Tokarski v. Commissioner of Social Security

Filing 13

OPINION vacating the Commissioner's decision and remanding this matter 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
SOUTHERN DIVISION

STEVEN TOKARSKI,
Plaintiff,

Hon. Ellen S. Carmody

v.
Case No. 1:15-cv-1296
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. The parties have
agreed to proceed in this Court for all further proceedings, including an order of final judgment.
(ECF No. 9). 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
articulated herein, the Commissioner’s decision is vacated 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
interference. See Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (citation omitted). This

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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 59 years of age on his alleged disability onset date. (PageID.146). He
earned a Bachelor’s Degree and a Master’s Degree and worked previously as a high school teacher,
administrator, director of physical plant, and bus driver. (PageID.44, 59-60). Plaintiff applied for
benefits on January 14, 2013, alleging that he had been disabled September 5, 2012, due to arthritis
and tibial plateau fracture. (PageID.146-47, 189). Plaintiff’s application was denied, after which
time he requested a hearing before an Administrative Law Judge (ALJ). (PageID.86-144).
On May 14, 2014, Plaintiff appeared before ALJ Donna Grit with testimony being
offered by Plaintiff and a vocational expert. (PageID.52-84). In a written decision dated July 25,
2014, the ALJ determined that Plaintiff was not disabled. (PageID.36-46). The Appeals Council
declined to review the ALJ’s determination, rendering it the Commissioner’s final decision in the
matter. (PageID.23-26). Plaintiff subsequently initiated this action pursuant to 42 U.S.C. § 405(g),
seeking judicial review of the ALJ’s decision.

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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).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
his 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 he can satisfy his burden by demonstrating that his impairments are so severe that he is unable
to perform his previous work, and cannot, considering his 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 his residual functioning capacity (RFC) is determined. See Bowen v.

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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), 416.920(b));
2. An individual who does not have a “severe impairment” will not be found “disabled” (20 C.F.R. §§
404.1520(c), 416.920(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), 416.920(d));
4. If an individual is capable of performing her past relevant work, a finding of “not disabled” must be made
(20 C.F.R. §§ 404.1520(e), 416.920(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), 416.920(f)).

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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).
The ALJ determined that Plaintiff suffers from: (1) obesity; (2) bilateral knee
osteoarthritis (status-post tibial plateau fracture of the right knee); (3) degenerative cervical and
lumbar spine changes; (4) degenerative changes of the right shoulder; and (5) bilateral thumb
arthritis, 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. (PageID.37-40).
With respect to Plaintiff’s residual functional capacity, the ALJ determined that
Plaintiff retained the capacity to perform sedentary work subject to the following limitations: (1) he
can lift up to 5 pounds frequently; (2) during an 8-hour workday, he can sit for 8 hours; (3) during
an 8-hour workday, he can stand or walk for 2 hours with no more than 1 hour standing at a time
without the opportunity to sit for 30 minutes before returning to standing; (4) he cannot climb
ladders, ropes, scaffolds, stairs, or ramps; and (5) he cannot crouch or crawl, but he can frequently
stoop and occasionally kneel. (PageID.40).
The ALJ found that Plaintiff cannot perform his 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, his
limitations notwithstanding. See Richardson, 735 F.2d at 964. While the ALJ is not required to
question a vocational expert on this 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

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added). This 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,
ALJs routinely question vocational experts in an attempt to determine whether there exist a
significant number of jobs which a particular claimant can perform, his limitations notwithstanding.
Such was the case here, as the ALJ questioned a vocational expert.
The vocational expert testified that there existed approximately 7,200 jobs in the state
of Michigan which an individual with Plaintiff’s RFC could perform, such limitations
notwithstanding. (PageID.77-82). 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). The ALJ concluded, therefore, that Plaintiff was not entitled to disability benefits.

I.

The ALJ’s Credibility Assessment is not Supported by Substantial Evidence
As the ALJ noted in her opinion, Plaintiff testified at the administrative hearing that

he experiences greater limitations than she recognized. (PageID.41-42). The ALJ, however, found
Plaintiff to be only “partially credible.” (PageID.42). Plaintiff argues that he is entitled to relief
because the ALJ’s rationale for discounting his testimony and subjective allegations is not supported
by substantial evidence. The Court agrees.
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

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“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).
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
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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). As the Sixth Circuit has 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, the ALJ is not permitted to make credibility determinations based upon
“an intangible or intuitive notion about an individual’s credibility.” Rogers v. Commissioner of
Social Security, 486 F.3d 234, 247 (6th Cir. 2007). Instead, the ALJ’s rationale for discrediting a
claimant’s testimony “must be sufficiently specific to make clear to the individual and to any
subsequent reviewers the weight the adjudicator gave to the individual’s statements and the reasons
for that weight.” Id. at 248. Accordingly, “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.” Id.
In support of her decision to discount Plaintiff’s credibility, the ALJ stated in
conclusory fashion that Plaintiff’s statements “are not entirely credible for the reasons explained in
this decision.” (PageID.42). A review of the ALJ’s decision, however, fails to illuminate “the
reasons” upon which her credibility assessment is based. While the ALJ detailed Plaintiff’s
subjective allegations, the discussion of such does not provide any insight into why such were
afforded so little weight. (PageID.41-42). Moreover, Plaintiff’s subjective allegations are not so
absurd or fantastical as to be incredible on their face. The ALJ’s discussion of the evidence likewise

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provides no insight into her decision to discredit Plaintiff’s credibility. (PageID.40-44).
This is not to suggest that the record absolutely fails to contain evidence which might
support a decision to discount Plaintiff’s credibility. As is the case in most Social Security appeals,
there is evidence supporting a finding that Plaintiff is credible as well as evidence supporting the
opposite conclusion. However, this Court’s role is not to search the record for such evidence and
articulate a rationale for one outcome or the other. Instead, the Court is limited to reviewing the
ALJ’s rationale and determining if such is supported by substantial evidence. In this case, however,
the Court cannot perform this task because the Court simply cannot discern the ALJ’s rationale for
discounting Plaintiff’s credibility. Accordingly, the Court finds that the ALJ’s decision is not
supported by substantial evidence.

II.

Remand is Appropriate
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. Secretary of Health
and Human Serv’s, 17 F.3d 171, 176 (6th Cir. 1994); see also, Brooks v. Commissioner of Social
Security, 531 Fed. Appx. 636, 644 (6th Cir., Aug. 6, 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 Fed. Appx. at 644.
Evaluation of Plaintiff’s claim requires the resolution of certain factual disputes which this Court
is neither competent nor authorized to undertake in the first instance. Moreover, there does not exist
compelling evidence that Plaintiff is disabled. Accordingly, this matter must be remanded for

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further administrative action.

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 vacated 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: December 29, 2016

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

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