Fields v. COLVIN
OPINION and ORDER Granting Plaintiff's 16 MOTION for Summary Judgment, Denying Defendant's 20 MOTION for Summary Judgment and Remanding for Further Proceedings. Signed by District Judge Bernard A. Friedman. (TMcg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Civil Action No. 16-CV-12517
HON. BERNARD A. FRIEDMAN
OPINION AND ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT, DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT,
AND REMANDING FOR FURTHER PROCEEDINGS
This matter is presently before the Court on cross motions for summary judgment
[docket entries 16 and 20]. Pursuant to E.D. Mich. LR 7.1(f)(2), the Court shall decide these
motions without a hearing. For the reasons stated below, the Court shall grant plaintiff’s motion,
deny defendant’s motion, and remand the case for further proceedings.
Plaintiff has brought this action under 42 U.S.C. § 405(g) to challenge defendant’s
final decision denying his application for Social Security disability insurance and Supplemental
Security Income (“SSI”) benefits. An Administrative Law Judge (“ALJ”) held a hearing in April
2015 (Tr. 25-67) and issued a decision denying benefits in May 2015 (Tr. 9-24). This became
defendant’s final decision in June 2016 when the Appeals Council denied plaintiff’s request for
review (Tr. 1-3).
Under § 405(g), the issue before the Court is whether the ALJ’s decision is supported
by substantial evidence. As the Sixth Circuit has explained, the Court
must affirm the Commissioner’s findings if they are supported by
substantial evidence and the Commissioner employed the proper
legal standard. White, 572 F.3d at 281 (citing 42 U.S.C. § 405(g));
Elam ex rel. Golay v. Comm’r of Soc. Sec., 348 F.3d 124, 125 (6th
Cir. 2003); Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th
Cir. 1997). Substantial evidence 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) (internal quotation marks omitted); see also Kyle, 609
F.3d at 854 (quoting Lindsley v. Comm’r of Soc. Sec., 560 F.3d 601,
604 (6th Cir. 2009)). Where the Commissioner’s decision is
supported by substantial evidence, it must be upheld even if the
record might support a contrary conclusion. Smith v. Sec’y of Health
& Human Servs., 893 F.2d 106, 108 (6th Cir. 1989). However, a
substantiality of evidence evaluation does not permit a selective
reading of the record. “Substantiality of the evidence must be based
upon the record taken as a whole. Substantial evidence is not simply
some evidence, or even a great deal of evidence. Rather, the
substantiality of evidence must take into account whatever in the
record fairly detracts from its weight.” Garner v. Heckler, 745 F.2d
383, 388 (6th Cir. 1984) (internal citations and quotation marks
Brooks v. Comm’r of Soc. Sec., 531 F. App’x 636, 640-41 (6th Cir. 2013).
At the time of his April 2015 hearing, plaintiff was 57 years old (Tr. 30). He has a
high school education and some college (Tr. 30) and work experience as a customer service clerk
for a newspaper (Tr. 34, 201). Plaintiff claims he has been disabled since August 2013 due to
having HIV, Hepatitis B, hypertension, medication side effects, anxiety, depression, chronic fatigue,
wasting, rashes, hearing loss, recurrent upper respiratory infections, chronic acute sinusitis,
lightheadedness, dehydration, and status post hernia (Tr. 27, 200-01).
The ALJ found that plaintiff’s severe impairments are “HIV, hypertension and
adjustment disorder” (Tr. 14). He found that despite these impairments plaintiff has the residual
functional capacity (“RFC”) to perform “a full range of work at all exertional levels but with the
following nonexertional limitations: limited to simple, routine tasks, low stress and few changes in
the work setting; avoid concentrated exposure to moving machinery and unprotected heights; located
reasonably close to bathroom; no climbing ladders but occasional ramps and stairs” (Tr. 16). A
vocational expert (“VE”) testified in response to a hypothetical question that a person of plaintiff’s
age, education, and work experience, and who has this RFC, could perform various unskilled
medium-level1 jobs such as dining room attendant, assembler, and packer (Tr. 61-62). The ALJ
cited this testimony as evidence that work exists in significant numbers that plaintiff could perform
and concluded that he is not disabled (Tr. 21).
Having reviewed the administrative record and the parties’ briefs, the Court
concludes that the ALJ’s decision in this matter is not supported by substantial evidence because his
RFC evaluation of plaintiff is flawed. Since the hypothetical question incorporated this flawed RFC
evaluation, it failed to describe plaintiff in all relevant respects and the VE’s testimony given in
response thereto cannot be used to carry defendant’s burden to prove the existence of a significant
number of jobs plaintiff is capable of performing.
Plaintiff’s RFC evaluation is flawed for the following reasons. First, the ALJ failed
to consider the side effects of plaintiff’s medications. The record indicates that plaintiff takes, or
at various times has taken, Efavirenz-Emtrictabine-Tenofovir (Atripla), Stribild, Amlodipine
(Norvasc), Clonidine (Catapres), Hydrazaline (Apresoline), Atenolol-Chlorthalidone (Tenoretic),
Lisinopril, Benazepril, Atenolol, Hydrochlorothiazide, and Sulfamethoxazole-Trimethoprim
(Bactrim) (Tr. 47, 203, 244, 247, 251, 273, 279, 287, 312). At the hearing he testified that his
Defendant’s regulations define medium-level work as involving “lifting no more than
50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If
someone can do medium work, we determine that he or she can also do sedentary and light
work.” 20 C.F.R. § 404.1567(c). Light work, in turn, encompasses jobs that require “a good deal
of walking or standing, or [those] involv[ing] sitting most of the time with some pushing and
pulling of arm or leg controls.” 20 C.F.R. § 404.1567(b).
medications cause him to have “cloudy thinking” and to feel unfocused, interfere with his
concentration, and cause urinary frequency (Tr. 51, 57). Plaintiff also testified to feeling extreme
fatigue (Tr. 32, 36, 41, 51-53, 56). On his function report plaintiff indicated that he is “often lightheaded or fuzzy thinking almost dizzy-like”; that his “meds keep me getting up to use bathroom”;
that he is “often fatigued”; and that he “often falls asleep from fatigue” (Tr. 216, 220, 223). He also
reported medication side effects of nightmares, “bloat stomach,” and dehydration (Tr. 223).
The ALJ’s failure to make any findings as to this issue is an error requiring remand,
as the Sixth Circuit has held that the ALJ must evaluate “[t]he type, dosage, effectiveness, and side
effects of any medication” as part of the process of determining the extent to which side effects
impair a claimant’s capacity to work. Keeton v. Comm’r of Soc. Sec., 583 F. App’x 515, 532 (6th
Cir. 2014) (quoting 20 C.F.R. § 416.929(c)(3)(i)-(vi)). Further, hypothetical questions to vocational
experts must account for medication side effects. See White v. Comm’r of Soc. Sec., 312 F. App’x
779, 789-90 (6th Cir. 2009). On remand, the ALJ must determine which medications plaintiff was
taking during the relevant time period; make findings as to the nature and severity of these
medications’ side effects, if any; adjust his findings as appropriate regarding plaintiff’s RFC; and
incorporate these findings in proper hypothetical questions to the VE.
Second, the RFC evaluation in this matter is flawed because the ALJ did not
adequately explain why he discounted plaintiff’s credibility. In addition to testifying about his
medication side effects, plaintiff testified that while he has no difficulty sitting, he can stand for only
five minutes or walk for 10-15 minutes before becoming exhausted/fatigued and having to rest, and
that he can lift at most 20 pounds (Tr. 52-53). Plaintiff also testified that due to fatigue he must nap
for 5-10 minutes up to five times per day (Tr. 56-57). If plaintiff’s testimony regarding his standing,
walking, and lifting abilities is credited, he would not have the RFC to do the medium-level jobs
identified by the VE (Tr. 61-62), which the ALJ cited as jobs plaintiff could perform (Tr. 21); and
if plaintiff’s testimony regarding his need to nap frequently due to fatigue is credited, he would not
be able to work at all, according to the VE (Tr. 64).2
The ALJ is not required to accept a claimant’s testimony, but if he rejects testimony
on credibility grounds, he must state his reasons for doing so and the reasons must be supported by
substantial evidence. As the Sixth Circuit has explained,
the ALJ is not free to make credibility determinations based solely
upon an “intangible or intuitive notion about an individual's
credibility.” Soc. Sec. Rul. 96-7p, 1996 WL 374186, at *4. Rather,
such determinations must find support in the record. Whenever a
claimant’s complaints regarding symptoms, or their intensity and
persistence, are not supported by objective medical evidence, the ALJ
must make a determination of the credibility of the claimant in
connection with his or her complaints “based on a consideration of
the entire case record.” The entire case record includes any medical
signs and lab findings, the claimant’s own complaints of symptoms,
any information provided by the treating physicians and others, as
well as any other relevant evidence contained in the record.
Consistency of the various pieces of information contained in the
record should be scrutinized. Consistency between a claimant’s
symptom complaints and the other evidence in the record tends to
support the credibility of the claimant, while inconsistency, although
not necessarily defeating, should have the opposite effect.
Social Security Ruling 96-7p also requires the ALJ explain his
credibility determinations in his decision such that it “must be
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.” In other
words, blanket assertions that the claimant is not believable will not
The Court notes that the record contains a number of references to plaintiff’s fatigue
and shortness of breath. See, e.g., Tr. 279-80, 288-89, 294-96, 310. The ALJ made no findings
as to these symptoms. On remand, he must do so and incorporate such findings in his RFC
evaluation of plaintiff and in his hypothetical question(s) to the VE.
pass muster, nor will explanations as to credibility which are not
consistent with the entire record and the weight of the relevant
evidence. And given the nature of fibromyalgia, where subjective
pain complaints play an important role in the diagnosis and treatment
of the condition, providing justification for discounting a claimant’s
statements is particularly important. Hurst v. Sec’y of Health &
Human Servs., 753 F.2d 517, 519 (6th Cir.1985).
Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 247-48 (6th Cir. 2007) (footnote omitted).
On remand, the ALJ must reevaluate plaintiff’s credibility. It simply does not suffice
for the ALJ to assert, without any elaboration or citation to the record, that plaintiff’s testimony and
other statements “are found to be exaggerated and inconsistent with the other evidence, including
the clinical and objective findings of record and are not a sound basis for decision-making” (Tr. 18)
or that “[t]he claimant’s testimony is not well supported by the objective medical evidence in the
record and therefore not entitled to controlling weight” (Tr. 19). A boilerplate credibility
determination of this nature is not “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, supra. Nor are such statements regarding plaintiff’s credibility sufficiently
specific to show that the ALJ reviewed the entire record and tailored his findings to the facts of this
particular case. The ALJ asserted that “[t]hese facts in the record do not dispute that the claimant
has conditions, which singly or in combination, may cause pain” (Tr. 18), although plaintiff does
not claim to have any pain at all, but entirely different subjective symptoms, including fatigue,
shortness of breath, and difficulty concentrating. On remand, if the ALJ again decides to reject
plaintiff’s testimony or any portion thereof, he must provide a reasoned explanation for doing so and
support his reasons with specific record citations. To the extent the ALJ decides to credit plaintiff’s
testimony, he must revise his RFC evaluation and his hypothetical questions to the VE accordingly.
Finally, the RFC evaluation in this matter is flawed because the ALJ failed to explain
sufficiently why he disregarded the opinions of one of plaintiff’s treating physicians. As the Sixth
Circuit has explained,
[i]n assessing the medical evidence supplied in support of a claim,
there are certain governing standards to which an ALJ must adhere.
Key among these is that greater deference is generally given to the
opinions of treating physicians than to those of non-treating
physicians, commonly known as the treating physician rule. See Soc.
Sec. Rul. 96–2p, 1996 WL 374188 (July 2, 1996); Wilson v. Comm’r
of Soc. Sec., 378 F.3d 541, 544 (6th Cir.2004). Because treating
physicians are “the medical professionals most able to provide a
detailed, longitudinal picture of [a claimant's] medical impairment(s)
and may bring a unique perspective to the medical evidence that
cannot be obtained from the objective medical findings alone,” their
opinions are generally accorded more weight than those of
non-treating physicians. 20 C.F.R. § 416.927(d)(2). Therefore, if the
opinion of the treating physician as to the nature and severity of a
claimant’s conditions is “well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent
with other substantial evidence in [the] case record,” then it will be
accorded controlling weight. Wilson, 378 F.3d at 544. When the
treating physician’s opinion is not controlling, the ALJ, in
determining how much weight is appropriate, must consider a host of
factors, including the length, frequency, nature, and extent of the
treatment relationship; the supportability and consistency of the
physician’s conclusions; the specialization of the physician; and any
other relevant factors. Id. However, in all cases there remains a
presumption, albeit a rebuttable one, that the opinion of a treating
physician is entitled to great deference, its non-controlling status
notwithstanding. Soc. Sec. Rul. 96–2p, 1996 WL 374188, at *4 (“In
many cases, a treating physician's medical opinion will be entitled to
the greatest weight and should be adopted, even if it does not meet
the test for controlling weight.”).
Rogers, 486 F.3d at 242 (footnote omitted). See also Gentry v. Comm’r of Soc. Sec., 741 F.3d 708,
723 (6th Cir. 2014).
In the present case, the ALJ disregarded the treating physician rule in considering the
opinions of Dr. Andrew Truccone. In a mental RFC questionnaire dated March 19, 2015, Dr.
Truccone indicated, among other things, that plaintiff is “seriously limited” in his ability to maintain
attention, to complete a normal workday without interruptions from psychologically based
symptoms, and to perform without “an unreasonable number and length of rest periods” (Tr. 349).
Dr. Truccone also indicated that plaintiff would be absent from work “[a]bout three days per month”
due to his impairments or treatment (Tr. 350). The ALJ gave this assessment “little weight as it is
based on a single encounter with the claimant” (Tr. 18). This is not a sufficient basis for
disregarding Dr. Truccone’s questionnaire answers, as the length of the treating relationship is only
one of the factors the ALJ may consider in deciding the weight he will give to a treating physician’s
opinion. Moreover, Dr. Truccone indicated he based his opinions not only on his own evaluation
but also on “past medical records” (Tr. 338). On remand, the ALJ must reassess Dr. Truccone’s
opinions in compliance with the treating physician rule and, as necessary, revise plaintiff’s RFC
evaluation and the hypothetical question(s) to the VE.
For these reasons, the Court concludes that the ALJ’s decision in this matter is not
supported by substantial evidence. Remanding the matter for an award of benefits would not be
appropriate at this time because the record, in its current state, is not such that “proof of disability
is overwhelming or . . . proof of disability is strong and evidence to the contrary is lacking.”
Faucher v. Sec’y of Health and Human Servs., 17 F.3d 171, 176 (6th Cir. 1994). Rather, the matter
must be remanded so that the record may be further developed to address the deficiencies noted
IT IS ORDERED that defendant’s motion for summary judgment is denied.
IT IS FURTHER ORDERED that plaintiff’s motion for summary judgment is granted
and this matter is remanded for further proceedings as specified above. This is a sentence four
remand under § 405(g).
Dated: March 30, 2017
s/Bernard A. Friedman
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE
Certificate of Service
The undersigned certifies that the foregoing document was served upon counsel of record and
any unrepresented parties via the Court's ECF system to their respective email or First Class U.
S. Mail addresses disclosed on the Notice of Electronic Filing on March 30, 2017.
Teresa A. McGovern
Case Manager Generalist
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