Reed v. Social Security
Filing
22
ORDER granting 15 Motion for Summary Judgment; denying 17 Motion for Summary Judgment. Signed by District Judge Stephanie Dawkins Davis. (Brown, A.)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ARELIOUS REED,
Plaintiff,
v.
Case No. 18-11431
Stephanie Dawkins Davis
United States District Judge
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
____________________________/
OPINION AND ORDER ON CROSS MOTIONS
FOR SUMMARY JUDGMENT (ECF Nos. 15, 17)
I.
PROCEDURAL HISTORY
A.
Proceedings in this Court
On May 5, 2018, pro se plaintiff Arelious Reed filed the instant suit seeking
judicial review of the Commissioner’s unfavorable decision disallowing benefits.
(ECF No. 1). Presently before the court are the parties’ cross-motions for
summary judgment. (ECF Nos. 15, 17). Reed timely filed a reply to the
Commissioner’s motion for summary judgment. (ECF No. 18).
B.
Administrative Proceedings
On May 19, 2015, Reed filed a Title II application for a period of disability
and disability insurance benefits, alleging disability beginning February 19, 2015.
(Tr. 10).1 The Commissioner initially denied his claim on October 22, 2015. (Id.)
He requested a hearing and appeared in person on December 7, 2016 before
Administrative Law Judge Elias Xenos (“the ALJ”) in Detroit, Michigan. (Id.) In
a decision dated March 10, 2017, the ALJ found that Reed was not disabled. (Tr.
10-21). Reed requested a review of this decision, and, on April 9, 2018, the ALJ’s
decision became the final decision of the Commissioner when the Appeals Council
denied his request for review. (Tr. 1-3); Wilson v. Comm’r of Soc. Sec., 378 F.3d
541, 543-44 (6th Cir. 2004).
For the reasons set forth below, the court GRANTS plaintiff’s motion for
summary judgment, DENIES defendant’s motion for summary judgment,
REVERSES the findings of the Commissioner, and REMANDS for further
proceedings under Sentence Four.
II.
FACTUAL BACKGROUND
Reed, who was born in 1979, was 35 years old on February 19, 2015, the
alleged onset date of disability. (Tr. 12). At his administrative hearing, Reed
testified that for the preceding five years he lived alone in a duplex.2 (Tr. 48).
1
The Administrative Record appears on the docket at entry number 12. All references to
this record are identified as “Tr.”
2
The court notes that Reed indicated several times in his function report that he was
homeless. (See e.g., Tr. 169). Reed completed the function report on June 15, 2013—three
years prior to the hearing. (Tr. 176). Thus, Reed’s function report does not jibe with his
testimony. The ALJ found that Reed lived alone in a residence. (Tr. 19). Substantial evidence
supports this finding. The only other mention of homelessness in the record is the state agency’s
2
Prior to claiming disability, Reed worked at Labor Ready as a sales route driver.
On February 4, 2015, Reed was involved in an on-the-job car accident in which the
truck he was driving was struck by another vehicle as he sat stationary at a traffic
light. (Tr. 292, 304). Shortly after the wreck, he began experiencing symptoms
related to his neck and lower back. His claim for disability benefits is based on
“circumferential disc bulging at L4-L5 with bilateral moderate foraminal stenosis”
and “low back pain[,] cervical disc herniation[, and] lumbar disc herniation.” (Tr.
169).
In evaluating Reed’s claim, the ALJ applied the five-step disability analysis
and found at step one that he did not engage in any substantial gainful activity
since February 19, 2015. (Tr. 12). At step two, the ALJ found that Reed has the
following severe impairments: cervical and lumbar spine disorders with
radiculopathy, obstructive sleep apnea, obesity, mood disorder, generalized anxiety
disorder, and attention deficit hyperactivity disorder (ADHD). (Tr. 12). At step
three, the ALJ found that Reed did not have an impairment or combination of
impairments that met or equaled one of the listings in the regulations. (Tr. 13-15).
In making this finding, the ALJ examined Reed’s physical impairments and
determined that he did not meet or medically equal the criteria of any impairment
initial finding (which appears to be based on his function report). (Tr. 70). And during a
physical therapy session on February 3, 2016, Reed indicated that he lives alone. (Tr. 506).
3
listed in 1.00 for musculoskeletal disorders, 3.00 for respiratory disorders, and
11.00 for neurological disorders. (Tr. 13). The ALJ also analyzed Reed’s mental
health impairments under Listings 12.04, 12.06, and 12.08 and found that Reed
satisfied neither the paragraph B nor paragraph C criteria. (Tr. 13-14). Next, the
ALJ determined that Reed has the residual functional capacity (“RFC”) to perform
light work except that he can frequently handle and finger bilaterally; occasionally
climb ramps and stairs; occasionally balance, stoop, crouch, crawl, and kneel; he
cannot climb ladders, ropes, or scaffolds; he requires the ability to sit and stand at
will, provided that he is not off task for more than 10% of the work period; and his
work must be limited to simple, routine, and repetitive tasks. (Tr. 15-19). At step
four, the ALJ determined that Reed cannot perform his past relevant work as a
sales route driver (semi-skilled/medium) and a bus driver (semi-skilled/medium).
(Tr. 19). At step five, the ALJ concluded that there were a significant number of
jobs in the national economy that Reed could perform and, thus, he was not under a
disability from the alleged onset date through the date of the decision. (Tr. 20-21).
III.
DISCUSSION
A.
Standard of Review
In enacting the social security system, Congress created a two-tiered system
in which the administrative agency handles claims, and the judiciary merely
reviews the agency determination for exceeding statutory authority or for being
4
arbitrary and capricious. Sullivan v. Zebley, 493 U.S. 521 (1990). The
administrative process itself is multifaceted in that a state agency makes an initial
determination that can be appealed first to the agency itself, then to an ALJ, and
finally to the Appeals Council. Bowen v. Yuckert, 482 U.S. 137 (1987). If a
claimant does not obtain relief during the administrative review process, the
claimant may file an action in federal district court. Mullen v. Bowen, 800 F.2d
535, 537 (6th Cir.1986).
This court has original jurisdiction to review the Commissioner’s final
administrative decision pursuant to 42 U.S.C. § 405(g). Judicial review is limited
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); Walters v.
Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). In deciding whether
substantial evidence supports the ALJ’s decision, “we do not try the case de novo,
resolve conflicts in evidence, or decide questions of credibility.” Bass v.
McMahon, 499 F.3d 506, 509 (6th Cir. 2007); Garner v. Heckler, 745 F.2d 383,
387 (6th Cir. 1984). “It is of course for the ALJ, and not the reviewing court, to
evaluate the credibility of witnesses, including that of the claimant.” Rogers v.
Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007); Jones v. Comm’r of Soc.
5
Sec., 336 F.3d 469, 475 (6th Cir. 2003) (an “ALJ is not required to accept a
claimant’s subjective complaints and may … consider the credibility of a claimant
when making a determination of disability.”); Walters, 127 F.3d at 531
(“Discounting credibility to a certain degree is appropriate where an ALJ finds
contradictions among medical reports, claimant’s testimony, and other evidence.”).
“However, the ALJ is not free to make credibility determinations based solely
upon an ‘intangible or intuitive notion about an individual’s credibility.’” Rogers,
486 F.3d at 247 (quoting Soc. Sec. Rul. 96-7p, 1996 WL 374186, *4).
If supported by substantial evidence, the Commissioner’s findings of fact are
conclusive. 42 U.S.C. § 405(g). Therefore, this court may not reverse the
Commissioner’s decision merely because it disagrees or because “there exists in
the record substantial evidence to support a different conclusion.” McClanahan v.
Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006); Mullen v. Bowen, 800
F.2d 535, 545 (6th Cir. 1986) (en banc). Substantial evidence is “more than a
scintilla of evidence but less than a preponderance; it is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Rogers, 486
F.3d at 241; Jones, 336 F.3d at 475. “The substantial evidence standard
presupposes that there is a ‘zone of choice’ within which the Commissioner may
proceed without interference from the courts.” Felisky v. Bowen, 35 F.3d 1027,
1035 (6th Cir. 1994) (citations omitted) (citing Mullen, 800 F.2d at 545).
6
The court’s review is limited to an examination of the record only. Bass,
499 F.3d at 512-13; Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). When
reviewing the Commissioner’s factual findings for substantial evidence, a
reviewing court must consider the evidence in the record as a whole, including
evidence which might subtract from its weight. Wyatt v. Sec’y of Health & Human
Servs., 974 F.2d 680, 683 (6th Cir. 1992). “Both the court of appeals and the
district court may look to any evidence in the record, regardless of whether it has
been cited by the Appeals Council.” Heston v. Comm’r of Soc. Sec., 245 F.3d 528,
535 (6th Cir. 2001). There is no requirement, however, that either the ALJ or the
reviewing court discuss every piece of evidence in the administrative record.
Kornecky v. Comm’r of Soc. Sec., 167 Fed. Appx. 496, 508 (6th Cir. 2006) (“An
ALJ can consider all the evidence without directly addressing in his written
decision every piece of evidence submitted by a party.”) (internal citation marks
omitted); see also Van Der Maas v. Comm’r of Soc. Sec., 198 Fed. Appx. 521, 526
(6th Cir. 2006).
B.
Governing Law
The “[c]laimant bears the burden of proving his entitlement to benefits.”
Boyes v. Sec’y of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994);
accord, Bartyzel v. Comm’r of Soc. Sec., 74 Fed. Appx. 515, 524 (6th Cir. 2003).
There are several benefits programs under the Act, including the Disability
7
Insurance Benefits Program of Title II (42 U.S.C. §§ 401 et seq.) and the
Supplemental Security Income Program of Title XVI (42 U.S.C. §§ 1381 et seq.).
Title II benefits are available to qualifying wage earners who become disabled
prior to the expiration of their insured status; Title XVI benefits are available to
poverty-stricken adults and children who become disabled. F. Bloch, Federal
Disability Law and Practice § 1.1 (1984). While the two programs have different
eligibility requirements, “DIB and SSI are available only for those who have a
‘disability.’” Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). “Disability”
means:
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), 1382c(a)(3)(A) (DIB); see also 20 C.F.R. § 416.905(a)
(SSI).
The Commissioner’s regulations provide that disability is to be determined
through the application of a five-step sequential analysis set forth at 20 C.F.R.
§§ 404.1520, 416.920. Essentially, the ALJ must determine whether: (1) the
plaintiff is engaged in significant gainful activity; (2) the plaintiff has any severe
impairment(s); (3) plaintiff’s impairments alone or in combination meet or equal a
Listing; (4) the claimant is able to perform past relevant work; and (5) if unable to
8
perform past relevant work, whether there is work in the national economy that the
plaintiff can perform. Id. “If the Commissioner makes a dispositive finding at any
point in the five-step process, the review terminates.” Colvin, 475 F.3d at 730.
“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
precluded from performing her past relevant work.” Jones, 336 F.3d at 474, cited
with approval in Cruse, 502 F.3d at 540. If the analysis reaches the fifth step
without a finding rejecting the existence of disability, the burden transfers to the
Commissioner. Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006).
At the fifth step, the Commissioner is required to show that “other jobs in
significant numbers exist in the national economy that [claimant] could perform
given [his] RFC and considering relevant vocational factors.” Rogers, 486 F.3d at
241; 20 C.F.R. §§ 416.920(a)(4)(v) and (g); 20 C.F.R. § 416.960(c).
If the Commissioner’s decision is supported by substantial evidence, the
decision must be affirmed even if the court would have decided the matter
differently and even where substantial evidence supports the opposite conclusion.
McClanahan, 474 F.3d at 833; Mullen, 800 F.2d at 545. In other words, where
substantial evidence supports the ALJ’s decision, it must be upheld.
9
C.
Timeliness of the Commissioner’s Answer
Reed argues that the Commissioner failed to timely file an answer. (ECF
No. 15, PageID.1285 (citing Lipp v. Port Auth., 34 A.D.3d 649 (N.Y. Sup. Ct.
2006)). In response, the Commissioner argues that the answer was filed within the
time provided by the Federal Rules of Civil Procedure. (ECF No. 17,
PageID.1302-1303).
Federal Rule of Civil Procedure 4(i) prescribes process-serving requirements
for actions against a federal agency, like the Social Security Administration. Rule
4(i) requires a plaintiff to serve a federal agency by: (1) personal or mail service of
the summons and complaint on the United States Attorney in the district in which
the action is filed (here, the Eastern District of Michigan); (2) mailing a copy of the
summons and complaint by registered or certified mail to the Attorney General of
the United States in Washington, D.C.; and (3) mailing a copy of the summons and
complaint by registered or certified mail to the federal agency (here, the Social
Security Administration). Fed. R. Civ. P. 4(i)(1)-(2). Under Rule 12(a)(2), the
United States must serve an answer to a complaint within 60 days after service on
the United States Attorney. Fed. R. Civ. Pro. 12(a)(2).
The Commissioner timely filed an answer in this matter. This court issued
an order to show cause as to why the plaintiff had not served the complaint. (ECF
No. 7). Reed filed a timely response and provided the court with proof that he had
10
served the Attorney General of the United States and the Social Security
Administration; the response contained no evidence, however, that the plaintiff had
served the U.S. Attorney’s Office in this district. (ECF No. 8). In consideration
of the evidence that Reed provided, the court vacated its order to show cause and
allowed him additional time to serve the complaint on the U.S. Attorney’s Office.
The order permitted Reed to complete service by February 4, 2019. (ECF No. 9).
Reed mailed the service package via the United States Postal Service to the United
States Attorney on January 6, 2019, and the USPS delivered it three days later on
January 9, 2019. (See ECF No. 51-1, PageID.1290). Reed appears to argue that
Rule 12(a)(2)’s 60-day clock begins to run on the date that the plaintiff mails the
summons and complaint. (See ECF No. 15-1, PageID.1290). But such a
construction of the rule is mistaken, as the time does not begin to run until the
plaintiff serves the documents. Fox v. U.S. Postal Serv., 2019 WL 8619622, at *3
(6th Cir. Oct. 30, 2019). The Commissioner has demonstrated that Reed served the
United States Attorney for the Eastern District of Michigan on January 9, 2019—
the date that the office received the summons and complaint. (See ECF No. 15-1,
PageID.1290). When, as here, the time period is stated in days, a party “excludes
the day of the event that triggers the period” in computing the time to respond.
Fed. R. Civ. P. 6(a)(1)(A). Sixty days from January 9, 2019 was March 10, 2019,
which was a Sunday. Under Rule 6(a)(1)(C), when the last day is a Sunday, the
11
period continues to run until the next day that is neither a weekend day nor legal
holiday. Thus, the period ended in this case on Monday, March 11, 2019. The
Commissioner filed an answer on March 8, 2019. (ECF No. 11). For these
reasons, the Commissioner timely filed an Answer.
D.
Step 3
Reed does not articulate any additional grounds for reversal in his opening
brief. But, for the first time in his reply, he asserts that the ALJ erred in finding
that he does not meet or equal a listing and that he provided sufficient evidence of
his disability. (ECF No. 18, PageID.1326). As a general rule, issues raised for the
first time in a reply brief may be deemed waived. See Scottsdale Ins. Co. v.
Flowers, 513 F.3d 546, 553 (6th Cir. 2008) (quoting Novosteel SA v. U.S.,
Bethlehem Steel Corp., 284 F.3d 1261, 1274 (Fed. Cir. 2002)). This is because the
opposing side typically does not have an opportunity to respond when an issue is
not raised in the opening brief. However, here the Commissioner anticipated this
issue in his motion for summary judgment. (ECF No. 17, PageID.1304-1310).
Moreover, in the view of the undersigned, there is a significant error in the ALJ’s
sequential analysis at step three on the issue of medical equivalence, requiring
remand. And, even if not raised by the parties, the Court may raise such an obvious
and significant legal error sua sponte. See e.g., Trainor v. Comm’r of Soc. Sec.,
2014 WL 988993, at *23-24 (E.D. Mich. Mar. 13, 2014) (Berg, J.) (citing Fowler
12
v. Comm’r v. Comm’r of Soc. Sec., 2013 WL 537883, at *3 n. 5 (E.D. Mich. Sept.
25, 2013) (finding no error in magistrate judge sua sponte raising the absence of an
expert opinion on equivalence).3
The Commissioner acknowledges that a single decision-maker reviewed the
medical evidence in this case. (ECF No. 17, PageID.1308) (citing Tr. 76). Under
the “single decision-maker” model, non-medical agency employees are permitted
to render an initial denial without expert opinions on the issue of medical
equivalence or disability. 20 C.F.R. §§ 404.906(b)(2), 416.1406(b)(2). However,
courts in this district overwhelmingly agree that this procedural change at the
initial level did not alter the agency’s “longstanding policy” that a medical opinion
on the issue of equivalency was necessary at the administrative hearing stage at the
time Reed’s hearing occurred. 4
3
As explained in Fowler v. Comm’r of Soc. Sec., 2013 WL 5372883, at *3 (E.D. Mich.
Sept. 25, 2013), the Sixth Circuit has also previously considered the issue of whether certain
impairments meet or equal a listing, even though that issue had not been specifically objected to,
and this practice is not uncommon in this District and throughout the Circuit. See Gwin v.
Comm’r of Soc. Sec., 109 Fed. Appx. 102 (6th Cir. 2004); see also Buhl v. Comm’r of Soc. Sec.,
2013 WL 878772, at *7 n. 5 (E.D. Mich. 2013) (plaintiff’s failure to raise argument did not
prevent the Court from identifying error based on its own review of the record and ruling
accordingly), adopted by 2013 WL 878918 (E.D. Mich. Mar. 8, 2013) (Friedman, J.); Bucha v.
Comm’r of Soc. Sec., 2016 WL 5340271*3 n. 3 (W.D. Mich. 2016) (“While the failure to raise
an argument often constitutes waiver, the Court will not overlook the ALJ's application of the
wrong standard in this case as a matter of law.”); Mian v. Colvin, 2015 WL 2248750, *14 (E.D.
Tenn. 2015) (“[T]he Court may address an issue sua sponte should it find error upon review.”).
4
SSR 17-2p, which became effective on March 27, 2017 and has been interpreted to have
effectively ended the agency’s policy of requiring a medical opinion on equivalence, does not
apply here as the ALJ issued his decision on March 10, 2017. Instead, SSR 96-6p, which
required such an opinion, applies.
13
In short, the Commissioner is required to have a medical opinion to support
the equivalency analysis. See e.g., Barnett v. Barnhart, 381 F.3d 664, 670 (7th Cir.
2004) (“Whether a claimant’s impairment equals a listing is a medical judgment,
and an ALJ must consider an expert’s opinion on the issue.”) (citing 20 C.F.R.
§ 1526(b)); Retka v. Comm’r of Soc. Sec., 1995 WL 697215, at *2 (6th Cir. Nov.
22, 1995) (“Generally, the opinion of a medical expert is required before a
determination of medical equivalence is made.”) (citing 20 C.F.R. § 416.926(b));
Modjewski v. Astrue, 2011 WL 4841091, at *1 (E.D. Wis. Oct. 21, 2011) (warning
that an ALJ who makes a step-three equivalence determination without expert
opinion evidence runs the risk of impermissibly playing doctor); Stratton v. Astrue,
987 F.Supp.2d 135, 148 (D. N.H. 2012) (SSR 96-6p treats equivalence
determinations differently from determinations as to whether an impairment meets
a listing, requiring expert evidence for the former, but not the latter.) (citing
Galloway v. Astrue, 2008 WL 8053508, at *5 (S.D. Tex. 2008) (“The basic
principle behind SSR 96-6p is that while an ALJ is capable of reviewing records to
determine whether a claimant’s ailments meet the Listings, expert assistance is
crucial to an ALJ’s determination of whether a claimant’s ailments are equivalent
to the Listings.”) (citation and quotation marks omitted)). Indeed, the applicable
regulation requires that an opinion by a medical consultant be considered in
making such an assessment:
14
When we determine if your impairment medically equals
a listing, we consider all evidence in your case record
about your impairment(s) and its effects on you that is
relevant to this finding. We do not consider your
vocational factors of age, education, and work experience
(see, for example, § 404.1560(c)(1)). We also consider
the opinion given by one or more medical or
psychological consultants designated by the
Commissioner. (See § 404.1616.)
20 C.F.R. § 404.1526(c) (emphasis added). As noted, the ALJ did not obtain any
opinion from a medical advisor on equivalency in this case regarding Reed’s
severe physical impairments. This was an error. See Fowler, 2013 WL 5372883,
at *4 (collecting cases and remanding because there was no expert medical opinion
on the issue of equivalence)); Manson v. Comm’r of Soc. Sec., 2013 WL 3456960,
at *11 (E.D. Mich. July 9, 2013) (Cohn, J.) (remanding for an expert opinion at
step three). Although the Sixth Circuit has not directly addressed the issue, it has
reasoned that, “[g]enerally, the opinion of a medical expert is required before a
determination of medical equivalence is made.” Retka v. Comm’r of Soc. Sec., 70
F.3d 1272 (6th Cir. 1995); see also, Brown v. Comm’r of Soc. Sec., 2014 WL
222760, at *13 (E.D. Mich. Jan. 21, 2014) (Drain, J.) (The lack of an expert
opinion on whether the claimant’s physical impairments (alone or combined with
her mental impairments) medically equal any listed impairment is clear error and
requires remand where the record is not so lacking in medical findings that a
finding of equivalence is implausible.); Maynard v. Comm’r, 2012 WL 5471150
15
(E.D. Mich. 2012) (“[O]nce a hearing is requested, SSR 96-6p is applicable, and
requires a medical opinion on the issue of equivalence.”) (Cohn, J.); Harris v.
Comm’r, 2013 WL 1192301, *8 (E.D. Mich. 2013) (a medical opinion on the issue
of equivalence is required, regardless of whether the single decision-maker model
is implicated) (Ludington, J.).
Here, as noted, a single decision-maker determined whether Reed’s physical
impairments rendered him disabled at the administrative stage. (Tr. 76). The ALJ
did not rely on that opinion at step three, but instead analyzed Reed’s ability to
meet Listings 1.04, 3.02, and 11.14 himself. (Tr. 13). The ALJ found that Reed
did not present sufficient evidence to satisfy all of the elements of the relevant
Listings. (Id.) Without question, such determinations were well within the ALJ’s
purview and the court and the court finds no error in that evaluation. (Id.)
However, the ALJ then went on to conclude that plaintiff’s physical impairments
did not medically equal any Listing, without the benefit of any medical opinion
and without any indication that plaintiff’s physical impairments, aside from
obesity, were assessed in combination. The ALJ’s analysis in this regard is as
follows:
The severity of the claimant’s physical impairments,
considered singly and in combination, does
not meet or medically equal the criteria of any
impairment listed in 1.00 for musculoskeletal
disorders, 3.00 for respiratory disorders, 11.00 for
neurological disorders, or any impairment
16
listed in Appendix l, Subpart P. Regulations No. 4.
Specifically, the claimant does not meet or
medically equal listing 1.04 because he lacks the
requisite motor and sensory deficits, and there
is no evidence of spinal arachnoiditis or spinal stenosis
resulting in pseudoclaudication. In addition, the
undersigned evaluated the claimant's sleep apnea under
listing 3.02 but found that it did not rise to listing level.
Moreover, the claimant does not meet listing 11.14 for
peripheral neuropathies, as there is no evidence of
disorganization of motor function in two extremities,
resulting in an extreme limitation in the ability to stand
up from a seated position, balance while standing or
walking, or use the upper extremities. In addition, the
record does not support a marked limitation in physical
functioning.
There is no listing which specifically addresses obesity.
Section l.00(Q) of Appendix 1, however, states that
obesity is a medically determinable impairment that is
often associated with disturbance in the musculoskeletal,
respiratory, and cardiovascular body systems, and
disturbance of these systems can be a major cause of
disability in individuals with obesity. Therefore, 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 process, including when assessing an
individual's residual functional capacity, consideration
must be given to any additional and cumulative effects of
obesity. After carefully reviewing the medical record,
however, the undersigned concludes that the claimant's
obesity, singularly or in combination with his other
impairments, is not of the severity to meet or equal the
criteria of any impairment listed in Appendix 1.
(Id.)
17
Notably, though the ALJ’s opinion concludes that Reed neither meets nor
equals any listing, the analysis, with the exception of the obesity discussion, is
framed only in terms of the deficiencies for meeting the criteria for each listing. It
contains no discussion of whether other findings in the record suggest equivalency.
And while some positive findings are discussed elsewhere in the opinion, none are
filtered through the lens of a trained medical professional. Indeed, the record
contains no evidence that a qualified medical advisor assessed the medical
equivalence of Reed’s physical impairments at any stage of review. Although the
Disability Determination and Transmittal form was signed by a psychologist,
Kathy Morrow, Ph.D. (Tr. 65), Dr. Morrow is not qualified to assess Reed’s
physical impairments or their effect in combination with his mental impairments
because Dr. Morrow is not a medical doctor. 5 Thus, the Disability Determination
5
The expert opinion requirement for equivalency can be satisfied by a medical advisor’s
signature on the Disability Determination Transmittal Form. Stratton, 987 F.Supp.2d at 148
(citing SSR 96-6p, 1996 WL 374180, at *3 (The expert-opinion evidence required by SSR 96-6p
can take many forms, including “[t]he signature of a State agency medical ... consultant on an
SSA-831-U5 (Disability Determination and Transmittal Form).”)). In the instant record, there is
Disability Determination and Transmittal Form and Disability Determination Explanation signed
by Kathy Morrow, Ph.D. as to Reed’s mental impairments, but only a single decision-maker
signed these documents as to his physical impairments and functioning. (Tr. 99-105). Dr.
Morrow is not qualified to assess Reed’s mental functioning in combination with his physical
impairments because she is not a medical doctor. See Greene-Howard v. Comm’r of Soc. Sec.,
2017 WL 2118256, at *11 (E.D. Mich. May 15, 2017) (citing Buxton v. Halter, 246 F.3d 762,
775 (6th Cir. 2001) (finding that a psychologist was not qualified to diagnose a claimant’s
physical conditions); Byerley v. Colvin, 2013 WL 2145596, at *11 (N.D. Ind. May 14, 2013)
(“Because the psychologist who prepared the form did not consider physical impairments, it
cannot be relied on as expert opinion that Plaintiff’s combination of physical and mental
impairments do not equal a Listing.”)).
18
Explanation form only contains an assessment of plaintiff’s physical impairments
by a single decision-maker, not any medical advisor. (Tr. 66-79). As such, the
ALJ was left with no medical opinion in this record on the issue of equivalence as
to Reed’s physical impairments, as required by SSR 96-6p.
Compounding the ALJ’s failure to obtain a medical advisor opinion on
equivalence as to plaintiff’s severe physical impairments, is the fact that the ALJ’s
resulting approach only partially addresses a critical component of the equivalence
analysis, namely the requirement to assess severe impairments in combination. If a
claimant has more than one severe impairment (as plaintiff does here), none of
which meet a listing singularly, the Commissioner must determine whether “the
combination of impairments is medically equal to the listed impairment.” 20
C.F.R. § 404.1526(b)(3). Though the ALJ indicated that he considered the impact
of plaintiff’s obesity on each of his impairments, it is not apparent that he
considered all of his severe impairments in combination. See also Wilcox v.
Comm’r of Soc. Sec., 2014 WL 4109921, *4 (E.D. Mich. 2014) (Duggan, J.) (The
ALJ failed to consider the severity of plaintiff’s impairments in combination, as
prescribed by 20 C.F.R. § 416.920(c)); see also 42 U.S.C. § 423(d)(2)(B) (“In
determining whether an ... impairment or impairments are of a sufficient medical
severity such that [a finding of disability would be warranted], the Commissioner
... shall consider the combined effect of all of the individual’s impairments without
19
regard to whether any such impairment, if considered separately, would be of such
severity.”). Likewise, there is no opinion from a medical advisor addressing
whether the plaintiff’s impairments in combination equaled a listing.
The Commissioner argues and the court recognizes that the failure to obtain
a medical opinion on equivalence can amount to harmless error in some instances.
However, the instant circumstances do not appear to qualify. See e.g., Bukowski v.
Comm’r of Soc. Sec., 2014 WL 4823861, at *6 (E.D. Mich. Sept. 26, 2014). As
explained in Bukowski, “‘the harmless error inquiry turns on whether the ALJ
would have reached the same conclusions,’ at Step Three had there been a medical
opinion on the combination of Bukowski’s psychiatric and physical impairments.”
Bukowski, 2014 WL 4823861, at *5. In Bukowski, the failure to obtain an opinion
on equivalence was deemed harmless “given Plaintiff’s failure to adduce evidence
that the physical impairments had any effect on her psychiatric impairments and
her admission that her psychiatric impairments were the basis for her disability.”
Id. at *6.
Here, unlike the facts in Bukowski, Reed has not made any such claim.
Reed’s medical records contain a not insubstantial number of objective medical
findings concerning his physical impairments. Those findings include, amongst
other things: (1) slow/guarded movements in all directions, with pain across the
lumbar spine diffusely along with a diagnosis of cervical and lumbar strain (Tr.
20
294, 310); (2) an MRI of the cervical and lumbar spine on May 1, 2015 showing
C7-T1 moderate right lateral disc protrusion touching and flattening the right
ventral cord and L5-S1 broad-based right sub-articular/foraminal disc protrusion
abutting the right S1 nerve root; Reed was diagnosed with both cervical and
lumbar disc herniations and prescribed lumbar epidural steroid injections with
fluoroscopy L5-S1 (Tr. 219); (3) on April 1, 2015 he showed decreased cadence
(Tr. 300) and his progress was noted to be slower than expected (Tr. 301); (4) an
examination on May 15, 2015 revealed decreased sensation in the left lumbar area
(Tr. 218); (5) an MRI of his cervical spine in March 2016 showed that his
condition had slightly worsened (Tr. 427); (6) because of the pain radiating from
his lower back into his legs, Reed was prescribed high-level narcotic medications,
including Oxycodone HCL – Acetaminophen, Hydrocodone Bitartrate
Acetaminophen, Percocet™ and Morphine along with Diazepam apparently for
anxiety from 2015 into as late as November 2016 (Tr. 451-456, 806); and (7)
orthopedic examination conducted in August 2016 showed decreased strength in
his left upper extremity, 4/5 strength in his left leg and slight pain in his lower back
with bilateral leg lift. (Tr. 392).
Notwithstanding the ALJ’s analysis on meeting the listing, considering the
evidence listed above, some of which the ALJ discussed, it cannot be said that the
record is so lacking in medical findings that a finding of equivalence is
21
implausible. Indeed, although certainly possible, it is not evident that a trained
medical advisor, viewing the record as a whole and along a continuum, while also
considering all of plaintiff’s impairments in combination would have reached the
same conclusion. The caution in Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647
(6th Cir. 2009) is apt here. There the Sixth Circuit observed that “courts generally
should exercise caution in conducting harmless error review” of a step three
finding because harmlessness “may be difficult, or even impossible, to assess.” Id.
at 655-58. Its pertinence here is that neither the ALJ nor this court possesses the
requisite medical expertise to interpret the significant medical evidence in the
record to determine if plaintiff’s impairments, in combination, equal any of the
applicable listings. See also Allor v. Colvin, 2016 WL 7650798, at *6 (E.D. Mich.
Nov. 28, 2016) (Stafford, M.J.), report and recommendation adopted 2017 WL
2350061 (E.D. Mich. May 31, 2017) (Cox, J.). The objective medical findings in
this case simply do not lend themselves to neat lay interpretation by the court; and,
in view of the more than minimal number of medical findings, the court does not
deem it a prudent exercise to analyze equivalence in the first instance. See
Freeman v. Astrue, 2012 WL 384838 at *5 (E.D. Wash. Feb 6, 2012) (“Neither the
ALJ nor this court possesses the requisite medical expertise to determine if
Plaintiff’s impairments (including pain) in combination equal one of the
Commissioner’s Listing.”); Brown v. Comm’r of Soc. Sec., 2014 WL 222760, at
22
*15 (E.D. Mich. Jan. 21, 2014) (Drain, J.) (Plaintiff’s appreciable medical findings
supporting her impairments, while insufficient to meet a listing, presented
sufficient evidence to suggest that a finding of medical equivalence was at least
plausible, thereby necessitating a medical opinion on the issue).
In fashioning the RFC without the assistance of a medical opinion on
equivalence of plaintiff’s physical impairments and their combination, the ALJ
carved out several limiting functions based on his own interpretation of the
medical records. For these reasons, the court concludes that this matter must be
remanded so that the ALJ can obtain the opinion of a qualified medical advisor on
the issue of equivalence as to plaintiff’s impairments in combination and for
reevaluation of the treating physician opinion, plaintiff’s credibility, and the RFC
in light of the new opinion. Updated vocational expert testimony may also be
necessary, based on the conclusions of the medical advisor.
E.
Non-Acceptable Medical Sources
Reed argues, for the first time in reply, that the ALJ’s decision should be
reversed or remanded because he failed to consider the observations of Reed’s
“non-physician medical professionals.” (ECF No. 18, PageID.13267). Reed does
not expound upon this argument. However, because the Commissioner addressed
this argument in his motion for summary judgment (ECF No. 17, PageID.1312),
the court will generally address the argument.
23
The ALJ did not err by declining to give controlling weight or even great
weight to the opinion of Reed’s chiropractor. Reed’s chiropractor did issue
“Disability Certificates,” which provided that Reed was unable to work for various
short-term periods. (Tr. 18, 332, 1000-1001). But, the Commissioner correctly
points out that a chiropractor is not an acceptable medical source under the
regulations. 20 C.F.R. § 404.1502(a) (providing that an acceptable medical source
means a licensed physician, licensed psychologist, licensed optometrist, licensed
podiatrist, qualified speech-language pathologist, licensed audiologist, licensed
advanced practice registered nurse, or licensed physician assistant); see also Soc.
Sec. Rul. 06-03p, 2006 WL 2329939, at *2 (Aug. 9, 2006) (providing that
information from a chiropractor, which is defined as an “other source,” cannot
establish the existence of a medically determinable impairment). For this reason,
the ALJ was required to consider the chiropractor’s opinion and treatment notes
along with all of the other evidence in the record, but he was not obligated to give
the evidence any particular weight. SSR 16-3p; see Cole v. Astrue, 661 F.3d 991,
939 (6th Cir. 2001) (Recognizing that the ALJ was required to consider the
opinions of plaintiff’s “other source” mental health therapist in view of the
therapist’s expertise and longstanding treatment relationship with plaintiff). The
record demonstrates that he did consider this other source. Indeed, the ALJ
discussed both Reed’s physical therapy treatment and chiropractic treatment with
24
John Mufarreh, D.C. in his decision. (Tr. 16, 18). He also correctly observed that
Dr. Mufarreh is not an acceptable medical source and as such his opinions are not
entitled to controlling or even great weight. Thus, Reed’s contention that the ALJ
did not consider his treatment with these other sources is not borne out in the
record. Besides, as to Dr. Mufarreh’s opinion that Reed was unable to work, an
opinion on the ultimate issue of disability is an administrative determination
reserved for the Commissioner, not some other source. See Bass v. McMahon, 499
F.3d 506, 511 (6th Cir. 2007) (“Subsection [(d)(1)] further elaborates that no
‘special significance’ will be given to the opinions of disability, even if they come
from a treating physician.”); see also 20 C.F.R. § 404.1527(d)(1) (“We are
responsible for making the determination or decision about whether you meet the
statutory definition of disability. In so doing, we review all of the medical findings
and other evidence that support a medical source’s statement that you are disabled.
A statement by a medical source that you are “disabled” or “unable to work” does
not mean that we will determine that you are disabled.”). Consequently, Reed is
not entitled to reversal or remand on this basis.
F.
Other Issues Raised in Reply
For the first time in reply, Reed also argues that the ALJ erred because he
failed to discuss the “serious side effects” of his medications. (ECF No. 18,
PageID.1326). He also alludes to, but does not expressly make, an argument that
25
the ALJ failed to develop the record. Neither of these arguments is developed in
any meaningful fashion for the court’s review. “[I]ssues adverted to in a
perfunctory manner, unaccompanied by some effort at developed argumentation,
are deemed waived. It is not sufficient for a party to mention a possible argument
in the most skeletal way, leaving the court to … put flesh on its bones.”
McPherson v. Kelsey, 125 F.3d 989, 995-996 (6th Cir. 1997). Further, since Reed
failed to raise these issues in his opening brief, the Commissioner never had an
opportunity to address the arguments. The court finds that Reed has also waived
the arguments for this reason and thus declines to address them. See Scottsdale
Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir. 2008) (“Raising the issue for the
first time in a reply brief does not suffice; reply briefs . . . do not provide the
moving party with a new opportunity to present yet another issue for the court's
consideration. Further the non-moving party ordinarily has no right to respond to
the reply brief. . . . As a matter of litigation fairness and procedure, then, we must
treat [such issues] as waived.”) (quoting Novosteel SA v. U.S., Bethlehem Steel
Corp., 284 F.3d 1261, 1274 (Fed. Cir. 2002)).
IV.
CONCLUSION
For the reasons set forth above, the court GRANTS plaintiff’s motion for
summary judgment, DENIES defendant’s motion for summary judgment, and
26
REVERSES the findings of the Commissioner and REMANDS for further
proceedings pursuant to Sentence Four of 42 U.S.C. § 405(g).
IT IS SO ORDERED.
Date: May 31, 2020
s/Stephanie Dawkins Davis
Stephanie Dawkins Davis
United States District Judge
27
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?