Harrell v. SSA, Commissioner of

Filing 22

OPINION AND ORDER denying 13 Motion for Summary Judgment; granting 18 Motion for Summary Judgment. Signed by District Judge Stephanie Dawkins Davis. (THal)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
IRVING ALBERT HARRELL, II,

Case No. 18-10698

Plaintiff,

Stephanie Dawkins Davis
United States District Judge

v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
_______________________________/

OPINION AND ORDER
CROSS-MOTIONS FOR SUMMARY JUDGMENT (ECF Nos. 13, 18)
I.

PROCEDURAL HISTORY
A.

Proceedings in this Court

On February 28, 2018, plaintiff Irving Albert Harrell, II filed the instant suit.
(ECF No. 1). The suit challenges the Commissioner’s unfavorable decision
denying Harrell’s claims for a period of disability, disability insurance benefits,
and supplemental security income benefits. (ECF No. 3). This matter is before the
court on the parties’ cross-motions for summary judgment. (ECF Nos. 13, 18).
B.

Administrative Proceedings

Harrell filed an application for a period of disability, disability insurance
benefits (DIB), and supplemental security income (SSI) on May 5, 2015, alleging

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disability beginning on December 10, 2010. (Tr. 12). 1 The alleged onset date
(AOD) was later amended to July 15, 2014. (Tr. 279). His claims were initially
disapproved by the Commissioner on May 23, 2015. Harrell requested a hearing
and on December 16, 2016, he appeared with counsel before Administrative Law
Judge (“ALJ”) Dennis M. Matulewicz, who considered the case de novo. (Tr. 274301). In a decision dated April 5, 2017, the ALJ found that Harrell was not
disabled from the amended AOD through the date of the decision. (Tr. 9-24). The
ALJ’s decision became the final decision of the Commissioner when the Appeals
Council, on February 20, 2018, denied Harrell’s request for review. (Tr. 5-8);
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004).
For the reasons set forth below, plaintiff’s motion for summary judgment is
DENIED, defendant’s motion for summary judgment is GRANTED, and the
findings of the Commissioner are AFFIRMED.
II.

FACTUAL BACKGROUND
A.

ALJ Findings

Harrell was born in 1971 and was 39 years old on the alleged disability onset
date. (Tr. 23). His date last insured is June 30, 2014. (Tr. 14). Harrell completed
two years of college and primarily worked as a custodian and general laborer. (Tr.

1

The Administrative Record appears on the docket at entry number 12 and the
supplemental transcript can be found at docket entry 17. All references to the transcript are
identified as “Tr.”
2

23, 100). Harrell lives with his mother and he stopped working on December 10,
2010 because of his medical conditions. (Tr. 285, 99).
In reviewing his claim, the ALJ applied the five-step disability analysis and
found at step one that Harrell had not engaged in substantial gainful activity since
July 15, 2014, the amended AOD. (Tr. 14). At step two, the ALJ found Harrell’s
obesity, asthma, diabetes mellitus, and degenerative disc disease to be “severe”
within the meaning of the second sequential step. (Tr. 14). The ALJ found that
Harrell’s depression was a nonsevere medically determinable impairment. (Tr. 1518). However, at step three, the ALJ found no evidence that Harrell’s impairments
singly or in combination met or medically equaled one of the listings in the
regulations. (Tr. 17).
Next, the ALJ assessed Harrell’s residual functional capacity (“RFC”) as
follows:
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform medium work as defined
in 20 CFR 404.1567(c) and 416.967(c) except he can
never use ladders, ropes, or scaffolds. He can
occasionally use ramps and stairs, stoop, kneel, crouch,
crawl, or balance. He must avoid even moderate
exposure to extreme heat, extreme cold, wetness,
humidity, and vibrations; and avoid concentrated
exposure to fumes, odors, dust, gases, or poor ventilation.
He should never work with hazards including dangerous
and unprotected machinery or work at unprotected
heights. He can occasionally bend, twist, and turn at the

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waist. The claimant requires simple, unskilled work with
an SVP rating of one or two; routine work that does not
require changes or adaptations in work settings or duties
more than once per month; and jobs without production
quotas mandating a specific number of pieces per hour or
with a down-line co-worker depending on the claimant’s
productivity.
(Tr. 18). At step four, the ALJ found that Harrell was unable to perform any past
relevant work. (Tr. 23). At step five, the ALJ denied Harrell benefits because he
found that there were jobs that exist in significant numbers in the national economy
that he could perform. (Tr. 23-24).
III.

DISCUSSION
A.

Standard of Review

Congress created the social security claims framework as a two-tiered
system in which the administrative agency handles claims, and the judiciary
merely reviews to determine if the agency exceeded statutory authority or acted in
an arbitrary and capricious manner. Sullivan v. Zebley, 493 U.S. 521 (1990). The
administrative process calls for a state agency to make 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 the administrative review
process results in a denial of benefits, the claimant may file an action in federal
district court. Mullen v. Bowen, 800 F.2d 535, 537 (6th Cir.1986).

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This Court has original jurisdiction to review the Commissioner’s final
administrative decision pursuant to 42 U.S.C. § 405(g). Judicial review 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 F.3d 506, 509 (6th Cir. 2007); Garner v. Heckler, 745 F.2d 383,
387 (6th Cir. 1984).
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

5

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.
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
evidence which might subtract from its weight. Wyatt v. Sec’y of Health & Human
Servs., 974 F.2d 680, 683 (6th Cir. 1992). “Both the court of appeals and the
district court may look to any evidence in the record, regardless of whether it has
been cited by the Appeals Council.” Heston v. Comm’r of Soc. Sec., 245 F.3d 528,
535 (6th Cir. 2001). There is no requirement, however, that either the ALJ or the
reviewing court discuss every piece of evidence in the administrative record.
Kornecky v. Comm’r of Soc. Sec., 167 Fed. 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).

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B.

Legal Framework for Review

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.). DIB benefits are available to qualifying wage earners who become disabled
prior to the expiration of their insured status; SSI 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, both “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).

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Disability is determined through the application of a five-step sequential
analysis set forth at 20 C.F.R. §§ 404.1520, 416.920. Essentially, the ALJ must
determine whether: (1) the plaintiff is engaged in significant gainful activity; (2)
the plaintiff has any severe impairment(s); (3) plaintiff’s impairments alone or in
combination meet or equal a Listing; (4) the claimant is able to perform past
relevant work; and (5) if unable to perform past relevant work, whether there is
work in the national economy that the plaintiff can perform. (Id.). “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 rejecting the existence of disability, 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 must 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).

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C.

Analysis and Conclusions
1.

Recontacting Plaintiff’s Treating Physician

Harrell first argues that the ALJ was required to recontact his treating
physician because his records pertaining to his asthma treatment were not entirely
legible and the ALJ noted the record “appear[ed]” to indicate certain things.
According to Harrell, the ALJ’s statements suggest that the records from his
physician do not contain all the necessary information and a conflict or ambiguity
exists, triggering the ALJ’s duty to recontact under 20 C.F.R. § 1512(e).2 The
Commissioner argues that the ALJ was not required to recontact his treating
physician because that requirement was eliminated in 2012 and such a decision is
now within the ALJ’s discretion. The Commissioner also contends that the
presence of some illegible notes does not mandate remand where the record as a
whole supports the ALJ’s decision. Ferguson v. Comm’r of Soc. Sec., 628 F.3d
269, 272 (6th Cir. 2010) (admitting that the medical records were only partially
legible, consisting of phrases and not full sentences, but when viewing the entire
record, the court determined this was sufficient to uphold the district court’s
conclusion).

2

Harrell relies on a version of this regulation that was in effect from June 13, 2011
through March 26, 2012.
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An ALJ may seek “additional evidence or clarification” if he “cannot reach a
conclusion about whether” the claimant is disabled. 20 C.F.R. § 404.1520b(c)(1).3
The regulation pertaining to recontacting medical sources was revised effective
March 26, 2012, clarifying that the decision to recontact a source is within the
discretion of the ALJ. The regulation provides, in pertinent part:
We may recontact your treating physician, psychologist,
or other medical source. We may choose not to seek
additional evidence or clarification from a medical source
if we know from experience that the source either cannot
or will not provide the necessary evidence.
20 C.F.R. §§ 404.1520b(c)(1), 416.920b(c)(1) (emphasis added). In other words,
“ALJs now have discretion to decide whether to recontact.” Hollis v. Comm’r of
Soc. Sec., 2015 WL 357133, *23 (E.D. Mich. Jan. 27, 2015). At the time of the
decision, the ALJ could recontact a physician where the “administrative record
contains insufficient information to reach a disability decision.” Weredick v.
Comm’r of Soc. Sec., 2017 WL 4928649, *8 (E.D. Mich. Aug. 4, 2017), report and
recommendation adopted, 2017 WL 4112341 (E.D. Mich. Sept. 18, 2017);
Thomas v. Comm’r of Soc. Sec., 2019 WL 2063836, *8 (E.D. Mich. Feb. 25,
2019), report and recommendation adopted, 2019 WL 1375520 (E.D. Mich. Mar.

3

See version in effect from March 26, 2012 through March 26, 2017. This regulation has
since been modified but the new version only applies to claims filed after March 26, 2017.
10

27, 2019) (“The ALJs now have the flexibility to decide whether to recontact the
medical sources or choose another option available under these new regulations.”).
Harrell has relied on an outdated version of § 404.1512.4 Thus, as a matter
of law, his argument that the ALJ was required to recontact his treating physician
fails, as there is no longer a requirement mandating recontact in this instance.
Further, the regulations in place at the time of the ALJ’s decision state that only if
the record evidence is insufficient to determine disability, or if the ALJ cannot
reach a conclusion on disability, will the ALJ determine how to resolve the
problem. In resolving the problem, the ALJ could, for example, recontact a
medical source. Thomas v. Comm’r of Soc. Sec., 2019 WL 2063836, at *9 (E.D.
Mich. Feb. 25, 2019) (“The ALJ’s findings and the medical records clearly support
the determination that the difficult to read portions of Dr. Askar’s medical records
were not entirely illegible, and in any event there was otherwise substantial
evidence to support the non-disability finding.”). Here, Harrell does not argue that
the record as a whole is insufficient to make a disability determination.
Accordingly, Harrell’s argument is unpersuasive.

4

Harrell’s counsel has been told as much in other cases in which she relied on an
outdated version of the regulation in support of a similar argument. McClaine v. Comm’r of Soc.
Sec., 2018 WL 1309877, at *7 (E.D. Mich. Jan. 29, 2018); Thomas v. Comm’r of Soc. Sec., 2019
WL 2063836, at *8 (E.D. Mich. Feb. 25, 2019); Perry v. Comm’r of Soc. Sec., 2016 WL
6828673, at *4 (E.D. Mich. Feb. 1, 2016); Humphries v. Comm’r of Soc. Sec., 2019 WL 3244284
(E.D. Mich. June 25, 2019), report and recommendation adopted, 2019 WL 3229132 (E.D. Mich.
July 18, 2019).
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Moreover, the ALJ’s decision regarding Harrell’s limitations due to his
asthma is supported by substantial evidence. That is, the record as a whole
supports the ALJ’s conclusions regarding Harrell’s asthma. For instance, Harrell’s
September 16, 2015 physical consultative examination with Dr. Prasad noted that
his asthma was responsive to bronchodilators. (Tr. 177). In a related analysis, the
Sixth Circuit has credited proof of responsiveness to bronchodilators as adequate
evidence to discount a doctor’s opinion suggesting more restrictive pulmonary
functioning. Thus, it stands to reason that such evidence qualifies as substantial
evidence supporting positive findings concerning pulmonary functioning. See
Brasseur v. Comm’r of Soc. Sec., 2013 WL 1896291, at *2 (6th Cir. May 7, 2013)
(“The ALJ gave good reasons for disregarding the assessments made by [the
treating physicians where] Brasseur’s pulmonary function tests from February
2006 showed that he had a very good response to bronchodilators.”). Additionally,
Harrell’s chest exam with Dr. Prasad was normal. (Tr. 177). Although there was
some wheezing, he was not using accessory muscles of respiration, and his chest
wall expansion was within normal limits and equal. (Tr. 177). Several treatment
notes indicate that Harrell was generally assessed with uncomplicated, mild
persistent asthma, with occasional notes of wheezing. (Tr. 202-203, 10/18/15;
204-205, 9/6/16; 206-207, 7/11/16; 208-209, 6/15/16; 315-316, 10/18/16). Some
treatment notes indicate an “exacerbation” of Harrell’s asthma. (Tr. 210, 5/18/16;

12

316-317, 9/8/16; 318, 8/11/16; but see 4/6/16 note of asthma with “exacerbation,”
but breathing was even and unlabored, chest had normal expansion, no rales,
wheezing, or rhonchi). Yet, his asthma was generally noted to be controlled by
medication, and he was directed to continue his medication as instructed. (Tr. 202,
10/18/16; 317, 9/8/16). He also reported improvements with medication changes.
(Tr. 320, 6/15/16).
Furthermore, the ALJ specifically accommodated his asthma in the RFC by
requiring that he avoid concentrated exposure to fumes, odors, dust, gases, or poor
ventilation and avoid even moderate exposure to extreme heat, extreme cold,
wetness, humidity, and vibrations. (Tr. 18). Harrell does not point to any
particular evidence in the record suggesting that he is more limited than the ALJ
found him to be. Moreover, the handful of “illegible notes” from his provider are
from late 2014 and early 2015. (Tr. 163-164, 167-169). The crux of Harrell’s
claim is that his asthma has significantly worsened since 2014. Yet, the records
from 2016 are entirely legible, and Harrell does not specify anything from those
records suggesting he is more limited than the ALJ assessed. Rather, he cites his
own testimony that his asthma is worsening, that it flares up around chemicals and
animals, that he requires six or seven breathing treatment per day, that the
treatments cause fatigue, that normal dust in the workplace causes him to only be
able to work for half an hour, that physical activity causes his asthma to flare, and

13

that he only gets 3-4 hours of sleep per night, causing him to nap throughout the
day. (ECF No. 13, PageID.647, citing Tr. 284, 290-293; 295-296). But his
medical records show little to no sleep disturbance after he began treating for this
problem. (Tr. 324, 350, 189, 205). Records also show that he was prescribed
Albuterol Sulfate for nebulization (breathing treatments) up to three times per day
as needed for wheezing. (Tr. 311). And nothing in the record suggests that his
prescription was increased to six or seven times per day. Moreover, Harrell
reported on June 12, 2015 that his asthma medication caused no side effects. (Tr.
120). Accordingly, the undersigned finds that the record as a whole supports the
ALJ’s conclusions regarding Harrell’s asthma and there is no error in this regard
requiring remand for the recontacting of Harrell’s physician.
2.

Acquiescence Ruling

Harrell next argues that the ALJ erred in finding under Acquiescence Rule
98-4(6) that there was no significant new material evidence to justify adopting the
previous ALJ’s RFC. As to his asthma, Harrell contends that the medical
documentation from Garden City Medical Center shows a continued worsening of
his asthma to the point he was also diagnosed with asthma/COPD. (Tr. 12, Tr.
162-173, 177). On September 17, 2014, he was seen for an upper respiratory
infection as well as other symptoms. (Tr. 12, Tr. 169). On this date, Dulera 200
mcg was added to his prescriptions. Id. On December 29, 2014, he was seen for

14

worsening of his asthma. (Tr. 12, Tr. 167). On this date, he was placed on
Delsym. Id. In addition, he periodically received treatment due to the significance
of his asthma flares and he was placed on prednisone 10 mg. (Tr. 12, Tr. 162-173,
records dated 8/1/14-6/9/15). Specifically, on March 30, 2015, he was placed on
prednisone 10 mg for an asthma flare. (Tr. 12, Tr. 163). Harrell argues, therefore,
that the ALJ’s conclusion that “the provider generally treated the claimant’s
asthma by refilling his medication rather than by prescribing different medicine or
adjusting the dose of his current medication” is not accurate. Harrell also points
out that he was newly diagnosed with COPD, in addition to asthma and he started
taking additional asthma medications since the last decision.
Further, Harrell points to an MRI without contrast of his lumbar spine from
July 13, 2016, noting that the impression of the radiologist was right paracentral
broad-based disc protrusion abutting the thecal sac and right S1 nerve root. (Tr.
197). Although he acknowledges that the ALJ outlines these findings in his
decision, he faults the ALJ for his failure to acknowledge that the radiologist
stated, “the findings have progressed from a prior study.” (Tr. 197). The prior
study was conducted on December 27, 2012. Id. Therefore, Harrell contends that
the MRI represents new and material evidence documenting a worsening of his
medical condition since the previous decision of the ALJ dated July 14, 2014.

15

Based on the foregoing, Harrell contends that the ALJ erred in finding that there
was no new and material evidence to change the previous RFC.
In response, the Commissioner first points out that the ALJ noted he was
bound by the prior RFC pursuant to the principles set forth in Drummond v.
Comm’r of Soc. Sec., 126 F.3d 837 (6th Cir. 1997) and Acquiescence Ruling 984(6), absent evidence of improvement or deterioration in Harrell’s condition. (Tr.
18). The Commissioner acknowledges that the Sixth Circuit recently modified the
holding of Drummond in Earley v. Comm’r of Soc. Sec., 893 F.3d 929 (6th Cir.
2018), but maintains that because the ALJ here engaged in a fulsome discussion of
the evidence that was submitted as part of the current application (Tr. 14-23), the
ALJ’s decision complies with the analytical framework recently announced in
Earley, 893 F.3d at 934.
As to the ALJ’s substantive decision on the RFC, the Commissioner argues
that the evidence shows that Harrell’s asthma responded to treatment, and his chest
examination at the consultative examination was normal. (Tr. 177, 198). The
Commissioner again points out that Harrell was generally assessed with
uncomplicated, mild persistent asthma (Tr. 203, 205-206, 208-209, 212), and was
able to engage in a wide variety of activities. (Tr. 113-119, 198). The
Commissioner points out that the ALJ included more environmental limitations in
Harrell’s current RFC than in the previous RFC to account for his asthma,

16

specifically the need to avoid even moderate exposure to temperature extremes,
wetness, and humidity (compare Tr. 18 with Tr. 32).
While the 2016 MRI documented a disc protrusion at L5-S1 that abutted the
thecal sac and right S1 root, the Commissioner points out that there was no
evidence of central canal stenosis or neuroforaminal stenosis. (Tr. 197). The
Commissioner argues that the results from an MRI also fail to establish any greater
limitations to his RFC. Flowers v. Comm’r of Soc. Sec., 2015 WL 4274961, *4
(E.D. Mich. July 14, 2015) (declining to remand because “the MRI and the CT
scan reports provide no insight into what additional limitations Plaintiff may suffer
from based on the diagnoses therein” and “[a]t most, Plaintiff leaves the ALJ and
the Court to speculate with regard to any possible limitations related to his neck”);
Randolph v. Comm’r of Soc. Sec., 2016 WL 7206711, *6 (E.D. Mich. Aug. 16,
2016) (finding no error in the RFC finding where the plaintiff cited only evidence
the ALJ specifically considered, and failed to “show how these studies
establish[ed] that his ability to stand or walk was more limited than the ALJ
found”). The Commissioner also points out that when Harrell saw Dr. Prasad in
September 2015, he had a normal gait and no sensory or motor deficits and had
excellent function of his upper extremities. (Tr. 177). Further, he was able to
engage in many activities, including housework, mowing his lawn, running
errands, and going on walks. (Tr. 113-119, 198). Accordingly, the Commissioner

17

maintains that Harrell has failed to show that he was more limited than the ALJ
found him to be. Jordan v. Comm’r of Soc. Sec., 548 F.3d 417, 423 (6th Cir.
2008).
As an initial matter, Harrell’s first challenge to the ALJ’s decision calls into
question the ALJ’s consideration of alleged changes to his condition under
Drummond v. Comm’r of Soc. Sec., 126 F.3d 837 (6th Cir. 1997). Generally,
principles of res judicata dictate that the administration is bound by a prior
decision in a later case involving the same claimant unless a change of
circumstances is proven on a subsequent application. Drummond at 842 (6th Cir.
1997). In Drummond, the Sixth Circuit held that Social Security claimants and the
Commissioner are barred from re-litigating issues that were previously determined
at the administrative level. Drummond, 126 F.3d at 842; see also 42 U.S.C.
§ 405(h) (“The findings and decision of the Commissioner of Social Security after
a hearing shall be binding on all individuals who were parties to such hearing.”).
Drummond mandates that absent evidence that a claimant’s condition has
improved, findings issued by an ALJ as part of a prior disability determination are
binding on an ALJ in a subsequent proceeding. Drummond, 126 F.3d at 841.
Suggesting that the case law that has developed under Drummond has
interpreted the ruling more broadly than it was intended, the Sixth Circuit clarified
the reach of res judicata principles in Earley – and notably with only a passing

18

reference to AR 98-4(6)’s “new and material evidence” requirement. See Earley v.
Comm’r of Soc. Sec., 893 F.3d 929 (6th Cir. 2018). In Earley, the court stated,
“Res judicata bars attempts to relitigate the same claim,
but a claim that one became disabled in 1990 is not the
same as a claim that one became disabled in 1994.”
Groves v. Apfel, 148 F.3d 809, 810 (7th Cir. 1998). Just
so here. Had Earley filed a second application for
disability benefits for . . . the same period covered by her
first application, the ALJ could have correctly rejected it
on res judicata grounds and the principles of finality that
it supports. But Earley did not do that. She filed a new
application for a new period of time. When an individual
seeks disability benefits for a distinct period of time, each
application is entitled to review. There is nothing in the
relevant statutes to the contrary. And res judicata only
“foreclose[s] successive litigation of the very same
claim.” New Hampshire v. Maine, 532 U.S. 742, 748,
121 S.Ct. 1808, 149 L.Ed.2d 968 (2001).
Id. at 933. Principles of res judicata “do not prevent the agency from giving a
fresh look to a new application containing new evidence or satisfying a new
regulatory threshold that covers a new period of alleged disability while being
mindful of past rulings and the record in prior proceedings.” Id. at 931.
Here, the ALJ issued his decision in 2017 with a pre-Earley understanding
of Drummond. Under Earley, since Harrell’s current application for benefits
covers a period of time not considered by the prior ALJ, albeit commencing only
one day later, he was not constrained by the prior ALJ’s assessment in fashioning
an RFC for the period at issue. Thus, his language suggesting use of a pre-Earley
rationale for adoption of the RFC raises a yellow flag. Yet, despite the ALJ’s use
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of the Drummond language, he in fact formulated a more restrictive RFC than the
previous ALJ found. In the July 14, 2014 decision, the ALJ found that Harrell
must merely avoid “concentrated exposure to fumes, odors, gas, and respiratory
irritants.” (Tr. 32). Whereas here, the ALJ found that he must avoid “even
moderate exposure to extreme heat, extreme cold, wetness, humidity, and
vibrations” along with the requirement to avoid concentrated exposure to fumes,
odors, dust, gases, or poor ventilation. (Tr. 18). The ALJ also added the restriction
that Harrell should never work with hazards including dangerous and unprotected
machinery or work at unprotected heights. (Tr. 18). Further, the ALJ added the
limitations that Harrell requires simple, unskilled work with an SVP rating of one
or two, routine work that does not require changes or adaptations in work settings
or duties more than once per month, and he requires jobs without production
quotas mandating a specific number of pieces per hour or with a down-line coworker depending on his productivity. (Tr. 18). Thus, despite language suggesting
that he was required to adopt the prior RFC, the ALJ here did not adopt the prior
RFC.
Furthermore, a thorough review of the ALJ’s decision along with the record
before him reveals that the ALJ did indeed conduct a “fresh look” at the evidence
including evidence of Harrell’s abilities and limitations, thus satisfying Earley. As
discussed in detail above, the ALJ’s analysis of Harrell’s asthma is supported by

20

substantial evidence. Harrell did begin new asthma medications, and there is
evidence of flare-ups resulting in the occasional need for steroid treatment and
medications for respiratory infections. But, the ALJ discussed these records and
included additional restrictions in the RFC based on Harrell’s asthma.5
As to Harrell’s limitations from his back condition, his reliance on changes
from an MRI do not necessarily show that he is more limited than as found by the
ALJ. Flowers v. Comm’r of Soc. Sec., 2015 WL 4274961, *4 (E.D. Mich. July 14,
2015) (declining to remand because “the MRI and the CT scan reports provide no
insight into what additional limitations Plaintiff may suffer from based on the
diagnoses therein” and “[a]t most, Plaintiff leaves the ALJ and the Court to
speculate with regard to any possible limitations related to his neck”); Randolph v.
Comm’r of Soc. Sec., 2016 WL 7206711, *6 (E.D. Mich. Aug. 16, 2016) (finding
no error in the RFC finding where the plaintiff cited only evidence the ALJ
specifically considered, and failed to “show how these studies establish[ed] that his
ability to stand or walk was more limited than the ALJ found”). Harrell points to
no opinion in the record suggesting he is more limited than the ALJ determined

5

Harrell makes much of the ALJ’s statement that the Garden City records did not show
changes in medications, when they actually show the addition of Delsym, prednisone, and Dulera
to his asthma medication regimen. (Tr. 19; Tr. 162-173, 177). However, the Dulera prescription
is evident throughout the record (Tr. 200, 201, 311, 313, 314, 319, 320, 322, 323), and Harrell
does not appear to have been directed to take Delsym (which is an over-the-counter cough
suppressant) or prescribed prednisone on a long-term basis. Those medications seem to be for
occasional use. Accordingly, the undersigned does not find the ALJ’s failure to note these
medications from this discrete group of medical records to be significant.
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based on his back condition. Accordingly, the undersigned finds no error in the
ALJ’s analysis of Harrell’s functional limitations based on his back impairment.
3.

Depression

Under the regulations, the ALJ must consider whether a claimant’s
impairment is a medically determinable impairment at step two. See 20 C.F.R.
§ 404.1520. A medically determinable impairment is “an impairment that results
from anatomical, physiological, or psychological abnormalities, which can be
shown by medically acceptable clinical and laboratory diagnostic techniques.”
Jones v. Comm’r of Soc. Sec., 2017 WL 540923, *6 (S.D. Ohio Feb. 10,
2017), report and recommendation adopted, 2017 WL 1196179 (S.D. Ohio Mar.
31, 2017) (citing 20 C.F.R. §§ 404.1505, 404.1508, 404.1520(a)(4)(ii) and
404.1527(a)(1)). “Therefore, a physical or mental impairment must be established
by objective medical evidence from an acceptable medical source. We will not use
your statement of symptoms, a diagnosis, or a medical opinion to establish the
existence of an impairment(s).” 20 C.F.R. § 404.1521; see also Tolbert v. Comm’r
of Soc. Sec., 2012 WL 4176876, at *4 (E.D. Mich. Aug. 27, 2012), report and
recommendation adopted, 2012 WL 4165649 (E.D. Mich. Sept. 18, 2012) (citing
Social Security Ruling 96-4p, 1996 WL 374187, *1) (“A diagnosis establishes
medically determinable impairment only where it is supported by objective
medical evidence.”). There is no error in failing to consider non-medically

22

determinable impairments throughout the sequential analysis. See Jones, 2017 WL
540923, *6 (“If an alleged impairment is not medically determinable, an ALJ need
not consider that impairment in assessing the RFC.”) (citing Rouse v. Comm’r of
Soc. Sec., 2017 WL 163384, *4 (S.D. Ohio Jan. 17, 2017) (stating that a “claimed
condition which is not ‘medically determinable’ need not be considered at all” in
determining a claimant’s RFC)); see also 20 C.F.R. §§ 404.1527(a)(1),
404.1545(a)(2).
Also, at step two of the sequential evaluation process, the ALJ must consider
whether a claimant’s medically determinable impairment is a severe impairment
and whether the impairment(s) meet the twelve-month durational requirement in
20 C.F.R. § 404.1509. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see also
Simpson v. Comm’r of Soc. Sec., 344 Fed. Appx. 181, 188 (6th Cir. 2009). The
applicant bears the burden of establishing the existence within the administrative
record of objective medical evidence suggesting that the applicant was “disabled”
as defined by the Act. In order to be classified as severe, an impairment or
combination of impairments must significantly limit the claimant’s physical or
mental ability to do basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c).
Basic work activities, defined in the regulations as “the abilities and aptitudes
necessary to do most jobs,” include: (1) physical functions such as walking,
standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2)

23

capacities for seeing, hearing, and speaking; (3) understanding, carrying out, and
remembering simple instructions; (4) use of judgment; (5) responding
appropriately to supervision, co-workers, and usual work situations; and (6)
dealing with changes in routine work settings. Failure to find an impairment
severe at step two of the sequential analysis is not reversible error if the ALJ found
another impairment severe and thus continued with the five-step evaluation. See
e.g., Fisk v. Astrue, 253 Fed. Appx. 580, 584 (6th Cir. 2007); Anthony v. Astrue,
266 Fed. Appx. 451, 457 (6th Cir. 2008).
Harrell contends that the ALJ erred in not finding his depression severe. He
points out that he has been receiving medical treatment for depression for
approximately two years and takes medications including Prozac and Depakote.
(Tr. 15). He also has difficulty with sleep and treats with Dr. Bhavsar every three
months. Id. Harrell reported feeling angry with intermittent crying spells and he
endures panic attacks. Yet, when asked to describe his panic attacks, he stated that
he would feel anxious and nervous but denied any shortness of breath or other
symptoms. Id. Dr. Bhavsar has diagnosed him with bipolar mood disorder,
currently depressed without psychotic features; and anxiety disorder NOS. Id. Dr.
Bhavsar assessed a GAF score of 45-50. Id. The ALJ determined that the
consultative examiner who saw Harrell once in January of 2016 and diagnosed him
with depression secondary to medical conditions is a more accurate diagnosis than

24

that provided by his psychiatrist who has seen him for greater than two years. Id.
The ALJ gave “significant weight to the opinion because it is consistent with
normal examination revealing normal concentration, good eye contact, good
contact with reality, good memory and recall, and overall normal mental status,
based on clinical findings.” Id. Ultimately, the ALJ also concluded that “the
claimant’s medically determined mental impairment of depression does not cause
more than minimal limitation to the claimant's ability to perform basic mental work
activities and is therefore non-severe.” (Tr. 16). Harrell argues that the ALJ’s
decision is inconsistent with his testimony, as well as with the longitudinal record
from Dr. Bhavsar. Accordingly, Harrell argues that this matter should be
remanded for a proper evaluation of his bipolar disorder and anxiety pursuant to
SSR 96-3p.
In contrast, the Commissioner contends that substantial evidence supports
the ALJ’s determination that Harrell’s depression was not a severe impairment,
and Harrell has thus failed to carry his burden. More specifically, on examination
with Dr. Bray in January 2016, Harrell’s communication was normal, his
grooming, dress, and hygiene were appropriate and he said his medications had a
good effect. (Tr. 188-189). He reported performing daily activities independently,
he responded to positive criticism and instructions well and he was cooperative,
motivated, verbally responsive, and made good eye contact. (Tr. 189-190).

25

Harrell’s thoughts were logical, organized, simple/concrete, and goal-directed; he
was friendly and pleasant; he had good self-esteem; there was no evidence of a
thought disorder; and his mood was euthymic. (Tr. 190). Dr. Bray concluded that
Harrell would have no difficulty carrying out simple directions, performing
repetitive, routine, simple tasks, or comprehending complex tasks. (Tr. 191). He
also found Harrell’s judgment, behavior, social skills, motivation, and
attention/focus were all within normal limits. (Tr. 191). That same month, Dr.
Garner reviewed the record on behalf of the Agency and concluded that Harrell did
not have a severe mental impairment. (Tr. 235).
The Commissioner also points to treatment notes from Adult Well Being
Services from April 2014 through December 2016, which consistently showed that
Harrell responded well to treatment. (Tr. 336-354). Harrell reported that his
medications helped him. (Tr. 336-354). His examinations consistently showed
adequate judgment, impulse control, memory, concentration, and insight. (Tr. 336354). By January 2015, Harrell said his depression and mood swings were under
control and he was volunteering at a church every day for four to six hours. (Tr.
351). Notes from March 2015 state that Harrell’s depression had lifted, and he had
good self-esteem. (Tr. 349). In May 2016, Harrell was still volunteering at the
church, and he said he was concentrating well. (Tr. 341). Based on the foregoing
evidence, the Commissioner maintains that substantial evidence supports the ALJ’s

26

determination that Harrell’s depression was nonsevere. The Commissioner also
argues that any error in finding his depression to be nonsevere would be harmless
though, because the ALJ found other severe impairments and considered both
severe and non-severe impairments in assessing plaintiff’s RFC. (Tr. 13, 17).
Pompa v. Comm’r of Soc. Sec., 73 Fed. Appx. 801, 803 (6th Cir. 2003) (“Because
the ALJ found that Pompa had a severe impairment at step two of the analysis, the
question of whether the ALJ characterized any other alleged impairment as severe
or not severe is of little consequence.”). Indeed, the ALJ included several mental
limitations in Harrell’s RFC. (Tr. 18).
The undersigned concludes that since the RFC is supported by substantial
evidence, as explained more fully below—and there is no credible evidence of
functional limitations greater than those assessed in the RFC caused by
depression—any error here is harmless. Jordan, 548 F.3d at 423. As previously
noted, it is Harrell’s burden to establish the existence of disability. Key v.
Callahan, 109 F.3d 270, at 274 (6th Cir. 1997). And, a diagnosis alone does not
address the severity of the condition. Higgs, 880 F.2d 860, 863 (6th Cir. 1988).
Here, despite finding his depression nonsevere, the ALJ added the limitations that
Harrell requires simple, unskilled work with an SVP rating of one or two, routine
work that does not require changes or adaptations in work settings or duties more
than once per month, and he requires jobs without production quotas mandating a

27

specific number of pieces per hour or with a down-line co-worker depending on his
productivity. (Tr. 18). Consequently, even if the ALJ had determined that
Harrell’s mental impairments were severe, remand for further analysis would be
futile as the ALJ fully considered Harrell’s mental impairments and included
specific limitations in the RFC to accommodate his impairments. Accordingly,
any error is harmless.
4.

Treating physician opinion

Lastly, Harrell contends that the ALJ violated 20 C.F.R. § 404.1527 by
failing to adequately address the opinion of his treating physician, Dr. Bhavsar.
Despite the requirements outlined in 20 C.F.R. § 404.1527, Harrell says that the
ALJ merely compares Dr. Bhavsar’s opinion with the one time consultative
examination of Dr. Bray and determines that Dr. Bray is more “believable.” He
avers that the ALJ does not address the frequency of examination, the nature and
extent of the treatment relationship and the specialization of the treating source in
determining what weight to give the opinion. Instead, the ALJ finds that Dr.
Bhavsar’s opinion is outweighed by the opinion of a one-time mental examination
from Dr. Bray. Accordingly, Harrell maintains that this matter needs to be
remanded for proper evaluation of Dr. Bhavsar’s medical records.
In response, the Commissioner first points out that Harrell does not identify
a specific opinion but appears to be talking about Dr. Bhavsar’s assignment of a

28

global assessment of functioning (“GAF”) score of 45-50 at his initial intake
assessment at Adult Well Being Services on April 26, 2014. (Tr. 352-354). The
Commissioner maintains that the ALJ properly assigned little weight to this GAF
score because it was assigned the first time Dr. Bhavsar examined Harrell. (Tr. 15,
352-354). Thus, although Dr. Bhavsar continued to treat Harrell, he was not a
treating physician at the time he rendered the opinion. See Kornecky v. Comm’r of
Soc. Sec., 167 Fed. Appx 496, 406 n.10 (6th Cir. 2006) (“[T]he relevant inquiry is
not whether Lian might have become a treating physician in the future if Kornecky
had visited him again. The question is whether Lian had the ongoing relationship
with Kornecky to qualify as a treating physician at the time he rendered his
opinion. . . . [V]isits to Lian after his RFC assessment could not retroactively
render him a treating physician at the time of the assessment.”). Further, the
Commissioner argues that the GAF score was inconsistent with Dr. Bhavsar’s
subsequent treatment notes (Tr. 336-354) as well as his notes from that day, which
document cooperative attitude and behavior, normal speech, normal thought
processes and content, full orientation, and adequate judgment. (Tr. 353). This
was a proper consideration (Tr. 15), as an ALJ may give less weight to a
physician’s opinion if it is inconsistent with the evidence. Cutlip v. Sec’y of Health
& Human Servs., 25 F.3d 284, 287 (6th Cir. 1994). Moreover, a “GAF score is not
particularly helpful by itself.” Oliver v. Comm’r of Soc. Sec., 415 Fed. Appx 681,

29

684 (6th Cir. 2011). And, to the extent there was a conflict in the evidence, it was
for the ALJ to resolve.
To begin with, Harrell’s argument is woefully undeveloped. As noted by the
Commissioner, Harrell does not even identify the “opinion” he claims the ALJ
neglected to consider. “Issues adverted to in perfunctory manner, unaccompanied
by some effort at developed argumentation, are deemed waived.” McPherson v.
Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997). “It is not sufficient for a party to
mention a possible argument in the most skeletal way, leaving the court to . . . put
flesh on its bones.” Id. Indeed, the court will not comb the record to determine
whether any of Dr. Bhavsar’s records contain statements that qualify as opinions as
that term is used in the regulations. 6 Accordingly, the undersigned concludes that
Harrell has failed to sufficiently develop this argument and it is, therefore, waived.

6

“The law and the Social Security regulations recognize a difference between a treating
physician’s treatment notes or comments, and a treating physician’s ‘medical opinion.’”
Calloway v. Comm’r of Soc. Sec., 2016 WL 1165948, at *11 (E.D. Mich. Mar. 1, 2016), report
and recommendation adopted, 2016 WL 1161529 (E.D. Mich. Mar. 23, 2016) (citing 20 C.F.R.
§ 404.1527(a)(2); Bass v. McMahon, 499 F.3d 506, 510 (6th Cir. 2007) (finding that a doctor’s
observations do not qualify as “medical opinions” under the Social Security regulations, and
“without more, are not the type of information from a treating physician which will be provided
great weight under 20 C.F.R. § 404.1513(b)”); Bowen, 478 F.3d at 749 (noting that a treating
doctor's general findings are relevant, but not controlling without a residual functional capacity
(“RFC”) assessment)). “Medical opinions are statements from physicians and psychologists or
other ‘acceptable medical sources’ that reflect judgments about the nature and severity of an
individual’s impairment(s), including symptoms, diagnosis and prognosis, what the individual
can still do despite the impairment(s), and physical and mental restrictions.” SSR 06-3p, 2006
WL 2329939, at *2 (2006).
30

To the extent that the Commissioner’s guess is correct – that Harrell’s
argument refers to Dr. Bhavsar’s GAF assessment – the undersigned finds no error
in the ALJ’s decision. GAF scores do not constitute medical opinions. As
explained in Benton v. Comm’r of Soc. Sec., 2017 WL 6333862, at *8 (W.D. Mich.
Dec. 12, 2017), while the Court must generally defer to the medical opinions
expressed by a claimant’s care providers, see King v. Heckler, 742 F.2d 968, 973
(6th Cir. 1984), the ALJ is not required “to put stock in a GAF score in the first
place.” Kornecky v. Comm’r of Soc. Sec., 167 Fed. Appx. 496, 511 (6th Cir. Feb.
9, 2006) (citing Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 241 (6th Cir.
2002)). Indeed, a “GAF score does not reflect a clinician’s opinion of functional
capacity, and, therefore, an ALJ is not required to consider it when determining a
claimant's ability to work.” Shorkey v. Comm’r of Soc. Sec., 2014 WL 5361995, at
*3 (E.D. Mich. Sept. 12, 2014), report and recommendation adopted, 2014 WL
5362069 (E.D. Mich. Oct. 21, 2014) (citing Howard v. Comm’r of Soc. Sec., 276
F.3d 235, 241 (6th Cir. 2002) (ALJ is not required to consider GAF scores in
assessing residual functional capacity)). Thus, the ALJ was not required to defer to
the GAF scores provided by Dr. Bhavsar. For this reason, the undersigned finds no
reversible error in the ALJ’s assessment of the GAF score in this case.

31

IV.

CONCLUSION
For the reasons set forth above, plaintiff’s motion for summary judgment is

DENIED, defendant’s motion for summary judgment is GRANTED, and the
findings of the Commissioner be AFFIRMED.
IT IS SO ORDERED.
Date: January 28, 2020

s/Stephanie Dawkins Davis
Stephanie Dawkins Davis
United States District Judge

32