Miller v. Commissioner of Social Security
OPINION: the Commissioner's decision is reversed and this matter remanded for further factual findings pursuant to sentence four of 42 U.S.C. § 405(g); signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, jal)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
Hon. Ellen S. Carmody
Case No. 1:12-cv-391
This is an action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C.
§ 405(g), to review a final decision of the Commissioner of Social Security denying Plaintiff’s claim
for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) benefits under
Titles II and XVI of the Social Security Act. On July 5, 2012, the parties agreed to proceed in this
Court for all further proceedings, including an order of final judgment. (Dkt. #10).
Section 405(g) limits the Court to a review of the administrative record and provides
that if the Commissioner’s decision is supported by substantial evidence it shall be conclusive. The
Commissioner has found that Plaintiff is not disabled within the meaning of the Act. For the reasons
stated below, the Court concludes that the Commissioner’s decision is not supported by substantial
evidence. Accordingly, the Commissioner’s decision is reversed and this matter remanded for
further factual findings pursuant to sentence four of 42 U.S.C. § 405(g).
STANDARD OF REVIEW
The Court’s jurisdiction is confined to a review of the Commissioner’s decision and
of the record made in the administrative hearing process. See Willbanks v. Sec’y of Health and
Human Services, 847 F.2d 301, 303 (6th Cir. 1988). The scope of judicial review in a social security
case is limited to determining whether the Commissioner applied the proper legal standards in
making her decision and whether there exists in the record substantial evidence supporting that
decision. See Brainard v. Sec’y of Health and Human Services, 889 F.2d 679, 681 (6th Cir. 1989).
The Court may not conduct a de novo review of the case, resolve evidentiary
conflicts, or decide questions of credibility. See Garner v. Heckler, 745 F.2d 383, 387 (6th Cir.
1984). It is the Commissioner who is charged with finding the facts relevant to an application for
disability benefits, and her findings are conclusive provided they are supported by substantial
evidence. See 42 U.S.C. § 405(g).
Substantial evidence is more than a scintilla, but less than a preponderance. See
Cohen v. Sec’y of Dep’t of Health and Human Services, 964 F.2d 524, 528 (6th Cir. 1992) (citations
omitted). It is such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Bogle v. Sullivan, 998 F.2d 342,
347 (6th Cir. 1993). In determining the substantiality of the evidence, the Court must consider the
evidence on the record as a whole and take into account whatever in the record fairly detracts from
its weight. See Richardson v. Sec’y of Health and Human Services, 735 F.2d 962, 963 (6th Cir.
As has been widely recognized, the substantial evidence standard presupposes the
existence of a zone within which the decision maker can properly rule either way, without judicial
interference. See Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (citation omitted). This
standard affords to the administrative decision maker considerable latitude, and indicates that a
decision supported by substantial evidence will not be reversed simply because the evidence would
have supported a contrary decision. See Bogle, 998 F.2d at 347; Mullen, 800 F.2d at 545.
Plaintiff was 43 years old on her alleged disability onset date. (Tr. 202). She
successfully completed high school and worked previously as an assembler and alarm monitor. (Tr.
21, 42). Plaintiff applied for benefits on April 8, 2008, alleging that she had been disabled since
October 15, 2006, due to joint pain, Raynaud’s disease, back and neck pain, right elbow pain, right
shoulder pain, left shoulder and elbow pain, abdominal pain, knee pain, and depression. (Tr. 202-12,
226). Plaintiff’s applications were denied, after which time she requested a hearing before an
Administrative Law Judge (ALJ). (Tr. 122-201). On June 23, 2010, Plaintiff appeared before ALJ
Allen Erickson, with testimony being offered by Plaintiff and vocational expert, Tom King. (Tr. 3094). In a written decision dated August 25, 2010, the ALJ determined that Plaintiff was not disabled.
(Tr. 13-22). The Appeals Council declined to review the ALJ’s determination, rendering it the
Commissioner’s final decision in the matter. (Tr. 1-6). Plaintiff subsequently initiated the appeal
pursuant to 42 U.S.C. § 405(g), seeking judicial review of the ALJ’s decision.
RELEVANT MEDICAL HISTORY
On May 7, 2008, Plaintiff participated in a consultive evaluation conducted by
licensed psychologist George Starrett, Ed.D. (Tr. 300-02). Plaintiff reported that “I haven’t been
able to do a job, and the jobs I have been having, I had difficulty doing them because of pain in my
joints.” (Tr. 300). Plaintiff further stated that “the pain is just unbearable at times...my hands
always hurt, and every joint in my body is sore.” (Tr. 300). Plaintiff reported that she “has frequent
episodes of crying and periodic suicidal ideations.” (Tr. 300). Plaintiff exhibited “limited”
motivation and “poor self esteem,” but the results of a mental status examination were otherwise
unremarkable. (Tr. 301-02). Plaintiff was diagnosed with “mood disorder due to general medical
status” and her GAF score was rated as 50.1 (Tr. 302).
On June 11, 2008, Plaintiff was examined by Dr. Elaine Kountanis. (Tr. 304-07).
Plaintiff reported that she was unable to perform full time work due to “chronic pain syndrome.”
(Tr. 304). Plaintiff reported that she has had “a number of orthopedic surgeries on her joints in the
past.” (Tr. 304). An examination of Plaintiff’s extremities revealed the following:
No cyanosis or edema of limbs; no joint erythema or edema; radial
and pedal pulses intact; there are trigger points for pain over her
shoulders, elbows, anterior chest, trapezius and lateral thigh muscles;
she has exquisite pain on dorsiflexion of her right wrist without any
resistance given due to right lateral epicondylitis; surgical scars on
her shoulders and the left lateral elbow from her orthopedic surgery;
negative Tinel’s2 at the wrists; ROM [range of motion] of her
The Global Assessment of Functioning (GAF) score refers to the clinician’s judgment of the individual’s
overall level of functioning. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders
32 (4th ed. 1994) (hereinafter DSM-IV). A GAF score of 50 indicates that the individual is experiencing “serious
symptoms or any serious impairment in social, occupational, or school functioning.” DSM-IV at 34.
Tinel’s test (or Tinel’s sign) is performed to determine the presence of carpal tunnel syndrome. See Tinel’s
and Phalen’s Tests, available at http://www.carpal-tunnel-symptoms.com/tinels-and-phalens-tests.html (last visited on
September 12, 2013). Tinel’s test is performed by tapping over the carpal tunnel area of the wrist with the palm up. A
positive test causes tingling or paresthesia, and sometimes even a “shock type sensation,” in the median nerve
shoulders is normal overhead and ROM of the wrists is normal.
The results of a neuromuscular examination were largely unremarkable, but the
doctor noted that Plaintiff’s “right hand grip [was] limited by pain.” (Tr. 306). The doctor also
observed that Plaintiff’s “clinical presentation” was “characteristic for fibromyalgia.” (Tr. 306-07).
Treatment notes dated July 16, 2008, indicate that Plaintiff was suffering “classic”
right lateral epicondylitis which “has not improved [with] conservative therapy.” (Tr. 420).
Treatment notes dated August 18, 2008, indicate that Plaintiff was suffering from osteoarthritis. (Tr.
On November 13, 2008, Plaintiff was transported to the emergency room “due to
excessive drinking today and thoughts of suicide.” (Tr. 393-94). Plaintiff reported “I don’t want
to be alive.” (Tr. 393). Plaintiff also reported that she “tried to kill herself in August by overdosing
on Xanax.” (Tr. 396). Plaintiff further stated that she “plans on taking sleeping pills to kill herself
but is afraid of getting sick.” (Tr. 393). Plaintiff’s blood alcohol level upon arrival at the hospital
was 0.323. (Tr. 394). Once Plaintiff became sober, she denied suicidal thoughts. (Tr. 397). After
assuring hospital officials that she would contact a therapist, Plaintiff was discharged home in the
care of her husband. (Tr. 394-97).
On January 20, 2009, Plaintiff underwent right knee surgery performed by Dr. Harold
Cline. (Tr. 347-49). Specifically, the doctor performed “transarthroscopic surgery of the right knee
with chondroplasty of the medial femoral condyle, lateral femoral condyle, trochlea and patella.”
(Tr. 347). On March 2, 2009, Plaintiff was examined by Dr. Cline. (Tr. 365-66). Plaintiff reported
that she “is having improvement of her pain symptoms, especially over the lateral right knee.” (Tr.
365). Plaintiff reported that she “has been ambulating well and working on her stretching exercises
at home.” (Tr. 365). Plaintiff further reported that “she only notices pain [in her right knee] after
driving for long periods of time.” (Tr. 365).
On April 20, 2009, Plaintiff was examined by Dr. Cline. (Tr. 362-64). Plaintiff
reported that she “has been doing stretches and physical therapy for her right knee with marked
improvement,” but that she “continues to intermittently have right knee pain and morning stiffness
that is worse in the morning and worse with activity.” (Tr. 362). Plaintiff also reported that she was
experiencing pain in her right elbow and left knee. (Tr. 362). With respect to Plaintiff’s right knee,
the doctor instructed Plaintiff “to continue exercising and stretching as well as physical therapy.”
(Tr. 364). With respect to Plaintiff’s right elbow, the doctor diagnosed Plaintiff with “chronic” right
elbow lateral epicondylitis. (Tr. 364).
On May 4, 2009, Plaintiff participated in an MRI examination of her left knee the
results of which revealed “tiny full thickness chondral fissure over the lateral patellar facet with
focal adjacent subchondral bone marrow edema.” (Tr. 361).
On July 2, 2009, Plaintiff underwent left knee surgery performed by Dr. Cline. (Tr.
340-42). Specifically, the doctor performed the following procedures:( 1) chondroplasty of the
lateral plateau, lateral condyle and medial condyle; (2) removal of loose body, lateral compartment;
(3) partial lateral meniscectomy; (4) partial synovectomy; and (5) excision of medial plica. (Tr.
340). On July 15, 2009, Plaintiff was examined by Dr. Cline. (Tr. 352-53). With respect to her left
knee, Plaintiff reported that she “has been doing well” and that her “preoperative symptoms are
resolved.” (Tr. 352). X-rays of Plaintiff’s left knee, taken April 21, 2010, revealed “effusion
without acute osseous findings.” (Tr. 460).
Plaintiff testified at the administrative hearing that she experiences “constant pain”
in her lower extremities and “can’t sit for too long or stand for too long.” (Tr. 52). Plaintiff also
testified that her level of pain interferes with her ability to concentrate sufficiently to perform a job.
(Tr. 53-54). Plaintiff also testified that her ability to perform work would be limited because her
“right hand...goes numb.” (Tr. 54). Plaintiff also reported that she experienced work preclusive pain
and limitation in her elbows. (Tr. 54).
Plaintiff also testified that she had “been seeing a counselor,” but stated that she was
not sure if the records pertaining to such had been submitted to the Commissioner. (Tr. 58). In this
regard, Plaintiff’s representative stated that her attempts to obtain Plaintiff’s treatment records from
her counselor were thus far unsuccessful. (Tr. 59-60). Plaintiff reported that her present medication
regimen helps “a little” and she “[has not] thought of suicide as often as [she] used to.” (Tr. 61).
Plaintiff reported that “as far as the pain goes, it helps me to be able to move a little
bit better but the pain is still there.” (Tr. 61). Plaintiff reported that she performs “some stretching
exercises and things like that at home,” but lacks the money to attend physical therapy. (Tr. 62).
Plaintiff also reported that she “tr[ies] to walk,” but “can’t do that very much” because of “issues”
with her knees. (Tr. 62). As for daily activities, Plaintiff reported that approximately every three
days she feels well enough to perform very limited activities around her apartment. (Tr. 63-64).
ANALYSIS OF THE ALJ’S DECISION
The social security regulations articulate a five-step sequential process for evaluating
disability. See 20 C.F.R. §§ 404.1520(a-f), 416.920(a-f).3 If the Commissioner can make a
dispositive finding at any point in the review, no further finding is required. See 20 C.F.R. §§
The regulations also provide that if a claimant suffers from a
nonexertional impairment as well as an exertional impairment, both are considered in determining
her residual functional capacity. See 20 C.F.R. §§ 404.1545, 416.945.
The burden of establishing the right to benefits rests squarely on Plaintiff’s shoulders,
and she can satisfy her burden by demonstrating that her impairments are so severe that she is unable
to perform her previous work, and cannot, considering her age, education, and work experience,
perform any other substantial gainful employment existing in significant numbers in the national
economy. See 42 U.S.C. § 423(d)(2)(A); Cohen, 964 F.2d at 528.
While the burden of proof shifts to the Commissioner at step five, Plaintiff bears the
burden of proof through step four of the procedure, the point at which her residual functioning
capacity (RFC) is determined. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Walters v.
Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997) (ALJ determines RFC at step four, at which
point claimant bears the burden of proof).
1. An individual who is working and engaging in substantial gainful activity will not be found to be “disabled”
regardless of medical findings (20 C.F.R. 404.1520(b));
2. An individual who does not have a “severe impairment” will not be found “disabled” (20 C.F.R.
3. If an individual is not working and is suffering from a severe impairment which meets the duration
requirement and which “meets or equals” a listed impairment in Appendix 1 of Subpart P of Regulations No.
4, a finding of “disabled” will be made without consideration of vocational factors (20 C.F.R. 404.1520(d));
4. If an individual is capable of performing work he or she has done in the past, a finding of “not disabled”
must be made (20 C.F.R. 404.1520(e));
5. If an individual’s impairment is so severe as to preclude the performance of past work, other factors
including age, education, past work experience, and residual functional capacity must be considered to
determine if other work can be performed (20 C.F.R. 404.1520(f)).
The ALJ determined that Plaintiff suffered from: (1) degenerative joint disease of the
knees; (2) status post bilateral knee surgery; (3) fibromyalgia; and (4) major depressive disorder,
severe impairments that whether considered alone or in combination with other impairments, failed
to satisfy the requirements of any impairment identified in the Listing of Impairments detailed in 20
C.F.R., Part 404, Subpart P, Appendix 1. (Tr. 15-17). With respect to Plaintiff’s residual functional
capacity, the ALJ determined that Plaintiff retained the capacity to perform sedentary work4 subject
to the following limitations: (1) she can never climb ladders, ropes, or scaffolds; (2) she can only
occasionally balance, stoop, kneel, crouch, crawl, or climb ramps/stairs; (3) she can frequently, but
not continuously, handle with her dominant right-hand; (4) she can have only occasional exposure
to extreme cold, wetness, or vibration; and (5) she can understand, remember, and carry out only
short, simple instructions while performing routine tasks. (Tr. 17).
The ALJ concluded that Plaintiff was unable to perform her past relevant work, at
which point the burden of proof shifted to the Commissioner to establish by substantial evidence that
a significant number of jobs exist in the national economy which Plaintiff could perform, her
limitations notwithstanding. See Richardson, 735 F.2d at 964. While the ALJ is not required to
question a vocational expert on ther issue, “a finding supported by substantial evidence that a
claimant has the vocational qualifications to perform specific jobs” is needed to meet the burden.
O’Banner v. Sec’y of Health and Human Services, 587 F.2d 321, 323 (6th Cir. 1978) (emphasis
added). Ther standard requires more than mere intuition or conjecture by the ALJ that the claimant
can perform specific jobs in the national economy. See Richardson, 735 F.2d at 964. Accordingly,
Sedentary work involves lifting “no more than 10 pounds at a time and occasionally lifting or carrying articles
like docket files, ledgers, and small tools.” 20 C.F.R. § 404.1567. Furthermore, while sedentary work “is defined as one
which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties.” Id.
ALJs routinely question vocational experts in an attempt to determine whether there exist a
significant number of jobs which a particular claimant can perform, her limitations notwithstanding.
Such was the case here, as the ALJ questioned vocational expert Tom King.
The vocational expert testified that there existed approximately 2,000 jobs in the state
of Michigan, and approximately 530,000 nationally, which an individual with Plaintiff’s RFC could
perform, such limitations notwithstanding. (Tr. 81-86). This represents a significant number of
jobs. See Born v. Sec’y of Health and Human Services, 923 F.2d 1168, 1174 (6th Cir. 1990); Hall
v. Bowen, 837 F.2d 272, 274 (6th Cir. 1988); Martin v. Commissioner of Social Security, 170 Fed.
Appx. 369, 374 (6th Cir., Mar. 1, 2006). Accordingly, the ALJ concluded that Plaintiff was not
disabled as defined by the Social Security Act.
Plaintiff is relying on evidence which this Court cannot consider
In support of her arguments in this Court, Plaintiff is relying on a vast amount of
evidence that was not presented to the ALJ. (Tr. 4, 461-766). The evidence in question consists of
medical records created after the ALJ’s decision. This Court is precluded from considering such
material. See Cline v. Commissioner of Social Security, 96 F.3d 146, 148 (6th Cir. 1996); Bass v.
McMahon, 499 F.3d 506, 512-13 (6th Cir. 2007). If Plaintiff can demonstrate, however, that this
evidence is new and material, and that good cause existed for not presenting it in the prior
proceeding, the Court can remand the case for further proceedings during which this new evidence
can be considered. Cline, 96 F.3d at 148.
To establish good cause, the claimant must “demonstrate a reasonable justification
for the failure to acquire and present the evidence for inclusion in the hearing before the ALJ.”
Courter v. Commissioner of Social Security, 479 Fed. Appx. 713, 725 (6th Cir., May 7, 2012).
Moreover, the “mere fact that evidence was not in existence at the time of the ALJ’s decision” does
not satisfy the good cause standard. The Sixth Circuit “takes a harder line on the good cause test
with respect to timing and thus requires that the claimant give a valid reason for his failure to obtain
evidence prior to the hearing.” Id. To satisfy the materiality requirement, Plaintiff must show that
there exists a reasonable probability that the Commissioner would have reached a different result
if presented with the new evidence. Sizemore v. Secretary of Health and Human Serv’s, 865 F.2d
709, 711 (6th Cir. 1988).
While Plaintiff makes reference to this additional evidence in her pleading, she has
failed to request a remand so that this evidence can properly be considered. Likewise, Plaintiff has
failed to argue that she satisfies the aforementioned standard to obtain such a remand. Plaintiff has,
therefore, waived any argument that this matter be remanded for consideration of the evidence at
issue. See, e.g., Porzillo v. Department of Health and Human Services, 369 Fed. Appx. 123, 132
(Fed. Cir., Mar. 12, 2010) (claimant “waves any arguments that are not developed”); Bass, 499 F.3d
at 513 n.3 (“inadequate development” of an argument constitutes waiver of such); Shaw v. AAA
Engineering & Drafting, Inc., 213 F.3d 519, 537 n.25 (10th Cir. 2000) (arguments “superficially”
developed are waived).
Even if Plaintiff had not waived this argument, the result would be the same. The
evidence in question concerns Plaintiff’s condition subsequent to the ALJ’s decision. While this
evidence suggests that Plaintiff’s condition deteriorated following the ALJ’s decision, such is
immaterial and does not support remand. See, e.g., Ferguson v. Commissioner of Social Security,
628 F.3d 269, 277-78 (6th Cir. 2010) (medical evidence dated “over a year” after the ALJ’s decision
merely “evidences a subsequent deterioration in condition” and “was properly deemed immaterial
because it does not necessarily speak to [the claimant’s] condition at the relevant time”); Jones v.
Commissioner of Social Security, 336 F.3d 469, 478 (6th Cir. 2003) (“evidence of a subsequent
deterioration or change in condition after the administrative hearing is deemed immaterial”); Wyatt
v. Secretary of Health and Human Services, 974 F.2d 680, 685 (6th Cir. 1992) (same). Accordingly,
the Court is precluded from considering this evidence and, furthermore, there exists no basis for
remanding this matter on this ground.
Section 12.04 of the Listing of Impairments
The Listing of Impairments, detailed in 20 C.F.R., Part 404, Subpart P, Appendix 1,
identifies various impairments which, if present to the severity detailed therein, result in a finding
that the claimant is disabled. Plaintiff asserts that her impairments satisfy the requirements of
section 12.04 of the Listing of Impairments. Section 12.04 of the Listing provides as follows:
12.04 Affective Disorders: Characterized by a disturbance of mood,
accompanied by a full or partial manic or depressive syndrome.
Mood refers to a prolonged emotion that colors the whole psychic
life; it generally involves either depression or elation.
The required level of severity for these disorders is met when the
requirements in both A and B are satisfied, or when the requirements
in C are satisfied.
Medically documented persistence, either continuous
or intermittent, of one of the following:
Depressive syndrome characterized by
at least four of the following:
pervasive loss of
interest in almost all
Sleep disturbance; or
Psychomotor agitation or retardation; or
Decreased energy; or
Feelings of guilt or worthlessness; or
Difficulty concentrating or thinking; or
Thoughts of suicide; or
Appetite disturbance with change in weight; or
Hallucinations, delusions or paranoid thinking; or
Manic syndrome characterized by at
least three of the following:
Pressure of speech; or
Flight of ideas; or
Inflated self-esteem; or
Decreased need for sleep; or
Easy distractibility; or
activities that have a
high probability of
which are not
Hallucinations, delusions or paranoid thinking;
Bipolar syndrome with a history of
episodic periods manifested by the full
symptomatic picture of both manic
and depressive syndromes (and
currently characterized by either or
Resulting in at least two of the following:
Marked restriction of activities of
daily living; or
Marked difficulties in maintaining
social functioning; or
Marked difficulties in maintaining
concentration, persistence, or pace; or
Repeated episodes of decompensation,
each of extended duration;
Medically documented history of a chronic affective
disorder of at least 2 years’ duration that has caused
more than a minimal limitation of ability to do basic
work activities, with symptoms or signs currently
attenuated by medication or psychosocial support, and
one of the following:
Repeated episodes of decompensation,
each of extended duration; or
A residual disease process that has
resulted in such marginal adjustment
that even a minimal increase in mental
demands or change in the environment
would be predicted to cause the
individual to decompensate; or
Current history of 1 or more years’
inability to function outside a highly
supportive living arrangement, with an
indication of continued need for such
20 C.F.R., Part 404, Subpart P, Appendix 1, § 12.04 (2010).
As noted above, this listing is met when the requirements in both sections A and B
are satisfied, or when the requirements in section C are satisfied. The ALJ concluded that Plaintiff’s
impairments failed to satisfy the requirements of either sections B or C. (Tr. 16-17).
With respect to the section B criteria, the ALJ found that Plaintiff experienced: (1)
mild restriction in the activities of daily living; (2) mild difficulties maintaining social functioning;
(3) moderate difficulties maintaining concentration, persistence, or pace; and (4) no extended
episodes of decompensation. (Tr. 16-17). With respect to the section C criteria, the ALJ concluded
that “there is no evidence that [Plaintiff] has experienced any episodes of decompensation of
extended duration.” (Tr. 17). The ALJ further concluded that “the evidence does not indicate that
a ‘minimal increase in mental demands’ or a ‘change in the environment’ would cause her to
decompensate.” (Tr. 17). Finally, the ALJ observed that “there is no indication that [Plaintiff] is
unable to function outside of a highly supportive living arrangement or that she is completely
incapable of functioning independently outside her home.” (Tr. 17).
The evidence properly before the Court supports the ALJ’s determination. The
evidence reveals that Plaintiff experienced an isolated episode in which she was taken to the hospital
after becoming extremely intoxicated and expressed suicidal thoughts. Once she became sober,
however, Plaintiff denied any suicidal thoughts at which point she was discharged from the hospital.
The medical evidence does not suggest that Plaintiff’s emotional impairments cannot adequately be
treated with conservative methods (medication and/or therapy).
In sum, the record does not support the contention that Plaintiff satisfies the section
B or section C requirements of this particular Listing. The burden rests with Plaintiff to demonstrate
that she satisfies the requirements of a listed impairment. See Kirby v. Comm’r of Soc. Sec., 2002
WL 1315617 at *1 (6th Cir., June 14, 2002). The ALJ evaluated in detail the evidence before him
and determined that Plaintiff failed to meet her burden in this regard. The ALJ’s decision is
supported by substantial evidence.
Sections 1.02 and 1.03 of the Listing of Impairments
Plaintiff next asserts that she is entitled to relief because her impairments satisfy
sections 1.02 and 1.03 of the Listing of Impairment. Section 1.02 of the Listing applies to:
Major dysfunction of a joint(s) (due to any cause): Characterized by
gross anatomical deformity. . .and chronic joint pain and stiffness
with signs of limitation of motion or other abnormal motion of the
affected joint(s), and findings on appropriate medically acceptable
imaging of joint space narrowing, bony destruction, or ankylosis of
the affected joint(s). With:
Involvement of one major peripheral weight-bearing
joint (i.e., hip, knee, or ankle), resulting in inability to
ambulate effectively, as defined in 1.00B2b;5
Involvement of one major peripheral joint in each
upper extremity (i.e., shoulder, elbow, or wrist-hand),
resulting in inability to perform fine and gross
movements effectively, as defined in 1.00B2c.
The relevant regulation defines “inability to ambulate effectively” as “an extreme limitation of the ability to
walk” caused by “an impairment(s) that interferes very seriously with the individual’s ability to independently initiate,
sustain, or complete activities.” 20 C.F.R., Part 404, Subpart P, Appendix 1 § 1.00(B)(2)(b). Examples of ineffective
ambulation include “the inability to walk without the use of a walker, two crutches or two canes, the inability to walk a
block at a reasonable pace on rough or uneven surfaces, the inability to use standard public transportation, the inability to
carry out routine ambulatory activities, such as shopping and banking, and the inability to climb a few steps at a
reasonable pace with the use of a single hand rail.” Id.
20 C.F.R., Part 404, Subpart P, Appendix 1 § 1.02.
Section 1.03 of the Listing concerns “Reconstructive surgery or surgical arthrodesis
of a major weight- bearing joint, with inability to ambulate effectively, as defined in 1.00B2b, and
return to effective ambulation did not occur, or is not expected to occur, within 12 months of onset.”
20 C.F.R., Part 404, Subpart P, Appendix 1 § 1.03.
As previously noted, Plaintiff bears the burden of establishing that she satisfies the
requirements of any listed impairment. The evidence of record, as detailed above, does not support
Plaintiff’s position. While Plaintiff underwent surgery on her knees, there is no evidence that
Plaintiff is unable to ambulate effectively. Likewise, while Plaintiff experiences limitations with
respect to the use of her upper extremities, the record does not support the contention that Plaintiff
is unable to perform fine and gross movements effectively. The ALJ concluded that Plaintiff failed
to carry her burden that she satisfied either of these listed impairments. This determination is
supported by substantial evidence.
The ALJ Improperly Discounted Plaintiff’s Subjective Allegations
At the administrative hearing, Plaintiff testified that her impairments limit her to an
extent well beyond that recognized by the ALJ. The ALJ concluded that Plaintiff’s subjective
allegations were not entirely credible. Plaintiff asserts that the ALJ improperly discounted her
As the Sixth Circuit has long recognized, “pain alone, if the result of a medical
impairment, may be severe enough to constitute disability.” King v. Heckler, 742 F.2d 968, 974 (6th
Cir. 1984) (emphasis added); see also, Grecol v. Halter, 46 Fed. Appx. 773, 775 (6th Cir., Aug. 29,
2002) (same). As the relevant Social Security regulations make clear, however, a claimant’s
“statements about [his] pain or other symptoms will not alone establish that [he is] disabled.” 20
C.F.R. § 404.1529(a); see also, Walters v. Commissioner of Social Security, 127 F.3d 525, 531 (6th
Cir. 1997) (quoting 20 C.F.R. § 404.1529(a)) Hash v. Commissioner of Social Security, 309 Fed.
Appx. 981, 989 (6th Cir., Feb. 10, 2009). Instead, as the Sixth Circuit has established, a claimant’s
assertions of disabling pain and limitation are evaluated pursuant to the following standard:
First, we examine whether there is objective medical evidence of an
underlying medical condition. If there is, we then examine: (1)
whether objective medical evidence confirms the severity of the
alleged pain arising from the condition; or (2) whether the objectively
established medical condition is of such a severity that it can
reasonably be expected to produce the alleged disabling pain.
Walters, 127 F.3d at 531 (citations omitted). This standard is often referred to as the Duncan
standard. See Workman v. Commissioner of Social Security, 105 Fed. Appx. 794, 801 (6th Cir., July
Accordingly, as the Sixth Circuit has repeatedly held, “subjective complaints may
support a finding of disability only where objective medical evidence confirms the severity of the
alleged symptoms.” Id. (citing Blankenship v. Bowen, 874 F.2d 1116, 1123 (6th Cir. 1989)).
However, where the objective medical evidence fails to confirm the severity of a claimant’s
subjective allegations, the ALJ “has the power and discretion to weigh all of the evidence and to
resolve the significant conflicts in the administrative record.” Workman, 105 Fed. Appx. at 801
(citing Walters, 127 F.3d at 531).
In this respect, it is recognized that the ALJ’s credibility assessment “must be
accorded great weight and deference.” Workman, 105 Fed. Appx. at 801 (citing Walters, 127 F.3d
at 531); see also, Heston v. Commissioner of Social Security, 245 F.3d 528, 536 (6th Cir. 2001) (“[i]t
is for the [Commissioner] and his examiner, as the fact-finders, to pass upon the credibility of the
witnesses and weigh and evaluate their testimony”). It is not for this Court to reevaluate such
evidence anew, and so long as the ALJ’s determination is supported by substantial evidence, it must
stand. The ALJ found Plaintiff’s subjective allegations to not be fully credible, a finding that should
not be lightly disregarded. See Varley v. Sec’y of Health and Human Services, 820 F.2d 777, 780
(6th Cir. 1987).
The ALJ’s rationale for rejecting Plaintiff’s subjective allegations do not survive
scrutiny. The ALJ asserted that Plaintiff treats her impairments with “over-the-counter medications
such as Tylenol and Motrin” and “has not taken any narcotic-based pain-relieving medications.”
(Tr. 20). The clear implication of the ALJ’s observation is that Plaintiff’s impairments are not
sufficiently severe to warrant prescription of stronger and/or more targeted medications, thus
diminishing her credibility.
The administrative record contains a Disability Report, completed by a Social
Security official, which indicates that Plaintiff was presently taking several medications including
Tramadol6 and Vicodin.7 (Tr. 257-67). At the administrative hearing, Plaintiff testified that she
Tramadol is a “narcotic-like” pain reliever used to treat “moderate to severe chronic pain.” Tramadol,
available at http://www.drugs.com/tramadol.html (last visited on September 19, 2013).
Vicodin is a narcotic pain reliever used to treat “moderate to severe pain.” Vicodin, available at
http://www.drugs.com/vicodin.html (last visited on September 19, 2013).
takes the following medications: (1) Lamictal;8 (2) Cylexa;9 (3) Arthrotec;10 and (4) Norco.11 (Tr.
61). The ALJ’s conclusion that Plaintiff is less than fully credible because she takes only “over-thecounter” medications is completely unfounded. To the contrary, Plaintiff’s testimony regarding her
limitations is consistent with the medication regimen which she has been prescribed.
The ALJ also discredited Plaintiff’s testimony based upon the conclusion that her
reported activities “reveal a significantly greater functional ability than alleged.” (Tr. 19-20). In
support of this conclusion, the ALJ relied on selective portions of a function report that Plaintiff
completed regarding her activities. (Tr. 248-57). A review of this report in its totality, however,
reveals that Plaintiff’s reported activities are not inconsistent with her testimony at the
administrative hearing. Likewise, Plaintiff’s statements to her care providers regarding her activities
are consistent with the report in question as well as her hearing testimony. See Leos v. Comm’r of
Soc. Sec., 1996 WL 659463 at *2 (6th Cir. 1996) (the fact that a claimant performed limited
nonstrenuous activities does not preclude a finding that she experiences pain to a disabling degree);
Wright v. Sullivan, 900 F.2d 675, 682 (3d Cir. 1990) (“sporadic or transitory activity does not
disprove disability”); Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir. 1989) (to be found unable
to engage in substantial gainful activity the claimant need not “vegetate in a dark room” or be a
Lamictal is “an anti-epileptic medication, also called an anticonvulsant. . .used either alone or in combination
with other medications to treat epileptic seizures in adults and children.” Lamictal, available at
http://www.drugs.com/lamictal.html (last visited on September 19, 2013). Lamictal is “also used to delay mood episodes
in adults with bipolar disorder (manic depression).” Id.
Cylexa is an antidepressant medication used to treat depression. Celexa, available at
http://www.drugs.com/celexa.html (last visited on September 19, 2013).
Arthrotec is “used to treat osteoarthritis and rheumatoid arthritis in people at high risk for developing
stomach or intestinal ulcers.” Arthrotec, available at http://www.drugs.com/arthrotec.html (last visited on September 19,
Norco is a “narcotic” pain medication prescribed to treat “moderate to severe pain.” Norco, available at
http://www.drugs.com/norco.html (last visited on September 19, 2013).
“total basket case”).
The ALJ also placed particular significance in the fact that Plaintiff occasionally
cares for her grandchildren. The ALJ fails, however, to identify any evidence that in the course of
caring for her grandchildren Plaintiff engages in any activities that are inconsistent with her hearing
testimony. To the contrary, the record contains evidence that Plaintiff’s ability to care for her
grandchildren is significantly limited by her physical limitations. For example, on June 11, 2008,
Plaintiff reported to Dr. Kountanis that she “is upset because she cannot play with her grandchildren
due to her pain.” (Tr. 305). Moreover, as Plaintiff accurately notes, the record contains evidence
that Plaintiff does not care for her grandchildren because she possesses an abundance of physical
or emotional reserve, but instead does so due to a dysfunctional and unhealthy family dynamic. (Tr.
431-54). The ALJ may be correct when he notes that Plaintiff’s act of occasionally caring for her
grandchildren “can be quite demanding both physically and emotionally,” but absent evidence (as
opposed to conjecture) that Plaintiff’s activities in this regard are inconsistent with her testimony,
the ALJ’s rationale lacks sufficient evidentiary support.
Accordingly, the Court finds that the ALJ’s rationale for discounting Plaintiff’s
subjective allegations is not supported by substantial evidence.
The ALJ’s RFC Determination is not Supported by Substantial Evidence
As detailed above, the ALJ assessed Plaintiff’s residual functional capacity and
concluded that Plaintiff retains the ability to perform a limited range of sedentary work. The ALJ’s
RFC determination, however, is premised (at least in part) on his unsupported evaluation of
Plaintiff’s credibility. The Court offers no opinion as to Plaintiff’s residual functional capacity, as
determination of such is beyond the authority and skill of this Court, but instead simply concludes
that the ALJ’s RFC determination is not supported by substantial evidence.
The vocational expert testified that given Plaintiff’s RFC, there existed a significant
number of jobs which Plaintiff could perform despite such limitations. However, the ALJ’s RFC
determination is not supported by substantial evidence. Because the vocational expert’s testimony
was premised upon a faulty RFC determination, the ALJ’s reliance thereon does not constitute
substantial evidence. See Cline v. Comm’r of Soc. Sec., 96 F.3d 146, 150 (6th Cir. 1996) (while the
ALJ may rely upon responses to hypothetical questions posed to a vocational expert, such
hypothetical questions must accurately portray the claimant’s physical and mental impairments).
While the Court finds that the ALJ’s decision fails to comply with the relevant legal
standards, Plaintiff can be awarded benefits only if proof of her disability is “compelling.” Faucher
v. Secretary of Health and Human Serv’s, 17 F.3d 171, 176 (6th Cir. 1994) (the court can reverse
the Commissioner’s decision and award benefits if all essential factual issues have been resolved
and proof of disability is compelling). While the ALJ’s decision fails to comply with the relevant
legal standard, there does not exist compelling evidence that Plaintiff is disabled. As discussed
herein, resolution of Plaintiff’s claim requires the resolution of factual disputes which this Court is
neither authorized nor competent to undertake in the first instance.
Commissioner’s decision must be reversed and this matter remanded for further factual findings.
For the reasons articulated herein, the Court concludes that the ALJ’s decision is not
supported by substantial evidence. Accordingly, the Commissioner’s decision is reversed and this
matter remanded for further factual findings pursuant to sentence four of 42 U.S.C. § 405(g).
A judgment consistent with this opinion will enter.
Date: September 23, 2013
/s/ Ellen S. Carmody
ELLEN S. CARMODY
United States Magistrate Judge
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