Tank v. Commissioner of Social Security

Filing 15

OPINION ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMES P. TANK, Jr.,
Plaintiff,
Case No. 1:15-CV-900
v.
HON. ROBERT J. JONKER
COMMISSIONER OF SOCIAL
SECURITY,
Defendant,
/
OPINION
This is a social security action brought under 42 U.S.C. § 405(g) seeking judicial
review of a final decision of the Commissioner of the Social Security Administration
(Commissioner). Plaintiff James Tank seeks review of the Commissioner’s decision denying his
claim for disability insurance benefits (DIB) and supplemental security income (SSI) under Titles
II and XVI of the Social Security Act.
STANDARD OF REVIEW
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 & Human Servs., 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 Health & Human Servs., 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 evidence in the record fairly detracts from its
weight. See Richardson v. Sec’y of Health & Human Servs., 735 F.2d 962, 963 (6th Cir. 1984). 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.
PROCEDURAL POSTURE
Plaintiff was forty-four years of age on the date of the Administrative Law Judge’s
(ALJ) decision. (PageID.54, 107, 116.) He obtained a high school education, and was previously
employed as a laser beam machine operator, production machine tender, sorter, and forklift operator.
(PageID.80, 86.) Plaintiff applied for benefits on March 26, 2012, alleging that he had been disabled
since December 31, 2008, due to spina bifida, back pain, arthritis, osteoporosis, degenerative bone
disease, colostomy, and urostomy. (PageID.107, 116, 204–221.) Plaintiff’s applications were denied
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on June 21, 2012, after which time he requested a hearing before an ALJ. (PageID.130–143.) On
May 23, 2014, Plaintiff appeared with his counsel before ALJ James Prothro for an administrative
hearing with testimony offered by Plaintiff and a vocational expert (VE). (PageID.73–105.) In a
written decision dated August 1, 2014, the ALJ determined that Plaintiff was not disabled.
(PageID.54–72.) On July 9, 2015, the Appeals Council declined to review the ALJ’s decision,
making it the Commissioner’s final decision in the matter. (PageID.47–51.) Plaintiff subsequently
initiated this action under 42 U.S.C. § 405(g).
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).1 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
the claimant’s residual functional capacity (RFC). See 20 C.F.R. §§ 404.1545, 416.945.

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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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Plaintiff has the burden of proving the existence and severity of limitations caused
by his impairments and that he is precluded from performing past relevant work through step four.
Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). At step five, it is the
Commissioner’s burden “to identify a significant number of jobs in the economy that accommodate
the claimant’s residual functional capacity (determined at step four) and vocational profile.” Id.
ALJ Prothro determined Plaintiff’s claim failed at the fourth step of the evaluation.
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since his
alleged onset date. (PageID.59.) At step two, the ALJ determined Plaintiff had the following severe
impairments: (1) history of spina bifida and lumbar pain; (2) status-post ventricular-peritoneal shunt;
(3) status-post colostomy and urostomy; (4) history of renal failure (status-post right kidney
transplant in 2002); (5) history of recurrent kidney infections; (6) hypertension; (7) obesity; and (8)
gastroesophageal reflux disease (GERD). (PageID.59–60.) At the third step, the ALJ found that
Plaintiff did not have an impairment or combination of impairments that met or equaled the
requirements of the Listing of Impairments. (PageID.60–63.) At the fourth step, the ALJ found that
Plaintiff retained the RFC based on all the impairments:
to perform the full range of light work as defined in 20 CFR
404.1567(b) and 416.967(b) except he can only occasionally do
climbing and balancing and must avoid concentrated exposure to
hazards, such as unprotected heights and dangerous machinery.
(PageID.63.) Continuing with the fourth step, the ALJ determined that Plaintiff able to perform his
past relevant work as a laser beam machine operator as it is typically performed. (PageID.65–66.)
The ALJ based this conclusion on testimony given by the VE at the hearing. (PageID.100–101.)
Having made his determination at step four, the ALJ was not required to go further, however the ALJ

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also included an alternative fifth step finding that other jobs exist in significant numbers in the
national economy. The ALJ again based this finding on the VE’s testimony. In response to the
ALJ’s questioning, the VE testified that Plaintiff could perform the following work: machine tender
(7,800 Michigan jobs), light assembler (14,000 Michigan jobs), and packager (6,300 Michigan jobs).
(PageID.101.) Based on this record, the ALJ found that Plaintiff was capable of making a successful
adjustment to work that exists in significant numbers in the national economy. (PageID.67.)
Accordingly, the ALJ concluded that Plaintiff was not disabled at any point from his
alleged onset date through the date of decision. (PageID.67.)
DISCUSSION
1.

The ALJ’s Credibility Decision is Not Supported By Substantial
Evidence.

At the administrative hearing, Plaintiff testified that he was impaired to an extent
greater than that recognized by the ALJ. Among other things, Plaintiff testified that due to his failing
kidneys, he experienced increasing fatigue and would take daily naps, lasting between two to three
hours. (PageID.92, 94.) The ALJ found Plaintiff’s allegations to be “not entirely credible.”
(PageID.64.) Plaintiff claims the ALJ erred in doing so.
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); see also Grecol v. Halter, 46 F. App’x 773, 775 (6th Cir. 2002). 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), 416.929(a); see
also Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997) (quoting 20 C.F.R.

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§ 404.1529(a)); Hash v. Comm’r of Soc. Sec., 309 F. App’x 981, 989 (6th Cir. 2009). Instead, a
claimant’s assertions of disabling pain and limitation are evaluated under 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. Comm’r of Soc. Sec., 105 F. App’x 794, 801 (6th Cir. 2004).
Accordingly, “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.” Id. (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.” Id. (citing Walters, 127 F.3d at 531); see also Heston v.
Comm’r of Soc. Sec., 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 & Human Servs., 820 F.2d 777, 780 (6th Cir. 1987). In fact, as the Sixth

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Circuit has stated, “[w]e have held that an administrative law judge’s credibility findings are virtually
unchallengeable.” Ritchie v. Comm’r of Soc. Sec., 540 F. App’x 508, 511 (6th Cir. 2013) (citation
omitted).
Plaintiff’s sole claim of error is that the ALJ “overemphasized” his daily activities
in discounting his credibility. (PageID.667.) The Commissioner argues that there was “no showing
that the ALJ equated Plaintiff’s ability to perform daily activities with an ability to perform full-time
work.” (PageID.675–676.) But that is exactly what the ALJ did:
The claimant’s daily activities reflect an ability to do at least a
limited range of light work on a sustained basis. The claimant
acknowledged at the hearing that he has used colostomy and
urostomy bags since childhood and that he worked with the
colostomy and urostomy bags. He testified additionally that he
picked up around the house, mopped, swept, drove, went shopping,
watched television, worked with a computer, attended church
services, and visited with family and friends. He has also reported
that he has been able to prepare meals, wash the dishes, handle
financial matters, and care for his personal needs (3E; 5E).
(PageID.64) (emphasis added.) As Plaintiff further observes, the fact that he can perform these
activities in no way demonstrates that he can perform the assigned RFC without needing to take naps
throughout the day. (PageID.667.)
True, as the Commissioner points out, a plaintiff’s daily activities may be used to find
a claimant not to be credible. See 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); Cruse v. Comm’r of
Soc. Sec., 502 F.3d 532, 542 (6th Cir. 2007); Walters, 127 F.3d 525, 532 (6th Cir. 1997) (“An ALJ
may also consider household and social activities engaged in by the claimant in evaluating a
claimant’s assertions of pain or ailments.”); Blacha v. Sec’y of Health & Human Servs., 927 F.2d
228, 231 (6th Cir. 1990) (“As a matter of law, an ALJ may consider household and social activities
in evaluating complaints of disabling pain.”). It may well be that these activities are inconsistent
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with Plaintiff’s reports of fatigue. But that is not what the ALJ found here. Instead, the ALJ
determined that Plaintiff’s ability to perform these “somewhat minimal” daily activities translated
into an ability to perform light work. This he could not do. See Rogers v. Comm’r of Soc. Sec., 486
F.3d 234, 248 (6th Cir. 2007) (finding that the plaintiff’s ability to “drive, clean her apartment, care
for two dogs, do laundry, read, do stretching exercises, and watch the news” were “not comparable
to typical work activities”).
Even though the ALJ erred, that is not the end of the analysis. Indeed, the ALJ’s
decision must stand so long as it is supported by substantial evidence. See Ulman v. Comm’r of Soc.
Sec., 693 F.3d 709, 714 (6th Cir. 2012) (quoting Carmickle v. Comm’r of Soc. Sec., 533 F.3d 1155,
1162 (9th Cir. 2008)) (“[s]o long as there remains substantial evidence supporting the ALJ’s
conclusions on credibility and the error does not negate the validity of the ALJ’s ultimate credibility
conclusion, such is deemed harmless and does not warrant reversal”). The Court finds the remaining
reasons offered by the ALJ fail to support his ultimate credibility decision.
For example the ALJ stated that the “objective medical findings, while establishing
that the claimant has severe impairments, do not support the claimant’s alleged fatigue, other
symptoms, and limitations to the extent that the claimant has alleged.” (PageID.64.) But the ALJ
fails to specifically explain why this is so. The Commissioner’s brief, while providing a compelling
analysis, is one which the ALJ should have undertaken in the first instance. An ALJ “must
articulate, at some minimum level, his analysis of the evidence to allow the appellate court to trace
the path of his reasoning.” Diaz v. Chater, 55 F.3d 300, 307 (7th Cir. 1995). The ALJ has not done
so here.

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Finally, it appears the ALJ also discounted the Plaintiff’s credibility on the grounds
that Plaintiff’s treatment was conservative, and was not currently on a kidney transplant list. It is
not apparent, however, why the fact that Plaintiff is not currently on a transplant list should discount
his complaints of fatigue especially since, as the ALJ admits, the record shows Plaintiff’s kidney
function is deteriorating. (PageID.64.) Moreover, the Court does not find Plaintiff’s treatment
history to be sufficient to support the ALJ’s ultimate credibility decision. Plaintiff has required one
kidney transplant already, and his physician, Dr. Fu Lung Luan, has indicated he may need one again
in the future. (PageID.644.) If anything, this tends to support Plaintiff’s complaints.
In sum, the Court finds the ALJ’s credibility discussion to be unsupported by
substantial evidence. On remand, the Commissioner is directed to reevaluate Plaintiff’s complaints
of fatigue.
2.

Remand is Appropriate.

Plaintiff asks for an award of benefits. (PageID.668.) While the Court finds that the
ALJ’s decision fails to comply with the relevant legal standards, Plaintiff can be awarded benefits
only if “all essential factual issues have been resolved” and “the record adequately establishes his
entitlement to benefits.” Faucher v. Sec’y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir.
1994); see also Brooks v. Comm’r of Soc. Sec., 531 F. App’x 636, 644 (6th Cir. 2013). This latter
requirement is satisfied “where the proof of disability is overwhelming or where proof of disability
is strong and evidence to the contrary is lacking.” Faucher, 17 F.3d at 176; see also Brooks, 531
F. App’x at 644. This case is being remanded because the ALJ’s credibility analysis is flawed, not
because there is compelling evidence that Plaintiff is disabled. Accordingly, this matter must be
remanded for further administrative action.

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CONCLUSION
For the reasons articulated herein, the undersigned concludes that the ALJ’s decision
is not supported by substantial evidence. Accordingly, the Commissioner’s decision will be
REVERSED and this matter is REMANDED for further factual proceedings under sentence four
of 42 U.S.C. § 405(g). On remand, the Commissioner should re-evaluate Plaintiff's credibility and,
if Plaintiff is found not to be credible, provide reasons why this is so.

Dated:

September 19, 2016

/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE

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