United States District Court, W.D. Michigan, Southern Division
KENT, United States Magistrate Judge
brings this action pursuant to 42 U.S.C. § 405(g),
seeking judicial review of a final decision of the
Commissioner of the Social Security Administration
(Commissioner) which denied her claim for supplemental
security income (SSI).
alleged a disability onset date of November 10, 1991.
PageID.175. She identified her disabling conditions as
Asperger's, attention deficit hyperactivity disorder
(ADHD), anxiety and depression. PageID.179. She completed the
12th grade. PageID.180. At the time plaintiff filed this
application for SSI on March 8, 2013, she was working part
time in a custodial job at a sheltered workshop. PageID.37,
of background, this is plaintiff's second application for
benefits. Plaintiff filed the present application for
benefits on the same date that she appealed a September 15,
2011 administrative decision denying benefits. This Court
addressed that appeal in Tapley v. Commissioner of Social
Security, 1:13-cv-262, 2014 WL 1052611 (W.D. Mich.)
(“Tapley I”). In Tapley I, the
administrative law judge (ALJ) found that plaintiff had the
disorders alleged in the present case and that she could
perform a range of unskilled light work which included light
cleaning (5, 000 jobs), packaging (6, 500 jobs) and machine
operator/tender (8, 000 jobs). Tapley I (Opinion)
(docket no. 15, PageID.552). In an opinion entered on March
18, 2014, the Magistrate Judge affirmed the
Commissioner's decision denying benefits. Id.
(Judgment) (docket no. 16).
present case, the ALJ reviewed plaintiff's present claim
de novo and entered a written decision denying
benefits on June 6, 2014. PageID.37-47. At the administrative
hearing, plaintiff's counsel advised the ALJ that
Tapley I was still pending and that they were in the
process of deciding whether to appeal.
PageID.37. Notably, the ALJ acknowledged that he was
not bound by the ALJ's findings in Tapley I,
stating that “[b]ecause the claimant's previous
claim is currently pending before the District Court, the
Drummond [Drummond v. Commissioner of Social
Security, 126 F.3d 837 (6th Cir.1997)] and Dennard
[Dennard v. Secretary of Health & Human
Services, 907 F.2d 598 (6th Cir.1990)] decisions were
not applied”. PageID.45. In this regard, the ALJ was
referring to SSA Acquiesence Rulings which arose from the
Drummond and Dennard decisions which state
in pertinent part:
When adjudicating a subsequent disability claim with an
unadjudicated period arising under the same title of the Act
as the prior claim, adjudicators must adopt such a finding
from the 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
or there has been a change in the law, regulations or rulings
affecting the finding or the method for arriving at the
See Acquiesence Rulings 98-3(6) and 98-4(6). See
generally, Gay v. Commissioner of Social
Security, 520 Fed.Appx. 354, 356 (6th Cir. 2013)
(Drummond and Dennard “stand for the
principle that when confronted with a second application for
benefits, an ALJ is bound by favorable subsidiary findings
from the previous determination, unless there is new and
material evidence to the contrary”). In reviewing the
present claim, the ALJ ultimately concluded that “the
overall evidence indicated no new evidence indicating an
increase or decrease in the claimant's functioning when
compared to the September 15, 2011 findings.”
PageID.45. The ALJ's decision, which was later approved
by the Appeals Council, has become the final decision of the
Commissioner and is now before the Court for review.
Court's review of the Commissioner's decision is
typically focused on determining whether the
Commissioner's findings are supported by substantial
evidence. 42 U.S.C. §405(g); McKnight v.
Sullivan, 927 F.2d 241 (6th Cir. 1990).
“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.” Cutlip v. Secretary of
Health & Human Services, 25 F.3d 284, 286 (6th Cir.
1994). A determination of substantiality of the evidence must
be based upon the record taken as a whole. Young v.
Secretary of Health & Human Services, 925 F.2d 146
(6th Cir. 1990).
scope of this review is limited to an examination of the
record only. This Court does not review the evidence de
novo, make credibility determinations or weigh the
evidence. Brainard v. Secretary of Health & Human
Services, 889 F.2d 679, 681 (6th Cir. 1989). The fact
that the record also contains evidence which would have
supported a different conclusion does not undermine the
Commissioner's decision so long as there is substantial
support for that decision in the record. Willbanks v.
Secretary of Health & Human Services, 847 F.2d 301,
303 (6th Cir. 1988). Even if the reviewing court would
resolve the dispute differently, the Commissioner's
decision must stand if it is supported by substantial
evidence. Young, 925 F.2d at 147.
claimant must prove that he suffers from a disability in
order to be entitled to benefits. A disability is established
by showing that the claimant cannot engage in 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 twelve months.
See 20 C.F.R. § 416.905; Abbott v.
Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). In applying
the above standard, the Commissioner has developed a
The Social Security Act requires the Secretary to follow a
“five-step sequential process” for claims of
disability. First, plaintiff must demonstrate that she is not
currently engaged in “substantial gainful
activity” at the time she seeks disability benefits.
Second, plaintiff must show that she suffers from a
“severe impairment” in order to warrant a finding
of disability. A “severe impairment” is one which
“significantly limits . . . physical or mental ability
to do basic work activities.” Third, if plaintiff is
not performing substantial gainful activity, has a severe
impairment that is expected to last for at least twelve
months, and the impairment meets a listed impairment,
plaintiff is presumed to be disabled regardless of age,
education or work experience. Fourth, if the plaintiff's
impairment does not prevent her from doing her past relevant
work, plaintiff is not disabled. For the fifth and final
step, even if the plaintiff's impairment does prevent her
from doing her past relevant work, if other work exists in
the national economy that plaintiff can perform, plaintiff is
Heston v. Commissioner of Social Security, 245 F.3d
528, 534 (6th Cir. 2001) (citations omitted).
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 through step four. Jones v. Commissioner of Social
Security, 336 F.3d 469, 474 (6th Cir. 2003). However, at
step five of the inquiry, “the burden shifts to the
Commissioner to identify a significant number of jobs in the
economy that accommodate the claimant's residual
functional capacity (determined at step four) and vocational
profile.” Id. If it is determined that a
claimant is or is not disabled at any point in the evaluation
process, further review is not necessary. Mullis v.
Bowen, 861 F.2d 991, 993 (6th Cir. 1988).
federal court's standard of review for SSI cases mirrors
the standard applied in social security disability
cases.” D'Angelo v. Commissioner of Social
Security, 475 F.Supp.2d 716, 719 (W.D. Mich. 2007).
“The proper inquiry in an application for SSI benefits
is whether the plaintiff was disabled on or after her