Emmendorfer v. Social Security, Commissioner of
OPINION and ORDER DENYING DEFENDANT'S 14 MOTION for Summary Judgment filed by the Commissioner of Social Security AND GRANTING PLAINTIFF'S 12 MOTION for Summary Judgment filed by Judy Ann Emmendorfer - Signed by Magistrate Judge R. Steven Whalen. (CCie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
JUDY ANN EMMENDORFER,
Civil Action No. 16-12854
HON. R. STEVEN WHALEN
U.S. Magistrate Judge
COMMISSIONER OF SOCIAL
OPINION AND ORDER
Plaintiff Judy Ann Emmendorfer (“Plaintiff”) brings this action under 42 U.S.C.
§405(g), challenging a final decision of Defendant Commissioner (“Defendant”) denying her
application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security
Act. For the reasons discussed below, Defendant’s Motion for Summary Judgment [Docket
#14] is DENIED and Plaintiff’s Motion for Summary Judgment [Docket #12] is GRANTED
to the extent that the case shall be remanded to the administrative level for further
proceedings consistent with this opinion.
I. PROCEDURAL HISTORY
On October 1, 2012, Plaintiff filed an application for DIB alleging disability as of
May 1, 2011 (Tr. 208-209). After the initial denial of the claim, Plaintiff requested an
administrative hearing, held on November 5, 2013 before Administrative Law Judge (“ALJ”)
Paul W. Jones (Tr. 52). On January 3, 2014, ALJ Jones determined that Plaintiff was not
disabled (Tr. 97-111). On March 3, 2015, the Appeals Council vacated the January 3, 2014
decision, remanding the case to the ALJ on the basis that the ALJ did not explain his reasons
for rejecting a treating physician’s opinion that Plaintiff was limited to occasional
manipulative activity (Tr. 112).
On June 10, 2015, ALJ Jones conducted a second hearing (Tr. 33). Plaintiff,
represented by counsel, testified, as did Vocational Expert Georgette Gunther (Tr. 37-51).
On June 25, 2015, ALJ Jones issued a partially favorable decision, finding that due to
Plaintiff’s limitation to exertionally light work, she was disabled as of December 29, 2014
due to a change in Plaintiff’s age category to “advanced age” (Tr. 19-28); MedicalVocational Rule 202.06. On June 9, 2016, the Appeals Council denied review (Tr. 1-3).
Plaintiff filed for judicial review of the final decision in this Court on August 3, 2016.
II. BACKGROUND FACTS
Plaintiff, born December 30, 1959, was 55 when ALJ Jones issued his decision (Tr.
28, 208). She completed 12th grade and worked as a cashier at a party store (Tr. 246). She
alleges disability resulting from rheumatoid arthritis, a back injury, depression, insomnia,
Carpal Tunnel Syndrome (“CTS”), and asthma (Tr. 245).
Plaintiff offered the following testimony:
1. November 5, 2013
She was married and lived in a single-family home with her husband (Tr. 55).
Following her husband’s retirement, they bought a farm approximately 14 miles from their
home which her husband ran for profit (Tr. 57). At their own home, they had 20 pigs, two
dogs, one cat, and around 50 chickens at the farm but she did not help her husband take of
them (Tr. 68). Her only job was collecting eggs (Tr. 68).
For the past two years, Plaintiff was unable to help her husband with the farming,
noting that she used to be able to lift up a wagon tailgate and drive a truck (Tr. 57). Plaintiff
worked 12 hours a week at a party store as a cashier (Tr. 58). She received steroid injections
for the upper extremity conditions (Tr. 70). Her work in a previous cashiering position
required her to lift up to 20 pounds (Tr. 63). She also worked for 12 months in 2002
babysitting her grandchild (Tr. 65). She was unable to work more hours due to rheumatoid
arthritis, but had recently begun watching her grandchildren again for approximately 19
hours a week (Tr. 58, 68). She was able to read, write, and perform calculations (Tr. 60).
She stood 5' 8" and weighed 260 pounds (Tr. 61).
Plaintiff smoked around five cigarettes a day (Tr. 72). She had received treatment
from the same physician for the past 33 years (Tr. 73). She was able to climb a flight of
stairs two to three times a day (Tr. 74). She was unable to kneel (Tr. 75). She experienced
problems peeling potatoes due to arthritis of the hands (Tr. 75). She required a 10-minute
rest after experiencing locked finger joints (Tr. 77). Although she held a job as a cashier, she
was required to leave her shift two hours early at least twice a month due to hand problems
(Tr. 77). She experienced constant foot pain and her most comfortable position was lying
flat on her back (Tr. 77). Due to fatigue, she reclined two or three times a day for at least
half an hour (Tr. 78). She experienced mild relief from pain medication (Tr. 78). Steroid
injections improved her condition for around one week (Tr. 78). She was capable of lifting
up to 25 pounds (Tr. 78). Her husband did 75 percent of the work at the times she was
babysitting her grandchildren (Tr. 79). On a “bad” day, Plaintiff stayed in her room all day,
adding that she experienced such days around four times a month (Tr. 80).
2. June 10, 2015
Plaintiff had only worked two days since the previous hearing due to gall bladder
surgery (Tr. 37-38). Her hand and wrist condition had worsened (Tr. 46). She experienced
problems “grabbing” items and buttoning clothes and was unable to lift more than 10 pounds
(Tr. 47, 49). She also experienced increased foot, elbow, and knee pain (Tr. 47). In addition
to the gall bladder problems, she had experienced a kidney infection (Tr. 48).
1. Records Related to Plaintiff’s Treatment
March, 2011 records by Larry G. Alton, D.O. state that Plaintiff continued to smoke
(Tr. 434). Plaintiff reported leg swelling (Tr. 384). A lower extremity study showed mild
bilateral obstructive atherosclerosis ( Tr. 433). A May, 2011 chest x-ray was unremarkable
(Tr. 406). In August, 2011, Dr. Alton prescribed a nebulizer machine for asthma (Tr. 420).
October, 2011 treating records note a diagnosis of generalized osteoarthritis centered in the
bilateral feet (Tr. 319). Dianne Trudell, M.D. noted heel spurs and “a borderline positive
rheumatoid factor” (Tr. 319).
Plaintiff reported no improvement from the use of
Methotrexate (Tr. 320). The same month, Dr. Alton determined that Plaintiff required
hearing aids (Tr. 417). Dr. Alton’s notes from the following month note Plaintiff’s report
of ongoing back pain (Tr. 368).
January, 2012 orthopedic records by Susan Mosier-LaClair, M.D. note Plaintiff’s
report of year-long bilateral foot pain (Tr. 286-289). Dr. Mosier-LaClair noted full strength
and Plaintiff’s report that arthritis of the big toes did not bother her (Tr. 286). Plaintiff
reported joint tenderness in both feet at the second through fifth toe joints (Metatarsalgia)
(Tr. 286). Imaging studies showed bilateral mid-foot arthritis (Tr. 287). Dr. Mosier-LaClair
recommended metatarsal pads (Tr. 287). Dr. Alton’s records from the same month state that
Plaintiff requested a steroid injection for numbness of the right leg and face (Tr. 365). The
following month, Plaintiff sought emergency treatment for chest pain and shortness of breath
(Tr. 291). Testing was negative for myocardial infarction (Tr. 291). Plaintiff was advised
to lose weight, stop smoking, and obtain a sleep apnea evaluation (Tr. 291, 363). EMG
studies of the lower extremities from the same month showed radiculopathy with ongoing
moderate enervation (Tr. 327, 460). The same month, Plaintiff was prescribed Vicodin (Tr.
410). A March, 2012 MRI of the lumbar spine showed a broad-based hernia at L5 with
nerve root compression (Tr. 332, 464).
In April, 2012, neurosurgeon Lisa Guyot, M.D. noted Plaintiff’s report of level “six”
out of “ten” lower back pain (Tr. 342, 451). Dr. Guyot also noted a history of asthma (Tr.
343). Plaintiff demonstrated difficulty with tandem gait and a decreased range of lumbar and
cervical spine motion (Tr. 343-344, 452-453). Dr. Guyot’s May, 2012 records state that
Plaintiff declined a recommendation for surgery and opted for epidural steroid injections
instead (Tr. 339, 448). Dr. Alton’s August, 2012 records state that Plaintiff requested an
emergency arthritis shot (Tr. 358). The following month, she reported that she could “hardly
walk” due to foot pain (Tr. 355).
February, 2013 records note that Plaintiff had been diagnosed with rheumatoid arthris
25 years earlier (Tr. 444). April, 2013 treating notes state that lab work was positive for
rheumatoid arthritis (Tr. 443). Plaintiff exhibited swollen hands (Tr. 443). A May, 2013
MRI of the right hip showed a “probable” paralabral cyst (Tr. 479). Dr. Alton’s notes from
the following month state that Plaintiff wanted to continue prednisone (Tr. 478). In August,
2013, Plaintiff reported recent, increased symptoms of rheumatoid arthritis (Tr. 522).
In October, 2013, Dr. Alton completed an assessment of Plaintiff’s work-related
abilities, finding that she was limited to lifting 20 pounds occasionally and 10 frequently and
experienced limitations in pushing and pulling in both the upper and lower extremities, based
on x-rays, lab work, and the need for ongoing steroid treatment and other medication (Tr.
481, 658). He precluded all climbing, kneeling, crouching, crawling, and stooping and
limited Plaintiff to frequent balancing (Tr. 481). He noted that the above activities could not
be performed for more than two hours a day, adding that “most of them are never” (Tr. 481).
He limited Plaintiff to occasional reaching, handling, and fingering, and frequent feeling,
noting that his answers were based mostly on his own clinical observations (Tr. 482). He
observed that Plaintiff was also hard of hearing and that her work abilities were compromised
by both pain and prescribed medication (Tr. 482). He found that Plaintiff’s abilities were
also limited by the environmental factors of noise, humidity, and hazards, noting a diagnosis
of Obstructive Lung Disease (Tr. 483).
In March, 2014, Plaintiff was hospitalized for renal failure (Tr. 527). In July, 2014,
Plaintiff was diagnosed with mild gastritis (Tr. 524). In December, 2014, rheumatologist
Carlos Diola, M.D. noted Plaintiff’s report of “really bad” hand and foot pain (Tr. 486). He
observed mild swelling of the wrists but no rheumatoid deformities (Tr. 486). The following
month, Ali K. Mohammed, M.D. noted diagnoses of acute renal failure, chronic kidney
disease, hypertension, arthritis, and morbid obesity (Tr. 492, 497). In May, 2015, Plaintiff
reported continued hand and foot pain (Tr. 494).
2. Consultative and Non-Examining Sources
In December, 2012, Muhammad Ahmed, M.D. performed a non-examining review
of the treating and consultative records on behalf of the SSA, finding that Plaintiff could lift
and carry 20 pounds occasionally and 10 frequently; sit, stand, or walk for six hours in an
eight-hour workday; and push and pull without limitation (Tr. 92). He found that Plaintiff
could balance frequently and climb, stoop, kneel, crouch, and crawl on an occasional basis
(Tr. 92). He found that Plaintiff should avoid concentrated exposure to extreme cold and
airborne hazards (Tr. 93).
Vocational Expert Testimony (June 10, 2015 Hearing)
VE Georgette Gunther classified Plaintiff’s former work as a cashier/checker as
semiskilled and exertionally light (light to medium as performed)1 (Tr. 39). The ALJ then
posed a set of restrictions to the VE, describing a hypothetical individual of Plaintiff’s age,
education, and work background:
[Exertionally] light work. . . who can occasionally stoop, kneel, crouch, and
crawl, who can frequently handle and frequently finger bilaterally, who can be
exposed frequently to the non-weather-related extremes of cold, who can be
exposed frequently to humidity, who can be exposed frequently to fumes, and
no other limitation. Could such a person perform [Plaintiff’s] past work? (Tr.
The VE stated that the past work would be unavailable, due to the need for constant
rather than frequent fingering, but that the above-described individual could perform the
light, unskilled work of an interviewer (100,000 positions in the national economy); mail
clerk (71,000); and general office clerk (Tr. 231,000) (Tr. 40, 43). She stated that a reduction
in handling and fingering to occasional would eliminate all three positions (Tr. 43) but that
the individual could perform the jobs of usher (169,000); transportation attendant (31,000);
and counter clerk (111,000) (Tr. 45).
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 “ lifting no more than 100 pounds at a time with frequent lifting
or carrying of objects weighing up to 50 pounds.
D. The ALJ’s Decision (June 25, 2015)
Citing the medical transcript, ALJ Jones found that Plaintiff experienced the severe
impairments of “obesity; lumbar degenerative disc disease; asthma; and rheumatoid arthritis”
but that none of the conditions met or medically equaled an impairment found in Part 404
Appendix 1 Subpart P, Appendix No. 1 (Tr. 21-22). He found that the conditions of diabetes,
hearing loss, and gastrointestinal disorder were non-severe (Tr. 22). The ALJ determined
that Plaintiff retained the Residual Functional Capacity (“RFC”) for light work with the
[S]he can only occasionally climb, stoop, kneel, crouch, crawl; frequently
balance; frequently handle/finger with her arms; with only frequent exposure
to humidity, fumes, and the non-weather-related extremes of cold (Tr. 22).
Citing the VE’s testimony, the ALJ found that while Plaintiff was unable to perform her past
relevant work as a cashier/checker, between May 1, 2011 and December 29, 2014, she could
perform the jobs of interviewer, mail clerk, and office clerk (Tr. 27, 43). However, the ALJ
found that Plaintiff’s inability to perform more than exertionally light work rendered her
disabled as of her 55th birthday2 of December 30, 2014 (Tr. 26).
The ALJ discounted Plaintiff allegations of disability prior to that date, noting that
although she was diagnosed with rheumatoid arthritis more than 25 years ago, recent imaging
studies were negative for joint deformities (Tr. 23). He cited Plaintiff’s report to her treating
sources that she experienced foot pain but was able to stand at work for six hours (Tr. 23).
He noted that Plaintiff continued “to do rather strenuous activities, including meal
20 C.F.R. part 404, subpart P, App. 2, Rule 202.06 directs a finding of disability for
an individual 55 or over (advanced age) who is unable to perform her previous work, does
not possess transferrable skills from her previous work, and is limited to exertionally light
or sedentary, unskilled work.
preparation, washing dishes, doing laundry, and vacuuming” (Tr. 25). He found that Plaintiff
was also able to help her husband take care of 20 pigs, 2 dogs, 1 cat, 50 chickens, and
babysit for their grandchildren (Tr. 25).
III. 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 than 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).
IV. 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
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).
Plaintiff makes three arguments for remand. First, she points out that the ALJ miscited Dr. Alton’s findings by stating that she could reach, handle, and finger frequently, when
in fact, Dr. Alton found that she was limited to those activities on an occasional basis.
Plaintiff’s Brief, 7-11, Docket #12, Pg ID 714 (citing Tr. 26, 481). Second, she argues that
the ALJ supported his determination that her claims were not credible was based on a
distorted reading of the record. Id. at 11-15. She also argues that the ALJ’s rejection of Dr.
Alton’s treating opinion was substantially and procedurally inadequate. Id. at 15-17.
Plaintiff’s first and second arguments will be considered separately. Her third
argument, premised in large part on the ALJ’s purportedly distorted reading of the medical
evidence, will be addressed in tandem with the other arguments for remand.
However, as threshold matter, the Court addresses the ALJ’s comments regarding the
March 3, 2015 Appeals Council remand (Tr. 19, 112). In the subsequent decision, the ALJ
stated that the remand was “ill-founded” and that he ordered a second hearing at “taxpayer
expense” (Tr. 19). Plaintiff, referring to these statements as a “rant,” notes that the second
hearing was not at taxpayer expense, but was paid for by the Disability Insurance Trust Fund
“set aside for the administration of disability claims and benefits” and is paid for by the
“income withholding taxes of wage earners.” Plaintiff’s Brief at 9 (emphasis omitted)(citing
While the AJL’s gratuitous comments were ill-advised and largely off the mark,
Plaintiff’s implied claim of bias resulting in reversible error is not well taken. “[E]xpressions
of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what
imperfect men and women . . . sometimes display” do not establish bias. Liteky v. United
States, 510 U.S. 540, 555–556, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474 (1994). In response,
Defendant notes correctly that “intemperate or inappropriate comments are not grounds for
remand unless they establish actual bias against the claimant or otherwise affect the outcome
of the proceeding.” Defendant’s Brief, 13, Docket #14, Pg ID 743 (citing Collier v. CSS, 108
F. App’x 358, 364,2004 WL 1922187, *6 (6th Cir. August 24, 2004)).
Courts “‘must begin with the “‘presumption that policymakers with decisionmaking
power exercise their power with honesty and integrity.’” Collier, at 363-364 (citing Navistar
Int'l. Transportation Corp. v. United States Environmental Protection Agency, 941 F.2d
1339, 1360 (6th Cir.1991)). At the hearing, the ALJ took Plaintiff’s testimony as to her
recent condition and queried the VE at length as to whether the manipulative limitations
would affect the ability to perform the past relevant work. He ultimately determined that
Plaintiff was entitled to benefits as of her 55th birthday. Despite the ALJ’s irritation with the
Appeals Council, Plaintiff has not met her burden to show that his findings were colored by
bias such as to create reversible error.3
While the ALJ’s comments do not provide an independent ground for remand,
the appearance of impartiality will be better served by remanding this case to a different
A. The Manipulative Limitations
Notwithstanding the absence of bias, the ALJ’s discussion of the manipulative
limitations is not a model of clarity.
As discussed above, in December, 2012, non-examining source Dr. Ahmed found the
absence of manipulative limitation (Tr. 93). In October, 2013, treating physician Dr. Alton
found that Plaintiff was limited to occasional reaching, handling, and fingering and frequent
feeling (Tr. 482). In contrast to both opinions, the RFC in the June 25, 2015 determination
states that Plaintiff was limited to frequent handling and fingering, the mid-point between
no limitation (constant) as found by Dr. Ahmed activity and occasional as found by Dr.
Alton (Tr. 22).
The ALJ’s explanation for “splitting the baby” is problematic:
[Dr. Alton] . . . recorded restrictions to reaching, handling, fingering
occasionally and feeling frequently which are consistent with the RFC
adopted. I give only partial weight to his restrictions, as only his manipulative
restrictions are consistent with the medical record and other evidence as [a]
whole (Tr. 26).
Of course, the ALJ’s statement that he adopted Dr. Alton’s occasional manipulative
limitations is wholly erroneous, given that the RFC allows for frequent, not occasional
manipulative activity (Tr. 22, 26). The second sentence of the ALJ’s rationale is of even
greater concern. If Dr. Alton’s manipulative findings “are consistent with the record,” why
are they not included in the RFC? The ALJ’s discussion of other portions of Dr. Alton’s
opinion provides no clarification of the manipulative findings and in fact, contains additional
contradictory findings. While the ALJ noted that Dr. Alton found that Plaintiff could stand
or walk at least two hours in an eight-hour workday (Tr. 25 citing 657), in the next sentence,
he states erroneously that Dr. Alton “gave no . . . standing or walking restrictions” (Tr. 25).
Likewise, the ALJ acknowledged that Dr. Alton limited Plaintiff to 20 pounds lifting, but in
the next sentence, erroneously states that Dr. Alton failed to provide lifting restrictions (Tr.
Defendant acknowledges the shortcomings in the ALJ’s reasoning but notes that even
an RFC for occasional rather than frequent manipulative activity would result in a nondisability finding. Defendant’s Brief at 15. Defendant cites the VE’s testimony that if the
hypothetical individual were limited to occasional manipulative activity, she would
nonetheless be capable of performing a significant range of unskilled, exertionally light
work. Id. (citing Tr. 43, 45). However, the ALJ’s misstatements warrant a remand for
multiple reasons. First, an ALJ’s rationale “must include a narrative discussion describing
how the evidence supports each conclusion, citing specific medical facts” including the
medical and non-medical evidence. SSR 96–8p, 1996 WL 374184, *2 (July 2, 1996). Id. at
*7. The analysis must include the non-exertional limitations. 20 C.F.R. § 404.1545. The
Ruling, at a minimum, requires the ALJ to “‘articulate how the evidence in the record
supports the RFC determination, discuss the claimant's ability to perform sustained
work-related activities, and explain the resolution of any inconsistencies in the record.’”
Delgado v. CSS, 30 Fed.Appx. 542, 547–548, 2002 WL 343402, *5 (6th Cir. March 4,
2002)(citing Bencivengo v. CSS, 251 F.3d 153, slip op., 4-5 (Table)(3rd Cir. December 19,
2000)(punctuation added)). In this case, the ALJ’s rationale appears to have created new
inconsistencies rather resolving the old ones.
The same misstatements also undermine treating physician analysis. It is well settled
that “[i]f the opinion of the claimant's treating physician is supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in [the] case record, it must be given controlling weight.” Hensley v. Astrue, 573
F.3d 263, 266 (6th Cir. 2009)(internal quotation marks omitted)(citing Wilson v. CSS, 378
F.3d 541, 544 (6th Cir. 2004); 20 C.F.R. § 404.1527(c)(2)). While the ALJ may reject all or
a portion of the treating source’s findings, he must supply “good reasons” for doing so.
Wilson, at 547; 20 C.F.R. § 404.1527(c)(2)). Here, the ALJ made multiple misstatements of
Dr. Alton’s findings, stating at one point that the physician did not provide an assessment of
the exertional abilities and at another, acknowledging them (Tr. 25). The ALJ’s statement
that the Dr. Alton did not specify walking or standing requirements, when in fact, he found
that Plaintiff could stand/walk at least two hours in an eight-hour workday but not six is
particularly critical, given that the inability to walk approximately six hours a day would limit
her to sedentary work. See SSR 83–10, 1983 WL 31251, *5 (1983)(“the primary difference
between sedentary and most light jobs” is that exertionally light work, in contrast to
sedentary work, “requires a good deal of walking or standing.”4 “Even though the weight
lifted in a particular light job may be very little, a job is in this category when it requires a
good deal of walking or standing.” Id. Again, while the ALJ stated that he adopted Dr.
Alton’s manipulative limitations, the RFC for frequent manipulative activity does not reflect
either Dr. Alton or the non-examining source’s findings (Tr. 26).
The ALJ’s rationale,
based on an inaccurate account of the treating opinion, does not constitute “good reasons”
for discounting the treating opinion.
A proper determination of Plaintiff’s ability to stand and walk is pertinent to the issue
of whether she was disabled prior to her 55th birthday. The finding that she was limited to
exertionally sedentary, unskilled work between the ages 50 to 55 (“closely approaching
advanced age”) would generally result in a disability finding. 20 C.F.R. part 404, subpart P,
App. 2, Rule 201.14.
‘The requirement of reason-giving exists, in part, to let claimants understand
the disposition of their cases,’ particularly in situations where a claimant
knows that his physician has deemed him disabled and therefore ‘might be
especially bewildered when told by an administrative bureaucracy that she
is not, unless some reason for the agency's decision is supplied.’ Snell v.
Apfel, 177 F.3d 128, 134 (2d Cir. 1999).
Wilson, supra, 378 F.3d at 544. Applicably here, the failure to supply a cogent rationale for
the partial rejection of Dr. Alton’s opinion mandates a remand for further proceedings.
B. Plaintiff’s Allegations of Limitation
The ALJ’s credibility determination is also of concern. The credibility determination,
currently guided by SSR 96-7p, describes the process for evaluating symptoms.5 As a
threshold matter, the adjudicator must consider whether there is an underlying medically
determinable physical or mental impairment ... that can be shown by medically acceptable
clinical and laboratory diagnostic techniques.” 1996 WL 374186 at *2 (July 2, 1996). The
second prong of SSR 96-7p directs that whenever a claimant's allegations regarding “the
intensity, persistence, or functionally limiting effects of pain or other symptoms are not
substantiated by objective medical evidence,” the testimony must be evaluated “based on a
consideration of the entire case record.”6 Id.
In March, 2016, SSR 16-3p superceded SSR 96-7p. The newer Ruling eliminates the
use of the term “credibility” from SSA policy. SSR 16-3p, 2016 WL 1119029, *1 (Mar. 16,
2016). The Ruling states that “subjective symptom evaluation is not an examination of an
individual’s character.” Instead, ALJs are directed to “more closely follow [the] regulatory
language regarding symptom evaluation.” See 20 C.F.R. § 404.1529(c)(3), fn 7, below.
Nonetheless, SSR 96-7p applies to the present determination, decided on August 20, 2015.
See Combs v. CSS, 459 F.3d 640, 642 (6th Cir. 2006)(accord 42 U.S.C. § 405(a))(The Social
Security Act “does not generally give the SSA the power to promulgate retroactive
In addition to an analysis of the medical evidence, 20 C.F.R. 404.1529(c)(3) lists the
factors to be considered in making a credibility determination: “(i) . . . daily activities; (ii)
As to the first prong of SSR 96-7p, the objective medical evidence reflects a greater
level of limitation than found by the ALJ. Regarding the allegations of lower extremity
limitation alone, the objective medical evidence created during the relevant period show that
Plaintiff was limited by osteoarthritis of the feet (Tr. 287, 319); a diagnosis of rheumatoid
arthritis (Tr. 319); a herniated disc with nerve root compression causing right leg numbness
and pain (Tr. 332, 365); radiculopathy (Tr. 327); and a decreased range of lumbar spine
motion (Tr. 343-344). Plaintiff’s allegations of constant level “six” back pain, need for
narcotic pain medication, abnormal gait, and reports that she could “hardly walk” due to foot
pain are wholly consistent with the objective studies and clinical observations (Tr. 342, 355,
As to the second prong of 96-7p, the ALJ found that Plaintiff’s ability to stand at a
cash register for six hours twice a week and “other quite strenuous farm and home chores”
undermined her disability claim (Tr. 25). However, Plaintiff testified that her only job
helping her husband tend the farm was collecting chicken eggs (Tr. 68). Further, while
Plaintiff reported that as of November, 2013, she worked to two six-hour shifts each week
at a party store, she was required to leave her shift two hours early 25 percent of the time (Tr.
77). She reported that her husband did 75 percent of the work babysitting for their
grandchildren and that on her four “bad” days each month, she stayed in her room all day (Tr.
The location, duration, frequency, and intensity of your pain or other symptoms; (iii)
Precipitating and aggravating factors; (iv) The type, dosage, effectiveness, and side effects
of any medication you take or have taken to alleviate your pain or other symptoms; (v)
treatment, other than medication, you receive or have received for relief of your pain or other
symptoms; (vi) Any measures you use or have used to relieve your pain or other symptoms
... and (vii) Other factors concerning your functional limitations and restrictions due to pain
or other symptoms.”
79). While Plaintiff’s ability to engage in limited work activity and help babysit her
grandchildren, with nothing more, would tend to undermine her allegations, the objective
medical evidence amply supports her testimony that her activities were compromised by
disability level limitation.
Plaintiff requests a remand for either further administrative proceedings or for an
award of benefits. 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). In this case, a remand for benefits prior
to the resolution of the yet-to-be clarified factual issues would be premature. As such, the
case will be remanded for further administrative proceedings consistent with the above
analysis. In addition, the proceedings on remand will be conducted by a different ALJ. See
For these reasons, Defendant’s Motion for Summary Judgment [Docket #14] is
DENIED and Plaintiff’s Motion for Summary Judgment [Docket #12] is GRANTED to
the extent that the case is remanded to the administrative level for further proceedings
consistent with this opinion.
IT IS SO ORDERED.
s/ R. Steven Whalen
R. STEVEN WHALEN
UNITED STATES MAGISTRATE JUDGE
Dated: September 28, 2017
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was sent to parties of record
on September 28, 2017, electronically and/or by U.S. mail.
s/Carolyn M. Ciesla
Case Manager to the
Honorable R. Steven Whalen
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