Clark v. Social Security

Filing 16

OPINION and ORDER Denying Defendant's 15 Motion for Summary Judgment, Granting Plaintiff's 16 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
APRIL ELIZABETH CLARK,
Plaintiff,
vs.

Civil Action No. 17-CV-13408
HON. BERNARD A. FRIEDMAN

COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
_________________________/
OPINION AND ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT, GRANTING PLAINTIFF’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 11 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 deny defendant’s motion,
grant plaintiff’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
decision denying her applications for Social Security disability insurance and Supplemental Security
Income benefits. An Administrative Law Judge (“ALJ”) held a hearing in April 2016 (Tr. 39-57)
and issued a decision denying benefits in July 2016 (Tr. 20-34). This became defendant’s final
decision in September 2017 when the Appeals Council denied plaintiff’s request for review (Tr. 14).
Under § 405(g), the issue before the Court is whether defendant’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 42 years old. She has a high school
education and experience as an assembly line worker (Tr. 42, 154). Plaintiff claims she has been
disabled since June 2013 due to back pain, carpal tunnel in both wrists, arthritis in her spine and
hands, diabetes, high cholesterol, sleep apnea, depression, panic attacks, and chronic pain (Tr. 163,
171). The ALJ found that plaintiff’s severe impairments are “degenerative disc disease, obesity,
bilateral carpal tunnel syndrome, depression, and panic disorder” (Tr. 25) and that her non-severe
impairments are diabetes, high cholesterol, sleep apnea, and right shoulder issues (Tr. 26). He found
that plaintiff cannot perform her past work but that she has the residual functional capacity (“RFC”)
to perform a limited range of light work.1 A vocational expert (“VE”) testified in response to a

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Specifically, the ALJ found that plaintiff can
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hypothetical question that a person of plaintiff’s age, education, and work experience, and who has
this RFC, could perform certain unskilled sorting, packaging, and “product processing and product
finishing” jobs (Tr. 54). The ALJ cited this testimony to support his conclusion that plaintiff is not
disabled because work exists in significant numbers that she could perform (Tr. 33).
Having reviewed the administrative record and the parties’ briefs, the Court
concludes that defendant’s decision is not supported by substantial evidence because the ALJ’s RFC
evaluation of plaintiff is flawed. Since the hypothetical question incorporated a 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 that plaintiff is capable of performing.
The ALJ’s RFC evaluation is flawed for the following reasons. First, the ALJ failed
to fully consider the side effects of plaintiff’s medications. The record indicates that plaintiff takes,
or at various times has taken, many medications, including Alprazolam (Xanax), Aprine, Metformin,
Norco, Meloxicam, Hydrocodone, Meloxicam, Lamotrigine, Duloxetine, Citalopram, Lisinopril,
Piroxicam, Neurontin, Cymbalta, Lamictal, Ativan, Methylprednisone, Duler, Gabapentin, ProAir,
Symbicort, Omeprazole, and Lamisil (Tr. 166, 182, 212-20, 241, 261, 316-17, 346, 378, 433),

perform light work as defined in 20 CFR 404.1567(b) and 416.967(b)
with the following additional limitations: occasional postural
activities, but no ladders, ropes, or scaffolds; capable of
understanding, remembering and executing work that is unskilled
with an SVP of 1 or 2; no vibratory tools; only frequent handling,
fingering, and grasping on the right; and accommodations for a
sit/stand option, but that by exercising that option work [sic] be off
task less than 10% of the day.
(Tr. 27).
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several of which have known side effects. On her function report, plaintiff indicated that some of
her medications make her feel tired, dizzy, and sleepy (Tr. 173, 180-82). Elsewhere, plaintiff
indicated that some of her medications make her feel foggy, tired, forgetful, and sleepy (Tr. 214-16).
Plaintiff testified that her medications make her feel fatigued, confused, and dizzy (Tr. 51).
The ALJ’s only discussion of this issue was to dismiss plaintiff’s testimony on the
grounds that “in January 2016 the claimant was described as not experiencing lightheadedness or
dizziness (Exhibit 3F, page 4)” (Tr. 29). This statement does not sufficiently address the issue of
plaintiff’s medication side effects. Plaintiff does not claim to experience lightheadedness. She does
claim to experience dizziness. While at the page cited by the ALJ the doctor answered “No” to the
question of whether “the patient has been experiencing dizziness and/or lightheadedness” (Tr. 319),
on the same form he listed “[d]izziness and giddiness” among plaintiff’s confirmed problems (Tr.
316), as he did on at least ten other occasions (Tr. 322, 328, 333, 341, 345, 349, 354, 359, 363, 366).
Further, he answered “Yes” to the question about whether “the patient has been experiencing
dizziness and/or lightheadedness” two weeks and four weeks before giving the “No” answer (Tr.
324, 330).
On this record, it was unreasonable for the ALJ to conclude that plaintiff does not
experience dizziness. Further, the ALJ made no findings about the other side effects plaintiff claims
to experience, i.e., fatigue, confusion, forgetfulness and sleepiness. 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

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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 revise his RFC assessment and his hypothetical question(s) to the VE, as appropriate.
Second, the RFC assessment in this matter is flawed because substantial evidence
does not support the ALJ’s finding that despite her bilateral CTS plaintiff can perform light work
(which under 20 C.F.R. § 404.1567(b) requires lifting ten pounds frequently and up to twenty
pounds occasionally) with the only hand-related limitations being “no vibratory tools” and “only
frequent handling, fingering, and grasping on the right” (Tr. 27). Plaintiff testified that her “fingers
go numb,” that she “drop[s] a lot of thing,” that she is “not able to hold on,” that “[i]t’s painful when
my hand goes numb,” that she would need both hands to lift a gallon of milk, that medication does
not help with her hand/finger/wrist pain, and that she wears baggy clothing because she cannot
manipulate bottons, snaps or zippers (Tr. 48-49). Plaintiff wrote on her disability report that her
“fingers go numb and hurt [and] I constantly drop things because of the numbness” (Tr. 170). On
her function report plaintiff indicated that she has “numbness and pain in both hands and [wears]
a wrist/hand brace. I constantly drop things. I cannot hold things or my fingers go numb” (Tr. 173).
During her psychological examination in October 2014, it was noted that plaintiff wore braces on
both wrists (Tr. 312).
The only medical opinion in this record that commented specifically about the
functional impact of plaintiff’s CTS is from Dr. Jurado, who examined plaintiff at defendant’s
request in May 2016 and who noted “[s]ensory perception . . . both hands absent, . . . right hand
absent, left decreased” (Tr. 435). Dr. Jurado opined that plaintiff could occasionally (one-third of

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the time) lift and carry up to ten pounds and “never” more than ten pounds; and that she could
“never” use her hands for reaching overhead and only occasionally for handling, fingering, feeling,
and pushing/pulling (Tr. 437, 439).
The ALJ rejected plaintiff’s testimony about her hand complaints, as well as Dr.
Jurado’s hand-related restrictions, but his reasons for doing so lack substantial support in the record.
The ALJ found that plaintiff’s hand injections have “been effective,” but the only evidence he cited
for this is Dr. Hall’s statement on March 7, 2016, that “[s]he reports her right hand is much
improved after the Celestone injection” (Tr. 428). That injection was administered on February 15,
2016 (Tr. 404). The ALJ made no findings as to the extent or duration of this relief. The mere fact
that the injection provided relief after three weeks is not evidence a reasonable mind would accept
as adequate to warrant the dismissal of plaintiff’s subjective complaints of pain and numbness in her
hands, fingers, and wrists.
The ALJ also pointed to two entries in plaintiff’s medical records stating that “pain
is controlled with current medication regimen” and “[p]atient is well controlled on medications” (Tr.
28, referring to Tr. 368 and Tr. 417). However, these records do not refer specifically to plaintiff’s
CTS and they do nothing to contradict plaintiff’s claims of numbness and weakness, even assuming
her CTS pain is controlled with “five norcos a day 10-325” (Tr. 417).
The ALJ also wrote that, although plaintiff “testified that she drops things due to hand
pain2 and falls due to her back impairment,” the medical records “suggest the opposite” because a
particular record from January 2016 stated “no falls in the past year” (Tr. 29, citing Tr. 319).

2

Here the ALJ mischaracterized plaintiff’s testimony. Plaintiff indicated that she drops
things because of numbness, not pain (Tr. 48-49, 170, 173).
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Obviously, an absence of falling does not show an absence of CTS symptoms.
The ALJ gave Dr. Jurado’s opinion “little weight” on the grounds that “he relied on
subjective complaints inconsistent with other medical evidence” and that his “report is internally
inconsistent” (Tr. 30). Regardless of the reasonableness of this assessment,3 the ALJ offered no
reason for rejecting Dr. Jurado’s findings and limitations concerning plaintiff’s CTS. Dr. Jurado
found plaintiff’s sensory perception in both hands to be decreased or absent, and he noted that
“Tinel’s and Phalen’s are positive bilaterally” (Tr. 434-35). He also measured what appears to be
severely reduced grip strength in both of plaintiff’s hands (5.3 pounds on the right, 6.1 pounds on
the left) (Tr. 434, 447). As noted above, Dr. Jurado opined that plaintiff is limited both as to the
weight she can lift and carry and as to the percentage of time she can use her hands for reaching,
handling, fingering, feeling, and pushing/pulling, to an extent that is incompatible with the ALJ’s
RFC assessment. The ALJ has not adequately explained why he declined to abide by these
restrictions.

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It is unclear why the ALJ thought Dr. Jurado’s opinion deserved “little weight” on the
grounds that “he relied on subjective complaints inconsistent with other medical evidence.” The
ALJ’s explanation is that “the claimant reported problems with balancing, falling, and dizziness
to Dr. Jurado. As detailed above, this is inconsistent with her medical records” (Tr. 30). The
ALJ did not explain the inconsistency. Nor is it apparent that Dr. Jurado “relied” on plaintiff’s
subjective complaints regarding balance, falling, and dizziness, as he simply recorded that
plaintiff made these complaints (Tr. 433).
The ALJ also discounted Dr. Jurado’s opinion on the grounds of internal inconsistency.
The ALJ’s explanation is that Dr. Jurado found plaintiff’s “limitations [to be] mild to moderate”
regarding her functional ability to work, while finding greater limitations on two pages of the
check-box section attached to the narrative report (Tr. 30, comparing Tr. 435 with Tr. 439-40).
This alleged inconsistency is imaginary. The statement regarding “mild to moderate” limitations
related to plaintiff’s ability to walk, as the context for this sentence concerned plaintiff’s
“ambulation without a cane” and her antalgic gait, while the two allegedly inconsistent checkbox pages related to plaintiff’s ability to use her hands, her feet for operation of foot controls, her
postural activities (e.g., climbing and crawling), and her hearing and vision.
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On remand, the ALJ must reevaluate all of the evidence concerning plaintiff’s CTS
and, as appropriate, revise his RFC assessment and his hypothetical question(s) to the VE. If the
ALJ again finds that plaintiff, despite her bilateral CTS, needs no further restrictions than light work,
“no vibratory tools,” and “only frequent handling, fingering, and grasping on the right,” he must
clearly articulate his reasons and support these restrictions with record citations.
Third, and for similar reasons, the RFC assessment in this matter is flawed because
substantial evidence does not support the ALJ’s finding that plaintiff can perform light-level work
on a full-time basis despite her back impairment. As the ALJ found, plaintiff has degenerative disc
disease (Tr. 25). An MRI in June 2015 showed
[m]ost significant changes . . . at L5-S1. There is degenerative disc
disease with loss of disc height present. Posteriorily there is a disc
osteophyte complex that causes moderate to severe foraminal
narrowing bilaterally. The disc does extrude into the right
subarticular region with subarticular canal stenosis and compression
upon the right S1 nerve root.
(Tr. 425). Plaintiff has been prescribed a TENS unit and a back brace (Tr. 358), and she has had
physical therapy and epidural injections (Tr. 320, 326, 332, 339). Plaintiff testified that her back
pain is constant, and that to relieve the pain she must lie down “at least three times a day” for 20-30
minutes each time (Tr. 47-48). Dr. Jurado noted decreased sensory perception in plaintiff’s right
foot, absent sensory perception in plaintiff’s left foot, and limited range of motion in her lumbar
spine (with straight leg raising of 45 degrees on the right and 20 degrees on the right) (Tr. 435). He
opined that plaintiff could sit for four hours and stand for three hours during an eight-hour work day
(Tr. 438), a restriction that presumably would preclude full-time work.
The ALJ’s reasons for rejecting plaintiff’s subjective complaints and Dr. Jurado’s
restrictions do not withstand scrutiny. He first stated that epidural injections in plaintiff’s back have
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been “effective” (Tr. 28). Yet the only medical records cited by the ALJ in support of this statement
are notes showing that plaintiff received caudal epidural steroid injections on three occasions in
December 2015 and January 2016 and that “[t]here was some relief of the presenting pain
symptoms” (Tr. 321, 326, 332). That “some relief” was provided by three injections over a fourweek period is not evidence a reasonable mind would accept as adequate to support the conclusion
that plaintiff does not, as she claims, need to lie down periodically throughout the day to relieve her
back pain.
Next, as with plaintiff’s CTS, the ALJ minimized plaintiff’s back pain by pointing
to two entries in the medical records stating that “pain is controlled with current medication
regimen” and “[p]atient is well controlled on medications” (Tr. 28, referring to Tr. 368 and Tr. 417).
However, these record entries do not refer specifically to plaintiff’s back pain and they do nothing
to contradict plaintiff’s claimed need to lie down periodically throughout the day.
The ALJ also seemed to find plaintiff’s back pain complaints contradicted by her
daily activities (Tr. 29, first para., citing Tr. 313). Yet no reasonable mind would find any
inconsistency between plaintiff’s subjective complaints and the minimal activities cited by the ALJ,
e.g., attending physical therapy, taking her children to school, and making dinner and doing laundry
with her mother’s help. Plaintiff does not claim to be completely incapacitated, and the few
activities cited by the ALJ are not inconsistent with her claimed need to lie down periodically to
relieve her back pain.
The ALJ also believed that while plaintiff testified that her back impairment has
caused her to fall, “[t]he medical evidence falls [sic] to substantiate these claims” because a medical
record dated January 2016 reported “no falls in the past year” (Tr. 29, citing Tr. 319). Again,

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however, the perceived inconsistency is nonexistent. At her hearing in April 2016, plaintiff testified
that she had fallen the previous Sunday (Tr. 47), not that she had fallen at any time in the year
preceding January 2016.
In short, the ALJ has offered no convincing reason for rejecting plaintiff’s hearing
testimony about the severity of her back pain or her need to lie down three or more times per day
to relieve it. Nor, as explained above, has the ALJ offered any convincing reason for rejecting Dr.
Jurado’s restrictions, which are supported by his own findings (restricted range of motion, straight
leg raising, reduced/absent perception in plaintiff’s feet) and the MRI showing “moderate to severe
foraminal narrowing and disc compression to the right S1 nerve root” (Tr. 435).
On remand, the ALJ must reevaluate all of the evidence concerning plaintiff’s back
impairment and, as appropriate, revise his RFC assessment and his hypothetical question(s) to the
VE. If the ALJ again finds that plaintiff, despite her back impairment, needs no further restrictions
than light work, “occasional postural activities, but no ladders, ropes, or scaffolds,” and a sit/stand
option, and that she does not need to lie down periodically throughout the day, he must clearly
articulate his reasons and provide supporting record citations.
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,

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

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

Dated: April 4, 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 April 4, 2018.
s/Johnetta M. Curry-Williams
Case Manager

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