Devault v. Commissioner of Social Security Administration

Filing 25

ORDER denying 15 Motion for Summary Judgment; denying 20 Motion for Summary Judgment; adopting in part 22 Report and Recommendation; REMANDED TO COMMISSIONER. Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PETE DEVAULT,
Plaintiff,

CASE NUMBER: 14-11986
HONORABLE VICTORIA A. ROBERTS

v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
/
ORDER
I.

BACKGROUND
A.

Procedural Background

Plaintiff Pete Devault (“Devault”) filed an application for Social Security
Supplemental Security Income (SSI) benefits alleging a variety of physical and
psychological impairments and associated symptoms, in particular, those arising out his
HIV. The Defendant Commissioner of Social Security (the “Commissioner”) denied
Devault’s application initially and again on reconsideration. The Administrative Law
Judge (“ALJ”) held a hearing and issued a Notice of Decision (the “Decision”) that
Devault is not disabled. Devault brought this action pursuant to 42 U.S.C. § 405(g) for
judicial review of that Decision.
The Court referred the parties' cross-motions for summary judgment to
Magistrate Judge Charles E. Binder, who issued a Report and Recommendation
(“R&R”) recommending that the Court grant Defendant's motion and deny Devault’s
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motion. Devault filed an Objection to the R&R, raising issues with both the R&R and the
Decision. The Commissioner’s Response expresses general support for the R&R and
the Decision, but does not otherwise respond to Devault’s objections.
Magistrate Judge Binder’s R&R thoroughly lays out the facts and remaining
procedure of this case; the Court adopts them for this Opinion.
Devault’s Objections (Doc. #23) are GRANTED in part and DENIED in part. The
Magistrate Judge’s Report and Recommendation (Doc. #22) is ADOPTED in part and
DENIED in part. Defendant’s Motion for Summary Judgment (Doc. #20) and Devault’s
Motion for Summary Judgment (Doc. #15) are DENIED. The Court REMANDS the
matter to the Commissioner for further proceedings as outlined below.
B.

Social Security Act Disability Benefits Framework

To be eligible for SSI disability insurance benefits, a claimant must be under a
“disability” as defined by the Social Security Act. 42 U.S.C. §§ 423(a), (d). A “disability”
includes physical and/or mental impairments that are both “medically determinable” and
severe enough to prevent a claimant from (1) performing his or her past job and (2)
engaging in “substantial gainful activity” that is available in the regional or national
economies. Id. § 423(d). “In Social Security cases, the Commissioner determines
whether a claimant is disabled withing the meaning of the Act and therefore entitled to
benefits.” Rogers v. Comm’r of Soc. Sec., 486, F.3d 234, 241 (6th Cir. 2007) (citing 42
U.S.C. § 405(h)). Administrative regulations require a five-step sequential evaluation for
disability determinations, summarized in the following inquiries:
1.
2.

Has the claimant engaged in substantial gainful activity?
Does the claimant suffer from one or more severe impairments?
2

3.

4.
5.

Do the claimant's severe impairments, alone or in combination, meet or equal
the criteria of an impairment set forth in the Commissioner's Listing of
Impairments (the Listings), 20 C.F.R. Subpart P, Appendix 1?
Considering the claimant's residual functional capacity (“RFC”), can he or she
perform his or her past relevant work?
Considering the claimant's age, education, past work experience, and RFC,
can he or she perform other work available in the national economy?

Smith-Marker v. Astrue, 839 F. Supp. 2d 974, 980-81 (S.D. Ohio 2012) (citing 20 C.F.R.
§ 404.1520(a)(4)). A claimant bears the ultimate burden to establish that he or she is
disabled under the Social Security Act's definition. Key v. Callahan, 109 F.3d 270, 274
(6th Cir.1997). The claimant bears the burden of proof during the first four steps, but the
burden shifts to the Commissioner at step five. Wilson v. Comm‘r of Soc. Sec., 378 F.3d
541, 548 (6th Cir.2004). If the claimant does not sustain his or her burden of proof at
any one of the first four steps, the inquiry ends; the claimant loses. See 20 C.F.R. §
416.920; Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007).
II.

STANDARD OF REVIEW

The standard of review for a magistrate judge’s R&R is distinct from the standard
of review for the Commissioner’s benefits decision.
When objections are made to a magistrate judge’s R&R, the district court reviews
the case de novo. Fed. R. Civ. P. 72(b). The district judge may accept, reject, or modify
the recommended decision, receive further evidence, or recommend the matter back to
the magistrate judge with instructions. For those aspects of the report for which no
timely objection is filed, the court need only satisfy itself that there is no clear error on
the face of the record in order to accept the recommendation.
The Court’s review of a Commissioner’s decision is to determine whether, in
consideration of the record as a whole, the ALJ’s decision is (1) supported by
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substantial evidence and (2) was made pursuant to proper legal standards. Social
Security Act § 205(g), 42 U.S.C. § 405(g) (2006 & Supp. 2011); Bowen v. Comm'r of
Soc. Sec., 478 F.3d 742, 745-46 (6th Cir. 2007). The findings of the Commissioner as to
any fact, if supported by substantial evidence, shall be conclusive. 42 U.S.C. § 405(g).
“Substantial evidence” supporting a denial of social security disability benefits is defined
as 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. 42
U.S.C. § 405(g). In deciding whether to affirm the Commissioner's decision, it is not
necessary that this court agree with the Commissioner's finding, as long as it is
substantially supported in the record. Her v. Comm'r of Soc. Sec., 203 F.3d 388,
389–90 (6th Cir.1999).
The second aspect of review - of the legal criteria - may result in reversal even if
the record contains substantial evidence supporting the ALJ’s factual findings. A
reversal may occur when the ALJ fails to follow the Commissioner’s “own regulations
and where that error prejudices a claimant on the merits or deprives the claimant of a
substantial right.” Bowen, 478 F.3d at 746 (citing Wilson, 378 F.3d at 546–47). “A
procedural right must generally be understood as “substantial” in the context of this
statement when the regulation is intended to confer a procedural protection on the party
invoking it.” Wilson, 378 F.3d at 547.
III.

DISCUSSION

Devault’s objections fall into three categories: (1) the ALJ improperly determined
the weight of evidence, in particular, the credibility of Devault’s physician, Dr. Wasif
Hafeez, and failed to articulate sufficient reasons for the ALJ’s rejection of the medical
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opinion; (2) Magistrate Judge Binder failed to properly evaluate the ALJ’s compliance
with the narrative and explanation requirements of Step Three of the disability
evaluation process codified in 20 CFR 416.920(a); and (3) the ALJ conducted an
inadequate residual functional capacity (RFC) analysis.
The Court evaluates Devault’s objections in light of the Decision, the R&R, and
the record as a whole. Applying the relevant standard of review, the Court remands
because the ALJ failed to follow certain regulations and requirements, depriving Devault
of substantial rights.
A.

Objection 1: Medical Opinion Evidence

Devault’s first objection relates to the ALJ’s treatment of the medical opinion
evidence in the record. The objection has two distinct aspects: (1) Devault insists the
ALJ had investigation obligations pursuant to Social Security Ruling 96-5p and (2)
Devault questions the reasoning and weight given to Dr. Hafeez’s medical opinion
evidence.
1.

Sub-Objection 1: Duty to Investigate

Devault asserts that the ALJ failed to conduct requisite additional investigation
into the basis of Dr. Hafeez’s medical opinion. The Court rejects this challenge.
Social Security Ruling 96-5p requires the ALJ to conduct additional research
under carefully circumscribed situations, namely:
if the evidence does not support a treating source’s opinion on any issue
reserved to the Commissioner and the adjudicator cannot ascertain the
basis of the opinion from the case record, [only then] the adjudicator must
make ‘every reasonable effort’ to recontact the source for clarification of
the reasons for the opinion.

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TITLES II AND XVI: MEDICAL SOURCE OPINIONS ON ISSUES RESERVED TO THE
COMMISSIONER, Social Security Ruling (SSR) 96–5, 1996 WL 374183, at *6 (July 2,
1996) (emphasis added). The ALJ must contact a physician only when the record is an
inadequate source of information; it is not a universal obligation ALJs have every time
they disagree with a treating source’s opinion.
Devault cites D’Angelo v. Comm’r. of Soc. Sec., 475 F. Supp. 2d 716 (2007), as
authority for an expansive reading of an ALJ’s further inquiry obligations. Brief at 2.
D’Angelo, however, is distinguishable. In D’Angelo, the court discussed investigative
requirements both for and against granting benefits in the context of two salient facts:
first, that plaintiff was unrepresented by counsel, which created a risk that all relevant
facts might not be brought to the ALJ; and second, the record included virtually no
medical records of that plaintiff’s treatment with a particular physician. D’Angelo, 475 F.
Supp. 2d at 722.
Where the record is robust, as it is here, and where plaintiff is represented by
counsel, as Devault is, an ALJ may rely on the circumscribed language of Social
Security Ruling 96-5p and recontact a treating physician only when the ALJ is confused
as to how a treating source came to his or her conclusion.
This record is complete: it indicates that the ALJ disagreed with Dr. Hafeez’s
recommendations, not that the ALJ was confused as to how Dr. Hafeez came to his
conclusion. Consequently, a remand ordering the Commissioner to obtain Devault’s
records would prove fruitless.
2.

Sub-Objection 2: Evaluation of Medical Expert Opinions

Devault asserts that the ALJ failed to comply with an obligation to assert valid
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reasons for rejecting a medical opinion. The Court agrees with this objection; the legal
analysis is insufficient and remand for further consideration is necessary.
The Social Security Administration must provide the weight it gives a treating
source’s opinion when making a disability determination. Wilson, 378 F.3d at 544 (citing
20 C.F.R. § 404.1527(d)(2) [now (c)(2)]). Moreover, Social Security regulations require
“the agency to ‘give good reasons’ for not giving weight to a treating physician’s opinion
in the context of a disability determination.” Id. In such circumstances, the ALJ must
also assess certain factors mandated by the regulations, namely: the length of the
treatment relationship and the frequency of examination, the nature and extent of the
treatment relationship, supportability of the opinion, consistency of the opinion with the
record as a whole, and the specialization of the treating source. Id.
The ALJ discussed some aspects that impacted the weight given to treating
source Dr. Hafeez’s opinion. In particular, the Decision addresses consistency of the
opinion with the record as a whole and the supportability of the opinion. The length of
the treatment relationship is also mentioned, Transcript of Social Security Proceedings
at 27, Devault v. Comm’r. of Soc. Sec. Admin., No. 14-11986 (E.D. Mich July 28, 2014),
but not in the section that discusses the weight given to Dr. Hafeez’s opinion. Id. at 3031. The ALJ did not provide a full analysis of the regulatory factors, namely: the
frequency of examination, the nature and extent of the treatment relationship, and Dr.
Hafeez’s specialization. These factors should have been explicitly discussed in
conjunction with the section that determined the weight given to Dr. Hafeez’s opinion.
In Wilson, the Sixth Circuit found an absence of good reasons when the ALJ did
not clarify whether the physician’s opinion was “well-supported by medically acceptable
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clinical and laboratory diagnostic techniques . . . and did not explain its application of the
factors listed in 20 C.F.R. § 404.1527(d)(2) to determine the weight given to [the
physician’s] opinion.” Wilson, 378 F.3d at 546. The Wilson panel held that a failure to
give “good reasons” did not constitute harmless error, even if “there is sufficient
evidence in the record for the ALJ to discount the treating source’s opinion.” Id.
Consequently, the Court remands for further evaluation of the weight given to Dr.
Hafeez’s medical opinions.
B.

Objection 2: Step Three of the Disability Evaluation

Devault’s second objection relates to the ALJ’s treatment of Step Three of the
sequential analysis. Devault makes sub-claims alleging: (1) an improper evaluation of
listing 14.00 and 14.08, and that the ALJ should have evaluated other conditions or
symptoms in conjunction with HIV analysis, and (2) the ALJ did not determine whether
Devault’s impairments equaled any of the appropriate listings.
1.

Sub-Objection 1: Evaluation of Chapter 14 Listings

Devault objects to the ALJ’s analysis regarding chapter 14 of the listings
pertaining to HIV, including 14.00 and 14.08. The Court finds the ALJ did not err.
Heading 14.00 sets forth standards of review, guidelines and definitions for a
variety of conditions, including HIV, which is addressed in 14.00F. No disability
determination could result from evaluation of this heading, because it only refers to
acceptable documentation for HIV infection and its manifestations. Regardless, Devault
does not explain the source of any deficiency in the 14.00 or 14.00F evaluation.
With respect to 14.08, Devault suggests that the ALJ should have evaluated his

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opportunistic infections: candidiasis, blood clots, severe weight loss, and anemia related
to the HIV. Devault does not tie those ailments to a 14.08A-J listing.
Only where the record raises a substantial question as to whether the claimant
could qualify under a listing should the ALJ discuss that listing. Sheeks v. Comm’r of
Soc. Sec. Admin., 544 F. App’x 639, 641 (citing Abbott v. Sullivan, 905 F.2d 918, 925
(6th Cir. 1990)). Where the plaintiff fails to describe how a listing’s elements are met
and fails to mention a particular listing, the Court will not conjecture about what
arguments that plaintiff might raise and how that plaintiff might be eligible to recover.
Instead, the Court will find that the open questions are not substantial questions that
justify remand. See Mortzfield v. Comm'r of Soc. Sec., No. 12-15270, 2014 WL
1304991, at *14 (E.D. Mich. Mar. 31, 2014) (citing McPherson v. Kelsey, 125 F.3d 989,
995-96 (6th Cir.1997) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived. It is not sufficient for a
party to mention a possible argument in a most skeletal way, leaving the court to ... put
flesh on its bones.”)).
Neither the Complaint, Devault’s Motion for Summary Judgment, nor Devault’s
Objection sufficiently articulates eligibility or specific analytical error under any of the
14.08A-J listings. Thus, there is no error with respect to 14.08A-J.
Finally, the court evaluates listing 14.08K. Devault generally alleges that the ALJ
erred in mentioning that Devault had manifestations of HIV but only discussed one
manifestation: diarrhea. The Court evaluates whether a failure to list any of the
conditions mentioned in the above 14.08A-J discussion would constitute an error for
listing 14.08K. 14.08K states:
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K. Repeated (as defined in 14.00I3) manifestations of HIV infection, including
those listed in 14.08A–J, but without the requisite findings for those listings
(for example, carcinoma of the cervix not meeting the criteria in 14.08E,
diarrhea not meeting the criteria in 14.08I), or other manifestations (for
example, oral hairy leukoplakia, myositis, pancreatitis, hepatitis, peripheral
neuropathy, glucose intolerance, muscle weakness, cognitive or other mental
limitation) resulting in significant, documented symptoms or signs (for
example, severe fatigue, fever, malaise, involuntary weight loss, pain, night
sweats, nausea, vomiting, headaches, or insomnia) and one of the following
at the marked level:
1. Limitation of activities of daily living.
2. Limitation in maintaining social functioning.
3. Limitation in completing tasks in a timely manner due to deficiencies in
concentration, persistence, or pace.
14.08K requires the ALJ to first identify some manifestation of HIV that results in
significant, documented symptoms or signs. Then, by virtue of 1-3 above, the ALJ is
required to assess the impact that the manifestation had on three aspects of claimant’s
life. Unlike 14.08A-J, which prescribe elements and exact severity requirements, the
second part of 14.08K calls upon the ALJ to conduct a more open-ended examination of
the impact of a claimant’s manifestations. Moreover, the text of the listing does not
mandate the ALJ evaluate each limitation individually, but rather speaks in plural terms:
“manifestations . . . resulting in significant, documented symptoms or signs” and one
limitation. Thus, failure to list all possible manifestations is not error so long as at least
one sufficiently severe manifestation was raised and the ALJ conducted a thorough
analysis of the claimant’s degree of limitation.
The ALJ carefully parsed 14.08K. She assumed the existence of manifestations
that met the “repeated” hurdle and assumed that the record made a sufficient case for a
finding of “significant, documented symptoms or signs,” and then evaluated each of the
three categories of limitation. Transcript at 22. After balancing the evidence in the
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record, the ALJ made a determination about the severity of each limitation category,
concluding that no limitation reached a marked level. Significantly, the ALJ made this
determination “considering the manifestations of HIV infection in combination with the
claimant’s mental impairments,” which indicates that the ALJ did not confine the scope
of analysis to only one manifestation. Although the ALJ could have listed all possible
manifestations under 14.08K, the Court finds that her failure to do so was harmless; the
ALJ reached the second step of the inquiry and conducted adequate review of
limitations as required by the statute.
Accordingly, the Court finds the discussion related to 14.08K was without error.
2.

Sub-Objection 2: “Equaled” Analysis Under Step Three

An ALJ must compare the medical evidence with the requirements for listed
impairments in considering whether the condition is equaled in severity to the medical
findings for any listed impairment. Reynolds v. Comm’r of Soc. Sec., 424 F. App’x 411,
415 (6th Cir. 2011). The statutes stipulate that medical equivalence can be found in
three ways: (1) the claimant has a listed impairment but does not exhibit the specified
severity or findings, yet has “other findings” that are “at least of equal medical
significance” to the criteria; (2) the claimant has a non-listed impairment that is “at least
of equal medical significance” to a listed impairment; or (3) the claimant has a
combination of impairments which do not individually meet a listed impairment, but are
“at least of equal medical significance” to a listing when viewed in totality. Reynolds, 424
F. App’x at 414 n.2 (citing 20 C.F.R. §§ 404.1526, 416.926).
Devault claims that the ALJ should have evaluated several impairments and
symptoms collectively to determine whether any listing was equaled. While the ALJ
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concluded none of the listings was equaled by Devault’s combined physical and mental
impairments, the Court cannot find support for that conclusion. The ALJ considered the
net impact of a variety of conditions in conducting an assessment of whether 14.08K
was met, but that analysis excluded consideration of a few conditions that Devault
raises on appeal. Thus, the Court must decide whether the analysis under
14.08K - which the Court considers a “catch-all” provision of sorts - is sufficient enough
to constitute adequate analysis as to whether any listing was “equaled.”
In Reynolds, the court held “the ALJ erred by failing to analyze [the claimant’s]
physical condition in relation to the listed impairments,” “despite his introduction
concluding that they did not.” Reynolds stands for the proposition that it is insufficient to
simply conclude that all listings are not equaled without a more tailored explanation.
14.08K serves as a catch-all way for the 14.08 listing governing HIV disability. It
requires repeated manifestations of HIV infection that do not meet the elements of
listings 14.08A-J to yield marked limitations on the claimant’s life.
Although the ALJ conducted a thorough review of listings 4.11, 5.06, 5.08, 7.02,
and 14.08A-K, the ALJ failed to recognize and discuss the impact of several combined
impairments. Because 14.08K is itself a listing, § 416.926 requires the ALJ to conduct
further inquiry beyond whether or not there are marked limitations in the three
categories. The distinction between a catchall under 14.08K and equivalency under §
416.926 is subtle, yet important. Proper analysis under § 416.926 requires after the ALJ
determine that there is not one marked limitation in a 14.08K category, the ALJ next
consider whether the cumulative effect of limitations (whether slight, minor, or
moderate), as well as all medically supported severe impairments, is enough to equal
12

any listing provided for in the Listing of Impairments, especially 14.08K.
The outcome of a thorough § 416.926 analysis under Step Three might well turn
out to be the same outcome reached with respect to the 14.08K factors, but in order for
the § 416.926 conclusion to be valid, the ALJ must expressly state all of Devault’s
impairments, the effect that each has, and discuss whether their net impact equals a
listing. The Sixth Circuit holds that an insufficient discussion or reasoning with regard to
the equivalency analysis is error and is not harmless. See Reynolds, 424 F. App’x at
416. Consequently, the Court remands for the ALJ to conduct further analysis with
respect to the equivalency component of Step Three.
C.

Objection 3: RFC Assessment

Devault’s third objection concerns the ALJ’s assessment of his RFC and
Magistrate Judge Binder’s endorsement of the ALJ’s findings. Devault’s objection
concerns two topics: (a) the narrative discussion requirements under the statute and
Social Security Ruling 96-8p; and (b) his disagreement with the RFC assessment and
ultimate RFC determination reached in Step Five.
1.

Sub-Objection 1: Sufficiency of RFC Analysis and
Narrative Discussion

Devault says RFC assessment narrative discussion requirements were not
adequately followed. The Court disagrees.
If a claimant’s impairments do not meet or equal a listed impairment, the
Commission will make a determination about a claimant’s RFC - the most the claimant
can still do despite limitations - based on all the relevant medical and other evidence in
the case record. 20 C.F.R. § 416.920; 20 C.F.R. § 416.945. In evaluating work
13

capabilities, SSR 96-8p required the ALJ to consider Devault’s physical abilities and
limitations, his mental abilities and limitations, and his other abilities and impairments.
The RFC assessment must describe how the evidence supports each conclusion [in
these categories], citing specific medical facts and nonmedical evidence, and explain
how any material inconsistencies or ambiguities in the evidence were considered and
resolved. SSR 96-8p at *34478.
Devault asserts that certain impairments and symptoms were established but
neglected by the ALJ during the RFC analysis. These are: left thigh vein thickening with
partial compressibility, colitis, asthma, HIV+, anemia, adjustment disorder, major
depressive disorder, psychosis, post traumatic stress disorder, cannabis abuse, leg
swelling, deep vein thrombosis, and pain.
Each of these allegations is unsubstantiated. In fact, the ALJ spends nearly 9
pages of analysis assessing Devault’s RFC, a full 4 pages of which is dedicated to a
factual recitation of the key medical findings and determinations. At numerous points
during the RFC assessment, the ALJ mentions each of the impairments Devault claims
are “never discussed” in the Decision.
The ALJ conducted a thorough analysis that weighed medical and lay opinions,
in search of a longitudinal trend over time. The Decision also scrutinizes credibility by
comparing statements from multiple sources. Far from cherry picking, as Devault
suggests, the ALJ cites evidence that both supports the finding of a disability and a
finding that Devault is not disabled. Moreover, the record contains a robust
consideration of each category of work ability (physical, mental, and other). See
Transcript at 31-33.
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There was no error with regard to SSR 96-8p and the narrative discussion
requirements.
2.

Sub-Objection 2: Use of RFC in Finding Available Work
Under Step Five

At Step Five, the ALJ determines whether there is other work [besides past
relevant work] the individual can do. SSR 96-8p at *34476. Devault’s objects that “When
one considers the serious physical and emotional problems of Plaintiff’s, work does not
exist in significant numbers that he can perform.” Objection at 8. This objection does not
quarrel with the number of jobs available in the economy; rather, it reiterates an
objection to the ALJ’s determination that Devault has an ability to do unskilled work
notwithstanding moderation limitations in concentration. This objection has no merit.
The individual must be able to perform substantially all of the exertional and
nonexertional functions required in work at that level. SSR 96-8p at *34476. The ALJ’s
decision specifically discusses Devault’s moderate deficits in concentration and
moderate social deficits. The ALJ uses the presence of these deficits to constrain
Devault’s work-related abilities to “unskilled work, which involves simple tasks,” to
recommend that Devault “should have only occasional contact with the public, coworkers and supervisors,” and to “preclude [Devault] from production rate pace stress
and tandem tasks at work.” Transcript at 32.
With respect to Devault’s third objection, the Court finds no error that undermines
the ALJ’s decision.
IV.

CONCLUSION

Based on the foregoing, the Court DENIES both motions for summary judgment
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and REMANDS the matter to the Commissioner to conduct further proceedings
consistent with this decision. In particular, the Commissioner should (i) re-address the
reasons for the weight given to medical opinions, including Dr. Hafeez’s; and (ii)
consider whether the total combination of Devault’s impairments satisfies equivalency
requirements under Step Three.
IT IS ORDERED.

S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: September 21, 2015
The undersigned certifies that a copy of this
document was served on the attorneys of record
by electronic means or U.S. Mail on September
21, 2015.
s/Linda Vertriest
Deputy Clerk

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