Nelkin v. Social Security

Filing 18

MEMORANDUM OPINION and ORDER granting Plaintiff's 16 MOTION for Summary Judgment , and denying Defendant's 17 MOTION for Summary Judgment Signed by District Judge Bernard A. Friedman. (CMul)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SANDRA R. NELKIN,
Plaintiff,
vs.

Civil Action No. 17-CV-10049
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 16 and 17]. 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 Social Security disability insurance benefits. An
Administrative Law Judge (“ALJ”) held a hearing in August 2015 (Tr. 289-305) and issued a
decision denying benefits in October 2015 (Tr. 278-85). This became defendant’s final decision in
November 2016 when the Appeals Council denied plaintiff’s request for review (Tr. 1-4).
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).
Plaintiff was 53 years old at the time of the ALJ’s decision (Tr. 294). She has some
college education and work experience as a teacher’s aide (Tr. 302). Plaintiff claims she has been
disabled since November 1, 2012 (Tr. 370) due to bilateral knee arthritis, a pinched nerve in her
lower back, and a degenerative disc disorder (Tr. 295, 370, 391). The ALJ found that between the
alleged disability onset date and the date her insured status expired (June 30, 2013) plaintiff was not
disabled under the act because “there were no medical signs or laboratory findings to substantiate
the existence of a medically determinable impairment” (Tr. 283, 285).
Having reviewed the administrative record and the parties’ briefs, the Court
concludes that the administrative decision in this matter is not supported by substantial evidence
because the ALJ improperly disposed of plaintiff’s application at Step Two of the evaluation
process. As this Court has explained,
[a]t Step Two of the sequential evaluation process, Plaintiff was
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required to show that she suffered from a severe impairment. A
severe impairment or combination of impairments is one that
significantly limits the claimant’s physical or mental ability to
perform basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c).
Basic work activities, defined as the physical or mental abilities and
aptitudes necessary to perform most jobs, includes the ability to walk;
stand; sit; lift; push; pull; reach; carry; handle; see; hear; speak;
understand, carry out, and remember simple instructions; use
judgment; respond appropriately to supervision, coworkers and usual
work situations; and deal with changes in a routine work setting. 20
C.F.R. §§ 404.1521, 416.921. The Sixth Circuit court has determined
that the step-two requirement serves as a “de minimus” threshold
hurdle in the disability process. Higgs v. Bowen, 880 F.2d 860,
862–63 (6th Cir.1988). The inquiry at step two functions as an
“administrative convenience to screen out claims that are totally
groundless” from a medical perspective. Id. at 863 (citation omitted).
An impairment will be considered non-severe only if it is a “slight
abnormality which has such a minimal effect on the individual that
it would not be expected to interfere with the individual’s ability to
work, irrespective of age, education and work experience.” Farris v.
Sec’y of Health & Human Servs., 773 F.2d 85, 90 (6th Cir.1985)
(citation omitted). “Under this standard, the question . . . is whether
there is substantial evidence in the record supporting the ALJ’s
finding that [the plaintiff] has only a ‘slight’ impairment that does not
affect her ability to work.” Id.
Betty v. Comm’r of Soc. Sec., No. 15-CV-10734, 2016 WL 1105008, at *3 (E.D. Mich. Feb. 17,
2016), report and recommendation adopted, No. 15-CV-10734-DT, 2016 WL 1090554 (E.D. Mich.
Mar. 21, 2016).
In the present case, the ALJ clearly erred in finding that “no medical signs or
laboratory findings” support the existence of plaintiff’s knee and back impairments prior to the
expiration of her insured status in June 2013. An MRI of plaintiff’s lumbar spine in December 2011
found significant abnormalities, including degenerative disc disease at L3-L4 and L4-L5; “radial
disc tear and small posterolateral disc herniation towards the right” at L4-L5; moderate central spinal
canal stenosis at L4-L5; and disc protrusion at L4-S1 “likely affecting the L5 nerve roots” (Tr. 457).

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The same month, an EMG and nerve conduction studies showed “evidence of an acute right L3
radiculopathy” (Tr. 447). A physician noted in November 2011 that plaintiff was having “quite a
bit of pain in her knees” and that x-rays showed “rather severe osteoarthritis” (Tr. 443). The
following month, another physician diagnosed “[p]an compartment osteoarthritis, bilateral knees”
and noted that plaintiff had “back pain radiating down her feet” (Tr. 442). Plaintiff received
Lidocaine injections in her knees in late 2011 and early 2012 (Tr. 438-42, 444). Under these
circumstances, the ALJ plainly erred in characterizing plaintiff’s back and knee impairments as
“conditions [that] are not medically determinable” and denying her application “at step II of the
evaluation process” (Tr. 284). It simply cannot be said that plaintiff’s impairments are “slight” and
have only a minimal effect on her ability to work. On remand, the ALJ must proceed past “Step
Two” of the evaluation process.
On remand, the ALJ must also correct another error – namely, his failure to consider
the effect, if any, of plaintiff’s obesity on her other impairments. Plaintiff testified that she is 5'-6"
tall and weighs “close to 300” (Tr. 294), which yields a body-mass index (“BMI”) of 48.4. See
https://www.nhlbi.nih.gov/health/educational/lose_wt/BMI/bmicalc.htm. Under SSR 02-1p, an
adult with a BMI of 30 or above is considered to be obese, and an ALJ must consider a disability
claimant’s obesity at all steps of the sequential process. Further,
[o]besity is a medically determinable impairment that is often
associated with disturbance of the musculoskeletal system, and
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,
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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. At the hearing, the ALJ did not ask plaintiff if or how her weight affects her
other impairments or her ability to work, and in his written decision the ALJ did not mention
plaintiff’s obesity at all. On remand, the ALJ must make specific findings as to the effect, if any,
of plaintiff’s obesity on her other impairments and on her ability to sit, stand, walk, or concentrate.
The ALJ must include any such findings in evaluating plaintiff’s residual functional capacity and,
as appropriate, in framing proper hypothetical question(s) to a vocational expert.
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 correct the errors noted above.
Accordingly,

IT IS ORDERED that defendant’s motion for summary judgment is denied.

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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: June 9, 2017
Detroit, Michigan

S/ Bernard A. Friedman____________
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE

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