Campbell v. Social Security, Commissioner of
Filing
23
OPINION AND ORDER granting 13 Motion for Summary Judgment; denying 18 Motion for Summary Judgment & REVERSING DECISION OF COMMISSIONER & REMANDING FOR AWARD OF BENEFITS.. Signed by District Judge Patrick J. Duggan. (MOre)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RAYMOND HENLEY CAMPBELL,
Plaintiff,
v.
Case No. 10-13098
Honorable Patrick J. Duggan
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
OPINION AND ORDER
Plaintiff applied to the Social Security Administration for supplemental security
income benefits on July 27, 2005, alleging that he became disabled on June 12, 2005.
The Social Security Administration denied Plaintiff’s request for benefits initially. Upon
Plaintiff’s request, a hearing before an administrative law judge (“ALJ”) was held on
November 6, 2007. In a decision dated April 18, 2008, the ALJ found that Plaintiff was
disabled from June 12, 2005 through February 5, 2007, but that a medical improvement
related to the ability to work rendered him not disabled from February 6, 2007 forward.
The Appeals Council, after reviewing additional documents submitted by Plaintiff, denied
Plaintiff’s request for review on June 7, 2010. Thus the ALJ’s decision became the final
decision of the Social Security Commissioner (“Commissioner”). Plaintiff thereafter
initiated the pending action.
Both parties have filed motions for summary judgment, which this Court referred
to Magistrate Judge Charles E. Binder. On March 29, 2011, Magistrate Judge Binder
filed his Report and Recommendation (R&R) recommending that this Court deny
Plaintiff’s motion for summary judgment, grant the Commissioner’s motion for summary
judgment, and affirm the Commissioner’s decision. At the conclusion of the R&R,
Magistrate Judge Binder advises the parties that they may object to and seek review of the
R&R within fourteen days of service upon them. (R&R at 15.) Magistrate Judge Binder
specifically warns the parties that “[f]ailure to file specific objections constitutes a waiver
of any further right of appeal.” (Id.)
Plaintiff filed objections to the R&R on April 12, 2011. The Commissioner filed a
response to Plaintiff’s objections on April 26, 2011. The matter now is ripe for this
Court’s review.
Standard of Review
Under 42 U.S.C. Section 405(g):
Any individual, after any final decision of the Commissioner
of Social Security made after a hearing to which he was a
party . . . may obtain a review of such decision by a civil
action . . . The court shall have the power to enter . . . a
judgment affirming, modifying, or reversing the decision of
the Commissioner of Social Security, with or without
remanding the cause for a rehearing. The findings of the
Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive . . .
42 U.S.C. § 405(g) (emphasis added); see Boyes v. Sec’y of Health and Human Servs., 46
F.3d 510, 511-12 (6th Cir. 1994). “Substantial evidence means ‘more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.’” Kirk v. Sec’y of Health and Human Servs., 667 F.2d 524, 535
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(6th Cir. 1981) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427
(1971)).
In determining whether substantial evidence exists, a reviewing court must
examine the administrative record as a whole. Id. at 536. The Commissioner’s findings
are not subject to reversal because substantial evidence exists in the record to support a
different conclusion. Mullen v. Brown, 800 F.2d 535, 545 (6th Cir. 1986) (citing Baker v.
Kechler, 730 F.2d 1147, 1150 (8th Cir. 1984)). If the Commissioner’s decision is
supported by substantial evidence, the reviewing court must affirm. Studaway v. Sec’y of
Health and Human Servs., 815 F.2d 1074, 1076 (6th Cir. 1987).
The court reviews de novo the parts of an R&R to which a party objects. See Fed.
R. Civ. P. 72(b); Thomas v. Halter, 131 F. Supp. 2d 942, 944 (E.D. Mich. 2001).
However, the Court “is not required to articulate all the reasons it rejects a party’s
objections.” Id.
Analysis
An ALJ considering a disability claim is required to follow a five-step process to
evaluate the claim. 20 C.F.R. § 404.1520(a)(4). If the ALJ determines that the claimant
is disabled or not disabled at a step, the ALJ makes his or her decision and does not
proceed further. Id. However, if the ALJ does not find that the claimant is disabled or
not disabled at a step, the ALJ must proceed to the next step. Id. “The burden of proof is
on the claimant through the first four steps . . . If the analysis reaches the fifth step
without a finding that the claimant is not disabled, the burden transfers to the
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[defendant].” Preslar v. Sec’y of Health and Human Servs., 14 F.3d 1107, 1110 (6th Cir.
1994); see also Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S. Ct. 2287, 2294 n.5
(1987).
The ALJ’s five-step sequential process is as follows. First, the ALJ considers
whether the claimant is currently engaged in substantial gainful activity. 20 C.F.R.
§ 404.1520(a)(4)(i). The ALJ concluded that Plaintiff had not engaged in substantial
gainful activity from June 12, 2005 through February 5, 2007. (A.R. at 26.) Second, the
ALJ considers whether the claimant has a severe medically determinable physical or
mental impairment that meets the duration requirement of the regulations and which
significantly limits the claimant’s ability to do basic work activities. 20 C.F.R.
§§ 404.1520(a)(4)(ii) and (c). The ALJ concluded that Plaintiff had the following severe
impairments: degenerative disc disease, degenerative joint disease, and
anxiety/depression. (A.R. at 26-27.)
At the third step, the ALJ again considers the medical severity of the claimant’s
impairment(s) to determine whether any impairment meets or equals an impairment listed
in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. § 404.1520(a)(4)(iii). If the
claimant’s impairment meets any Listing, he or she is determined to be disabled
regardless of other factors. Id. The ALJ analyzed whether Plaintiff’s impairments met
any of the listed impairments and determined that they did not. (A.R. at 27.)
At the fourth step, the ALJ assesses the claimant’s residual functional capacity and
past relevant work to determine whether the claimant can perform his or her past relevant
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work. 20 C.F.R. § 404.1520(a)(4)(iv). The ALJ found that, from June 12, 2005 through
February 5, 2007, Plaintiff had the following residual functional capacity:
to perform sedentary work as defined in 20 CFR 416.967(a),[1] with the
further limitations of inability to stand/walk more than 2 hours per 8-hour
work day and sit more than 4 hours per 8-hour work day.
(A.R. at 27.) The ALJ further concluded that, based on these limitations, Plaintiff could
not perform his past work as a construction worker, dishwasher, janitor, manufacturing
worker, or stocker. (A.R. at 28.) However, due to a medical improvement related to his
ability to work, the ALJ determined that since February 6, 2007, Plaintiff had the residual
functional capacity to:
lift, carry, push and pull 5 pounds frequently and 10 pounds occasionally.
He is able to stand/walk 2 hours per 8-hour work day. He is able to sit up to
8 hours per 8-hour work day. He should have the opportunity to alternate
position[s] for a few minutes approximately every 30 minutes. He cannot
climb ladders, ropes, or scaffolds. He can climb stairs and stoop rarely. He
cannot not [sic] kneel, crouch or operate foot or leg controls. He cannot be
exposed to hazards or vibration. He is limited to simple, routine, repetitive
work that does not involve confrontation or negotiation. He can tolerate
superficial contact with co-workers and supervisors but should not need to
interact with the general public (20 CFR 416.967(a)).
(A.R. 29.) The ALJ concluded that, based on these limitations, even with his medical
1
20 C.F.R. § 416.967(a) defines “sedentary work” as work that “involves lifting no more
than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers,
and small tools. Although a sedentary job is defined as one which involves sitting, a certain
amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary
if walking and standing are required occasionally and other sedentary criteria are met.”
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improvement, Plaintiff still could not perform his past work.2 (A.R. at 30.) The ALJ
therefore continued to step five of the analysis.
At the fifth step, the ALJ considers the claimant’s residual functional capacity,
age, education, and past work experience to see if there are jobs that exist in significant
numbers in the national economy that the claimant can perform. 20 C.F.R.
§ 404.1420(a)(4)(v). If there is no such work, the ALJ must find the claimant disabled.
Id. The ALJ determined that there were no jobs that existed in significant numbers in the
national economy that Plaintiff could have performed based on his residual functional
capacity from June 12, 2005 through February 5, 2007. (A.R. at 28-29.) The Court
therefore found that Plaintiff was under a “disability” as defined in the Social Security
Act during that period. (A.R. at 29.) The ALJ also determined, however, that Plaintiff’s
adjusted residual functional capacity as of February 6, 2007, rendered him capable of
2
The implementing regulations set forth a multi-step analysis the Commissioner must
follow to assess whether a claimant’s disability continues following a finding of disability. See
20 C.F.R. § 404.1594(f). The first and second steps mimic those steps applicable in the initial
determination of disability: (1) whether the claimant has engaged in substantial gainful activity
and (2) whether the claimant has a severe impairment or combination of impairments that
significantly limits his or her physical or mental ability to do basic work activities. Compare 20
C.F.R. §§ 404.1594(f)(1), (2) with 20 C.F.R. §§ 404.1520(1), (2). If the answer to both questions
is “no,” the Commissioner proceeds to the third step and evaluates whether there has been a
“medical improvement.” 20 C.F.R. § 404.1594(f)(3). If the answer is “yes,” the Commissioner
must determine whether the medical improvement is related to the claimant’s ability to do work;
i.e., “whether or not there has been an increase in the residual functional capacity based on the
impairment(s) that was present at the time of the most recent favorable medical determination.”
Id. § 404.1594(f)(4). If the medical improvement is related to the claimant’s ability to do work,
the Commissioner must reassess the claimant’s residual functional capacity and determine
whether the claimant can do his or her past work or, if not, significant jobs that exist in the
national economy in light of his or her residual functional capacity, age, education, and past
work experience. Id. §§ 404.1594(f)(7), (8).
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performing a significant number of jobs in the national economy. (A.R. at 35.) The ALJ
therefore concluded that Plaintiff’s disability ended on February 6, 2007. (A.R. at 31.)
In his R&R, Magistrate Judge Binder indicates that he found substantial evidence
in the record to support the ALJ’s conclusions. As indicated previously, Plaintiff filed
timely objections to the R&R.3
First, Plaintiff objects to the Magistrate Judge’s failure to consider the Physical
Residual Functional Capacity Assessment completed by his treating physician and
submitted in support of Plaintiff’s appeal to the Appeals Council. As Magistrate Judge
Binder correctly notes in his R&R (R&R at 2 n.2), where the Appeals Council denies
review, the court may not consider evidence submitted to the Appeals Council in
determining whether to uphold, modify, or reverse the ALJ’s decision. Cline v. Comm’r
of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996) (citing Cotton v. Sullivan, 2 F.3d 692, 69596 (6th Cir. 1993)). “The district court can, however, remand the case for further
administrative proceedings in light of the evidence, if a claimant shows that the evidence
is new and material, and that there was good cause for not presenting it in the prior
proceeding.” Id. (citing Cotton, 2 F.3d at 696). Plaintiff has not attempted to make this
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Plaintiff asserts five objections to the R&R. Three of his objections, however, are based
on arguments he did not assert before the magistrate judge: (1) error by the Appeals Council; (2)
that the ALJ posed an improper hypothetical question to the vocational expert; and (3) that the
ALJ improperly failed to consider his obesity. Plaintiff waived these arguments by failing to
present them earlier. See Borden v. Sec’y of Health and Human Servs., 836 F.2d 4, 6 (1st Cir.
1987); United States v. Armstrong, 951 F.2d 626, 630 (5th Cir. 1992); Taylor v. Michigan Dep’t
of Corr., No. 89-70736, 1993 WL 533470 (6th Cir. Dec. 22, 1993). Thus the Court is addressing
only two of Plaintiff’s objections to the R&R.
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showing in any of his pleadings.
Next, Plaintiff objects to Magistrate Judge Binder’s evaluation of whether
substantial evidence exists in the record to support the ALJ’s decision. Specifically,
Plaintiff argues that the record as a whole does not provide substantial evidence to
support the ALJ’s finding that Plaintiff underwent a medical improvement that rendered
him not disabled as of February 6, 2007. The ALJ provided the following in describing
Plaintiff’s medical improvement as of February 6, 2007:
On February 6, 2007, [t]he claimant reported slightly improved leg pain and
increased back pain. He was not, however, taking any medications. He
walked with a cane for stability, which his doctor advised him to stop using.
He was encouraged to exercise. Clinically, lower extremity strength was
normal. No further surgery was recommended.
(A.R. at 29.) The ALJ also remarked later in her decision that, as of February 6, 2007,
Plaintiff had no neurological deficits and was not taking any prescription medications.
(A.R. at 30.) As well, the ALJ found that “the medical evidence documents the existence
of impairments that can reasonably be expected to produce symptoms such as pain,
depression, and anxiety. However, allegations of disabling symptoms since February 6,
2007 are not fully substantiated.” (Id.)
Where a claimant is found disabled but an ALJ holds that benefits should be
subsequently ceased due to a medical improvement, “the central question is whether [the]
claimant’s medical impairments have improved to the point where [the claimant] is able
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to perform substantial gainful activity.”4 Kennedy v. Astrue, 247 F. App’x 761, 764 (6th
Cir. 2007) (citing 42 U.S.C. § 423(f)(1)). The implementing regulations define a
“medical improvement” as follows:
any decrease in the medical severity of your impairment(s) which was
present at the time of the most recent favorable medical decision that you
were disabled or continued to be disabled. A determination that there has
been a decrease in medical severity must be based on changes
(improvement) in the symptoms, signs and/or laboratory findings associated
with your impairment(s) . . ..
20 C.F.R. § 416.994(b)(1)(ii).
In Kennedy, the Sixth Circuit set forth the law relevant to the inquiry of whether a
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Plaintiff’s case is a “closed period” rather than a “cessation of benefits” case. The Fifth
Circuit Court of Appeals has explained the difference as follows:
In the typical disability case, a claimant’s application for benefits is decided while
he is under a continuing disability. Once the application is granted, payments
continue in accord with that decision. Termination of the benefits then involves a
subsequent hearing– a termination case– in which the Commissioner reviews (and
decides whether to terminate) the continued payment of benefits. In contrast, in a
closed period case, the decision-maker determines that a new applicant for
disability benefits was disabled for a finite period of time which started and
stopped prior to the date of his decision. . . . Thus, in closed period cases, the ALJ
engages in the same decision-making process as in termination cases, that is,
deciding whether (or, more aptly, when) the payments of benefits should be
terminated.
Waters v. Barnhart, 276 F.3d 716, 719 (5th Cir. 2002) (internal quotation marks and citation
omitted). In Barnhart, the Fifth Circuit followed the Tenth, Seventh, Eleventh, and Third
Circuits in holding that the medical improvement standard applicable to cessation of benefit
cases also applies to closed period cases. Id. The Sixth Circuit and judges within this District
have applied the medical improvement standard in closed period cases as well. See Booms v.
Comm’r of Soc. Security, 277 F. Supp. 2d 739, 744-45 (E.D. Mich. 2003); Ramseur v. Astrue,
No. 09-13302, 2010 WL 4923039, at *8 (E.D. Mich. Nov. 29, 2010) (citing Long v. Secretary of
HHS, No. 93-2321, 1994 WL 718540 (6th Cir. 1994) (unpublished)).
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claimant awarded benefits has experienced a medical improvement:
Improvement is measured from “the most recent favorable decision” that
the claimant was disabled. 20 C.F.R. § 416.994(b)(1)(i). There is no
presumption of continuing disability. Cutlip v. Secretary of Health and
Human Services, 25 F.3d 284, 286-87 n.1 (6th Cir. 1994). Instead, the
Commissioner applies the procedures that are outlined in 20 C.F.R.
§§ 404.1594 and 416.994 to determine whether a claimant’s disability has
ended and that she [or he] is now able to work.
247 F. App’x at 764. The court further explained that “[w]hen the cessation of benefits is
the issue, the Commissioner is not to make a new medical determination but rather is to
determine whether there has been ‘medical improvement’ (i.e., a decrease in the severity
of impairment).” Id. at 768 (citing 20 C.F.R. § 416.994(b)(1)(i)). The Commissioner
bears the burden of demonstrating a “medical improvement.” See Kennedy, 247 F. App’x
at 765; see also Waters v. Barnhart, 276 F.3d 716, 717 (5th Cir. 2002).
There are two questions relevant to the medical improvement analysis. See
Kennedy, 247 F. App’x at 764-65. First, whether there is a medical improvement “‘based
on changes (improvement) in the symptoms, signs and/or laboratory findings associated
with [the claimant’s] impairment(s).’” Id. at 765 (quoting 20 C.F.R. § 404.1594(b)(1)(i)).
This requires a comparison between the current severity of the claimant’s medical
impairment(s) and the claimant’s impairments at the time of the favorable decision (i.e.,
the “point of comparison”). See 20 C.F.R. § 416.994(b)(vii); Kennedy, 247 F. App’x at
765 (citing 20 C.F.R. § 404.1594(c)(1)). The “point of comparison” relevant to Plaintiff’s
case is his disability onset date. See Booms v. Comm’r of Soc. Security, 277 F. Supp. 2d
739, 745 (E.D. Mich. 2003). Second, if there has been a decrease in the severity of the
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impairment(s) since the favorable decision, whether that has resulted in “‘an increase in
[the claimant’s] functional capacity to do basic work activities . . .’” Kennedy, 247 F.
App’x at 765 (quoting 20 C.F.R. § 404.1594(b)(3)). An increase in the claimant’s
functional capacity will lead to a cessation of benefits only if, as a result, the claimant can
perform his or her past work or other work for which there exists significant numbers in
the national community. 20 C.F.R. §§ 404.1594(f)(7), (8).
This Court does not agree with Magistrate Judge Binder that substantial evidence
supports the ALJ’s finding that an improvement of Plaintiff’s medical impairment(s)
occurred as of February 6, 2007. The ALJ found that Plaintiff had the following severe
impairments: degenerative disc disease, degenerative joint disease (knees), and
anxiety/depression. Viewing the medical evidence as a whole, this Court cannot find
substantial support for the ALJ’s finding of a medical improvement with respect to any of
these impairments.
To find a medical improvement, the ALJ relied solely on the report of a
neurosurgeon, Dr. Lisa L. Guyot, who examined Plaintiff on February 6, 2007. While Dr.
Guyot reported that Plaintiff indicated “slightly improved leg pain” and that his lower
extremity strength was normal, she also reported that he was experiencing “increased
back pain.” (A.R. at 200.) The ALJ fails to explain how the first and second findings
demonstrate improvement in Plaintiff’s impairments. Further, it is unclear to this Court
how improvement in one area, but reported increased pain in another, supports a “medical
improvement.”
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Moreover, and perhaps most importantly, the ALJ did not compare the findings in
Dr. Guyot’s report with Plaintiff’s condition when the ALJ found him “disabled.” Had
the ALJ done so, she would have noted that Dr. Guyot also reported Plaintiff’s lower
extremity strength as normal in November 30, 2005. (A.R. at 143.) Dr. Guyot’s earlier
report, which followed Plaintiff’s first laminectomy and diskectomy, also reflected an
absence of leg pain following the operation similar to the absence of pain Plaintiff
reported in 2007 following the “redo laminectomy and discectomy.” (Compare id. with
A.R. 200.) As reflected in Neurologist W.J. Boike M.D.’s March 15, 2007 report, the
initial improvements Plaintiff experienced after his surgeries diminished over time. (A.R.
179 (reporting that Plaintiff “initially felt better” following his first surgery, but over the
course of time back and leg pain recurred”).)
As it is mentioned repeatedly in the ALJ’s decision, the Court assumes that the
ALJ was strongly influenced in finding a medical improvement based on Dr. Guyot’s
report that Plaintiff was not taking any prescription medications. (A.R. at 26, 29, 30.)
The entire record, however, reflects that Plaintiff only stopped taking his medications
briefly because they were irritating his stomach. (A.R. at 200.) On January 2, 2007,
Plaintiff’s treating physician, John L. Stoker, Jr., M.D., reported that Plaintiff was taking
four medications: Cymbalta, Zantax, Elavil, and Naprosyn. (A.R. at 265.) In Dr. Guyot’s
report on February 6, 2007, and Dr. Boike’s report on March 15, 2007, it is reported that
Plaintiff was not taking medications. As of April 30, 2007, however, Dr. Stoker reported
that Plaintiff was taking several medications (Lyrica, Naprosyn, Elavil, and Zantac).
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(A.R. 176.) Plaintiff still was taking Lyrica, Naprosyn, and Elavil as of May 14, 2007, in
addition to Mavacor. (A.R. at 173.)
The ALJ concluded that Plaintiff’s “medical improvement” affected his residual
functional capacity by extending his ability to sit from 4 to 8 hours in an 8-hour work day.
There is no evidence in the record, however, to support this finding. To the contrary, as
reported by Dr. Boike in a report dated March 15, 2007, Plaintiff’s low back pain “tends
to be precipitated by prolonged sitting, standing, or walking . . .” (A.R. at 179.) Notably,
despite extending the length of time that Plaintiff is capable of sitting, the ALJ added
further restrictions to his residual functional capacity which seems contradictory to a
finding of a medical improvement.
In his R&R, Magistrate Judge Binder relies on several cases to find that “[w]here,
as here, Plaintiff has been provided the appropriate surgical treatment, his doctors have
nothing more to offer, and he is not taking any prescription medications, there is
substantial evidence that Plaintiff is not disabled.” (R&R at 13-14.) As indicated above,
however, Plaintiff has been continuously taking prescription medications except for a
brief period in March and April 2007. Additionally, unlike the cases cited by Magistrate
Judge Binder, Plaintiff’s treating physicians have not responded to his complaints of pain
with little, sporadic, or no treatment. Plaintiff has undergone two surgeries and it appears
from the record that his doctors would find a fusion to be an appropriate treatment for his
condition(s) but for his age and smoking history. (See A.R. at 200.) Finally, Magistrate
Judge Binder appears to have reviewed the ALJ’s decision for substantial evidence as if it
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had been a new disability determination. That is a different decision, subject to a
different analysis, from the issue of whether there was substantial evidence supporting the
ALJ’s finding of a medical improvement.
Conclusion
For the reasons set forth above, this Court finds that substantial evidence did not
support the ALJ’s determination that a medical improvement rendered Plaintiff no longer
disabled as of February 6, 2007. Having made this finding, the Court must decide
whether to remand the case to the Commissioner for an award of continuing benefits or
for rehearing. As the Sixth Circuit explained in Kennedy:
The [c]ourt can reverse a decision of the Commissioner and immediately
award benefits only if all essential factual issues have been resolved and the
record adequately establishes a plaintiff’s entitlement to benefits. Faucher
v. Secretary, 17 F.3d 171, 176 (6th Cir. 1994); Abbott v. Sullivan, 905 F.2d
918, 927 (6th Cir. 1990). A judicial award of benefits is proper only where
the proof of disability is overwhelming or where the proof of disability is
strong and evidence to the contrary is lacking. Mowery v. Heckler, 771
F.2d 996, 963 (6th Cir. 1985). On the other hand, 42 U.S.C. § 405(g) gives
the court the power to remand for a rehearing, and the court is obliged to do
so if all essential factual issues have not yet been resolved. Newkirk v.
Shalala, 25 F.3d 316, 318 (6th Cir. 1994).
247 F. App’x at 768.
The ALJ found Plaintiff disabled from June 12, 2005 through February 5, 2007.
While the ALJ found a medical improvement that ended Plaintiff’s disability on February
6, 2007, this finding was not supported by substantial evidence in the record. It was the
Commissioner’s burden to present substantial evidence of a medical improvement.
Because such evidence is lacking in the record, this Court finds that the matter should be
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remanded with directions to the Commissioner to award Plaintiff supplemental security
income benefits continuing from February 6, 2007.
Accordingly,
IT IS ORDERED, that Plaintiff’s motion for summary judgment is GRANTED
and the Commissioner’s motion for summary judgment is DENIED;
IT IS FURTHER ORDERED, that the decision of the Commissioner is
REVERSED and the case is REMANDED for an award of benefits.
Date: June 1, 2011
s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE
Copies to:
David M. Stewart, Esq.
AUSA Lynn M. Dodge
Magistrate Judge Charles E. Binder
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