Reinhardt v. Commissioner of Social Security Administration

Filing 15

OPINION and ORDER granting 13 MOTION to Remand Pursuant to Sentence Four, and denying Defendant's 14 MOTION for Summary Judgment Signed by District Judge Bernard A. Friedman. (CMul)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
STACY REINHARDT,
Plaintiff,
vs.

Civil Action No. 17-CV-10876
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 plaintiff’s motion for remand [docket
entry 13] and defendant’s motion for summary judgment [docket entry 14]. 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 applications for Social Security disability insurance benefits and
Supplemental Security Income (“SSI”) benefits. An Administrative Law Judge (“ALJ”) held a
hearing in December 2015 (Tr. 45-93) and issued a decision denying benefits in January 2016 (Tr.
24-39). This became defendant’s final decision in February 2017 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 December 2015 hearing, plaintiff was 46 years old (Tr. 53). She
has a tenth grade education and relevant work experience as a quality controller for a clothing
manufacturer (Tr. 58-61, 83, 223-24). Plaintiff claims she has been disabled since October 31, 2010,
due to pain in her back and legs, anxiety, IBS, and depression (Tr. 63-65, 68, 78-79, 175, 222).
The ALJ found that plaintiff’s severe impairments are “degenerative disc disease
status post lumbar spine fusion; peripheral neuropathy; and depression” and that her ovarian cyst,
hyperlipidemia, diverticulosis, left knee pain, IBS, and anxiety disorder are non-severe (Tr. 30). The
ALJ found that plaintiff cannot perform her past light-level work but that she has the residual

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functional capacity (“RFC”) to perform a limited range of sedentary work.1 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, sedentary jobs such as
surveillance system monitor, checker/inspector, and packer (Tr. 531).2 The ALJ cited this testimony
to support his conclusions that work exists in significant numbers that plaintiff could perform and
that she is not disabled (Tr. 38).
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

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Specifically, the ALJ found that plaintiff can
perform sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a) in that the claimant can lift up to 10 pounds occasionally.
The claimant must be able to alternate between sitting an standing, in
that the claimant can sit for up to 20 minutes and stand for up to 15
minutes while remaining at the position of her workstation. The
claimant can operate foot controls with the left lower extremity only
occasionally. The claimant can never climb ladders, ropes, or
scaffolds. The claimant can occasionally climb ramps or stairs,
balance, stoop, kneel, crouch and crawl. The claimant would be
limited to jobs that could be performed while using a hand-held
assisted device required only for uneven terrain or prolonged
ambulation, and the contralateral upper extremity can be used to
lift/carry up to the exertional limits. The claimant must avoid all
exposure to excessive vibration, all use of unguarded moving
mechanical parts, and all exposure to unprotected heights. The
claimant is limited to simple routine tasks with only occasional
interaction with the public.

(Tr. 32-33.)
2

This page of the hearing transcript (page 39) is missing from the administrative record
defendant submitted with her answer to the complaint. However, this missing page is attached as
an exhibit to defendant’s motion for summary judgment. See docket entry 14-1, Pg ID 615.
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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 large number of medications, including Soma, Vicodin, Xanax, Norco,
Tramadol, Flexeril, Claritin, Prilosec, Tenormin, Lidocaine, Ultram, Vistaril, Hydrochlorothiazide,
Omeprazole,

Atenolol,

Lisinopril,

Adipex,

Cyclobenzaprine,

Restoril,

Hydrocodone-

Acetaminophen, and Megace (Tr. 67, 225, 251, 277, 298, 303, 325, 446-49, 464, 482, 486), several
of which have known side effects. On her function report plaintiff indicated that she has side effects
of dizziness and drowsiness from Xanax (Tr. 238). Plaintiff’s sister, in a third party function report,
indicated that plaintiff has side effects of sleepiness and dizziness from Norco, Soma, and Xanax
(Tr. 251).
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

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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. 447,
451, 456, 461, 466, 470, 476, 480, 484, 488), which is the point at which defendant’s regulations
consider a person to be obese. See SSR 02-1p. 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
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, despite the fact that one of plaintiff’s treating physicians, Dr. Oesterling,
diagnosed plaintiff with obesity and prescribed medication (Adipex) specifically for this condition
(Tr. 449, 453, 458, 463, 468, 472, 478, 482). 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 back and legs
and affects 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
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the VE.
Third, the RFC assessment in this matter is flawed because the ALJ did not
sufficiently explain his finding that plaintiff can “stand for up to 15 minutes while remaining at the
position of her workstation” (Tr. 32). Plaintiff testified that she “always” uses a cane because “[i]t
keeps the weight off this side” (Tr. 71). The ALJ appears to have found that plaintiff needs to use
a cane for “prolonged ambulation” (Tr. 33), but he made no finding as to whether plaintiff can stand
without a cane for any period of time.3 Even assuming that plaintiff can “stand for up to 15
minutes,” the RFC assessment (and the hypothetical questions to the VE) must clarify whether or
not she needs a cane while doing so. Clearly, plaintiff’s ability to work would be diminished if she
can use only one of her hands while standing, particularly given the ALJ’s finding that plaintiff must
have a sit/stand option because she can sit for only 20 minutes at a time (Tr. 32). On remand, the
ALJ must make specific findings as to how long, if at all, plaintiff can stand unassisted, and he must
incorporate these findings in his RFC assessment and in revised hypothetical question(s) to the VE.
Fourth, the RFC assessment in this matter is flawed because substantial evidence does
not support the ALJ’s finding that plaintiff’s anxiety is a non-severe impairment (Tr. 30). As this

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While several entries in the record mention plaintiff’s need to use a cane, it is not
apparent whether this need applies to both standing and walking. See, e.g., Tr. 250 (plaintiff’s
sister reporting that plaintiff needs a cane “when she takes a little walk and around the house
also”); Tr. 325 (consulting psychologist reporting that plaintiff “is using a cane to help herself
ambulate today”); Tr. 333 (treating counselor noting “[s]he currently uses a cane to assist her
with walking”). Significantly, the ALJ appears to have misinterpreted the findings of the
consulting physician, Dr. Lazzara. Referring to Dr. Lazzara’s report (Ex. 3F, Tr. 316-23), the
ALJ wrote: “The examiner noted that the claimant had neuropathy in her left leg and walked
with a moderate limp on the left without the use of an assistive device” (Tr. 34). But in fact Dr.
Lazarra reported that plaintiff can stand “w/ assist” (Tr. 316) and that “[s]he does compensate
with a moderate left limp and the use of her cane does appear beneficial for pain control as
well as left sided leg fatigue” (Tr. 323) (emphasis added).
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Court has explained,
[a]t Step Two of the sequential evaluation process, Plaintiff was
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©, 416.920©.
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 dismissing plaintiff’s anxiety on the
grounds that “there is no evidence from an acceptable medical source that substantiates the existence
of” this impairment (Tr. 30). Plaintiff has been repeatedly diagnosed with this mental impairment
and she has been prescribed medication specifically for it (Tr. 298, 305, 448, 453, 458, 463, 467,
471, 478, 482, 486, 490). During the relevant time frame, plaintiff also received psychotherapy for
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anxiety, and other symptoms, at Bay-Arenac Behavioral Health (Tr. 333, 336, 346, 354). In the face
of this evidence, the ALJ plainly erred in characterizing plaintiff’s anxiety as non-severe or not
medically determined. On remand, the ALJ must make findings as to the nature and extent of this
impairment and, as appropriate, adjust his RFC assessment of plaintiff 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,

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

IT IS FURTHER ORDERED that plaintiff’s motion for remand is granted and this
matter is remanded for further proceedings to address the errors identified in this opinion. This is
a sentence four remand under § 405(g).

Dated: September 20, 2017
Detroit, Michigan

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

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