Hamilton III v. SSA

Filing 17

OPINION and ORDER denying Defendant's 14 MOTION for Summary Judgment , and granting Plaintiff's 15 MOTION FOR SUMMARY JUDGMENT Signed by District Judge Bernard A. Friedman. (CMul)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LINCOLN HAMILTON III,
Plaintiff,
vs.

Civil Action No. 17-CV-11041
HON. BERNARD A. FRIEDMAN

COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
_______________________/
OPINION AND ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This matter is presently before the Court on cross motions for summary judgment
[docket entries 14 and 15]. Pursuant to E.D. Mich. 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 matter for further proceedings.
Plaintiff has brought this action under 42 U.S.C. § 405(g) to challenge defendant’s
final decision denying his applications for Supplemental Security Income and Social Security
disability insurance benefits. An Administrative Law Judge (“ALJ”) held a hearing in March 2015
(Tr. 39-78) and issued a decision denying benefits the same month (Tr. 22-33). In June 2016, this
became defendant’s final decision when the Appeals Council denied plaintiff’s request for review
(Tr. 8-11).
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 the ALJ’s decision, plaintiff was 48 years old (Tr. 48). He has a
college education (Tr. 48) but no relevant work experience (Tr. 73, 215). Plaintiff claims he has
been disabled since July 2013 due to a seizure disorder, back pain, and anxiety attacks (Tr. 46, 208).
The ALJ found that plaintiff has no severe impairments (Tr. 28, finding 4).
Specifically, the ALJ found that plaintiff’s lumbar spine disorder, while medically determined, is
non-severe (Tr. 31) and that his seizure disorder and panic attacks are not medically determined (Tr.
29). The ALJ therefore concluded at step two of the sequential evaluation process that plaintiff is
not disabled.
Having reviewed the administrative record and the parties’ briefs, the Court
concludes that substantial evidence does not support the ALJ’s finding that plaintiff has no severe
impairments.

For the reasons stated below, the Court shall remand the matter for further

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proceedings beyond step two.
First, substantial evidence does not support the ALJ’s finding that plaintiff’s lumbar
spine disorder is a non-severe impairment (Tr. 28). As this Court has explained,
[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 dismissing plaintiff’s lumbar spine
disorder on the grounds that it “does not significantly limit (have more than a minimal effect on) his
ability to perform basic work activities” (Tr. 31). In October 2014, an MRI of plaintiff’s lumbar
spine revealed
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1. Right paracentral disc protrusion at L5-S1 which abuts the right S1
nerve root without evidence of compression.
2. Disc bulge with a superimposed left paracentral disc protrusion at
L4-L5, as well as, mild bilateral facet arthropathy contributing to
mild bilateral neural foraminal narrowing.
(Tr. 383.) One of plaintiff’s treating physicians, Dr. Bhattacharya, M.D., has diagnosed lumbar
degenerative disease and noted symptoms of incontinence and left leg weakness and numbness (Tr.
321, 325). Another of plaintiff’s treating physicians, Dr. Teklehaimanot, D.O., indicates that
plaintiff has “chronic lower back pain,” that “[p]rolonged standing, sitting, lifting, bending and
walking make his pain worse,” and that one of plaintiff’s conditions is “disc herniation” (Tr. 394).
In light of this evidence, it simply cannot be said that plaintiff’s back condition is “totally groundless
from a medical perspective” or that it is a “slight abnormality” with no more than a de minimus
effect on his ability to function. Betty, supra. The ALJ plainly erred in characterizing plaintiff’s
lumbar spine disorder as non-severe.
Nor does substantial evidence support the ALJ’s finding that plaintiff’s seizure
disorder is a “nonmedically [sic] determinable impairment” (Tr. 30). Under defendant’s regulations,
an impairment is “medically determinable” if is it “established by objective medical evidence from
an acceptable medical source.” 20 C.F.R. § 404.1521. The Sixth Circuit has held that a physician’s
diagnosis and treatment of an impairment suffice to establish the impairment’s existence. See Jones
v. Comm’r of Soc. Sec., 336 F.3d 469, 475-76 (6th Cir. 2003).
The medical evidence in this matter plainly demonstrates the existence of plaintiff’s
seizure disorder. In July 2013, plaintiff sought emergency room treatment and he was diagnosed
by a physician with “[a]bsence seizures” (Tr. 313). Dr. Bhattacharya, a neurologist, has diagnosed
“complex partial epilepsy,” prescribed anti-seizure medication, and evaluated plaintiff on several

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occasions (Tr. 321, 325, 329, 335, 349). Another physician, Dr. Hazimeh, indicates that plaintiff
“is unable to drive due to the Seizure activity, pt has not been seizure free for 6 month[s]” (Tr. 389).
Dr. Teklehaimanot indicates that plaintiff’s seizures are “not well controlled” (Tr. 396). Clearly,
plaintiff has a “medically determinable” – and, indeed, medically determined – seizure disorder.
The ALJ’s contrary finding is unsupportable.
On remand, the ALJ must proceed beyond step two of the sequential evaluation
process because plaintiff’s lumbar spine and seizure disorders are severe impairments. The ALJ
must also consider the side effects of plaintiff’s medications, an issue he neglected to address
previously. The record indicates that plaintiff takes, or at various times has taken, Dilantin
(Phenytoin Sodium), Baclofen, Keppra, Naproxen, Lisinopril, Norco (Hydrococone), Ibuprofen 600,
and Naprosyn (Tr. 210, 224, 234, 260, 264, 269, 271, 289, 293, 296, 299, 315, 328, 359, 361).
Plaintiff testified that his medications blur his vision and “put[] me to sleep” (Tr. 63-64). On his
function and disability reports, plaintiff indicated that his medications make him feel sleepy and
drowsy and cause vomiting and constipation (Tr. 234, 251, 260).
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

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medications’ side effects, if any; and include these findings in his assessment of plaintiff’s residual
functional capacity and in his hypothetical question(s) to the 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 address the deficiencies noted
above. Accordingly,

IT IS ORDERED that plaintiff’s motion for summary judgment 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).

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

Dated: November 30, 2017
Detroit, Michigan

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

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