Hicks v. Social Security, Commissioner of
OPINION and ORDER Overruling Defendant's 16 Objection, Adopting the Magistrate Judge's 15 Report and Recommendation, Granting in Part Plaintiff's 9 Motion for Summary Judgment, and Denying Defendant's 13 Motion for Summary Judgment. Signed by District Judge Robert H. Cleland. (Loury, R)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
Case No. 12-13581
COMMISSIONER OF SOCIAL SECURITY,
OPINION AND ORDER (1) OVERRULING DEFENDANT’S OBJECTION;
(2) ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION;
(3) GRANTING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; AND
(4) DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Aletha Hicks appeals from Defendant Commissioner of Social Security’s
(the “Commissioner”) denial of disability insurance benefits. The Magistrate Judge
issued a Report and Recommendation (“R&R”) advising the court to deny the
Commissioner’s motion for summary judgment, grant in part Hicks’s motion for
summary judgment to the extent it seeks remand, and deny in part Hicks’s motion to the
extent it seeks an award of benefits. The Commissioner timely filed an objection to the
R&R to which Hicks responded. After reviewing the R&R and the parties’ briefs, the
court concludes that a hearing is unnecessary. See E.D. Mich. LR 7.1(f)(2). For the
reasons stated below and in the R&R, the court will overrule the Commissioner’s
objection, adopt the R&R, and grant in part Hicks’s motion for summary judgment.
A. Timely Objections and De Novo Review
The filing of timely objections to an R&R requires the court to “make a de novo
determination of those portions of the report or specified findings or recommendations
to which objection is made.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz,
447 U.S. 667 (1980); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). This de
novo review requires the court to re-examine all of the relevant evidence previously
reviewed by the magistrate judge in order to determine whether the recommendation
should be accepted, rejected, or modified in whole or in part. 28 U.S.C. § 636(b)(1).
“The filing of objections provides the district court with the opportunity to consider
the specific contentions of the parties and to correct any errors immediately,” Walters,
638 F.2d at 950, enabling the court “to focus attention on those issues—factual and
legal—that are at the heart of the parties’ dispute,” Thomas v. Arn, 474 U.S. 140, 147
(1985). As a result, “‘[o]nly those specific objections to the magistrate’s report made to
the district court will be preserved for appellate review; making some objections but
failing to raise others will not preserve all the objections a party may have.’”
McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 837 (6th Cir. 2006) (quoting Smith
v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987)).
B. Substantial Evidence Standard
In a social security case, the court “must affirm the Commissioner’s decision if it
‘is supported by substantial evidence and was made pursuant to proper legal
standards.’” Rabbers v. Comm’r Soc. Sec. Admin., 582 F.3d 647, 651 (6th Cir. 2009)
(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42
U.S.C. § 405(g). When, as here, the Appeals Council declines review of a plaintiff’s
claim, “the decision of the ALJ becomes the final decision of the [Commissioner].”
Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993).
The court’s review of the record for substantial evidence is quite deferential to the
ALJ. “Substantial evidence is more than a scintilla of evidence but less than a
preponderance and is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion,” Pittsburgh & Conneaut Dock Co. v. Dir., Office of
Workers’ Comp. Programs, 473 F.3d 253, 259 (6th Cir. 2007), “even if that evidence
could support a decision the other way,” Casey, 987 F.2d at 1233. Moreover, the court
bases its review on the entire administrative record, not just what the ALJ cited. Heston
v. Comm’r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). “Even if supported by
substantial evidence, however, a decision of the Commissioner will not be upheld where
the [Social Security Administration] fails to follow its own regulations and where that
error prejudices a claimant on the merits or deprives the claimant of a substantial right.”
Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007) (citing Wilson v.
Comm’r of Soc. Sec., 378 F.3d 541, 546-47 (6th Cir. 2004)).
The Commissioner filed a single objection to the R&R arguing that the Magistrate
Judge erred in finding that the ALJ failed to conduct a proper residual functional
capacity (“RFC”) assessment. The ALJ assesses a claimant’s RFC in between steps
three and four of the Social Security Administration’s five-step evaluation process. The
RFC is meant to reflect “the most [a claimant] can do despite [his] limitations,” and is
used to determine whether a claimant can do his relevant past work or any other work in
the economy. 20 C.F.R. § 202.1545(a). In formulating a RFC, the ALJ “will consider all
of [a claimant’s] impairment(s), even those that are not severe, in determining [the
claimant’s] residual functional capacity.” 20 C.F.R. § 404.1545(e). At step two the ALJ
determined that Hicks suffered from the non-severe mental impairment of affective
disorder, which caused mild limitations in daily living, social functioning, and
concentration, persistence or pace. But the ALJ did not discuss Hicks’s affective
disorder when completing his RFS assessment. (Dkt. # 6 at Pg ID 73.) In fact, the ALJ
failed to even mention Hicks’s mental impairment in the RFC analysis.
The Commissioner contends that, after finding that Hicks’s mental impairment
was non-severe, the ALJ concluded that Hicks’s mental impairment caused no workrelated limitations and declined to expressly discuss its lack of impact in his RFC
analysis. However, the ALJ was required to consider the effects of Hicks’s non-severe
mental impairment along with her severe physical impairments in determining her RFC.
Social Security Ruling 96-8p provides that:
In assessing RFC, the adjudicator must consider limitations and restrictions
imposed by all of an individual’s impairments, even those that are not
“severe.” While a “not severe” impairment(s) standing alone may not
significantly limit an individual’s ability to do basic work activities, it
may—when considered with limitations or restrictions due to other
impairments—be critical to the outcome of a claim. For example, in
combination with limitations imposed by an individual’s other impairments,
the limitations due to such a “not severe” impairment may prevent an
individual from performing past relevant work or may narrow the range of
other work that the individual may still be able to do.
Although the ALJ discussed in some detail the impact of Hicks’s non-severe
mental impairments in his “Finding of Fact and Conclusions of Law,” the record
suggests that he neglected to consider them in combination with her severe physical
impairments when determining her RFC. (Dkt. # 6 at Pg ID 72-74.) Not only did the
ALJ fail to mention Hicks’s mental impairment in his RFC assessment, he appears to
have excluded them from consideration. The ALJ wrote, “In translating the claimant’s
medically determinable physical limitations into the context of functional limitations, the
undersigned finds that the claimant retains the capacity to perform work at the medium
exertional level.” (Id. at Pg ID 76) (emphasis added).
The ALJ’s failure to consider the combined limiting effects of both Hicks’s
physical and mental impairments is further evidenced by the hypothetical question
posed to the vocational expert (“VE”). A hypothetical question is informed by the ALJ’s
RFC assessment and “should include an ‘accurate[ ] portray[al] [of her] individual
physical and mental impairment[s].” Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 239
(6th Cir. 2002) (quoting Varley v. Sec’y of Health & Human Servs., 820 F.2d 777, 779
(6th Cir. 1987)). The ALJ asked the VE to consider a claimant that was able to perform
the full range of medium work “with no mental limitations.” (Dkt. # 6 at Pg ID 63.) The
ALJ did not have the VE consider Hicks’s affective disorder, despite his previous
determination that it causes, at most, minimal limitations in her ability to perform basic
mental work activities. (Dkt. # 6 at Pg ID 72.) This hypothetical question, along with the
absence of Hicks’s mental impairment from the RFC assessment, provides the strong
impression that, when formulating Hicks’s RFC and determining her capacity for past
relevant work, the ALJ considered only Hicks’s physical impairments.
Though the ALJ could have determined that, when combined with her physical
impairments, Hicks’s mental impairment caused no further work related limitations, he is
required to state the basis for such conclusion. See White v. Comm’r of Soc. Sec., 312
F. App’x 779, 788 (6th Cir. 2009) (holding that because an ALJ did not accurately state
the evidence used to support his findings, his total discounting of the mental impairment
was not supported by substantial evidence). In the factually similar case Al Ghawalb v.
Commissioner of Social Security, the ALJ found that the claimant suffered from severe
physical impairments and non-severe symptoms of depression and anxiety. 2012 WL
2804837, at *5 (E.D. Mich. July 10, 2012). The ALJ went on to consider only the
claimant’s physical limitations in the RFC assessment despite the existence of state and
private psychiatric evaluations. Id. at *6. This court held that “[i]f the Court is to infer
that the ALJ used these portions in his RFC assessment, the ALJ must explain why he
chose not to credit the evidence.” Id.
In determining Hicks’s RFC, the ALJ was required to consider her mental
impairment and, if he concluded that it caused no further work related impairments,
state the evidence supporting his conclusion. Because the record does not indicate that
the ALJ did so, the court cannot conclude that his finding that Hicks can perform her
past relevant work is supported by substantial evidence. See Rabbers, 582 F.3d at
Accordingly, IT IS ORDERED that Defendant’s objection [Dkt. # 16] is
OVERRULED and the Magistrate Judge’s report and recommendation [Dkt. # 15] is
ADOPTED IN FULL AND INCORPORATED BY REFERENCE.
IT IS FURTHER ORDERED that Plaintiff’s motion for summary judgment [Dkt.
# 9] is GRANTED IN PART to the extent it seeks remand and DENIED IN PART to the
extent it seeks an award of benefits. Defendant’s motion for summary judgment [Dkt.
# 13] is DENIED.
Finally, IT IS ORDERED that the case is REMANDED to the Commissioner. The
ALJ must explicitly discuss Hicks’s mental impairment in his RFC assessment. If
consideration of Hicks’s mental impairment alters the RFC assessment, the ALJ should
then proceed with a proper step four and (if necessary) five analysis.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: July 18, 2013
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, July 18, 2013, by electronic and/or ordinary mail.
s/ Richard Loury for Lisa Wagner
Case Manager and Deputy Clerk
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