Carmack v. Colvin

Filing 19

OPINION and ORDER Granting Plaintiff's 15 MOTION for Summary Judgment, Denying Defendant's 16 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
SOUTHERN DIVISION
SALLY LYNN CARMACK,
Plaintiff,
vs.

Civil Action No. 16-CV-13607
HON. BERNARD A. FRIEDMAN

COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
____________________/
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 15 and 16]. 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 her application for Supplemental Security Income (“SSI”) benefits. An
Administrative Law Judge (“ALJ”) held a hearing in June 2015 (Tr. 26-52) and issued a decision
denying benefits in August 2015 (Tr. 10-21). This became defendant’s final decision in August
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
omitted).
Brooks v. Comm’r of Soc. Sec., 531 F. App’x 636, 640-41 (6th Cir. 2013).
At the time of her February 2015 hearing, plaintiff was 45 years old (Tr. 49). She
has a high school education and no relevant work experience (Tr. 49). Plaintiff claims she has been
disabled since September 2012 due to migraines, depression, dyslexia, and nerve damage in her
back, shoulders, and neck (Tr. 155-56).
The ALJ found that plaintiff’s severe impairments are “dysfunction of a major joint,
spine disorder, disorders of muscle, ligament and fascia, and migraines” and that her affective
disorder is nonsevere (Tr. 15). He found that despite these impairments plaintiff has the residual
functional capacity (“RFC”) to perform “light work as defined in 20 CFR 416.967(b)1 except

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Section 416.967(b) defines light work as follows:
Light work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds.
Even though the weight lifted may be very little, a job is in this
category when it requires a good deal of walking or standing, or
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frequent overhead reaching; never climb ladders and scaffolds; and occasionally crawl” (Tr. 17).
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 certain
unskilled, light-level jobs such as an inspector, packager, and office cleaner (Tr. 50). The ALJ cited
this testimony as evidence that work exists in significant numbers that plaintiff could perform and
concluded that she is not disabled (Tr. 20-21).
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, a number of medications, including Cymbalta, Norco, Vicodin,
Butalbital, Desipramine, Hydrocodone, Sumatriptan, Topamax, Gabapentin (Neurontin),
Methocarbamo (Robaxin), Naproxen, Sumatriptan (Imitrex), Flexeril, Percocet, Maloxicam,
Wellbutrin, Bupropion, Duloxetine, and Topiramate (Tr. 31, 158, 183, 229-30, 232, 234, 237, 330,
338, 357, 442, 458), many of which have known side effects. On her function and disability reports

when it involves sitting most of the time with some pushing and
pulling of arm or leg controls. To be considered capable of
performing a full or wide range of light work, you must have the
ability to do substantially all of these activities.
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plaintiff reported side effects of drowsiness, mood swings, and depression (Tr. 183, 192) and at the
hearing she testified that her medications make her feel drowsy (Tr. 47). Further, two of plaintiff’s
physicians noted she experiences drowsiness and fatigue as medication side effects (Tr. 322, 324),
while another noted that one of plaintiff’s headache medications “helps but decreases function” (Tr.
377).
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 is flawed because the ALJ neglected to make required
findings concerning the effect, if any, of plaintiff’s obesity on her other impairments. The record
contains several notations that plaintiff’s body mass index (“BMI) is over 30 (see, e.g., Tr. 215, 230,
340, 413, 464, 468, 471, 490), which is the point at which defendant’s regulations consider a person
to be obese. See SSR 02-1p. Under this SSR, the ALJ must consider a disability claimant’s obesity
at all steps of the sequential process. See id., Policy Interpretation ¶ 3. Further,
[o]besity is a medically determinable impairment that is often
associated with disturbance of the musculoskeletal system, and
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disturbance of this system can be a major cause of disability in
individuals with obesity. The combined effects of obesity with
musculoskeletal impairments can be greater than the effects of each
of the impairments considered separately. Therefore, when
determining whether an individual with obesity has a listing-level
impairment or combination of impairments, and when assessing a
claim at other steps of the sequential evaluation process, including
when assessing an individual’s residual functional capacity,
adjudicators must consider any additional and cumulative effects of
obesity.
20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.00Q (emphasis added).
In the present case, there is no indication that the ALJ gave any consideration to
plaintiff’s obesity. On remand, the ALJ must make specific findings as to the effect, if any, of
plaintiff’s obesity on her other impairments. In particular, the ALJ must determine whether and to
what extent plaintiff’s obesity exacerbates the pain in her neck, shoulders, and back, and/or
diminishes her ability to sit, stand, walk, or concentrate. The ALJ must include any such findings
in reevaluating plaintiff’s RFC and, as appropriate, in framing revised hypothetical question(s) to
the VE.
Third, 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 her medication side
effects, plaintiff testified that she can sit for at most an hour before needing to change position; that
if she stands longer than 20 minutes she needs something to lean on; that she can lift at most ten
pounds; and that once per month she experiences migraine headaches which incapacitate her for
three to four days at a time (Tr. 35-36, 40, 45-46). If plaintiff’s testimony regarding her limited
ability to sit, stand, and lift is credited, it would appear she lacks the RFC to do light-level work; and
if her testimony regarding her migraines is credited, all work would be precluded, according to the
VE (Tr. 51).
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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
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). Plaintiff
does not have fibromyalgia, but her subjective complaints regarding her headaches/migraines are
“particularly important” for the same reasons.

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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 her “allegations . . . [are]
inconsistent with the objective medical findings . . . [and] not well supported by the objective
medical evidence” (Tr. 19). A 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.” 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.
Fourth, the RFC evaluation in this matter is flawed because the ALJ failed to explain
sufficiently why he disregarded the opinions 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
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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. Kathleen Perkins. In May 2014 Dr. Perkins completed an RFC questionnaire on
which she indicated has she has been plaintiff’s primary care physician since December 2009; that
plaintiff has migraines with the pain radiating from her shoulder and neck to the back of her head;
that the symptoms include nausea/vomiting, malaise, photosensitivity, visual disturbances, inability
to concentrate, and inability to get out of bed; that plaintiff has migraines once or twice per week
and they last for three days; that they are made worse by bright lights, noise, and moving around;
that the headaches are made better by plaintiff lying in the dark, using cold/hot packs, and taking
Imitrex and Topamax; that once or twice per week plaintiff would need to rest for up to three days
before returning to work; that plaintiff can occasionally lift/carry less than ten pounds but never ten
pounds or more; that during an eight-hour work day she can sit for two hours and stand for two
hours, and must lie down for two hours; and that she would likely be absent from work more than
four times per month due to her impairments or treatments (Tr. 319-21).
In April 2015, Dr. Perkins completed another RFC questionnaire in which she
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expressed essentially the same opinions, but added that plaintiff would need a job that allows her
to shift position; that she would need to take unscheduled breaks every 20 minutes; and that she
could use her hands and fingers 25% of the time during an eight-hour workday and could use her
arms for reaching 10-20% of the time (Tr. 324-26).
The ALJ gave Dr. Perkins’ opinion “little weight” because “it appears to rely on the
claimant’s subjective reporting and is not supported by the treatment records . . . or by the claimant’s
reported activities of daily living” (Tr. 19). This explanation does not suffice to overcome the
presumptive deference that a treating physician’s opinion is due. Like fibromyalgia, migraines
(which the ALJ has found to be among plaintiff’s severe impairments, see Tr. 15) by their nature are
an impairment that will be diagnosed largely based on subjective complaints. Further, treatment
records are not lacking, contrary to the ALJ’s suggestion. Plaintiff has received extensive treatment
for the pain in her neck and shoulders, which has been linked to her migraines.2 Nor does the record
support the ALJ’s statement that Dr. Perkins’ restrictions are inconsistent with plaintiff’s reported
daily activities. Plaintiff indicated on her function report that “everything that I do gives me pain”;
that she does some light housework; and that she goes shopping twice per week for two hours (Tr.
176-83). She testified similarly (Tr. 33-44). If the ALJ believes plaintiff’s minimal daily activities
are inconsistent with her claimed inability to work on a full-time basis, he must explain his reasons

2

For example, in March and April 2013, plaintiff saw Dr. Michael Fugle at Dr. Perkins’
request. Dr. Fugle diagnosed a soft tissue mass in plaintiff’s cervical spine and a partial rotator
cuff tear in her shoulder (Tr. 214-15). MRIs of plaintiff’s shoulder and cervical spine in those
months showed various abnormalities (Tr. 216-21). Plaintiff received various injections and
other procedures in 2013-2015 at Neuro Pain Consultants (which diagnosed cervical radiculitis
and cervical spondylosis) for pain in her neck, shoulders, back and hands (Tr. 274-318, 328-400,
531-55). Dr. Rapp of that clinic opined that plaintiff’s “headache pain is coming from the
greater occipital nerve” (Tr. 297, 311).
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for this finding.
The ALJ also disregarded the treating physician rule regarding the opinion expressed
by Dr. Angela Yurk. On an RFC questionnaire dated November 2013, Dr. Yurk indicated this was
her first evaluation of plaintiff but that plaintiff had been seen in her practice since April 2013 (Tr.
322). The practice is the Neuro Pain Consultants, where plaintiff has received extensive treatment.3
Dr. Yurk noted diagnoses of cephalgia and greater occipital neuralgia (Tr. 322). She opined that
during an eight-hour work day plaintiff would need to take unscheduled 30-60 minute breaks every
one to two hours, that her lifting/carrying ability is limited to less than five pounds occasionally; that
plaintiff can use her right hand 10-20% of the time and her right fingers 50% of the time, and that
plaintiff can use her arms for reaching 10-20% of the time (Tr. 322-23). Dr. Yurk also opined that
plaintiff would miss work more than four times per month due to her impairments or treatments (Tr.
323).
The ALJ gave Dr. Yurk’s opinion “no weight” because “it was based on one single
evaluation and there are no accompanying treatment records” (Tr. 19). Dr. Yurk’s opinion is not
so easily disposed of. As the Sixth Circuit noted in Rogers, supra, the length of the treating
relationship is only one factor the ALJ may consider in deciding the weight he will give to a treating
physician’s opinion. Further, the fact that Dr. Yurk’s opinion was not accompanied by treatment
records is irrelevant, given that she is a member of the practice where plaintiff received treatment
for several months, and presumably she was privy to those treatment records (Tr. Tr. 274-318).

3

Dr. Yurk indicated that her address is 7650 Dixie Hwy in Clarkston, Michigan (Tr.
323). This is the address of the Neuro Pain Consultants’ “Dixie Office” (Tr. 291).
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On remand, the ALJ must reassess Dr. Perkins’ and Dr. Yurk’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.
Finally, on remand the ALJ must consider the extent to which, if at all, plaintiff’s
RFC is affected by abnormalities in her lumbar spine. Plaintiff testified that her ability to sit and
stand are limited by back pain (Tr. 34-35). An MRI of plaintiff’s lumbar spine in October 2014
showed various significant abnormalities, including “advanced multilevel degenerative
spondylosis,” “central canal stenosis at L3-L4 and L4-L5,” “displacement of the descending left L3
nerve root,” “severe left neural foraminal stenosis at L3-L4 with suspected impingement of the
exiting left L3 nerve root,” “severe right neural foraminal stenosis at L4-L5 with suspected
impingement of the exiting right L4 nerve root,” and “severe bilateral neural foraminal stenosis at
L5-S1” (Tr. 344). It is not apparent from the ALJ’s decision that he was aware of these findings.
On remand, the ALJ must review this MRI and, as appropriate, revise his RFC evaluation and his
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
above. Accordingly,

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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 28, 2017
Detroit, Michigan

s/Bernard A. Friedman
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE

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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 28, 2017.

s/Teresa McGovern
Case Manager Generalist

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