Wilson v. Social Security, Commissioner of

Filing 25

ORDER (1) Sustaining Plaintiff's 23 Objection to Report and Recommendation; (2) Granting Plaintiff's 19 MOTION for Summary Judgment; (3) Denying Defendant's 20 MOTION for Summary Judgment; and (4) Remanding Case for Further Proceedings. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ARLENE WILSON,
Plaintiff,

Case No. 14-cv-12677
Hon. Matthew F. Leitman

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_________________________________/
ORDER (1) SUSTAINING PLAINTIFF’S OBJECTION TO REPORT AND
RECOMMENDATION (ECF #23); (2) GRANTING PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT (ECF #19); (3) DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT (ECF #20); AND (4)
REMANDING CASE FOR FURTHER PROCEEDINGS
In this action, Plaintiff Arlene Wilson (“Wilson”) alleges that the Social
Security Administration wrongly denied her application for Social Security
Disability and Disability Insurance Benefits. After the parties filed cross-motions
for summary judgment, the assigned Magistrate Judge issued a Report and
Recommendation (the “R&R”) in which he recommended that the Court (1) grant
summary judgment in favor of Defendant Commissioner of Social Security (the
“Commissioner”), and (2) deny Wilson’s motion for summary judgment. (See
ECF #22.) Wilson filed a timely objection to the R&R (the “Objection”). (See
ECF #23.) The Court has conducted a de novo review of the portions of the R&R

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to which Wilson has objected. For the reasons stated below, the Court SUSTAINS
the Objection (ECF #23), GRANTS Wilson’s motion for summary judgment (ECF
#19), DENIES the Commissioner’s motion for summary judgment (ECF #20), and
REMANDS the matter to the Commissioner for further proceedings consistent
with this Order.
RELEVANT FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In 1988, Wilson was involved in a car accident in which she fractured her
coccyx and suffered multiple pelvic fractures. (See Admin. R. at 230, ECF #6-7 at
75, Pg. ID 260.) Wilson alleges that she has experienced lower back pain since the
accident. (See id.) On October 1, 2002, Wilson left her job as a life insurance
sales agent due to her back pain. (See Admin. R. at 28, ECF #6-2 at 29, Pg. ID
53.) Wilson has not worked since that date. (See id.)
On March 8, 2012, Wilson filed an application for a period of disability and
Social Security disability insurance benefits. (See Admin. R. at 14, ECF #6-2 at
15, Pg. ID 39.) Wilson also filed an application for supplemental security income
on March 13, 2012. (See id.) In both applications, Wilson alleged that she has
been disabled since October 1, 2002, due to the pain that resulted from her 1988
car accident. (See id.)
The Social Security Administration initially denied Wilson’s claim on June
1, 2012. (See id.) On June 26, 2012, Wilson then filed a written request for a
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hearing before an Administrative Law Judge. (See id.) Wilson’s hearing was held
on February 11, 2013, before Administrative Law Judge Andrew G. Sloss (the
“ALJ”). (See Admin. R. at 24, ECF #6-2 at 25, Pg. ID 49.) At the hearing, Wilson
testified that she has suffered from prolonged back pain that has impaired her
ability to sit, stand, and walk. (See id. at 29-33, ECF #6-2 at 30-34, Pg. ID 54-58.)
When Wilson was asked whether she could sit for long periods of time, she
responded that she could not and that she had to elevate her feet above waist level
or lie down to prevent her legs from falling asleep when sitting. (See id. at 32-33,
ECF #6-2 at 33-34, Pg. ID 57-58.)
The ALJ also considered medical evidence from two physicians, Dr. Harold
Nims and Dr. B.D. Choi. (See Admin. R. at 18-19, ECF #6-2 at 19-20, Pg. ID 4344.)

Dr. Nims offered his assessment after examining Wilson.

concluded that Wilson’s
chronic lower back and pelvic pain limits the function of
her lower extremities. Her ability to walk and even sit is
compromised by her problems with her coccyx primarily.
She was able to perform her self-care skills and to
accomplish light chores, though she does have to take her
time. . . . She does seem capable of non-strenuous
activities, which require a minimum of walking and
standing. She also must continually change positions
when sitting due to her pain from her coccyx. The
claimant’s ability to perform work-related activities such
as bending, stooping, lifting, walking, crawling,
squatting, carrying and traveling as well as pushing and
pulling heavy objects is moderately impaired . . . .
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Dr. Nims

(Admin. R. at 234, ECF #6-7 at 79, Pg. ID 264; emphasis added.)
Dr. Choi offered his opinion after reviewing Wilson’s medical records. (See
Admin. R. at 46-54, ECF #6-3 at 9-17, Pg. ID 72-80.) In contrast to Dr. Nims, Dr.
Choi opined that Wilson could both sit and stand (with normal breaks) for a total of
about six hours in an eight-hour work day. (See Admin. R. at 51, ECF #6-3 at 14,
Pg. ID 77.)
In addition, the ALJ heard testimony from a vocational expert (the “VE”)
during the February 11, 2013 hearing. The ALJ asked the VE the following
hypothetical question:
Q:

I would like to ask you a hypothetical question. I’d
like you to assume a person of the claimant’s age
and education and past work, who is able to
perform light work, except that she can only
occasionally climb, balance, stoop, crouch, kneel
or crawl. Could such a person perform the
claimant’s past work?

A:

Yes.

(Admin. R. at 36, ECF #6-2 at 37, Pg. ID 61.)
On March 25, 2013, the ALJ issued a written decision in which he
determined that Wilson was not disabled and was therefore not entitled to benefits
(the “ALJ’s Decision”). (See Admin. R. at 20, ECF #6-2 at 21, Pg. ID 45.) The

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ALJ followed a five-step analysis1 and made the following findings: (1) Wilson has
not engaged in substantial gainful employment since her alleged disability onset
date (October 1, 2002) (see id. at 16, ECF #6-2 at 17, Pg. ID 41); (2) Wilson did
suffer from a severe impairment – degenerative disc disease (see id.); (3) Wilson’s
impairment did not presumptively entitle her to disability benefits under the Act
(see id. at 17, ECF #6-2 at 18, Pg. ID 42); (4) Wilson had the residual functional
capacity (“RFC”)2 to “perform light work as defined in [20 C.F.R. §§ 404.1567(b),
416.967(b)] except occasional climbing, balancing, stooping, crouching, kneeling
or crawling” (id.); and (5) Wilson was capable of performing past relevant work as
a life insurance sales agent (see id. at 20, ECF #6-2 at 21, Pg. ID 45). The ALJ
explained that in reaching his conclusion, he assigned “great weight” to the
opinions of both Dr. Nims and Dr. Choi. (See id. at 19, ECF #6-2 at 20, Pg. ID
44.)
On July 9, 2014, Wilson filed her Complaint in this Court challenging the
ALJ’s Decision. (See ECF #1.) The parties later filed cross-motions for summary
judgment. (See Pl.’s Mot. Summ. J., ECF #19; Def.’s Mot. Summ. J., ECF #20.)

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The Social Security Act’s five-step analysis is codified in two Federal
Regulations at 20 C.F.R. §§ 404.1520, 416.920 and is provided in the R&R (see
ECF #22 at 9-10, Pg. ID 450-51).
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A claimant’s RFC is the “most [a claimant] can still do despite [her] limitations.”
Combs v. Comm’r of Soc. Sec., 459 F.3d 650, 643 (6th Cir. 2006) (quoting 20
C.F.R. § 404.1545(a)(1)).
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The Magistrate Judge then issued the R&R in which he recommended that the
Court grant the Commissioner’s motion for summary judgment and deny Wilson’s
motion for summary judgment. (See ECF #22.)
On May 13, 2016, Wilson filed her Objection to the R&R. (See ECF #23.)
Wilson has made only a single objection to the R&R. She argues that while the
ALJ purported to assign “great weight” to Dr. Nims’ opinion, the ALJ’s RFC
determination and the ALJ’s hypothetical question to the VE did not accurately
reflect limitations and restrictions identified by Dr. Nims.

More specifically,

Wilson complains that even though Dr. Nims opined that she could do only
“minim[al]” standing, the ALJ’s RFC found that she was capable of performing
“light work” – which, by definition, typically includes “a good deal of walking and
standing” under 20 C.F.R. §§ 404.1567(b). Likewise, Wilson complains that even
though Dr. Nims opined that Wilson must continually change positions while
sitting, “there was no mention of any limitation as to sitting in the RFC or the
hypothetical question posed to the [Vocational Expert at the hearing before the
ALJ].” (Objection at 4, ECF #23 at 4, Pg. ID 459.)
Wilson asks the Court to remand this matter to the ALJ to reevaluate
Wilson’s RFC and to reformulate the hypothetical question to the VE. (See id. at
6, ECF #23 at 6, Pg. ID 461.)

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GOVERNING LEGAL STANDARD
When a party has objected to portions of a Magistrate Judge’s R&R, the
Court reviews those portions de novo. See Fed. R. Civ. P. 72(b)(3); Lyons v.
Comm’r Soc. Sec., 351 F. Supp. 2d 659, 661 (E.D. Mich. 2004). The Court has no
duty to conduct an independent review of the portions of the R&R to which the
parties did not object. See Thomas v. Arn, 474 U.S. 140, 149 (1985).
In reviewing the disputed findings of the ALJ, the Court is limited to
determining whether those findings are supported by substantial evidence and
made pursuant to proper legal standards. See 42 U.S.C. § 405(g) (“The findings of
the Commissioner of Social Security as to any fact, if supported by substantial
evidence, shall be conclusive . . . .”) 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) (quoting Cutlip v. Sec’y of
Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)). “It is of course for the
ALJ, and not the reviewing court, to evaluate the credibility of witnesses, including
that of the claimant.” Rogers, 486 F.3d at 247. “[A] court is obligated to remand
for further administrative proceedings if there are any unresolved essential factual
issues.” Meehleder v. Comm’r of Soc. Sec., 2012 WL 3154968, at *2 (E.D. Mich.
Aug. 2, 2012) (citing Newkirk v. Shalala, 25 F.3d 316, 318 (6th Cir. 1994)).
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ANALYSIS
The Court agrees with Wilson that a remand is appropriate so that the ALJ
may either (1) modify the RFC and hypothetical question so that they accurately
reflect the limitations on sitting and standing identified by Dr. Nims, or (2) explain
why he chose not to include Dr. Nims’ sitting and standing limitations in the RFC
and hypothetical question despite assigning “great weight” to Dr. Nims’ opinion.
The RFC and the hypothetical question to the VE serve related but distinct
functions:
[The] RFC is to be an “assessment of [the claimant’s]
remaining capacity for work” once her limitations have
been taken into account. 20 C.F.R. § 416.945. It is an
assessment of what [the claimant] can and cannot do, not
what she does and does not suffer from. The hypothetical
question posed to a VE for purposes of determining
whether [the claimant] can perform other work, on the
other hand, should be a more complete assessment of [the
claimant’s] physical and mental state and should include
an accurate[ ] portray[al] [of her] individual physical and
mental impairment[s]. Thus, while the RFC should focus
on [the claimant’s] abilities or, in other words, what [the
claimant] can and cannot do, the hypothetical question
should focus on [the claimant’s] overall state including
[the claimant’s] mental and physical maladies.
Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 239 (6th Cir. 2002) (citations and
quotations omitted). Importantly, both the RFC and the hypothetical question to
the VE must accurately describe the claimant’s abilities and limitations.

See

Howard, 276 F.3d at 240; Varley v. Sec’y of Health & Human Servs., 820 F.2d
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777, 779 (6th Cir.1987) (hypothetical question must accurately portray claimant's
physical and mental impairments).
The Court cannot conclude that the RFC and the ALJ’s hypothetical
question to the VE accurately reflected Wilson’s limitations and abilities. As noted
above, Dr. Nims identified substantial limitations on Wilson’s ability to stand, and
he opined that Wilson would have to change positions continually when sitting.
And despite the fact that the ALJ assigned “great weight” to Dr. Nims’ opinion, the
RFC and hypothetical question reflected neither of these limitations.
It is certainly possible, as the Commissioner argues, that the ALJ assigned
more weight to the opinion of Dr. Choi than to the opinion of Dr. Nims and that the
ALJ framed the RFC and hypothetical question based on Dr. Choi’s opinion. But
the ALJ’s Decision does not make that clear, nor does it offer any reasoned
analysis as to why the ALJ adopted Dr. Choi’s opinion over the conflicting opinion
of Dr. Nims. And when there is a conflict in the record, “the adjudicator must []
explain how any material inconsistencies or ambiguities in the evidence in the case
record were considered and resolved.” SSR 96-8P, 1996 WL 374184, at *7.
On this record, the Court concludes that the ALJ’s Decision is not supported
by substantial evidence and that a remand to the ALJ is necessary. On remand, the
ALJ shall either (1) reformulate the RFC and hypothetical question so that they
reflect and/or account for the limitations on sitting and standing identified by Dr.
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Nims, or (2) explain why he chose not to include those limitations in the RFC and
hypothetical question even though he assigned “great weight” to Dr. Nims’
opinion.
CONCLUSION
For the reasons stated above, IT IS HEREBY ORDERED that:
 Wilson’s Objection (ECF #23) is SUSTAINED;
 Wilson’s motion for summary judgment (ECF #19) is GRANTED; and
 The Commissioner’s motion for summary judgment (ECF #20) is DENIED.
IT IS FURTHER ORDERED that this matter is remanded to the
Commissioner for further proceedings consistent with this Order.

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: June 28, 2016
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on June 28, 2016, by electronic means and/or ordinary
mail.
s/Holly A. Monda
Case Manager
[phone]

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