for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act 42 U.S.C. § 

401-34 and Supplemental Security Income (“SSI”). The matter is currently before the Court on 

cross-motions for summary judgment. (Docs. 9, 10.)

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On January 5, 2012, Plaintiff Dwayne Blakely filed the present claim for DIB, alleging 

that he became disabled on December 12, 2011. (Tr. 71, 82.) Plaintiff’s initial claim was 

denied on April 20, 2012 (Tr. 85), and Plaintiff requested a hearing. (Doc. 95.) He testified 

before Administrative Law Judge (“ALJ”) Ramona Fernandez on October 24, 2013, who 

considered the application for benefits de novo. (Tr. 29-59.) On November 21, 2013, the ALJ 

denied his claim. (Tr. 13-23.) The ALJ’s decision became the Commissioner’s final decision 

on January 22, 2015, when the Appeals council denied Plaintiff’s request for review. (Tr. 1-3.); 

see Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004). On February 19, 

2015, Plaintiff filed the instant suit seeking judicial review of the Commissioner’s unfavorable 

decision. (Pl compl., Doc. 1.) 

B. Standard of Review

The district court has jurisdiction to review the Commissioner’s final administrative 

decision pursuant to 42 U.S.C. § 405(g). The district court’s review is restricted solely to 

determining whether the “Commissioner has failed to apply the correct legal standards or has 

made findings of fact unsupported by substantial evidence in the record.” Sullivan v. Comm’r 

of Soc. Sec., 595 F. App’x 502, 506 (6th Cir. 2014) (internal citations 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).

The Court must examine the administrative record as a whole, and may consider any 

evidence in the record, regardless of whether it has been cited by the ALJ. See Walker v. Sec’y 

of Health and Human Servs., 884 F.2d 241, 245 (6th Cir. 1989). The Court will not “try the 

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case de novo, nor resolve conflicts in the evidence, nor decide questions of credibility.” Cutlip 

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

C. Framework for Disability Determinations

Under the Act, “DIB and SSI are available only for those who have a ‘disability.’”

Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). “Disability” means 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 [twelve] months.

42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (DIB); 20 C.F.R. § 416.905(a) (SSI). The 

Commissioner’s regulations provide that 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 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.

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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 

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

experience, benefits are denied.

20 C.F.R. §§ 404.1520, 416.920; see also Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534 

(6th Cir. 2001). “Through step four, the claimant bears the burden of proving the existence and 

severity of limitations caused by her impairments and the fact that she is precluded from 

performing her past relevant work.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 

2003); see also Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 540 (6th Cir. 2007). The burden 

transfers to the Commissioner if the analysis reaches the fifth step without a finding that the 

claimant is not disabled. Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006). At 

the fifth step, the Commissioner is required to show that “other jobs in significant numbers 

exist in the national economy that [the claimant] could perform given her RFC [residual 

functional capacity] and considering relevant vocational factors.” Rogers, 486 F.3d at 241 

(citing 20 C.F.R. §§ 416.920(a)(4)(v), (g)).

D. ALJ Findings

Following the five step analysis, the ALJ found Plaintiff was not disabled under the Act. 

At Step One, the ALJ found that Plaintiff met the insured status requirements through 

December 31, 2016, and had not engaged in substantial gainful activity since the alleged onset 

date, December 12, 2011. (Tr. 15.) At Step Two, the ALJ found Plaintiff had the following 

severe impairments: “osteoarthritis with back and right shoulder pain and obesity.” (Tr. 16.) At 

Step Three, the ALJ found that Plaintiff’s combination of impairments did not meet or equal 

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one of the listings in the regulations. (Tr. 18.) The ALJ then found that Blakely had the residual 

functional capacity (“RFC”) to perform light work except he “can occasionally stoop, crouch 

and balance. He cannot kneel, crawl, climb or use ladders, ropes or scaffolds. . . . [H]e requires 

the opportunity to sit after standing for 10 minutes. [He] can frequently reach over should[er] 

height with his right upper extremity. [And] he should avoid moving machinery, work at 

unprotected heights and concentrated exposure to extreme temperatures.” (Tr. 18.) At Step 

Four, the ALJ found that Plaintiff is capable of performing his past relevant work as a drafter. 

(Tr. 22.) As a result, the ALJ found Plaintiff is not disabled under the Act. (Id.)

E. Administrative Record

Plaintiff’s medical records are dated from February 9, 2012 through March 13, 2013. 

Plaintiff primarily received treatment for physical impairments. (Tr. 362-420.) The only issue 

on appeal is Plaintiff’s major depressive and generalized anxiety disorders. (Doc. 9.) Thus, the 

following summary of the record is limited to the relevant evidence. 

In May and October of 2011 Plaintiff’s records from Garden City Medical Center 

indicate that he was diagnosed with anxiety disorder. (Tr. 287-88.) He was also diagnosed with 

depression as early as December 2010. (Tr. 307.)

On April 2, 2012 Plaintiff was diagnosed with chronic depression. (Tr. 331.) State 

consultative examining psychiatrist, Basivi Baddigam, M.D. assessed Plaintiff with Dysthymic 

Disorder and a history of alcohol dependence. (Tr. 339.) Dr. Baddigam assessed a GAF score 

of 60, and noted that his prognosis was guarded. (Id.) Plaintiff reported a history of panic 

attacks, but that he has not had one in the past year. (Tr. 337.) He also stated that he has been 

depressed for four years. (Tr. 338.) Dr. Baddigam found that Plaintiff “does not have any 

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memory problems[, and] [h]e is able to understand, remember and follow through with 

directions when they are given to him. (Id.) Dr. Baddigam also found that Plaintiff’s “thinking 

process is well organized and easy to follow.” (Tr. 338.) 

On April 16, 2012, Daniel Blake, Ph.d., a non-examining state agency psychologist, 

assessed Plaintiff’s affective disorder as a severe impairment. (Tr. 75.) Dr. Blake noted that 

Plaintiff’s psychomotor was normal, he had limited insight, and his thinking process was well 

organized. (Id.) Plaintiff reported that he was prescribed trazodone for depression, and had not 

received treatment for depression or anxiety for the past two years. (Id.) A GAF score of 60

was noted. (Id.) The state psychologist competed a mental RFC assessment and found Plaintiff 

moderately limited in the ability to understand and remember detailed instructions; the ability 

to maintain attention and concentration for extended periods; the ability to complete a normal 

workday and workweek without interruptions from psychologically based symptoms and to 

perform at a consistent pace without an unreasonable number and length of rest periods; the 

ability to get along with coworkers or peers without distracting them or exhibiting behavioral 

extremes; the ability to maintain socially appropriate behavior and to adhere to basic standards 

of neatness and cleanliness; and the ability to set realistic goals or make plans independently of 

others. (Tr. 78-79.) He explained that Plaintiff’s “mental functions remained sufficient for 

sustained simple work activity.” (Tr. at 79.) 

Plaintiff received psychiatric treatment from the Development Centers, Inc. from May 

29, 2013 through July 30, 2013. (Tr. 421-65.) On May 29, Plaintiff was diagnosed with major 

depressive disorder, recurrent, moderate; generalized anxiety disorder; and alcohol 

dependence. (Tr. 426, 459.) Plaintiff had a GAF score of 50. (Tr. 426.) The following 

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symptoms were noted: “a depressed and anxious mood, sleep disturbance, nightmares, 

hopelessness, and helplessness.” (Tr. 426.) His mental status was described on a checklist as: 

oriented x4; fair grooming; no hallucinations; depressed mood; fair hygiene; organized and 

coherent thought content; no ideations; cooperative behavior; anxious and constricted affect; 

goal directed speech; and fair concentration. (Tr. 425, 445.) He was prescribed Celexa, 

Seroquel, and Trazodone. (Tr. 446.) On April 16, 2013, during a comprehensive assessment, 

Plaintiff reported that he had previously been hospitalized for alcoholism and depression. (Tr. 

428, 430.) His diagnosis was not changed and a GAF score of 53 was noted. (Tr. 436.)

On June 26, 2013, a medication review was completed. Plaintiff reported skipping 

dosages. (Tr. 438.) A box was checked off indicating that the medication was addressing 

Plaintiff’s current symptoms. (Tr. 438.) The mental status checklist was completed again with 

similar results, except that Plaintiff was described as “mildly depressed.” (Tr. 440.) Blakey’s

diagnosis was not changed, except that he was assessed with a GAF of 50. Treatments notes on

June 26 and July 2, 2013 indicate that Plaintiff was making an effort to cope with his 

depression. (Tr. 452-53, 448.) Throughout his treatment at the Development Centers it was 

consistently noted that Plaintiff presented with a “normal” mood. (Tr. 450, 448, 456, 458, 462, 

464.)

During the hearing before the ALJ, Plaintiff testified that he cannot concentrate or think

straight and he has some suicidal ideation. (Tr. 46.) He testified that has not received treatment 

for depression since July because he was incarcerated, but he has been regularly taking his 

medication (Tr. 44, 55.) He stated that he has set an appointment for treatment and he is “under 

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a severe depression as of right now.” (Tr. 47.) He also testified that sometimes his medication 

does not help. (Tr. 47.) 

F. Governing Law

Plaintiff contends that the ALJ’s decision is not supported by substantial evidence. 

(Doc. 9.) As noted earlier, if the Commissioner’s decision is supported by substantial evidence 

the decision must be affirmed even if this Court would have decided the matter differently and 

even where substantial evidence supports the opposite conclusion. Cutlip, 25 F.3d at 286. In 

other words, where substantial evidence supports the ALJ’s decision it must be upheld. 

Specifically, Plaintiff contends that the ALJ’s finding that Plaintiff’s anxiety disorder 

and depression were not severe is not supported by substantial evidence. (Doc. 9, at 7-9.) At 

Step Two of the five-step sequential evaluation process, if the claimant “does not have any 

impairment . . . which significantly limits [his or her] physical or mental ability to do basic 

work activities” the Commissioner will find that the claimant “does not have a severe 

impairment and [is] therefore, not disabled.” 20 C.F.R. § 404.1520. The commissioner does not 

consider vocational factors, that is, age, education and work experience, at this step. 20 C.F.R. 

§ 404.1520. Basic work activities include (1) physical functions such as walking and lifting; 

(2) visual, auditory, and verbal capacities; (3) mental functioning; (4) judgment; (5) ability to 

respond appropriately to communications; and (6) ability to deal with changes in the work 

setting. 20 C.F.R. § 404.1521(b). 

In the Sixth Circuit, “the claimant’s burden of proof at step two has been construed as a 

de minimus hurdle in the disability determination process. . . . [A]n impairment can be 

considered not severe only if it is a slight abnormality that minimally affects work ability 

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regardless of age, education, and experience.” Germany-Johnson v. Comm’r of Soc. Sec., 313 

F. App’x 771, 774 (6th Cir. 2008) (quoting Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988); 

see also Bowen v. Yuckert, 482 U.S. 137, 158-59 (1987). The second step, then, is a vehicle to 

“screen out totally groundless claims.” Farris v. Sec’y of Health and Human Servs., 773 F.2d 

85, 89 (6th Cir. 1985).

G. Analysis 

At Step Two, the ALJ found that Plaintiff has the following severe impairments: 

“osteoarthritis with back and right shoulder pain and obesity.” (Tr. 16.) Plaintiff contends that 

the ALJ improperly omitted Plaintiff’s depression and anxiety disorders. (Doc. 9 at 7-9.) 

However, Plaintiff fails to recognize that once Step Two is “cleared” by a finding that some 

severe impairment exists, then the ALJ must consider a plaintiff’s “severe and nonsevere 

impairments in the remaining steps of the sequential analysis.” Anthony v. Astrue, 266 Fed. 

Appx. 457, 457 (6th Cir. 2008); Pompa v. Comm’r of Soc. Sec., 73 Fed. Appx. 801, 803 (6th 

Cir. 2003). “The fact that some of [the plaintiff’s] impairments were not deemed to be severe at 

step two is therefore legally irrelevant.” Astrue, 266 Fed. Appx. at 457.

Here, the ALJ specifically considered Plaintiff’s mental health impairments in Step Two 

of the analysis and found that they were not severe. (Doc. 16.) However, he did find that 

Plaintiff had a severe impairment. (Doc. 16-18.) In making the RFC assessment, the ALJ 

specifically discussed plaintiff’s depression and anxiety disorders. (Tr. 21.) Consequently, any 

alleged omission from the list of severe impairments does not undermine the ALJ’s decision. 

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G. Conclusion

For the reasons stated above, the Court RECOMMENDS that Blakely’s Motion for 

Summary Judgment (Doc. 9) be DENIED, the Commissioner’s Motion (Doc. 10) be 

GRANTED, and that this case be AFFIRMED. 

III. REVIEW

Pursuant to Rule 72(b)(2) of the Federal Rules of Civil Procedure, “[w]ithin 14 days 

after being served with a copy of the recommended disposition, a party may serve and file 

specific written objections to the proposed findings and recommendations. A party may 

respond to another party’s objections within 14 days after being served with a copy.” Fed. R. 

Civ. P. 72(b)(2); see also 28 U.S.C. § 636(b)(1.) 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. Sec’y of Health & Human Servs., 932 F.2d 505 (6th Cir. 1991); United 

States v. Walters, 638 F.2d 947 (6th Cir. 1981.) The parties are advised that making some 

objections, but failing to raise others, will not preserve all the objections a party may have to 

this Report and Recommendation. Willis v. Sec’y of Health & Human Servs., 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.) Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served 

upon this magistrate judge. 

Any objections must be labeled as “Objection No. 1,” “Objection No. 2,” etc. Any 

objection must recite precisely the provision of this Report and Recommendation to which it 

pertains. Not later than 14 days after service of an objection, the opposing party may file a 

concise response proportionate to the objections in length and complexity. Fed. R. Civ. P. 

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72(b)(2); E.D. Mich. LR 72.1(d.) The response must specifically address each issue raised in 

the objections, in the same order, and labeled as “Response to Objection No. 1,” “Response to 

Objection No. 2,” etc. If the Court determines that any objections are without merit, it may rule 

without awaiting the response.

Date: December 22, 2015 s/ Patricia T. Morri

Patricia T. Morris

United States Magistrate Judge

CERTIFICATION

I hereby certify that this filing was electronically served on counsel of record. 

Date: December 22, 2015 By s/Kristen Krawczyk, 

Case Manager to Magistrate Judge Morris

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