Hairston v. Social Security, Commissioner of

Filing 20

ORDER Adopting Report and Recommendation for 14 Motion for Summary Judgment filed by Social Security, Commissioner of, 12 Motion for Summary Judgment filed by Yvette Hairston, 15 Report and Recommendation Signed by District Judge Julian Abele Cook. (KDoa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

YVETTE HAIRSTON,
Plaintiff,
v.
Case No. 11-14974
Honorable Julian Abele Cook, Jr.

MICHAEL J. ASTRUE,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

ORDER
This case involves a complaint by the Plaintiff, Yvette Hairston, 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, Michael J. Astrue, in his capacity as the Commissioner of the Social
Security Administration (ACommissioner@). 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 Mark Randon, to whom the parties= motions for summary
judgment were referred for an evaluation, submitted a report on January 25, 2013, in
which he recommended that the Court (1) deny the Commissioner=s motion for
summary judgment, (2) grant Hairston=s motion for summary judgment, and (3) remand
this case for further proceedings. The Commissioner has timely filed objections to this
report.
I.

On March 21, 2007, Hairston filed an application for disability insurance benefits, in
which she, at the age of 45 years, claimed to have suffered a disability with an onset date of
January 1, 2001. Her prior employment included the positions of working as a bank teller,
customer service representative, and loan review analyst. When her application for
disability insurance benefits was denied, she sought and obtained a de novo hearing
before an administrative law judge who, in a written decision on November 23, 2009,
determined that she was not disabled within the meaning of the Social Security Act. In
making this determination, the administrative law judge applied a five-step disability
analysis as found in 20 C.F.R. ' 404.1520(a). As a result, it was her conclusion - based
upon her reading and analysis of the medical record - that Hairston had suffered from
the severe impairments of Afocal hydromeyelia at C6-C7 with mild to moderate foraminal
impingement at C6-C7 on the left, and left C6-7 radiculopathy; status post foraminotomy
at C6-C7 left, which was performed after the date last insured; trauma to the left knee;
and anxiety and depression,@ as well as the non-severe impairment of Adegenerative
disc disease in the lumbar spine.@ Nevertheless, she determined that none of these
impairments, either singly or in combination, met or equaled the Listing of Impairments.
As an administrative law judge, it was her opinion that Hairston possessed the
residual functional capacity to perform light work which does not require (1) more than
occasional reaching with her left upper arm, (2) frequent climbing of ladders and stairs,
crouching, crawling, or kneeling, (3) sustained focus and concentration, or (4) more than
occasional changes to the overall work routine. Finally, based upon her evaluation of
the testimony by a vocational expert, she opined that, given these above-listed

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restrictions as well as such other factors as work experience, education and age,
Hairston would be able to perform a significant number of jobs that are available within
the national economy. The administrative law judge also concluded that Hairston had
not suffered from a disability which is compensable under the Social Security Act. This
decision became the final decision of the Commissioner on December 9, 2010 when the Appeals
Council denied Hairston=s request for review.
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 has been described as being Asuch
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
Amore 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). In the appellate review
process, 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). However,
this review is limited in scope to an examination of the record only. It is important to note
that the reviewing court Adoes not review the evidence de novo, make credibility
determinations [or] weigh the evidence.@ Brainard, 889 F.2d at 681.
III.

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Hairston urges the Court to conclude that the decision by the administrative law
judge was erroneous because she (1) concluded that Hairston=s severe impairments even when evaluated alone or in combination - do not medically equate to a listed
impairment and (2) did not have substantial evidence upon which to determine that
Hairston (a) was not credible in her statements concerning the severity of her
impairments and (b) retained the residual capacity to perform light work.
In her expressions of opposition to the ultimate conclusions by the administrative
law judge, it is Hairston=s belief that the record does not support the stated reasons for
the rejection of the application for disability benefits. As an example, Hairston contends
that the administrative law judge committed reversible error when she failed to discuss
the reasons for at least one of her conclusions of rejection; namely, that the allegedly
severe physical impairments of the spine do not equate to a listed impairment. She
proclaims that in step three of the disability analysis, the administrative law judge is
obliged to consider Awhether the claimant=s impairment >meets or equals= one of the
listings enumerated in the Listing of Impairments.@ Turner v. Comm=r of Soc. Sec., 381
F. Appx. 488, 491 (6th Cir. 2010) (citing 20 C.F.R. '' 404.1520(a)(4)(iii),
416.920(a)(4)(iii)). AA claimant is . . . disabled if her impairment is the medical equivalent
of a listing, which means it is >at least equal in severity and duration to the criteria of any
listed impairment.=@ Reynolds v. Comm=r of Soc. Sec., 424 F. App=x 411, 414 (6th Cir.
2011) (internal citations omitted).
When determining if an impairment is the medical equivalent of a listed
impairment, A[a]n administrative law judge must compare the medical evidence with the
requirements for listed impairments.@ Id. at 415. However, A[t]he mere failure to discuss
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every single impairment under the step three analysis is not a procedural error.@
Bledsoe v. Barnhart, 165 F. App=x 408, 411 (6th Cir. 2006). Nevertheless, Hairston
argues that (1) her physical impairments satisfy or are medically equal to Listing 1.04
(Disorders of the spine), and (2) the administrative law judge committed reversible error
by summarily rejecting this evidence without any analysis. The administrative law judge
had determined that Hairston suffered from several severe physical impairments which
are related to her spine (namely, Afocal hydromyelia at C6-7 with mild to moderate
forminal impingement at C6-C7 on the left, and left C6-7 radiculopathy; status post
forminotomy at C6-C7 left, which was performed after the date last insured@) as well as
the non-severe impairment of Adegenerative disc disease in the lumbar spine@ and the
severe mental impairment of Aanxiety and depression.@
An examination of the record which relates to this contested issue reveals that
the magistrate judge properly analogized this case to Reynolds. Although the
administrative law judge provided a thorough analysis in support of her conclusion that
Hairston=s mental impairments did not meet or medically equal Listing 12.04 (Affective
Disorders), she offered no analysis as to whether the claimed physical impairments
satisfy or medically equal the listing 1.04 (Disorders of the spine), or any other listing
under Section 1.00. Rather, she summarily declared that she Aevaluated [Hairston=s]
impairments in the context of the Listings and conclude[d] that she does not manifest
clinical signs and findings that meet the specific criteria of any of the Listings.@
This conclusory statement is an insufficient basis upon which to render a
decision. It was necessary for the administrative law judge Ato actually evaluate the
evidence, compare it to Section 1.00 of the Listing, and given an explained conclusion,
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in order to facilitate meaningful judicial review. Without it, it is impossible to say that the
[administrative law judge=s] decision at Step Three was supported by substantial
evidence.@ Reynolds, 424 F. App=x

at 416 (internal citations omitted); see also

Tresenrider v. Comm'r of Soc. Sec., No. 5:11CV1653, 2012 WL 2412113 (N.D. Ohio
June 8, 2012) report and recommendation adopted, No. 5:11CV1653, 2012 WL
2415539 (N.D. Ohio June 26, 2012) (AWithout some discussion as to what listing the
[administrative law judge] considered in contemplation of [step three], or as to how he
reached his ultimate conclusion, the Court is unable to determine whether his findings
are supported by substantial evidence.@).
The Court finds the rationale of Reynolds to be persuasive. As explained by the
Tenth Circuit, the requirement that an administrative law judge set forth her reasoning in
writing does not constitute a Aheightened articulation.@ The Social Security Act generally
requires an administrative law judge
to make findings of fact, and decisions as to the rights of any
individual applying for a payment under this subchapter. Any
such decision [. . .] which involves a determination of
disability and which is in whole or in part unfavorable to such
individual shall contain a statement of the case, in
understandable language, setting forth a discussion of the
evidence, and stating the Commissioner=s determination and
the reason or reasons upon which it is based.
Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996) (quoting 42 U.S.C. ' 405(b)(1));
see also 20 C.F.R. ' 404.953(a) (AThe administrative law judge shall issue a written
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decision that gives the findings of fact and the reasons for the decision.@). AUnder this
statute, the [administrative law judge] was required to discuss the evidence and explain
why he found that appellant was not disabled at step three.@ Clifton, 79 F.3d at 1009. A
discussion of the evidence by the administrative law judge is necessary because a
district court Ashould not properly engage in the task of weighing evidence in [social
security cases]. Rather, we review the Secretary=s decision only to determine whether
[the] factual findings are supported by substantial evidence and whether . . . the correct
legal standards@ were applied. Id.; see also Cotter v. Harris, 642 F.2d 700, 704-05 (3d
Cir. 1981) (primary reason Awhy an administrative decision should be accompanied by a
clear and satisfactory explication of the basis on which it rests . . . is the need for the
appellate court to perform its statutory function of judicial review.@). This underlying
rationale is supported by Sixth Circuit precedent. See, e.g., Hurst v. Sec=y of Health &
Human Servs., 753 F.2d 517, 519 (6th Cir. 1985).
The Commissioner marshaled his own analysis of the evidence to support the
administrative law judge=s conclusion that Hairston=s physical impairments did not
satisfy the equivalent of a medical listing. But Ait is the [administrative law judge's]
rationale that is under review, not defense counsel's.@ Christephore v. Comm'r of Soc.
Sec., No. 11-13547, 2012 WL 2274328 (E.D. Mich. June 18, 2012). A[T]his court cannot
engage in post-hoc rationalizations.@ See Hunter v. Astrue, No. 1:09 CV 2790, 2011 WL
6440762, at *4 (N.D. Ohio Dec. 20, 2011) (citing S.E.C. v. Chenery, 332 U.S. 194, 196
(1947)).
The Court is persuaded that in a case such as this, where the administrative law
judge has determined that Hairston suffers from severe physical impairments of the
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spine, she - as a claimant - is entitled to a discussion of the evidence which supports a
finding that those impairments do not meet or equal a medical listing. See, e.g., Barbera
v. Comm'r of Soc. Sec., No. 11-CV-13265, 2012 WL 2458284 (E.D. Mich. June 5, 2012)
report and recommendation adopted, 2012 WL 2389977 (E.D. Mich. June 25, 2012)
(remanding where administrative law judge did not analyze listing 1.04 after Aelsewhere
recognizing Plaintiff's mild spinal cord compression at the C6BC7 level and
electrodiagnostic evidence of C6BC7 radiculopathy@); Whitaker v. Astrue, No. CIV.A.
6:10-126-JMH, 2011 WL 3847502 (E.D. Ky. Aug. 26, 2011) (reversing and remanding
after administrative law judge concluded that degenerative disc disease of lumbar spine
was a severe impairment but in step three analysis Afailed to identify the listed
impairment for which the Claimant did not qualify, which is Listing 1.04, and failed to
provide any analysis or citation to the record in support of the [administrative law
judge=s] determination that Claimant's symptoms did not qualify for the applicable
listing.@). This case is remanded for further proceedings.
IV.
For the reasons that have been outlined above, the Court adopts the report and
recommendation of the magistrate judge and, in so doing (1) denies the
Commissioner=s motion for summary judgment, (2) grants Hairston=s motion for
summary judgment, and (3) remands this case to the administrative law judge pursuant
to sentence four of 42 U.S.C. ' 405(g) for further proceedings.

IT IS SO ORDERED.

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Dated: March 30, 2013
Detroit, Michigan

s/Julian Abele Cook, Jr.
JULIAN ABELE COOK, JR.
United States 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 March 30, 2013.

s/ Kay Doaks
Case Manager

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