Lee v. Social Security

Filing 20

OPINION and ORDER Granting Plaintiff's 16 Motion for Summary Judgment, Denying Defendant's 19 Motion for Summary Judgment, and Remanding for Further Proceedings. Signed by District Judge Bernard A. Friedman. (JCur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CURTIS CHARLES LEE,
Plaintiff,
vs.

Civil Action No. 17-CV-12287
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 19]. 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 his applications for Social Security disability insurance benefits and
Supplemental Security Income benefits. An Administrative Law Judge (“ALJ”) held a hearing in
October 2016 (Tr. 37-68) and issued a decision denying benefits in March 2017 (Tr. 16-29). This
became defendant’s final decision in June 2017 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).
At the time of the ALJ’s decision, plaintiff was 45 years old. He has a high school
education and relevant work experience as a warehouse worker and forklift operator (Tr. 64, 196,
241). Plaintiff claims he has been disabled since April 2014 due to back pain, nerve damage,
anxiety, flashbacks, and PTSD (Tr. 195). At the hearing, plaintiff also indicated he also has
“constant headaches” (Tr. 47).
The ALJ found that plaintiff’s severe impairments are “major depressive disorder and
posttraumatic stress disorder” and that his back pain (“lumbar spine anterior spurring and
intervertebral osteochondrosis”) is non-severe (Tr. 21). The ALJ found that plaintiff cannot perform
his past work, but that he has the residual functional capacity (“RFC”) to perform a limited range

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of unskilled 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 jobs such as scrap sorter, folder, and inspector (Tr. 65). The ALJ cited this
testimony to support his conclusion that work exists in significant numbers that plaintiff could
perform (Tr. 28).
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.
The ALJ’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

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Specifically, the ALJ found that plaintiff can
perform a full range of work at all exertional levels but with the
following nonexertional limitations: the claimant cannot do work that
requires exposure to hazards including work at unprotected heights
or around dangerous moving machinery. The claimant cannot climb
ladders, ropes, or scaffolds. He cannot drive in the course of his
employment. The claimant has an ability for but is restricted to
unskilled work, defined as the ability to perform simple, routine,
repetitive work that needs little or no judgment to do simple duties
that may be learned on the job in a short period of time. The claimant
cannot work with the general public. He can have no more than
occasional contact with coworkers or supervisors. The claimant
cannot do work that is fast paced, where the pace is set by others
(such as assembly line or conveyor belt work).

(Tr. 24).
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at various times has taken, a large number of medications, including Invega, Lisinopril, Metoprolol,
Neurontin, Tramadol, Vicodin, Lamictal, Paxil, Norco, Flexeril (cyclobenzaprine), Flomax,
Gabapentin, Xanax, Diazepam, Etodolac, Naproxen, and Lamotrigine (Tr. 198, 237, 337-38, 379,
412, 442, 445, 510-11, 518), several of which have known side effects. On his function report and
at the hearing plaintiff indicated that he experiences drowsiness as a medication side effect (Tr. 56,
210).
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 his other impairments. The record
contains several notations that plaintiff’s body mass index (“BMI”) is over 30 (see, e.g., Tr. 255,
260, 332, 359, 430), 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,

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[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, or that he was even aware of plaintiff’s obesity. On remand, the ALJ must make
specific findings as to the effect, if any, of plaintiff’s obesity on his other impairments. In particular,
the ALJ must determine whether and to what extent plaintiff’s obesity exacerbates his back pain and
affects his 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 assessment in this matter is flawed because substantial evidence does
not support the ALJ’s finding that plaintiff’s back pain is a non-severe impairment (Tr. 21-23). As
this 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(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
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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 back pain as nonsevere. Plaintiff testified that he wears a back brace; that his back pain is at eight or nine on a tenpoint scale; that his back pain significantly limits his ability to sit, stand, walk, and lift; and that he
lies down five times per day for 30-60 minutes each time to relieve his back pain (Tr. 50-55). The
ALJ did not evaluate this testimony. In addition, objective evidence establishes abnormalities in
plaintiff’s lumbar spine. In November 2015, Dr. Jagadeesh noted that “[l]umbar xray showed
Moderate degen[er]ative disorder at L5-S1 level” (Tr. 573) and xrays of plaintiff’s lumbar spine in
April 2016 showed “anterior spurring” and “intervertebral osteochonddrosis at L5-S1” (Tr. 421).
Plaintiff has repeatedly been diagnosed with lumbago and lumbar spondylosis (Tr. 340, 378, 384,
398, 573), and he has been prescribed physical therapy (Tr. 345-53), a back brace (Tr. 378, 384, 413,

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517, 537, 544), a TENS unit (Tr. 537, 541, 544), and various pain medications. Additionally, the
Court notes that the Disability Determination Service found that plaintiff has a severe spine disorder
(Tr. 74, 88). Under these circumstances, the ALJ’s finding that plaintiff’s back pain is a non-severe
impairment is not supported by substantial evidence. On remand, the ALJ must proceed beyond
Step Two of the sequential evaluation process, make findings as to the nature and severity of
plaintiff’s back 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

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matter is remanded for further proceedings to address the errors identified in this opinion. This is
a sentence four remand under § 405(g).

Dated: February 7, 2018
Detroit, Michigan

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

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 February 7, 2018.
s/Johnetta M. Curry-Williams
Case Manager

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