Grabowski v. Social Security, Commissioner of
Filing
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OPINION and ORDER Granting Plaintiff's 17 Motion for Summary Judgment; Denying 19 Motion for Summary Judgment; and Rejecting 22 Report and Recommendation. Signed by District Judge Linda V. Parker. (Loury, R)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
NICOLE R. GRABOWSKI,
Plaintiff,
v.
Case No. 13-10699
Honorable Linda V. Parker
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
/
OPINION AND ORDER
Plaintiff applied for Disability Insurance Benefits and Supplemental Security
Income under the Social Security Act on September 23, 2009, alleging that she
became disabled on January 29, 2007. The Social Security Administration denied
Plaintiff’s application for benefits initially. Upon Plaintiff’s request,
Administrative Law Judge Richard L. Sasena (“ALJ”) conducted a de novo
hearing on March 3, 2011. The ALJ issued a decision on October 3, 2011, finding
Plaintiff not disabled within the meaning of the Social Security Act and therefore
not entitled to benefits. The ALJ’s decision became the final decision of the Social
Security Commissioner (“Commissioner”) when the Social Security Appeals
Council denied review. Plaintiff thereafter initiated the pending action.
Both parties have filed motions for summary judgment, which were referred
to Magistrate Judge Charles E. Binder. On July 14, 2014, Magistrate Judge Binder
filed his Report and Recommendation (R&R) recommending that this Court deny
Plaintiff’s motion for summary judgment and grant Defendant’s motion. (ECF No.
22.) At the conclusion of the R&R, Magistrate Judge Binder advises the parties
that they may object to and seek review of the R&R within fourteen days of service
upon them. Plaintiff filed objections to the R&R on August 12, 2014. (ECF No.
27.)
Standard of Review
Under 42 U.S.C. Section 405(g):
Any individual, after any final decision of the
Commissioner of Social Security made after a hearing to
which he was a party . . . may obtain a review of such
decision by a civil action . . . The court shall have the
power to enter . . . a judgment affirming, modifying, or
reversing the decision of the Commissioner of Social
Security, with or without remanding the cause for a
rehearing. The findings of the Commissioner of Social
Security as to any fact, if supported by substantial
evidence, shall be conclusive . . .
42 U.S.C. § 405(g) (emphasis added); see Boyes v. Sec’y of Health and Human
Servs., 46 F.3d 510, 511-12 (6th Cir. 1994). “Substantial evidence is defined as
‘such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’ ” Abbott v. Sullivan, 905 F.2d 918, 922-23 (6th Cir. 1990) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)). The Commissioner’s findings
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are not subject to reversal because substantial evidence exists in the record to
support a different conclusion. Mullen v. Brown, 800 F.2d 535, 545 (6th Cir.
1986) (citing Baker v. Kechler, 730 F.2d 1147, 1150 (8th Cir. 1984)). If the
Commissioner’s decision is supported by substantial evidence, a reviewing court
must affirm. Studaway v. Sec’y of Health and Human Servs., 815 F.2d 1074, 1076
(6th Cir. 1987).
The court reviews de novo the parts of an R&R to which a party objects. See
Fed. R. Civ. P. 72(b); Thomas v. Halter, 131 F. Supp. 2d 942, 944 (E.D. Mich.
2001). However, the Court “is not required to articulate all the reasons it rejects a
party’s objections.” Id.
The ALJ’s Decision, the R&R, & Plaintiff’s Objections
An ALJ considering a disability claim is required to follow a five-step
sequential process to evaluate the claim. 20 C.F.R. § 404.1520(a)(4). The fivestep process is as follows:
1.
At the first step, the ALJ considers whether the claimant is currently
engaged in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i).
2.
At the second step, the ALJ considers whether the claimant has a
severe medically determinable physical or mental impairment that
meets the duration requirement of the regulations and which
significantly limits the claimant’s ability to do basic work activities.
20 C.F.R. §§ 404.1520(a)(4)(ii) and (c).
3.
At the third step, the ALJ again considers the medical severity of the
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claimant’s impairment to determine whether the impairment meets or
equals an impairment listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1. 20 C.F.R. § 404.1520(a)(4)(iii). If the claimant’s
impairment meets any Listing, he or she is determined to be disabled
regardless of other factors. Id.
4.
At the fourth step, the ALJ assesses the claimant’s residual functional
capacity (“RFC”) and past relevant work to determine whether the
claimant can perform his or her past relevant work. 20 C.F.R.
§ 404.1520(a)(4)(iv).
5.
At the fifth step, the ALJ considers the claimant’s RFC, age,
education, and past work experience to see if he can do other work.
20 C.F.R. § 404.1420(a)(4)(v). If there is no such work that the
claimant can perform, the ALJ must find that he or she is disabled. Id.
If the ALJ determines that the claimant is disabled or not disabled at a step, the
ALJ makes his or her decision and does not proceed further. Id. However, if the
ALJ does not find that the claimant is disabled or not disabled at a step, the ALJ
must proceed to the next step. Id. “The burden of proof is on the claimant through
the first four steps . . . If the analysis reaches the fifth step without a finding that
the claimant is not disabled, the burden transfers to the Secretary.” Preslar v. Sec’y
of Health and Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994); see also Bowen
v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
At the first step, the ALJ concluded that Plaintiff had not engaged in
substantial gainful activity since January 29, 2009. (ECF No. 11-2 at Pg ID 52.)
The ALJ found at step two that Plaintiff has the following severe impairments:
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bipolar disorder, depression, dependent personality disorder, and polysubstance
dependence. (Id.) The ALJ next analyzed whether Plaintiff’s impairments met any
of the listed impairments and determined that they did not. (Id. at Pg ID 53-54.)
The ALJ found that Plaintiff suffered only moderate difficulties or restrictions in
activities of daily living, social functioning, and concentration, persistence, or
pace, and that while she had experienced one to two episodes of decompensation,
none had been for an extended duration. (Id. at 53.)
At step four, the ALJ determined that Plaintiff had the following residual
functional capacity (“RFC”):
[T]o perform a full range of work at all exertional levels but with the
following nonexertional limitations: the claimant is limited to simple,
routine tasks that require little judgment and can be learned in a short
period. She cannot have any contact with the general public. She can
have occasional interaction with co-workers but cannot function as a
team member.
(Id. at Pg ID 54.) The ALJ concluded that Plaintiff could perform her past work as
an assembler, as such work does not require work-related activities precluded by
Plaintiff’s RFC. (Id. at Pg ID 57.) The vocational expert testified that Plaintiff
also was capable of performing such occupations as dishwasher, janitor, and
packer, and that there were a significant number of these jobs in Michigan’s lower
peninsula. (Id. at Pg ID 57-58.) The ALJ therefore concluded that Plaintiff is not
under a disability as defined by the Social Security Act. (Id. at Pg ID 58.) In his
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R&R, Magistrate Judge Binder concludes that there is substantial evidence in the
record to support this finding. (ECF No. 22.)
Plaintiff raises two objections to the R&R. First, she claims that the
magistrate judge was incorrect when he found no error in the ALJ’s assessment of
whether her mental impairments met and/or equaled a listed impairment. Next,
Plaintiff claims the magistrate judge erred in concluding that new evidence
submitted by Plaintiff was neither material nor submitted late with good cause. She
also disputes the magistrate judge’s finding that the new evidence would not have
changed the ALJ’s decision.
Analysis
The regulations require an ALJ to follow a “special technique” when
accounting for mental impairments at steps two and three of the sequential
evaluation. 20 C.F.R. § 404.1520a(c)(3), (e)(2). As summarized by the Sixth
Circuit Court of Appeals in Rabbers v. Commissioner of Social Security:
At step two, an ALJ must evaluate the claimant’s “symptoms,
signs, and laboratory findings” to determine whether the claimant has
a “medically determinable mental impairment(s).” [20 C.F.R.]
§ 404.1520a(b)(1). If the claimant has a medically determinable
mental impairment, the ALJ “must then rate the degree of functional
limitation resulting from the impairment(s)” with respect to “four
broad functional areas”: “[a]ctivities of daily living; social
functioning; concentration, persistence, or pace; and episodes of
decompensation.” Id. §§ 404.1520a(b)(2), (c)(3). These four
functional areas are commonly known as the “B criteria.” See 20
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C.F.R. pt. 404, subpt. P, app. 1, § 12.00 et seq.; Craft v. Astrue, 539
F.3d 668, 674 (7th Cir. 2008). The degree of limitation in the first
three functional areas is rated using the following five-point scale:
none, mild, moderate, marked, and extreme. 20 C.F.R.
§ 404.1520a(c)(4). The degree of limitation in the fourth functional
area (episodes of decompensation) is rated using the following
four-point scale: none, one or two, three, four or more. Id. If the ALJ
rates the first three functional areas as “none” or “mild” and the fourth
area as “none,” the impairment is generally not considered severe and
the claimant is conclusively not disabled. Id. § 404.1520a(d)(1).
Otherwise, the impairment is considered severe and the ALJ will
proceed to step three. See id. § 404.1520a(d)(2).
At step three, an ALJ must determine whether the claimant’s
impairment “meets or is equivalent in severity to a listed mental
disorder.” Id. The Listing of Impairments, located at Appendix 1 to
Subpart P of the regulations, describes impairments the SSA considers
to be “severe enough to prevent an individual from doing any gainful
activity, regardless of his or her age, education, or work experience.”
Id. § 404.1525(a). In other words, a claimant who meets the
requirements of a listed impairment will be deemed conclusively
disabled.
Each listing specifies “the objective medical and other findings
needed to satisfy the criteria of that listing.” Id. § 404.1525(c)(3). A
claimant must satisfy all of the criteria to meet the listing. Id. . . . If the
ALJ determines that the claimant has a severe mental impairment that
neither meets nor medically equals a listed impairment, the ALJ will
then assess the claimant’s RFC and move on to steps four and five. 20
C.F.R. § 404.1520a(d)(3).
582 F.3d 647, 652-53 (6th Cir. 2009)
As indicated, the ALJ found that Plaintiff has the following severe
impairments: bipolar disorder, depression, dependent personality disorder, and
polysubstance dependence. He then considered whether those impairments,
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considered singly or in combination, met or medically equaled the criteria listings
of 12.04 (affective disorders), 12.08 (personality disorders) and/or 12.09
(substance addiction disorders). See 20 C.F.R. pt. 404, subpt. P, app. 1 §§ 12.04,
12.08, 12.09. The regulations set forth criteria for each listing and the claimant
must satisfy all of the criteria to meet the listing. 20 C.F.R. § 404.1525(c)(3).
Under sections 12.04 and 12.08, the claimant must satisfy the criteria outlined in
the so-called A and B paragraphs, or the criteria in paragraph C.1 20 C.F.R. pt.
404, subpt. P, app. 1 §§ 12.04, 12.08.
The B criteria of both listings are satisfied by a showing of at least two of
the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or
pace; or
4. Repeated episodes of decompensation, each of extended duration.
Id. The regulations define the term “marked” when used to measure the degree of
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Plaintiff has not raised the C criteria as a basis for finding that she satisfies
sections 12.04 or 12.08. The ALJ addressed whether the criteria in paragraph B
are satisfied and, concluding that they are not, did not address the paragraph A
criteria. (A.R. at 16.) For the reasons set forth in Plaintiff’s summary judgment
motion, however, the Court finds that criteria satisfied. (ECF No. 17 at Pg ID 706707.)
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limitation as
more than moderate but less than extreme. A marked limitation may
arise when several activities or functions are impaired, or even when
only one is impaired, as long as the degree of limitation is such as to
interfere seriously with [the claimant’s] ability to function
independently, appropriately, effectively, and on a sustained basis.
Id. § 12.00(C). The term “repeated episodes of decompensation, each of extended
duration” refers to “three episodes within 1 year, or an average of once every 4
months, each lasting for at least 2 weeks.” Id. § 12.00(C)(4).
The ALJ concluded that Plaintiff had no marked restrictions or difficulties
and only one to two episodes of decompensation, but none for an extended
duration. See supra. He therefore concluded that she did not satisfy the criteria to
meet or equal the impairments listed under sections 12.04 or 12.08. Magistrate
Judge Binder found substantial evidence in the record to support this conclusion.
In her objections, Plaintiff points to evidence suggesting a different
conclusion– i.e., that she suffered marked restrictions and/or difficulties. She
argues that the magistrate judge selectively cited to portions of her testimony at the
administrative hearing concerning her abilities that supported the ALJ’s decision
and disregarded other statements reflecting restrictions on those abilities. For
example, Magistrate Judge Binder finds support for the ALJ’s conclusion that
Plaintiff has only moderate restrictions in activities of daily living and
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concentration, persistence, or pace based on Plaintiff’s testimony that she is able to
do housework, reads, watches television, and goes for walks. However, Plaintiff
points out that she further testified at the hearing that when she tries to clean, she
switches from one task to another, and only “tr[ies] to watch TV.” (See ECF No.
11-2 at Pg ID 81.)
This Court finds that the ALJ and Magistrate Judge Binder took selective
portions of Plaintiff’s hearing testimony and statements suggesting that she is able
to engage in activities of daily living, social functioning, and concentration,
persistence, or pace, and ignored overwhelming evidence that she in fact is
markedly limited in at least two of these areas. Specifically with respect to
activities of daily living and concentration, persistence, or pace, the ALJ and
magistrate judge relied upon Plaintiff’s report that she reads, watches television,
and does housework. (A.R. at 16, R&R at 6.) There is no evidence, however,
indicating how much Plaintiff is able to read at one time or whether she is
successfully reading. In fact, when asked at the administrative hearing whether she
is able to focus when she is watching television or doing something in which she is
interested, Plaintiff testified that she is not able to focus because her mind races.
(A.R. at 44.) She also reported that she has trouble remembering what she reads
and that when she does housework she cannot stay focused on a single task. (A.R.
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44, 210.) Further, the fact that Plaintiff may eventually complete each household
task is not substantial evidence of only moderate difficulties with respect to
concentration, persistence, or pace where there is no evidence as to how long it
takes Plaintiff to complete each task and how well the task is done. The social
security regulations instruct that “[c]oncentration, persistence, or pace refers to the
ability to sustain focused attention and concentration sufficiently long to permit the
timely and appropriate completion of tasks . . ..” 20 C.F.R. Pt. 404, subpt. P, Appx
1, § 12.00(C)(3) (emphasis added).
Additionally relative to Plaintiff’s ability to maintain a household, Plaintiff’s
father indicated that she does not pay bills and does not have a checking or savings
account. (A.R. 217.) A consultative examiner opined that Plaintiff is not capable
of managing benefit funds. (A.R. 580). And while Plaintiff’s father indicated that
she cleans and does laundry, he also reported that she needs encouragement to do
these household chores. (A.R. at 216.) Moreover, Plaintiff was reported to have
worn the same clothes (pajama pants and a t-shirt) and neglected to shower for
three days until someone from her Community Network Services treatment team
told her she looked awful. (A.R. at 43.) As the ALJ recognized, Plaintiff’s
caseworker reported that she has poor hygiene. (A.R. at 36.) She cannot
remember to take her medications and often loses them, thus causing her treatment
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team to assume responsibility for holding and dispensing them. (A.R. at 40, 64.)
With respect to social functioning, the ALJ and Magistrate Judge Binder
relied heavily on the fact that Plaintiff lives with her “boyfriend” and several other
adults and children and that she babysits the children living in her home. (A.R. at
16; R&R at 6.) However, the evidence reflects that Plaintiff had been living at this
location for only a week and had this “boyfriend” for the same length of time.
(A.R. at 35, 37.) As Plaintiff’s caseworker testified, Plaintiff frequently changes
where she lives, going “from boyfriends to friends to family, back to boyfriends,
friends, families. (A.R. at 60; see also A.R. at 522.) Plaintiff testified that at this
location, she spends the day in her pajamas, in her room with the door and blinds
closed, doing nothing. (A.R. at 43, 45.) Other evidence in the record reflects that
Plaintiff has marked restrictions in social functioning.
For example, Plaintiff’s medical history reflects ongoing paranoia about
people talking about her or staring or looking at her. (A.R. at 314, 357.) A
consultative medical examiner found that she had “marked” limitations in her
ability to interact appropriately with co-workers and to respond appropriately to
usual work situations. (A.R. at 582.) Laura Moore, Plaintiff’s CNS caseworker
who testified at the administrative hearing, indicated that Plaintiff is “paranoid
about being out in the community around other people, attending groups or
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anything.” (A.R. at 63.)
Plaintiff’s report that she babysits the children in her household is not
substantial evidence of her ability to function socially, as it is not at all evident
from the record what this entails. While the ALJ and Magistrate Judge seem to
assume that this involves some “caring” for the children, this Court finds no basis
on which to make such an assumption. Notably, Plaintiff’s testimony indicated
that the adults residing in the trailer with her are also drug addicts, who keep
neither themselves nor the trailer clean. (See, e.g., A.R. at 45, 55.) According to
Plaintiff, she “watch[es]” the kids in exchange for their opiates. (A.R. at 18, 28,
56.) Plaintiff was not asked and she did not offer what “watch[ing]” the kids
entails. Significantly, Plaintiff’s own children are in her adoptive father’s custody
because she is unable to care for them. (A.R. 39.)
For similar reasons, Plaintiff’s report that she talks on the telephone and
texts does not provide substantial evidence of her ability to function socially. (A.R.
at 210) There is no evidence in the record as to who she is calling or texting or the
substance of these communications. Thus there is no basis on which to judge
whether these interactions are “appropriat[], effective[], and on a sustained basis
with other individuals.” See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(C)(2).
The ALJ seemed to discredit Plaintiff’s testimony relative to the severity of
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her limitations based on the fact that “she had not sought or received the level of
treatment typical for a completely disabled individual.” (A.R. at 20.) He found
that “[s]he does not attend counseling on a frequent or consistent basis, even
though her visits to Community Network Services show that she is aware of and
knows how to access services.” (Id.) In fact, however, it is not evident at all that
Plaintiff knows how to access help when she needs it as she has been assigned a
treatment team that finds her wherever she is living to provide her needed services.
In short, this Court does not find substantial evidence in the record to
support the ALJ’s assessment at the third step of the five-step sequential process.
Contrary to the ALJ’s and magistrate judge’s determination, the record evidence
reflects that Plaintiff has marked restrictions in at least activities of daily living and
maintaining social functioning. As such, she satisfies the criteria in paragraph B of
listings 12.04, 12.08, or 12.09 and her impairments meet one or more of those
Listings. The ALJ therefore should have found Plaintiff disabled at the third step.
Having reached this conclusion, the Court rejects the recommendations in
Magistrate Judge Binder’s July 14, 2014 R&R and finds it unnecessary to address
Plaintiff’s second objection to the R&R.
Accordingly,
IT IS ORDERED, that Plaintiff’s motion for summary judgment (ECF No.
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17) is GRANTED; and
IT IS FURTHER ORDERED, that Defendant’s motion for summary
judgment (ECF No. 19) is DENIED.
S/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: November 10, 2014
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, November 10, 2014, by electronic and/or
U.S. First Class mail.
S/ Richard Loury
Case Manager
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