Williams v. Commissioner of Social Security

Filing 22

OPINION and ORDER granting Plaintiff's 17 Motion for Summary Judgment, Denying Defendant's 19 Motion for Summary Judgment, and Remanding for Further Proceedings pursuant to 42 U.S.C. § 405(g). Signed by District Judge Bernard A. Friedman. (JCur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
YVONNE WILLIAMS,
Plaintiff,
vs.

Civil Action No. 18-CV-11202
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 17 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
decision denying her applications for social security disability and Supplemental Security Income
benefits. An Administrative Law Judge (“ALJ”) held a hearing in February 2017 (Tr. 36-64) and
issued a decision denying benefits in May 2017 (Tr. 20-31). This became defendant’s final decision
in February 2018 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 50 years old (Tr. 22). She has an
eighth grade education and work experience as a hotel housekeeper and hair stylist (Tr. 61).
Plaintiff claims she has been disabled since December 2014 due to pain in her knees and back, chest
pain with shortness of breath, anxiety, depression, deafness in her right ear, and pre-diabetic
numbness in her fingers and feet (Tr. 47-60, 241). She is also schizophrenic and obese and has an
IQ of 54-56 (Tr. 42, 55, 313, 352, 356, 368, 423, 484, 486).
The ALJ found that plaintiff’s severe impairments are “intellectual disorder;
schizophrenia; adjustment disorder; degenerative changes - bilateral knees, status post bilateral total
knee arthroplasties; [and] obesity” and that her asthma and gastroesophageal reflux disease are
nonsevere (Tr. 23).1 The ALJ found that despite her impairments plaintiff has the residual functional

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The ALJ made no findings regarding plaintiff’s other impairments. Plaintiff appears to
have abandoned these as bases for her disability claim, as she does not mention them in her
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capacity (“RFC”) to perform a limited range of light work.2 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, light-level jobs such as a
collator, assembler, or inspector/hand packager (Tr. 62). The ALJ cited this testimony as evidence
that work exists in significant numbers that plaintiff could perform and determined that she is not
disabled (Tr. 30).
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 her

motion for summary judgment.
2

20 C.F.R. §§ 416.967(b) and 404.1567(b) define light work as follows:
Light work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds.
Even though the weight lifted may be very little, a job is in this
category when it requires a good deal of walking or standing, or
when it involves sitting most of the time with some pushing and
pulling of arm or leg controls. To be considered capable of
performing a full or wide range of light work, you must have the
ability to do substantially all of these activities.

The ALJ found that plaintiff can perform light work
except the claimant can occasionally climb ramps and stairs, but
cannot climb ladders, ropes or scaffolds. The claimant can
occasionally balance, stoop, kneel, crouch, and cannot crawl. The
claimant must avoid use of hazardous machinery and exposure to
unprotected heights. The claimant can perform simple, routine tasks
performed in an environment free of fast paced production
requirements involving little to no independent judgment and
occasional routine work place changes. The claimant requires the
option to alternate between sitting and standing approximately every
20 minutes.
(Tr. 25.)
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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. Remand is also required because the ALJ did not
properly analyze whether plaintiff meets the criteria of one of the listed impairments.
Plaintiff’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
at various times has taken, a number of medications, including Voltaren, Norco, Tylenol No. 3 and
4, Singulair, Hydrocortisone, Naprosyn, Diphengydramine, Senna, Buspirone, Flexeril,
Clindamycin, Colace, Lovenox, Oxycodone, Protonix, Benadryl, Dilaudid, and Valium (Tr. 319,
321, 354, 366, 369, 384, 400, 403, 409, 412, 424, 429, 431-33, 435, 437, 439-40, 480, 502-03, 506),
some of which have known side effects. On her disability report, plaintiff indicated that several of
her medications make her feel sleepy (Tr. 279).
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 her findings as appropriate regarding plaintiff’s RFC; and

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incorporate these findings in proper hypothetical question(s) 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 her other impairments. At 5'-6" and
214

pounds

(Tr.

348),

plaintiff’s

body-mass

index

(“BMI”)

https://www.nhlbi.nih.gov/health/educational/lose_wt/BMI/bmicalc.htm.

is

34.5.

See

Under defendant’s

regulations, a person with a BMI over 30 is considered to be obese, and the ALJ must consider a
disability claimant’s obesity at all steps of the sequential process. See SSR 02-1p; 20 C.F.R. Pt. 404,
Subpt. P, App. 1 § 1.00Q (“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.”).
In the present case, the ALJ found that obesity is among plaintiff’s severe
impairments (Tr. 23). While the ALJ asserted that she “considered the effects of the claimant’s
obesity in reducing the claimant’s residual functional capacity pursuant to SSR 02-01p” (Tr. 28),
she does not explain how she did so. In fact, there is no indication in the ALJ’s decision that she
gave any consideration to plaintiff’s obesity. On remand, the ALJ must make specific findings as
to the effect, if any, of plaintiff’s obesity on her other impairments. In particular, the ALJ must
determine whether and to what extent plaintiff’s obesity exacerbates her knee pain and/or diminishes
her ability to 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 evaluation is flawed because the ALJ neglected to make a finding as
to whether plaintiff’s need to use a cane interferes with her ability to work while standing. The ALJ

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found that plaintiff “requires the option to alternate between sitting and standing approximately
every 20 minutes” (Tr. 25). From this finding, it is apparent that the ALJ accepted, to some extent,
plaintiff’s testimony that her bilateral knee pain significantly reduces her ability to stand (Tr. 50, 57).
The ALJ noted that plaintiff is “status post bilateral total knee arthroplasties” (Tr. 23) and that she
“experiences pain in her knees” (Tr. 28). While these findings explain why the ALJ afforded
plaintiff a sit/stand option, the ALJ neglected to make a finding as to whether plaintiff can stand
unassisted. The ALJ noted plaintiff’s testimony, without accepting or rejecting it, that she “uses a
cane when standing” (Tr. 15). Plaintiff testified that she uses a cane “[b]ecause I can’t balance well”
(Tr. 53), and the record shows that plaintiff was prescribed a cane by her knee surgeon (Tr. 401) and
that she needs a “walking aid” both to reduce pain and for balance (Tr. 360). If plaintiff needs to
use a cane while standing, she would have only one hand available for working while in this
position, and in this event, according to the VE, light work would be precluded because “bilateral
use of the hands while sitting and standing” is usually required (Tr. 63). On remand, the ALJ must
determine whether plaintiff needs to use a cane while standing and, as appropriate, revise her RFC
evaluation and her hypothetical question(s) to the VE.
Remand is also required in this matter because the ALJ did not adequately explain
her reasons for concluding that plaintiff does not meet the criteria of Listing 12.05B (“Intellectual
Disorder”). A claimant is deemed per se disabled under this Listing if she meets the following
criteria:
1. Significantly subaverage general intellectual functioning evidenced
by a or b:
a. A full scale (or comparable) IQ score of 70 or below on an
individually administered standardized test of general intelligence; or

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b. A full scale (or comparable) IQ score of 71-75 accompanied by a
verbal or performance IQ score (or comparable part score) of 70 or
below on an individually administered standardized test of general
intelligence; and
2. Significant deficits in adaptive functioning currently manifested by
extreme limitation of one, or marked limitation of two, of the
following areas of mental functioning:
a. Understand, remember, or apply information (see 12.00E1); or
b. Interact with others (see 12.00E2); or
c. Concentrate, persist, or maintain pace (see 12.00E3); or
d. Adapt or manage oneself (see 12.00E4); and
3. The evidence about your current intellectual and adaptive
functioning and about the history of your disorder demonstrates or
supports the conclusion that the disorder began prior to your
attainment of age 22.
20 C.F.R. § Pt. 404, Subpt. P, App. 1.
The ALJ did not comment on whether ¶ 1 is met, but it plainly appears to be, as
plaintiff has full-scale IQ scores of below 70 (Tr. 313, 486). Nor did the ALJ comment on whether
evidence supports the conclusion that plaintiff’s intellectual disorder began before she turned 22,
as required by ¶ 3, and it will be for the ALJ to make this determination on remand.
The ALJ found that ¶ 2 is not met because plaintiff is only mildly or moderately
limited in the four areas set forth in subparagraphs 2a-d (Tr. 23-24). However, the ALJ’s analysis
does not comport with the regulations that direct how a claimant’s functioning in these areas must
be evaluated, particularly as regards subparagraphs 2a, 2c, and 2d. Subparagraph 2a, concerning
a claimant’s ability to “[u]nderstand, remember, or apply information,”
refers to the abilities to learn, recall, and use information to perform
work activities. Examples include: Understanding and learning terms,
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instructions, procedures; following one- or two-step oral instructions
to carry out a task; describing work activity to someone else; asking
and answering questions and providing explanations; recognizing a
mistake and correcting it; identifying and solving problems;
sequencing multi-step activities; and using reason and judgment to
make work-related decisions. These examples illustrate the nature of
this area of mental functioning. We do not require documentation of
all of the examples.
20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 12.00E1. Rather than making findings relevant to these
abilities, the ALJ found that plaintiff is moderately limited because she
alleged that she has difficulty understanding what is said to her and
driving.3 However, the claimant also stated that she could prepare
meals, pay bills, take medications, take public transportation, and
shop (Exhibits 3E, 4E). In addition, the record shows that the
claimant was able to provide information about her health, describe
her prior work history, and respond to questions from medical
providers (Exhibits 3F, 4F).
(Tr. 23.) There is a complete “disconnect” between the areas of inquiry required by § 12.00E1 (i.e.,
“abilities to learn, recall, and use information to perform work activities”) and the ALJ’s findings
about certain of plaintiff’s activities and her limited ability to communicate non-work-related
information. More relevant to § 12.00E1 would be an assessment of plaintiff’s memory and
judgment, both of which appear to be severely compromised (Tr. 312-13, 349-51, 480-84).
Subparagraph 2c, concerning a claimant’s ability to “[c]oncentrate, persist, or
maintain pace,”
refers to the abilities to focus attention on work activities and stay on
task at a sustained rate. Examples include: Initiating and performing
a task that you understand and know how to do; working at an
appropriate and consistent pace; completing tasks in a timely manner;

3

A claimant’s ability to drive has no apparent relevance to ¶ 2a. But whether relevant or
not, plaintiff did not testify that she has difficulty driving. Rather, she testified that she does not
know how to drive (Tr. 41). See also Tr. 259 (“I just don’t drive”).
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ignoring or avoiding distractions while working; changing activities
or work settings without being disruptive; working close to or with
others without interrupting or distracting them; sustaining an ordinary
routine and regular attendance at work; and working a full day
without needing more than the allotted number or length of rest
periods during the day. These examples illustrate the nature of this
area of mental functioning. We do not require documentation of all
of the examples.
20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 12.00E3. Here the ALJ found “moderate limitations”:
The claimant demonstrated some concentration difficulties during a
consultative examination (Exhibit 3F). However, the claimant did
not note any specific issues in this area. Moreover, the claimant said
that she is able to prepare meals, watch TV, and manage funds
(Exhibits 3E, 4E).
(Tr. 24.) Again, the disconnect between the areas identified as relevant by the regulations and those
mentioned by the ALJ is manifest. Further, “some concentration difficulties” during the November
2015 consultative examination is a gross understatement. During that examination, plaintiff “was
able to recall one of three objects immediately after I stated them to her, recalling pencil, but
forgetting ball and phone” (Tr. 349). Three minutes later, she was able to recall only one of the
three objects (Tr. 350). She was completely unable to do any of the simple calculations requested
of her, e.g., 4+7. Id. Similar testing in 2010 had similar results (Tr. 312). Psychological testing in
September 2016 likewise found “significant difficulties related to memory,” noting that “[s]everal
times during the assessment she would begin answering a question simply to forget what she had
been asked to do and have to ask the examiner to repeat what was just said” (Tr. 480).
Finally, subparagraph 2d, concerning a claimant’s ability to “[a]dapt or manage
oneself,”
refers to the abilities to regulate emotions, control behavior, and
maintain well-being in a work setting. Examples include: Responding
to demands; adapting to changes; managing your psychologically
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based symptoms; distinguishing between acceptable and
unacceptable work performance; setting realistic goals; making plans
for yourself independently of others; maintaining personal hygiene
and attire appropriate to a work setting; and being aware of normal
hazards and taking appropriate precautions. These examples illustrate
the nature of this area of mental functioning. We do not require
documentation of all of the examples.
20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 12.00E4. Here the ALJ found “moderate limitations”:
The claimant asserted that she has difficulties dressing and bathing.
That said, the claimant also stated that she is able to care for children
(Exhibits 3E, 4E). Meanwhile, the objective evidence in the record
showed the claimant to have appropriate grooming and hygiene and
no problems with temper control (Exhibits 3F, 4F).
(Tr. 24.) Once again, the ALJ did not fully analyze the areas identified in the regulations as being
relevant to adapting or managing oneself. Grooming and hygiene are relevant, but the record shows
that plaintiff needs help dressing and bathing and that she sometimes urinates on herself (Tr. 58, 249,
257). The ALJ made no findings as to the other relevant areas, e.g., her ability to make plans for
herself independently. This ability appears to be severely compromised, as plaintiff testified that
when she uses public transportation “[s]omebody always walk to the bus stop with me and make
sure I get on the right bus” (Tr. 56).
On remand, the ALJ must determine whether plaintiff meets the criteria of Listing
12.05B. Regarding subparagraphs 2a-d of that Listing, the ALJ must make record-based findings
which comport with the relevant areas of inquiry that are laid out in § 12.00E1-4.
For the reasons stated above, 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

10

lacking.” Faucher v. Sec’y of Health & 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 summary judgment is granted
and this matter is remanded to defendant for further proceedings as required above. This is a
sentence four remand under § 405(g).

Dated: January 18, 2019
Detroit, Michigan

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

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