Rosich v. Commissioner of Social Security

Filing 18

OPINION; signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, cbh)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CAROL ROSICH,
Plaintiff,

Hon. Ellen S. Carmody

v.
Case No. 1:13-cv-1291
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
_____________________________________/
OPINION
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) under Title II of the Social Security Act. On February 11,
2014, the parties agreed to proceed in this Court for all further proceedings, including an order of
final judgment. (Dkt. #12).
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).

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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.
1984).
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

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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.

PROCEDURAL POSTURE
Plaintiff was 60 years of age on her alleged disability onset date. (Tr. 117). She
successfully completed high school and worked previously as a mortgage loan originator and
supervisor. (Tr. 24, 138). Plaintiff applied for benefits on March 30, 2010, alleging that she had
been disabled since September 15, 2009, due to osteoarthritis. (Tr. 117-20, 137). Plaintiff’s
applications were denied, after which time she requested a hearing before an Administrative Law
Judge (ALJ). (Tr. 60-116). On April 8, 2011, Plaintiff appeared before ALJ Janice Shave with
testimony being presented by Plaintiff and a vocational expert. (Tr. 28-59). In a written decision
dated April 26, 2011, the ALJ determined that Plaintiff was not disabled. (Tr. 19-24). The Appeals
Council declined to review the ALJ’s determination, rendering it the Commissioner’s final decision
in the matter. (Tr. 1-5). Plaintiff subsequently initiated this appeal pursuant to 42 U.S.C. § 405(g),
seeking judicial review of the ALJ’s decision.

RELEVANT MEDICAL HISTORY
On March 30, 2010, Plaintiff met with a representative of the Social Security
Administration who observed that Plaintiff “rose slowly from sitting position - she walked slowly
and stiffly away from my desk.” (Tr. 134).

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Treatment notes dated September 16, 2010, indicate that Plaintiff “has problems with
arthritis” and that she has previously undergone “right knee replacement and multiple knee
surgeries” as well as bilateral carpal tunnel surgery. (Tr. 243). An examination revealed that
Plaintiff “does have some swelling of joints, MIP joints, this could be consistent with osteoarthritis.”
(Tr. 243). Treatment notes dated October 12, 2010, indicate that Plaintiff was suffering from
“severe end-stage tricompartmental arthritis, multifocal arthritis in the hands and knees.” (Tr. 242).
X-rays of Plaintiff’s left knee, taken October 13, 2010, revealed that Plaintiff was
experiencing “severe end-stage arthritic changes. . .in all 3 joint compartments” with “near bone-onbone articulation of the lateral joint space.” (Tr. 251). The x-rays also revealed the presence of
chondrocalcinosis.1 (Tr. 251).
On October 19, 2010, Plaintiff was examined by Dr. Jeffrey Thome. (Tr. 241). The
doctor’s treatment notes were as follows:
The patient comes in following on her joint pain. Her hematology
profile was negative. Uric acid, glucose, lipid panel, sed rate,
rheumatoid factor, ANA, serum protein electrophoresis all negative.
We will set her up with CPK, x-ray of the left knee, left shoulder and
right hand to follow.
(Tr. 241).
At the administrative hearing, Plaintiff testified that she underwent right knee
replacement “17 or 18 years ago.” (Tr. 37). Plaintiff further reported that prior to that surgery she
underwent approximately 12 other knee surgeries “for cleaning out the cartilage, cleaning out the
bone chips, trying to stave off full replacement as long as they could.” (Tr. 37). With respect to her

1

Chondrocalcinosis “is a condition characterized by deposits of calcium pyrophosphate dihydrate (CPPD) crystals in one or more
joints that eventually results in damage to the affected joints.” See Chondrocalcinosis, available at
http://www.riversideonline.com/health_reference/Questions-Answers/AN00814.cfm (last visited on September 30, 2014). Chondrocalcinosis
“occurs most often in women older than age 50” and is associated with osteoarthritis. Id.

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left knee, Plaintiff reported that her doctor has recommended knee replacement but that she lacks
insurance or other resources to pay for such an operation. (Tr. 37). With respect to the condition
of her knees, the following exchange occurred between Plaintiff and the ALJ:
Q

And what kind of symptoms do you have with, say, with your
left knee?

A

Well, I can’t stand on it for very long because it hurts or it
gives out. When I sit, then when I get up, I have a difficult
time getting up because it tends to lock up, and I have to give
it a few minutes before I can actually put weight on it,
straighten it out. It’s painful.

Q

And your right knee, what kind of symptoms do you have
there?

A

My right knee is very good with the replacement other than
that it does stiffen up. I think that’s probably due to the
muscles not being as active as what they could be because of
my inability to do a lot of exercise or do much of anything
because of the left knee and because of the other problems I
have with a lot of movement, and it’s just a lot of pain.

Q

And when you said you can’t stand long, could you give us
some idea in general, say, if you were standing at a table like
this trying to do something on the table, how long could you
stand and - - ?

A

Probably 15 or 20 minutes and then I’d have to sit down and
take some rest. Again, getting up and down is a problem.
The stiffness in the knee, the locking of it, when I do get up,
it’s a major issue. So, it’s difficult. I try to find a balance
between the two.

Q

And do you ever have to sit with your legs reclined or lay
down because of the pain - -

A

Yes.

Q

- - that you have?

A

Yes. Usually several times a day I sit in a reclining type
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chair. We have a lift chair with the motorized, and I use that
to sit because then it's easier to get up with the lift chair than
to try to get up from just a regular chair in a reclining
position, it’s difficult. So, I use that several times a day for
rest.
Q

And about what - - how long a period of time generally?

A

At least half hour. Usually once or twice a day I’ll try to take
an hour to an hour and a half maybe a nap or a rest. I don’t
sleep well at night.

(Tr. 37-39).
Plaintiff testified that she takes “over-the-counter” Ibuprofen two to three times daily,
but that “it’s basically the prescription strength.” (Tr. 41). Plaintiff further reported that she “take[s]
Toradol at night for pain.” (Tr. 41). With respect to the difficulties she experiences with her right
hand, Plaintiff testified as follows:
I have severe pain in the bones. And my hand and the fingers, there’s
a lot of pain. Sometimes I can bend it and close it all the way, but
many times I can’t. It’s just very severe. And then I also have pain
that goes down my arm from the shoulder. Both shoulders are very - it’s like a hot pain right in the shoulder. And the pain goes down
my arm and into my wrists, into my hands like a hot, sharp pain.
(Tr. 42).
Plaintiff also reported that she previously “had carpal tunnel surgery done on both
of the wrists” when she was in her 30s. (Tr. 43). With respect to her activities, Plaintiff reported
that she uses email “to keep in touch with my children, a few minutes here and there.” (Tr. 44).
Plaintiff reported that she likes to “read and sometimes I watch our birds.” (Tr. 44). Plaintiff
reported that she takes “short walks” of “a couple of hundred feet out to the mailbox and back to get
fresh air.” (Tr. 44). She reiterated that “I have to do things that are limited to short periods of being
on my feet, short periods of doing just about anything.” (Tr. 44).
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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).2 If the Commissioner can make a
dispositive finding at any point in the review, no further finding is required. See 20 C.F.R. §§
404.1520(a), 416.920(a).

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.

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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.
404.1520(c));
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)).

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1997) (ALJ determines RFC at step four, at which point claimant bears the burden of proof).
The ALJ determined that Plaintiff suffered from: (1) severe end stage
tricompartmental arthritis in her knees; (2) right knee status total replacement; (3) left knee awaiting
surgery; (4) arthritis in right hand and fingers; (5) chronic pain; (6) obesity; and (7) degenerative
joint disease of the cervical spine, 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. 21-22).
With respect to Plaintiff’s residual functional capacity, the ALJ determined that
Plaintiff retained the capacity to perform light work3 subject to the following limitations: (1) she can
stand or walk for six hours of an 8-hour workday; (2) she can sit for two hours of an 8-hour
workday; (3) she can occasionally use foot controls with her left lower extremity; (4) she can never
kneel, crouch, crawl, or climb ladders, ropes, or scaffolds; (5) she can occasionally balance with a
handheld assistive device; (6) she can occasionally perform overhead reaching bilaterally; (7) she
should avoid repetitive rotation, flexion, or extension of the neck; (8) she can occasionally handle,
defined as gross manipulation, with her right hand; (9) she can occasionally finger, defined as fine
manipulation, with the right hand; (10) she should avoid concentrated exposure to extreme cold; and
(11) she should avoid all exposure to unprotected heights and explosives. (Tr. 22). Based on the
testimony of a vocational expert, the ALJ concluded that Plaintiff retained the ability to perform her
past relevant work as a mortgage loan originator and supervisor. Accordingly, the ALJ denied
Plaintiff’s application for benefits.
3

Light work involves lifting “no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10
pounds.” 20 C.F.R. § 404.1567. Furthermore, work is considered “light” when it involves “a good deal of walking or standing,” defined as
“approximately 6 hours of an 8-hour workday.” 20 C.F.R. § 404.1567; Titles II and XVI: Determining Capability to do Other Work - the
Medical-Vocational Rules of Appendix 2, SSR 83-10, 1983 WL 31251 at *6 (S.S.A., 1983); Van Winkle v. Commissioner of Social Security, 29
Fed. Appx. 353, 357 (6th Cir., Feb. 6, 2002).

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I.

Plaintiff is Not Entitled to a Sentence Six Remand
As part of her request to obtain review of the ALJ’s decision, Plaintiff submitted to

the Appeals Council additional evidence which was not presented to the ALJ. (Tr. 1-4, 254-58).
The Appeals Council received the evidence into the record and considered it before declining to
review the ALJ’s determination. This Court, however, is precluded from considering such material.
In Cline v. Commissioner of Social Security, 96 F.3d 146 (6th Cir. 1996), the Sixth Circuit indicated
that where the Appeals Council considers new evidence that was not before the ALJ, but nonetheless
declines to review the ALJ’s determination, the district court cannot consider such evidence when
adjudicating the claimant’s appeal of the ALJ’s determination. Id. at 148; see also, Bass v.
McMahon, 499 F.3d 506, 512-13 (6th Cir. 2007) (quoting Cline, 96 F.3d at 148).
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,
pursuant to sentence six of 42 U.S.C. § 405(g), for further proceedings during which this new
evidence can be considered. Cline, 96 F.3d at 148. 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). Plaintiff bears the burden of making these showings. See
Hollon ex rel. Hollon v. Commissioner of Social Security, 447 F.3d 477, 483 (6th Cir. 2006). By
failing to address this issue in her pleadings, Plaintiff has failed to satisfy her burden in this regard.
Accordingly, Plaintiff is not entitled to a sentence six remand.

II.

The ALJ’s RFC Determination is not Supported by Substantial Evidence

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As noted above, the ALJ concluded that Plaintiff retained the ability to perform a
range of light work, including the ability to stand or walk for six hours of an 8-hour workday.
Plaintiff argues that the ALJ’s RFC fails to sufficiently account for her impairments and limitations.
A claimant’s RFC represents her ability to perform “work-related physical and mental
activities in a work setting on a regular and continuing basis,” defined as “8 hours a day, for 5 days
a week, or an equivalent work schedule.” Social Security Ruling 96-8P, 1996 WL 374184 at *1
(Social Security Administration, July 2, 1996); see also, Payne v. Commissioner of Social Security,
402 Fed. Appx. 109, 116 (6th Cir., Nov. 18, 2010).
While the present record contains a paucity of medical evidence, such is nevertheless
sufficient to demonstrate that the ALJ’s conclusion that Plaintiff can stand or walk for 6 hours
during an 8-hour workday is supported by neither substantial evidence nor common sense. Simply
stated, the evidence establishes that Plaintiff suffers from “severe” osteoarthritis of the left knee
which has resulted in “near bone-on-bone articulation of the lateral joint space.” It is unreasonable
to conclude that a 60 year old woman suffering from such an impairment could perform light work
activities while standing or walking for six hours of an 8-hour day. Accordingly, the Court
concludes that the ALJ’s RFC determination is not supported by substantial evidence.

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III.

The ALJ’s Credibility Assessment is not Supported by Substantial Evidence
As described above, Plaintiff testified at the administrative hearing that she was

impaired to an extent well beyond that recognized by the ALJ. The ALJ, however, discounted
Plaintiff’s allegations on the ground that Plaintiff’s “statements concerning the intensity, persistence
and limiting effects of these symptoms are not credible to the extent they are inconsistent with the
above residual functional capacity assessment.” (Tr. 23). Plaintiff asserts that the ALJ’s credibility
assessment is not supported by substantial evidence.
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
29, 2004).
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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). In fact, as the Sixth Circuit recently stated, “[w]e have held that an administrative
law judge’s credibility findings are virtually unchallengeable.” Ritchie v. Commissioner of Social
Security, 540 Fed. Appx. 508, 511 (6th Cir., Oct. 4, 2013) (citation omitted).
Nevertheless, “blanket assertions that the claimant is not believable will not pass
muster, nor will explanations as to credibility which are not consistent with the entire record and the
weight of the relevant evidence.” Minor v. Commissioner of Social Security, 2013 WL 264348 at
*16 (6th Cir., Jan. 24, 2013). Furthermore, the ALJ must “consider all objective medical evidence

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in the record, including medical signs and laboratory findings, where such evidence is produced by
acceptable medical sources.” Id.
In discounting Plaintiff’s subjective allegations, the ALJ first observed that Plaintiff
“has not taken any narcotic-based pain relieving medications despite allegations of quite limiting
pain” and instead “takes over the counter medications.” (Tr. 23-24). While accurate, this conclusion
hardly calls into question Plaintiff’s credibility. At the administrative hearing, Plaintiff testified that
her doctors specifically recommended that she not take “narcotic drugs” to treat her pain. (Tr. 41).
Plaintiff testified that her doctors had instead recommended that she take ibuprofen and non-narcotic
medications. (Tr. 41-42). The ALJ has identified nothing in the record that contradicts this
testimony. The ALJ next discounted Plaintiff’s credibility on the ground that the objective medical
evidence “does not support such severe limitations.” (Tr. 24). As discussed above, the medical
evidence of record, while quite sparse, nevertheless reveals that Plaintiff is far more limited than the
ALJ recognized. In sum, the ALJ’s rationale for discounting Plaintiff’s subjective allegations is not
supported by substantial evidence.

IV.

Remand is Appropriate
The ALJ’s conclusion that Plaintiff is not disabled was based on the vocational

expert’s testimony that if limited to the extent reflected by the ALJ’s RFC determination, Plaintiff
would still be able to perform her past relevant work as a mortgage loan originator and supervisor.
As discussed above, however, the ALJ’s RFC is not supported by substantial evidence and 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

13

(6th Cir. 1996) (while the ALJ may rely upon responses to hypothetical questions posed to a
vocational expert, such questions must accurately portray the claimant’s 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 is not supported by substantial
evidence, there does not exist compelling evidence that Plaintiff is disabled. In sum, evaluation of
Plaintiff’s claim requires the resolution of factual disputes which this Court is neither authorized nor
competent to undertake in the first instance. Accordingly, the Commissioner’s decision is reversed
and this matter remanded for further factual findings.

CONCLUSION
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 the
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: October 20, 2014

/s/ Ellen S. Carmody
ELLEN S. CARMODY
United States Magistrate Judge

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