Carter v. Social Security, Commissioner of

Filing 25

OPINION and ORDER GRANTING DEFENDANT'S 20 MOTION to Remand AND DENYING PLAINTIFF'S 19 MOTION for Summary Judgment - Signed by Magistrate Judge R. Steven Whalen. (CCie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TAMAR CARTER,
Plaintiff,

Civil Action No. 16-11105

v.

Magistrate Judge R. Steven Whalen

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
OPINION AND ORDER
Plaintiff Tamar Carter (“Plaintiff”) brings this action under 42 U.S.C. §405(g),
challenging a final decision of Defendant Commissioner denying her application for
Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under the
Social Security Act. For the reasons discussed below, Defendant’s Motion for Remand
[Docket #20] is GRANTED, remanding the case to the administrative level for further
administrative proceedings. Plaintiff’s Motion for Summary Judgment [Docket #19] is
DENIED.
PROCEDURAL HISTORY
On July 19, 2013, Plaintiff applied for DIB and SSI, alleging disability as of January
1, 2013 (Tr. 148-149, 150-155). After the initial denial of her claim, Plaintiff requested an
administrative hearing, held on November 25, 2014 in Livonia, Michigan (Tr. 19, 35).
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Administrative Law Judge (“ALJ”) Mary Connolly presided. Plaintiff, represented by
attorney Lindsey Fish, testified (Tr. 38-57), as did Vocational Expert (“VE”) Han Tabsic (Tr.
57-59). On January 27, 2015, ALJ Connolly found Plaintiff not disabled (Tr. 19-29). On
February 1, 2016, the Appeals Council denied review (Tr. 1-3). Plaintiff filed the present
action on March 28, 2016.
BACKGROUND FACTS
Plaintiff, born August 8, 1969, was 45 at the time of the administrative decision (Tr.
29, 148). She attended special education classes during high school before completing 12th
grade (Tr. 211). Her application for benefits states that she worked previously as a clothes
sorter at a thrift store, home care giver, housekeeper (hotel), production worker, and as a
temporary worker (Tr. 211). She alleges disability as a result of schizophrenia, Carpal
Tunnel Syndrome (“CTS”), and arthritis (Tr. 210).
A.

Plaintiff’s Testimony

Plaintiff offered the following testimony:
She lived in Taylor, Michigan with her sister (Tr. 38, 44). From 2001 to 2003, she
worked for a packaging company in the receiving department inspecting parts (Tr. 38-39).
The work was performed in the standing position and required “very light” lifting (Tr. 39).
She had not worked since 2011 due to her physical and mental problems (Tr. 39). She was
unable to sit or stand for long periods due to arthritis of the knees, CTS, and tendinitis (Tr.
40). She also had back and left shoulder problems (Tr. 40). She had not undergone surgery
for those conditions (Tr. 40). She received weekly mental health treatment and a monthly
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psychiatric review since a seven-day hospitalization in May, 2014 (Tr. 41-42). She currently
took Prozac and Seroquel (Tr. 43). Her psychological improvement since beginning
treatment had been slowed by the death of her mother (Tr. 43). She “heard voices” but did
not know whether they were her “inner thoughts” or audio hallucinations (Tr. 44).
Due to arthritis, Plaintiff required a left knee replacement (Tr. 44). She experienced
the left knee symptoms of pain, numbness, swelling, tingling, and multiple falls (Tr. 44). She
experienced a lesser degree of right knee pain (Tr. 45). Despite nighttime knee pain, she was
able to sleep well due to the use of Seroquel (Tr. 45). She also experienced shortness of
breath and pain upon climbing stairs or walking long distances (Tr. 45). She was unable to
walk for more than one block or sit or stand for even 30 minutes (Tr. 46-47). She
experienced left shoulder pain since tearing the rotator cuff in 2011 (Tr. 47). She also
underwent a heart catherterization (Tr. 48). She drank beer or wine and smoked marijuana
on a regular basis (Tr. 50-51). She had been advised that her psychotropic medication would
work better if she stopped smoking marijuana (Tr. 51). She was ordered to stop drinking
during a 1999-2000 incarceration (Tr. 51). In 2013, she was jailed for 20 hours on suspicion
of assaulting her step-daughter but was never charged (Tr. 52). Her driver’s license was
suspended in 2003 after she failed to pay traffic tickets (Tr. 52).
Plaintiff used a brace on her right hand for CTS (diagnosed in 2003) but experienced
the condition in both hands (Tr. 54). She dropped items on a regular basis due to tingling and
numbness (Tr. 55). She experienced difficulty sweeping but was able to wash dishes (Tr.
56). She also experienced leg and ankle swelling and maintaining focus (Tr. 55). She
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avoided communicating with others in retail situations (Tr. 56). She had “bad days” three
or four days a week at which time she did not want to get out of bed (Tr. 56). She did not
“get along well with others” (Tr. 57).
B. Medical Evidence
1. Records Related to Plaintiff’s Treatment1
A May, 2011 MRI showed a torn left meniscus with osteoarthritis changes (Tr. 281,
306). An MRI of the lumbar spine showed forminal narrowing at L5-S1 with “very minimal”
effect on the exiting nerve roots (Tr. 282, 305). February, 2012 nerve conduction studies
showed severe bilateral CTS and left-sided mild ulnar sensory neuropathy (Tr. 309, 381).
The same month, treating notes by Priti Bhardwaj , M.D. state that Plaintiff took Vicodin for
shoulder pain (Tr. 318). The following month, an MRI of the left shoulder showed moderate
tendinosis of the rotator cuff (Tr. 310, 382).

In April, 2012, Ramsey Hammoud

recommended steroid injections for the rotatory cuff condition (Tr. 313).
Dr. Bhardwaj’s November, 2012 records note Plaintiff’s report of ongoing low back
pain (Tr. 343). The treatment records also note normal muscle strength in all extremities (Tr.
343, 347). January 2, 2013 records by Dr. Bhardwaj state that Plaintiff was in no acute
distress (Tr. 351). In March, 2013, Plaintiff was urged to quit smoking (Tr. 359). In June,
2013, Dr. Bhardwaj prescribed Abuterol for asthma (Tr. 367). She again urged Plaintiff to
1

Treatment for conditions unrelated to the arguments for remand have been reviewed
in full, but are omitted from the present discussion. Records pertaining to Plaintiff’s
condition significantly predating the alleged onset disability date of January 1, 2013 are
discussed for background purposes only.
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quit smoking (Tr. 367).
In January, 2014, Dr. Bhardwaj observed back spasms (Tr. 455). Dr. Bhardwaj’s
March, 2014 records note bilateral knee tenderness (Tr. 447). In April, 2014, Dr. Bhardwaj
again observed lower back spasms (Tr. 443). In May, 2014, Plaintiff was hospitalized for
five days after reporting “vague suicidal thoughts” (Tr. 469). Over the course of the
hospitalization, Plaintiff received individual and group therapy and was prescribed Prozac
and Seroquel (Tr. 469). Upon discharge, she exhibited good judgment and reduced
symptoms of anxiety and depression (Tr. 469). She was assigned a GAF of 552 (Tr. 469).
Treatment records note a history of psychotropic medication non-compliance (Tr. 471).
Plaintiff reported “good health” (Tr. 472).
In July, 2014, psychiatrist Madhumalti Bhavsar, M.D. noted Plaintiff’s report that she
wanted a psychiatric evaluation for the purpose of obtaining disability benefits (Tr. 399).
1990s for robbing a bank (Tr. 399-400). She did not exhibit memory problems (Tr. 400).
Dr. Bhavsar assigned her a GAF of 60 (Tr. 401). In August, 2014, Dr. Bhavsar noted that
Plaintiff was not in any acute distress and was fully oriented with a normal gait (Tr. 396).
He directed Plaintiff to continue the use of Seroquel and Prozac (Tr. 396). Dr. Bhardwaj’s
records from the same month state that Plaintiff received a Lidocain injection to the left knee
(Tr. 421). October, 2014 treating records by Garden City Medical Center state that Plaintiff

2

A GAF score of 51-60 indicates moderate symptoms (occasional panic attacks) or
moderate difficulty in social, occupational, or school functioning. Diagnostic and
Statistical Manual of Mental Disorders–Text Revision (“DSM–IV–TR”), 34.
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was scheduled for a heart catheterization the same month (Tr. 386).
2. Non-Treating Records
In September, 2011, Leonidas Rojas, M.D. performed a consultative physical
examination on behalf of the SSA, noting Plaintiff’s report of hypertension, asthma, CTS,
and low back and left knee pain3 (Tr. 293-294). Dr. Rojas noted that Plaintiff used crutches
and had difficulty arising from a sitting position due to recent knee surgery (Tr. 295). A
neurological and musculoskeletal examination was unremarkable (Tr. 296-297). Dr. Rojas
noted the presence of obesity and mild CTS (Tr. 296). Plaintiff exhibited a slightly reduced
range of lumbar spine motion (Tr. 299).
The same month, psychiatrist Ibrahim Youssef, M.D. performed a psychiatric
evaluation on behalf of the SSA, noting Plaintiff’s report of a diagnosis of depression after
a 1991 suicide attempt (Tr. 302). Plaintiff reported the current symptoms of anger, sadness,
social isolation, and excessive sleep (Tr. 302). She admitted that she was fired from her job
as a production worker after she failed to show up to work (Tr. 302). She reported selfmedicating with alcohol (Tr. 302). She reported that she was able to do her own cooking and
cleaning (Tr. 303). She exhibited a normal memory and good concentrational abilities (Tr.
303). Dr. Youssef assigned Plaintiff a GAF of 50 to 55 due to alcohol and cannabis abuse4

3

This examination predates the current application for benefits by over a year and
was apparently ordered in connection with an earlier application.
4

A GAF score of 41 to 50 indicates “[s]erious symptoms ... [or] serious impairment
in social, occupational, or school functioning,” such as inability to keep a job.
DSM-IV-TR at 34.
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(Tr. 304).
C. Vocational Expert Testimony
VE Han Tabsic classified Plaintiff’s former work as a inspector and hand packager
as unskilled and exertionally light5 (Tr. 58). The ALJ then described a hypothetical
individual of Plaintiff’s age, education, and work experience:
[L]imited to sedentary work; would further limitation of frequent, meaning
two-thirds of the time but not constant use of her hands bilaterally; mild
concentration, pace, and persistence limitations; off task about five percent;
and no work with the public (Tr. 59).
In response, the VE testified that the above limitations would preclude Plaintiff’s past
relevant work but would allow for the work of a sorter (2,500 in the metropolitan Detroit
area); inspector (1,200); and addressing clerk (1,000) (Tr. 59). The VE testified that if
Plaintiff experienced moderate limitation in “concentration, pace, and persistence” causing
her to be off task 10 percent of the day; were required to lie down “with legs outstretched at
least twice a day for about 30 minutes;” and, required four absences a month, all substantial
gainful employment would be precluded (Tr. 59).
D. The ALJ’s Decision
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20 C.F.R. § 404.1567(a-d) defines sedentary work as “lifting no more than 10 pounds
at a time and occasionally lifting or carrying articles like docket files, ledgers, and small
tools; light work as “lifting no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds;” medium work as “lifting no more than 50
pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds;” and
that exertionally heavy work “involves lifting no more than 100 pounds at a time with
frequent lifting or carrying of objects weighing up to 50 pounds. Very Heavy work requires
“lifting objects weighing more than 100 pounds at a time with frequent lifting or carrying of
objects weighing 50 pounds or more. § 404.1567(e).
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Citing the medical records, the ALJ found that Plaintiff experienced the severe
impairments of “degeneration of the lumbar spine; history of left meniscal tear, status-post
two surgeries; right [CTS]; asthma; obesity; affective disorder/major depressive disorder; and
polysubstance use” but that none of the conditions met or equaled any impairment listed in
20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr. 21-22). She found that Plaintiff experienced
mild limitation in activities of daily living and social functioning and moderate limitation in
concentration, persistence, or pace (Tr. 22-23). The ALJ found that Plaintiff retained the
following residual functional capacity (“RFC”):
[S]edentary work . . . but with the following additional limitations: frequent,
but not constant, use of the hands bilaterally; mild concentration, persistence,
and pace limitations such that the claimant would be off task up to five percent
of the workday; and no work with the public (Tr. 24).
Citing the VE’s testimony, the ALJ found that while Plaintiff was unable to perform her past
relevant work, she could work as a sorter, inspector, and address clerk (Tr. 28).
The ALJ discounted Plaintiff’s alleged degree of limitation, noting that despite a
diagnosis of asthma, Plaintiff continued to smoke (Tr. 25). The ALJ cited an MRI study
showing foramina narrowing “with very minimal effect on the exiting nerve roots” (Tr. 25).
She noted that Plaintiff exhibited a full range of lumbar spine motion at a September, 2011
examination (Tr. 25). The ALJ noted, in effect, that Plaintiff’s condition was stable when
she was took her medication on an as-prescribed basis (Tr. 26-27). She observed that the
medical transcript did not support Plaintiff’s claim that she was required to recline and/or
elevate her legs on a regular basis (Tr. 27).

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STANDARD OF REVIEW
The district court reviews the final decision of the Commissioner to determine
whether it is supported by substantial evidence. 42 U.S.C. §405(g); Sherrill v. Secretary of
Health and Human Services, 757 F.2d 803, 804 (6th Cir. 1985). Substantial evidence is more
than a scintilla but less that a preponderance. It is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.
389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB,
305 U.S. 197, 229, S. Ct. 206, 83 L.Ed.126 (1938)). The standard of review is deferential and
“presupposes that there is a ‘zone of choice’ within which decision makers can go either way,
without interference from the courts.” Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir.
1986)(en banc). In determining whether the evidence is substantial, the court must “take into
account whatever in the record fairly detracts from its weight.” Wages v. Secretary of Health
& Human Services, 755 F.2d 495, 497 (6th Cir. 1985). The court must examine the
administrative record as a whole, and may look to any evidence in the record, regardless of
whether it has been cited by the ALJ. Walker v. Secretary of Health and Human Services,
884 F.2d 241, 245 (6th Cir. 1989).
FRAMEWORK FOR DISABILITY DETERMINATIONS
Disability is defined in the Social Security Act 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). In
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evaluating whether a claimant is disabled, the Commissioner is to consider, in sequence,
whether the claimant: 1) worked during the alleged period of disability; 2) has a severe
impairment; 3) has an impairment that meets or equals the requirements of an impairment
listed in the regulations; 4) can return to past relevant work; and 5) if not, whether he or she
can perform other work in the national economy. 20 C.F.R. §416.920(a). The Plaintiff has
the burden of proof at steps one through four, but the burden shifts to the Commissioner at
step five to demonstrate that, “notwithstanding the claimant's impairment, he retains the
residual functional capacity to perform specific jobs existing in the national economy.”
Richardson v. Secretary of Health & Human Services, 735 F.2d 962, 964 (6th Cir.1984).
ANALYSIS
On July 29, 2016, Plaintiff, proceeding pro se, filed a motion for summary judgment,
challenging the administrative finding that she was not disabled. Plaintiff’s Brief, Docket
#19, Pg ID 584. In support of her position, she states that she is prevented from working due
to arthritis in both knees and arms; obesity; asthma, a left shoulder rotator cuff tear; bipolar
disorder; hypertension and hyperlipidemia; bilateral CTS; and back and neck problems. Id.
at 1-2. She adds that her work abilities are compromised by constant pain and the medication
side effect of drowsiness. Id. In response, on September 14, 2016, Defendant filed a motion
for remand for further administrative proceedings. Motion for Remand, Docket #20, Pg ID
593. Defendant states that a remand is warranted so that the ALJ may “obtain evidence from
a medical expert to clarify whether Plaintiff’s impairments meet or equal the severity of an
impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.” Id. at 2. On September 29,
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2016, Plaintiff declined to stipulate to a remand, stating that she wanted the case to proceed
in this Court “as planned.” Docket #22.
Plaintiff’s refusal to stipulate to a remand for further proceedings is construed as a
request for a remand for an award of benefits under 42 U.S.C. 405(g). The fourth sentence
of 42 U.S.C. § 405(g) provides that “[t]he Court shall have power to enter, upon the
pleadings and transcript of the record, a judgment affirming, modifying, or reversing the
decision of the Commissioner of Social Security, with or without remanding the cause for
a rehearing.” However, a remand for an award of benefits is appropriate “only if all essential
factual issues have been resolved and the record adequately establishes a plaintiff's
entitlement to benefits.” Faucher v.HHS, 17 F.3d 171, 176 (6th Cir. 1994).
The Court agrees with Defendant that a remand for further fact-finding rather than an
award of benefits is appropriate. The medical transcript does not contain a treating,
consultative, or non-examining assessment of Plaintiff’s work-related abilities for the period
subsequent to the January 1, 2013 alleged onset of disability. A remand for further
development of the record would allow the ALJ to make a more reasoned determination of
whether an award of benefits is appropriate. My own review of the record also shows that
the administrative decision includes contradictory findings. While the ALJ found that
Plaintiff experienced moderate limitation in concentration, persistence, or pace (Tr. 23), the
RFC states that the concentration, persistence, and pace limitation is only mild ( Tr.
24)(emphasis added). A remand would also permit the ALJ to resolve these inconsistencies.

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However, Plaintiff has not presented “overwhelming” evidence allowing this Court to
conclude that she is incapable of even a limited range of sedentary work. Faucher, 17 F.3d
at 176 (citing Mowery v. Heckler, 771 F.2d 966, 973 (6th Cir.1985)). “A judicial award of
benefits is proper only where the proof of disability is overwhelming or where the proof of
disability is strong and evidence to the contrary is lacking.” Id. Record evidence of a normal
gait, good muscle strength in all extremities, and only intermittent knee and back problems,
for example, support the finding that Plaintiff could perform sedentary work. On the other
hand, the evidence allows for the possibility that upon remand, the ALJ could find that one
or a combination of Plaintiff’s medically determinable conditions renders her disabled.
Accordingly, a remand for benefits prior to the resolution of the unresolved factual issues
would be premature.
CONCLUSION
For these reasons, Defendant’s Motion for Remand [Docket #20] is GRANTED, and
the case is remanded to the administrative level for further administrative proceedings under
the fourth sentence of § 405(g). Plaintiff’s Motion for Summary Judgment [Docket #19] is
DENIED.
IT IS SO ORDERED.

s/ R. Steven Whalen
R. STEVEN WHALEN
UNITED STATES MAGISTRATE JUDGE
Dated: September 30, 2017

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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was sent to parties of record
on September 30, 2017, electronically and/or by U.S. mail.
s/Carolyn M. Ciesla
Case Manager to the
Honorable R. Steven Whalen

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