1

The format and style of this Report and Recommendation are intended to comply with the requirements of the

E-Government Act of 2002, Pub. L. 107-347, 116 Stat. 2899 (Dec. 17, 2002), the recently amended provisions of

Fed. R. Civ. P. 5.2(c)(2)(B), E.D. Mich. Administrative Order 07-AO-030, and guidance promulgated by the

Administrative Office of the United States Courts found at: http://jnet.ao.dcn/img/assets/5710/dir7-108.pdf. This

Report and Recommendation only addresses the matters at issue in this case and is not intended for publication in

an official reporter or to serve as precedent.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

DENISE JOSHUA, 

Plaintiff, 

v. CASE NO. 08-CV-14012

COMMISSIONER OF DISTRICT JUDGE VICTORIA A. ROBERTS

SOCIAL SECURITY, MAGISTRATE JUDGE CHARLES E. BINDER

Defendant. 

___________________________/ 

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION1

I. RECOMMENDATION

In light of the entire record in this case, IT IS RECOMMENDED that Plaintiff’s motion

be granted, Defendant’s motion be denied, and the case be REMANDED to the Commissioner for

further proceedings under Sentence Four of 42 U.S.C. § 405(g).

I. 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 claim for a period of disability, disability insurance

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In this circuit, where the Appeals Council considers additional evidence but denies a request to review the

ALJ’s decision, since it has been held that the record is closed at the administrative law judge level, those “AC”

exhibits submitted to the Appeals Council are not part of the record for purposes of judicial review. See Cline v.

Comm’r of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996); Cotton v. Sullivan, 2 F.3d 692, 696 (6th Cir. 1993).

Therefore, since district court review of the administrative record is limited to the ALJ’s decision, which is the final

decision of the Commissioner, the court can consider only that evidence presented to the ALJ. In other words,

Appeals Council evidence may not be considered for the purpose of substantial evidence review. 

2

benefits (DIB), and supplemental security income (SSI) benefits. This matter is currently before

the Court on cross-motions for summary judgment. (Doc. 8, 9.) Plaintiff also responded to

Defendant’s motion. (Doc. 10.) 

Plaintiff was 47 years of age at the time of the most recent administrative hearing.

(Transcript, Doc. 6 at 14.) Plaintiff’s relevant employment history includes work as a injection

molding operator and painter. (Tr. at 57.) Plaintiff last worked in February of 2005. (Id.)

Plaintiff filed the instant claims (DIB and SSI) on August 15, 2005, alleging that she

became unable to work on February 14, 2005. (Tr. at 46, 180.) The claims were denied at the

initial administrative stages. (Tr. at 36, 188.) In denying Plaintiff’s claims, the Defendant

Commissioner considered COPD (Chronic Obstructive Pulmonary Disease) and other respiratory

disorders as possible bases of disability. (Id.)

On January 24, 2008, Plaintiff appeared with counsel before Administrative Law Judge

(“ALJ”) Melvyn B. Kalt, who considered the instant application for benefits de novo. In a decision

dated February 22, 2008, the ALJ found that Plaintiff was not disabled because she could perform

a limited range of sedentary work. (Tr. at 11-18.) Plaintiff requested a review of this decision on

March 11, 2008. (Tr. at 9.)

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 July 23, 2008, when, after the review of an

additional exhibit2

 (Tr. at 189-90), the Appeals Council denied Plaintiff’s request for review. (Tr.

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at 5-7.) On September 17, 2008, Plaintiff filed the instant suit seeking judicial review of the

Commissioner’s unfavorable decision. (Doc. 1.)

B. Standard of Review

In enacting the social security system, Congress created a two-tiered system 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 which 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, 142, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987). If relief is not found during this 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

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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 ALJ is 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 based solely upon

an ‘intangible or intuitive notion about an individual’s credibility.’” Rogers, 486 F.3d at 247

(quoting S.S.R. 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, the 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 the 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).

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

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

including the Disability Insurance Benefits Program (“DIB”) of Title II, 42 U.S.C. §§ 401 et seq.,

and the Supplemental Security Income Program (“SSI”) 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

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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.

Step Three: If Plaintiff 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 [his] impairments and the fact that [he] is precluded from performing [his]

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

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national economy that [claimant] could perform given [his] 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. Administrative Record

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

presented to the ALJ indicates that Plaintiff was treated from 2005-2007 by Samuel A. Allen, D.O..

at Pulmonary & Critical Care. Dr. Allen observed the presence of suspected interstitial lung

disease, collagen vascular disease, and morbid obesity. (Tr. at 98, 124-26, 129-31, 135, 141-45,

155-58, 160-61, 177-78.) Dr. Allen conducted spirometry, lung volume, diffusion and airway

resistance testing as discussed more fully below and prescribed Advair and albuterol inhalers as

well as prednisone. (E.g., Tr. 98, 100, 103.) In May of 2005, Dr. Allen found that Plaintiff was

able to walk approximately five (5) minutes and “maintained [oxygen] saturation above 91% with

a max of 98%, mean of 94% and a minimum of 91%.” (Tr. at 97.) 

Throughout 2007, Plaintiff was also treated by other doctors at Pulmonary & Critical Care.

Andrew M. Staricco, M.D., F.C.C.P., and Steven Remus, PA-C, also treated Plaintiff for

sarcodisis, exertional dyspnea secondary to morbid obesity and deconditioning, and mild

obstructive sleep apnea. (Tr. at 119, 123, 127-28.) Dr. Allen also referred Plaintiff to Kristijan G.

Minanov, M.D., F.A.C.S., of the Cardiac Surgery Associates, for a left VATS biopsy for possible

interstitial lung disease and a nondiagnostic bronchoscopy. (Tr. at 104-07.) 

In September of 2005, a CT scan of Plaintiff’s thorax revealed “[n]o significant change in

the chronic pulmonary fibrotic changes especially involving both lungs since 5/10/2005 [and] [n]o

active infiltrates or interstitial lung disease changes are present at this time.” (Tr. at 162.) 

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On December 7, 2005, Plaintiff was also examined at the request of Disability

Determination Service by L. Banerji, M.D., who concluded that Plaintiff has pulmonary sarcodosis

with “no complications” and that “”[p]atient is not short of breath on normal physical exertion”

and osteoarthritis of the knee with “no functional limitation orthopedically from it at this time.”

(Tr. at 110.) Plaintiff is 60 inches tall and weighed 286 pounds thus Dr. Banerji noted “[m]arked

exogenous obesity” but with “no limitation of mobility or activity from it.” (Tr. at 110-11.)

Plaintiff underwent a polysomnography in March of 2006 which revealed “[m]ild to

moderate Obstructive Sleep Apnea.” (Tr. at 146-54.) Plaintiff underwent an echocardiogram for

possible pulmonary hypertension on October 26, 2006. (Tr. at 138-40.) The results of the

echocardiogram revealed “[c]hamber dimensions normal,” “[m]ild concentric left ventricular

hypertrophy,” “[s]mall pericardial effusion,” “[c]olor-flow Doppler suggests trace mitral

insufficiency and trace tricuspid insufficiency with right ventricular systolic blood pressure

estimated at 64 mmHG.” (Tr. at 138.) 

A Physical RFC Assessment concluded that Plaintiff can occasionally lift 20 pounds,

frequently lift 10 pounds, stand and/or walk about 6 hours in an 8-hour workday, and is unlimited

in her ability to push and/or pull, and that she is occasionally limited in climbing but had no other

postural, manipulative, visual, or communicative limitations. (Tr. at 88-91.) The assessment also

noted that Plaintiff should avoid even moderate exposure to fumes, odors, dusts, and gases and

should avoid concentrated exposure to hazards. (Tr. at 91.) 

Plaintiff testified at the administrative hearing that her biggest problem is her breathing and

that she tires very easily when she walks around. (Tr. at 197.) Plaintiff also stated that she uses

oxygen around three to four hours each day. (Tr. at 198.) When asked how long she could be on

her feet, Plaintiff answered, “No more than an hour or not even that long actually [] [a]bout fifteen

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minutes I’d have to go and sit down.” (Tr. at 199.) Despite these difficulties, Plaintiff testified she

is able to do her dishes, clean the kitchen, and drive. (Tr. at 201-02.) 

The ALJ asked the vocational expert (“VE”) to consider a hypothetical person with

limitations to sedentary work, in a clean environment, where she could occasionally use inhalers

or oxygen. (Tr. at 205.) The VE responded that such a person could perform sedentary

occupations such as information clerk, security monitor, receptionist, telephone operator and that

there are 8,000 such jobs in the metropoiltan area, and 15,000 in the state. (Tr. at 205.) 

 E. ALJ Findings

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

found at step one that Plaintiff had not engaged in substantial gainful activity since February 14,

2005. (Tr. at 17.) At step two, the ALJ found that Plaintiff’s severe pulmonary sarcoidosis and

interstitial lung disease complicated by morbid obesity “severe” within the meaning of the second

sequential step. (Id.) At step three, the ALJ found no evidence that Plaintiff’s combination of

impairments met or equaled one of the listings in the regulations. (Id.) At step four, the ALJ found

that Plaintiff lacked the residual functional capacity to perform her past relevant work as a machine

operator, painter, or hi-lo driver. (Id.) At step five, the ALJ found that Plaintiff possesses the

residual functional capacity to perform a limited rnage of sedentary work and that she is a younger

individual. (Id.) 

F. Arguments of the Parties

Plaintiff argues that substantial evidence fails to support the findings of the Commissioner.

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

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F.2d at 545. In other words, where substantial evidence supports the ALJ’s decision, it must be

upheld.

Plaintiff argues specifically that the ALJ failed to properly evaluate medical evidence that

demonstrated that she met or equaled the requirements of Listings 3.02(A), 3.02(B) and 3.02(C)(1)

of the Listings of Impairments. (Doc. 8 at 13.) Specifically, Plaintiff points out that as to Listing

3.02(A), a forced expiratory volume (FEV) equal to or less than 1.05L meets the listing and

equates to disability for Plaintiff’s height of sixty (60) inches. (Doc. 8 at 13.) Plaintiff further

notes that on April 11, 2005, Plaintiff’s FEV1 results were .63L before bronchodilator and .62

post-bronchodilator, and that Plaintiff was found to have given a good effort during the testing.

(Id.; Tr. at 100-01.) Plaintiff asserts that the ALJ “failed to acknowledge these test results, let

alone consider them or explain why he ultimately rejected them.” (Id.) Defendant counters that

although the April test results were sufficiently low to meet Listing 3.02A, “the highest FEV1

readings obtained in February 2005, two months earlier, and the highest FEV1 readings obtained

in December 2005, eight months later, in November 2006 and in October 2007 were above the

1.05 level required by Listing 3.02A (Tr. 100, 103, 114, 121, 132, 171, 174).” (Doc. 9 at 13.)

Defendant further argues that since readings two months before and eight months after the April

2005 reading were higher than 1.05, the condition did not persist for twelve months and thus,

Plaintiff is not entitled to a finding of disability under Listing 3.02A. (Id.)

As to Listing 3.02B, Plaintiff argues that for a person of plaintiff’s height, a forced vital

capacity (FVC) of 1.25L or less would qualify her as disabled. (Doc. 8 at 13.) Plaintiff offers

results of 1.31L before bronchodilator and 1.18L post-bronchodilator taken on April 11, 2005 and

concludes Plaintiff also met Listing 3.02B. (Id. at 14.) Plaintiff further contends the ALJ again

failed to acknowledge or explain why these results were rejected. (Id.) Defendant counters that

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the “regulations also state that the highest reading should be applied when determining whether

a claimant satisfies the criteria for Table II. 20 C.F.R. Part 404, Subpart P, Appendix 1, § 3.00E.”

Doc. 9 at 13.) Defendant further contends that although Plaintiff suggests the April 11, 2005

results satisfy the Listing, the results do not since the highest reading of 1.31L was above the 1.25L

level required by Table II of Listing 3.02B. (Id. at 14.) “Moreover, the highest FVC readings

obtained in February 2005, two months earlier, and the highest FVC readings obtained in

December 2005, eight months later, in November 2006 and in October 2007 were above the 1.25

level required by Listing 3.02B (Tr. 100, 103, 114, 121, 132, 171, 174).” (Id.) 

As to Listing 3.02C, Plaintiff notes that a claimant meets this Listing if she has a diffusing

capacity of the lungs for carbon monoxide (DLCO) less than 10.5ml/min/mm HG or less than 40%

of the predicted normal value. (Doc. 8 at 14.) Plaintiff offers test results of 7.55 and

7.67ml/min/mm HG (39% of the predicted normal value) from April 11, 2005 as proof that

Plaintiff satisfied this Listing. (Id.; Tr. at 100.) Plaintiff again argues that the ALJ failed to

acknowledge or explain his reasons for rejecting this evidence. (Id.) Defendant counters that the

test results were deficient and could be rejected because the source of the predicted values was not

reported (nor were the results submitted in the form of a table or nomogram) nor was there

evidence that the DLCO value used was the mean of at least two acceptable measurements, with

two acceptable tests within 10 % of each other or 3 ml CO(STPD)/min/mm HG as required by

Listing 3.02C(1) and 300F(1). (Doc. 9 at 14-15.) Defendant further contends that tests performed

in November of 2006 showed a DLCO value well above the minimum for Listing 3.02C and that

this evidence suggests Plaintiff did not meet the Listing in April of 2005. (Id. at 16.) 

Plaintiff cites Johnson v. Barnhart, 66 Fed. App’x 285 (3rd Cir. 2003), as support for his

argument that the ALJ failed to properly consider and give reasons for rejection of all these test

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results. (Doc. 8 at 15-16.) Defendant argues that a “heightened articulation standard at step three

of the sequential analysis is not required.” (Doc. 9 at 16, citing Bledsdoe v. Barnhart, 165 Fed.

App’x 408, 411 (6th Cir. 2006).) 

G. Analysis and Conclusions

Under Listing 3.02, the “highest values of the FEV1 and FVC, whether from the same or

different tracings, should be used to assess the severity of the respiratory impairment.” 20 C.F.R.

§ 404, Subpt. P, App. 1 § 3.00(E). “In the usual case, it is the post-bronchodilator values which

are used.” Uhlig v. Apfel, No. 97 Civ 7629SHS, 1999 WL 350862 , at *7, n.3 (S.D.N.Y. June 2,

1999). 

In addition, the “combined effects of obesity with respiratory impairments can be greater

than the effects of each of the impairments considered separately. Therefore, when determining

whether an individual has a listing-level impairment or combination of impairments, and when

assessing a claim at other steps of the sequential evaluation process, ...adjudicators must consider

any additional and cumulative effects of obesity.” 20 C.F.R. § 404, Subpt. P, App. 1 § 3.00(H)(1).

The ALJ is required to “review all evidence of impairments to see if the sum of impairments

is medically equivalent to a ‘listed impairment’” but the ALJ is not required to “articulate, at

length, the analysis of the medical equivalency issue.” Bledsdoe, 165 Fed App’x at 411. “On the

other hand, the ALJ’s findings should be as comprehensible and analytical as feasible, and should

include a statement of subordinate factual foundations on which ultimate factual conclusions are

based, so that a reviewing court may know the basis for the ALJ’s decision.” Holland v.

Massanari, 152 F. Supp. 2d 929, 934 (W.D. Tenn. 2001), citing Cotter v. Harris, 642 F.2d 700,

705 (3rd Cir. 1981). An ALJ’s “bare recital of boilerplate language” along with a “failure to

explain his implicit rejection of [] evidence or even to acknowledge its presence [is] error.” Cotter,

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642 F.2d at 707. Therefore, a “mere conclusory statement that a claimant’s impairment does not

meet or equal one of the listed impairments is insufficient because it is ‘beyond meaningful judicial

review.’” Williams v. Comm’r of Social Security, 156 Fed. App’x 501, 504 (3rd Cir. 2005)(citation

omitted). “Moreover, when confronted with contradictory evidence, the ALJ must explain his

reasons for accepting certain evidence and rejecting or discounting other evidence.” Id. 

In Johnson v. Barnhart, 66 Fed. App’x 285 (3rd Cir. 2003), the plaintiff suffered from

COPD. Under Listing 3.02A, one of her FEV1 tests, taken after her application was filed and

before the hearing, met the Listing requirement while two prior test results were above the Listing

level. Under Listing 3.02C(1), both DLCO figures met the Listing requirement. The ALJ and

district court, however, found she was not disabled. The Third Circuit reversed and remanded,

declining to determine whether or not the plaintiff met the Listing requirements, but concluding

that the “ALJ should not have simply ignored the DLCO test results or summarily dismissed

supporting [FEV1] test results as ‘inconsistent.’” Id. at 288. The Third Circuit further opined that

“[i]n line with his duty to explain why he credited certain medical evidence but not other medical

evidence, an ALJ must explain a decision to credit some test results while not crediting others.”

Id. at 289. Finally, the Court instructed that “the ALJ should not have considered whether

[plaintiff’s] activities of daily living were consistent with a finding that her condition met or

equaled either of the Listings [because]...an ALJ should not look beyond the medical evidence of

signs, symptoms and laboratory findings.” Id.

Similarly, in the instant case, Plaintiff proffers one set of test results per each relevant

Listing cited that supports her contention that she met the Listing requirements, while other test

results exceeded the Listing. The ALJ’s entire analysis of the evidence presented runs to less than

three typewritten pages. Nowhere did the ALJ cite, mention or discuss these nor any other test

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Although Defendant argues that the regulations required the ALJ to reject the test results that support her

contention she meets a Listing because there were other test results that were higher, I suggest that the “highest

reading” language applies to the relation between readings taken before or after the bronchodilator and does not

eliminate the ALJ’s duty to explain his conclusions. Uhlig, at *7.

 4For example, Defendant argues that the ALJ properly rejected the results under Listing 3.02C because the test

results were deficient for failure to report the source of the predicted values and failure to produce evidence that the

DLCO value used was the mean of at least two acceptable measurements. (Doc. 9 at 14-15.) However, since the ALJ

did not address the validity of the test scores, neither will this Report. The Commissioner remains free to challenge

the validity of the test scores upon remand. Johnson, 66 Fed. App’x at 289, n. 1. 

 5Gooch v. Sec’y of HHS, 833 F.2d 589, 592 (6th Cir. 1987).

14

results at all, nor did he indicate why he rejected the ones that met a Listing but accepted the ones

that did not meet the Listing.3

 Although the Commissioner proffers reasonable arguments and

potential explanations for why the ALJ may have done so,4

 the ALJ neither never articulated any

basis for his acceptance or rejection of evidence. Indeed, the ALJ never even articulated what

evidence he did accept. His analysis of the evidence is little more than a litany of conclusions.

I therefore suggest that the Appeals Counsel’s refusal to review the ALJ’s findings effectively

deprived this court of the ability to meaningfully review the ALJ’s decision. meaningfully when

it is given a conclusory statement that plaintiff did not meet the Listing without any foundational

factual explanation. Burnett v. Comm’r of Social Security, 220 F.3d 112, 119 (3rd Cir.

2000)(remanding where ALJ made a cursory determination at step three and failed to explain or

acknowledge medical evidence that supported the plaintiff’s position). Although “elaborate

articulation of the ALJ’s thought process” is not required,5

 some articulation of the rationale for

the conclusion and its evidentiary foundation is required. 

I further suggest that “[b]ecause the ALJ did not assess Plaintiff’s morbid obesity at Steps

2, 3, and 4 of the sequential evaluation, his decision failed to comply with a mandatory procedural

requirement set forth in the Commissioner’s Regulations.” Lowry v. Astrue, No. 3:07CV0311,

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2008 WL 4372658, at*6 (S.D. Ohio Sept. 19, 2008), citing Listing 1.00Q, 20 C.F.R. Part 404,

Subpart P, App. 1 and Social Security Ruling 02-01p, 2000 WL 628049.

Since remand is appropriate where the Commissioner applied an erroneous principle of law,

failed to consider certain evidence, failed to consider the combined effect of impairments or failed

to make a credibility finding, I suggest that remand is appropriate under Sentence Four of 42

U.S.C. § 405(g). Faucher v. Sec’y of H.H.S., 17 F.3d 171, 176 (6th Cir. 1994).

III. REVIEW

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

within ten (10) days of service of a copy hereof as provided for in 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); Frontier Ins. Co. v. Blaty, 454 F.3d 590, 596

(6th Cir. 2006); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005). 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. McClanahan, 474 F.3d at 837; Frontier

Ins. Co., 454 F.3d at 596-97. 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 concise, but commensurate in detail

with the objections, and shall address specifically, and in the same order raised, each issue

contained within the objections.

 s/ Charles` E Binder 

CHARLES E. BINDER 

Dated: April 2, 2009 United States Magistrate Judge

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CERTIFICATION

I hereby certify that this Report and Recommendation was electronically filed this date,

electronically served upon counsel of record via the Court’s ECF System and served on District Judge

Roberts in the traditional manner.

Date: April 2, 2009 By s/Patricia T. Morris 

Law Clerk to Magistrate Judge Binder

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