Garcia v. SSA, Commissioner of

Filing 16

OPINION and ORDER Granting Plaintiff's 9 Motion for Summary Judgment, Denying Defendant's 15 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
KELLI JO GARCIA,
Plaintiff,
vs.

Civil Action No. 18-CV-10108
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 9 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 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
decision denying her application for Supplemental Security Income benefits. An Administrative
Law Judge (AALJ@) held a hearing in September 2016 (Tr. 64-98) and issued a decision denying
benefits in March 2017 (Tr. 8-23). This became defendant=s final decision in December 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 Asuch 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.
ASubstantiality 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).
Plaintiff was 34 years old at the time of the ALJ=s decision (Tr. 22). She has a
ninth grade education and work experience as a waitress, janitor, and receptionist (Tr. 70, 93,
210). Plaintiff claims she has been disabled since November 2012 due to leg pain, head trauma,
anxiety, migraines, memory loss, panic attacks, depression, and mood swings (Tr. 209).
The ALJ found that plaintiff=s severe impairments are Achronic pain; status-post
tibia-fibular fracture and closed head injury due to motor vehicle accident in 2008 1 ;
osteoarthritis; chronic obstructive pulmonary disorder, obesity; panic disorder with agoraphobia;
obsessive compulsive disorder; and major depressive disorder@ (Tr. 13). The ALJ further found

1

The medical records indicate that plaintiff Awas walking across interstate 75 after her
car broke down, and a motorcycle traveling approximately 60 miles per hour hit the patient prior
to her arrival@ (Tr. 303). Plaintiff=s right tibia and fibula were fractured and surgically repaired
(Tr. 309-10, 327).
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that despite her impairments plaintiff has the residual functional capacity (ARFC@) to perform a
limited range of light work.2 A vocational expert (AVE@) testified in response to a hypothetical
question that a person of plaintiff=s age and education, and who has this RFC, could perform
certain unskilled, light jobs such as office helper, inspector hand packager, and router (Tr.
95-96). 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. 22-23).
Having reviewed the administrative record and the parties= summary judgment
motions, the Court concludes that the ALJ=s decision in this matter is not supported by
substantial evidence because her RFC evaluation of plaintiff is flawed.

Since the ALJ=s

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.
2

Specifically, the ALJ found that plaintiff has the RFC
to perform light work as defined in 20 CFR 416.967(b) except:
climb ramps and stairs occasionally; never climb ladders, ropes or
scaffolds; stoop, kneel, crouch, and crawl occasionally; require a
sit/stand option in twenty minute intervals; requires a handheld
assistive device for ambulation; no deep bending at the waist to
pick up things below knee level; no driving a motor vehicle;
simple, routine, and repetitive work in a low-stress work
environment, which means no production-rate work; simple
work-related decisions; little to no change in work setting or
routine; and could have only occasional, superficial contact with
the public and coworkers.

(Tr. 16.) Section 416.967(b) defines light work as Ainvolv[ing] lifting no more than 20 pounds
at a time with frequent lifting or carrying of objects weighing up to 10 pounds@ and Arequir[ing] a
good deal of walking or standing.@
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The ALJ=s RFC assessment of plaintiff is flawed for three reasons. First, the ALJ
failed to consider the side effects of plaintiff=s medications. Plaintiff testified that some of her
medications make her feel sleepy, nauseous, and dizzy (Tr. 79, 83). The record indicates that
plaintiff takes, or has taken, a number of medications including Atenolol, Klonopin, Norco,
Vicodin, Xanax, Ambien, Omeprazole, Augmentin, Trazodone, Alprazolam, Percocet, and Paxil
(Tr. 212, 255, 272, 277, 356, 368-69, 410, 472), some of which have known side effects.
The ALJ erred in failing to make any findings regarding this issue. The Sixth
Circuit has held that the ALJ must evaluate A[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 extent of
these medications= side effects, if any; adjust her findings as appropriate regarding plaintiff=s
RFC; and incorporate these findings in proper hypothetical questions to the VE.
Second, the RFC assessment is flawed because the ALJ neglected to make any
findings regarding the extent to which plaintiff=s ability to work is affected by her panic disorder
with agoraphobia and her major depressive disorder, both of which the ALJ found to be among
plaintiff=s severe impairments. Plaintiff testified that she isolates herself at home, does not go
out to movies or to eat, does not attend parent/teacher conferences or any of her teenaged
daughter=s activities, does not visit with friends, and leaves the house only to see her psychiatrist

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once per week (Tr. 76-77, 89-90). On her function report, plaintiff indicated that the only time
she spends with others is Asit[ting] around the house@ with her daughter and husband (Tr. 237).
Plaintiff=s husband indicated that plaintiff Adoesn=t really leave the house@ and that she Adoesn=t
like to go out alone so I=m usually with her@ (Tr. 244). Dr. Hayter, whose report the ALJ gave
Agreat weight@ (Tr. 20), did not comment on plaintiff=s panic disorder/agoraphobia or depression
(Tr.363-66). Dr. Chapman diagnosed both disorders, and the ALJ accepted these diagnoses (Tr.
13, 485). On remand, the ALJ must make findings as to the nature and severity of plaintiff=s
panic disorder/agoraphobia and depression, and revise plaintiff=s RFC and the hypothetical
question(s) to the VE as appropriate.
Third, the ALJ made no findings regarding plaintiff=s migraines. The ALJ noted
that plaintiff listed migraines among her impairments in her disability application and in her
disability report (Tr. 17, referring to Tr. 99, 252, 257). Plaintiff told Dr. Hayter that her
migraines occur three times per week and last two hours, and she rated them at 9 on the 1-10
pain scale (Tr. 363).

Plaintiff testified similarly (Tr. 87-88).

While the ALJ noted this

testimony (Tr. 17), he neither accepted nor rejected it. On remand, the ALJ must make findings
as to the severity, frequency, and duration of plaintiff=s migraines, and revise plaintiff=s RFC and
the hypothetical question(s) to the VE as appropriate.
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 Aproof 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).

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Rather, the matter must be remanded so that the record may be further developed to correct the
errors noted above. Accordingly,

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 errors identified in this
opinion. This is a sentence four remand under ' 405(g).

Dated: June 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 June 7, 2018.
s/Johnetta M. Curry-Williams
Case Manager

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