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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CAROL COLEMAN, 

Plaintiff, Civil Action No. 08-14534

v. HON. LAWRENCE P. ZATKOFF

 U.S. District Judge

HON. R. STEVEN WHALEN

COMMISSIONER OF SOCIAL U.S. Magistrate Judge

SECURITY,

Defendant.

_____________________________/

REPORT AND RECOMMENDATION

Plaintiff Carol Coleman brings this action under 42 U.S.C. §405(g) challenging a final

decision of Defendant Commissioner denying her application for Disability Insurance

Benefits (“DIB”) under the Social Security Act. Both parties have filed summary judgment

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

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

Summary Judgment be GRANTED, and that Plaintiff’s Motion for Summary Judgment be

DENIED. 

PROCEDURAL HISTORY

 On September 20, 2005, Plaintiff filed an application for Disability Insurance

Benefits (“DIB”) and Supplemental Security Income (“SSI”), alleging an onset of disability

date of June 1, 2004 (Tr. 43-45, 85-87). After the initial denial of her claims, Plaintiff filed

a request for an administrative hearing, held on June 3, 2008 in Oak Park, Michigan before

Administrative Law Judge (“ALJ”) Roger Thomas (Tr. 399). Plaintiff, represented by

attorney Donald Shiffman, testified, as did Mary Williams, a Vocational Expert (“VE”). On

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July 24, 2008, ALJ Thomas found that Plaintiff was able to perform her past relevant work

as a substitute elementary school teacher (Tr. 15-16). On October 15, 2008, the Appeals

Council denied review (Tr. 3-5). Plaintiff filed for judicial review on October 24, 2008. 

BACKGROUND FACTS

Plaintiff, born September 28, 1956, was age 51 when the ALJ issued his decision (Tr.

16, 43). She completed two years of college and worked formerly as an elementary school

instructor and home care giver (Tr. 100, 104). Plaintiff’s application for benefits claims

disability as a result of a lower back injury and osteoarthritis of the right foot (Tr. 99). 

A. Plaintiff’s Testimony

Plaintiff, right handed, testified that she was 5'2-1/2 and weighed 150 pounds (Tr.

405). She reported that she currently lived in her own home with her daughters, aged 32 and

12, adding that the older daughter had a disability (Tr. 405). Plaintiff indicated that although

her younger daughter lived with her, the girl’s father performed most parenting tasks (Tr.

406). Plaintiff denied all laundry chores, stating further that her cooking was limited to “light

meal” or snack preparation (Tr. 406-407). She denied drinking, but admitted that she smoked

daily (Tr. 407-408). Plaintiff reported that she drove only minimally and was unable to walk

more than three quarters of a block due to back problems (Tr. 407-408). Plaintiff also noted

that she had received both cortisone injections and acupuncture for carpal tunnel syndrome

(“CTS”), adding that she used wrist splints at night (Tr. 409). She claimed that surgery had

been recommended in the past for CTS (Tr. 409). Plaintiff testified that she had also been

treated for a cataract (Tr. 410).

Plaintiff denied working since 2004, but admitted that she received income in 2007

for caring for her elderly aunt (Tr. 410). She reported that she gave the funds allotted for her

aunt’s care to extended family members who contributed to the elderly woman’s care (Tr.

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411-412). Plaintiff testified that she had experienced back pain since an August, 2003 car

accident, adding that as a result of her injury, she required physical therapy, medication, heat

treatment, and back and neck braces (Tr. 412-414). She also reported that a 1994 right foot

injury created intermittent discomfort (Tr. 414-415). 

Plaintiff noted that in 2005 she was diagnosed with diabetes and had suffered from

ear and jaw pain since 2004 (Tr. 415). She indicated that she took medication for diabetes,

high blood pressure, anxiety, depression, and sleep disturbances (Tr. 418). Noting that she

paid for her own medical visits, Plaintiff reported that financial limitations required her to

choose between eye treatment and seeking help for depression (Tr. 419-420). She alleged

that symptoms of depression included mood swings, memory lapses, and loss of appetite (Tr.

419-420). Plaintiff also testified that pain medication created stomach problems (Tr. 422).

In response to questioning by her attorney, Plaintiff testified that back problems

prevented her from sitting or standing for more than 20 minutes at one time (Tr. 416-417).

Acknowledging that she used to be an “avid” reader, she indicated that pain now prevented

her from reading, bowling, and traveling (Tr. 421). Plaintiff alleged partial relief by

elevating her legs and using a heating pad (Tr. 422). She reported that her condition obliged

her to take anywhere between two and five rest periods per day (Tr. 423). 

B. Medical Evidence

1. Treating Sources

In August, 2003, Plaintiff sought emergency treatment after sustaining injuries in a

car accident (Tr. 342). Plaintiff reported left shoulder and left-sided neck pain along with

mid-back pain (Tr. 342). X-rays taken “showed no evidence of dislocation or fracture” (Tr.

343). Plaintiff was diagnosed with muscle strain and discharged in stable condition (Tr.

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243). Dr. Dawit Teklehaimanot, D.O. observed that Plaintiff “was able to get on and off

the examining table without any difficulties,” but exhibited “severe tightness of the neck”

and range of motion limitations (Tr. 358). Dr. Teklehaimanot recommended “aggressive

physical therapy” (Tr. 359). In October, 2003, Plaintiff exhibited an improved range of

motion in the neck and cervical and lumbar spine (Tr. 360). The same month, neurologist

Abelardo G. Contreras, M.D., noting Plaintiff’s history of diabetes and hypertension,

observed normal muscle tone and gait (Tr. 362-363). In November, 2003, MRIs of the

sacro-lumbar and cervical spine showed a disc herniation at L4/L5 but otherwise normal

results (Tr. 170, 356). 

In March, 2004, orthopedic surgeon Stefan Glowacki, diagnosing Plaintiff with

whiplash and “possible partial tear of the rotator cuff,” advised her to “continue physical

therapy, exercises, pain medication, and [a] muscle relaxant” (Tr. 353). The same month,

Dr. Teklehaimanot advised “a more aggressive home exercise program” (Tr. 351). In May,

2004, Plaintiff reported that her neck and shoulder pain was improved (Tr. 348). 

 The same month, Saul Weingarden, M.D. demonstrated a stretch technique for home

use (Tr. 378). He noted that Plaintiff continued to work as a substitute teacher and was “also

self-employed doing mortgage and tax type work,” adding that Plaintiff “continue[d] to

work” despite the August, 2003 injury (Tr. 376). In June, 2004, Dr. Teklehaimanot,

observing that a recent EMG had been “unremarkable,” and that Plaintiff demonstrated a full

range of motion, recommended that she take Tylenol #3 as needed for continued complaints

of neck and shoulder pain (Tr. 346). Treating notes from July, 2004 characterize Plaintiff’s

back pain as “chronic” (Tr. 277). The following month, Abelardo G. Contreras, M.D., noting

that MRIs of the cervical and lumbar spine showed no pathology, concluded that Plaintiff had

“reached a plateau in her condition” (Tr. 345). Dr. Contreras opined that “[s]hort courses of

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Plaintiff argues that the handwritten evaluator’s notes state that she had a GAF of 50,

rather than 56. Plaintiff’s Brief, Docket #10 at 9. In an abundance of fairness, the Court will

assume that Plaintiff received a 50, which suggests a lower level of mental function. A GAF

score of 41-50 indicates "[s]erious symptoms ... [or] serious impairment in social,

occupational, or school functioning," such as inability to keep a job. American Psychiatric

Association, Diagnostic and Statistical Manual of Mental Disorders--Text Revision, 34

(DSM-IV-TR ) (4th ed.2000). GAF score of 51-60 indicates moderate symptoms (occasional

panic attacks) or moderate difficulty in social, occupational, or school functioning. American

Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders--Text

Revision at 34 (DSM-IV-TR ) (4th ed.2000).

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physical therapy with emphasis on [stretching] may be of help” (Tr. 345). Also in August,

2004, Dr. Weingarden found that Plaintiff was “doing better” as a result of home exercises

(Tr. 373). The following month, Plaintiff reported relief from a Lidoderm Patch (Tr. 371).

 In October, 2004, Dr. Weingarden noted that Plaintiff showed improvement but still

complained of “mild to moderate” sacro-lumbar pain (Tr. 369). In November, 2004, Dr.

Weingarden composed an opinion letter on behalf of Plaintiff’s request for continued

insurance coverage, stating that Plaintiff “continue[d] to have pain” as a result of the August,

2003 accident (Tr. 367). 

In October, 2006, a psychiatric evaluator assigned Plaintiff a GAF of 561

 (Tr. 334).

The following month, psychotherapy progress notes show that Plaintiff currently took Zoloft

for depression (Tr. 333). 

2. Consultive Sources

 In September, 2004, Jeffrey Edwin Middeldorf, D.O. examined Plaintiff on behalf

of her insurance provider (Tr. 381). Plaintiff reported that she had not worked since June,

2004 (Tr. 382). Dr. Middeldorf, opining that it was “very difficult to get a straight answer

regarding her employment situation,” noted that Plaintiff complained of ongoing headaches

and “constant” neck and back pain (Tr. 382). Dr. Middeldorf also observed that Plaintiff

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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 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. 

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“arose without hesitation and without support” and did not need a cane or walker (Tr. 384).

Based on his examination, he concluded that he “[did] not have an objective basis to disable

or restrict her from occupational activities” (Tr. 386). He found further that Plaintiff was

not “in need of any further therapeutic intervention to her spine from [the] accident” (Tr.

386). A December, 2005 Residual Functional Capacity Assessment performed on behalf of

the SSA determined that based on Plaintiff’s medical records, she could lift 20 pounds

occasionally and ten pounds frequently; walk, stand, or sit for about six hours per workday;

and push and pull in all extremities without limitation (Tr. 222). The Assessment found the

absence of postural, visual, communicative, or environmental limitations, but manipulative

limitations consisting of a preclusion on overhead reaching (Tr. 223-225). Noting that

Plaintiff claimed limitations of “lifting, squatting, bending, standing, reaching, walking,

sitting, kneeling, and climbing,” the Assessment concluded that Plaintiff’s allegations were

“not supported” (Tr. 226). 

C. Vocational Expert Testimony

VE Mary Williams classified Plaintiff’s former work as a home health care aide as

semi-skilled at both the heavy and light levels of exertion; companion and chore provider,

unskilled/light; and substitute teacher semiskilled and light2

 (Tr. 426). Next, the ALJ posed

the following hypothetical limitations to the VE, taking into account Plaintiff’s age,

education, and work background:

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“[C]omplaints of low back pain and neck pain after a motor vehicle accident

specifically at least. She’s had imaging studies for those, and she does have

. . . a diagnosis of diabetes treated with oral medications. She’s had some

conditions that are non-severe, some right ear pain was reported in one record

at one point. She’s had some cataracts. The right eye has been treated and

removed. Left eye is still pending treatment. She’s had a right ankle pain .

. . brachia strain . . . hypertension, some left shoulder strain as well. There is

some complaint[] today of anxiety and depression. The eye doctor [in

November, 2006] noted diabetic retinopathy in one entry. It wasn’t mentioned

in the others. . . . . Given a light [exertional] range, could a person with those

[limitations] do any of the past jobs set out in your report?” 

(Tr. 426-427). The VE responded that the hypothetical individual could perform Plaintiff’s

past relevant work as a companion worker, chore care provider, home care worker, and

substitute teacher (Tr. 427). The VE testified further that if the individual were limited to

sedentary work and precluded from repetitive gripping as a result of CTS, the individual

could not perform any of Plaintiff’s past relevant work but could do the work of an inspector

(1,900 positions in the regional economy), information clerk (5,000), and surveillance system

monitor (1,500)(Tr. 528). The VE stated that if the individual were precluded from

production work and/or limited to brief and superficial conduct with the public, the job

numbers would remain unchanged (Tr. 429). In response to questioning by Plaintiff’s

attorney, the VE testified that the inclusion of a sit/stand option would not preclude any of

the above-listed jobs, but if required “to be off task twice a day” for an hour “because of

elevated pain complaints or effects of medication,” the individual would be unable to

perform any work (Tr. 430). The VE stated that her testimony was consistent with the

information found in the Dictionary of Occupational Titles (“DOT”) (Tr. 429). 

 D. The ALJ’s Decision

 Citing Plaintiff’s medical records, ALJ Thomas found that Plaintiff experienced the

severe impairments of “myofacial pain of the neck and shoulder muscles on the left side, with

muscle spasms; cervicalgia; chronic lumbar strain, with an MRI in November, 2004, showing

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a central disc herniation at the L4-5 level; and non-insulin dependent diabetes mellitus” but

that none of the conditions met or medically equaled the listed impairments found in

Appendix 1, Subpart P, Regulation No. 4 (Tr. 11-13). He found that Plaintiff’s “medically

determinable mental impairments of anxiety and depression, considered singly and in

combination, do not cause more than a minimal limitation” in Plaintiff’s “ability to perform

basic mental work activities and are therefore ‘non-severe’” (Tr. 12). 

 The ALJ found that Plaintiff retained the following residual functional capacity

(“RFC”) for exertionally light work,” but was “precluded from performing any overhead

tasks with the left upper extremity secondary to her chronic left shoulder area strain” (Tr. 13-

14). He concluded that Plaintiff was capable of performing her past relevant work as a

substitute elementary school teacher (Tr. 15). Citing the VE’s job numbers, the ALJ also

found that Plaintiff could do the sedentary work of an inspector, information clerk, and

surveillance system monitor (Tr. 15). 

 The ALJ found Plaintiff’s allegations of disability “not credible to the extent they are

inconsistent with the residual functional capacity assessment” (Tr. 14). He cited Dr.

Middleldorf’s October, 2004 findings of a “normal cervical spine” and an unremarkable neck

and back study (Tr. 14). The ALJ noted that the same month, Dr. Weingarden found

Plaintiff’s pain “was ‘considerably better’ as a result of prescribed exercises and the use of

a Lidoderm patch” (Tr. 14). The ALJ also observed that Plaintiff “ha[d] never undergone

back surgery, nor ha[d] back surgery been recommended to her” (Tr. 15). Noting that

Plaintiff’s neck, ankle, eye, back, and CTS conditions had either been resolved or were

responding to treatment, the ALJ concluded that her “subjective pain complaints far

exceed[ed] the objective medical findings,” commenting that none of her physicians had

found her disabled (Tr. 15). 

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 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 (6th Cir. 1985). Substantial evidence is more

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 (6th Cir.

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 (6th Cir. 1985). The court must examine the

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 (6th Cir. 1989).

 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

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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 as 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

A. Rule 201.14

Plaintiff argues that substantial evidence does not support the ALJ’s conclusion that

she could perform exertionally light work. Plaintiff’s Brief, Docket #10 at 8-13. Plaintiff,

51 at the time of the administrative decision, argues that under the Medical-Vocational

Guidelines, her lack of transferrable skills, combined with the ability to perform only

sedentary work, mandates a disability finding. Id. at 10-12. 

Pursuant to 20 C.F.R., Part 404, Subpart P, Appendix 2, Table No. 1, Rule 201.14, a

person “restricted to sedentary work who is age fifty to fifty-four, and whose education does

not permit direct entry into skilled work, must be found disabled unless he has acquired

transferable skills as a result of his past work.” Cole v. Secretary of Health and Human

Services, 820 F.2d 768, 776 (6th Cir. 1987). 

Contrary to Plaintiff’s contention that she could perform only sedentary work and was

thus disabled, substantial evidence generously supports the finding that she was capable of

exertionally light work. The ALJ noted that an MRI of the cervical spine “was essentially

normal, showing only mild degenerative changes” (Tr. 14). Further, although an MRI of the

sacro-lumbar spine showed a disc herniation at L4-5, Plaintiff “has never undergone back

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surgery, nor has back surgery been recommended” (Tr. 14-15). Citing Dr. Weingarden’s

treating notes, the ALJ observed that Plaintiff controlled back pain with exercise and a

Lidoderm patch (Tr. 14). The ALJ also noted that Plaintiff demonstrated a “full range of

motion of the upper extremities” (Tr. 14). In regard to limitations as a result of CTS, the ALJ

found that a June, 2004 EMG “was unremarkable, with no evidence of radiculopathy,

neuropathy, or compression mono-neuropathy” (Tr. 15). I agree with the ALJ’s finding that

a preponderance of the evidence (as opposed to merely substantial evidence) supports the

exertional conclusions (Tr. 15). 

B. Mental Impairments

Plaintiff argues briefly that the ALJ erred by omitting depression and anxiety from

her severe impairments at Step Two of the administrative sequence. Plaintiff’s Brief at 9-10.

Citing transcript pages 332 through 334 showing treating records created in October, 2006

and August, 2007, she contends that her mental impairments created work related

limitations. Brief at 9. 

At first blush, this argument appears a winner. “[T]he second stage severity inquiry,

properly interpreted, serves the goal of administrative efficiency by allowing the Secretary

to screen out totally groundless claims.” An impairment can be considered “not severe . . .

only if the impairment is a ‘slight abnormality which has such a minimal effect on the

individual that it would not be expected to interfere with the individual's ability to work,

irrespective of age, education and work experience.’" Farris v. Secretary of HHS , 773 F.2d

85, 89 (6th Cir. 1985) (citing Brady v. Heckler, 724 F.2d 914, 920 (11th Cir.1984)).

Plaintiff’s October, 2006 psychiatric evaluation and use of Zoloft, Celexa, and Klonopin

would appear to establish more than de minimus non-exertional impairments.

 Notwithstanding the Plaintiff’s 2006 GAF assessment and her use of Zoloft, the

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ALJ’s finding that Plaintiff’s psychological limitations were non-severe is well-supported

and adequately explained. CFR § 416.921(a) defines a non-severe impairment as one that

does not “significantly limit [the] physical or mental ability to do basic work activities.” The

same regulation defines “basic work activities” as “understanding, carrying out, and

remembering simple instructions; use of judgment; responding appropriately to supervision,

co-workers and usual work situations; and dealing with changes in a routine work setting."

Id. The ALJ found that Plaintiff had only “mild” limitations in activities of daily living,

noting that she continued to drive, fix light meals, shop, and attend church (Tr. 12). He

noted further that the limitations were attributable to neck and back pain rather than mental

problems (Tr. 12). Likewise in regard to social functioning, the ALJ found only mild

limitations, observing that although Plaintiff alleged that she had “become more isolated of

late,” she blamed physical pain rather than mental limitations (Tr. 12). The ALJ once again

cited Plaintiff’s ongoing ability to perform household tasks, drive, and take care of her

shopping needs in support of his finding that she experienced only mild concentrational

limitations (Tr. 13). Finally, he observed that Plaintiff had not alleged “episodes of

decompensation” (Tr. 13). 

Additional evidence supports the non-severe finding at Step Two. Treating notes

created in October, 2006 (the same month that Plaintiff received the psychiatric diagnosis of

depression) indicate that she exhibited normal judgment and orientation as to time, place, and

person (Tr. 236). May, 2007 treating records indicating normal “recent and remote

memory,” (as well as normal judgment and cognitive abilities) contradict Plaintiff’s claim

of memory problems, suggesting that her psychological impairments were either of short

duration and/or well controlled with medication (Tr. 232). Significantly, her September,

2005 application makes no mention of psychological conditions affecting her ability to work

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(Tr. 99). 

In closing, the Court notes that its recommendation to uphold the administrative

decision is not intended to trivialize Plaintiff’s legitimate limitations. Nonetheless, the

administrative finding that Plaintiff was capable of returning to her former job as a substitute

teacher is both procedurally and substantively adequate, and falls well within the “zone of

choice” accorded to the fact-finder at the administrative level. Pursuant to Mullen v. Bowen,

800 F.2d 535, 545 (6th Cir. 1986)(en banc), the ALJ’s decision should not be disturbed by

this Court. 

CONCLUSION

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

Judgment be GRANTED, and that Plaintiff’s Motion for Summary Judgment be DENIED.

Any objections to this Report and Recommendation must be filed within ten (10)

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 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th

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 (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.

Within ten (10) 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 twenty (20) pages

in length unless by motion and order such page limit is extended by the court. The response

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shall address specifically, and in the same order raised, each issue contained within the

objections. 

s/R. Steven Whalen 

R. STEVEN WHALEN

UNITED STATES MAGISTRATE JUDGE

Dated: October 26, 2009

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing order was served on the attorneys

and/or parties of record by electronic means or U.S. Mail on October 26, 2009.

s/Susan Jefferson 

Case Manager

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