UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TAMMY L. WHEATON,

Plaintiff,

Case No. 09-10447

vs. HON. GEORGE CARAM STEEH

MICHAEL J. ASTRUE,

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

_____________________________/

ORDER ACCEPTING REPORT AND RECOMMENDATION (# 15);

GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (# 14);

DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (# 11); AND

DISMISSING PLAINTIFF'S CLAIMS

This matter is before the court on the parties' cross-motions for summary judgment

as to plaintiff Tammy Wheaton’s claim for judicial review of defendant Commissioner of

Social Security's denial of his application for disability insurance benefits. Wheaton alleges

she is disabled due to vestibular dysfunction (including vomiting, nausea, and migraine

headaches) caused by a vehicle collision. The matter was referred to Magistrate Judge

Charles E. Binder, who issued a Report and Recommendation on August 20, 2009

recommending that defendant Commissioner's motion be granted, that Wheaton's motion

be denied, and that the findings of the Commissioner be affirmed.

Wheaton filed her benefit application on December 10, 2002, alleging that she

became unable to work on October 3, 2000. Administrative Law Judge (ALJ) Joseph D.

Schloss held a hearing on August 16, 2005 and a supplemental hearing on November 1,

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 At Step 1, the claimant must demonstrate he is not gainfully employed at the time

of application. Step 2 requires the claimant to show that he suffers from a "severe"

impairment. Step 3 requires the claimant to show that his severe impairment meets or

equals an impairment as listed in Appendix 1, Subpart P, Regulations No. 4 of the Social

Security Act. See 20 C.F.R. § 404.1520(f). Step 4 entails the Commissioner's review of

the claimant's residual functional capacity and relevant past work to determine if the

claimant can perform his past work. If not, the analysis proceeds to Step 5 to determine

whether the claimant can perform any other work available in the economy. See Howard

v. Commissioner of Social Security, 276 F.3d 235, 238 (6th Cir. 2002).

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2006. ALJ Schloss issued a January 25, 2007 decision finding that Wheaton’s disability

eligibility expired on September 20, 2004 and that Wheaton was not qualified for benefits

because her impairments did not meet or equal one of the listings in the regulations and

because she retained the functional capacity to perform her past work as a warranty

salesperson, housekeeper and CPR trainer.1

 The Appeals Council denied Wheaton’s

request for review on December 15, 2008. 

An individual may obtain review of any final decision made after a hearing by the

Commissioner of Social Security by filing an action in federal district court. 42 U.S.C. §

405(g). The court may affirm, modify, or reverse the Commissioner’s decision, with or

without remand. Id. Findings of fact by the Commissioner are conclusive if supported by

substantial evidence. Id. The Commissioner's decision must be affirmed if the decision is

supported by substantial evidence in the record and the Commissioner applied the correct

legal standard. Longworth v. Comm'r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005). 

Plaintiff sought review of the Commissioner’s decision. Both parties filed summary

judgment motions. In adjudicating the competing motions for summary judgment in favor

of the Commissioner, Magistrate Judge Binder found that the ALJ utilized the proper legal

standard in applying the Commissioner’s five-step disability analysis to Wheaton’s claim

and that the ALJ’s credibility determinations and findings are supported by substantial

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evidence. 

A party may file timely written objections to a magistrate judge’s proposed findings

and recommendations. 28 U.S.C. § 636(b)(1). "A judge of the court shall make a de novo

determination of those portions of a report or specified proposed findings or

recommendations to which objection is made." Id. "A judge of the court may accept,

reject, or modify, in whole or in part, the findings or recommendations made by the

magistrate." Id. 

On August 26, 2009, plaintiff filed objections to Magistrate Judge Binder’s Report

and Recommendation and the defendant filed a response on September 10, 2009.

Wheaton objects that Magistrate Judge Binder’s opinion served to “rubber stamp” the

decision of the ALJ rather than “truly analyzing” the ALJ’s decision. Specifically, Wheaton

objects that Magistrate Judge Binder failed to consider certain information, misunderstood

information and that the ALJ improperly prevented Wheaton’s counsel from asking

questions of the vocational expert.

Wheaton objects that while Magistrate Judge Binder pointed out that a physical

therapist found that Hallpike-Dix test was negative, Magistrate Judge Binder failed to

mention that treating physician Dr. Sharon McDowell noted on December 22, 2003 that “the

patient continues to get nauseated even with brief movement back and forth of her eyes.

Again, I am able to elicit this on Dix-Hallpike Maneuver during the examination.” Magistrate

Judge Binder did not specifically mention Dr. McDowell’s December 22, 2003 notes, but

recognized that Wheaton experienced headaches and vomiting episodes throughout 2003.

While Magistrate Judge Binder recognized these symptoms, Magistrate Judge Binder also

recognized during 2003 that Wheaton demonstrated improvement and that plaintiff reported

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in September 22, 2003 that she “felt so much better this week that she went to a shooting

range for the first time in 3 years.” It is not possible for a Magistrate Judge to mention

every piece of medical evidence in the Report and Recommendation. Because Magistrate

Judge Binder did reference a great amount of Wheaton’s medical history in the Report and

Recommendation, Magistrate Judge Binder’s findings were based fairly upon the entire

record. 

Next, Wheaton states that Dr. Shaheen stated on October 6, 2000, that Wheaton

“was unable to work due to motor vehicle accident” and argues that none of Wheaton’s

treating doctors disagreed with Dr. Shaheen’s statement and that none have released her

to return to work. It is unclear if any of the other doctors knew of Dr. Shaheen’s statement

or were asked to comment on it. Even if the other doctor’s knew of Dr. Shaheen’s

statement, Dr. Shaheen’s opinion is not entitled to controlling weight. See 20 C.F.R. §

404.1527(e)(1) (stating “We are responsible for making the determination or decision about

whether you meet the statutory definition of disability . . . A statement by a medical source

that you are ‘disabled’ or ‘unable to work’ does not mean that we will determine that you

are disabled.”) Furthermore, Dr. Shaheen’s statement was made in 2000 and Wheaton

had shown great improvement since that time. 

Next, the plaintiff argues that the Magistrate Judge and the ALJ misunderstood the

July 2002 records from the McLaren Head and Spinal Cord Injury Program “when he stated

that the July 2002 discharge report suggested she was ‘able to return to active employment

on a reduced time schedule.” Plaintiff argues that the report shows that Wheaton was

“severely limited regarding her ‘ability to pursue career goals.’” Plaintiff does not identify

where the Magistrate Judge or the ALJ demonstrates a “misunderstanding” of the July

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2002 report. A complete review of the report, however, demonstrates that the July 2002

report recognized that her career goals were limited, but that she “should continue with

planning other ideas and seeking potential work possibilities.” The report recommends

that plaintiff seek potential work possibilities, and recognizes that plaintiff may have limited

career options, but that she could return to active employment. 

Plaintiff also objects that the Magistrate Judge and the ALJ improperly gave weight

to terms such as “continuing progress” and “felt so much better,” which the plaintiff argues

are subjective and irrelevant terms. These statements are indications that plaintiff’s

condition had improved and plaintiff has presented no evidence that they were made

improperly or without foundation. Nothing in the record demonstrates that the Magistrate

Judge gave improper weight to the statements or improperly relied on them. 

Plaintiff also objects that the ALJ improperly prevented Wheaton’s counsel from

asking questions of the vocational expert. Plaintiff does not cite to a place in the record

where plaintiff’s counsel was improperly denied the right to ask questions and does not

present any other evidence that the ALJ improperly limited Wheaton’s counsel from asking

questions. 

Finally, the plaintiff alleges that the ALJ mistakenly attributed the Residual Functional

Capacity Assessment ("RFC") to a treater rather than a state agency physician,

demonstrating that the decision was not “based on a consideration of the entire case

record.” At the hearing, the ALJ misstated that the RFC was from a treating source. In the

final report, the ALJ properly attributed the RFC to the state agency physician. A

misstatement that is later corrected is not evidence precluding a finding that the decision

is not supported by substantial evidence. 

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Plaintiff's objections are hereby OVERRULED. Consistent with the analysis herein,

the court hereby ACCEPTS Magistrate Judge Binder's August 20, 2009 Report and

Recommendation, GRANTS defendant Commissioner's motion for summary judgment, and

DENIES plaintiff Tammy Wheaton’s motion for summary judgment. Wheaton’s claims are

hereby DISMISSED with prejudice in their entirety. 

SO ORDERED.

Dated: November 19, 2009

s/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

November 19, 2009, by electronic and/or ordinary mail.

s/Josephine Chaffee

Deputy Clerk

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