Perkins v. Social Security, Commissioner of

Filing 19

ORDER Adopting Report and Recommendation for 18 Report and Recommendation, 11 Motion for Summary Judgment, Motion to Remand filed by Robert B Perkins, 16 Motion for Summary Judgment filed by Social Security, Commissioner of and remanding case pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings. Signed by District Judge Julian Abele Cook. (KDoa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ROBERT B. PERKINS,
Plaintiff,
v.

Case No. 10-12838
Honorable Julian Abele Cook, Jr.

COMMISSIONER OF
SOCIAL SECURITY
Defendant.

ORDER
This case involves a complaint by the Plaintiff, Robert B. Perkins, who, in relying upon the
authority of 42 U.S.C. § 402(g), has asked this Court to review a final decision by the Defendant,
the Commissioner of the Social Security Administration (“Commissioner”). Now pending before
the Court are the motions for summary judgment that the parties have filed pursuant to Federal Rule
of Civil Procedure 56. Magistrate Judge Mona K. Majzoub, to whom the parties’ motions for
summary judgment were referred for an evaluation, submitted a report on July 22, 2011, in which
she recommended that the Court (1) deny both motions for summary judgment, and (2) remand this
case to the Commissioner for further proceedings. As of this date, neither party has expressed any
objections to Magistrate Judge Majzoub’s report. For the reasons that have been set forth below,
the Court adopts the report, including the recommendations, of Magistrate Judge Majzoub in its
entirety.

I.
1

On September 6, 2006, Perkins filed applications for disability insurance benefits and
supplemental security insurance, claiming that he had sustained a disability (i.e., severe low back
pain) which is compensable under the Social Security Act. He subsequently amended the claimed
disability onset date from June 15, 2002, to May 19, 2004. As of the amended date of onset, Perkins
was fifty-one years old, and had utilized his college education to work as a cloth printer.
When his application was initially rejected, he sought and obtained a de novo hearing before
an administrative law judge who, in rendering a decision on September 23, 2008, determined that
Perkins was not a disabled person within the meaning of the Social Security Act. After
acknowledging that he has suffered, and continues to suffer, from several severe physical
impairments - to wit, a sore back, degenerative disc disease, bulging disc (left foraminal incursion),
and mild chronic obstructive pulmonary disease - the administrative law judge determined that
Perkins did not have an impairment or a combination of impairments that met or equaled the
“Listing of Impairments.” The administrative law judge also concluded that Perkins possessed the
residual functional capacity to perform the full range of light work. This range precluded him from
pursuing his past work as a cloth printer, which required medium exertion. Finally and based upon
the application of the Medical-Vocational Guidelines (“the Grid”), 20 C.F.R., Part 404, Subpart P,
Appendix, 2, the administrative law judge opined that, when consideration is given to his residual
functional capacity, as well as such other significant factors as age, education, and work experience,
Perkins was able to perform a significant number of jobs that are available in the national
economy.1 Medical-Vocational Rule 202.14. Thus, the administrative law judge ultimately
1

Perkins attained the age of fifty-five on May 5, 2008. However, noting that “the
regulations provide that age categories are not mechanically applied on borderline situations
such as the instant case,” (Tr. 15), the administrative law judge concluded that Perkins’ age
category changed from “closely approaching advanced age” to “advanced age” on September 4,
2

concluded that Perkins did not suffer a compensable disability under the Social Security Act prior
to September 4, 2007. This decision became the final decision of the Commissioner on May 14,
2010, when the Appeals Council denied Perkins’s request for a review. This lawsuit followed.
II.
This Court has jurisdiction to review the Commissioner’s final decisions to determine if (1)
the findings are supported by substantial evidence and (2) the correct legal standards were applied.
42 U.S.C. § 405(g); Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). Substantial
evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion,” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation omitted), and is
“more than a scintilla of evidence but less than a preponderance,” Brainard v. Sec’y of Health &
Human Servs., 889 F.2d 679, 681 (6th Cir. 1989). Thus, the reviewing court must affirm the
Commissioner’s decision if it is supported by substantial evidence, even if substantial evidence
could also support a different conclusion. Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th
Cir. 1999). This review is limited in scope to an evaluation of the record only. Thus, a court “does
not review the evidence de novo, make credibility determinations nor weigh the evidence.”
Brainard, 889 F.2d at 681.
III.
In his appeal to this Court, Perkins asserts that the decisions from this administrative law
judge in this case were erroneously resolved because (1) the adverse effects of his pain medications
were not properly considered; (2) substantial evidence does not support the conclusions regarding
2007. Application of the grid dictated that, from that day forward, Perkins had become disabled.
Medical-Vocational Rule 202.06. However, this finding resulted in a denial of disability benefits
because his last insured date was June 30, 2007. However, he is eligible for supplemental
security income.
3

his ability to perform light work at any time after the alleged onset date of his disability; (3) the
opinion from the state agency medical expert was disregarded without adequate explanation; (4)
the obligatory credibility assessment of his symptoms, as found in SSR 96-7p, was inadequately
explored; and (5) the Grid was improperly relied upon in this case.
Inasmuch as these claims of error are all interrelated, the Court will consider them all
simultaneously.
Magistrate Judge Majzoub opined - and the Court agrees - that substantial evidence in the
record does not support the determination by the administrative law judge that Perkins could
perform the full range of light work activities. This conclusion, in turn, compels a determination
that the administrative law judge erred in relying upon the Grid because its application is
appropriate only if the claimant’s condition precisely matches the components of the Grid. Kirk v.
Sec’y of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981).
The conclusion of the administrative law judge that Perkins could perform the full range
of light work is not supported by the record. The medical evidence indicates that Perkins
experienced severe back pain (radiating down his legs to his calves) that did not respond well to
any of the treatment interventions that were tried by him over a period of several years. For
example, in addition to being placed on several powerful pain medications (including morphine,
Gabapentin, and Hydrocodone), Perkins was given three epidural steroid injections, walked with
the assistance of a cane, and had tried physical and massage therapy without success.
Perkins’s testimony and self-reports are consistent with the medical evidence. For example,
Perkins asserted that, as a result of his pain, he cannot do a variety of normal activities such as
bending to dress himself, bathing without assistance, performing yard work, and preparing his
meals because of an inability to stand for an extended period of time. Moreover, Perkins
4

complained that his medications caused him to suffer significant side effects, including loss of
memory/concentration problems and drowsiness. He stated that, due to these side effects, he is
unable to handle money and pay his bills, his attention span is only a few minutes long and he can
therefore no longer read books, he no longer drove an automobile due to lack of concentration, and
he needs help in remembering to take his medication.
After reviewing his file, the state agency medical consultant concluded that Perkins should
have the following non-exertional restrictions placed upon him; to wit, (1) a prohibition against
climbing ladders or scaffolds, (2) only occasional stooping, kneeling, crouching, or crawling, and
(3) avoiding exposure to all hazards such as machinery and heights. See 20 C.F.R. Part 404,
Subpart P, Appendix 2, Section 200.00(e) (non-exertional limitations include, inter alia, postural
and environmental limitations).
The evidence that the administrative law judge relied upon in rejecting the significance of
this evidence was insubstantial and, in some cases, not even directly relevant to the claimed
disability. For example, after reciting a series of positive tests, the administrate law judge noted that
Perkins nevertheless had normal muscle mass and strength. (Tr. 13; see also Tr. 14 (treating
evidence that Perkins had normal reflexes and muscle strength as evidence that he could perform
full range of light work)). Yet Perkins did not complain of any weakness or muscle loss. He
complained of severe pain - a complaint that was supported by the results of medical tests and the
treatment options pursued by him. As for the side effects of the medication, the administrative law
judge perfunctorily dismissed them, stating only that “there is nothing in his treatment records to
support his contention. The record shows that [he] does not drive, but he takes public transportation
to his appointments, which is inconsistent with his allegation.” (Tr. 14). Yet the fact that Perkins
ceased driving and relied upon public transportation as an alternative measure supports - rather than
5

undermines - his allegations of concentration problems. Moreover, as Magistrate Judge Majzoub
correctly noted, the exact side effects that Perkins claims are common and well-known side effects
of these powerful pain medications, and it is not surprising that these common occurrences were
not noted in the treatment notes.
It appears that the administrative law judge found that Perkins’ allegations were not credible
by seemingly ignoring relevant evidence and relying upon irrelevant evidence to support his
conclusions. This runs counter to the obligations imposed by 20 C.F.R. § 404.1529(c)(3) (listing
factors to be considered in making credibility determination) and SSR 96-7p (“Because symptoms,
such as pain, sometimes suggest a greater severity of impairment than can be shown by objective
medical evidence alone, the adjudicator must carefully consider the individual’s statements about
symptoms with the rest of the relevant evidence in the case record . . . . An individual’s statements
about the intensity and persistence of pain or other symptoms or about the effect the symptoms have
on his or her ability to work may not be disregarded solely because they are not substantiated by
objective medical evidence.”).
Because the administrative law judge relied on insubstantial and sometimes irrelevant
evidence (while discounting without any adequate explanation evidence that was (1) contained in
the medical records and (2) provided by Perkins and the medical consultant regarding the limiting
effects of the back pain and the side effects of the medications), his determination that this
claimant could perform the full range of light work is not supported by substantial evidence.
Moreover, because Perkins was unable to perform the full range of light work, his condition did
not precisely match the Grid. Thus, the administrative law judge improperly relied on the Grid in
determining that Perkins could perform a substantial number of jobs that are available in the
national economy. Kirk, 667 F.2d at 535. Because a non-Grid determination is required, this case
6

will be remanded so that the opinion of a vocational expert witness may be taken in order to
determine if such jobs existed prior to September 4, 2007.
IV.
For the reasons that have been outlined above, the Court adopts the report of Magistrate
Judge Majzoub. In so doing, the Court (1) denies both of the parties’ motions for summary
judgment, and (2) remands this case pursuant to sentence four of 42 U.S.C. § 405(g) for further
proceedings as described herein.

IT IS SO ORDERED
Date: September 30, 2011

s/Julian Abele Cook, Jr.
JULIAN ABELE COOK, JR.
U.S. District Court Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing Order was served upon counsel of record via the Court's ECF System to their
respective email addresses or First Class U.S. mail to the non-ECF participants on September 30, 2011
s/ Kay Doaks
Case Manager

7