Hall Pickett v. Commissioner of Social Security

Filing 16

OPINION and ORDER granting Plaintiff's 13 MOTION for Summary Judgment and granting Defendant's 15 MOTION for Remand. Signed by District Judge Bernard A. Friedman. (JCur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
COURTNEY ELIZABETH
HALL PICKETT,
Plaintiff,
vs.

Civil Action No. 17-CV-13145
HON. BERNARD A. FRIEDMAN

COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
______________________/
OPINION AND ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR REMAND
This matter is presently before the Court on plaintiff’s motion for summary judgment
and defendant’s motion for remand [docket entries 13 and 15]. 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 both motions and remand the case for further proceedings.
Plaintiff has brought this action under 42 U.S.C. § 405(g) to challenge defendant’s
decision denying her application for Social Security disability insurance benefits.

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Administrative Law Judge (“ALJ”) held a hearing in July 2016 (Tr. 34-65) and issued a decision
denying benefits in September 2016 (Tr. 17-28). This became defendant’s final decision in July
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 the ALJ’s decision, plaintiff was 55 years old (Tr. 41). She has a high
school education, “some college,” and work experience as a preschool teacher (Tr. 41, 318).
Plaintiff claims she has been disabled since January 2013 due to bipolar disorder, PTSD, personality
disorder, high blood pressure, and carpal tunnel syndrome (Tr. 282, 317).
The ALJ found that plaintiff’s severe impairments are “left carpal tunnel syndrome,
schizoaffective disorder, post-traumatic stress disorder (PTSD), and history of substance and alcohol
dependence” and that her hypertension and diabetes are non-severe (Tr. 22). The ALJ found that
plaintiff cannot perform her past work (Tr. 27), but that she has the residual functional capacity
(“RFC”)
to perform a full range of work at all exertional levels but with the
following nonexertional limitations: the claimant could perform
frequent fingering with the left upper extremity. The claimant would
be limited to simple, routine, and repetitive tasks performed in a work
environment free of fast-paced production involving only simple
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work related changes with only simple work related decisions with
few, if any, workplace changes. She would be limited to no
interaction with the general public and occasional interaction with
coworkers.
(Tr. 24). 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 medium-level jobs such as cleaner, hand packager, or “picker packer” (Tr. 60-61). 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. 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 (1)
the decision does not explain how the ALJ arrived at the conclusion that plaintiff’s condition has
improved since her last application, which was denied on the grounds that she has the RFC to do
light work; and (2) his RFC assessment of plaintiff is flawed, and this flawed RFC assessment was
incorporated into the hypothetical question put to the VE.
Regarding the first issue, ALJ Holiday found in December 2012 that plaintiff was not
disabled because she had the RFC to do light work with limitations on the use of her left arm and
hand, i.e., occasional overhead reaching and handling and frequent fine manipulation.1 In the instant

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Specifically, ALJ Holiday found that plaintiff could
perform light work as defined in 20 CFR 404.1567(b) except she can
only occasionally perform overhead reaching and handling with the
left upper extremity. The claimant can only frequently perform fine
manipulation with the left upper extremity. The claimant must avoid
even moderate exposure to hazards like dangerous machinery and
unprotected heights. The claimant’s work must be limited to simple,
routine tasks. The claimant requires a low-stress job (defined as
requiring no more than occasional decision-making with no more
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action, ALJ Rabaut found in September 2016 that plaintiff has the RFC for a “full range of work at
all exertional levels” with the only limitation on the use of her left arm and hand being that she
“could perform frequent fingering” (Tr. 24). That is, ALJ Holiday found in 2012 that plaintiff was
limited to “lifting no more than 20 pounds at a time with frequent lifting or carrying of objects
weighing up to 10 pounds,” 20 C.F.R. § 404.1567(b) (defining light work), and that she could only
occasionally reach her left arm overhead, while ALJ Rabaut found in 2016 that plaintiff can work
“at all exertional levels” with no restriction on overhead reaching but with the same limitation on
manipulating/fingering in her left hand. “All exertional levels” would include even very heavy
work, which “involves lifting objects weighing more than 100 pounds at a time with frequent lifting
or carrying of objects weighing 50 pounds or more.” 20 C.F.R. § 404.1567(e) (defining very heavy
work). Medium work “involves lifting no more than 50 pounds at a time with frequent lifting or
carrying of objects weighing up to 25 pounds.” 20 C.F.R. § 404.1567(c).
ALJ Rabaut acknowledged that under Drummond v. Comm’r of Soc. Sec., 126 F.3d
837 (6th Cir. 1997), “[t]he prior finding concerning the claimant’s residual functional capacity is
binding absent evidence of an improvement or change in condition since the prior hearing” (Tr. 20).2

than occasional changes in the work setting). The claimant should
have no more than brief, superficial interaction with the public and
with co-workers.
(Tr. 73-74).
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In Drummond, defendant denied plaintiff’s first application for disability insurance
benefits on the grounds that she had the RFC for sedentary work. See 126 F.3d at 838.
Defendant denied plaintiff’s subsequent application on the grounds that she had the RFC for
medium-level work. Id. at 839. The court of appeals held that principles of administrative res
judicata apply to Social Security disability decisions and remanded for an award of benefits
because defendant had not met its burden of proving that plaintiff’s “condition improved
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Despite this acknowledgment, ALJ Rabaut offered no explanation as to how he arrived at his finding
“that the evidence of record shows that there has been a change in the claimant’s condition since the
prior decision” (Tr. 20). Moreover, to the extent “there has been a change in the claimant’s
condition,” the change appears to have been for the worse, not the better. Since ALJ Holiday’s
decision, plaintiff has been diagnosed with bilateral carpal tunnel syndrome (“CTS”), which ALJ
Rabaut included among plaintiff’s severe impairments (Tr. 22). Plaintiff wears a brace on her left
wrist (Tr. 393, 428), her grip strength in her left hand is reduced (Tr. 432), and her primary care
physician has referred her to a “hand surgeon for further evaluation and treatment” (Tr. 729).
Additionally, plaintiff testified that her “hands swell up, they get numb” (Tr. 45), testimony the ALJ
did not address. ALJ Rabaut does not explain how a person with bilateral CTS – much less a 55year old, 155-pound woman (Tr. 750) who has this impairment – could be expected to lift the weight
required by work at “all exertional levels” (Tr. 24) or at the medium level (Tr. 28). Nor, as required
by Drummond and as defendant concedes in her motion for remand, does he explain how, despite
this severe impairment that has arisen since ALJ Holiday limited plaintiff to light work, he
concluded that plaintiff’s condition has improved, such that she is now able to do heavier work than
before. It is not enough for the ALJ to simply state Drummond’s requirement. On remand, the ALJ
must apply it to the facts of this case and, if he again finds that plaintiff’s condition has improved,
articulate a reasoned, record-based explanation for this conclusion.
Even if ALJ Rabaut were not bound by ALJ Holiday’s earlier decision, ALJ Rabaut’s
RFC assessment lacks substantial evidence support for other reasons as well. First, he failed to
consider the side effects of plaintiff’s medications. The record shows that plaintiff takes, or at

significantly between the two hearing dates.” Id. at 843.
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various times has taken, a large number of medications, including Amlodopine, Atenolol,
Hydrocodone, Methacarbamol, Prozac, Risperidone, Norvasc, Vicodin, Robaxin, Resperdal,
Tenorectic, Seroquel, Desyrel, Hydrochlorothiazide, Zyprexa, Abilify, and Zocor (Tr. 319, 340, 393,
404, 430, 436, 439, 585, 686, 725), several of which have known side effects. Indeed, plaintiff
indicated on her function report that several of her medications make her sleepy and unable to
concentrate (Tr. 340) and that she spends much of the day sleeping (Tr. 334).
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; and, as appropriate, revise his RFC assessment and his hypothetical
question(s) to the VE.
Second, the RFC assessment in this matter is flawed because the ALJ seems to have
entirely overlooked two mental impairments that appear repeatedly in the medical records. The ALJ
found that plaintiff has “schizoaffective disorder” and PTSD, but he made no mention of the fact that
plaintiff has also been diagnosed with borderline personality disorder and bipolar disorder (e.g., Tr.
396, 409, 416, 440, 546, 583, 591, 599, 612-13, 668, 676, 691, 699, 705, 714). On remand, the ALJ
must evaluate these impairments, determine whether they are severe or non-severe, and, as

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appropriate, revise his RFC assessment and his hypothetical question(s) to the VE.
Third, the RFC assessment in this matter is flawed because it minimizes the severity
of plaintiff’s mental impairments to an extent not supported by the record. The ALJ found that
plaintiff has a “mild restriction” in her activities of daily living and “moderate difficulties” in social
functioning. These findings have little, if any, record support. Plaintiff testified that she does not
socialize with others, that she sits in her house all day, that she does not watch TV or listen to the
radio, that she does not cook or do household chores, that she does not drive, and that she has no
hobbies (Tr. 48-50). On her function report, plaintiff indicated that she “sleeps constantly”; that she
fears people and crowds; that she used to, but no longer can, cook, do laundry, use a computer, ride
a bike, or socialize; that she does not shop and finds paying bills and dealing with money
“overwhelming”; and that the only place she goes regularly is the doctor’s office (Tr. 333-39). The
ALJ made no mention of this evidence. Nor did he make any finding that he doubted plaintiff’s
credibility. On remand, the ALJ must reevaluate all of the evidence concerning plaintiff’s social
functioning and activities of daily living3 and reconsider whether the severity of her mental
impairment meets any of the applicable listings. If no listings are met, the ALJ must reevaluate his
RFC assessment in light of the entire record, including plaintiff’s testimony, and, as appropriate, put
revised hypothetical question(s) to the VE.
In the same vein, the ALJ must reevaluate the significance of plaintiff’s low Global

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The ALJ neglected to note that counseling records in October 2014 indicated that
plaintiff needed a “verbal prompt” to engage in various activities of daily living, including
eating, dressing, toileting, bathing, grooming, and taking medicine (Tr. 570). Nor did he note
that the same records indicate under the “community involvement” category that plaintiff
engages in no activities such as going to the bank, restaurants, stores, movies, or the post office
(Tr. 576). On remand, the ALJ must review the entire record in assessing plaintiff’s mental
functioning.
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Assessment of Functioning (“GAF”) scores. Noting three such scores in October 2013 (GAF 45),
November 2014 (GAF 40), and August 2015 (GAF 20-45) (Tr. 26, citing Tr. 397, 558, and 437,
respectively), the ALJ gave “little weight” to these scores because they provide “a snapshot of the
claimant’s level of functioning” but not “a reliable longitudinal picture of the claimant’s mental
functioning” (Tr. 26). The ALJ appears to have overlooked the fact that in addition to the three GAF
scores he cited, the record contains at least thirteen others which presumably do provide a
“longitudinal picture” over this 22-month period (Tr. 410, 546, 558, 600, 613, 619, 662, 669, 676,
683, 691, 699, 714). Most of plaintiff’s scores were 40. A GAF score of 50 or below indicates
“serious impairment in functioning.” Norris v. Comm’r of Soc. Sec., 461 F. App’x 433, 436 (6th Cir.
2012). On remand, the ALJ must review all of plaintiff’s GAF scores and decide whether they
warrant any adjustment in his RFC assessment.
For these reasons, the Court concludes that the 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 defendant may address the deficiencies noted above. Accordingly,

IT IS ORDERED that defendant’s motion for remand is granted.

IT IS FURTHER ORDERED that plaintiff’s motion for summary judgment is granted
and this matter is remanded for further proceedings to address the issues outlined in this opinion.

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This is a sentence four remand under § 405(g).

Dated: March 16, 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 March 16, 2018.
s/Johnetta M. Curry-Williams
Case Manager

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