UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MARISOL J. ARROYO,

Plaintiff, CASE NO. 14-CV-14358

v. DISTRICT JUDGE LAURIE J. MICHELSON

MAGISTRATE JUDGE PATRICIA T. MORRIS

COMMISSIONER OF

SOCIAL SECURITY,

Defendant.

___________________________/

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

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 Plaintiff’s Motion for Summary Judgment be DENIED and that

Defendant’s Motion for Summary Judgment 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 the

Commissioner’s decision denying Plaintiff’s claims for a period of disability and Disability

Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). (Doc. 2). This matter is

currently before the Court on cross-motions for summary judgment. (Docs. 12, 13.)

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Plaintiff Marisol J. Arroyo was 36 years of age at the time of the most recent administrative

hearing. (Transcript, Doc. 8 at 46.) Plaintiff’s work history includes employment as a child care

provider for two years, and an unskilled general laborer for seven years. (Tr. at 223.) Plaintiff filed

the instant claims on August 8, 2012, alleging that she became unable to work on January 1, 2008.

(Tr. at 190, 197.) The claims were denied at the initial administrative stage. (Tr. at 97, 98.) In

denying Plaintiff’s claims, the Commissioner considered asthma and affective disorders as possible

bases for disability. (Id.) On June 4, 2013, Plaintiff appeared before Administrative Law Judge

(“ALJ”) Gregory Holiday, who considered the application for benefits de novo. (Tr. at 70-96.) In

a decision dated August 13, 2013, the ALJ found that Plaintiff was not disabled. (Tr. at 16-35.) A

previous application had been denied on April 20, 2009. (Tr. at 143.) On August 29, 2013, Plaintiff

requested a review of the August 13, 2013 decision. (Tr. at 14-15.)

The ALJ’s decision became the final decision of the Commissioner, see Wilson v. Comm’r

of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004), on September 15, 2014, when the Appeals

Council denied Plaintiff’s request for review. (Tr. at 1-6.) On November 13, 2014, Plaintiff filed

the instant suit seeking judicial review of the Commissioner’s unfavorable decision.

B. Standard of Review

In enacting the social security system, Congress created a two-tiered structure in which the

administrative agency handles claims and the judiciary merely reviews the determination for

exceeding statutory authority or for being arbitrary and capricious. Sullivan v. Zebley, 493 U.S.

521, 110 S. Ct. 885, 890, 107 L. Ed. 2d 967 (1990). The administrative process itself is

multifaceted in that a state agency makes an initial determination that can be appealed first to the

agency itself, then to an ALJ, and finally to the Appeals Council. Bowen v. Yuckert, 482 U.S. 137,

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142, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987). If relief is not found during the administrative

review process, the claimant may file an action in federal district court. Id.; Mullen v. Bowen, 800

F.2d 535, 537 (6th Cir. 1986) (en banc).

This Court has original 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). See also Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). In deciding

whether substantial evidence supports the ALJ’s decision, “we do 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). See also Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).

“It is of course for the ALJ, and not the reviewing court, to evaluate the credibility of

witnesses, including that of the claimant.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th

Cir. 2007). See also Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 542 (6th Cir. 2007) (the “ALJ’s

credibility determinations about the claimant are to be given great weight, ‘particularly since the

ALJis charged with observing the claimant’s demeanor and credibility’”) (citing Walters, 127 F.3d

at 531 (“Discounting credibility to a certain degree is appropriate where an ALJ finds

contradictions among medical reports, claimant’s testimony, and other evidence”)); Jones v.

Comm’r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003) (an “ALJ is not required to accept a

claimant’s subjective complaints and may . . . consider the credibility of a claimant when making

a determination of disability”). “However, the ALJ is not free to make credibility determinations

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based solely upon an ‘intangible or intuitive notion about an individual’s credibility.’” Rogers, 486

F.3d at 247 (quoting SSR 96-7p, 1996 WL 374186, at *4).

If supported by substantial evidence, the Commissioner’s findings of fact are conclusive.

42 U.S.C. § 405(g). Therefore, a court may not reverse the Commissioner’s decision merely

because it disagrees or because “there exists in the record substantial evidence to support a

different conclusion.” McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006).

See also Mullen, 800 F.2d at 545. The scope of a court’s review is limited to an examination of the

record only. Bass, 499 F.3d at 512-13; Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001).

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,

486 F.3d at 241. See also Jones, 336 F.3d at 475. “The substantial evidence standard presupposes

that there is a ‘zone of choice’ within which the Commissioner may proceed without interference

from the courts.” Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994) (citations omitted) (citing

Mullen, 800 F.2d at 545).

When reviewing the Commissioner’s factual findings for substantial evidence, a reviewing

court must consider the evidence in the record as a whole, including that evidence which might

subtract from its weight. Wyatt v. Sec’y of Health & Human Servs., 974 F.2d 680, 683 (6th Cir.

1992). “Both the court of appeals and the district court may look to any evidence in the record,

regardless of whether it has been cited by the Appeals Council.” Heston v. Comm’r of Soc. Sec.,

245 F.3d 528, 535 (6th Cir. 2001). There is no requirement, however, that either the ALJ or the

reviewing court discuss every piece of evidence in the administrative record. Kornecky v. Comm’r

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

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without directly addressing in his written decision every piece of evidence submitted by a party”);

Van Der Maas v. Comm’r of Soc. Sec., 198 F. App’x 521, 526 (6th Cir. 2006).

C. Governing Law

The “[c]laimant bears the burden of proving his entitlement to benefits.” Boyes v. Sec’y of

Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994). Accord Bartyzel v. Comm’r of Soc. Sec.,

74 F. App’x 515, 524 (6th Cir. 2003). There are several benefits programs under the Act, including

the DIB program of Title II, 42 U.S.C. § 401 et seq., and the SSI program of Title XVI, 42 U.S.C.

§ 1381 et seq. Title II benefits are available to qualifying wage earners who become disabled prior

to the expiration of their insured status; Title XVI benefits are available to poverty stricken adults

and children who become disabled. F. Bloch, Federal Disability Law and Practice § 1.1 (1984).

While the two programs have different eligibility requirements, “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:

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), 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.

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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 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, 245 F.3d at 534. “If the Commissioner makes

a dispositive finding at any point in the five-step process, the review terminates.” Colvin, 475 F.3d

at 730.

“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, 336 F.3d at 474 (cited with approval in Cruse, 502 F.3d at 540). If the

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

transfers to the Commissioner. Combs v. Comm’r, 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 [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

The ALJ applied the Commissioner’s five-step disability analysis to Plaintiff’s claim and

found at step one that Plaintiff met the insured status requirements through December 31, 2015,

and that Plaintiff had not engaged in substantial gainful activity since January 1, 2008, the alleged

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onset date. (Tr. at 21-22.) At step two, the ALJ found that Plaintiff’s asthma/chronic obstructive

pulmonary disease (COPD), hypertension (HTN), intermittent explosive disorder, obesity,

depression, osteoarthritis, alcohol abuse and major depressive disorder (MDD) were “severe”

within the meaning of the second sequential step. (Tr. at 22-23.) At step three, the ALJ found no

evidence that Plaintiff’s combination of impairments met or equaled one of the listings in the

regulations. (Tr. at 23-24.) At step four, the ALJ found that Plaintiff could not perform any past

relevant work. (Tr. at 30.) The ALJ also found that as of the alleged onset date, Plaintiff was 35

years old, which put her in the younger individual age 18-49 category. See 20 C.F.R. §§ 404.1563

and 416.963. At step five, the ALJ found that Plaintiff could perform a limited range of light work.

(Tr. at 24-30.) Therefore, the ALJ found that Plaintiff was not disabled. (Tr. at 31-32.)

E. Administrative Record

A review of the relevant medical evidence contained in the administrative record indicates

that on April 2, 2011, Plaintiff was discharged from counseling services at Southwest Counseling

Services because “Client [was] Non-Compliant.” (Tr. at 380.)

On April 26, 2012, Dr. Emilio Berrios-Antuna noted that Plaintiff had “obesity, smoking

history,sedentary lifestyle, asthma” and hypertension. (Tr. at 283.) Sonographic images of Plaintiff

abdomen taken in January 2012 were unremarkable. (Tr. at 286.)

Plaintiff was also treated at Henry Ford Hospital from September 2011 through June 2012.

(Tr. at 311-58.) In September 2011, Plaintiff was treated in the emergency room for asthma and

shortness of breath. (Tr. at 321, 335-40.) Chest x-rays were normal. (Tr. at 375.)

On October 12, 2011, Plaintiff reported “I feel better, but I am not back to my baseline.” (Tr.

at 346.) Dr. Cynthia Ray, M.D. noted that Plaintiff had stopped drinking alcohol “for the past 2

months because when she drinks, she tends to drink heavily.” (Tr. at 346.)

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In October and November 2011, pulmonary function tests were normal except the FEV1

and FVC (forced expiratory volume and forced vital capacity) were reduced, although airway

obstruction was not demonstrated. (Tr. at 368, 372.)

On December 1, 2011, Plaintiff was referred for an evaluation for obstructive sleep apnea,

was provided with a CPAP mask, and was counseled on the “importance of weight loss” and “to

quit smoking[.]” (Tr. at 332-33, 365-66, 269-70.)

On March 8, 2012, Dr. Ray followed up with Plaintiff regarding her asthma and noted that

Plaintiff reported “[m]y breathing is the same as always.” (Tr. at 344.) Dr. Ray noted that Plaintiff’s

asthma was not well controlled and Dr. Ray was “not sure how much of it is medication

availability/noncompliance/not understanding the importance of using the medications as

prescribed.” (Tr. at 344.)

On April 9, 2012, Dr. Barry Lewis, D.O. followed up with Plaintiff regarding hypertension

and discussed risk factor modification with Plaintiff, i.e., weight loss, smoking cessation, salt

restriction, and medication compliance. (Tr. at 343.)

On April 26, 2012, an echocardiogram was normal. (Tr. at 363.) A CT of Plaintiff’s head

taken on June 16, 2012 was normal. (Tr. at 373.) Chest x-rays were also normal. (Tr. at 374.)

On June 16, 2012, Plaintiffsought emergency treatment for headaches and hypertension. (Tr.

at 316, 402-04.) Her doctor “reiterate[d] need for compliance with meds, diet and fluid restriction”

and “need to stop smoking.” (Tr. at 330.) Plaintiff was also noted that have a “[h]istory of noncompliance.” (Tr. at 331.) Plaintiff was also treated for hypertension, was given lifestyle

counseling regarding avoiding salt, walking 20 minutes per day, stopping smoking cigarettes, and

weight management. (Tr. at 312, 348.)

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On July 16, 2012, Plaintiff was evaluated by Usha Sudindranath, Psychiatrist. (Tr. at 383-86,

407-10.) He noted that the “main reason for her depression is the financial issues she is going

through as well as problems with her three children.” (Tr. at 383.) Plaintiff reported that she does

not sleep well, that “she hears voices occasionally calling her name and she sees shadows at times

and she is very anxious and supersensitive.” (Id.) However, those “psychotic features” were “mild”

and were “not pervasive or constant symptoms.” (Tr. at 385.) It was also noted that Plaintiff

attempted suicide twice in the past but has never been psychiatrically hospitalized. (Tr. at 384.)

Plaintiff “admits she did not give [Celexa] a full try” when she was prescribed the medicine in the

past. (Tr. at 385.) Plaintiff also “admits to having abused alcohol for the last year.” (Id.) Plaintiff

was diagnosed with depression, her prognosis for employment was “guarded to fair” and she was

assessed a GAF score of 45. (Id.)

On August 2, 2012, Plaintiff was seen by Dr. Berrios Antuna, M.D., for a cardiac

consultation. (Tr. at 325-26.) Dr. Antuna noted that Plaintiff has ‘refractory hypertension despite

three ongoing blood pressure recommendations” and recommended increasing dosages. (Tr. at

326.)

Plaintiff underwent a consultative examination on September 12, 2012, with Dr. Mises

Alviar, M.D. (Tr. at 389-91.) Plaintiff was 4'10" and weighed 200 pounds at the time and her body

mass index (BMI) was 42. (Tr. at 390-91.) Plaintiff’s grip and dexterity were normal, she had some

pedal and tibial edema, she “gets on and off the examination table with no difficulty. Her gait is

normal. She can do tandem, tiptoe and heel walking with no problems[,]” she was able to bend,

stoop, and squat to 80%, and “[r]ange of motion of all joints [was] within normal limits.” (Tr. at

391.)

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On September 27, 2012, consultative physician Dr. Claire Issa, M.D. completed a Residual

Functional Capacity “(RFC”) assessment wherein she opined that Plaintiff could perform sedentary

work. (Tr. at 128.)

On October 23, 2012, therapist Diane Carew, LPC, completed a medical source statement,

noting that she began counseling Plaintiff on July 2, 2012. (Tr. at 398-401.) On October 23, 2012,

Carew completed a medical source statement concerning Plaintiff’s mental health. (Tr. 398-401).

This statement is composed entirely of checked boxes, without any additional comments or

findings. (Id.). In that form, Carew found Plaintiff moderately limited in terms her ability to

understand and remember very short and simple instructions; ability to perform activities within

a schedule; ability to make simple work-related decisions; being aware of hazards and the ability

to travel in unfamiliar places; and in some areas of social interaction. (Id.). Carew found Plaintiff

mildly limited in terms of her ability to carry out short and simple instructions; in all other areas of

functioning she found that Plaintiff suffered from marked limitation. (Id.).

On January 25, 2013, Plaintiff was discharged from counseling with Ms. Carew because of

“No Show/No Contact.” (Tr. at 416.)

On March 13, 2013, Plaintiff was seen by Gemma Bransdorfer, LLMSW. Plaintiff reported

that she had been sober since January of 2013, that she was not sleeping well, and that she felt

“stress over her financial situation because she has to depend so much on other people to help her.”

(Tr. at 411.) Plaintiff reported enjoying playing bingo, dominoes, and cards. (Tr. at 413.) Plaintiff

“states she continues to fight for SSI and recently applied for medicaid.” (Tr. at 414.) Plaintiff’s

diagnosis for depression and GAF score of 45 were unchanged. (Id.)

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Plaintiff was treated in December 2013 for hypertension and asthma in the emergency room.

(Tr. at 442-53.) Plaintiff was noted to be positive for cannabinoids at the time, and although she

was warned about the potential risk of heart attack, stroke, or death, she was “seen leaving the floor

to smoke [cigarettes] often by the nurses.” (Tr. at 443.) Echocardio tests were normal and Plaintiff

was discharged in fair condition. (Tr. at 443-48.) Other exams were unchanged or normal. (Tr. at

454-531.)

At the administrative hearing held on February 3, 2009, Plaintiff testified that she has three

children, ages 14, 16 and 17 years old, that live with her in her second-floor apartment. (Tr. at 47.)

Plaintiff was diagnosed with asthma in 1988. (Tr. at 148.) Plaintiff stated that she can only walk

for “15 to 20 minutes” at a time, that she can stand for “maybe two, three hours” and can sit “all

day” without interruption. (Tr. at 50-51.) Plaintiff also indicated that she could lift “10 or 20"

pounds but could not do it frequently because she would be “doing it with fatigue” and difficulty

breathing. (Tr. at 51.) Plaintiff stated that she gets upset and angry with her children and gets

stressed out. (Tr. at 53.) Plaintiff has not sought emergency treatment for asthma since 2006, but

did go once for hypertension, whereupon she was given medication and sent home. (Tr. at 56.)

Plaintiff cooks things like soup for herself but she stated that her children cook for themselves and

do the shopping. (Tr. at 57-58.) Plaintiff stated she rarely leaves home; she watches television and

especially enjoys soap operas. (Tr. at 58-59.) Plaintiff talks to her sister on the phone twice a day

and also speaks with her cousins and gets along with them. (Tr. at 59-60.) Plaintiff initially stated

that she goes to her sister’s house every day but then said, “I don’t really go over there, like that,

but I sometimes do, but I really stay home.” (Tr. at 60.) Her sisters and cousins visit every day to

gossip and talk. (Tr. at 61.) When asked whether she has any other impairments other than asthma

and hypertension, Plaintiff responded, “No.” (Id.)

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At the administrative hearing held on February 3, 2009, the ALJ asked the vocational expert

(“VE”) to consider an individual with Plaintiff’s background who

has a reduction for capacity for light work, for that her ability to do light work is

limited or reduced, should I say, by the fact that she can occasionally climb stairs,

rope, ladders, scaffold, and unprotected height due to the symptoms that are directly

associated with her underlying medical impairment. She has a low operation of

dangerous machinery, i.e., driving most vehicles because of - - she has to avoid

driving frequently, that is to say because of underlying symptoms associated with her

impairment. And she must avoid concentrated exposure to fumes, dust, perfumes, and

other odors. And she must avoid more than occasional exposure to extreme heat and

temperatures, for example, extreme coldness and hot.

(Tr. at 65 .) The VE responded that such a person could not perform Plaintiff’s past relevant work,

but could perform 1,000 visual inspector checker jobs, 2,500 small products assembler jobs, and

2,500 hand packager jobs available at the light level in Southeastern Michigan. (Tr. at 65-66.) The

VE affirmed that his testimony was consistent with the Dictionary of Occupational Titles (“DOT”).

(Tr. at 66.) When asked whether a person could still perform such jobs if she had a moderate

limitation as to carrying out detailed instructions and maintaining attention or concentration, and

in completing a normal workday or workweek without interruptions from psychological issues, the

VE responded that “there would be no change in [his] previous answer.” (Tr. at 67.)

At the administrative hearing held on June 4, 2013, Plaintiff’s counsel amended the alleged

onset date to May 1, 2009, based on the prior ALJ decision from April of 2009. (Tr. at 74.)

Plaintiff’s children were now 18, 21, and 22 years old, and Plaintiff testified that she has no

problem taking care of her personal needs, she sometimes cooks but often eats food given to her

by neighbors, she does her own laundry “little by little” approximately once a week, and she

grocery shops when she receives coupons, approximately once a month. (Tr. at 77-78.) She testified

that she does not walk long distances because she gets “agitated” and she “feel[s] like my heart

goes very fast.” (Tr. at 78.) Plaintiff said that for the last “couple of months” she has only been able

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to walk two blocks because she has gained weight and is heavier now. (Tr. at 79.) Plaintiff clarified

that she gained 60 pounds in the last two years. (Tr. at 83.) She stated she has no problems using

her arms and uses her daughters’ cellular telephones. (Tr. at 79-80.). Plaintiff testified that she has

been trying to cut back on cigarette smoking such that one pack will now last three days. (Tr. at 80.)

Plaintiff quit drinking alcohol four months prior to the hearing. (Tr. at 81.) Plaintiff testified that

she gets along well with people and she “would say I’ve never had any problems.” (Tr. at 82.)

Plaintiff indicated that she did not have any problems sitting other than the fact that she was “kind

of nervous, that’s all.” (Tr. at 82.)

When asked by her attorney whether her breathing had gotten worse or better since the last

hearing in 2009, Plaintiff responded, “Has not improved; it’s the same.” (Tr. at 83-84.) When asked

how long she can perform a given task, she stated “like, half an hour, and I go little by little, and

I sit.” (Tr. at 85.) Plaintiff enjoys watching television, especially shows like CSI and other shows

about police. (Tr. at 86.) Plaintiff indicated that “because of the stress” she sometimes lies in bed

for days without the desire to speak to anyone, and that such episodes can last for five days. (Tr.

at 87.) Plaintiff also stated that she still gets very angry. (Tr. at 89.)

The ALJ asked the VE to consider a person with Plaintiff’s background

who is able to perform at not more than light exertional level with the following

limitations: no more than occasional climbing; must avoid even moderate exposure

to temperature extremes; must avoid concentrated exposure to environmental

irritants, like dust, gases, fumes, odors; must avoid all exposure to unprotected

heights; limited to simple, routine tasks; must be employed in a low-stress job - - I

would define that as a job calling for no more than occasional decision making, no

more than occasional changes in the work setting; must have work that’s not at a

production rate or production pace, and I recognize that most jobs have some level

of pace to them - - this is a restriction on the amount of pace; finally this person

needs a job that would allow the person to be off task up to 10 percent during the

workday.

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(Tr. at 91.) The VE responded that such a person could not perform any of Plain tiff’s past work

but could perform the 2,500 small products assembler jobs, the 2,500 hand packager jobs, and the

1,000 visual inspector jobs available in Southeastern Michigan. (Tr. at 91-92.) When asked to

change the hypothetical to restrict pushing and pulling to no more than frequently bilaterally with

upper extremities, no climbing of ropes of scaffolds, and no more than frequent overhead reaching

and handling, and a limitation to avoiding even moderate exposure to environmental irritants or

poorly ventilated areas, the VE responded that the job numbers would remain the same. (Tr. at 92.)

If the hypothetical worker needed a sit/stand option, the numbers would nonetheless remain the

same. (Tr. at 93.) When asked, the VE responded that his testimony was consistent with the DOT

to the extent the DOT addressed the topics. (Tr. at 93.)

F. Analysis and Conclusions

1. Legal Standards

The ALJ determined that during the time Plaintiff qualified for benefits, she possessed the

residual functional capacity to perform a limited range of light work. (Tr. at 24-30.)

Light work involves lifting no more than 20 pounds at a time with frequent lifting or

carrying of objects weighing up to 10 pounds. Even though the weight lifted may be

very little, a job is in this category when it requires a good deal of walking or

standing, or when it involves sitting most of the time with some pushing and pulling

of arm or leg controls. To be considered capable of performing a full or wide range

of light work, you must have the ability to do substantially all of these activities. If

someone can do light work, we determine that he or she can also do sedentary work,

unless there are additional limiting factors such as loss of fine dexterity or inability

to sit for long periods of time.

20 C.F.R. § 404.1567(b).

After review of the record, I suggest that the ALJ utilized the proper legal standard in his

application of the Commissioner’s five-step disability analysis to Plaintiff’s claim. I turn next to

the consideration of whether substantial evidence supports the ALJ’s decision.

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2. Substantial Evidence

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

12.) 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. McClanahan, 474 F.3d at 833;

Mullen, 800 F.2d at 545. In other words, where substantial evidence supports the ALJ’s decision,

it must be upheld.

Specifically, Plaintiff contends that the ALJ committed reversible error in giving little, if

any, weight to Plaintiff’s treating mental therapist, Diane Carew. (Doc. 12 at 18-22.) In addition,

Plaintiff argues that there is no support in the record for the ALJ’s RFC assessment as to light work

since the only medical source opinions of record, from Dr. Claire Issa and Dr. Mises Alviar, found

Plaintiff was only capable of work at the sedentary level and “less than light work” level,

respectively. (Doc. 12 at 22-25.) Plaintiff further contends that the ALJ failed to properly address

Plaintiff’s mental RFC. (Doc. 12 at 25-29.) Finally, Plaintiff posits that the ALJ failed to comply

with SSR 96-8p by failing to adequately explain the RFC assessment. (Doc. 12 at 29-32.)

The Court’s review of the ALJ’s decision in this matter differs from most Social Security

benefits cases because there was a prior denial of benefits dated April 20, 2009. Although Plaintiff

did not address the concept of res judicata, I note that the Commissioner did. In the Sixth Circuit,

a prior decision by the Commissioner can preclude relitigation in subsequent cases:

When adjudicating a subsequent disability claim with an unadjudicated period arising

under the same title of the Act as the prior claim, adjudicators must adopt such a

finding from the final decision by an ALJ or the Appeals Council on the prior claim

in determining whether the claimant is disabled with respect to the unadjudicated

period unless there is new and material evidence relating to such a finding or there

has been a change in the law, regulations or rulings affecting the finding or the

method for arriving at the finding.

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AR 98-4(6), 1998 WL 283902, at *3 (acquiescing to Drummond v. Commissioner, 126 F.3d 837

(6th Cir. 1997)). The regulations also explicitly invoke res judicata: An ALJ can dismiss a hearing

request where “res judicata applies in that we have made a previous [final] determination or

decision under this subpart about your rights.” 20 C.F.R. §§ 404.957, 416.1457. Collateral estoppel

is the branch of res judicata applied in this context. As the Third Circuit explained, res judicata

formally “consists of two preclusion concepts: issue preclusion and claim preclusion.” Purter v.

Heckler, 771 F.2d 682, 689 n.5 (3d 1985); see also Groves v. Apfel, 148 F.3d 809, 810 (7th Cir.

1998) (Posner, J.) (discussing the “collateral estoppel branch of res judicata” in Social Security

cases). Claim preclusion prevents renewing a judgment on the same cause of action; issue

preclusion, or collateral estoppel is less expansive, “foreclosing relitigation on all matters that were

actually and necessarily determined in a prior suit.” Id.

The res judicata effect of past ALJ decisions is actually a form of collateral estoppel

precluding reconsideration of discrete factual findings and issues. See Brewster v. Barnhart, 145

F. App’x 542, 546 (6th Cir. 2005) (“This Court will apply collateral estoppel to preclude

reconsideration by a subsequent ALJ of factual findings that have already been decided by a prior

ALJ when there are no changed circumstances requiring review.”). The Commissioner’s internal

1

guide explains the different issues and factual findings precluded by resjudicata under Drummond.

Soc. Sec. Admin., Hearings, Appeals, and Litigation Law Manual, § I-5-4-62, 1999 WL 33615029,

at *8-9 (Dec. 30, 1999) (hereinafter “Hallex”). These include the RFC and various other findings

The Sixth Circuit has not decided “whether a party asserting collateral estoppel in a Social Security case . . .

1

must establish the traditional elements of collateral estoppel.” Brewster, 145 F. App’x at 547. See also Caudill v.

Comm’r of Soc. Sec., 424 F. App’x 510, 514-15 (6th Cir. 2011) (suggesting that the elements do not apply); id. at

519-21 (White, J., dissenting in part) (noting that Sixth Circuit unpublished decisions and other authority “strongly

suggest that traditional rules of collateral estoppel should apply to the decisions of ALJs in social security disability

cases”); Rogers v. Comm’r of Soc. Sec., 225 F.3d 659, 2000 WL 799332, at *4 (6th Cir. 2000) (applying one of the

elements in a Social Security case).

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along the sequential evaluation process, such as “whether a claimant’s work activity constitutes

substantial gainful activity,” or whether she meets or equals a listing. Id.

Evidence of “changed circumstances” after the prior decision allows the ALJ to make new

findings concerning the unadjudicated period without disturbing the earlier decision. See Bailey ex

rel. Bailey v. Astrue, No. 10-262, 2011 WL 4478943, at *3 (E.D. Ky. Sept. 26, 2011) (citing

Drummond, 126 F.3d at 842-43). In other words, even though the first ALJ did not make any

findings concerning later periods, her decision still applies to those periods absent the requisite

proof. Thus, as applied in this Circuit, the AR 98-4(6) and Drummond essentially create a

presumption that the facts found in a prior ruling remain true in a subsequent unadjudicated period

unless “there is new and material evidence” on the finding. See Makinson v. Colvin, No.

5:12CV2643, 2013 WL 4012773, at *5 (N.D. Ohio Aug. 6, 2013) (adopting Report &

Recommendation) (“[U]nder Drummond and AR 98-4(6), a change in the period of disability

alleged does not preclude the application of res judicata.”) (citing Click v. Comm’r of Soc. Sec., No.

07-13521, 2009 WL 136890, at *4 (E.D. Mich. Jan. 16, 2009))); cf. Randolph v. Astrue, 291 F.

App’x 979, 981 (11th Cir. 2008) (characterizing the Sixth Circuit’s rule as creating a presumption);

Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988) (“The claimant, in order to overcome the

presumption of continuing nondisability arising from the first administrative law judge’s findings

of nondisability, must prove ‘changed circumstances’ indicating a greater disability.” (quoting

Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir. 1985))).

In Drummond, for example, the court held that the first ALJ’s RFC applied to a subsequent

period unless the circumstances had changed. 126 F.3d at 838-39, 843. See also Priest v. Soc. Sec.

Admin., 3 F. App’x 275, 276 (6th Cir. 2001) (noting that in order to win benefits for a period after

a previous denial, the claimant “must demonstrate that her condition hasso worsened in comparison

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to her condition [as of the previous denial] that she was unable to perform substantial gainful

activity”); Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1232-33 (6th Cir. 1993)

(same). The Sixth Circuit made this clear in Haun v. Commissioner of Social Security, rejecting the

argument that Drummond allowed a second ALJ to examine de novo the unadjudicated period

following the first denial. 107 F. App’x 462, 464 (6th Cir. 2004).

To overcome the presumption that the claimant remains able to work in a subsequent period,

the claimant must proffer new and material evidence that her health declined. The Sixth Circuit has

consistently anchored the analysis on the comparison between “circumstances existing at the time

of the prior decision and circumstances existing at the time of the review . . . .” Kennedy v. Astrue,

247 F. App’x 761, 768 (6th Cir. 2007). In a case predating Drummond, the court explained,“[W]hen

a plaintiff previously has been adjudicated not disabled, she must show that her condition so

worsened in comparison to her earlier condition that she was unable to perform substantial gainful

activity.” Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1232-33 (6th Cir. 1993). Later,

it reiterated, “In order to be awarded benefits for her condition since [the previous denial], Priest

must demonstrate that her condition has . . . worsened in comparison to her [previous] condition

. . . .” Priest, 3 F. App’x at 276. The ALJ must scan the medical evidence “with an eye toward

finding some change from the previous ALJ decision . . . .” Blackburn v. Comm’r of Soc. Sec., No.

4:11-cv-58, 2012 WL 6764068, at *5 (E.D. Tenn. Nov. 14, 2012), Report & Recommendation

adopted by 2013 WL 53980, at *1 (E.D. Tenn. Jan. 2, 2013). That is, the evidence must not only

be new and material, but also must show deterioration. Drogowski v. Comm’r of Soc. Sec., No. 10-

12080, 2011 WL 4502988, at *8 (E.D. Mich. July 12, 2011), Report & Recommendation adopted

by 2011 WL 4502955, at *4 (E.D. Mich. Sept. 28, 2011). In Drogowski, for example, the court

rejected the plaintiff’s argument that a report met this test simply because it was not before the first

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ALJ. Id. at *2, 8-9. These decisions make clear that the relevant change in circumstances is not a

change in the availability of evidence, but a change in Plaintiff’s condition.

I suggest that on this record, there is no new, material evidence showing deterioration since

April of 2009. To the contrary, there is evidence showing that Plaintiff’s condition was the same

as before. Plaintiff reported her asthmatic symptoms were the same in 2012 as always. (Tr. at 344.)

Although Plaintiff indicated that she had experienced more depression since 2009, she failed to

keep up with her counseling sessions and was twice discharged for non-compliance. (Tr. at 380,

416.) In addition, any increased symptoms were attributed to financial issues and problems with her

children, rather than a deterioration in her condition. (Tr. at 383, 411.) Plaintiff was never

psychiatrically hospitalized. (Tr. at 384.) Plaintiff may have become more obese after 2009, but

there is nothing indicating that the increased weight had a functional effect, other than Plaintiff

reporting that she could not walk as far since she gained weight; however, medical evidence

revealed no impediment to Plaintiff being able to walk. (Tr. at 390-91.) Certainly there was no

change in circumstances with respect to Plaintiff’s recommended care: Plaintiff was consistently

admonished to change her sedentary lifestyle, stop smoking, stop drinking, and be compliant with

medications. (Tr. at 283, 269-70, 312, 330-31, 332-33, 343, 344, 348, 365-66.)

Finally, despite Plaintiff’s problems, test results showed normal or unchanged results.

Sonographic images of Plaintiff abdomen taken in January 2012 were unremarkable. (Tr. at 286.)

In September 2011, chest x-rays were normal. (Tr. at 375.) In October and November 2011,

pulmonary function tests were normal except the FEV1 and FVC (forced expiratory volume and

forced vital capacity) were reduced, although airway obstruction was not demonstrated. (Tr. at 368,

372.) On April 26, 2012, an echocardiogram was normal. (Tr. at 363.) A CT of Plaintiff’s head

taken on June 16, 2012, was normal. (Tr. at 373.) Chest x-rays were also normal. (Tr. at 374.)

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I therefore suggest that Plaintiff has not demonstrated that her condition worsened since the

previous denial in 2009 because she has not shown new and material evidence of deterioration.

Drogowski, supra.

I further suggest that the checked-box form provided by Diane Carew, LPC, therapist is

inadequate to show deterioration in Plaintiff’s mental abilities. First, as noted by the ALJ, a

therapist’s opinion is not entitled to controlling weight because it is not an opinion of a treating

source as defined in the regulations. See 20 C.F.R. § 404.1513(a); Miller v. Comm’r of Soc. Sec.,

No. 1:08-CV-1022, 2010 WL 502761, at *5 (W.D. Mich. Feb. 5, 2010) (citing Doolin v. Astrue,

No. 3:08-cv-243, 2009 WL 1212232, at *8 (S.D. Ohio May 1, 2009) (“a counselor’s opinion is not

entitled to controlling weight”)). Furthermore, there is no evidence of testings or findings that

support the conclusions stated in the boxes checked. If the conclusions are based solely on

Plaintiff’s reported symptoms, such conclusions are not evidence, they are the “‘opposite of

objective medical evidence.’ . . . An ALJ is not required to accept the statement as true or to accept

as true a physician’s opinion based on those assertions.” Masters v. Astrue, 818 F. Supp. 2d 1054,

1067 (N.D. Ill. 2011) (quoting Schaaf v. Astrue, 602 F.3d 869, 875 (7th Cir. 2010)); Francis v.

Comm’r of Soc. Sec., 414 F. App’x 802, 804 (6th Cir. 2011) (Noting that a doctor’s findings which

“merely regurgitate[] . . . self-described symptoms” do not constitute a medical opinion.); Poe v.

Comm’r of Soc. Sec., 342 F. App’x 149, 156 (6th Cir. 2009) (“[S]ubstantial evidence supports the

ALJ’s determination that the opinion of Dr. Boyd, Poe’s treating physician, was not entitled to

deference because it was based on Poe’s subjective complaints, rather than objective medical

data.”). Finally, the checked-box form, without tests, observations or other medical data, is

insufficient; thus, the ALJ was free to discount the conclusions and committed no error in doing

so. See Teague v. Astrue, 638 F.3d 611, 616 (8th Cir. 2011) (holding that ALJ properly discounted

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doctor’s opinions on a check-off form which “did not cite clinical test results, observations, or other

objective findings as a basis for determining [the plaintiff’s] capabilities”); Wildman v. Astrue, 596

F.3d 959, 964 (8th Cir. 2010) (holding that the ALJ properly discounted the treating physician’s

opinion that consisted of checklist forms which cited no medical evidence and provided little or no

elaboration).

3. Conclusion

For all these reasons, after review of the record, I suggest that the decision of the ALJ, which

ultimately became the final decision of the Commissioner, is within that “‘zone of choice’ within

which decisionmakers may go either way without interference from the courts,” Felisky, 35 F.3d

at 1035 (quoting Mullen, 800 F.2d at 545), as the decision is supported by substantial evidence.

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

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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. 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: October 30, 2015 S/Patricia T. Morris

Patricia T. Morris

United States Magistrate Judge

CERTIFICATION

I hereby certify that the foregoing document was electronically filed this date through the

Court’s CM/ECF system which delivers a copy to all counsel of record.

Date: October 30, 2015 By s/Durene Worth

Acting in the absence of Kristen Krawczyk

Case Manager to Magistrate Judge Morris

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