Yahya v. Social Security, Commissioner of

Filing 12

OPINION and ORDER re 8 MOTION for Summary Judgment , 10 MOTION for Summary Judgment - Signed by District Judge Laurie J. Michelson. (JJoh)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MADELENE YAHYA,
Plaintiff,

Civil Action No. 13-12054

v.

District Judge Laurie J. Michelson

COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
________________________________/
OPINION AND ORDER GRANTING IN PART
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [8] AND
DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [10]
Madelene Yahya was working as a public bus driver when she slipped on ice in the parking
lot and injured her knee. Unable to return to work, she was awarded workers’ compensation and
filed an application for disability insurance benefits. While her application was pending, Yahya’s
impairments were compounded by an automobile accident. The Commissioner of Social Security
denied her application, leading to this appeal. Yahya and the Commissioner have now filed
cross-motions for summary judgment (Dkts. 8, 10). For the reasons set forth below, the Court finds
that the Social Security Administration’s Administrative Law Judge erred by failing to obtain a
medical expert opinion on medical equivalence. The Court therefore GRANTS IN PART Yahya’s
Motion for Summary Judgment (Dkt. 8), DENIES the Commissioner’s Motion for Summary
Judgment (Dkt. 10), and, pursuant to 42 U.S.C. § 405(g), REMANDS for the Commissioner to
obtain a medical expert opinion on medical equivalence.

1

I. BACKGROUND
A. Procedural History
On June 8, 2009, Yahya protectively filed for disability insurance benefits asserting that
she became unable to work on January 25, 2008, at the age of 47. (See Tr. 66, 115.) 1 The
Commissioner initially denied her disability application on October 8, 2009. (Tr. 66.) Yahya then
requested an administrative hearing, and on June 22, 2011, she appeared with counsel before
Administrative Law Judge James F. Prothro, who considered her case de novo. (Tr. 34–65.) In an
August 10, 2011 decision, ALJ Prothro found that Yahya was not disabled within the meaning of
the Social Security Act. (See Tr. 20–30.) The ALJ’s decision became the final decision of the
Commissioner on March 8, 2013, when the Social Security Administration’s Appeals Council
denied Yahya’s request for review. (Tr. 1.) Yahya filed this suit on May 9, 2013. (Dkt. 1, Compl.)
B. Testimony at the Administrative Hearing
At the administrative hearing before ALJ Prothro, Yahya testified that she was employed
as a public bus driver in January 2008 when she slipped on ice in the parking lot at work and
injured her knee. (Tr. 42, 46–48.) As a result of the knee injury, as well as arthritis in her hip and
spine, Yahya said she was unable to return to work. (Tr. 48.) She also testified that she was in an
automobile accident in September 2010. (Tr. 46.)
Yahya said her sleep was disrupted by pain every night, and most of the time her
medications did not help. (Tr. 48, 51–52.) She said her doctor told her she needed hip replacement
but that she should wait until she was closer to 60. (Tr. 51.) Yahya said she was taking Vicodin and
Motrin, and received shots at a pain clinic. (Tr. 50, 52.) She said she took Motrin two to three times
a day and Vicodin at least once or twice a week. (Tr. 59.) She was given exercises to do at home for
1

The transcript of administrative proceedings filed by the Commissioner (Dkt. 6) is cited as “Tr.”
2

her neck and knee. (Tr. 57–58.) And she was referred to a rheumatologist, but could not afford it
because she did not have insurance at the time. (Tr. 56.)
In addition, Yahya testified that she had depression and anxiety, which caused panic, rapid
heartbeat, and memory and sleep problems. (Tr. 49, 53.)
Yahya testified that she lived with three of her six children, ages 15, 13, and 11. (Tr. 39.)
She also provided childcare for family members in 2010, before her automobile accident. (Tr. 44;
see Tr. 444.) Yahya said her kids helped her with “just about everything,” including cooking and
grocery shopping. (Tr. 53.) She said she was able to make her bed and do a few dishes. (Tr. 53–54.)
Before February 2011, she was paying her mother to help her with chores. (Tr. 54.)
Yahya said she napped for 30 minutes to an hour several times a day. (Tr. 54.) She said she
spends a lot of time in bed because she cannot sit up for a long period of time due to pain in her hip,
spine, and lower back. (Tr. 55.) She testified that she drove her children to their extracurricular
activities, but she waited outside in the car for them because going in to watch involved “[t]oo
much walking.” (Tr. 55.)
Yahya was 51 years old at the time of the hearing, and said she had one year of college
education. (Tr. 39.)
After Yahya testified, the ALJ questioned a vocational expert (“VE”) about job availability
for a hypothetical individual of Yahya’s age, education, and work experience who was limited to
light exertional work (lifting up to 20 pounds occasionally and 10 pounds frequently, and standing
or walking up to four hours and sitting up to six hours in an eight-hour period); could “do simple
repetitive work or unskilled work and with no work with the general public”; could not climb
ladders, ropes, or scaffolds; could occasionally climb ramps and stairs; and could occasionally
stoop, kneel, crouch, and crawl. (Tr. 60.) The VE testified that such an individual could not
3

perform Yahya’s past relevant work, but could “do various types of assembly positions,” “machine
operation and tending positions,” and “visual inspection and sorting positions.” (Tr. 60.) The VE
said “in the regional economy currently” there were about 18,000, 7,000, and 5,000 such positions,
respectively. (Tr. 60–61.) The VE testified such an individual could also perform jobs at the
sedentary exertional level: about 15,000 “other assembly positions,” about 3,500 “other machine
tending positions,” and about 3,500 “other inspection and sorting positions.” (Tr. 61.)
The ALJ also asked the VE about job availability for a hypothetical individual of Yahya’s
age, education, and work experience with the same limitations as above, but who also “must avoid
overhead reaching and any work overhead due to a problem with the cervical spine.” (Tr. 61.) The
VE testified that there would be no difference in the available jobs because overhead work and
overhead reaching was “not a primary, secondary, or even tertiary function of any of these jobs.”
(Id.)
During questioning by Yahya’s attorney, the VE testified that no more than one absence
per month is typically tolerated in the jobs he identified. (Tr. 62.) He also said “[g]enerally
speaking,” it would be work-preclusive “[i]f a person needed to be recumbent or napping and this
occurred daily and it occurred to a point where it was beyond the typically allowed breaks and
lunch periods.” (Tr. 62.) And he agreed it would be work-preclusive “if someone’s concentration
was deficient let’s say 20 percent of the time to a point where one day a week they were
non-productive because they were off task.” (Tr. 62–63.)
C. Medical Records
1. Knee Injury
Yahya sought emergency treatment for pain in her left knee on January 25, 2008, after she
tripped, slipped on ice, and landed on her knee, according to the emergency room report. (See Tr.
4

312.) Examination revealed no swelling, bruising, or deformity, and no motor or sensory deficits.
(Id.) X-rays were negative for fracture, dislocation, or other bone or joint abnormality. (Id.) Yahya
was discharged with crutches and a knee brace and “a work excuse for nonweightbearing until
cleared by her primary care doctor.” (Id.)
Yahya’s primary care doctor was Scott A. Johnson, D.O. (See Tr. 222.) The record
contains notes of Dr. Johnson’s examinations of Yahya on seventeen occasions between
November 2007 and January 2011. (See Tr. 234–309, 390–432.) Two of those concerned Yahya’s
knee pain. On February 21, 2008, Yahya followed up with Dr. Johnson at the direction of the
emergency room doctors who treated her left knee injury in January. (See Tr. 240.) Dr. Johnson’s
notes indicated that Yahya “[a]lready has seen orthopedist and mri done and pt reports that it
revealed a medial collateral ligament [“MCL”] strain,” (Tr. 241) but there are no corroborating
records from the orthopedist. On examination, Dr. Johnson found “some effusion and medial joint
line pain.” (Tr. 241.) He prescribed Vicodin and recommended that she follow up with workers’
compensation. (Tr. 241–242.) He wrote a “To Whom It May Concern” letter stating that “Yahya
may not work until re-evaluated by orthopedic specialist because of persistent knee pain and
swelling.” (Tr. 393.)
A week later, on February 27, orthopedist Peter C. Theut, M.D., saw Yahya for a follow-up
regarding her knee. (Tr. 327.) His examination notes were copied to Workers’ Compensation. (Id.)
He reported: “On exam, it is difficult to examine her knee. She is apparently in a great deal of
discomfort. Objectively, the only real finding that I can see is that with some gentle valgus stress I
believe she has some discomfort over the proximal aspect of the MCL.” (Id.) He also noted “some
tenderness at the quads” and “some weakness with extension,” but “no real swelling” and “no
motor or sensory deficit.” (Id.) He reviewed her MRI and said it showed “a low grade MCL
5

sprain” with “some thickening of both the quadriceps insertion and the origin of the patellar
tendon, consistent with some chronic tendinosis.” (Id.) Dr. Theut said he was “a bit at a loss here as
to why she is struggling so much.” (Id.) He suggested “some more aggressive therapy to optimize
her motion, get her weightbearing and get her strength back.” (Id.) He thought she “should be able
to work in a part-time sedentary capacity” though she “claims that this is impossible due to the
pain.” (Id.) Dr. Theut concluded:
Ultimately, we settled on keeping her off work until Monday, after which time we
will keep her on part time sedentary duty for two weeks. After which time, she
really has to go back to work. There is no real structural problem here that is going
to be amenable to surgery and that should give her ample time to heal the sprain
which is evident on the MRI.
(Id.)
On March 3, Yahya returned to Dr. Johnson and told him the pain was not getting any
better and she would like to be referred to a specialist. (See Tr. 245.) Dr. Johnson’s examination
revealed “some swelling and pain along medial joint collateral ligament.” (Tr. 246.) He gave
Yahya another “To Whom It May Concern” letter stating that she “should only work part time / 4
hours for next 2 weeks” because “[s]he continues to have significant left knee pain and swelling.”
(Tr. 390.)
Yahya saw orthopedist Erik C. Hedlund, D.O., on March 14 “for a second opinion
regarding her left knee pain.” (Tr. 326.) He reviewed her MRI and diagnosed an MCL sprain,
grade 1; mild quadriceps tendinosis; and mild chondrosis of the patellofemoral compartment. (Id.)
He noted that she was “quite apprehensive and guarded during the exam,” and her range of
movement was limited by pain, but there was no swelling. (Id.) Dr. Hedlund wrote that Yahya was
“quite concerned about returning to work, as she continues to have significant limitations and
pain.” (Id.) He thought anti-inflammatories “should have a significant impact on her inflammatory
6

pain,” and suggested a knee brace, but did “not feel a corticosteroid injection [wa]s indicated.”
(Id.) He recommended “one more week off of work so she can focus on her therapy,” but
“otherwise, [felt] it would be appropriate to send her back to work and get her back to her daily
routine.” (Id.) When Yahya returned two weeks later on March 25, Dr. Hedlund again noted that
she was “quite apprehensive, even with light touch,” but he found no swelling, good stability, and
intact neurovascular exam. (Tr. 325.) He wrote that they had a “lengthy discussion,” during which
she was again apprehensive about returning to work and was convinced that there was swelling
although he found none. (Id.) He said, “I cannot explain why she is in so much pain and cannot see
a reason why she cannot return to work.” (Id.) He recommended another week off work so that she
could focus on therapy and suggested that her employer could obtain a functional capacity
evaluation. (Id.) Dr. Hedlund concluded: “[o]therwise, I do not see an objective reason why she
cannot return and will not give her any further work releases.” (Id.)
On April 4, 2008, Yahya saw a physician assistant in Dr. Johnson’s office, who wrote that
Yahya
[n]eeds referral to help with knee pain, apparently her work is saying she is unable
to do her work and and [orthopedic] docs are clearing her to work, she is asking for
physiatrist referral. Her left knee continues to hurt laterally and superiorly and
swell, she states it tends to give out and she needs a cane to walk. She has had MRI
done by ortho, I have not seen a report. Has done PT and they have her on hold
because she has not improved and appears to have received all the benefit they
thin[k] she will get from PT.
(Tr. 250.) Examination of the knee revealed “tenderness to palpitation at patella, patellar tendon,
lateral joint line and LCL, pain with extension and flexion,” with range of movement “limited for
flexion she does walk with a limp, using a cane.” (Tr. 251.) The PA recommended that she
“[c]ontinue ice and ROM exercises.” (Id.)

7

Dr. Johnson’s office referred Yahya to Benjamin J. Bruinsma, M.D., a rehabilitation and
physical medicine specialist. (See Tr. 227.) She saw him eight times between April 2008 and
March 2009. (See Tr. 218–29.) At his initial examination on April 29, Dr. Bruinsma noted that
Yahya “ambulated with an antalgic gait, favoring her left lower extremity,” had “no obvious
swelling,” and her “[r]ange of motion was functional with discomfort medial and lateral at end
ranges.” (Tr. 228.) He prescribed Relafin, which yielded significant improvement as noted a
month later on May 30 (Tr. 226), but Yahya had to discontinue it because she did not have
insurance (see Tr. 225). Dr. Bruinsma regularly noted that Yahya walked with a limp favoring her
left leg, had discomfort with palpation, and positive patellar grind test, but that she had little or no
swelling and her range of motion was functional. (See Tr. 217, 218, 219, 223, 225, 226, 228.) Dr.
Bruinsma gave Yahya prescription-strength Motrin and home exercises, but felt injections were
“not needed” and noted that “[s]he has seen two surgeons who did not recommend surgery.” (See
Tr. 222.) In October 2008, after he ordered bloodwork and found she had “an elevated sed rate at
43 and a positive ANA with the anti-RNP being positive,”2 Dr. Bruinsma referred Yahya to a
rheumatologist. (Tr. 221, 222.) It is not clear whether Yahya ever saw a rheumatologist; Dr.
Bruinsma’s records indicate there may have been issues with insurance approval. (See Tr. 218–
19.)
In December 2008, Yahya complained to Dr. Johnson of right hip pain that had worsened
since her left knee injury. (Tr. 266.) Dr. Johnson found slightly decreased range of motion on
2

Error! Main Document Only.An erythrocyte sedimentation rate, commonly called a “sed rate,”
is a test that indirectly measures how much inflammation is in the body. See U.S. Nat’l Lib. of
Med., MedlinePlus, http://www.nlm.nih.gov/medlineplus/ency/article/003638.htm (last updated
June 1, 2011). An ANA or antinuclear antibody panel is a blood test for signs of an autoimmune
disorder.
See
U.S.
Nat’l
Lib.
of
Med.,
MedlinePlus,
http://www.nlm.nih.gov/medlineplus/ency/article/003535.htm (last updated Feb. 11, 2013).
8

examination. (Id.) X-rays showed mild osteoarthritic changes and a bone lesion. (Tr. 269.) At two
appointments in January 2009, Yahya reported that her hip pain had significantly improved. (See
Tr. 272, 278.) Dr. Johnson ordered a bone scan and referred Yahya to physical therapy. (Tr. 275.)
The pain was worse at an appointment in February, at which Yahya appeared in a wheelchair and
was “very emotional.” (Tr. 284.) A straight-leg test was positive on the right. (Id.) Dr. Johnson
increased Yahya’s Vicodin prescription and ordered an MRI, which showed “some hypertrophic
changes.” (Tr. 285, 289.) Yahya reported feeling 70 percent better at her next appointment. (Tr.
289.)
Yahya was awarded workers’ compensation in May 2009 for her knee injury. (Tr. 114.)
The administrative record does not contain the findings underlying the award.
2. Automobile Accident
On September 25, 2010, Yahya’s car was hit head-on by another car while she was stopped
at a stop light. (Tr. 444.) She reported to Dr. Bruinsma on October 13, 2010, that x-rays taken at the
emergency room were normal. (Id.) The emergency room records are not part of the administrative
record, but Dr. Bruinsma later indicated that he received the results of her x-rays and they showed
mild degenerative changes in the cervical spine and moderate osteoarthritis in the left shoulder,
with no acute changes. (Tr. 442.) At the October appointment, Yahya was still experiencing
discomfort on the left side of her neck radiating to the back, occasional numbness and tingling in
the left arm, and headaches. (Id.) Dr. Bruinsma found limited range of motion, discomfort with
palpation, and decreased sensation on examination. (See Tr. 445.) He diagnosed cervical whiplash
with resultant myofascial pain and facet-mediated pain, and recommended she continue the
Naprosyn and Flexeril she was given at the emergency room. (Id.) He also referred her for physical
therapy. (Id.)
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At examinations in November and December, Yahya had not improved despite physical
therapy. (Tr. 441, 442.) Dr. Bruinsma ordered an MRI, which showed a herniated disc with
compromise of a nerve root and facet changes. (Tr. 439.) Dr. Bruinsma noted that there were no
neurologic findings and he did not feel surgery was needed. (Tr. 440.) Yahya declined an epidural.
(Id.)
In January 2011, Dr. Bruinsma ordered an epidural injection due to continued complaints.
(Tr. 438.) He felt she needed to continue being off work, which consisted of childcare for children
ages 2, 5, 7, and 11, but he felt she did not need chore replacement services. (Id.) Yahya reported
the next month that vacuuming aggravated her discomfort. (Tr. 437.) Her status in February was
mostly unchanged, with good and bad days. (Id.) Dr. Bruinsma recommended she continue with
Motrin and home exercise, and sent her back to physical therapy. (Id.) She refused injections. (Id.)
During examinations with Dr. Bruinsma in March, April, and May 2011, Yahya continued
to have neck discomfort and decreased sensation in her left hand and forearm, but her range of
motion improved slightly. (Tr. 433–36.) Yahya continued to be off work, and continued treating
her symptoms with Motrin and home exercise. (Id.)
An electrodiagnostic test in April 2011 was normal, with no evidence of a left cervical
radiculopathy, ulnar neuropathy, or carpal tunnel syndrome. (Tr. 435.)
3. Anxiety
Yahya experienced heart palpitations in April 2009, which improved after Dr. Johnson
prescribed blood pressure medication. (Tr. 293, 300.) But in June 2009 she was back, reporting
panic attacks and anxiety. (Tr. 306.) Dr. Johnson prescribed Zoloft and Ativan. (Tr. 307.) This is
the only evidence of mental health treatment in the administrative record.

10

4. Reviewing Consultant Evaluations
In August 2009, William Schirado, Ph.D., reviewed Yahya’s records and completed a
“Psychiatric Review Technique” form for Michigan’s Disability Determination Services (“DDS”).
(Tr. 329–42.) DDS is a state agency that helps the Social Security Administration evaluate
disability claimants. Dr. Schirado indicated that Yahya had an anxiety-related disorder. (Tr. 329.)
He indicated she was moderately limited in social functioning and concentration, persistence, or
pace, and mildly limited with respect to activities of daily living. (Tr. 339.)
Dr. Schirado also completed a “Mental Residual Functional Capacity Assessment” for
Yahya in August 2009. (Tr. 343–45.) He indicated that she had no limitations in the area of
understanding and memory; a few moderate limitations in the areas of sustained concentration and
persistence, social interaction, and adaptation; and one marked limitation, in ability to interact
appropriately with the general public. (See Tr. 343–44.) He wrote that Yahya was limited to
unskilled work and no work with the public because of these issues. (Tr. 245.)
DDS consultant Dinesh Tanna, M.D., reviewed Yahya’s records and completed two
“Physical Residual Functional Capacity Assessments” for Yahya on October 7 and 8, 2009. (Tr.
347–62.) The two forms are mostly identical, but Dr. Tanna indicated on October 7 that Yahya
could stand or walk at least 6 hours in an 8-hour workday (Tr. 348), and on October 8 that she
could stand or walk at least 2 hours in an 8-hour workday (Tr. 356). He indicated on both forms
that she could occasionally lift or carry up to 20 pounds and frequently lift or carry up to 10
pounds; could sit at least 6 hours in an 8-hour workday; and could never climb ladders, ropes, or
scaffolds. (Tr. 348–49, 356–57.)

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5. Late-filed Evidence
The administrative record includes evidence submitted to the Appeals Council after the
ALJ’s August 10, 2011 opinion. (See Tr. 447, 452.) It appears that the ALJ had only Exhibits 1F
through 11F (Tr. 216–445). (See Tr. 36–37.) Yahya has not argued that a remand is required on the
basis of evidence the ALJ did not consider, so it will not be considered here. See Davenport v.
Comm’r of Soc. Sec., No. 10-13842, 2012 WL 414821, at *1 n. 1 (Jan. 19, 2012) (“In this circuit,
where the Appeals Council considers additional evidence but denies a request to review the ALJ’s
decision . . . those ‘AC’ exhibits submitted to the Appeals Council are not part of the record for
purposes of judicial review.” (citing Cotton v. Sullivan, 2 F.3d 692, 696 (6th Cir. 1993); Cline v.
Comm’r of Soc. Sec., 96 F.3d 146, 148 (6th Cir.1996))), report and recommendation adopted by
2012 WL 401015 (E.D. Mich. Feb. 8, 2012).
II. THE ALJ’S APPLICATION OF THE DISABILITY FRAMEWORK
Under the Social Security Act, disability insurance benefits and supplemental security
income “are available only for those who have a ‘disability.’” See Colvin v. Barnhart, 475 F.3d
727, 730 (6th Cir. 2007). The Act defines “disability,” in relevant part, as the
inability to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.
42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505 (DIB); 20 C.F.R. § 416.905 (SSI).
The Social Security regulations provide that disability is to be determined through the
application of a five-step sequential analysis:
1. If claimant is doing substantial gainful activity, he is not disabled.
2. If claimant is not doing substantial gainful activity, his
impairment must be severe before he can be found to be disabled.
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3. If claimant is not doing substantial gainful activity and is
suffering from a severe impairment that has lasted or is expected to
last for a continuous period of at least twelve months, and his
impairment meets or equals a listed impairment, claimant is
presumed disabled without further inquiry.
4. If claimant’s impairment does not prevent him from doing his
past relevant work, he is not disabled.
5. Even if claimant’s impairment does prevent him from doing his
past relevant work, if other work exists in the national economy that
accommodates his residual functional capacity and vocational
factors (age, education, skills, etc.), he is not disabled.
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997); see also 20 C.F.R.
§§ 404.1520, 416.920. “The burden of proof is on the claimant throughout 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 [Commissioner].” Preslar v. Sec’y of Health and Human Servs., 14 F.3d 1107,
1110 (6th Cir. 1994).
ALJ Prothro first found that Yahya was insured through September 30, 2014. (Tr. 22.) The
ALJ then turned to the five-step sequential evaluation of Yahya’s allegation of disability. At step
one, ALJ Prothro found that Plaintiff had not engaged in substantial gainful activity since the
alleged disability onset date of January 25, 2008. (Id.) At step two, he found that Plaintiff had the
following severe impairments: “since January 25, 2008, status-post left knee ligament sprain with
tendinosis; since September 25, 2010, degenerative disc disease of the cervical spine, status-post
whiplash injury secondary to motor vehicle accident; obesity; and an anxiety disorder.” (Id.) Next,
the ALJ concluded that Yahya did not have an impairment or combination of impairments that met
or medically equaled a listed impairment. (Tr. 22–23.) Between steps three and four, the ALJ
determined that Plaintiff had the residual functional capacity

13

to perform light work as defined in 20 CFR 404.1567(b)3 except
standing and/or walking four hours, and sitting up to six hours, each
per eight-hour work day, with normal breaks; no climbing of ropes,
ladders or scaffolds, and no more than occasional climbing of ramps
or stairs, balancing, stooping, kneeling, crouching, or crawling;
performing only simple, unskilled work with no contact with the
general public.
(Tr. 23–24.) At step four, the ALJ found based on vocational expert testimony that Plaintiff was
unable to perform her past relevant work as a bus driver, but that considering her age, education,
work experience, and residual functional capacity, there were jobs in significant numbers in the
national economy that she could perform. (Tr. 28–29.) The ALJ therefore concluded that Plaintiff
was not disabled as defined by the Social Security Act from the alleged onset date through the date
of his decision. (Tr. 29.)
III. STANDARD OF REVIEW
This Court has jurisdiction to review the Commissioner’s final administrative decision
pursuant to 42 U.S.C. § 405(g). Judicial review under this statute is limited: the Court “must affirm
the Commissioner’s conclusions absent a determination that the Commissioner has failed to apply
the correct legal standard or has made findings of fact unsupported by substantial evidence in the

3

Error! Main Document Only.The RFC category of light work is defined as follows: “Light
work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects
weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category
when it requires a good deal of walking or standing, or when it involves sitting most of the time
with some pushing and pulling of arm or leg controls. To be considered capable of performing a
full or wide range of light work, you must have the ability to do substantially all of these
activities.” 20 C.F.R. §§ 404.1567(b), 416.967(b). Social Security Ruling 83-10 further defines “a
good deal of walking or standing” as “standing or walking, off and on, for a total of approximately
6 hours of an 8-hour workday.” SSR 83-10, Error! Main Document Only.1983 WL 31251, at *5.
The ruling also adds: “The lifting requirement for the majority of light jobs can be accomplished
with occasional, rather than frequent, stooping. Many unskilled light jobs are performed primarily
in one location, with the ability to stand being more critical than the ability to walk. They require
use of arms and hands to grasp and to hold and turn objects, and they generally do not require use
of the fingers for fine activities to the extent required in much sedentary work.” Id.
14

record.” Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005) (internal quotation
marks omitted).
Substantial evidence is “more than a scintilla of evidence but less than a preponderance; it
is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (internal quotation marks
omitted). If the Commissioner’s decision is supported by substantial evidence, “it must be
affirmed even if the reviewing court would decide the matter differently and even if substantial
evidence also supports the opposite conclusion.” Cutlip v. Sec’y of Health & Human Servs., 25
F.3d 284, 286 (6th Cir. 1994) (internal citations omitted); see also Mullen v. Bowen, 800 F.2d 535,
545 (6th Cir. 1986) (en banc) (noting that the substantial evidence standard “presupposes . . . a
zone of choice within which the decisionmakers can go either way, without interference by the
courts” (internal quotation marks omitted)).
When reviewing the Commissioner’s factual findings for substantial evidence, the Court is
limited to an examination of the record and must consider that record as a whole. Bass v.
McMahon, 499 F.3d 506, 512–13 (6th Cir. 2007); Wyatt v. Sec’y of Health & Human Servs., 974
F.2d 680, 683 (6th Cir. 1992). The Court “may look to any evidence in the record, regardless of
whether it has been cited by the Appeals Council.” Heston v. Comm’r of Soc. Sec., 245 F.3d 528,
535 (6th Cir. 2001). There is no requirement, however, that either the ALJ or this Court discuss
every piece of evidence in the administrative record. Kornecky v. Comm’r of Soc. Sec., 167 F.
App’x 496, 508 (6th Cir. 2006). Further, this Court does “not try the case de novo, resolve conflicts
in evidence, or decide questions of credibility.” Bass, 499 F.3d at 509; Rogers, 486 F.3d at 247.

15

IV. ANALYSIS
A. Plaintiff’s Credibility
Plaintiff’s motion recounts her hearing testimony about her symptoms and activities and
argues that the residual functional capacity formulated by the ALJ “does not adequately address
her physical limitations.” (Pl.’s Mot. at 9–10.) The Commissioner responds that because “Plaintiff
essentially argues that she testified to work-preclusive limitations, the ALJ did not adopt those
limitations, and thus the ALJ erred,” without “substantively identify[ing] any errors in the ALJ’s
decision,” the argument is so insufficiently developed that any errors should be deemed waived.
(Def.’s Mot. at 12–15.)
The Court agrees that Yahya’s argument is insufficiently developed. Plaintiff merely
disagrees with the outcome of the ALJ’s credibility determination without identifying any errors in
how the ALJ made the determination. Moreover, an ALJ’s credibility determination is due “great
weight and deference particularly since the ALJ has the opportunity, which [a court does] not, of
observing a witness’s demeanor while testifying.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 476
(6th Cir. 2003); see also Daniels v. Comm’r of Soc. Sec., 152 F. App’x 485, 488 (6th Cir. 2005)
(“Claimants challenging the ALJ’s credibility findings face an uphill battle.”).
Here, the ALJ reasoned, after a detailed review of the medical evidence, that “the above
residual functional capacity assessment is supported by the medical evidence of record that
documents the minimal severity of the actual impairments along with the claimant’s widely
variable presentation and unsupported allegations.” (Tr. 28.) The ALJ also noted that Yahya “has
repeatedly chosen to take her own course rather than follow medical recommendations.” (Id.) The
ALJ provided the requisite “specific reasons for the finding on credibility, supported by the
evidence in the case record,” that are “sufficiently specific to make clear to the individual and to
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any subsequent reviewers the weight the adjudicator gave to the individual’s statements and the
reasons for that weight.” SSR 96-7p, 1996 WL 374186 at *2 (July 2, 1996). Accordingly, the
Court will not second-guess the ALJ’s credibility determination.
B. Expert Opinion Evidence
Plaintiff’s motion mentions that “the RFC assessment must ‘always consider and address
medical source opinions,’” citing and quoting the relevant regulation and Social Security Ruling.
(Pl.’s Mot. at 9.) The Commissioner argues that “Plaintiff’s citation to boilerplate law regarding
the treating source rule, unaccompanied by any allegation that the ALJ erred in assessing any
treating source opinion (see Pl. Br. 8-9), is plainly inadequate.” The Court agrees that Plaintiff has
not adequately identified a violation of the treating-source rule. But there is an obvious omission
with regard to opinion evidence in the record: there is no medical expert opinion in the record on
whether Plaintiff’s physical impairments (alone or combined with her mental impairments)
medically equal a listed impairment.
Social Security Ruling 96-6p requires that the “judgment of a physician (or psychologist)
designated by the Commissioner on the issue of equivalence on the evidence before the
administrative law judge or the Appeals Council must be received into the record as expert opinion
evidence and given appropriate weight.”1 SSR 96-6p, 1996 WL 374180 at *3 (1996); see also 20
C.F.R. § 416.926(c) (“We also consider the opinion given by one or more medical or
psychological consultants designated by the Commissioner.”); Retka v. Comm’r of Soc. Sec., 70
F.3d 1272 (6th Cir. 1995) (“Generally, the opinion of a medical expert is required before a
determination of medical equivalence is made.”); Barnett v. Barnhart, 381 F.3d 664, 667, 670 (7th
1

Social Security Rulings are “binding on all components of the Social Security Administration.”
20 C.F.R. § 402.35(b)(1); Heckler v. Edwards, 465 US 870, 873 n.3 (1984).
17

Cir. 2004) (“Whether a claimant’s impairment equals a listing is a medical judgment, and an ALJ
must consider an expert’s opinion on the issue.”); Fowler v. Comm’r of Soc. Sec., No. 12-12637,
2013 WL 5372883, at *4 (E.D. Mich. Sep. 25, 2013) (remanding because there was no expert
medical opinion on the issue of equivalence, collecting cases); Manson v. Comm’r of Soc. Sec.,
No. 12-11473, 2013 WL 3456960, at *11 (E.D. Mich. July 9, 2013) (remanding for an expert
opinion at step three).
A “Disability Determination and Transmittal” form signed by a medical or psychological
consultant, a “Psychiatric Review Technique” form, or “various other documents on which
medical and psychological consultants may record their findings,” can fulfill this requirement to
“ensure that this opinion has been obtained at the first two levels of administrative review.” See
SSR 96-6p, 1996 WL 374180, at *3. Here, there is a Disability Determination and Transmittal
form in the record. (Tr. 66.) But for the “Physician or Medical Specialist Signature,” it refers to a
Mental RFC form completed on August 17, 2009, by William Schirado, Ph.D. (Id.; see Tr. 343–
46.) Dr. Schirado is a psychologist. (See Tr. 66; Program Operations Manual System § DI
26510.090(D), available at http://policy.ssa.gov/poms.nsf/lnx/0426510090 (last updated Aug. 29,
2012).) The form he completed addressed only mental functions such as memory and
concentration. (See Tr. 343–44.) And Dr. Schirado specifically indicated he was not opining on
Yahya’s physical impairments by noting in the narrative assessment that Yahya’s activities of
daily living “report limitations that are more associated with and focused on physical
impairments.” (Tr. 345.) Likewise, the associated Psychiatric Review Technique form identifies
only listings for mental impairments, and indicates that Dr. Schirado considered only Listing
12.06, for anxiety-related disorders. (Tr. 329–42.) Indeed, Dr. Schirado checked a box to indicate
“Coexisting Nonmental Impairment(s) that Requires Referral to Another Medical Specialty.” (Tr.
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329.)
Dr. Schirado’s opinion cannot support a conclusion that Plaintiff’s physical impairments
were not equivalent to any listing. See Buxton v. Halter, 246 F.3d 762, 775 (6th Cir. 2001) (finding
that a psychologist was not qualified to diagnose a claimant’s underlying physical conditions); cf.
Byerley v. Colvin, No. 12-CV-91, 2013 WL 2145596, at *11 (N.D. Ind. May 14, 2013) (“Because
the psychologist who prepared the form did not consider physical impairments, it cannot be relied
on as expert opinion that Plaintiff’s combination of physical and mental impairments do not equal
a Listing.”); Watson v. Massanari, No. 00-3621, 2001 WL 1160036, at *14 (E.D. Pa. Sept. 6,
2001) (remanding “so that the ALJ can enlist the services of a medical expert capable of making an
equivalency finding as to Plaintiff’s impairments in combination,” where the expert opinions on
equivalence in the record expressly addressed only the claimant’s physical impairments).
Nor—in this case—do the Physical Residual Functional Capacity Assessments completed
by Dr. Tanna suffice as an expert opinion on equivalence. (See Tr. 347–362.) First, the
Assessments do not mention any listing or otherwise indicate that Dr. Tanna considered the issue
of equivalence. See Barnett, 381 F.3d at 667, 671) (summarizing medical evidence including a
residual functional capacity assessment by “Dr. A. Dobson” and subsequently concluding that Dr.
Dobson had not “opined on the issue” of equivalence). Second, the Assessments are dated October
7 and 8, 2009—before Yahya’s automobile accident in September 2010. Medical records after
Yahhya’s accident indicate that she had a herniated disc with compromised nerve root,
accompanied by pain and loss of sensation, but Dr. Tanna could not have considered those injuries.
(See Tr. 433–44.) His opinion therefore cannot constitute substantial evidence in the record as a
whole so as to support the ALJ’s finding on equivalence. Third, it is very troubling that Dr.
Tanna’s October 7 RFC says she could stand or walk at least six hours in an eight-hour workday
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(Tr. 348), while the October 8 RFC says she could stand or walk at least two hours in an eight-hour
workday (Tr. 356), without any change in the medical evidence cited. This unexplained
discrepancy substantially undermines his opinion.
Finally, this is not a case where the Court feels comfortable analyzing equivalence in the
first instance. Indeed, it may be that this Court should never do so. Barnett, 381 F.3d at 670
(“Whether a claimant’s impairment equals a listing is a medical judgment, and an ALJ must
consider an expert’s opinion on the issue.”); Stratton v. Astrue, No. 11-CV-256-PB, 2012 WL
1852084, at *12 (D.N.H. May 11, 2012) (“‘The basic principle behind SSR 96-6p is that while an
ALJ is capable of reviewing records to determine whether a claimant’s ailments meet the Listings,
expert assistance is crucial to an ALJ’s determination of whether a claimant’s ailments are
equivalent to the Listings.’” (quoting Galloway v. Astrue, No. H-07-01646, 2008 WL 8053508, at
*5 (S.D.Tex. May 23, 2008))); Freeman v. Astrue, No. 10-0328, 2012 WL 384838, at *5 (E.D.
Wash. Feb. 6, 2012) (“Neither the ALJ nor this court possesses the requisite medical expertise to
determine if Plaintiff’s impairments (including pain) in combination equal one of the
Commissioner’s Listings.”). Even if, in some cases, the administrative record permits a lay-person
to conclude that the record does not demonstrate equivalence, this is not such a case.
The administrative record, summarized in detail above, indicates that Yahya has
significant physical impairments that could plausibly equal a listing. For example, one way to meet
the listing for disorders of the spine is by “[e]vidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with
associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if
there is involvement of the lower back, positive straight-leg raising test (sitting and supine).” 20
C.F.R. Part 404, Subpart P, Appendix 1, at § 1.04(A). Yahya’s medical records include evidence
20

of a compromised nerve root (Tr. 439), decreased sensation in her left-hand fingers (Tr. 433–45),
and at least one positive straight-leg test (Tr. 284). The Court has concerns that Yahya could also
meet the requirements for motor loss and limitation of motion of the spine, but that is for a medical
expert to determine. The Court will therefore remand this case for a medical opinion on the issue of
equivalence.
The Court notes further that the overall lack of medical expert opinion evidence on
Yahya’s functional limitations is troubling. As discussed, Dr. Tanna’s RFCs contain a significant
and unexplained discrepancy, and do not address the neck injury she received in September 2010.
And there are no other opinions in the regard addressing Yahya’s functional limitations. The ALJ
himself noted that “other than occasional and distant notes about short-periods of excuse from
work, often contrary to the doctor’s own beliefs, no one has opined any function-by-function
limitations for the claimant.” (Tr. 28.) It is not the Court’s responsibility to “scour the record” for
errors not raised by Plaintiff’s counsel, Martinez v. Comm'r of Soc. Sec., No. 09-13700, 2011 U.S.
Dist. LEXIS 34436 at *7 (E.D. Mich. Mar. 2, 2011) (collecting cases), adopted by 2011 U.S. Dist.
LEXIS 34421 (E.D. Mich. Mar. 30, 2011), but ultimately the ALJ’s opinion must be supported by
substantial evidence. Because there is a reversible error at step three, the Court does not address
whether the rest of the decision is supported. Nonetheless, the Commissioner should ensure that
the decision on remand is supported by substantial evidence in the record as a whole.
C. Vocational Expert Testimony
Plaintiff also challenges the vocational expert’s testimony, arguing that “[t]he enumerated
light jobs and the enumerated sedentary jobs . . . seem to be the same job, just different titles.
Making a determination based of the availability of these jobs is erroneous.” (Pl.’s Mot. at 9.) But
Plaintiff did not object to the vocational expert’s testimony at the hearing, and “nothing in
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applicable Social Security regulations requires the administrative law judge to conduct his or her
own investigation into the testimony of a vocational expert to determine its accuracy, especially
when the claimant fails to bring any conflict to the attention of the administrative law judge.”
Ledford v. Astrue, 311 F. App’x 746, 757 (6th Cir. 2008).
Moreover, Plaintiff does not assert that the VE’s testimony was inconsistent with the
Dictionary of Occupational Titles (“DOT”). DOT job classifications often include multiple
exertional categories, because the same job may be performed in different ways. See DOT (4th Ed.,
Rev. 1991), App. D, available at http://www.oalj.dol.gov/public/dot/references/dotappd.htm
(“Occupational definitions in the DOT are written to reflect the most typical characteristics of a job
as it occurs in the American economy. Task element statements in the definitions may not always
coincide with the way work is performed in particular establishments or localities.”)
The VE testified that his testimony was consistent with the DOT, as required by Social
Security Ruling 00-4p, 2000 WL 1898704 (Dec. 4, 2000). (Tr. 62.) And although the job
classifications in the DOT include multiple exertional categories, the VE’s testimony was
specifically tailored to the exertional requirements of each hypothetical question. (See Tr. 60–61.)
Cf. Ledford, 311 F. App’x at 757 (“[A]lthough the vocational expert testified that the Dictionary of
Occupational Titles classifies dishwashing jobs at both the light- and medium-exertion levels, the
administrative law judge requested that the expert limit the number of available jobs in that
occupational listing to those that would not be affected by the 30–pound limitation on the weight
that Ledford could lift.”). Plaintiff’s argument that the ALJ erred by relying on this testimony is
incorrect.

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V. CONCLUSION
For the reasons set forth above, the Court finds that the ALJ erred by failing to obtain a
medical expert opinion on medical equivalence. The Court therefore GRANTS IN PART Yahya’s
Motion for Summary Judgment (Dkt. 8), DENIES the Commissioner’s Motion for Summary
Judgment (Dkt. 10), and, pursuant to 42 U.S.C. § 405(g), REMANDS for the Commissioner to
obtain a medical expert opinion on medical equivalence.

Date: May 5, 2014

s/Laurie J. Michelson
Laurie J. Michelson
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing document was served on the attorneys
and/or parties of record by electronic means or U.S. Mail on May 5, 2014.
s/Jane Johnson
Deputy Clerk

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