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

SOUTHERN DIVISION

TAMMY L. WHEATON, 

Plaintiff, 

v. CASE NO. 09-CV-10447

COMMISSIONER OF DISTRICT JUDGE GEORGE CARAM STEEH

SOCIAL SECURITY, MAGISTRATE JUDGE CHARLES E. BINDER

Defendant. 

___________________________/ 

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION1

I. RECOMMENDATION

In light of the relevant evidence of 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, Defendant’s

Motion for Summary Judgment be GRANTED, and that the findings of the Commissioner be

AFFIRMED. 

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 the undersigned magistrate judge for the purpose of reviewing

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Plaintiff originally appeared on August 16, 2005. The ALJ sent interrogatories to Dr. William DeBolt, M.D.,

to provide a medical source statement and, after such answers were given, Plaintiff’s counsel requested a

supplemental hearing, which the ALJ permitted. (Tr. at 17-18.)

2

the Commissioner’s decision denying Plaintiff’s claim for a period of disability and disability

insurance benefits. This matter is currently before the Court on cross-motions for summary

judgment. (Docs. 11, 14.)

Plaintiff was 44 years of age at the time of the most recent administrative hearing.

(Transcript, Doc. 8 at 18, 38.) Plaintiff’s relevant employment history consists of 3 years as an

emergency medical technician, housekeeper, auto warranty salesperson, and bartender. (Tr. at 88.)

Plaintiff filed the instant claims on December 10, 2002, alleging that she became unable to work

on October 3, 2000. (Tr. at 76.) The claim was denied initially and upon reconsideration. (Tr. at

38, 41.) In denying Plaintiff’s claims, the Defendant Commissioner considered post-traumatic

headaches and organic mental disorders (chronic brain syndrome) as possible bases of disability.

(Id.)

On November 1, 2006,2

 Plaintiff appeared with counsel before Administrative Law Judge

(“ALJ”) Joseph D. Schloss, who considered the case de novo. In a decision dated January 25,

2007, the ALJ found that Plaintiff was not disabled. In the process, the ALJ concluded that

Plaintiff’s eligibility for benefits terminated on September 30, 2004, and therefore did not consider

medical evidence after that date. (Tr. at 18.) Plaintiff requested a review of this decision on

February 5, 2007. (Tr. at 12.)

 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 December 15, 2008, when, after the review

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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. 

3

of additional exhibits3 (Tr. at 915-31), the Appeals Council denied Plaintiff’s request for review.

(Tr. at 4-6.) On February 5, 2009, 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 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). Accord Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). In deciding

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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); 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). Accord 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 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.”))). See also 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 Soc. Sec.

Rul. 96-7p, 1996 WL 374186, *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,

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486 F.3d at 241; 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 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.”);

accord 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). “[Benefits] 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); see also 20 C.F.R. § 416.905(a) (SSI).

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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; 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

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considering relevant vocational factors.” Rogers, 486 F.3d at 241; 20 C.F.R. §§ 416.920(a)(4)(v),

(g).

D. Administrative Record

The evidence presented to the ALJ reveals that Plaintiff’s initial symptoms began in January

of 1997 when she fell down a flight of concrete stairs while working as an EMT. (Tr. at 326.) 

She was treated and doing quite well until October 3, 2000, when, while driving, she was struck

from behind by another vehicle. (Id.) 

Immediately following the accident, Plaintiff participated in physical therapy at the

McLaren Regional Rehab Center to address symptoms of nausea, vomiting, and vertigo. (Tr. at

247.) As of December 19, 2000, the physical therapist indicated that Plaintiff’s “symptoms have

been reduced to a certain degree, however, she continues to have significant nausea and vomiting

several times a day. Symptoms are elicited mostly by visual stimuli that have repetitive

characteristics, such as a nodding head.” (Id.) The therapist indicated that Plaintiff was “anxious

to get on with her life” and indicated that therapy would not continue unless the physician had “any

therapy related suggestions.” (Id.)

Plaintiff was also treated by Hussam El-Kashlan, M.D., of the University of Michigan’s (“U

of M”) Otolaryngology section, who concluded that Plaintiff “has a classic picture of migraineassociated dizziness.” (Tr. at 382-83.) He based this conclusion on his findings which showed

Plaintiff had an “intense reaction to visually-challenging environment, as well as her chronic

motion intolerance, photophobia and phonophobia.” (Tr. at 583.) At that time, her migraines were

a “significant impairment to her lifestyle.” (Id.)

Plaintiff participated in speech-language pathology services from November 2001 to July

2002. The discharge report indicated that she was “able to return to active employment on a

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reduced time schedule; however, still needing consultations of assistance in adjustments.” (Tr. at

303.) The report also found that Plaintiff’s language function, intelligibility, reading skills, writing

skills, voice, behavior, and hearing were all “within normal limits” or “within functional limits.”

(Tr. at 304.) However, Plaintiff was also found to have “[m]ild cognitive communicative

disorder.” (Tr. at 305.) 

Plaintiff sought vestibular rehabilitation with the U of M’s Division of Physical Therapy.

On May 30, 2002, the initial evaluation reported that the “Romberg test was normal with eyes open

or closed.” (Tr. at 245.) Plaintiff’s “gait was slow paced and appeared guarded but was steady.

180 degree turns were slow paced and steady.” (Id.) Plaintiff “was able to rise from chair easily

without use of UE demonstrating normal balance.” (Id.) Plaintiff also “had no c/o dizziness at

rest. Hallpike-Dix maneuver and roll test for BPPV were negative bilaterally.” (Id.) The physical

therapist found “no sign of Benign Paroxysmal Positional Vertigo (BPPV) on today’s exam and

if it is occurring it seems to be a small part of patient’s current symptoms. It is the one vestibular

disorder that can be resolved quickly with treatment but I cannot provide the treatment if I cannot

provoke the symptoms here in the clinic.” (Id.) Thus, the therapist stated that she “do[es] not

recommend vestibular exercises at this time . . . [and] encourage[d] [Plaintiff] to stay as active as

she can with walking each day.” (Id.) 

In September 2002, Sharon McDowell, M.D., of the Department of Physical Medicine and

Rehabilitation at U of M, stated that Plaintiff showed “tremendous improvement” since using

Depakote to prevent migraine headaches but that she was still experiencing vomiting and dizziness

that is “visually provoked” by things such as windshield wipers and strobe lights. (Tr. at 297.)

Plaintiff was also taking “classes working towards an associates degree in quality control and

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looking forward to a new career.” (Tr. at 297-98.) Plaintiff reported that her migraine headaches

were “tremendously improved” since using Depakote. (Tr. at 298.) 

As of May 2002, Plaintiff was reporting that although she had “some improvement,” she

continued to have “severe headaches.” (Tr. at 566.) In November 2002, Plaintiff’s headaches

occurred “a couple” times a week and a severe headache every “couple weeks or so.” (Tr. at 545.)

In June 2003, Plaintiff reported that “now that she is on Depakote and Pamelor, her headaches have

subsided significantly” but she “does have a mild headache in the morning daily, but this is not a

big deal” and she “does occasionally get migraines about every seven to ten days.” (Tr. at 539.)

Plaintiff was “sent back to Vestibular Rehab and she was again unable to tolerate the therapy.”

(Id.)

As of July 2003, Plaintiff reported that she had “much improvement in her migraine

headaches, which were previously daily.” (Tr. at 527.) Plaintiff was still “vomiting after

observing repetitive movement” and she was referred for therapy, but by August 2003, it was noted

that Plaintiff was unable to tolerate the vestibular therapy. (Tr. at 527, 533.)

Plaintiff was also treated with osteopathic manipulation “focusing on the cranial and

cervical regions.” (Tr. at 524.) In August 2003, after treatment, the cranial rhythmic index and

cranial motion improved “significantly.” (Id.) 

On September 22, 2003, Plaintiff reported that in the past week she had had “no migraine

headaches” and only two ordinary headaches whose symptoms were eliminated by taking Motrin.

(Tr. at 509.) Plaintiff also reported “2-3 episodes of vomiting daily depending on her activity;

however, this remains down from a previous level of 6 times per day.” (Id.) Plaintiff “felt so

much better this week that she went to a shooting range for the first time in 3 years, specific

activity that she used to derive great pleasure from.” (Id.) 

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Plaintiff’s treating physician in Flint, Michigan.

10

In October 2003, Plaintiff reported to Sharon McDowell, M.D., that she had four migraine

headaches in the previous two-week period and even woke up once because of the pain which was

“unusual for her.” (Tr. at 496.) “On a positive note she has had decreased vomiting only one to

two times per day and she had at least two days where there was no vomiting whatsoever.” (Id.)

“She [was] quite pleased with this as a trade off for the headaches over the last two weeks.” (Id.)

At that time, Plaintiff was “babysitting for her grandson a lot during the day” but had “quit her

class because she is overwhelmed . . . .” (Tr. at 500.) In November 2003, Dr. McDowell

“recommend[ed] that she begin vocational rehabilitation after she has finished her class work.”

(Tr. at 502.)

A social work status report for the period between August and November of 2003 indicated

that Plaintiff’s adjustment/depression had “[i]mproved, with depression in mild range most of

quarter; anxiety in mild range.” (Tr. at 274.) However, at the end of the quarter, Plaintiff had

“increased depression, withdrawl [sic] and excessive sleeping in response to stress of daughters

moving back home and friends advise [sic] to forget about returning to work.” (Id.) 

In March 2004, James A. Leonard, Jr., M.D., a physician at the University of Michigan’s

Department of Medicine and Rehabilitation, wrote to Dr. Shaheen4

 and stated that Plaintiff “has

had significant improvement from osteopathic manipulation” and that Plaintiff’s vomiting,

migraine headaches and muscle tension headaches “have also improved during her treatment in

this clinic.” (Tr. at 265.) Dr. Leonard noted that Plaintiff had “increased her activity level

significantly, . . . engages in a walking and exercise program [and] is driving somewhat more.”

(Id.) He also noted that “[u]nfortunately, in late January to early February, she had an exacerbation

of her symptoms” when she used an “elliptical trainer; she had immediate onset of vertigo, which

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was new for her . . . [but t]hrough intensive manipulation treatment as well as with increases in her

Zofran and medicine as needed, she has returned to near baseline for her.” (Id.) 

In August 2004, a McLaren Hospital Head and Spinal Cord Injury Program team conference

report indicated that Plaintiff’s “cervical spine is straightening” and that she also has “degenerative

disk disease in cervical spine and lumbar spine” likely due to the trauma suffered in the automobile

accident. (Tr. at 710.) Plaintiff also began psychotherapy sessions at McLaren Hospital beginning

in August 2004 and was “somewhat meeting goals” and showing “fair+” progress at the initial

stage. (Tr. at 738.) On September 30, 2004, a Rehabilitation Consultant concluded that Plaintiff

“has not been released by her doctors to work and based on her current problems, it does not

appear that that is going to occur.” (Tr. at 842.) 

A Physical Residual Functional Capacity (“RFC”) Assessment performed in July 2003

concluded that Plaintiff can occasionally lift up to 50 pounds, frequently lift 25 pounds, stand or

walk for about 6 hours in an 8-hour workday, sit about 6 hours in an 8-hour workday, and has an

unlimited ability to push or pull. (Tr. at 236.) No manipulative, visual, or communicative

limitations were found. (Tr. at 238-39.) The sole environmental limitation regards hazards. (Tr.

at 239.)

Plaintiff testified that “excessive motion” brings on vomiting, such as windshield wipers

or using a hand mixer, but that she can use a stand mixer. (Tr. at 940-41.) She further testified that

she has between two and five migraines per week. (Tr. at 941-42.) She indicated she can lift a

gallon of milk, but has difficulty lifting her two-year-old grandson. (Tr. at 942.) Plaintiff stated

that “[e]xcess walking turns into vomiting and back aches” and that “standing, you get vertigo and

back strain. The neck starts getting sore.” (Tr. at 943.) Plaintiff also indicated that if she sits for

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prolonged periods of time, her “[l]ower back and my neck hurts. And when [I] try to stretch

because of the pain, I end up with the shoulder tension, also.” (Tr. at 945.) 

The ALJ asked the Vocational Expert (“VE”) the following hypothetical:

[A]ssume a person 38 years of age, with 13 years of education, who’s done all that

same past relevant work that Ms. Wheaton has done, who has the following residual

functional capacity. She may occasionally lift up to 50 pounds, frequently 25. Can

stand and walk six hours out of an eight hour day, sit up to six hours – or eight

hours, according to the treating doctor, without any problem. Can occasionally

climb. Her push and pull would [be] limited to within the weight that I have given

you. She should avoid even moderate exposure to heights and moving machinery,

which would preclude climbing or ropes, ladders and scaffolds. Further, that person,

non-exertionally, would be – or slightly impaired in interacting appropriately with

the general public. Slight is less than moderate. Moderate means average, so it’s

a very small, if any, interaction with the general public restriction. Would be

moderately impaired in responding appropriately to work pressures in a usual work

setting, and slightly impaired in responding to changes in a routine work setting.

Would that person be able to do any of the past relevant work of this Claimant?

(Tr. at 980-81.) The VE responded that such a person would be able to perform warranty sales,

waitress, housekeeper, bartender, and trainer jobs. (Tr. at 981.) The ALJ then asked the VE to

consider a second hypothetical:

[I]f that person was limited to lifting occasionally 10 pounds, frequently less than

10 pounds, could only stand and walk two hours out of an 8 hour day, but has

unlimited sitting, but could alternate her sit and stand with the sit, stand, and walk

option. And that person further is limited to no more than 10 pounds in push and

pull with both upper and lower extremities, with a preclusion against climbing,

balancing, kneeling, crouching, crawling and stooping. Further, reaching in all

directions overhead can only be done occasionally, but has no difficulty in fingering,

handling or feeling. Could that – oh, wait a minute, and two others. Should avoid

the hazardous machinery and heights, and should avoid dust, odors, chemicals and

gases. I take it that person could not do any of the past relevant work?

(Tr. at 981-82.) To which the VE responded that such a person could perform the warranty sales

job. (Tr. at 982.) When the ALJ asked the VE to factor in that the person has migraines, Plaintiff’s

counsel indicated Plaintiff “might have three or four” per week. (Tr. at 983.) The ALJ noted that

people who have migraines at work do not always miss work so he asked counsel how many days

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per week Plaintiff would miss due to migraines and counsel responded “at least two days a week.”

(Id.) The ALJ stated that any person missing two days a week would be precluded from working.

(Id.) 

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 October 3,

2004, and that her eligibility for benefits ceased on September 30, 2004. (Tr. at 24.) At step two,

the ALJ found that Plaintiff’s status post-closed head injuries (post-traumatic head syndrome),

degenerative disc disease, cervical and lumbosacral spine, and reactive depression were “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 could perform her past relevant work as a warranty

salesperson, housekeeper and CPR trainer during the period in question. (Tr. at 25.) Therefore,

the ALJ found Plaintiff was “not disabled.” (Id.)

F. Analysis & Conclusions

1. Return to Prior Work

As noted, the ALJ concluded that Plaintiff had the ability to return to her prior work. (Tr.

at 21-22.) This finding ended the ALJ’s disability inquiry because Plaintiff could not make out

a prima facie showing of disability.

The Commissioner’s regulations state that the agency “will first compare our assessment

of your residual functional capacity with the physical and mental demands of your past relevant

work.” 20 C.F.R. § 416.960(b). “If you can still do this kind of work, we will find that you are

not disabled.” 20 C.F.R. § 404.1520(f). “‘By referring to the claimant’s ability to perform a

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“kind” of work, [the regulations] concentrate[] on the claimant’s capacity to perform a type of

activity rather than his ability to return to a specific job or to find one exactly like it.’” Boucher

v. Apfel, No. 99-1906, 2000 WL 1769520, at *7 (6th Cir. Nov. 15, 2000) (quoting Pass v. Chater,

65 F.3d 1200, 1204 (4th Cir. 1995)).

In determining the level of exertion required by prior work, the testimony of the VE should

be compared to the Dictionary of Occupational Titles (“DOT”). Bauer v. Barnhart, 168 Fed.

App’x 719 (6th Cir. 2006). Simply asking the VE if his testimony is consistent with the DOT

satisfies the requirements under Social Security Regulation 00-4p. Martin v. Comm’r of Social

Security, 170 Fed. App’x 369, 375-76 (6th Cir. 2006). 

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.

2. Substantial Evidence

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

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

upheld. 

In order to be eligible for disability benefits, a person must become disabled during the

period in which he or she has met the statutory special earnings requirements. 42 U.S.C. §§ 416(i),

423(c)(1)(B)(i). It is improper for an administrative law judge to concentrate on a claimant’s

abilities and condition at the date of hearing, rather than during the time period when the plaintiff

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met the special earnings’ requirements. Davis v. Califano, 616 F.2d 348 (8th Cir. 1979). See also

Mohr v. Bowen, No. 87-1534, 1988 WL 35265, at *2 (6th Cir. April 21, 1988). In this circuit, to

qualify for social security disability benefits, disability must be proven to exist during the time the

plaintiff was insured within the meaning of the special insured status requirements of the Act; if

the plaintiff becomes disabled after the loss of insured status, the claim must be denied even

though the plaintiff has indeed become disabled. Moon v. Sullivan, 923 F.2d 1175, 1182 (6th Cir.

1990); Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988); Estep v. Weinberger, 525 F.2d 757 (6th

Cir. 1975); Demandre v. Califano, 591 F.2d 1088 (5th Cir. 1979). Thus, as a general rule, the only

medical evidence relevant to the issue of disability is that medical evidence dealing with a

claimant’s condition during the period of insured status.

In Begley v. Mathews, 544 F.2d 1345 (6th Cir. 1976), the court held, however, that

“[m]edical evidence of a subsequent condition of health, reasonably proximate to a preceding time,

may be used to establish the existence of the same condition at the preceding time.” Id. at 1354.

Directly on point, the Sixth Circuit held in Higgs, 880 F.2d at 863, that the Commissioner must

consider medical evidence of a claimant’s condition after his date last insured to the extent that the

evidence is relevant to the claimant’s condition prior to the date last insured. 

As to any claim for disability benefits subsequent to September 30, 2004, the ALJ

concluded, and it is uncontested, that Plaintiff’s insured status ended on September 30, 2004. This

was the last quarter in which Plaintiff had 20 quarters of coverage within a 40-quarter period. 20

C.F.R. § 404.130(b). The ALJ therefore ruled that only the evidence pertaining to Plaintiff’s

condition prior to September 30, 2004, could be considered in support of the disability benefits

claim. (Tr. at 24.) On the basis of the Social Security Act and Estep, which controls in this circuit,

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I conclude that the ALJ properly found that Plaintiff’s insured status ceased as of September 30,

2004, and as a result, any refusal to consider later medical evidence was proper.

Plaintiff also contends that the ALJ “gave controlling weight to the opinion of Dr. DeBolt,

who testified by telephone from his office in Oregon” and who was not a treating physician but

rather a consultant. (Doc. 11 at 10.) Plaintiff further contends that the ALJ’s reliance on Dr.

DeBolt’s testimony to conclude that Plaintiff’s “vestibular dysfunction is only a subjective

complaint unsupported by objective medical signs” was clearly erroneous. (Id.) Thus, this

argument is related to the ALJ’s determination that Plaintiff’s testimony regarding the disabling

nature of her pain was not fully credible. Plaintiff further argues that Dr. DeBolt’s conclusion is

erroneous because Dr. McDowell “diagnosed a long-term vestibular dysfunction since the time of

the first accident, which was worsened by the second one.” (Id. at 11.) In addition, Plaintiff notes

that eight treating physicians opined that Plaintiff has equilibrium problems, nausea, vomiting and

headaches related to her head injuries and which are consistent with vestibular dysfunction. (Id.)

Finally, Plaintiff contends that “Dr. Shaheen specifically stated that Ms. Wheaton is disabled [and

that] [t]he only fair inference from the records of the other treating physicians is that in their

opinion, as well, Claimant is disabled.” (Id. at 12.) 

Of course, the question before the Court is not what the most fair inference is from the

record evidence, but rather whether the ALJ’s decision is supported by substantial evidence. In

weighing the opinions and medical evidence, the ALJ must consider relevant factors such as the

length, nature and extent of the treating relationship, the frequency of examination, the medical

specialty of the treating physician, the opinion’s evidentiary support, and its consistency with the

record as a whole. 20 C.F.R. § 404.1527(d)(2)-(6). Therefore, a medical opinion of an examining

source is entitled to more weight than a non-examining source and a treating physician’s opinion

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is entitled to more weight than a consultative physician who only examined the claimant one time.

20 C.F.R. § 404.1527(d)(1)-(2). See also Rogers, 486 F.3d at 242 (stating that the “treating

physician rule,” which provides that “greater deference is usually given to the opinions of treating

physicians than to those of non-treating physicians,” is a key governing standard in social security

cases).

“Claimants are entitled to receive good reasons for the weight accorded their treating

sources independent of their substantive right to receive disability benefits.” Smith v. Comm’r of

Soc. Sec., 482 F.3d 873, 875 (6th Cir. 2007). Therefore, a decision denying benefits “must contain

specific reasons for the weight given to the treating source’s medical opinion, supported by the

evidence in the case record, and must be sufficiently specific to make clear to any subsequent

reviewers the weight the adjudicator gave to the treating source’s opinion and the reasons for that

weight.” S.S.R. 96-2p, 1996 WL 374188, at *5 (1996). See also Rogers, 486 F.3d at 242. “[A]

failure to follow the procedural requirement of identifying the reasons for discounting the opinions

and for explaining precisely how those reasons affected the weight accorded the opinions denotes

a lack of substantial evidence, even where the conclusion of the ALJ may be justified based upon

the record.” Rogers, 486 F.3d at 243.

The opinion of a treating physician should be given controlling weight if it is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques” and is “not

inconsistent with the other substantial evidence in [the] case record.” Wilson v. Comm’r of Soc.

Sec., 378 F.3d 541, 544 (6th Cir. 2004); 20 C.F.R. § 404.1527(d)(2). A physician qualifies as a

treating source if the claimant sees the physician “with a frequency consistent with accepted

medical practice for the type of treatment and/or evaluation required for [the] medical condition.”

20 C.F.R. § 404.1502. “The opinion of a non-examining physician, on the other hand, ‘is entitled

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to little weight if it is contrary to the opinion of the claimant’s treating physician.’” Adams v.

Massanari, 55 Fed App’x 279, 284 (6th Cir. 2003) (quoting Shelman v. Heckler, 821 F.2d 316, 321

(6th Cir. 1987)).

In the instant case, Plaintiff argues that Dr. Debolt’s findings were given too much weight

by the ALJ and that the ALJ should have instead given controlling weight to the opinion of Dr.

McDowell, Plaintiff’s treating physician. Non-examining physician opinions, however, are only

to be given little weight if contrary to the treating physician’s opinion. Adams, supra. I suggest

that there is no conflict between them and, thus, it was not improper for the ALJ to give weight to

Dr. DeBolt’s opinion. Consistent with Dr. Debolt, and as discussed by the ALJ, Dr. McDowell

noted that increased dosages of Depakote “resulted in ‘tremendous improvement’ in the

headaches.” (Tr. at 21, 298.) Dr. McDowell also recommended in November 2003 that Plaintiff

“begin vocational rehabilitation” after she completed the classes she was taking. (Tr. at 502.) In

addition, as Defendant notes, Plaintiff has not cited any medical opinions in the record that actually

conclude that Plaintiff is disabled due to vestibular dysfunction. (Doc. 14 at 13.) 

Plaintiff also contends that the ALJ improperly discounted Plaintiff’s credibility because

“consideration of the entire case record rationally leads only to the conclusion that Claimant’s

symptoms are disabling.” (Doc. 11 at 16.) Plaintiff notes that the ALJ relied on record evidence

such as Dr. Vredevoogd’s testimony, Plaintiff’s babysitting her grandson, and Plaintiff’s daily

activities, but disagrees with the ALJ’s conclusion. (Doc. 11 at 16-18.)

The ALJ found that Plaintiff’s complaints of disabling pain were not fully credible. (Tr.

at 23-24.) Social Security Regulations prescribe a two-step process for evaluating subjective

complaints of pain. The plaintiff must establish an underlying medical condition and (1) there

must be objective medical evidence to confirm the severity of the alleged pain rising from the

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condition or (2) the objectively determined medical condition must be of a severity which can

reasonably be expected to give rise to the alleged pain. 20 C.F.R. § 404.1529(b); Jones v. Sec’y

of Health & Human Servs., 945 F.2d 1365, 1369 (6th Cir. 1991) (citing Duncan v. Sec’y of Health

& Human Servs., 801 F.2d 847, 853 (6th Cir. 1986)). If a plaintiff establishes such an impairment,

the ALJ then evaluates the intensity and persistence of the plaintiff’s symptoms. 20 C.F.R. §

404.1529(c); Jones, 945 F.2d at 1369-70. In evaluating the intensity and persistence of subjective

symptoms, the ALJ considers objective medical evidence and other information, such as what may

precipitate or aggravate the plaintiff’s symptoms, what medications, treatments, or other methods

plaintiff uses to alleviate his symptoms, and how the symptoms may affect the plaintiff’s pattern

of daily living. Id.

The issue is whether the ALJ’s credibility determinations are supported by substantial

evidence. An ALJ’s findings based on the credibility of an applicant are to be accorded great

weight and deference, particularly since the ALJ is charged with the duty of observing a witness’s

demeanor and credibility. Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997).

When weighing credibility, an ALJ may give less weight to the testimony of interested witnesses.

Cummins v. Schweiker, 670 F.2d 81, 84 (7th Cir. 1982) (“a trier of fact is not required to ignore

incentives in resolving issues of credibility”); Krupa v. Comm’r of Soc. Sec., No. 98-3070, 1999

WL 98645 at *3 (6th Cir. Feb. 11, 1999) (unpublished).

On the record evidence, I suggest that substantial evidence supports the findings of the ALJ

that Plaintiff’s testimony regarding the level of pain was not fully credible. As noted by Plaintiff,

the ALJ cited record evidence in support of his conclusion, e.g., Dr. Vredevoogd’s testimony,

Plaintiff’s babysitting her grandson, and Plaintiff’s daily activities. (Doc. 11 at 16-18.) In

addition, throughout 2003 and 2004 Plaintiff herself and various treating physicians reported that

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Plaintiff was enjoying continuing progress regarding headaches and vomiting. (Tr. at 265, 496,

502, 509, 738.) Plaintiff even stated that she “felt so much better . . . she went to a shooting range

for the first time in 3 years, specific activity that she used to derive great pleasure from.” (Tr. at

509.) Plaintiff was also “somewhat meeting goals” and showing “fair+” progress in her

psychotherapy sessions in 2004. (Tr. at 738.)

The ALJ’s findings also follow the opinions of the vocational expert which came in

response to detailed and proper hypothetical questions that accurately portrayed plaintiff’s

individual impairments in harmony with the relevant objective record medical evidence. See

Griffeth v. Comm’r of Soc. Sec., 217 Fed. App’x 425, 429 (6th Cir. 2007); Varley v. Sec’y of

Health & Human Servs., 820 F.2d 777, 779 (6th Cir. 1987).

After review of the relevant record, I conclude 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, as the decision is supported by substantial evidence. 

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

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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: August 20, 2009 United States Magistrate Judge

CERTIFICATION

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

electronically served on counsel of record via the Court’s ECF System.

Date: August 20, 2009 By s/Patricia T. Morris 

Law Clerk to Magistrate Judge Binder

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