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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DARLENE WHISNANT

Plaintiff, Civil Action No. 09-10101

v. HON. PATRICK J. DUGGAN

 U.S. District Judge

HON. R. STEVEN WHALEN

COMMISSIONER OF SOCIAL U.S. Magistrate Judge

SECURITY,

Defendant.

_____________________________/

REPORT AND RECOMMENDATION

Plaintiff Darlene Whisnant brings this action under 42 U.S.C. §405(g), challenging

a final decision of Defendant Commissioner denying her application for Disability Insurance

Benefits (“DIB”) under the Social Security Act. Both parties have filed summary judgment

motions which have been referred for a Report and Recommendation pursuant to 28 U.S.C.

§ 636(b)(1)(B). For the reasons set forth below, I recommend that Defendant’s motion be

DENIED and Plaintiff’s motion GRANTED, remanding the case is remanded to the

administrative level for further proceedings. 

PROCEDURAL HISTORY

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 On September 4, 2002, Plaintiff filed an application for DIB, alleging disability as

of September 22, 2000 (Tr. 65-67). After the initial denial of her claim, Plaintiff requested

an administrative hearing, held on May 24, 2005 in Flint, Michigan before Administrative

Law Judge (“ALJ”) Bennett S. Engelman (Tr. 229). Plaintiff, represented by attorney Mikel

Lupisella, testified, as did Vocational Expert (“VE”) Judith Findora (Tr. 232-247, 247-251).

On October 31, 2005, ALJ Engelman found that Plaintiff was capable of performing her past

relevant work (Tr. 22). On June 28, 2006, the Appeals Council denied review (Tr. 4-6).

Plaintiff filed in this Court for judicial review of the final decision on August 24, 2006. Case

No. 06-13753. Upon stipulation of parties, the Honorable Gerald E. Rosen reversed and

remanded the case to the administrative level on March 2, 2007. 

 On June 15, 2007, the Appeals Council remanded the case for further fact-finding,

directing the ALJ to (1) Evaluate Plaintiff’s subjective complaints and state his rationale for

the credibility finding consistent with the requirements of SSR 96-7; (2) reconcile

discrepancies between the Residual Functional Capacity (“RFC”) found in the administrative

opinion and the requirements of Plaintiff’s past relevant work; and (3) “[O]btain

supplemental evidence” from a VE regarding Plaintiff’s “occupational base” (Tr. 282-282).

ALJ Engelman held a second hearing on January 29, 2008 at which Plaintiff and VE Timothy

Shaner, testified (Tr. 310, 313-321, 322-324). On August 28, 2008, ALJ Engelman again

found that Plaintiff could perform her past relevant work (Tr 269). On November 7, 2008,

the Appeals Council denied review (Tr. 252-254). Plaintiff filed suit in this Court on January

9, 2009. 

BACKGROUND FACTS

Plaintiff, born January 24, 1957, was 49 on the date last insured of September 30,

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2006 (Tr. 65, 264). She left school in seventh grade, working previously as an assembler and

car porter (Tr. 82, 87). Her application for benefits alleges disability as a result of carpal

tunnel syndrome (“CTS”), disc protrusion at C4-5, C5-6, disc herniation and degenerative

disease at C4-5, and tendinitis of the right shoulder (Tr. 69). 

A. Plaintiff’s Testimony

1. August 22, 2005

Plaintiff, a 48-year-old resident of Flint, Michigan, testified that she received a total

of approximately $2,500 each month from Workers’ Compensation, pension, and

supplemental sources (Tr. 232-233). She reported that she formerly worked in assembly

related positions, but after work restrictions were imposed, she was reassigned to a position

driving vehicles from the end of one assembly line to the beginning of another (Tr. 233-234).

 Plaintiff alleged that eventually, her back and neck injuries precluded her from the restricted

position (Tr. 235). She opined that sitting and standing limitations, along with neck and

walking problems, prevented her from working (Tr. 237). Plaintiff estimated that she

currently experienced level “9" pain on a scale of 1 to 10 (Tr. 238). She added that lower

back pain radiated into her left leg, noting that steroid injections did not improve her

condition (Tr. 238-239). Plaintiff alleged that CTS caused gripping problems with both

hands (Tr. 239). She indicated that she also experienced elbow problems and headaches (Tr.

240). She reported taking aspirin, Ibuprofen, Vicodin, and Naproxen (Tr. 240). 

Plaintiff testified that she lived by herself in a single family home (Tr. 240). She

indicated that she relied on her grandson, 12, to clean her house (Tr. 240-241). Plaintiff,

noting that she had not driven since her license had been suspended for civil infractions,

reported that either her daughter or boyfriend did her grocery shopping and took her to

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doctors’ appointments (Tr. 241). She estimated that at most, she could stand for 30 minutes,

walk three blocks, and lift a gallon of milk (Tr. 242-243). 

In response to questioning by her attorney, Plaintiff testified her prescribed

medications only partially eased her discomfort (Tr. 244). Noting that she had been

prescribed Zoloft recently, Plaintiff alleged that her medications made her “drowsy” and

“goofy” (Tr. 244). In addition to problems with fine manipulations as a result of CTS, she

alleged difficulty pushing, pulling, and reaching overhead (Tr. 245). Plaintiff reported that

her treating physician had advised against surgery, but was planning on administering steroid

shots to the wrist (Tr. 245). She opined that back, neck, and head pain precluded even

sedentary work with a sit/stand option (Tr. 246). 

2. January 29, 2008

Plaintiff, denying that she had worked since the 2005 hearing, testified that her income

had stayed substantially the same in the past two years (Tr. 314). She indicated that her most

recent job as a car/truck porter required her to drive a vehicle from the end of an assembly

line to a loading vehicle, then walking back as far as 150 yards to her starting point (Tr. 316-

318). 

B. Medical Evidence

1. Treating Sources

In January, 2000, Plaintiff sought treatment for a left wrist injury (Tr. 112). The

following month, Plaintiff complained of right shoulder pain (Tr. 152). In March, August,

September, and November, 2000, Plaintiff reported symptoms of CTS to the plant medical

clinic (Tr. 145-150). October, 2000 imaging studies of the right shoulder were unremarkable

(Tr. 172, 209). In December, 2000, John Bitner, M.D. issued a cervical collar in response

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to reports of cervical spine and right shoulder problems (Tr. 116-117). The same month,

treating notes from the plant clinic indicate that no job was available for Plaintiff, given

continued symptoms of CTS (Tr. 144). Also in December, 2000, an MRI of the cervical

spine showed stenosis at C5-6 and a disc herniation at C4-5 (Tr. 121, 171, 207). Imaging

studies also showed a fractured right elbow (Tr. 120). An MRI of the right shoulder showed

“minimal tendinitis” (Tr. 170, 208). In February, 2001, Plaintiff reported that symptoms of

CTS were worse (Tr. 143). In March, 2001, Charles Safeley, M.D. opined that Plaintiff’s

right elbow bursitis was “not large enough” to justify surgery (Tr. 127). 

In August, 2002, Plaintiff was referred for physical therapy for shoulder problems (Tr.

131). The following month, clinic notes indicate that several work attempts had been

unsuccessful (Tr. 130). Imaging studies of the left elbow performed in November, 2003

showed “mild” epicondylitis (Tr. 204, 206). 

In July, 2004, Plaintiff sought emergency treatment for back pain (Tr. 183). She was

given Norflex and discharged in good condition (Tr. 183). The same month, imaging studies

of the lumbar spine showed “mild degenerative changes” (Tr. 203). In August, 2004, an MRI

showed moderate focal spondylostenosis at L3-L4 creating “displacement of the left L3

nerve root” (Tr. 169, 202). Electromyographic studies performed in September, 2004

showed the presence of “mild to moderate” CTS in both wrists (Tr. 168, 211). The following

month, Plaintiff received a nerve block at L5-S1 (Tr. 176-177). 

In April, 2006, Plaintiff sought emergency treatment for cervical spine pain (Tr. 307-

309). She was given a sedative before being released in stable condition (Tr. 308). In

December, 2007, Jeffrey Levin, M.D. observed the presence of CTS, as well as right cubital

tunnel syndrome and C5-6 radiculopathy (Tr. 298). In January, 2008, he found that Plaintiff

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experienced muscle atrophy in the upper extremities and “chronic denervation” in the lower

(Tr. 297). An MRI of the lumbar spine showed a ‘central disc bulge with minimal

compression” (Tr. 303). An MRI of the cervical spine showed stenosis at C5-C6 and C6-C7

(Tr. 306). The same month, Dr. Levin completed a medical source statement on Plaintiff’s

behalf, stating that she was unable to lift even ten pounds, walk or stand for two hours, or sit

for six (Tr. 295). He also found that Plaintiff experienced “severe” pushing and pulling

impairments in all extremities (Tr. 295). 

 2. Consultive and Non-examining Sources

 In December, 2002 Neil A. Friedman, M.D. performed a consultive physical

evaluation of Plaintiff on behalf of the SSA (Tr. 153). Plaintiff alleged right arm and right

upper back muscle spasms, but denied left side problems (Tr. 153). She reported smoking

one pack of cigarettes per day and consuming a 12-pack of beer each week (Tr. 153). She

denied illicit drug use (Tr. 153). She demonstrated normal cervical and upper extremity

ranges of motion except for right shoulder abduction (Tr. 154, 156-157). Dr. Friedman

observed a “grossly normal gait” (Tr. 155). Plaintiff demonstrated no difficulty undressing

or redressing independently (Tr. 155). She was able to perform a variety of manipulative and

postural functions without difficulty (Tr. 158). 

The following month, a non-examining Physical Residual Functional Capacity

Assessment found that Plaintiff could lift 20 pounds occasionally and 10 pounds frequently;

walk, stand, or sit for approximately six hours in an eight-hour workday; and push and pull

without limitation in the lower extremities (Tr. 161). Plaintiff’s ability to push/pull in the

upper extremities was deemed limited by CTS as well as neck and shoulder pain (Tr. 161).

Plaintiff was limited to occasional climbing and stooping, but was found able to balance,

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A GAF score of 51-60 indicates moderate symptoms (occasional panic attacks) or

moderate difficulty in social, occupational, or school functioning. American Psychiatric

Association, Diagnostic and Statistical Manual of Mental Disorders--Text Revision at 34

(DSM-IV-TR ) (4th ed.2000).

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kneel, crouch, and crawl on a frequent basis (Tr. 162). Her manipulative limitations

consisted of frequent (as opposed to constant) reaching, handling, and fingering with the

right hand (Tr. 163). The Assessment found the absence of visual or communicative

limitations, but found that Plaintiff should avoid even moderate exposure to vibration (Tr.

163-164). The Assessment concluded by stating that Plaintiff’s allegations of limitation were

only partially supported by the medical evidence (Tr. 165). 

In June, 2005, Matthew P. Dickson, Ph.D., performed a consultive psychological

examination of Plaintiff, noting that she currently took Zoloft, Estrogen, Vicodin, and

Prevacid (Tr. 212). Plaintiff, reporting that she dropped out of school in seventh grade,

nonetheless characterized herself as a “‘pretty smart kid’” (Tr. 212). She demonstrated an

appropriate affect, reporting good interaction with both friends and family (Tr. 212). She

indicated that she spent her waking hours watching television and smoking (Tr. 213). She

admitted to losing her driver’s license after failing to pay fines for civil infractions, but noted

that she could count money and pay her bills (Tr. 213). Dr. Dickson opined that Plaintiff’s

“psychological condition would mildly impair her ability to perform work related activities”

(Tr. 214). He assigned Plaintiff a GAF of 581

 (Tr. 214). Psychological testing showed

average to low-average intelligence, depression, and anxiety (Tr. 218-219). Dr. Dickson

found that Plaintiff’s ability to understand and carry out workplace instructions was

unimpaired, but that she experienced “slight” limitations in her ability to interact with the

public or deal with workplace changes (Tr. 221-222). 

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20 C.F.R. § 404.1567(a-d) defines sedentary work as “lifting no more than 10 pounds

at a time and occasionally lifting or carrying articles like docket files, ledgers, and small

tools; light work as “lifting no more than 20 pounds at a time with frequent lifting or

carrying of objects weighing up to 10 pounds;” medium work as “lifting no more than 50

pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds;” and

that exertionally heavy work “involves lifting no more than 100 pounds at a time with

frequent lifting or carrying of objects weighing up to 50 pounds.

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C. Vocational Expert Testimony

 1. August 22, 2005 

 VE Judith Findora classified Plaintiff’s former work as a car porter as unskilled at the

light exertional level2

 (Tr. 109, 247). The ALJ posed the following hypothetical question:

“Let’s, for argument’s sake, assume a person is limited to light work as far as

the lifting requirements and the standing or walking, but that this person would

need the opportunity to alternate positions at will, so they could be, you know,

seated the majority of the day. Assume that there’s only to be – there’s to be

only occasional use of the bilateral hands for gripping, grasping, wrist

movements, that there should only be occasional pushing or pulling of the

upper – of the upper extremities bilaterally, and the lower extremity on the left

side. There should only be occasional climbing or stooping, and no vibratory

tools. In your opinion, would such an individual be capable of returning to any

past relevant work?

(Tr. 248). The VE replied that if the individual needed to change positions at will, the

position of car porter could not be performed due to the sitting requirements of the position

(Tr. 249). 

2. January 29, 2008 Hearing

Consistent with VE Finora’s prior testimony, VE Timothy Shaner classified the car

porter position as exertionally light and unskilled (Tr. 322). He stressed that although the

position would involve both sitting and standing, the individual would be unable to change

positions at will (Tr. 322). In response to questioning by Plaintiff’s attorney, the VE stated

that the need to miss more than one day of work each month would generally preclude

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competitive employment (Tr. 323). He testified further that the need to lie down or nap at

unpredicted times would also preclude all work (Tr. 323). 

D. The ALJ’s Decisions

1. October 31, 2005 

 ALJ Engelman found that Plaintiff experienced the severe impairments of

degenerative disc disease of the cervical and lumbar spine, right elbow bursitis, CTS, and an

adjustment disorder, finding however that none of the conditions met or medically equaled

“one of the listed impairments” in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr. 21). He

found that Plaintiff retained the following residual functional capacity (“RFC”):

“to perform a significant range of light work activity that allows for alternating

between sitting and standing positions at will. However, the claimant should

avoid work activity that requires constant use of the hands”

(Tr. 22). The ALJ found Plaintiff capable of performing her past relevant job as a car porter

(Tr. 21-22).

The ALJ supported his determination by noting that Plaintiff’s allegations of disability

were “not totally credible” (Tr. 22). He cited Dr. Friedman’s December, 2002 observation

that Plaintiff exhibited an essentially normal gait and range of joint motion (Tr. 18). The

Again citing Dr. Friedman’s findings, the ALJ also noted that Plaintiff was able to perform

manipulative functions without difficulty (Tr. 19). 

2. August 28, 2008 (Following remand by Appeal Council)

Consistent with his October, 31, 2005 findings, ALJ Engelman found that Plaintiff

experienced the severe impairments of degenerative disc disease of the cervical and lumbar

spine, right elbow bursitis, CTS, and an adjustment disorder, finding that none of the

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This RFC is in all respects identical to the previous one except that here, the ALJ

omit the modifier “at will” to “sitting and standing positions” (see Tr. 22). 

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conditions met or medically equaled “one of the listed impairments” in 20 C.F.R. Part 404,

Subpart P, Appendix 1 (Tr. 264-265). He found that Plaintiff retained the following RFC:

“to perform a significant range of light work activity that allows for alternating

between sitting and standing positions3

. However, the claimant should avoid

work activity that requires constant use of the hands”

(266). The ALJ again concluded that Plaintiff was capable of performing her former work

as a car porter (Tr. 268-269). 

STANDARD OF REVIEW

 The district court reviews the final decision of the Commissioner to determine

whether it is supported by substantial evidence. 42 U.S.C. §405(g); Sherrill v. Secretary of

Health and Human Services, 757 F.2d 803, 804 (6th Cir. 1985). Substantial evidence is more

than a scintilla but less that a preponderance. It is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.

389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB,

305 U.S. 197, 229, S. Ct. 206, 83 L.Ed.126 (1938)). The standard of review is deferential and

“presupposes that there is a ‘zone of choice’ within which decision makers can go either way,

without interference from the courts.” Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir.

1986)(en banc). In determining whether the evidence is substantial, the court must “take into

account whatever in the record fairly detracts from its weight.” Wages v. Secretary of Health

& Human Services, 755 F.2d 495, 497 (6th Cir. 1985). The court must examine the

administrative record as a whole, and may look to any evidence in the record, regardless of

whether it has been cited by the ALJ. Walker v. Secretary of Health and Human Services,

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884 F.2d 241, 245 (6th Cir. 1989).

 FRAMEWORK FOR DISABILITY DETERMINATIONS

 Disability is defined in the Social Security Act as the “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). In

evaluating whether a claimant is disabled, the Commissioner is to consider, in sequence,

whether the claimant: 1) worked during the alleged period of disability; 2) has a severe

impairment; 3) has an impairment that meets or equals the requirements of an impairment

listed in the regulations; 4) can return to past relevant work; and 5) if not, whether he or she

can perform other work in the national economy. 20 C.F.R. §416.920(a). The Plaintiff has

the burden of proof as steps one through four, but the burden shifts to the Commissioner at

step five to demonstrate that, “notwithstanding the claimant's impairment, he retains the

residual functional capacity to perform specific jobs existing in the national economy.”

Richardson v. Secretary of Health & Human Services, 735 F.2d 962, 964 (6th Cir.1984).

ANALYSIS

 Plaintiff contends first that the ALJ did not comply with the Appeal Council’s June

15, 2007 order directing him to state a rationale for his credibility determination. Plaintiff’s

Brief at 6-8, Docket #11(citing Tr. 283). She points out that the August 28, 2008

administrative opinion’s credibility determination uses the same “standard canned language”

contained in the original opinion. Id. at 7 (citing Tr. 20-21, 268). Next, Plaintiff argues that

the ALJ’s hypothetical question to the VE did not fully account for her limitations, thereby

invalidating the VE’s testimony. Id. at 8-9. On a related note, she argues that the ALJ’s

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failure to acknowledge Dr. Levin’s 2007 and 2008 findings constitutes reversible error. Id.

at 9-14. 

A. The June 15, 2007 Remand Order

As discussed above, the Appeals Council remand order of June 15, 2007 directed the

ALJ to 1). provide a rationale for his credibility determination consistent with the

requirements of SSR 96-7p 2). reconcile discrepancies between the RFC and the

requirements of Plaintiff’s past relevant work and 3). obtain additional VE testimony (Tr.

282-283). Plaintiff does not dispute that the ALJ addressed at least the procedural aspects

of the second and third directives but argues that he ignored the first. Plaintiff’s Brief at 6-7.

 The two-part credibility analysis, governed by SSR 96-7p, requires that “[f]irst, the

adjudicator must consider whether there is an underlying medically determinable physical

or mental impairment. . .that can be shown by medically acceptable clinical and laboratory

diagnostic techniques.” Duncan v. Secretary of Health and Human Services, 801 F.2d 847,

853 (6th Cir. 1986). Second, the ALJ must considered Plaintiff’s allegations regarding “the

intensity, persistence, or functionally limiting effects of pain or other symptoms” of his

condition. Id. C.F.R. 404.1529(c)(3); 416.929(c)(3) lists the factors to be considered in

making a credibility determination: 

“(i) Your daily activities; (ii) The location, duration, frequency, and intensity

of your pain or other symptoms; (iii) Precipitating and aggravating factors; (iv)

The type, dosage, effectiveness, and side effects of any medication you take

or have taken to alleviate your pain or other symptoms; (v) Treatment, other

than medication, you receive or have received for relief of your pain or other

symptoms; (vi) Any measures you use or have used to relieve your pain or

other symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes

every hour, sleeping on a board, etc.); and (vii) Other factors concerning your

functional limitations and restrictions due to pain or other symptoms.” 

 Contrary to Plaintiff’s argument, I note that the ALJ’s 2008 opinion contains a lengthy

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discussion of his reasons for rejecting Plaintiff’s allegations of disability. Citing Plaintiff’s

medical records, he noted that right elbow bursitis did not create “mechanical problems or

a limited range of motion” (Tr. 266). He again cited Dr. Friedman’s December, 2002

observation that Plaintiff was able to walk, stoop, and squat without difficulty and perform

a number of manipulative functions without difficulty (Tr. 266-267). The ALJ also noted

that Plaintiff’s claim was undermined by the fact that her lower back problems had been

treated conservatively (Tr. 267). In regard to allegations of non-physical impairments, the

ALJ cited June, 2005 intelligence testing results showing scores within average range (Tr.

368). Because the ALJ complied with the procedural requirements of the June, 2007 Appeals

Council order, remand is not appropriate on these grounds. 

B. The Hypothetical Question/RFC

Plaintiff argues next that the ALJ’s hypothetical question to the VE did not account

for her full degree of limitation. Plaintiff’s Brief at 8-9. She also notes that the revised RFC,

changing “sitting and standing positions at will,” in the original RFC to simply “sitting and

standing positions” in the latter, did not address her need to sit at unexpected times (Tr. 22,

266). 

This argument is based on the premise that “[s]ubstantial evidence may be produced

through reliance on the testimony of a vocational expert in response to a hypothetical

question, but only if the question accurately portrays [the] plaintiff’s individual physical and

mental impairments”(internal citations omitted). Varley v. Secretary of Health & Human

Services, 820 F.2d 777, 779 (6th Cir. 1987);Webb v. Commissioner of Social Sec. 368 F.3d

629, 632 (6th Cir. 2004). However, in contrast to a Step Five determination wherein a VE

is required in cases involving non-exertional impairments, a ALJ is permitted but not

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required to use a VE in making a Step Four determination. Studaway v. Secretary of Health

and Human Services, 815 F.2d 1074, 1076 (6th Cir.1987); See also Mays v. Barnhart, 78

Fed. Appx. 808, 813-814 (3rd Cir. 2003)(“At step four of the sequential evaluation process,

the decision to use a vocational expert is at the discretion of the ALJ”). Therefore, a

hypothetical question’s deficiencies, with nothing more, would not invalidate a Step Four

finding that a claimant could perform her former work. 

However here, because the ALJ explicitly stated that the Step Four conclusion was

based on the VE’s testimony, the deficiencies in the hypothetical question constitute

reversible error. (Tr. 267). Indeed, the ALJ Engelman’s failure to account for Plaintiff’s

psychological impairments in crafting the hypothetical question taints the VE’s testimony

that Plaintiff could perform her past relevant work. Both the hypothetical question and RFC

omit any reference to Plaintiff’s limitations as a result of depression, despite the fact that the

ALJ himself found that depression was a severe impairment at Step Two. More obviously,

while he found at Step Three that Plaintiff did not meet the criteria for disability based on

depression, he found that the affective disorder created moderate deficiencies of

concentration, persistence, and pace (Tr. 265). 

Despite the ALJ’s acknowledgment of a moderate concentrational impairments at

Steps Two and Three, the hypothetical question and RFC were bereft of corresponding

limitations. While “a hypothetical question need not incorporate a listing of the claimant's

medical conditions, the vocational expert's testimony, to be reliable, must take into account

the claimant's functional limitations, i.e., what he or she ‘can and cannot do.’” Infantado v.

Astrue, 263 Fed.Appx. 469, 476 (6th Cir. 2008)(citing Webb v. Comm'r of Social Sec., 368

F.3d 629, 632-33 (6th Cir.2004). The psychological limitations as found at both Step Two

and Three of the finding must be acknowledged in the hypothetical question. The failure

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However, consistent with the section C. findings, infra, Dr. Levin’s later treating

records may support a more restrictive RFC. 

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to do so constitutes reversible error. See Tinker v. Astrue 2009 WL 3064780, *9 (E.D.Mich

2009)(Edmunds, J.). 

 In contrast, I agree with Defendant’s argument that the revised hypothetical

question/RFC omissioin of the need to change positions at will does not present grounds for

reversal. Defendant’s Brief at 13, Docket #16. The ALJ’s finding that although Plaintiff

needed to alternate positions, she did not need to change positions at will is supported by

substantial evidence as discussed, supra, in the credibility determination.4

 

C. The Treating Physician Analysis

Plaintiff argues that the ALJ erred by failing to address Dr. Levin’s January, 2008

opinion that she was incapable of even sedentary work. Plaintiff’s Brief at 9-12 (citing Tr.

295). Citing Wilson v. Social Security, 378 .3d 541 (6th Cir. 2004), she contends that the

failure to discuss Dr. Levin’s findings constitutes reversible error. Plaintiff’s Brief at 12. In

response, Defendant points out that Dr. Levin did not begin treating Plaintiff until over a year

subsequent to the September 30, 2006 expiration of benefits. Defendant’s Brief at 12. He

contends that the neurologist’s January, 2008 assessment of Plaintiff’s work abilities was

irrelevant to her condition prior to the date last insured. Id. 

The Sixth Circuit has held that in determining the weight accorded to a treating

physician, the ALJ must consider “the length of the . . . relationship and the frequency of

examination, the nature and extent of the treatment . . . [the] supportability of the opinion,

consistency . . . with the record as a whole, and the specialization of the treating source.”

Wilson v. Commissioner of Social Sec. 378 F.3d 541, 544 (6th Cir. 2004)(citing 20 C.F.R. §

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404.1527(d)(2)). An ALJ’s failure to explain his reasons for rejecting a treating physician’s

opinion constitutes reversible error. Id. at 547. While an ALJ need not consider postexpiration of benefits opinions unrelated to the claimant’s status during the insured period,

the fact that Dr. Levin did not treat Plaintiff until December, 2007 does not automatically

render his opinion irrelevant to her pre-September 30, 2006 condition. See Higgs v. Bowen,

880 F.2d 860, 863 (6th Cir. 1988)(citing Martonik v. Heckler, 773 F.2d 236, 240-41 (8th Cir.

1985))(“evidence of medical condition after insurance cutoff must be considered to the extent

it illuminates claimant's health before that date”)(internal punctuation omitted). 

 A review of Dr. Levin’s post-expiration appraisal and treating notes show that the

material contains information possibly relevant to Plaintiff’s earlier condition. First, his

treating notes contain numerous references to her long-term medical and vocational history

(Tr. 302). If nothing else, Dr. Levin would appear well-versed with Plaintiff’s long-term

impairments and thus qualified to assess her condition prior to his December, 2007

examination. Notably, his January, 2008 assessment of Plaintiff’s residual abilities states that

she experienced the assessed limitations “since 2001" (Tr. 295). 

Despite this material’s possible relevance to Plaintiff’s condition before September

30, 2006, the administrative opinion refers to Dr. Levin’s treating records by exhibit number

only, stating that “[a]dditional medical evidence through the date the claimant was last

insured for disability does not establish any significant decline/change in the claimant’s

condition or level of functionin (Exhibits 13F and 14F)” (Tr. 268). However, the referenced

records (Exhibits 13 and 14) contain only records created after the expiration of benefits.

This finding, confusing on its face, can be interpreted in one of the two following ways:

 1) ‘Although the latter records may suggest a worsening of Plaintiff’s

condition, the pre-September 30, 2006 records support a non-disability

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finding.’

(or)

2) ‘Records created after the expiration of benefits confirm that Plaintiff’s

condition remained static’ at least through September 30, 2006.’

Both interpretations would be consistent with the ALJ’s ultimate finding that Plaintiff

did not experience disability level impairment – at least not before the expiration of benefits.

However, because the ALJ’s statement suggests that he relied on pre-expiration

records for this finding, interpretation 1) would suggest that he misread the date of Dr.

Levin’s records or 2) he overlooked Dr. Levin’s assessment of Plaintiff’s residual abilities

in concluding that Plaintiff’s condition remained unchanged. In any case, Dr. Levin’s

statement that his assessment was applicable to Plaintiff’s pre-September 30, 2006 condition,

along with ambiguities in the ALJ’s findings, require both a remand for clarification and an

analysis of the treating physician’s opinion consistent with Wilson, supra. Based on the

current administrative record, the Court cannot discern whether the ALJ rejected, misread,

or simply overlooked Dr. Levin’s findings. See Lowery v. Commissioner, Social Sec.

Administration, 55 Fed.Appx. 333, 339, WL 236419, 5 (6th Cir. 2003)(quoting Diaz v.

Chater, 55 F.3d 300, 306 (7th Cir.1995) (An ALJ "must articulate, at some minimum level,

his analysis of the evidence to allow the appellate court to trace the path of his reasoning").

 In closing, I note that the above discussed errors, while critical, do not suggest that

Plaintiff is automatically entitled to benefits. Upon remand, the ALJ may or may not find

that substantial evidence supports a non-disability finding. Accordingly, the case should be

remanded for further proceedings consistent with Sections B. and C. of this analysis.

Faucher v. Secretary of Health and Human Services, 17 F.3d 171, 176 (6th Cir. 1994).

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CONCLUSION

 For the reasons stated above, I recommend that Defendant’s motion be DENIED and

Plaintiff’s motion GRANTED, remanding the case to the administrative level for further

proceedings. 

Any objections to this Report and Recommendation must be filed within fourteen

(14) days of service of a copy hereof as provided for in 28 U.S.C. §636(b)(1) and E.D. Mich.

LR 72.1(d)(2). 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); Howard v.

Secretary of HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th

Cir. 1981). 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 not more than

twenty (20) pages in length unless by motion and order such page limit is extended by the

court. The response shall address specifically, and in the same order raised, each issue

contained within the objections. 

s/R. Steven Whalen 

UNITED STATES MAGISTRATE JUDGE

Dated: December 29, 2009

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CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing order was served on the attorneys and/or

parties of record by electronic means or U.S. Mail on December 29, 2009.

s/Susan Jefferson 

Case Manager

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