Kenneth v. Social Security

Filing 18

OPINION and ORDER Regarding Magistrate Judge's 15 REPORT AND RECOMMENDATION. Signed by District Judge Gerald E. Rosen. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KENNETH MICHAEL CRAGG,
Plaintiff,
Case No. 14-11379
Hon. Gerald E. Rosen
Magistrate Judge Anthony P. Patti

v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
_______________________________/

OPINION AND ORDER REGARDING
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
At a session of said Court, held in
the U.S. Courthouse, Detroit, Michigan
on
August 19, 2015
PRESENT: Honorable Gerald E. Rosen
Chief Judge, United States District Court
On June 30, 2015, Magistrate Judge Anthony P. Patti issued a Report and
Recommendation (“R & R”) recommending that the Court deny Plaintiff Kenneth
Michael Cragg’s motion for summary judgment and grant the Defendant Commissioner
of Social Security’s motion for summary judgment. Plaintiff filed objections to the R &
R on July 14, 2015, and Defendant filed a response to these objections on July 20, 2015.
The Court has now reviewed the parties’ motions, the R & R, Plaintiff’s objections,
Defendant’s response, and the other materials in the record. For the reasons discussed
briefly below, the Court sustains one of Plaintiff’s objections, and concludes that this

matter must be remanded to the Defendant Commissioner for further proceedings.
As his first objection to the R & R, Plaintiff contends that the Administrative Law
Judge (“ALJ”) failed to identify appropriate grounds for discounting Plaintiff’s testimony
at the administrative hearing regarding the symptoms and limitations arising from his
shoulder problems and carpal tunnel syndrome. In particular, Plaintiff argues that the
ALJ’s credibility assessment impermissibly rested upon (i) a mischaracterization of
Plaintiff’s testimony regarding his daily activities, (ii) a failure to consider the side effects
of the medications taken by Plaintiff and his reasons for discontinuing these medications,
and (iii) a failure to properly consider the objective evidence in the record that was
supportive of Plaintiff’s testimony. In the R & R, however, the Magistrate Judge
thoroughly addressed each of these challenges to the ALJ’s assessment of Plaintiff’s
credibility, explaining that the ALJ appropriately looked to Plaintiff’s testimony
regarding his daily activities in assessing his credibility, but emphasizing that the ALJ did
not rely on this testimony alone to make this assessment. (See R & R at 17-20.) Rather,
the ALJ also reviewed and discussed the medical record at length, finding that this
evidence did not support the full extent of the limitations claimed in Plaintiff’s testimony.
(See id. at 18-19 (citing Admin. Record at 76-79).) As for the ALJ’s purported failure to
consider the side effects of Plaintiff’s use of medications, (see Plaintiff’s Objections at 3),
Plaintiff’s principal complaint in his testimony before the ALJ was that these medications
did not help to alleviate his pain, (see Admin. Record at 101, 103), and the ALJ merely
(and correctly) pointed to evidence in the medical record indicating that Plaintiff had
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obtained some relief in the past through the use of pain medications, (see id. at 78).
While this modest record as to Plaintiff’s mixed experiences with pain medication
perhaps does not significantly undermine Plaintiff’s credibility, neither does it call into
question the ALJ’s assessment of his credibility, particularly where the ALJ did not place
any special emphasis on Plaintiff’s past versus present use of pain medication in making
this assessment.
Next, Plaintiff argues that the ALJ’s determination of his residual functional
capacity (“RFC”) did not properly incorporate the testimony and other evidence
concerning Plaintiff’s insomnia due to shoulder pain and hand numbness, and his
resulting need to nap during the day. In particular, while the ALJ noted Plaintiff’s
testimony that he had trouble sleeping, (see id. at 76), and also posed a hypothetical
question to the vocational expert reflecting an individual who suffered from “frequent
bouts of insomnia” and thus needed “frequent unscheduled rest breaks” and the ability to
“nap at will” during the work day, (id. at 122),1 the ALJ ultimately made an RFC finding
that omitted any such need for rest breaks or naps, (see id. at 75). In Plaintiff’s view, the
ALJ failed to identify any basis for disregarding the evidence of his insomnia, thus raising
the question whether the ALJ rejected Plaintiff’s testimony as to his difficulty sleeping or
simply “forgot about this testimony” in formulating Plaintiff’s RFC. (See Plaintiff’s

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The vocational expert opined that there would be no jobs that an individual with these
and the other limitations included in the ALJ’s hypothetical question would be capable of
performing. (See id.)
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Motion for Summary Judgment, Br. in Support at 15.)
The Court agrees that the ALJ failed to provide an adequate explanation — or,
indeed, any explanation at all — for discounting Plaintiff’s testimony regarding his
insomnia and resulting need to nap during the day. As the Sixth Circuit has explained,
the pertinent Social Security ruling dictates that “the ALJ [must] explain his credibility
determinations in his decision,” in a manner that is “‘sufficiently specific to make clear to
the individual and to any subsequent reviewers the weight the adjudicator gave to the
individual’s statements and the reasons for that weight.’” Rogers v. Commissioner of
Social Security, 486 F.3d 234, 248 (6th Cir. 2007) (quoting Social Security Ruling 96-7p,
1996 WL 374186, at *4 (July 2, 1996)). Although Defendant suggests that the ALJ’s
bare mention of Plaintiff’s testimony regarding his difficulties in sleeping “reflects that
the ALJ considered this testimony, but did not find that it equated with disability,”
(Defendant’s Motion for Summary Judgment, Br. in Support at 9), the law requires that
the ALJ must explain any such “find[ings]” that are meant to be reflected in an
administrative decision, so that a reviewing court may determine whether these findings
are supported by substantial evidence. Because the ALJ here did not do so with respect to
Plaintiff’s testimony that he suffers from insomnia and requires naps during the day, (see
Admin. Record at 106-08),2 the Court cannot ascertain the grounds upon which the ALJ
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Notably, in his objections to the Magistrate Judge’s R & R, Plaintiff seeks to bolster this
testimony by pointing to evidence that he sought treatment for his insomnia and was prescribed
medication for this condition. (See Plaintiff’s Objections at 4 (citing Admin. Record at 476-77,
479).) While it surely would have been helpful for Plaintiff to cite this evidence in his
underlying summary judgment motion in support of his challenge to the ALJ’s assessment of his
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might have elected to discount this testimony, and cannot determine whether these
unstated reasons enjoy the support of substantial evidence in the record.
There remains only the question of the proper remedy for the ALJ’s failure to fully
explain her assessment of Plaintiff’s credibility. The Sixth Circuit has instructed that this
Court may “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 of HHS, 17 F.3d 171, 176 (6th Cir. 1994). The question of the
proper weight to be given to each aspect of Plaintiff’s testimony has not yet been resolved
in accordance with the relevant legal standards, and the R & R amply illustrates that there
is evidence in the record that would permit a trier of fact to discount at least some aspects
of this testimony. Accordingly, a remand is necessary to allow the Defendant
Commissioner to address and resolve this outstanding and essential issue of fact.3
For these reasons,
NOW, THEREFORE, IT IS HEREBY ORDERED that Plaintiff’s first objection to
the Magistrate Judge’s June 30, 2015 Report and Recommendation is OVERRULED, but

credibility, he failed to do so, and the Court generally is precluded from considering new
arguments or issues that were not presented to the Magistrate Judge in the first instance. See
Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000); Fielder v. Commissioner of Social
Security, No. 13-10325, 2014 WL 1207865, at *1 (E.D. Mich. March 24, 2014).
3

In light of this determination that a remand is warranted, the Court need not address
Plaintiff’s objection to the Magistrate Judge’s determination that Plaintiff failed to meet the
requirements for a remand under sentence six of 42 U.S.C. 405(g) for consideration of
purportedly new and material evidence. Rather, the Defendant Commissioner may determine
upon remand whether it is appropriate to supplement the existing administrative record.
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that his second objection to the Report and Recommendation is SUSTAINED. IT IS
FURTHER ORDERED that the Magistrate Judge’s Report and Recommendation (docket
#15) is ADOPTED IN PART and REJECTED IN PART, in accordance with the rulings
in this opinion and order. Finally, IT IS FURTHER ORDERED that, for the reasons set
forth above and in the portion of the Magistrate Judge’s Report and Recommendation that
has been adopted by the Court, Plaintiff’s August 27, 2014 motion for summary judgment
(docket #10) is GRANTED IN PART, and Defendant’s September 29, 2014 motion for
summary judgment (docket #13) is DENIED.

s/Gerald E. Rosen
Chief Judge, United States District Court
Dated: August 19, 2015
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on August 19, 2015, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager, [phone]

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