Report and Recommendation

Cross-Motions for Summary Judgment

1 Owens v. Comm’r; No. 09-10267

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TAMARA OWENS, Case No. 09-10267

Plaintiff, Arthur J. Tarnow

v. United States District Judge

COMMISSIONER OF Michael Hluchaniuk

SOCIAL SECURITY, United States Magistrate Judge

Defendant.

 /

REPORT AND RECOMMENDATION

CROSS-MOTIONS FOR SUMMARY JUDGMENT (Dkt. 12, 15)

I. PROCEDURAL HISTORY

A. Proceedings in this Court

On January 23, 2009, plaintiff filed the instant suit seeking judicial review of

the Commissioner’s unfavorable decision disallowing benefits. (Dkt. 1). Pursuant

to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(b)(3), District Judge Arthur J.

Tarnow referred this matter 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. 2). This matter is

currently before the Court on cross-motions for summary judgment. (Dkt. 12, 15).
1

 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

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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B. Administrative Proceedings

Plaintiff filed the instant claims on April 27, 2004, alleging that she became

unable to work on January 1, 1994. (Dkt. 6, Tr. at 64). She subsequently amended

her onset date to June 13, 2003. (Dkt. 6, Tr. at 425). The claim was initially

disapproved by the Commissioner on July 23, 2004. (Dkt. 6, Tr. at 80-83). 

Plaintiff requested a hearing and on October 5, 2006, plaintiff appeared with

counsel before Administrative Law Judge (ALJ) Joel G. Fina, who considered the

case de novo. In a decision by the Appeals Council dated February 21, 2007, the

ALJ found that plaintiff was not disabled. (Dkt. 6, Tr. at 13-25). Plaintiff

requested a review of this decision on March 4, 2007. (Dkt. 6, Tr. at 11). The

ALJ’s decision became the final decision of the Commissioner when, after the

review of additional exhibits1

 (AC- 1, 2, Dkt. 6, Tr. at 373-378), the Appeals

Council, on November 25, 2008, denied plaintiff’s request for review. (Dkt. 6, Tr.

at 5-8); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004). 
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3 Owens v. Comm’r; No. 09-10267

In light of the entire record in this case, I suggest that substantial evidence

supports the Commissioner’s determination that plaintiff was not disabled. 

Accordingly, 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 of the Commissioner be AFFIRMED.

II. STATEMENT OF FACTS

A. ALJ Findings

Plaintiff was 31years of age at the time of the most recent administrative

hearing. (Dkt. 6, Tr. at 428). Plaintiff’s relevant work history included

approximately 6 years as an assembler, a postal carrier, a stock person, and a

hairstylist. (Dkt. 6, Tr. at 89-90). In denying plaintiff’s claims, defendant

Commissioner considered degenerative joint disease of the right knee, bilateral

carpal tunnel syndrome, degenerative disc disease of the cervical spine, a bipolar

disorder, and a post traumatic stress disorder as possible bases of disability. (Dkt.

6, Tr. at 47).

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

September 28, 2000. (Dkt. 6, Tr. at 47). At step two, the ALJ found that plaintiff’s

impairments were not “severe” within the meaning of the second sequential step. 

Id. At step three, the ALJ found no evidence that plaintiff’s combination of
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impairments met or equaled one of the listings in the regulations. Id. At step four,

the ALJ found that plaintiff had no past relevant work. Id. The ALJ determined

that plaintiff had the following residual functional capacity:

After careful consideration of the entire record, the

undersigned finds that the claimant has the residual

functional capacity to lift 15 pounds. She should not

push or pull. She cannot perform work that requires

climbing, kneeling, crouching, crawling or prolonged

standing or walking. She cannot perform forceful,

sustained gripping, grasping or repetitive wrist movement

with the right hand. She cannot perform overhead work;

work that involves rapid or repetitive flexion, extension

or rotation of the neck; or work that involves maintaining

the neck in a flexed, extended or rotated position more

than momentarily. The claimant is limited to performing

simple, repetitive work.

 (Tr. at 19). At step five, the ALJ denied plaintiff benefits because plaintiff could

perform a significant number of jobs available in the national economy. Id.

B. Plaintiff’s Motion for Summary Judgment

According to plaintiff, there was both new and additional evidence in the

instant case that was not part of the record before ALJ Sobrino and there have been

changed circumstances that would provide a basis for a different finding.

Almost one month after ALJ Sobrino’s denial in 2003, plaintiff underwent an MRI

of the lumbosacral spine for low back pain radiating into the lower extremities. The

MRI showed “central broad-based disc herniation at the L5-S1 level, flattening the

thecal sac and appearing to touch the S1 nerve roots [bilaterally].” (Tr. 182). 
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5 Owens v. Comm’r; No. 09-10267

Plaintiff argues that such a radiographic finding would account for plaintiff’s

symptoms of low back pain radiating into the lower extremities. And, plaintiff

points out that three years after ALJ Sobrino’s denial, an x-ray of the left knee

revealed extensive degenerative changes within the left knee, along with an old

fracture of the tibial tuberosity, and a small amount of joint effusion. (Tr. 191). 

Plaintiff testified at the hearing that she has problems with both knees. (Tr.

455-456). Thus, based on the above medical records and plaintiff’s complaints, she

asserts that there are two new and additional severe impairments of degenerative

disc disease of the lumbar spine and degenerative joint disease of the left knee.

Plaintiff also argues that there have been changed circumstances in relation

to plaintiff’s psychiatric condition. ALJ Sobrino discussed in her 2003 denial a

consultative examination in 2001 by Dr. Balunas who diagnosed “major depressive

disorder, single episode, and moderate. He assigned a global assessment of

functioning [GAF] at 60, indicating mild to moderate symptoms.” (Tr. 43-44). In

connection with the current claim, plaintiff underwent another psychiatric

consultative examination in June 2004. She was diagnosed with a chronic pain

disorder associated with both psychological factors and a general medical

condition. Plaintiff was assessed a GAF of 50. Her prognosis was considered

guarded if her physical complaints do not improve. (Tr. 139-140) Plaintiff attaches

to her motion for summary judgment additional medical evidence purporting to
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show that her physical complaints did not improve, as shown by the surgery in

August 2008 for the disc herniation and disk disease at L5-S1. Thus, according to

plaintiff, there was clearly a change in her mental impairments.

Finally, plaintiff argues that the ALJ did not properly evaluate plaintiff’s

impairments in the hypothetical question and, therefore, the hypothetical is flawed. 

According to plaintiff, the ALJ never discussed or evaluated the Mental RFC

Assessment form where the agency doctor opined that plaintiff suffered from

moderate difficulties in maintaining social functioning. (Tr. 156). This limitation

is also greater than that found by ALJ Sobrino in her 2003 denial. (Tr. 45). At the

hearing, the VE was asked two hypotheticals that dealt with mental impairments

and both of those led the VE to testify that work would be precluded. (Tr. 475)

These hypotheticals were based largely on the Medical Source Statement

completed by plaintiff’s treating therapist, who also completed a letter outlining

her diagnosis and treatment. (Tr. 330, 372).

C. Commissioner’s Motion for Summary Judgment

According to the Commissioner, the ALJ thoroughly considered the

evidence since the prior ALJ’s decision of June 12, 2003, and reasonably

concluded that there was no significant change in plaintiff’s mental or physical

conditions, thus her RFC remained unchanged from the prior ALJ’s decision (Tr.

23). In his decision, ALJ Fina discussed the MRI that plaintiff refers to, but also
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7 Owens v. Comm’r; No. 09-10267

discussed clinical examination findings from about 1 year after the MRI which

indicated that, although plaintiff had some tenderness of the lumbosacral spine, she

was able to ambulate normally without any aid. (Tr. 21, 142). In addition, plaintiff

was able to get on and off the examination table without any difficulty (Tr. 142). 

On neurological examination, plaintiff had no motor or sensory deficits,

and she had normal reflexes and coordination. (Tr. 142). As such, the

Commissioner argues, the ALJ reasonably determined MRI did not provide a basis

to find that plaintiff’s RFC had changed since June 2003. 

With regard to the evidence cited by plaintiff relating to degenerative

changes and a small amount of joint effusion in her left knee (Tr. 191), the

evidence during the relevant period demonstrated that plaintiff’s knee range of

motion was only mildly to moderately limited. (Tr. 145). Further, it was noted

that plaintiff’s right knee joint was more affected than her left knee. (Tr. 142).

Thus, the Commissioner asserts that the evidence does not suggest that plaintiff’s

left knee problem would require greater limitations than the ALJ already

incorporated in his RFC finding due to her right knee problems. To the extent that

plaintiff demonstrated difficulty squatting and recovering due to knee pain, the

Commissioner argues that the ALJ found plaintiff could not perform any work that

required kneeling, crouching, crawling, prolonged standing, or prolonged walking.

(Tr. 19). According to the Commissioner, plaintiff does not cite to any record
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evidence indicating why the limitations provided by the ALJ would not fully cover

any restrictions plaintiff would have due to a left knee condition. 

The Commissioner also urges the Court to conclude that the ALJ correctly

concluded that the findings in the June 2004 mental evaluation, did not

demonstrate greater mental limitations than found by ALJ Fina. According to the

Commissioner, the ALJ thoroughly considered the June 2004 consultative

examination, in addition to the other record evidence when making his RFC

finding. (Tr. 21-22). Notably, the evaluators in June 2004 reported that,

“[t]hroughout the evaluation, it appeared that [Plaintiff] was resistant to give

specific information. She was irritated about testing procedures. She gave limited

eye contact and was guarded. She reported an adequate level of self esteem. Her

motor activity appeared normal. She could not describe her symptoms thoroughly

or specifically. Insight is limited.” (Tr. 138). The ALJ also considered that,

despite her alleged mental limitations, plaintiff was able to watch television, read

books, and visit with family. (Tr. 23, 138, 448-49). Based on the consultative

examiners’ report in addition to plaintiff’s statements, the Commissioner asserts

that the ALJ reasonably found that plaintiff had only mild limitations in her daily

activities and social functioning. (Tr. 23). The ALJ also determined that plaintiff

had moderate limitations in maintaining concentration, persistence, and pace, and
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he limited plaintiff to only simple, repetitive work. (Tr. 19, 23). The

Commissioner asserts that these limits were supported by the record evidence.

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. 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. 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. 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
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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); 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, 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, this Court may not reverse the
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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.” 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. 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. 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
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administrative record. 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

1. Burden of proof

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.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 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:
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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 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
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his or her age, education, and work experience, benefits

are denied.

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).

2. Substantial evidence

If the Commissioner’s decision is supported by substantial evidence, the

decision must be affirmed even if the court would have decided the matter

differently and even where substantial evidence supports the opposite conclusion. 
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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 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 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). 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.” 

Soc.Sec.R. 9602p, 1996 WL 374188, *5 (1996). The opinion of a treating

physician should be given controlling weight if it is “well-supported by medically

acceptable clinical and laboratory diagnostic techniques” and is not “inconsistent

with the other substantial evidence in [the] case record.” Wilson, 378 F.3d at 544;

20 C.F.R. § 404.1527(d)(2). A physician qualifies as a treating source if the

claimant sees her “with a frequency consistent with accepted medical practice for
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the type of treatment and/or evaluation required for [the] medical condition.” 20

C.F.R. § 404.1502. “Although the ALJ is not bound by a treating physician’s

opinion, ‘he must set forth the reasons for rejecting the opinion in his decision.’” 

Dent v. Astrue, 2008 WL 822078, *16 (W.D. Tenn. 2008) (citation omitted). 

“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 Social Security, 482 F.3d 873, 875 (6th Cir. 2007). 

“The opinion of a non-examining physician, on the other hand, ‘is entitled to little

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

v. Massanari, 55 Fed.Appx. 279, 284 (6th Cir. 2003).

B. Analysis and Conclusions

Generally, principles of res judicata require that the administration be bound

by this decision unless a change of circumstances is proved on a subsequent

application. Drummond v. Comm’r of Soc. Sec., 126 F.3d 837, 842 (6th Cir. 1997). 

Acquiescence Ruling 98-4(6) instructs that the agency “must adopt [the residual

functional capacity finding] from a final decision by an ALJ or the Appeals

Council on the prior claim in determining whether the claimant is disabled with

respect to the unadjudicated period unless there is new and material evidence

relating to such a finding... .” The Sixth Circuit applies collateral estoppel to

“preclude reconsideration by a subsequent ALJ of factual findings that have
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already been decided by a prior ALJ when there are no changed circumstances

requiring review.” Brewster v. Barnhart, 145 Fed.Appx. 542, 546 (6th Cir. 2005).

Under Drummond, a change in the period of disability alleged does not

preclude the application of res judicata. Slick v. Comm’r of Soc. Sec., 2009 WL

136890, *4, citing, Drummond, 126 F.3d at 839. The change in the alleged

disability period does not affect the application of res judicata where the issue

(whether plaintiff’s condition disables her and/or to what degree), is the same. 

Slick, at *4. Plaintiff must show that circumstances have changed since the first

hearing before the ALJ “by presenting new and material evidence of deterioration.” 

Id. at *5.

The residual functional capacity circumscribes “the claimant’s residual

abilities or what a claimant can do, not what maladies a claimant suffers fromthough the maladies will certainly inform the ALJ’s conclusion about the

claimant’s abilities.” Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 240 (6th Cir.

2002). “A claimant’s severe impairment may or may not affect his or her

functional capacity to do work. One does not necessarily establish the other.”

Yang v. Comm’r of Soc. Sec., 2004 WL 1765480, *5 (E.D. Mich. 2004). “The

regulations recognize that individuals who have the same severe impairment may

have different [residual functional capacities] depending on their other

impairments, pain, and other symptoms.” Griffeth v. Comm’r of Soc. Sec., 217
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Fed.Appx. 425, 429 (6th Cir. 2007); 20 C.F.R. § 404.1545(e). 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). The ALJ found that plaintiff’s medically determinable

impairment could reasonably be expected to produce the alleged symptoms, but

that plaintiff’s statements concerning the intensity, persistence and limiting effects

of these symptoms are not entirely credible. The ALJ also found that plaintiff had

not shown a change in circumstance from the 2003 decision.

As noted by the ALJ, an MRI of the lumbar spine on July 13, 2003 revealed

a central broad-based disc herniation at the L5-SI level, flattening the thecal sac

and appearing to touch the SI nerve roots. The ALJ found, however, that the

medical evidence of record established that plaintiff had a history of carpal tunnel

syndrome and degenerative disc disease of the cervical and lumbar spine that

predated the current alleged onset date of June 13, 2003. See e.g. June 12, 2003

Decision, Tr. at 44 (“Objective medical evidence demonstrates that degenerative

joint disease of the right knee, bilateral carpal tunnel syndrome, degenerative disc

disease of the cervical spine, a bipolar disorder, and a post traumatic stress disorder

impose significant limitations upon the claimant’s ability to work. The claimant

has severe impairments, as that term is defined in the applicable
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regulations.”). On July 6, 2004, S. Sayyid, M.D., examined plaintiff at the request

of the State agency. She complained of bilateral carpal tunnel syndrome, pain in

the neck and back and both knees. She reported that she had surgery on the right

knee, had hypertension and has also been treated for anxiety and depression. On

examination, plaintiff had no neurological deficits. There was some tenderness of

the lower cervical spine as well as the lumbosacral spine and positive tests

consistent with carpal tunnel syndrome. She was able to ambulate normally

without any aid, but had difficulty walking on her heels and toes, squatting and

recovering because of pain in her knees. Her range of motion of the lumbar spine

and the knees was mildly to moderately limited. Dr. Sayyid concluded that

plaintiff’s examination was consistent with degenerative disc disease and carpal

tunnel syndrome worse on the right than the left.

On June 3, 2004, the claimant was examined by Marianne Goergen, Psy.D.,

at the request of the State agency. Plaintiff’s complaints centered around her

physical problems and what she described as constant pain. She reported that she

was irritated easily because of her pain. She was vague about her sleeping

habits. Dr. Goergen’s impression was that of pain disorder associated with both

psychological features and a general medical condition and was chronic. Dr.

Goergen assigned a GAF of 50, indicating a moderate impairment of plaintiff’s

ability to function on a day to day basis.
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On August 17, 2004, well after the claimed onset day, plaintiff was playing

basketball and sprained her ankle. On January 7, 2005, plaintiff fell through four

stairs and sustained pain and bruises. She was diagnosed with a shoulder sprain. 

She was seen again on August 7, 2005. Plaintiff was seen in the emergency room

of Genesys Regional Medical Center in late 2005 and early 2006 for complaints of

shoulder and back pain. Plaintiff was prescribed physical therapy throughout

2005. She began physical therapy on January 4, 2005. Plaintiff was seen on 14

occasions during a three month period. The records again indicate that she failed

to show for many of her sessions. At discharge, the therapist noted that plaintiff

had a fair to good comprehension of what her home exercise program required. 

She was discharged on April 19, 2005, having partially met her goals. Plaintiff

testified at the hearing that the reason she was unable to get to her therapy sessions

was because she either did not have transportation or she was in too much pain. 

Plaintiff’s former primary care physician, A. Arif, M.D., submitted office

notes covering the period October 2005 through May 2006. These records are

consistent with plaintiff’s complaints of back and neck pain. On October 28, 2005,

plaintiff had an MRl of the left shoulder that was consistent with bursitis. The

office records of Dr. Arif indicated that plaintiff was seen about once every two

months. Plaintiff had intermittent muscle spasms, tenderness and limitation of

range of motion of the lumbar spine, cervical spine and the left shoulder. There
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21 Owens v. Comm’r; No. 09-10267

was no indication of any neurological deficits. Plaintiff was maintained on

Naprosyn for pain.

Plaintiff testified that she has been treated by a “Dr. Duncan” for her

depression and/or anxiety. As noted by the ALJ, Mr. Duncan is plaintiff’s

therapist and is a social worker, not a doctor. Plaintiff submitted a medical source

statement from Mr. Duncan dated September 7, 2006 indicating that she had been

diagnosed with bipolar disorder. Further, he opined that the claimant was

markedly or extremely limited in all areas of functioning including her ability to

relate and interact with supervisors and co-workers; understand and carry out

complex, or technical job instructions; deal with the public, understand and carry

out one or two step instructions; withstand the stress and pressures of an eight hour

work day and day to day activity; and her ability to handle funds. After the

hearing, plaintiff submitted a statement from Mr. Duncan dated February 6, 2007. 

Mr. Duncan reported that he has treated plaintiff about twice a month since

February 2, 2003. He noted that her presenting problems were diminished interest

in all, or almost all activities, weight and appetite disturbance, fatigue or loss of

energy and difficulty with concentration. The ALJ gave little weight to Mr.

Duncan’s medical source statement for several reasons. First, the ALJ noted that

because Mr. Duncan is a social worker and not a doctor, and while his opinion

must be considered, he is not a competent medical source as that term is defined by
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22 Owens v. Comm’r; No. 09-10267

20 C.F.R. § 404.1527. Second, the ALJ found that Mr. Duncan’s opinion was

contrary to the evidence of record as a whole. In particular, plaintiff testified that

when she worked she got along with her supervisors and co-workers; that she gets

along with family and lives with and cares for three minor children; and that she is

able to keep track of and pay her household bills. While she may have difficulty

carrying out complex or technical instructions, the ALJ concluded that there was

no indication that she would not be able to carry out simple, routine, repetitive

tasks, based on her ability to watch TV, read books, and visit with family and

friends. The ALJ concluded that the record as a whole supports a finding that

plaintiff’s activities of daily living were only mildly impaired by her psychological

problems. He also concluded that they were more significantly limited by her

physical problems. The ALJ concluded that plaintiff’s ability to maintain social

functioning was also only mildly limited by her alleged bi-polar disorder and

ability to maintain concentration, persistence and pace were moderately impaired

by her bi-polar disorder. He found no indication of any episodes of

decompensation. The ALJ concluded that plaintiff did not have a disease process

that resulted in such marginal adjustment that even a minimal increase in mental

demands or change in environment would predict to cause her to decompensate

and she did not have a history of an inability to function outside of a highly

supportive living arrangement for a year or longer.
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23 Owens v. Comm’r; No. 09-10267

As noted by the ALJ, where a final decision after a hearing on a prior

disability claim contains a finding of a claimant’s residual functional capacity, the

administrative law judge may not make a different finding in adjudicating a

subsequent disability claim (with an unadjudicated period arising under the same

title of the Act as the prior claim) unless new and additional evidence or changed

circumstances provide a basis for a different finding. In view of the additional

medical evidence and plaintiff’s testimony about her condition, the ALJ concluded

that there was no basis to find that plaintiff’s residual functional capacity has

changed since that time. As for the opinion evidence, the ALJ gave substantial

weight to the opinion of the State agency examiners who found that plaintiff could

perform a restricted range of light work consistent with the residual functional

capacity found above.

The undersigned suggests that the ALJ’s decision that plaintiff did not

demonstrate a change in her functional capacity is based on substantial evidence. 

Even if plaintiff is correct that her conditions changed or worsened, that does not

necessarily mean that her RFC changed. In this case, there is no such evidence and

the ALJ’s RFC finding was entirely consistent with the restrictions imposed by her

treating physicians. Indeed, plaintiff’s claim of additional restrictions and

limitations beyond those imposed by her treating physician seems based on the

mere existence of her condition, rather than on any resulting impairments or
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24 Owens v. Comm’r; No. 09-10267

specific restrictions. While the record reveals that plaintiff’s condition resulted in

several limitations, as found by the ALJ, the mere existence of a particular

condition is insufficient to establish an inability to work. See e.g., Howard v.

Comm’r of Soc. Sec., 276 F.3d 235, 240 (6th Cir. 2002) (The residual functional

capacity circumscribes “the claimant’s residual abilities or what a claimant can do,

not what maladies a claimant suffers from-though the maladies will certainly

inform the ALJ’s conclusion about the claimant’s abilities.”); Yang v. Comm’r of

Soc. Sec., 2004 WL 1765480, *5 (E.D. Mich. 2004) (“A claimant’s severe

impairment may or may not affect his or her functional capacity to do work. One

does not necessarily establish the other.”); Griffeth, 217 Fed.Appx. at 429 (“The

regulations recognize that individuals who have the same severe impairment may

have different residual functional capacities depending on their other impairments,

pain, and other symptoms.”). Moreover, plaintiff does not offer any opinion from

a treating physician that she was more physically limited than as found by the ALJ. 

See Maher v. Sec’y of Health and Human Serv., 898 F.2d 1106, 1109 (6th Cir.

1987), citing, Nunn v. Bowen, 828 F.2d 1140, 1145 (6th Cir. 1987) (“lack of

physical restrictions constitutes substantial evidence for a finding of

non-disability.”). To the extent that plaintiff points to other subjective limitations,

such subjective evidence is only considered to “the extent [it] can reasonably be

accepted as consistent with the objective medical evidence and other evidence.”
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25 Owens v. Comm’r; No. 09-10267

Ditz v. Comm’r of Soc. Sec., 2009 WL 440641, *10 (E.D. Mich. 2009), citing, 20

C.F.R. § 404.1529(a), Young v. Secretary, 925 F.2d 146, 150-51 (6th Cir. 1990);

Duncan v. Sec’y, 801 F.2d 847, 852 (6th Cir. 1986). In this case, there is no such

evidence and the ALJ’s RFC finding was entirely consistent medical evidence. 

Given that a severe impairment does not equate to disability, the

undersigned suggests that the ALJ’s decision to find plaintiff’s claimed limitations

to be only partially credible is supported by the substantial evidence in the record

and properly incorporated into the RFC finding. The ALJ’s obligation to assess

credibility extends to the claimant’s subjective complaints such that the ALJ “can

present a hypothetical to the VE on the basis of his own assessment if he

reasonably deems the claimant’s testimony to be inaccurate.” Jones, 336 F.3d at

476. 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., 1999 WL 98645, *3 (6th Cir. 1999). This

obligation to assess credibility extends to the claimant’s subjective complaints such

that the ALJ “can present a hypothetical to the VE on the basis of his own

assessment if he reasonably deems the claimant’s testimony to be inaccurate.” 

Jones, 336 F.3d at 476. 
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26 Owens v. Comm’r; No. 09-10267

In light of the medical and other evidence discussed above, I suggest that the

VE’s opinion is consistent with the findings of treating physicians and mental

health professionals, and can properly be considered substantial evidence. Thus,

the undersigned concludes that there is an insufficient basis on this record to

overturn the ALJ’s credibility determination and that the hypothetical relied on

properly reflected plaintiff’s limitations.

4. Conclusion

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 decisionmakers may go either way without interference from

the courts,” Felisky, 35 F.3d at 1035, as the decision is supported by substantial

evidence.

V. RECOMMENDATION

In light of the entire record in this case, I suggest that substantial evidence

supports the Commissioner’s determination that plaintiff was 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.

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

Recommendation, but are required to file any objections within 14 days of service,
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27 Owens v. Comm’r; No. 09-10267

as provided for in Federal Rule of Civil Procedure 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. Sec’y of Health and Human Servs., 932 F.2d 505 (6th

Cir. 1981). Filing objections that 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. Sec’y of Health and Human Servs., 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 Local Rule 72.1(d)(2), any objections must be

served on this Magistrate Judge.

Any objections must be labeled as “Objection No. 1,” “Objection No. 2,”

etc. Any objection must recite precisely the provision of this Report and

Recommendation to which it pertains. Not later than 14 days after service of an

objection, the opposing party may file a concise response proportionate to the

objections in length and complexity. Fed.R.Civ.P. 72(b)(2), Administrative Order

09-AO-042. The response must specifically address each issue raised in the

objections, in the same order, and labeled as “Response to Objection No. 1,”

“Response to Objection No. 2,” etc. If the Court determines that any objections are

without merit, it may rule without awaiting the response.

s/Michael Hluchaniuk 

Date: February 26, 2010 Michael Hluchaniuk

United States Magistrate Judge
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28 Owens v. Comm’r; No. 09-10267

CERTIFICATE OF SERVICE

I certify that on February 26, 2010, I electronically filed the foregoing paper

with the Clerk of the Court using the ECF system, which will send electronic

notification to the following: Mikel E. Lupisella, William L. Woodard, AUSA, and

the Commissioner of Social Security.

s/Darlene Chubb 

Judicial Assistant

(810) 341-7850

darlene_chubb@mied.uscourts.gov