Jackson v. Social Security, Commissioner of

Filing 24

MEMORANDUM AND ORDER Rejecting Report and Recommendation, Denying the Commissioner's Motion for Summary Judgment, Granting in Part and Denying in Part Jackson's Motion for Summary Judgment, and Remanding to the Administrative Law Judge for Further Proceedings. Signed by District Judge Avern Cohn. (BSoc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LISA M. JACKSON,
Plaintiff,
-vsCOMMISSIONER OF SOCIAL SECURITY,

Case No. 10-10874

Defendant.

HON. AVERN COHN
/

MEMORANDUM AND ORDER REJECTING THE MAGISTRATE JUDGE’S REPORT
AND RECOMMENDATION, DENYING THE COMMISSIONER’S MOTION FOR
SUMMARY JUDGMENT, GRANTING IN PART AND DENYING IN PART JACKSON’S
MOTION FOR SUMMARY JUDGMENT, AND REMANDING TO THE
ADMINISTRATIVE LAW JUDGE FOR FURTHER PROCEEDINGS
I. INTRODUCTION
This is a Social Security case. Plaintiff Lisa Marie Jackson (Jackson) appeals
from the final decision of the Commissioner of Social Security (Commissioner) denying
her application for Social Security disability benefits. Jackson claims disability since
January 1, 2005, due to depression, anxiety, attention deficit hyperactivity disorder,
back problems, seizures, and asthma.
The parties filed cross motions for summary judgment.

The motions were

referred to a Magistrate Judge (MJ) for a report and recommendation (MJRR). The MJ
recommends that Jackson’s motion for summary judgment be denied and that the
Commissioner’s motion for summary judgment be granted.

Jackson filed timely

objections to the MJRR. For reasons that follow, the Court will reject the MJRR, and
remand to the ALJ for further proceedings.

II. BACKGROUND
A.
Jackson applied for disability benefits on November 27, 2006, alleging a January
1, 2005, onset of disability. The Social Security Administration (SSA) denied Hall’s
claim. A hearing was held before an ALJ on May 6, 2008.

The MJRR sets forth

pertinent background about Jackson as described at the hearing, as follows:
[Jackson] was 21 years old on the alleged onset date. [Jackson]
has an eleventh grade education. [Jackson] testified that at school she
had special education for “everything.” At the hearing [Jackson] testified
that she had been working part-time at McDonald’s for about two months,
taking orders at the drive-through and the counter. [Jackson] testified that
she cannot work more than fifteen hours per week due to back pain and
she cannot work a forty hour week due to back pain, anxiety, and getting
“very stressed out very fast” and upset. [Jackson] also testified that she
cannot continue to work due to her and her daughter’s numerous
appointments. [Jackson] estimated that she has been fired from
approximately twenty-five percent of her jobs, generally for arguing and
not being able to get along with her co-workers. [Jackson] also testified
that, as an adult, she has hit people including a neighbor, her mother and
her boyfriend and she has hit her boyfriend in front of her children more
times than she can count.
[Jackson] had a past suicide attempt at age 14 or 15. [She] testified
that she was using “16 pills” on her twenty-first birthday. [Jackson] has
undergone mental health treatment including medication. The ALJ
pointed out Plaintiff’s historical documentation of fibromyalgia, noting that
it was “mostly” back pain and Plaintiff denied having problems with her
hands, legs and knees. Plaintiff testified that the last time she had a
seizure was three years prior to the hearing and at the time of the hearing
she was not taking seizure medication.
Plaintiff also testified that she takes care of her three children,
including a special needs child and a five month old. Plaintiff attends IEP
meetings for her three-year-old. Plaintiff testified that taking care of her
three-year-old daughter is a “24/7" job for which she does not have any
assistance. Plaintiff testified that she lost her driver’s license after getting
into a car accident. Plaintiff testified that she did not know why the charge
said “drug trafficking” because the medication in her car at the time of the
accident was prescribed to her. Plaintiff also testified that her license is
now restricted.

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Plaintiff testified that she had past substance abuse problems, her
three-year-old had tested positive for cocaine when she was born, and
that Plaintiff underwent treatment at that time. Plaintiff testified that she
has not used cocaine since that daughter was born, almost four years
before the hearing. Plaintiff testified that she “occasionally” smokes pot but
not everyday; she later testified that she smokes pot about once every two
months.
(Doc. 20).
A vocational expert (VE) also testified at the hearing.

In response to a

hypothetical from the ALJ, which asked whether someone limited to simple, unskilled,
light work be able to perform Jackson’s past work as a fast food worker, the VE
answered yes. When asked by the ALJ to next consider the same individual, with an
additional limitation on public work, due to “explosive problems” such as anger and
having no more than superficial contact with supervisors and co-employees, the VE
responded that such an individual would not be able to perform the fast-food worker
position at the counter but could work in the grill area. The VE testified that such an
individual could also work as a marker in retail (light and unskilled with 155,600
positions in Michigan), a cleaner housekeeper (light and unskilled with 21,740 positions
in Michigan), and stock checker/stock clerk for apparel in retail (55,590 positions).
The ALJ then asked the VE to add another limitation which would prevent the
individual from dealing with people “on a sustained basis,” meaning that “if she’s
working full-time she’d end up blowing up at the people, and hitting them or throwing
stuff at them eventually.”

The VE replied that this limitation would eliminate the

individual from qualifying for any job. Finally, the ALJ added the limitation in which an
individual would “intermittently decompensate in a work setting so that person would
[sic] have a meltdown and would [sic] cause a scene,” to which the VE again replied

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that the individual would not qualify for any available job due to the fact that the
“condition would cause her to miss work twice a month,” which “would keep her out of
all employment.”
B.
On June 26, 2008, the ALJ issued a decision denying benefits, finding that
Jackson was not disabled under the Social Security Act and concluding that Jackson
had the residual functional capacity to perform a limited range of simple, unskilled, light
exertion work. The ALJ further found that Jackson to have an RFC to perform a range of
light work, as defined in 20 C.F.R. 404.1567(b). He found Jackson able to perform her
past relevant work and able to perform a significant number of jobs in the economy thus
he held that she was not suffering from a disability under the Social Security Act. The
Appeals Council (AC) declined to review the ALJ’s decision.
Jackson then brought this action for judicial review, arguing that the ALJ’s
decision was not supported by substantial evidence because 1) the ALJ failed to
properly assess Jackson’s credibility as to her limitations, 2) the ALJ erred by limiting
Jackson to simple, unskilled work, and by not properly considering her treating
physician’s opinion, 3) the ALJ’s hypothetical question to the VE was not an accurate
portrayal of her limitations, and 4) the ALJ exhibited bias at the hearing. The MJRR
rejected Jackson’s assertions and found that, overall, there was substantial evidence in
the record to support the ALJ’s decision.
Jackson now objects to the MJRR on the same grounds.
III. STANDARD OF REVIEW
Judicial review of a Social Security disability benefits application is limited to

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determining whether the “the commissioner has failed to apply the correct legal
standards or has made findings of fact unsupported by substantial evidence in the
record.”

Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997).

A

reviewing court may not resolve conflicts in the evidence or decide questions of
credibility. Brainard v. Sec’y of HHS, 889 F.2d 679, 681 (6th Cir. 1989). Substantial
evidence is “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). It is “more
than a scintilla but less than a preponderance.” Consol. Edison Co. v. NLRB, 305 U.S.
197, 299 (1938). The substantiality of the evidence must be based upon the record
taken as a whole. Futernick v. Richardson, 484 F.2d 647, 649 (6th Cir. 1973). The
substantial evidence standard “presupposes that there is a zone of choice within which
the decisionmakers can go either way, without interference with the courts.” Mullen v.
Bowen, 800 F.2d 535, 545 (6th Cir. 1986). The portions of the MJRR that the claimant
finds objectionable are reviewed de novo. 28 U.S.C. § 636(b)(1)(c); Smith v. Detroit
Fed’n of Teachers, Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987).
IV. DISCUSSION
A. Adverse Credibility Assessment
First, Jackson says that the ALJ’s adverse credibility determination as to the
extent of her mental impairments is not supported by substantial evidence. Particularly,
she says that the ALJ did not adequately state on the record why he did not give full
weight to Jackson’s stated mental impairments.

Further, she says that the ALJ

improperly considered her daily activities.
An ALJ’s findings regarding a claimant’s credibility “are to be accorded great

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weight and deference, particularly since an 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). Any credibility assessment made by an ALJ must be supported by
substantial evidence in the record. Id. However, “there is nothing patently erroneous in
the ALJs decision to rely on her own reasonable assessment of the record over the
claimant's personal testimony.” White v. Comm’r of Soc. Sec., 572 F. 3d 272, 287 (6th
Cir. 2009). Finally, “[a]n ALJ may also consider household and social activities engaged
in by the claimant in evaluating the claimant’s assertion of pain or ailments.” Kidd v.
Comm’r of Soc. Sec., 283 Fed. App’x 336, 342 (6th Cir. 2008) (quoting Walters, 127
F.3d at 532).
Here, the ALJ adequately stated his findings.

Generally, the ALJ found

Jackson’s reported symptoms and limitations to be inconsistent and unpersuasive. In
support of this conclusion, the ALJ described that in one examination Jackson reported
being able to sit for 20 minutes. However, in another, she denied suffering from any
sitting problems.

Jackson also reported having numbness and tingling in one

examination, but in another denied having numbing or tingling. She reported suffering
from a seizure disorder, but in later examinations either denied it or made no mention of
it. Finally, the ALJ describes that during one examination Jackson stated that she can
occasionally lift 30 pounds, but one month later states that she can lift 5 pounds.
As to Jackson’s daily activities, the ALJ properly considered and relied on them.
Particularly, the ALJ described that Jackson is able to initiate and participate in activities
such as cleaning, doing laundry, caring for pets, shopping, as well as activities related
to personal hygiene. The ALJ also noted that Jackson is able to take care of her young

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daughters which includes making their lunch and participating in activities with them.
Based on the above, the Court agrees that there is substantial evidence to
support the ALJ’s adverse credibility finding, especially in light of the deference given to
ALJ’s related to these determinations. Thus, Jackson’s objection on this issue is overruled.
B. Bias
Next, Jackson argues that the ALJ was bias and should have been disqualified
because he had “preconceived notions” about Jackson evidenced by the way he treated
her during the hearing, i.e., acting as an “amateur doctor,” and by a law review article
authored by the ALJ, which examines the current social security disability system and
proposes solutions to improve it. See Paul Armstrong, Toward a Unified and Reciprocal
Disability System, J. Nat’l Ass’n Admin. L. Judges 25 (2005). The argument lacks merit.
As the MJRR states, the regulations require that Jackson raise any objections
related to the ALJ’s potential bias at the earliest opportunity so as to determine whether
the ALJ shall continue with the hearing or withdraw. See Ventura v. Shalala, 55 F.3d
900, 902 (3d Cir. 1995) (“The claimant must bring any objections to the attention of the
ALJ and the ALJ shall decide whether to continue the hearing or withdraw.”); Pronti v.
Barnhart, 339 F. Supp. 2d 480, 495 (W.D.N.Y. 2004) (district court found that parties
raised the objection at the appropriate “earliest opportunity” because they did not have
evidence to raise the appeal prior to the appeals council and district court reviews).
Here, Jackson did not raise the bias objection to the AC. Thus, it is not properly
raised here. Moreover, even if Jackson had raised it below, in order to evaluate a bias
claim the Court “must begin with the ‘presumption that policymakers with

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decisionmaking power exercise their power with honesty and integrity.’” Collier v.
Comm’r of Soc. Sec., 108 Fed. Appx. 358, 364 (6th Cir. 2004) (quoting Navistar Int'l.
Transportation Corp. v. EPA, 941 F.2d 1339, 1360 (6th Cir.1991)). “The burden of
overcoming the presumption of impartiality rests on the party making the assertion [of
bias], and the presumption can be overcome only with convincing evidence that a risk of
actual bias or prejudgment is present.” Id. (citing Schweiker v. McClure, 456 U.S. 188,
196 (1982); Withrow v. Larkin, 421 U.S. 35, 47(1975)) (internal quotation marks
omitted). “Stated differently, any alleged prejudice on the part of the decisionmaker
must be evident from the record and cannot be based on speculation or inference.”
Collier, supra, at 364 (internal citations and quotation marks omitted).
Jackson has not set forth evidence of actual bias or prejudgment on the part of
the ALJ. Rather, she asserts that he should have been disqualified because of the style
of his questioning at the hearing, and because of a law review article that he authored,
unrelated to Jackson, but according to her demonstrating a “highly critical personal
viewpoint towards younger claimants and mental impairments.” This argument does not
persuade the Court that actual bias or prejudgment was present.
Thus, Jackson has not met the burden so as to establish that the ALJ was bias to
require his removal from the case. Jackson’s objection on this issue is over-ruled.
C. RFC and Hypotheticals
Lastly, Jackson argues that the ALJ’s RFC finding is not supported by substantial
evidence. As a result, Jackson says that the ALJ’s hypothetical to the VE is flawed
because it did not accurately portray her limitations in concentration, persistence, and
pace. During oral argument, Jackson’s counsel further asserted that the ALJ did not

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consider the medical opinion evidence on the record in its entirety and failed to address
multiple findings of “marked” impairment by treating physicians, which he says
constitutes error. Particularly, Jackson points to the fact that the ALJ seemingly ignores
treating physician John Valdez’s (Valdez) assessment that Jackson is “markedly limited”
in seven out of ten “sustained concentration and persistence” abilities on the “Mental
Residual Functional Capacity Assessment.”1 (See Doc. 8-8, p. 72). Instead, Jackson
says that the ALJ erroneously relied only on the abilities in which Jackson was
assessed as “not significantly limited” or “moderately limited.” Finally, Jackson says that
the ALJ also ignored a discharge summary by Blue Water Counseling, which assessed
Jackson as having “marked impairment” in marriage/relationships, family problems,
job/school/performance, and ability to concentrate. (Doc. 8-8, p. 72). Because these
assessments were not considered in the ALJ’s opinion relating to her RFC assessment,
Jackson argues that the RFC is not accurate, as it is not based on substantial evidence.
The Court agrees.
An ALJ considers numerous factors in constructing a claimant's RFC, including
the medical evidence, non-medical evidence, and the claimant's credibility. Coldiron v.
Comm’r of Soc. Sec., 391 Fed. Appx. 435, 443-44 (6th Cir. 2010) (unpublished)
(internal citations omitted). When evaluating medical opinion evidence, “an ALJ must
Within the “Sustained Concentration and Persistence” category, Jackson is assessed
as markedly limited in: (1) The ability to carry out detailed instructions; (2) The ability to
maintain attention and concentration for short periods of time; (3) The ability to maintain
attention and concentration for extended periods of time; (4) The ability to perform
activities within a schedule, maintain regular attendance, and be punctual within
customary tolerances; (5) The ability to work in coordination with, or proximity to others
without being distracted by them; (6) The ability to make ordinary work-related
decisions; (7) The ability to complete a normal workday and workweek without
interruptions from psychologically based symptoms, and to perform at a consistent pace
without an unreasonable number and length of rest periods. (Doc. 8-8, p. 72).
1

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give the opinion of a treating source controlling weight if he finds the opinion
‘well-supported by medically acceptable clinical and laboratory diagnostic techniques’
and ‘not inconsistent with the other substantial evidence in [the] case record.’” Wilson v.
Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (quoting 20 C.F.R. §
404.1527(d)(2)). “If the opinion of a treating source is not accorded controlling weight,
an ALJ must apply certain factors-namely, the length of the treatment relationship and
the frequency of examination, the nature and extent of the treatment relationship,
supportability of the opinion, consistency of the opinion with the record as a whole, and
the specialization of the treating source-in determining what weight to give the opinion.”
Id.
As to hypotheticals posed to the VE, they “need only include the alleged
limitations of the claimant that the ALJ accepts as credible and that are supported by
the evidence.” Delgado v. Comm’r of Soc. Sec., 30 Fed. App’x 542, 548 (6th Cir. 2002);
see also Casey v. Sec’y of HHS, 987 F.2d 1230, 1235 (6th Cir. 1993) (“It is well
established that an ALJ may pose hypothetical questions to a vocational expert and is
required to incorporate only those limitations accepted as credible by the finder of
fact.”). Finally, an ALJ should ask hypotheticals that include concentration difficulties
accurately characterizing a claimant’s impairments. Smith v. Halter, 307 F.3d 377, 379
(6th Cir. 2001).
Relating to Jackson’s mental impairments, the ALJ considered Jackson’s
description of her depression, anxiety, and panic attacks which Jackson reported left
her incapable of all work activity. The ALJ also gave “somewhat persuasive” weight to
treating physician Valdez’s assessment, which describes that Jackson is not

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significantly limited in her ability carry out short and simple instructions, to interact
appropriately with the general public, to ask questions, or to work with and get along
with co-workers and supervisors. In addition, the ALJ gave “considerable weight” to an
independent medical expert’s opinion who found that Jackson was capable of
performing light work.
As stated in the recent decision of Karger v. Comm’r of Soc. Sec., 2011 WL
477682 (6th Cir. Feb. 10, 2011), “[t]he Court is cognizant that an ALJ can consider all
the medical opinion evidence without directly addressing in his written decision every
piece of evidence submitted by a party, but his factual findings as a whole must show
that he implicitly resolved such conflicts. Id. at *10 (citing Loral Defense Systems-Akron
v. NLRB, 200 F.3d 436, 453 (6th Cir. 1999). “Nevertheless, while a ‘deficiency in
opinion-writing is not a sufficient reason to set aside an ALJ’s finding where the
deficiency [has] no practical effect on the outcome of the case,’ inaccuracies,
incomplete analysis and unresolved conflicts of evidence can serve as a basis for
remand. Id. With this basis in mind, the court of appeals in Karger remanded a denial
of social security disability benefits back to the ALJ because “the ALJ’s opinion [did] not
represent the entire record.” Id. The court held, “[g]iven that, according to the Court’s
review of the entire record, at least four medical source opinions found [the claimant]
disabled because of her psychological impairments and at least four did not, the ALJ
must carefully articulate his resolution of the conflict with contextual awareness of the
record evidence.” Id. (citing Kester v. Astrue, 2009 WL 275 438, *9 (S.D. Ohio Feb. 3,
2009), for the proposition that an ALJ cannot “pick and choose” only the evidence that
supports his position).

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Here, the ALJ mentions Valdez’s assessment briefly, but gives it “somewhat
persuasive” weight and fails to mention the assessments which describe Jackson as
markedly impaired.

Further, the ALJ fails to mention the Blue Water Counseling

discharge summary which also assesses Jackson as markedly impaired in several
abilities, including concentration. Finally, the ALJ gives no explanation as to why he did
not give fully weight to Valdez as a treating physician of Jackson. Karger, supra; see
also Wilson, supra, at 544 (“if the opinion of a treating source is not accorded controlling
weight, an ALJ must apply certain factors-namely, the length of the treatment
relationship and the frequency of examination, the nature and extent of the treatment
relationship, supportability of the opinion, consistency of the opinion with the record as a
whole, and the specialization of the treating source-in determining what weight to give
the opinion”). In sum, the ALJ’s opinion does not represent the entire record due to its
incomplete analysis and unexplained conflicts of medical opinion evidence, especially
as it relates to treating physician Valdez. See Karger, supra.
Moreover, the ALJ’s failure to address the marked limitation assessments by
Valdez and Blue Water Counseling is particularly harmful due to the fact that the VE
testified that further limitations, if accurate, would prevent Jackson from working. See
Karger, supra, at *13 (“The [ALJ’s] omissions are especially harmful given the VE’s
testimony that the limitations found by Watts . . . if accurate, would prevent [the
claimant] from working”).
Accordingly, the ALJ erred on this ground and remand is proper.
V. CONCLUSION
For the reasons stated above, the Court DECLINES to adopt the MJRR. The

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Commissioner’s motion for summary judgment is DENIED.

Jackson’s motion for

summary judgment is DENIED in part and GRANTED in part. Finally, as it relates to
Jackson’s RFC and hypothetical objections, the Court REMANDS to the ALJ for further
consideration and a new opinion consistent with this memorandum and order.
SO ORDERED.

S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE

Dated: July 13, 2011

I hereby certify that a copy of the foregoing document was mailed to the
attorneys of record on this date, July 13, 2011, by electronic and/or ordinary mail.

S/Julie Owens
Case Manager, [phone]

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