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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

PAMELA T. EVANS, 

 Plaintiff, CIVIL ACTION NO. 09-10184 

 v. DISTRICT JUDGE ROBERT H. CLELAND 

MICHAEL J. ASTRUE, MAGISTRATE JUDGE VIRGINIA M. MORGAN 

COMMISSIONER 

OF SOCIAL SECURITY, 

 Defendant. 

__________________________________/

REPORT AND RECOMMENDATION

I. Introduction

This social security case comes before the court on the parties’ cross motions for 

summary judgment. For the reasons stated below, the court recommends that the 

Commissioner’s motion be GRANTED and that the plaintiff’s motion be DENIED. 

II. Background

On March 31, 2005, plaintiff filed for Social Security Disability Insurance Benefits (DIB) 

and Supplemental Security Income (SSI), alleging that she was disabled due to hypertension, 

liver and small intestine infection, and cancer with an onset date of June 1, 2004. (Tr. 110-11)1

Plaintiff completed high school, and has a work history as a certified nurse’s assistant, medical 

assistant, and data entry operator. (Tr. 91) 

                                                           

1

 A previous application filed for DIB was denied by the Commissioner on July 8, 2002. (Tr. 44) 

The record does not reflect whether plaintiff requested a hearing with an ALJ. 

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The Social Security Administration (SSA) denied plaintiff’s applications on September 

30, 2005. (Tr. 39) Plaintiff then requested a hearing before an administrative law judge (ALJ). 

(Tr. 38) The hearing was held on March 19, 2008, before ALJ David K. Gatto. (Tr. 311-324) 

Plaintiff, represented by counsel, appeared and testified at the hearing. The ALJ also took 

testimony from a vocational expert (VE). 

On May 16, 2008, the ALJ issued a decision denying plaintiff’s application at step four. 

(Tr. 9) The ALJ determined that plaintiff had severe impairments of “history of biliary stenosis 

with surgical repair, hypertension, and obesity.” (Tr. 14) The ALJ also determined that plaintiff 

did not have an impairment that met or equaled any of the Listed Impairments in Appendix 1, 

Subpart P, of the Social Security regulations. (Tr. 15) Further, the ALJ determined that plaintiff 

“has the residual functional capacity to perform the full range of medium work,” which included 

her past relevant work as it is “generally performed.” 2

 (Tr. 15, 17) 

Although the plaintiff testified that her past work was performed at a higher exertional 

level, the ALJ found that the job of nurse assistant is generally medium work and the plaintiff 

would be able to perform it. (Tr. 17) Accordingly, the ALJ found that plaintiff was not disabled 

within the meaning of the Social Security Act (SSA). (Tr. 17) Plaintiff was 55 years-old at the 

time of the ALJ’s decision and had completed one year of college. (Tr. 65, 82) 

On May 29, 2008, plaintiff requested review of the ALJ’s decision with the SSA’s 

Appeals Council. (Tr. 8) On December 24, 2008, the Appeals Council notified plaintiff that it 

had denied the request for review. (Tr. 4) 

On January 16, 2009, plaintiff filed suit for review of the Commissioner’s decision 

pursuant to 42 U.S.C. § 405(g). As noted above, the matter comes before the court on the parties’ 

                                                           

2 As defined in 20 C.F.R. 404.1567(c) and 416.967(c).

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cross-motions for summary judgment. Plaintiff contends that the ALJ and Appeals Council erred 

in assessing the level of work plaintiff can perform her RFC and also in considering the effect 

plaintiff’s obesity has on her ability to perform medium level work. The Commissioner contends 

that the disability determination is supported by substantial evidence and should thus be 

affirmed. 

III.Legal Standards

A. Disability Evaluation 

A person is “disabled” within the meaning of the Social Security Act “if he is unable 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. § 1382c 

(a)(3)(A). See also 42 U.S.C. § 423(d)(1)(A). Further, 

an individual shall be determined to be under a disability only if 

his physical or mental impairment or impairments are of such 

severity that he is not only unable to do his previous work but 

cannot, considering his age, education, and work experience, 

engage in any other kind of substantial gainful work which exists 

in the national economy, regardless of whether such work exists in 

the immediate area in which he lives, or whether a specific job 

vacancy exists for him, or whether he would be hired if he applied 

for work. 42 U.S.C. § 1382c (a)(3)(B). See also 42 U.S.C. § 

423(d)(2)(A). 

The claimant bears the burden of proving that he is disabled. Foster v. Halter, 279 F.3d 348, 353 

(6th Cir. 2001). 

A five-step process is used to evaluate both DIB and SSI claims. 20 C.F.R. §§ 404.1520, 

416.920. In Foster, the Sixth Circuit discussed the process: 

The claimant must first show that she is not engaged in substantial 

gainful activity. Next the claimant must demonstrate that she has a 

“severe impairment.” A finding of “disabled” will be made at the 

third step if the claimant can then demonstrate that her impairment 

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meets the durational requirement and “meets or equals a listed 

impairment.” If the impairment does not meet or equal a listed 

impairment, the fourth step requires the claimant to prove that she 

is incapable of performing work that she has done in the past. 

Finally, if the claimant’s impairment is so severe as to preclude the 

performance of past work, then other factors, including age, 

education, past work experience, and residual functioning capacity 

must be considered to determine if other work can be performed. 

The burden shifts to the Commissioner at this fifth step to establish 

the claimant’s ability to do other work. Id. (citations omitted). 

B. Standard of Review 

Plaintiff seeks review of the commissioner’s decision pursuant to 42 U.S.C. § 405(g), 

which provides, in part: 

Any individual, after any final decision of the Commissioner of 

Social Security made after a hearing to which he was a party, 

irrespective of the amount in controversy, may obtain a review of 

such decision by a civil action commenced within sixty days after 

the mailing to him of notice of such decision or within such further 

time as the Commissioner of Social Security may allow. 

Judicial review under § 405(g) is limited to a determination of whether the ALJ’s 

findings are supported by substantial evidence and whether the ALJ applied the proper legal 

standards. Brainard v. Secretary of HHS, 889 F.2d 679, 681 (6th Cir. 1989); Key v. Callahan, 109 

F.3d 270, 273 (6th Cir. 1997). The Sixth Circuit stated in Brainard, “[s]ubstantial evidence is 

more than a mere scintilla of evidence but less than a preponderance and is such relevant 

evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. at 681. 

“[The] decision of an ALJ is not subject to reversal, even if there is substantial evidence in the 

record that would have supported an opposite conclusion, so long as substantial evidence 

supports the conclusion reached by the ALJ.” Key at 273. 

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IV.Analysis

The ALJ made his decision at step four of the five-step analysis used to evaluate both 

DIB and SSI claims. The ALJ determined plaintiff’s residual functional capacity (RFC) is the 

full range of medium work, and includes plaintiff’s past relevant work. 20 C.F.R. §§ 

404.1520(a)(4)(iv), 416.920(a)(iv); 20 C.F.R. §§ 404.1545, 416.945. The term “residual 

functional capacity” (“RFC”) is defined as the most work an individual can do after considering 

the effects of physical and/or mental limitations that affect the ability to perform work-related 

tasks. 20 C.F.R. §§ 404.1545, 416.945, SS-R 96-8p. 

After determining the plaintiff’s RFC, an ALJ must compare it to the requirements of the 

plaintiff’s past relevant work. 20 C.F.R. §§ 404.1560(a), 416.960(a). “Past relevant work” is 

“work that you have done within the past 15 years, that was substantial gainful activity, and that 

lasted long enough for you to learn to do it.” 20 C.F.R. §§ 404.1560(b)(1), 416.960(b). If the 

plaintiff can perform her past relevant work, then she is not disabled. Foster v. Halter, 279 F.3d 

348, 354 (6th Cir. 2001); 20 C.F.R. §404.1520(f). Here, plaintiff argues that the decision at step 

four is not supported by substantial evidence.3

A. Accuracy of RFC in Performing Medium Work 

In this case, the plaintiff challenges the finding by ALJ Gatto that the plaintiff has the 

RFC to perform the full range of medium work activity. (Tr. 15) Medium work is defined as 

“lifting 25 pounds frequently and 50 pounds occasionally, with sitting/standing/walking up to six 

hours each for a total of eight hours of work per day.” (Tr. 17) 

                                                           

3

 As noted in plaintiff’s brief, if the plaintiff cannot perform her past relevant work and is 

restricted by light work, GRID Rule 202.06 directs a conclusion of “disabled” at age 55. 

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Plaintiff argues that the RFC is inaccurate because the plaintiff has extreme pain, constant 

fatigue, and must rest three times daily for 30-45 minutes. Essentially, the plaintiff argues that 

the ALJ’s evaluations of the medical evidence was in error. Specifically, plaintiff argues that 

ALJ Gatto failed to properly assess the claimant’s testimony on her capacity to function on a 

full-time basis. In addition, plaintiff relies on the agency’s Notice of Disapproved Claim, dated 

September 30, 2005, which states that the plaintiff cannot be expected to do “work requiring 

much lifting.” (Tr. 39, 289) The ALJ found that the plaintiff could perform her previous work. 

 Contrary to the plaintiff’s arguments, the ALJ’s RFC determination was supported by 

substantial evidence. There is no conflicting medical evidence supporting that the plaintiff has 

any limitations on what she can or cannot do in her daily activities. Also, there are no effects on 

the plaintiff’s ability to perform daily activities. Further, the plaintiff did not complain to her 

doctors of existing symptoms. 

Plaintiff testified that her medications have side effects and make her “a little sleepy.” 

(Tr. 315) Plaintiff does not complain about any side effects from any of her medications in her 

disability report. (Tr. 114) The record does show that the plaintiff reported to Dr. Haddad on 

May 10, 2005, that her medication Catapres made her “sleepy” (Tr. 239) and the record shows 

that other HBP medication, Maxzide, was also given on the same date. (Tr. 237) There are no 

further complaints to Dr. Haddad in the record. 

Plaintiff’s testimony about her medical symptoms is not corroborated by the medical 

evidence in the record. While the medical evidence shows the existence of plaintiff’s 

impairment, it does not establish that plaintiff is restricted from any physical activities nor has 

any limitations. On September 1, 2005, Dr. Sills reported that the plaintiff “was able to walk 

easily into the examination room and was able to get up on the table without difficulty.” (Tr. 

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251) Dr. Sills also reported that the plaintiff had no deformities and had full range of motion in 

her extremities. (Tr. 252) From March 2005 to May 2005, Dr. Haddad’s progress reports show 

plaintiff’s hypertension and blood pressure are controlled when the plaintiff takes her medication 

as directed. (Tr. 234-41) 

 Plaintiff’s record of daily activities also weakens her credibility. In her report of daily 

activities, plaintiff indicated that she prepares meals, watches her grandchildren, sews, talks on 

the telephone, does household chores, shops, drives, and goes to church. (Tr. 117-21) Plaintiff 

testified at her hearing that she must take frequent breaks while cleaning and doing dishes in her 

home. (Tr. 314) In plaintiff’s past work she cleaned and bathed patients. This job was lost due to 

downsizing while plaintiff was having surgery. (Tr. 111, 313) Plaintiff testified that she later 

attempted to return to work as a nurse assistant, but a liver infection forced her to quit. (Tr. 111, 

313) Her problems and complaints to her doctors have not been persistent on most of the medical 

statements, and the ALJ appropriately found that, “[t]his demonstrates that the condition was not 

disabling then and, absent evidence to the contrary, has not caused additional limitations since 

the alleged onset date.” (Tr. 16) Such daily activities, including her past relevant work, are 

consistent with the RFC finding. 

The opinion of the consulting physician, Dr. Sills, is the only opinion in the record and is 

consistent with the RFC. As stated by the ALJ: 

The only medical opinion in this record is that of the Michigan 

Disability Determination Service medical consultants, who 

concluded that the claimant is capable of performing the full range 

of medium work; i.e. lifting 25 pounds frequently and 50 pounds 

occasionally, with sitting/standing/walking up to six hours each for 

total of eight hours of work per day. (Tr. 17) 

Plaintiff appears to challenge the ALJ’s finding that the plaintiff was not credible. Even 

though defendant does not believe that the plaintiff challenges the ALJ’s credibility finding (Def. 

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Br. 9), the court’s review of the plaintiff’s argument is that the plaintiff appears to be seeking a 

review of the ALJ’s credibility finding. An ALJ’s findings regarding the credibility of the 

applicant “are to be accorded great weight and deference, particularly since an ALJ is charged 

with a duty of observing a witness’s demeanor and credibility.” Walters v. Comm’r of Social 

Sec., 127 F.3d 525, 531 (6th Cir. 1997). However, credibility assessments are not insulated from 

judicial review. Despite the deference due, such a determination must nevertheless be supported 

by substantial evidence. Id. With regard to allegations of disabling pain, the regulations provide 

that a claimant’s statements regarding her “pain or other symptoms will not alone establish that 

[she is] disabled[.]” 20 C.F.R. § 404.1529(a); see also Walters. Rather, 

there must be medical signs and laboratory findings which show 

that you have a medical impairment(s) which could reasonably be 

expected to produce the pain or other symptoms alleged and 

which, when considered with all of the other evidence...would 

lead to a conclusion that you are disabled. 20 C.F.R. § 

404.1529(a). 

Here, the ALJ states that the plaintiff’s complaints “concerning the intensity, persistence, 

and limiting effects of these symptoms are not credible to the extent they are inconsistent with 

the [RFC].” (Tr. 15) Such a determination is consistent with the evidence discussed above and 

according great weight and deference to the ALJ’s superior position to observe plaintiff’s 

testimony, substantial evidence exists to support the ALJ’s credibility determination. 

The plaintiff questioned the ALJ’s findings compared to the Notice of Disapproved 

Claim. Plaintiff notes that the SSA stated that the plaintiff could do light work, but the finding by 

the ALJ was that she could do medium work. Plaintiff does not cite to any case law to show that 

the Notice of Disapproved Claim is binding on the ALJ, nor does the defendant address the 

notice. The ALJ makes the final determination on a claimant’s RFC based on all of the evidence. 

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White v. Comm’r of Social Sec., 572 F.3d 272, 286 (6th Cir. 2009); Wilson v. Astrue, No. 08-57, 

*___, 2009 WL 1811879 (E.D. Mo. June 25, 2009). 

B. Effect of Obesity on RFC 

Within the meaning of the Social Security Act, “[o]besity is a complex, chronic disease 

characterized by excessive accumulation of body fat.” SS-R 02-1p. There are multiple ways to 

handle obesity under this ruling, but the ALJ is not required to make findings on the effects of 

obesity if none exist. More specifically, 

we will not make assumptions about the severity or functional 

effects of obesity combined with other impairments. Obesity in 

combination with another impairment may or may not increase the 

severity or functional limitations of the other impairment. We will 

evaluate each case based on the information in the case record. SSR 02-1p. 

With respect to her obesity, plaintiff first argues that the ALJ did not evaluate the 

plaintiff’s obesity or take her obesity into consideration in his decision.4

 However, the RFC 

determination discussed above, and which was supported by substantial evidence, clearly 

encompassed all of plaintiff’s severe impairments, including her obesity. Moreover, the ALJ also 

specifically addressed plaintiff’s claim about obesity: 

As for obesity, she has been advised to follow a reduced calorie 

diet, but has not been placed on activity limitations due to the 

disorder. There is no evidence of obesity-related musculoskeletal 

conditions such as arthritis in the knees or ankles, which would 

limit her ability to perform exertional work-related activities. (Tr. 

17) 

The ALJ also stated, “[t]here is no evidence of a medical condition, even obesity, that would 

require the claimant to rest as she indicated.” (Tr. 16) 

                                                           

4 Plaintiff relies on both SS-R 02-1p and SS-R 00-3p in support of this claim for disabling 

obesity. However, in 1999, SS-R 00-3p was superseded by SS-R 02-1p. This court will only 

consider SS-R 02-1p. 

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 Nothing in the plaintiff’s medical records support any finding that plaintiff’s medical 

problems were the result of her obesity or that her obesity prevented her from any type of 

activity. The ALJ determined that “[t]here is no evidence of a medical condition, even obesity, 

that would require the claimant to rest as she indicated.” (Tr. 16) Given the evidence discussed, 

such that determination regarding obesity, was supported by substantial evidence. 

V. Conclusion 

For the reasons stated above, the court recommends that the Commissioner’s motion for 

summary judgment be GRANTED, that plaintiff’s motion for summary judgment be DENIED, 

and that plaintiff’s complaint be DISMISSED WITH PREJUDICE. 

The parties to this action may object to and seek review of this Report and 

Recommendation, but are required to act within 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 (1985); Howard 

v. Secretary of HHS, 932 F.2d 505, 508 (6th Cir. 1991); United States v. Walters, 638 F.2d 947, 

949-50 (6th Cir 1981). The 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. 

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Within 10 days of service of any objecting party’s timely filed objections, the opposing 

party may file a response. The response shall be no more than 20 pages in length unless, by 

motion and order, the page limit is extended by the court. The response shall address each issue 

contained within the objections specifically and in the same order raised. 

S/Virginia M. Morgan                                              

       Virginia M. Morgan

       United States Magistrate Judge

Dated: October 29, 2009  

                                                                                                                                                           

PROOF OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record via the

Court’s ECF System and/or U. S. Mail on October 29, 2009.

        s/Jane Johnson   

                         Case Manager to

        Magistrate Judge Virginia M. Morgan

   

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