Elms v. Commissioner of Social Security
OPINION and ORDER GRANTING PLAINTIFF'S 17 MOTION for Summary Judgment and Brief in Support, DENYING DEFENDANT'S 24 MOTION for Summary Judgment AND REMANDING THE CASE FOR FURTHER ADMINISTRATIVE PROCEEDINGS - Signed by Magistrate Judge R. Steven Whalen. (CCie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Civil Action No. 16-10180
U.S. District Judge
HON. R. STEVEN WHALEN
U.S. Magistrate Judge
COMMISSIONER OF SOCIAL
OPINION AND ORDER
Plaintiff Cornell Elms (“Plaintiff”) brings this action under 42 U.S.C. §405(g),
challenging a final decision of Defendant Commissioner denying his application for
Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under the
Social Security Act. For the reasons discussed below, Defendant’s Motion for Summary
Judgment [Docket #24] is DENIED. Plaintiff’s Motion for Summary Judgment [Docket #17]
is GRANTED to the extent that the case is remanded to the administrative level for further
On October 16, 2012, Plaintiff filed an applications for DIB and SSI, alleging an onset
of disability date of June 11, 2012 (Tr. 166, 173).1 After the initial denial of the claim,
Plaintiff filed a request for an administrative hearing, held on February 26, 2014 in Detroit,
Michigan before Administrative Law Judge (“ALJ”) Michael R. Dunn (Tr. 29). Plaintiff,
represented by Ronald D. Glotta, testified (Tr. 35-48), as did Vocational Expert (“VE”) Don
Harrison (Tr. 48-55). On August 13, 2014, ALJ Dunn found Plaintiff not disabled (Tr. 1324). On November 25, 2015, the Appeals Council denied review and declined to add newer
medical records to the transcript on the basis that they were irrelevant to whether Plaintiff
was disabled on or before August 13, 2014 (Tr. 1-6).
Plaintiff filed for judicial review of the final decision in this Court on January 19,
Plaintiff, born December 24, 1966, was 47 when ALJ Dunn issued his decision (Tr.
24, 166). He completed two years of college and worked previously as a laborer and loss
prevention specialist at a retail store (Tr. 205). His application for benefits states that he is
disabled as a result of depression, headaches, and problems of the neck, back, and shoulder
A. Plaintiff’s Testimony
Plaintiff offered the following testimony:
He lived in Taylor, Michigan with his sister (Tr. 35). He held a valid driver’s license
and drove about three days a week (Tr. 35). He was unable to drive more than 40 minutes
An earlier application for disability benefits was denied on February 4, 2011 (Tr.
at a time due to neck, back, and right shoulder pain (Tr. 35). He stood 5' 7" and weighed 175
pounds (Tr. 36). He was divorced with one child, 12 (Tr. 36).
Plaintiff became disabled on June 11, 2012 due to a motor vehicle accident (Tr. 37).
As a result, his preexisting conditions of depression, headaches, and neck, back, and shoulder
problems were exacerbated (Tr. 37). Due to the accident, he was diagnosed with a herniated
disc (Tr. 38). He experienced low back pain radiating down to his right ankle (Tr. 39). His
neck and shoulder pain were related (Tr. 39). Although Plaintiff experienced depression, he
had not received treatment since before the accident (Tr. 40). His medication was limited
to Vicodin, Xanax, and aspirin (Tr. 41). He denied current medication side effects (Tr. 41).
He did not require the use of splints or braces but used a cane prescribed by a treating
physician (Tr. 42). He denied the use of alcohol but admitted to using marijuana up to twice
a week (Tr. 42).
Plaintiff was unable to walk for more than 15 steps before requiring a rest (Tr. 42-43).
He relied on the cane to cope with shooting neck and right lower back pain (Tr. 43). He was
unable to sit for more than 45 minutes at a time (Tr. 43). He did not experience problems
with manipulative activities and was able to dress himself (Tr. 43). He was able to prepare
simple meals, do laundry, and make short grocery trips but was unable to vacuum (Tr. 4344). On a typical day, he would arise, perform exercises, and then watch television (Tr. 44).
In response to questioning by his attorney, Plaintiff noted that he had discussed
obtaining a medical marijuana card with his treating physician (Tr. 44). Plaintiff reported
hand numbness while he slept and “sometimes during the day” (Tr. 44). He attended
rehabilitation after the accident but did not have insurance coverage for either additional
rehabilitation or mental health treatment (Tr. 45). He experienced headaches one to three
times a week at which time he would lie down until the headache subsided (Tr. 65).
Records Related to Plaintiff’s Treatment
On June 11, 2012, Plaintiff received emergency treatment after his car was struck
while he was waiting at a traffic light (Tr. 248-249). Plaintiff reported moderate pain and
a headache (Tr. 248). He appeared fully oriented with a full range of motion (Tr. 248-250).
A CT of the brain was negative for abnormalities other than a soft tissue swelling of the scalp
(Tr. 252, 375, 476). A CT of the cervical spine showed a disc herniation at C5-C6 (Tr. 254).
Imaging studies of the lumbar spine, pelvis, and thoracic spine were essentially unremarkable
(Tr. 256-258). Plaintiff was discharged the same day in satisfactory condition (Tr. 259).
Rehabilitation records from the following month note that Plaintiff received pool
therapy (Tr. 266). Plaintiff reported intermittent right arm and hand pain (Tr. 269). The
same month, Donald L. Newman, M.D. noted Plaintiff’s report of cervical and lumbar spine
stiffness and bilateral hand numbness (Tr. 350, 395). In August, 2012, Plaintiff reported
good results from heat therapy and less frequent pain (Tr. 304, 306). He was able to walk
normally without the use of a cane and appeared comfortable sitting (Tr. 309). In September,
2012, Plaintiff reported lower back pain and “numbness and pain in both hands” (Tr. 292).
He reported to Dr. Newman that therapy was not helping (Tr. 349). Dr. Newman represcribed Vicodin (Tr. 349). In October and November, 2012, Plaintiff reported persistent
neck and low back pain (Tr. 273, 275, 282, 285, 394, 466).
In November, 2012, Dr.
Newman observed a reduced bilateral hand grip (Tr. 347, 393). Plaintiff reported using a
heating pad for pain (Tr. 345).
Dr. Newman’s June, 2013 records state that Plaintiff’s activities had decreased since
the accident one year earlier due to stiffness and tightness of the cervical and lumbar spine
(Tr. 388). September, 2013 records by Dr. Newman state that Plaintiff exhibited a reduced
range of cervical spine motion and radiating lumbar spine pain (Tr. 387). Dr. Newman’s
December, 2013 records state that the “auto accident case settled” but that Plaintiff was
awaiting a hearing in the claim for DIB benefits (Tr. 386). Dr. Newman’s February, 2014
treating records state that Plaintiff experienced arm and hand numbness with constant lumbar
spine pain (Tr. 385, 456). The same month, Dr. Newman testified under oath that before the
June, 2012 accident, Plaintiff experienced difficulty standing greater than 45 minutes or
lifting/pulling greater than 35 pounds (Tr. 407). Dr. Newman noted that Plaintiff reported
severe headaches occurring two to three times a day and lasting for half an hour (Tr. 409).
Dr. Newman noted that the headaches were consistent with diagnosis of disc herniation at
C5-C6 (Tr. 410). He found that Plaintiff’s “ability to cope has been severely compromised
due to . . . chronic pain and the use of pain medication” (Tr. 410). He found that Plaintiff
would have difficulty working more than two to four hours a day, even with a sit/stand option
(Tr. 410). Dr. Newman noted that Plaintiff would require work where he could “actually .
. . lie down to unload his spine and head and neck” (Tr. 410). Dr. Newman’s May, 2014 state
that Plaintiff reported constant cervical pain, stiffness, and burning (Tr. 502).
2. Non-Treating Records
In October, 2012, Stanley S. Lee, M.D. performed a one-time examination relating
to the accident claim, noting Plaintiff’s report of neck, upper back, middle back, lower back,
shoulder, and upper extremity pain (Tr. 497-501). Dr. Lee observed 5/5 hip strength, a full
range of spinal motion, normal muscle tone, and a normal gait (Tr. 499). He concluded that
Plaintiff experienced only a “minor soft tissue strain” and did not require “any further
medical treatment, household replacement services, attendant care, activity or work
restrictions” (Tr. 500).
In January, 2013, Hugh Bray, Ph.D. performed a consultative psychological
examination on behalf of the SSA, noting Plaintiff’s report of a 2009 diagnosis of depression
by a psychiatrist at the Detroit Medical Center (“DMC”) (Tr. 353). Plaintiff reported that
physical limitations, financial constraints, and divorce contributed to the depression (Tr.
353). He denied current mental health therapy (Tr. 354).
Dr. Bray observed “pain behavior” (Tr. 354). Plaintiff reported fair relationships with
friends, one neighbor, and his employer (Tr. 355). He indicated that he was able to perform
tasks of daily living “slowly due to pain or mobility issues” (Tr. 355). Dr. Bray noted that
Plaintiff used a cane (Tr. 355). Plaintiff exhibited adequate contact with reality and “logical,
organized and goal directed” speech with low self esteem (Tr. 356). He displayed “average”
“concentration, attention, persistence and effort” (Tr. 357). Dr. Bray found mild limitation
in concentration and mild to moderate ability to “withstand stress and pressure associated
with day to day work activities” (Tr. 358).
The same day, Jack Solomon, M.D. performed a consultative physical examination
on behalf of the SSA, noting a history of back and neck pain since the June, 2012 accident
(Tr. 360). Plaintiff reported that he currently took Flexeril and Vicodin (Tr. 361). Dr.
Solomon noted that Plaintiff was using a cane and was “in obvious pain” (Tr. 361). Straight
leg raising test was positive bilaterally (Tr. 361). Dr. Solomon concluded that Plaintiff
“probably has lumbar radiculopathy” and “may have cervical radiculopathy” resulting in right
hand weakness (Tr. 361, 364). He concluded that Plaintiff required the use of a cane (Tr.
In February, 2013, Rose Moten, Ph.D. performed a non-examining review of the
treating and consultative records on behalf of the SSA, finding that Plaintiff experienced
mild limitation in activities of daily living and moderate limitation in social functioning and
concentration, persistence, or pace (Tr. 87-88). The following day, Muhammad Mian, M.D.
performed a non-examining review of the records pertaining to Plaintiff’s physical
conditions, finding that he could lift 20 pounds occasionally and 10 frequently; sit, stand, or
walk for six hours in an eight-hour workday; and push and pull without limitation (Tr. 90).
Dr. Mian restricted Plaintiff to occasional postural activities (Tr. 90). He limited Plaintiff
to occasional reaching with the right arm (Tr. 91).
Vocational Expert Testimony
VE Don Harrison classified Plaintiff’s past work as a loader as unskilled and medium
and work as a security guard, semiskilled and exertionally light (medium as performed)2 (Tr.
241). The ALJ posed the following question, taking into account Plaintiff’s age, educational
level, and past work:
Assume the worker has the residual functional capacity to perform light work
as defined in the regulations. The worker could do not overhead [reaching]
with his right dominant upper extremity. And can only understand, remember
and carry out simple, repetitive tasks with occasional interaction with coworkers and the general public. Within the parameters of that hypothetical,
could such a worker perform any of the claimant’s prior work as you have
described it? (Tr. 50).
The VE testified that the above-described individual would be unable to perform
Plaintiff’s past relevant work but could perform the exertionally light work of a small
products assembler (2,000 positions in southeastern Michigan); light fixture inspector
(2,500); and hand packer (1,800) (Tr. 51).
20 C.F.R. § 404.1567(a-d) defines sedentary work as “lifting no more than 10 pounds
at a time and occasionally lifting or carrying articles like docket files, ledgers, and small
tools; light work as “lifting no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds;” medium work as “lifting no more than 50
pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds;” and
that exertionally heavy work “involves lifting no more than 100 pounds at a time with
frequent lifting or carrying of objects weighing up to 50 pounds.
The ALJ then posed an entirely new set of restrictions:
Lifting and carrying up to 20 pounds occasionally, 10 pounds frequently in light
work. I want you to assume our worker’s going to require a sit/stand option
every 30 minutes provided that the exercise of the option does not cause the
worker to be off task more than 10 percent of the day. The work also has to
accommodate the use of a handheld assistive device at all times when walking
but not required when standing at the workstation, and the contra-lateral upper
extremity may be used to lift and carry up to the exertional limitations. There
should be no overhead reaching with the right upper extremity. There should
be occasional – there can be up to occasional reaching in all other directions
with the right upper extremity. There can be frequent handling and fingering
with the right upper extremity. Our worker is limited to occasional climbing of
ramps and stairs, no climbing of ladders or scaffolds. Can occasionally
balance, stoop and crouch, should never be required to kneel or crawl. The
worker should not be exposed to unprotected heights, must avoid exposure to
hazardous machinery. The work should not require commercial driving. Our
worker must avoid concentrated exposure to vibration. The work should be
limited to simple, routine and repetitive unskilled tasks performed a SVP 1 or
2, as defined in the Dictionary of Occupational Titles [“DOT”], and must be
free of fast paced production requirements. There should be no more than
occasional interaction with supervisors and co-workers, and no interaction with
the public. Within those parameters, could such a worker do the claimant’s past
work either as performed, or as customarily performed in the economy? (Tr. 5153).
The VE testified that the second set of restrictions would preclude the past relevant
work and reduce the small products assembler job numbers to 750; light fixture
inspector, 1000; and packer, 750 (Tr. 53). He added that if the second set of restriction
were amended to limit the individual to sedentary work, he could perform the jobs of
order clerk (1,000); optical inspector (1,000); and surveillance monitor (1,200) (Tr.
The VE testified that if the same individual were off task more than 20 percent
of the day due to “the distracting nature of pain, the need to frequently change
positions, [and] need to occasionally take breaks in addition to regularly scheduled
breaks,” or, were required to miss three or more days of work each month, all
competitive work would be precluded (Tr. 54). The VE stated that his testimony was
consistent with the information found in the DOT except for the testimony regarding
the sit/stand option, need to be off-task, and absenteeism which was based on his own
professional experience (Tr. 54).
D. The ALJ’s Decision
ALJ Dunn noted that in an earlier application for benefits, Plaintiff was found
not disabled on or before February 4, 2011 (Tr. 13). In contrast to the earlier
determination wherein Plaintiff was found to be capable of exertionally light work,
ALJ Dunn found “new and material evidence” created subsequent to February 4, 2011
determination supported the finding that Plaintiff was limited to sedentary work (Tr.
13-14, 61-71)(citing Drummond v. CSS, 126 F. 3d 837 (6th Cir. 1997); SSA
Administrative Ruling (“AR”) 98-3(6).
ALJ Dunn then determined that Plaintiff experienced the severe impairments
of “status post right rotator cuff surgery, degenerative disc disease of the cervical spine
with moderate spinal canal stenosis, degenerative disc disease of the lumbar spine with
radiculopathy, headaches, depressive disorder, and anxiety disorder” but that none of
the conditions met or medically equaled an impairment listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1 (Tr. 16-17). The ALJ found that Plaintiff experienced mild
limitation in activities of daily living and moderate limitation in social functioning and
concentration, persistence, or pace (Tr. 17-18). He found that Plaintiff retained the
residual functional capacity (“RFC”) for sedentary work with the following additional
The claimant requires the option to change position from sitting to standing
and vice versa every 30 minutes; a hand held assistive device at all times when
walking but not required when standing at the work station; and the
contralateral upper extremity may be used to lift and carry up to the exertional
limitations. The claimant can reach occasionally with his right upper
extremity, but can never reach overhead with the right upper extremity. He
can frequently handle and finger with his right upper extremity. He also can
only occasionally balance, stoop, crouch, and climb ramps and stairs. He can
never kneel, crawl or climb ladders, ropes or scaffolds. Further he can never
be around unprotected heights and must avoid hazardous machinery,
commercial driving, and concentrated exposure to vibration. Mentally, the
claimant is limited to simple, routine and repetitive unskilled tasks performed
at an SVP 1or 2 [unskilled work] as defined in the DOT, and that are free of
fast paced production requirements. Finally, he can only occasionally interact
with supervisors and coworkers and can never interact with the public (Tr. 1819).
Citing the VE’s testimony, the ALJ found that Plaintiff could perform the sedentary,
unskilled work of an order clerk, optical inspector, and surveillance system monitor (Tr. 23).
The ALJ discounted Plaintiff’s allegations of limitation to extent that he claimed a
level of impairment exceeding the restrictions set forth in the RFC (Tr. 20). The ALJ noted
that Plaintiff’s daily activities included “housekeeping, laundry, cooking, shopping, driving,
watching television, reading, playing games, taking walks and attending church” (Tr. 20).
The ALJ noted that Plaintiff’s hearing testimony reflected “average concentration, attention,
persistence, and effort” (Tr. 20).
The ALJ declined to accord controlling weight to Dr. Newman’s opinion that Plaintiff
would experience difficulty working more than four hours a day, needed to lie down
periodically, and experienced disabling depression (Tr. 21). The ALJ found that Dr.
Newman’s opinion was unsupported by “objective clinical and diagnostic abnormalities . .
.” (Tr. 21). The ALJ gave “significant weight” to the Dr. Solomon’s consultative findings
and “great weight” to Bray’s psychological consultative findings (Tr. 22).
STANDARD OF REVIEW
The district court reviews the final decision of the Commissioner to determine
whether it is supported by substantial evidence. 42 U.S.C. §405(g); Sherrill v. Secretary of
Health and Human Services, 757 F.2d 803, 804 (6th Cir. 1985). Substantial evidence is more
than a scintilla but less that a preponderance. It 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) (quoting Consolidated Edison Co. v. NLRB,
305 U.S. 197, 229, S. Ct. 206, 83 L.Ed.126 (1938)). The standard of review is deferential and
“presupposes that there is a ‘zone of choice’ within which decision makers can go either way,
without interference from the courts.” Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir.
1986)(en banc). In determining whether the evidence is substantial, the court must “take into
account whatever in the record fairly detracts from its weight.” Wages v. Secretary of Health
& Human Services, 755 F.2d 495, 497 (6th Cir. 1985). The court must examine the
administrative record as a whole, and may look to any evidence in the record, regardless of
whether it has been cited by the ALJ. Walker v. Secretary of Health and Human Services,
884 F.2d 241, 245 (6th Cir. 1989).
FRAMEWORK FOR DISABILITY DETERMINATIONS
Disability is defined in the Social Security Act as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months.” 42 U.S.C. §423(d)(1)(A). In
evaluating whether a claimant is disabled, the Commissioner is to consider, in sequence,
whether the claimant: 1) worked during the alleged period of disability; 2) has a severe
impairment; 3) has an impairment that meets or equals the requirements of an impairment
listed in the regulations; 4) can return to past relevant work; and 5) if not, whether he or she
can perform other work in the national economy. 20 C.F.R. §416.920(a). The Plaintiff has
the burden of proof at steps one through four, but the burden shifts to the Commissioner at
step five to demonstrate that, “notwithstanding the claimant's impairment, he retains the
residual functional capacity to perform specific jobs existing in the national economy.”
Richardson v. Secretary of Health & Human Services, 735 F.2d 962, 964 (6th Cir.1984).
A. The Analysis of the Medical Opinions
Plaintiff argues that the ALJ erred by discounting Dr. Newman’s February, 2014
opinion of disabling limitation. Plaintiff’s Brief, 7-13 (citing Tr. 20-21, 410), Docket #17,
Pg ID 637. Plaintiff contends that Dr. Newman’s findings of limitation are consistent with
Dr. Solomon’s one-time consultative conclusions. Id. at 9.
“[I]f the opinion of the claimant's treating physician is supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] case record, it must be given controlling weight.” Hensley v.
Astrue, 573 F.3d 263, 266 (6th Cir. 2009)(internal quotation marks omitted)(citing Wilson
v. CSS, 378 F.3d 541, 544 (6th Cir. 2004); 20 C.F.R. § 404.1527(c)(2)). However, in the
presence of contradicting substantial evidence, the ALJ may reject all or a portion of the
treating source's findings, Warner v. Commissioner of Social Sec., 375 F.3d 387, 391-392
(6th Cir. 2004), provided that he supplies “good reasons” for doing so. Wilson, at 547; 20
C.F.R. § 404.1527(c)(2)); SSR 96–2p, 1996 WL 374188, *5 (1996). In explaining the
reasons for giving less than controlling weight to the treating physician’s opinion, the ALJ
must consider (1) “the length of the ... relationship” (2) “frequency of examination,” (3)
“nature and extent of the treatment,” (4) the “supportability of the opinion,” (5) the
“consistency ... with the record as a whole,” and, (6) “the specialization of the treating
source.” Wilson, at 544.
The ALJ discounted Dr. Newman’s findings on the following basis:
[T]he doctor opined about the claimant’s depression, but his office visit notes
do not include any recommendation for mental health treatment, a mental
status examination, or comment about the claimant’s depression. There also
is no frequent treatment or emergency or urgent care treatment that would
support the severity of pain reported. The claimant still drives and sustains all
his own daily activities, which is inconsistent with only being able to sit, stand
and walk for a combination of two to four hours a day. . . . [T]he doctor’s own
reports fails to reveal the type of significant objective clinical and diagnostic
abnormalities one would expect if the claimant were in fact as disabled as
alleged. The doctor addressed this only by citing to reduced range of motion
and acknowledging that the cervical abnormality would cause pain (Tr. 21).
The ALJ also noted that Dr. Newman failed to provide support for the conclusion that
Plaintiff was incapable of even a limited range of sedentary work as set forth in the RFC (Tr.
21). The ALJ assigned Dr. Newman’s opinion “some” weight on the basis that it lacked
“medical support” (Tr. 21).
In contrast, the ALJ accorded “significant” weight to Dr. Solomon’s one-time
consultative examination conclusions (Tr. 22). The ALJ cited Dr. Solomon’s finding of
probable lumbar and cervical radiculopathy and “some need to use a cane” (Tr. 22 citing
As an initial matter, the Court notes that ALJ Dunn crafted a detailed RFC limiting
Plaintiff to a significantly reduced range of sedentary work (Tr. 18-19). However, the
purported reasons for rejecting Dr. Newman’s finding that Plaintiff would be incapable of
working more than two to four hours a day are not wholly satisfactory. First, the June, 2012
imaging studies showing a disc herniation at C5-C6 stands at odds with the ALJ’s conclusion
that Dr. Newman’s finding of upper extremity limitations was unsupported by the diagnostic
studies (Tr. 21, 254). Dr. Newman noted that evidence of the cervical disc herniation was
consistent with the complaints of upper extremity weakness and severe cervical spine pain
Second, Dr. Newman’s finding of significant range of motion limitations also
constitutes “clinical evidence” in support of his disability opinion. “‘Objective medical
evidence’” includes “‘evidence obtained from the application of medically acceptable clinical
. . . diagnostic techniques . . . such as evidence of reduced joint motion . . .’” Wilson v.
Astrue, 2011 WL 4434602, at *6–7 (E.D.Mich. September 23, 2011)(Ludington, J.)(citing
20 C.F.R. § 404.1529(a)). The clinical diagnoses are “‘a useful indicator . . . in making
reasonable conclusions about the intensity and persistence of [the] symptoms and the effect
those symptoms, such as pain, may have on [the] ability to work.’” Id. at *7. “[C]linical
observations are not ‘red herrings’ - they are relevant, objective medical evidence.” Id.
Third, while the ALJ accorded Dr. Newman’s treating opinion limited weight in favor
of the “significant” weight accorded Dr. Solomon’s consultative opinion, the treating and
consultative source opinions do not significantly differ. Both sources found notable range
of motion limitations (Tr. 361, 363, 408-409). Despite the purportedly significant weight
accorded to Dr. Solomon’s opinion, the RFC contains an inexplicably “watered down”
version of Dr. Solomon’s findings. While Dr. Solomon found that Plaintiff “would fall”
without the use of a cane, the RFC includes the need to hold an “assistive device at all times
when walking,” but that a cane was not required while standing (Tr. 18). However, Dr.
Solomon’s findings cannot be read to state that Plaintiff did not also require the use of a cane
while standing. The need to hold a cane with one hand while working in the standing
position would render Plaintiff, at least for part of the workday, unable to perform twohanded work. It is long recognized that the limitation to “one-handed” work significantly
reduces the sedentary job base.
SSR 96-9p, 1996 WL 374185,*7 (June 2, 1996)
(“occupational base for an individual who must use such a device for balance because of
significant involvement of both lower extremities ... may be significantly eroded”).
To be sure, substantial evidence found elsewhere in the record might support the
finding that Plaintiff did not require the use of a can while merely standing. Defendant
correctly notes that the ALJ “‘has the power and discretion to weigh all of the evidence and
to resolve the significant conflicts in the administrative record . . .’” Defendant’s Brief, 13,
Docket #24, Pg ID 710 (citing Workman v. Comm’r of Soc. Sec., 105 F. App’x 794, 801,
2004 WL 1745782 (6th Cir. July 29, 2004)). However, the finding that Plaintiff required a
cane while walking but not standing is critical to determination of whether he is capable of
even a limited range of sedentary work. At a minimum, the ALJ should provide a rational
for this portion of his determination.
In short, the ALJ’s erroneous finding that Dr. Newman’s opinion was not supported
by the objective medical evidence and, the failure to provide support for the finding that
Plaintiff did not require the use of cane while standing both require a remand for further
B. The Newly Submitted Medical Evidence
Plaintiff also requests that the Court consider material submitted for Appeals Council
review subsequent to the ALJ Dunn’s August 13, 2014 opinion. Plaintiff’s Brief at 13-15,
He contends that the Appeals Council improperly declined to amend the
administrative record with December, 2014 treating records and a February 16, 2015
assessment by Richard Krugel, M.D. Id., Plaintiff’s Exhibits B-C, as well as Ephraim M.
Zinberg, M.D.’s February 10, 2015 Residual Functional Capacity Assessment. Id., Plaintiff’s
Exhibit D. He also argues that while the ALJ cited Dr. Newman’s February, 2014 deposition,
the present transcript does not contain the deposition and thus, while the ALJ cited it, he
failed to make it part of the record. Id.
As an initial matter, Plaintiff’s claim that the ALJ referenced a deposition not made
part of the record is without merit. The ALJ noted that Plaintiff provided only excerpts of
the deposition (Tr. 20, 406-411). The ALJ also acknowledged that the deposition excerpts
provided by Plaintiff reflected Dr. Newman’s treating opinion (Tr. 20-21). Plaintiff’s claim
that the ALJ relied on portions of the deposition not found in the record is incorrect.
Moreover, Plaintiff has made no showing that the deposition as a whole contains
information which would be likely to change the administrative decision. Under the sixth
sentence of § 405(g), a court “may at any time order additional evidence to be taken before
the Commissioner of Social Security, but only upon a showing that there is new evidence
which is material and that there is good cause for the failure to incorporate such evidence into
the record in a prior proceeding ...” To satisfy the “materiality” requirement for a “Sentence
Six” remand, a claimant “must demonstrate that there was a reasonable probability that the
Secretary would have reached a different disposition of the disability claim if presented with
the new evidence” Sizemore v. Secretary of Health & Human Services, 865 F.2d 709, 711
(6th Cir. 1988). Plaintiff has not shown that the deposition as a whole is “material” to the
ALJ’s original determination.
For differing reasons, neither Dr. Krugel’s nor Dr. Zinberg’s February, 2015
assessment support a remand for consideration of additional evidence. These opinions
postdate the ALJ’s decision by six months. Plaintiff's condition subsequent to the date of the
ALJ's decision is intrinsically irrelevant. Sizemore, supra, 865 F.2d at 712. Where a
claimant believe that his condition has worsened subsequent to the administrative
determination, the remedy is to make a new application for benefits. Id.
Accordingly, the Court finds that a remand for consideration of the newer material not
meet the requirements of the sixth sentence of § 405(g). However, because remand is
appropriate for the reasons set forth in Section A., above, Plaintiff is not barred from
presenting the newer evidence to the Administrative Law Judge upon remand. See Huber
v. Commissioner of Social Security, 2009 WL 111738, *11 (E.D. Mich. January 15,
2009)(claimant not barred from presented newer material upon remand for further
proceedings under the fourth sentence of § 405(g); Faucher v. Secretary of Health and
Human Services, 17 F.3d 171 (6th Cir. 1994)(same).
For the reasons stated above, Defendant’s Motion for Remand [Docket #24] is
DENIED. Plaintiff’s Motion for Summary Judgment [Docket #17] is GRANTED to the
extent that the case is remanded to the administrative level for further administrative
proceedings consistent with this Opinion and Order.
IT IS SO ORDERED.
s/ R. Steven Whalen
R. STEVEN WHALEN
UNITED STATES MAGISTRATE JUDGE
Dated: September 18, 2017
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was sent to parties of record
on September 18, 2017, electronically and/or by U.S. mail.
s/Carolyn M. Ciesla
Case Manager to the
Honorable R. Steven Whalen
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