UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JOYCE ANN GREEN,

Plaintiff, CIVIL ACTION NO. 09-11099

v. DISTRICT JUDGE JULIAN ABELE COOK

COMMISSIONER OF MAGISTRATE JUDGE MARK A. RANDON

SOCIAL SECURITY,

Defendant.

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REPORT AND RECOMMENDATION

ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

I. PROCEDURAL HISTORY

A. Proceedings in this Court

On March 24, 2009, Plaintiff filed the instant suit seeking judicial review of the

Commissioner’s decision disallowing benefits (Dkt. No. 1). Pursuant to 28 U.S.C. §

636(b)(1)(B) and Local Rule 72.1(b)(3), this matter was referred to the undersigned for the

purpose of reviewing the Commissioner’s decision denying Plaintiff’s claim for a period of

disability insurance and Supplemental Security Income benefits (Dkt. Nos. 2, 9). This matter is

currently before the Court on cross-motions for summary judgment (Dkt. Nos. 11, 14).

B. Administrative Proceedings

Plaintiff filed the instant claims on December 14, 2004, alleging that she became unable

to work on December 15, 2003 (Tr. 48, 165). The claim was initially disapproved by the

Commissioner on February 11, 2005 (Tr. 39). Plaintiff requested a hearing and on April 18,

2007, Plaintiff appeared without counsel before Administrative Law Judge (ALJ) Regina

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Sobrino, who considered the case de novo. In a decision dated August 2, 2007, the ALJ found

that Plaintiff was not disabled (Tr. 20). Plaintiff requested a review of this decision on

September 10, 2007 (Tr. 17). The ALJ’s decision became the final decision of the Commissioner

when, after the review of additional exhibits (AC-1-4, Tr. 7), the Appeals Council, on January

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23, 2009, denied Plaintiff’s request for review (Tr. 3); Wilson v. Comm’r of Soc. Sec., 378 F.3d

541, 543-44 (6th Cir. 2004). 

In light of the entire record in this case, I find 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. STATEMENT OF FACTS

A. ALJ Findings

Plaintiff was 38 years old at the time of the most recent administrative hearing (Tr. 28). 

Plaintiff’s past relevant work history included work as a fast food worker, cleaner and direct care

worker (Tr. 28). The ALJ applied the five-step disability analysis to Plaintiff’s claim and found

at step one that Plaintiff had not engaged in substantial gainful activity since December 15, 2003

(Tr. 25). At step two, the ALJ found that Plaintiff had the following “severe” impairments:

degenerative joint disease, carpal tunnel syndrome, obstructive sleep apnea, obesity, perfusion

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

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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 Cotton v.

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

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.

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defect with normal ejection fraction and anxiety (Tr. 25-26). At step three, the ALJ found no

evidence that Plaintiff’s combination of impairments met or equaled one of the listings in the

regulations (Tr. 26). Between steps three and four, the ALJ found that Plaintiff had the Residual

Functional Capacity (RFC) to:

 “lift, carry, push and pull 5 pounds frequently and 10 pounds

occasionally. She is able to stand/walk 2 hours per 8-hour work

day. She is able to sit up to 8 hours per 8-hour work day. She

should have the ability to alternate sitting and standing at will. She

should not climb ladders, ropes, or scaffolds. She can climb stairs

and stoop rarely. She should not kneel, crouch or crawl. She is

limited to frequent (not constant) handling, fingering, and feeling. 

She should not operate foot or leg controls or drive as a work duty. 

She should not be exposed to hazards or vibration. She should not

be exposed to extremes of temperature or humidity. She is limited

to performing simple, routine work. She should not have to make

change as a work duty” (Tr. 26). 

At step four, the ALJ found that Plaintiff could not perform her previous work as a fast food

worker, cleaner or direct care worker (Tr. 28). At step five, the ALJ denied Plaintiff benefits,

because the ALJ found that Plaintiff’s RFC permitted her to perform a significant number of jobs

available in the national economy, such as assembler (6,500 jobs available in the economy),

inspector (2,000 jobs available) and reception clerk (1,000 jobs available) (Tr. 29).

B. Administrative Record

Plaintiff has a limited education; she completed eleven grades in school, but was not

enrolled in special education (Tr. 28, 66, 240, 245). Plaintiff testified that she was functionally

illiterate and unable to read a newspaper, saying other people helped her read and complete

administrative forms and documents (Tr. 240-41). Plaintiff had previously described herself as 

being able to read and understand English, and write more than her name in English, and in her

past work she wrote and completed reports (Tr. 28, 61, 63, 72-73). She said she had difficulty

calculating change when shopping (Tr. 241).

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Plaintiff performed semi-skilled work in the past as a direct care worker (Tr. 28, 72-73).

She said she stopped working because her back, knees, and carpal tunnel syndrome flared up (Tr.

62, 242). She described engaging in extremely limited daily activities (Tr. 77-79, 248-50).

The medical record contains a single reference from September 2003, in which she reported

feeling depressed and having difficulty falling asleep (Tr. 117-18). Plaintiff was not prescribed

any psychotropic medications or referred for mental health examination or treatment at that time

(Id.).

An April 2007 examination record describes Plaintiff as complaining of “anxiety,” for

which she was prescribed medication (Xanax) (Tr. 126-27). Previous records from the same

treating source contain no mention of either anxiety or Xanax (Tr. 128-46).

The ALJ asked Timothy Shaner, the vocational expert at Plaintiff’s administrative

hearing, whether jobs existed that Plaintiff could perform given her education if she were capable

of a limited range of sedentary work, which did not require that she make change as a part of her

work duties (Tr. 253-54). Mr. Shaner testified that such an individual could perform a significant

number of jobs including work as an assembler, inspector, or reception clerk (Tr. 254-55). These

jobs required no more than “very simple” reading and writing skills (Tr. 255). A significant

number of these jobs could be performed by an individual who was functionally illiterate, with

less than third grade reading and writing abilities (Tr. 255). These jobs all required that the

worker complete a normal workday and work week, missing no more than one day a month (Tr.

255-56).

C. Plaintiff’s Claims of Error

Plaintiff’s sole argument before the Court is that the ALJ erred in properly considering

her severe mental impairments and their effect on her ability to work on a regular and sustained

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basis. See Plaintiff’s Brief at 6-9 (Dkt. 11). Plaintiff does not contest the ALJ’s decision that she

could perform the physical requirements of a limited range of sedentary-level work. Therefore,

the Court will only consider arguments relating to Plaintiff’s mental impairments.2

III. DISCUSSION

A. 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 agency determination

for exceeding statutory authority or for being arbitrary and capricious. See Sullivan v. Zebley,

493 U.S. 521 (1990). The administrative process itself is multifaceted in that a state agency

makes an initial determination that can be appealed first to the agency itself, then to an ALJ, and

finally to the Appeals Council. See Bowen v. Yuckert, 482 U.S. 137 (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).

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); 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

“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed

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argumentation, are deemed waived. It is not sufficient for a party to mention a possible argument in a most skeletal

way, leaving the court to ... put flesh on its bones.” McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997).

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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); 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.”); 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.”)

(quotation marks omitted); 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.”). “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.

If supported by substantial evidence, the Commissioner’s findings of fact are conclusive. 

42 U.S.C. § 405(g). Therefore, this 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);

Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc). 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;

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.” 

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Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994) (citations omitted), citing, Mullen, 800

F.2d at 545. 

The scope of this Court’s review is limited to an examination of the record only. See

Bass, 499 F.3d at 512-13; Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). 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. See 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

must discuss every piece of evidence in the administrative record. See Kornecky v. Comm’r of

Soc. Sec., 167 Fed. Appx. 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.”)

(internal citation marks omitted); see also Van Der Maas v. Comm’r of Soc. Sec., 198 Fed.Appx.

521, 526 (6th Cir. 2006). 

B. Governing Law

The “[c]laimant bears the burden of proving [her] 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.Appx. 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

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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 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).

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 the claimant 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 the

claimant can perform, in view of his or her age, education, and

work experience, benefits are denied.

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Carpenter v. Comm’r of Soc. Sec., 2008 WL 4793424 (E.D. Mich. 2008), citing, 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 of Soc. Sec., 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 [his] RFC and

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

and (g). 

C. Analysis and Conclusions

When Plaintiff applied for Social Security disability benefits, she primarily alleged that

she was unable to work due to physical impairments affecting her back, left knee, and right hand;

she also described experiencing asthma and emphysema, and said she had difficulty

concentrating (Tr. 61-62). The majority of the medical evidence of record concerns Plaintiff’s

physical complaints (Tr. 88-96, 103, 105-64). The ALJ made a detailed finding as to Plaintiff’s

capacity for the exertional, postural, environmental, and other physical requirements of work,

restricting her to a limited range of sedentary work (Tr. 26).

As stated earlier, Plaintiff does not contest the ALJ’s assessment of her physical

impairments, or the ALJ’s assessment that she could perform the physical requirements of a

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limited range of sedentary level work. Plaintiff’s sole argument is that the ALJ erred in assessing

her mental impairment.

Defendant avers that the record contains very little evidence of mental impairment.

Plaintiff points to a “Function Report” Plaintiff completed in January 2005, in which she

described difficulty “with concentration and focus and problems from a mental standpoint.”

Plaintiff does not identify any medical evidence in the record before the ALJ, other than the fact

that she was prescribed anxiety medication in April 2007, and had been described as depressed in

September 2003. See Plaintiff’s Brief at 9.

Defendant argues that the ALJ reasonably concluded that Plaintiff was mildly to

moderately impaired with respect to concentration, persistence, or pace, but could nevertheless

perform simple, routine work that did not require that she make change (Tr. 26). Defendant

observes that Plaintiff is correct in observing that in January 2005 she completed a form in a

manner that described herself as having problems paying attention and remembering things,

following spoken instructions, and getting along with other people including persons in authority

(Tr. 82). However, Defendant points out that Plaintiff’s subjective allegations of such limitations

were not sufficient to establish that she could not perform work of the level the ALJ attributed to

her.

The medical record does contain a single reference to Plaintiff as exhibiting depression,

in September 2003 (Tr. 117-18). However, the record does not show that this assessment was

based on anything other than Plaintiff’s description of herself as feeling depressed and having

difficulty falling asleep. Id. Plaintiff was not prescribed any psychotropic medications or

referred for mental health examination or treatment at that time.

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The only other mention in the medical records of emotional difficulties appears three and

one-half years later. An April 2007 examination record describes Plaintiff as complaining of

“anxiety,” for which she was prescribed medication (Xanax) (Tr. 126-27). Previous records from

the same treating source covering the preceding year contain no mention of either anxiety or

Xanax (Tr. 128-46).

Defendant’s arguments are well-taken. The record before the ALJ did not contain any

medical professional’s opinion that Plaintiff’s ability to work was significantly restricted as a

result of mental impairment. Based on the evidence, the ALJ reasonably concluded that Plaintiff

experienced mildly to moderately impaired concentration, persistence, or pace, but could

nevertheless perform simple, routine work which did not require that she make change (Tr. 26). 

Plaintiff also states that she began treating with mental health professionals “a few months

after the ALJ denial.” Plaintiff’s Brief at 9 (citing Tr. 211-24). However, the Court must affirm

the Commissioner’s conclusions unless it determines that the Commissioner failed to apply the

correct legal standards or 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). The evidence

Plaintiff submitted to the Appeals Council simply was not a part of the record before the ALJ.

The ALJ issued his decision in August 2007 (Tr. 29). Plaintiff submitted to the Appeals Council

records indicating treatment she received from November 2007 through May 2008 (Tr. 211-24).

These records describe Plaintiff as exhibiting schizoaffective disorder (Tr. 211-13, 218).

Because these records were not a part of the record before the ALJ, they cannot provide

the basis for a decision that the ALJ’s decision was not supported by substantial evidence. Cline

v. Comm’r of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996). The evidence Plaintiff submitted to the

Appeals Council can only be considered within the context of determining whether it warrants

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remand under the sixth sentence of 42 U.S.C. § 405(g) for the consideration of new and material

evidence. Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989).

Plaintiff bears the burden of showing that a remand is appropriate for the consideration of

new and material evidence. Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). Plaintiff fails to

advance any argument why the materials she submitted to the Appeals Council warrant remand

under the sixth sentence of 42 U.S.C. § 405(g).

Remand is not warranted for the consideration of the medical records Plaintiff submitted

to the Appeals Council and cites in her brief, because those records are not material to the issues

before the ALJ. These records are not time relevant, as they are all describe Plaintiff’s condition

after the ALJ’s August 2007 decision. Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230,

1233 (6th Cir. 1993). They do not contain a single mention of Plaintiff’s condition prior to the

ALJ’s decision, and do not date their findings back to the relevant period. Moreover, these

records describe Plaintiff as exhibiting schizoaffective disorder. The records of treatment

Plaintiff received prior to the ALJ’s decision contain no mention of such diagnosis; instead, they

contain only isolated references to anxiety and depression.

In sum, after review of the 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 decision makers may go either way without interference from the courts,” Felisky, 35 F.3d

at 1035, as the decision is supported by substantial evidence. 

III. RECOMMENDATION

Based on the foregoing, it is RECOMMENDED that Plaintiff’s motion for summary

judgment be DENIED, that Defendant’s motion for summary judgment be GRANTED and that

the findings and conclusions of the Commissioner be AFFIRMED. 

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

Recommendation, but are required to act within fourteen (14) days of service of a copy hereof as

provided for in 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(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.

Within fourteen (14) 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/Mark A. Randon 

MARK A. RANDON

UNITED STATES MAGISTRATE JUDGE

Dated: May 5, 2010 

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was served on the attorneys and/or parties of

record by electronic means or U.S. Mail on May 5, 2010.

S/Melody R. Miles 

Case Manager to Magistrate Judge Mark A. Randon

(313) 234-5542

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