Kaddo v. Social Security, Commissioner of

Filing 26

ORDER Adopting 21 Report and Recommendation. Signed by District Judge Terrence G. Berg. (AChu)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LINDA KADDO,
v.

Plaintiff,

Case No. 15-10647

COMMISSIONER OF SOCIAL
SECURITY,

HON. TERRENCE G. BERG
HON. ANTHONY P. PATTI

Defendant.
/
ORDER ADOPTING REPORT AND RECOMMENDATION
This case is an appeal of the denial of Plaintiff’s application for social security
disability insurance benefits. This matter is before the Court on Magistrate Judge
Anthony P. Patti’s Report and Recommendation dated December 29, 2016 (Dkt. 21),
recommending that Plaintiff’s motion for summary judgment be granted, that
Defendant’s motion for summary judgment be denied, and that this matter be
remanded for further proceedings.
The law provides that either party may serve and file written objections
“[w]ithin fourteen days after being served with a copy” of the Report and
Recommendation. 28 U.S.C. § 636(b)(1). Defendant filed timely objections (Dkt. 22)
to the Report and Recommendation; Plaintiff filed a response to Defendant’s
objections (Dkt. 23). A district court must conduct a de novo review of the parts of a
Report and Recommendation to which a party objects. See 28 U.S.C. § 636(b)(1). “A
judge of the court may accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge. The judge may also receive
further evidence or recommit the matter to the magistrate judge with
instructions.” Id.
The Court has reviewed Magistrate Judge Patti’s Report and
Recommendation, and Defendant’s objections thereto. For the reasons set forth
below, Defendant’s objections are OVERRULED, and the Report and
Recommendation is ACCEPTED and ADOPTED as the opinion of the Court.
Consequently, this matter is REMANDED pursuant to sentence four of to 42
U.S.C. § 405(g) for further proceedings, consistent with the discussion below.
ANALYSIS
A.

The Social Security Act

The Social Security Act (the Act) “entitles benefits to certain claimants who,
by virtue of a medically determinable physical or mental impairment of at least a
year’s expected duration, cannot engage in ‘substantial gainful activity.’” Combs v.
Comm’r of Soc. Sec., 459 F.3d 640, 642 (6th Cir. 2006) (en banc) (quoting 42 U.S.C. §
423(d)(1)(A)). A claimant qualifies as disabled “if she cannot, in light of her age,
education, and work experience, ‘engage in any other kind of substantial gainful
work which exists in the national economy.’” Combs, 459 F.3d at 642 (quoting 42
U.S.C. § 423(d)(2)(A)).
Under the authority of the Act, the Social Security Administration (SSA) has
established a five-step sequential evaluation process for determining whether an
individual is disabled. See 20 C.F.R. § 404.1520(a)(4). The five steps are as follows:

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In step one, the SSA identifies claimants who “are doing substantial
gainful activity” and concludes that these claimants are not disabled.
[20 C.F.R.] § 404.1520(a)(4)(i). If claimants get past this step, the SSA
at step two considers the “medical severity” of claimants’ impairments,
particularly whether such impairments have lasted or will last for at
least twelve months. Id. § 404.1520(a)(4)(ii). Claimants with
impairments of insufficient duration are not disabled. See id. Those with
impairments that have lasted or will last at least twelve months proceed
to step three.
At step three, the SSA examines the severity of claimants’ impairments
but with a view not solely to their duration but also to the degree of
affliction imposed. Id. § 404.1520(a)(4)(iii). Claimants are conclusively
presumed to be disabled if they suffer from an infirmity that appears on
the SSA’s special list of impairments, or that is at least equal in severity
to those listed. Id. § 404.1520(a)(4)(iii), (d). The list identifies and
defines impairments that are of sufficient severity as to prevent any
gainful activity. See Sullivan v. Zebley, 493 U.S. 521, 532 (1990). A
person with such an impairment or an equivalent, consequently,
necessarily satisfies the statutory definition of disability. For such
claimants, the process ends at step three. Claimants with lesser
impairments proceed to step four.
In the fourth step, the SSA evaluates claimant’s “residual functional
capacity,” defined as “the most [the claimant] can still do despite [her]
limitations.” 20 C.F.R. § 404.1545(a)(1). Claimants whose residual
functional capacity permits them to perform their “past relevant work”
are not disabled. Id. § 404.1520(a)(4)(iv), (f). “Past relevant work” is
defined as work claimants have done within the past fifteen years that
is “substantial gainful activity” and that lasted long enough for the
claimant to learn to do it. Id. § 404.1560(b)(1). Claimants who can still
do their past relevant work are not disabled. Those who cannot do their
past relevant work proceed to the fifth step, in which the SSA
determines whether claimants, in light of their residual functional
capacity, age, education, and work experience, can perform “substantial
gainful activity” other than their past relevant work. See id. §
404.1520(a)(4)(v), (g)(1). Claimants who can perform such work are not
disabled. See id.; § 404.1560(c)(1).
Combs, 459 F.3d at 642–43.
“Through step four, the claimant bears the burden of proving the existence
and severity of limitations caused by her impairments and the fact that she is
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precluded from performing her past relevant work.” Jones v. Comm’r of Soc. Sec.,
336 F.3d 469, 474 (6th Cir. 2003). If the analysis reaches the fifth step, the burden
transfers to the Commissioner. See Combs, 459 F.3d at 643. At that point, the
Commissioner is required to show that “other jobs in significant numbers exist in
the national economy that [claimant] could perform given her RFC and considering
relevant vocational factors.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th
Cir. 2007); 20 C.F.R. §§ 416.920(a)(4)(v) and (g).
Judicial review of the Commissioner’s final decision is authorized pursuant to
42 U.S.C. § 405(g). Where the Appeals Council denies review, the ALJ’s decision
stands as the Commissioner’s final decision. See 20 C.F.R. § 404.981. Judicial
review, however, is circumscribed in that the court “must affirm the Commissioner’s
conclusions absent a determination that the Commissioner has failed to apply the
correct legal standard or has made findings of fact unsupported by substantial
evidence in the record.” Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th
Cir. 2005). Substantial evidence is “such relevant evidence as a reasonable mind
might accept to support the ALJ’s conclusion.” Bass v. McMahon, 499 F.3d 506, 509
(6th Cir. 2007) (quotation marks omitted) (quoting Foster v. Halter, 279 F.3d 348,
353 (6th Cir. 2001)). This substantial evidence standard is less exacting than the
preponderance of evidence standard. See Bass, 499 F.3d at 509 (citing Bell v.
Comm’r of Soc. Sec., 105 F.3d 244, 246 (6th Cir. 1996)). For example, if the ALJ’s
decision is supported by substantial evidence, “then reversal would not be

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warranted even if substantial evidence would support the opposite conclusion.”
Bass, 499 F.3d at 509.
The parties do not meaningfully object to Magistrate Judge Patti’s thorough
recitation of the medical evidence in the record, thus the Court adopts the evidence
as summarized in the Report and Recommendation. Rather, Defendant raises two
objections to the Report and Recommendation, primarily concerning the ALJ’s
conclusions and analysis of the medical evidence. Defendant’s two objections are
discussed below.
B.

The ALJ Erred by Failing to Comply with the Appeals Council’s First
Remand Order
The first question is whether the ALJ complied with a remand order from the

Appeals Council. A brief discussion of procedural history will bring this issue into
focus. Plaintiff filed her application for disability insurance benefits on March 16,
2009, alleging that she had been disabled since December 26, 2006 (Tr. at 274-280).
Plaintiff later amended her disability onset date to October 7, 2005 (Tr. at 93).
Plaintiff’s application was denied (Tr. at 165-168) and she sought a de novo hearing
before an Administrative Law Judge (“ALJ”). (Tr. at 169-170). ALJ Jeanne
VanderHeide held a hearing on January 5, 2011 (Tr. at 86-138). On March 22,
2011, the ALJ issued an opinion which found Plaintiff not disabled (Tr. at 141-154).
Plaintiff appealed this denial and, in August 2012, the Appeals Council vacated and
remanded the ALJ’s decision (Tr. at 158-161). Specifically, among other things, the
Appeals Council directed the ALJ to hold a second hearing, and:

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

Obtain evidence from a medical expert to clarify the nature and
severity of Plaintiff’s mental impairments;



Further evaluate Plaintiff’s mental impairments;



Further evaluate Plaintiff’s residual functional capacity (RFC) by
evaluating treating and non-treating source opinions and
nonexamining source opinions and to explain the weight given to such
evidence (Tr. at 160-161).

On remand, the case was assigned to the same ALJ, who held another hearing on
March 27, 2013 (Tr. at 38-85). On May 11, 2013, the ALJ issued a decision which
again found Plaintiff not disabled (Tr. at 16-33). Plaintiff appealed again, but on
December 24, 2014, the Appeals Council summarily denied Plaintiff’s request for
further review (Tr. at 1-3). The ALJ’s second decision thus became the
Commissioner’s final decision. Plaintiff then timely commenced this case.
Defendant contends that this Court lacks jurisdiction to evaluate whether the
ALJ complied with the Appeals Council’s remand order, because a second review by
the Appeals Council endorsed the ALJ’s decision following the remand. There is no
consensus among federal courts regarding whether an ALJ’s failure to follow
Appeals Council directives in a remand order may serve as independent grounds for
reversal, in the absence of some other error. See Schults v. Colvin, 2014 WL
798399, *3 (E.D. Ky. Feb. 27, 2014). “Differing opinions exist not only between
circuits, but also among courts within the Sixth Circuit which has not considered
this particular issue.” Id. For example, district courts within this Circuit have held
they lacked jurisdiction to review what they viewed as an internal agency matter
that arose prior to issuance of the Commissioner’s final decision. See, e.g., Sharay v.

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Comm’r of Soc. Sec., 2016 WL 8114220, *1 (E.D. Mich. Aug. 28, 2016), report and
recommendation adopted, 2016 WL 5539791 (E.D. Mich. Sept. 30, 2016); Cooper v.
Colvin, 2014 WL 2167651, *2 (W.D.Ky. May 23, 2014); Brown v. Comm’r of Soc.
Sec., 2009 WL 465708, *5 (W.D. Mich. Feb. 24, 2009). Other district courts have
held this is a procedural error that denied the plaintiff fair process and, therefore,
reversed the final decision of the Commissioner and, pursuant to sentence four of 42
U.S.C. § 405(g), remanded the case back to the Commissioner for further
proceedings. See, e.g., Godbey v. Colvin, 2014 WL 4437647, at *5 (W.D. Ky. Sept. 9,
2014); Salvati v. Astrue, 2010 WL 546490, *5–8 (E.D. Tenn. Feb. 10, 2010). At least
three district courts within the Sixth Circuit have for the purposes of the analysis,
assumed, without deciding, that such an error may serve as an independent ground
for reversal, and the court thus has jurisdiction to consider the issue. See Kearney
v. Colvin, 2014 WL 1091968, *7 (S.D. Ohio March 18, 2014); Schults v. Colvin, 2014
WL 798399, *3–4 (E.D. Ky Feb. 27, 2014); Long v. Comm’r of Soc. Sec., 2012 WL
4009597, *2–3 (S.D. Ohio Sept. 12, 2012).
The Commissioner’s own regulations require an ALJ to “take any action that
is ordered by the Appeals Council . . . .” 20 C.F.R. §404.977(b). In Godbey, a district
court held that, “[t]his means administrative law judge compliance with a remand
order is a mandatory procedural requirement under the Commissioner’s own
regulations. Thus, when an administrative law judge fails to comply with an
emphatic directive . . . within a remand order, the administrative law judge’s
decision does not comport with applicable procedural law.” Godbey, 2014 WL

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4437647, at *7 (citations omitted). Magistrate Judge Patti recommended that this
Court conclude that an ALJ’s failure to comply with an order of the Appeals Council
violates a claimant’s right to receive fair process as embodied in the Commissioner’s
own administrative regulations. The Court agrees with this recommendation, and
holds that the failure by an ALJ to follow a remand order from the Appeals Council,
even if that failure is allowed to stand by a later Appeals Council ruling, can
constitute a reversible error in federal court. This holds true regardless of whether
substantial evidence otherwise supports the Commissioner’s final decision. See
Salvati, 2010 WL 546490150, at *6-7.
Turning to the particulars of the ALJ’s second opinion, Magistrate Judge
Patti correctly noted that the Appeals Council specifically required the ALJ to
evaluate treating, non-treating and examining source opinions, and to explain what
weight was given to each source’s opinion. However, the ALJ’s second opinion did
not mention Dr. Mohammed (a treating psychiatrist) or Ms. Azmeh (a treating
social worker) and there is no explanation of what weight each of their opinions was
given. Moreover, the ALJ expressly found the IQ testing by Dr. Schimmel to be
invalid but did not explicitly state what weight, if any, she gave to his overall
opinions (Tr. at 28). As such, this matter must be remanded, as the ALJ in this
case did not follow the directives of the Appeals Council. On remand, the ALJ is
directed to discuss the opinions of all sources, with an explanation of the weight
given to each source’s opinion, as originally ordered by the Appeals Council (see Tr.
at 158-161).

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C.

The ALJ’s Decision Is Not Supported by Substantial Evidence

Magistrate Judge Patti’s Report and Recommendation found an additional,
independent, reason warranting remand. Namely, that the ALJ failed to properly
evaluate the treating and non-treating examining source opinions in the record.
The Court also agrees with this recommendation.
The primary error involves the ALJ’s conclusion concerning Plaintiff’s mental
condition known as somatoform disorder. Following remand, Martin Macklin, M.D.
testified as a medical expert. Dr. Macklin testified that he had not examined or
treated Plaintiff, but that he had reviewed the record (Tr. at 70, 74-75). When
asked which impairments of Plaintiff’s were established by medically acceptable
clinical and laboratory findings, Dr. Macklin mentioned depression, anxiety (which
he testified was sometimes diagnosed in the record as panic disorder), and “either
organic mental disorder or mental retardation. . . .” (Tr. at 75). Dr. Macklin also
stated “there’s also some elements of somatoform disorder, and counsel mentioned
histrionic. We’re not supposed to use that term anymore, so—it’s a sexist term, so
we don’t use histrionic anymore . . . . [W]e use somatoform disorder now, or
something similar to that” (Tr. at 76). Dr. Macklin described the combination of
those impairments, along with ADHD, as being severe (Tr. at 76-77).
In fact, Dr. Macklin believed the combination of Plaintiff’s impairments
equaled Listing 12.07, which pertains to somatoform disorder. Dr. Macklin also
testified that Plaintiff has marked difficulties in social functioning and in
maintaining concentration, persistence and pace, despite her having successfully

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taken some college courses (Tr. at 82). Dr. Macklin’s testimony concluded with the
following exchange:
Q. [ALJ] Yeah, and I guess my question is, I mean, honestly, I’m surprised she
did—with all that was going on got as far as she did, but, you know, if the—
but that’s different from saying that an individual would be—not be able to
work at a job where it was simple, routine tasks, low-stress environment,
occasional decision making, only occasional changes in the work setting, no
fast-paced production work, occasional interaction with [the] public and others.
A. [Dr. Macklin] It is very different, because she just—she only had to be there
[presumably school] for an hour at a time, and didn’t show up part of the time.
You can’t work like that. You can’t be employed with those conditions (Tr. at
84).
The ALJ rejected Dr. Macklin’s somatoform disorder diagnosis, at least in part,
because “during the course of approximately 5 years of mental health treatment, no
other medical professional have [sic] prepared any treatment notes that support Dr.
Macklin’s diagnosis” (Tr. at 24). This conclusion is not supported by substantial
evidence.
The medical record is replete with references to Plaintiff’s displaying
symptoms of somatoform disorder, or the outmoded terms for that condition:
“histrionic” or “hysterical.” By way of example, Dr. Dibai’s statement that Plaintiff
“appeared preoccupied with somatic complaints and particularly back pain . . . .”
(Tr. at 666); Dr. Schimmel opined that Plaintiff’s test results mean that
“[d]epressive and hysterical features are likely” (Tr. at 544); Dr. Mohammed’s
notation that Plaintiff “reports the following somatic complaints: Difficulty with
sleep, difficulty with appetite, abdominal pain, tachycardia, shortness of breath,
sweating, headache, dizziness, crying spells, decreased energy, loss of interest” (Tr.

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at 535); Dr. Boneff’s diagnosis that Plaintiff suffers from “[m]ixed personality
disorder with histrionic, borderline, narcissistic, and dependent features” and his
statement that Plaintiff “appeared to exaggerate her difficulties throughout the
evaluation, presenting in an immature fashion and acting in a histrionic manner”
(Tr. at 670, 673). In sum, the ALJ’s statement about the record containing nothing
to support Dr. Macklin’s somatoform disorder diagnosis is not supported by
substantial evidence, and a remand is required on this issue alone.
Relatedly, the ALJ’s nearly wholesale rejection of Plaintiff’s IQ testing results
and diagnosed mental impairments based upon Plaintiff’s ability, at times, to
successfully take classes at Henry Ford Community College1, is also not supported
by substantial evidence. Having the ability to attend college classes for an hour or
so at a time is not the same as having the ability to engage in a typical 40-hour
workweek (i.e., engage in substantial gainful activity). The distinction between
attending school and working full-time was highlighted by Dr. Macklin at the
second hearing (Tr. at 84, block quoted above), but the ALJ’s decision fails to
address this distinction in any meaningful way. On remand, the ALJ should
discuss how Plaintiff’s ability to attend college classes does or does not, correlate to
her having the ability to sustain full-time employment.
CONCLUSION
For the reasons set forth above,

The ALJ concluded that “[t]he remaining evidence demonstrates that, despite the limitations
imposed by her mental impairments, from 2003 to 2012, the claimant was able to retain the mental
capacity to commute to a college campus, sit in classes with other students, and maintain adequate
attention and concentration . . . .” (Tr. at 31).
1

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It is hereby ORDERED that Magistrate Judge Patti’s Report and
Recommendation of December 29, 2016 (Dkt. 21) is ACCEPTED and ADOPTED,
and Defendant’s objections (Dkt. 22) thereto are OVERRULED.
It is FURTHER ORDERED that Plaintiff’s motion for summary judgment
(Dkt. 17) is GRANTED and Defendant’s motion for summary judgment (Dkt. 19) is
DENIED.
Accordingly, it is ORDERED that this matter be REMANDED for further
proceedings consistent with this opinion.
SO ORDERED.

s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Dated: February 28, 2017
Certificate of Service
I hereby certify that this Order was electronically submitted on February 28,
2017, using the CM/ECF system, which will send notification to each party.
By: s/A. Chubb
Case Manager

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