Coates #155262 v. Snyder et al

Filing 22

OPINION; signed by Magistrate Judge Ray Kent (Magistrate Judge Ray Kent, fhw)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BRITTANY MARIE ZEVENBERGEN-ORTIZ,
Plaintiff,
v.

Case No. 1:17-CV-133
Hon. Ray Kent

COMMISSIONER OF SOCIAL
SECURITY,
Defendant,
__________________________________/
OPINION
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review
of a final decision of the Commissioner of Social Security Administration (Commissioner) which
issued a partially favorable decision for disability insurance benefits (DIB) claim.
Plaintiff alleged a disability onset date of September 15, 2012 when she was
involved in a motor vehicle accident. PageID.49, 233. Plaintiff identified her disabling conditions
as: blind; left knee injury; left arm injury; and right foot injury. PageID.237. Prior to applying
for DIB, plaintiff completed the 12th grade and had past employment as a call center
representative, customer service representative, and receptionist. PageID.238. An administrative
law judge (ALJ) reviewed plaintiff’s claim de novo and entered a partially favorable written
decision on January 27, 2016. PageID.44-55. In this decision, the ALJ found that plaintiff was
under a disability, as defined by the Social Security Act, from September 15, 2012 through October
8, 2015. PageID.48. Plaintiff contests the ALJ’s finding that her disability ended on October 8,

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2015. This decision, which was later approved by the Appeals Council, has become the final
decision of the Commissioner and is now before the Court for review.
I.

LEGAL STANDARD

This Court’s review of the Commissioner’s decision is typically focused on
determining whether the Commissioner’s findings are supported by substantial evidence. 42
U.S.C. § 405(g); McKnight v. Sullivan, 927 F.2d 241 (6th Cir. 1990). “Substantial evidence is
more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Cutlip v. Secretary of Health
& Human Services, 25 F.3d 284, 286 (6th Cir. 1994). A determination of substantiality of the
evidence must be based upon the record taken as a whole. Young v. Secretary of Health & Human
Services, 925 F.2d 146 (6th Cir. 1990).
The scope of this review is limited to an examination of the record only. This Court
does not review the evidence de novo, make credibility determinations or weigh the evidence.
Brainard v. Secretary of Health & Human Services, 889 F.2d 679, 681 (6th Cir. 1989). The fact
that the record also contains evidence which would have supported a different conclusion does not
undermine the Commissioner’s decision so long as there is substantial support for that decision in
the record. Willbanks v. Secretary of Health & Human Services, 847 F.2d 301, 303 (6th Cir. 1988).
Even if the reviewing court would resolve the dispute differently, the Commissioner’s decision
must stand if it is supported by substantial evidence. Young, 925 F.2d at 147.
A claimant must prove that he suffers from a disability in order to be entitled to
benefits. A disability is established by showing that the claimant cannot engage in substantial
gainful activity by reason of any medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be expected to last for a continuous period

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of not less than twelve months. See 20 C.F.R. § 404.1505; Abbott v. Sullivan, 905 F.2d 918, 923
(6th Cir. 1990). In applying the above standard, the Commissioner has developed a five-step
analysis:
The Social Security Act requires the Secretary to follow a “five-step
sequential process” for claims of disability. First, plaintiff must demonstrate that
she is not currently engaged in “substantial gainful activity” at the time she seeks
disability benefits. Second, plaintiff must show that she suffers from a “severe
impairment” in order to warrant a finding of disability. A “severe impairment” is
one which “significantly limits . . . physical or mental ability to do basic work
activities.” Third, if plaintiff is not performing substantial gainful activity, has a
severe impairment that is expected to last for at least twelve months, and the
impairment meets a listed impairment, plaintiff is presumed to be disabled
regardless of age, education or work experience. Fourth, if the plaintiff's
impairment does not prevent her from doing her past relevant work, plaintiff is not
disabled. For the fifth and final step, even if the plaintiff’s impairment does prevent
her from doing her past relevant work, if other work exists in the national economy
that plaintiff can perform, plaintiff is not disabled.
Heston v. Commissioner of Social Security, 245 F.3d 528, 534 (6th Cir. 2001) (citations omitted).
The claimant bears the burden of proving the existence and severity of limitations
caused by her impairments and the fact that she is precluded from performing her past relevant
work through step four. Jones v. Commissioner of Social Security, 336 F.3d 469, 474 (6th Cir.
2003). However, at step five of the inquiry, “the burden shifts to the Commissioner 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. If it is determined that a claimant
is or is not disabled at any point in the evaluation process, further review is not necessary. Mullis
v. Bowen, 861 F.2d 991, 993 (6th Cir. 1988).

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II.

ALJ’s DECISION

A.

Plaintiff’s condition from September 15, 2012 through October 8, 2015

At step one, the ALJ found that plaintiff has not engaged in substantial gainful
activity since September 15, 2012, the date she became disabled, and that she meets the insured
status requirements of the Social Security Act through September 30, 2025. PageID.47.
At step two, the ALJ found that from September 15, 2012 through October 8, 2015,
the period during which the claimant was under a disability, the claimant had the following severe
impairments: status post left knee dislocation with knee reconstruction and ligament and tendon
repair surgeries; status post surgical repair of 1ight foot tendon lacerations; status post closed
reduction of right metatarsal fracture; status post small bowel resection surgery and repair; status
post right pelvic superior rami fracture; status post scapula fracture; brachial plexopathy on the left
side; blindness in the right eye; and obesity. PageID.48. At step three, the ALJ found that from
September 15, 2012 through October 8, 2015, plaintiff did not have an impairment or combination
of impairments that met or medically equaled the requirements of the Listing of Impairments in
20 C.F.R. Pt. 404, Subpt. P, App. 1. PageID.48.
The ALJ decided at the fourth step that:
[F]rom September 15, 2012 through October 8, 2015, the claimant had the residual
functional capacity to perform a range of sedentary work as defined in 20 CFR
404.1567(a) that includes an ability to lift, carry, push, or pull 10 pounds
occasionally and less than 10 pounds frequently; but can only lift 2 pounds with her
non-dominant left upper extremity alone; stand or walk for 2 hours in an 8-hour
workday; sit for 6 hours in an 8-hour workday; never climb ropes, ladders, or
scaffolds; occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and
crawl; may only occasionally perform fine manipulation with her left upper
extremity, but has no limitations with fine manipulation with her 1ight upper
extremity; and should have no exposure to unprotected heights or hazardous
machinery; no fine manipulation with her left hand, but can use it has a helper hand;
and miss work 3 or more days per month.

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PageID.48. The ALJ also found that from September 15, 2012 through October 8, 2015, plaintiff
was unable to perform any past relevant work. PageID.51.
At the fifth step, the ALJ determined that from September 15, 2012 through October
8, 2015, considering the claimant’s age, education, work experience, and residual functional
capacity (RFC), there were no jobs that existed in significant numbers in the national economy
that the claimant could have performed. PageID.52. Accordingly, the ALJ found that plaintiff
was under a disability, as defined by the Social Security Act, from September 15, 2012 through
October 8, 2015. PageID.53.
B.

Plaintiff’s condition since October 9, 2015

The ALJ found that plaintiff was no longer disabled as of October 9, 2015, based
on the following determinations made at steps two, three, four and five. At step two, the ALJ
found that plaintiff has not developed any new impairment or impairments since October 9, 2015,
the date her disability ended, and that her current severe impairments are the same as that present
from September 15, 2012 through October 8, 2015. PageID.53. At step three, the ALJ found that
beginning October 9, 2015, plaintiff has not had an impairment or combination of impairments
that met or medically equaled the requirements of the Listing of Impairments in 20 C.F.R. Pt. 404,
Subpt. P, App. 1. Id.
The ALJ decided at the fourth step that medical improvement occurred as of
October 9, 2015, the date plaintiff’s disability ended. Id. In addition, the medical improvement
that has occurred is related to the ability to work because there has been an increase in plaintiff’s
RFC. Id. In comparing plaintiff’s RFC for the period during which she was disabled with the
RFC beginning October 9, 2015, the ALJ found that plaintiff’s RFC for basic work activities
increased:

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After careful consideration of the entire record, the undersigned finds that,
beginning October 9, 2015, the claimant has had the residual functional capacity to
perform sedentary work as defined in 20 CFR 404.1567(a) that include an ability
to lift, carry, push, or pull 20 pounds occasionally and 10 pounds frequently; but
can only lift 2 pounds with her non-dominant left upper extremity alone; stand or
walk for 2 hours in an 8-hour workday; sit for 6 hours in an 8-hour workday; never
climb ropes, ladders, or scaffolds; occasionally climb ramps and stairs, balance,
stoop, kneel, crouch, and crawl; may only occasionally perform fine manipulation
with her left upper extremity, but has no limitations with fine manipulation with
her right upper extremity; and should have no exposure to unprotected heights or
hazardous machinery.
PageID.53. The ALJ also found that plaintiff is still unable to perform any past relevant work.
PageID.54.
At the fifth step, the ALJ determined that, beginning October 9, 2015, plaintiff
could perform a significant number of unskilled jobs at the sedentary exertional level in the
national economy. PageID.54-55. Specifically, the ALJ found that plaintiff could perform the
requirements of sedentary unskilled occupations such as production inspector (20,000 jobs
nationally), surveillance system monitor (42,000 jobs nationally), and information clerk (40,000
jobs nationally). PageID.55. Accordingly, the ALJ determined that plaintiff was under a disability,
as defined by the Social Security Act, from September 15, 2012 through October 8, 2015, and that
the disability ended on October 9, 2015. PageID.53, 55.
III.

DISCUSSION

Plaintiff contends that the ALJ’s decision that she was not disabled after October
2015 is not supported by substantial evidence, setting forth three related issues on appeal1:
A. This Court should consider the post-hearing evidence
because it demonstrates that plaintiff’s condition did not
improve, contrary to the ALJ’s conclusion.
B. The ALJ did not have substantial evidence to support her
RFC findings in this case.
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The Court notes that plaintiff does not present discrete arguments with respect to each of her alleged errors.
Accordingly, the Court will review them together.

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C. The ALJ committed reversible error by not properly
considering the opinion of Plaintiff’s treating physician.
1.

Background

Plaintiff asks the Court to remand this matter for consideration of post hearing
evidence that was not available until after the ALJ issued her decision on January 25, 2016. The
gist of plaintiff’s claim is that the ALJ’s finding that her condition improved during October 2015
is wrong, and that this can be demonstrated by medical records which plaintiff’s counsel requested
before the administrative hearing but which were not received until February 2016. When a
plaintiff submits evidence that has not been presented to the ALJ, the Court may consider the
evidence only for the limited purpose of deciding whether to issue a sentence-six remand under
42 U.S.C. § 405(g). See Sizemore v. Secretary of Health and Human Services, 865 F.2d 709, 711
(6th Cir.1988). Under sentence-six, “[t]he court . . . may at any time order the additional evidence
to be taken before the Commissioner of Social Security, but only upon a showing that there is new
evidence which is material and that there is good cause for the failure to incorporate such evidence
into the record in a prior proceeding . . .” 42 U.S.C. § 405(g). In a sentence-six remand, the court
does not rule in any way on the correctness of the administrative decision, neither affirming,
modifying, nor reversing the Commissioner’s decision. Melkonyan v. Sullivan, 501 U.S. 89, 98
(1991). “Rather, the court remands because new evidence has come to light that was not available
to the claimant at the time of the administrative proceeding and that evidence might have changed
the outcome of the prior proceeding.” Id. “The party seeking a remand bears the burden of
showing that these two requirements are met.” Hollon ex rel. Hollon v. Commissioner of Social
Security, 447 F.3d 477, 483 (6th Cir. 2006).

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In order for a claimant to satisfy the burden of proof as to materiality, “he must
demonstrate that there was a reasonable probability that the [Commissioner] would have reached
a different disposition of the disability claim if presented with the new evidence.” Sizemore, 865
F.2d at 711. “A claimant shows ‘good cause’ by demonstrating a reasonable justification for the
failure to acquire and present the evidence for inclusion in the hearing before the ALJ.” Foster v.
Halter, 279 F.3d 348, 357 (6th Cir. 2001). To show good cause a claimant is required to detail the
obstacles that prevented him from entering the evidence in a timely manner. Bass v. McMahon,
499 F.3d 506, 513 (6th Cir. 2007). “The mere fact that evidence was not in existence at the time
of the ALJ’s decision does not necessarily satisfy the ‘good cause’ requirement.” Courter v.
Commissioner of Social Security, 479 Fed. Appx. 713, 725 (6th Cir. 2012).
As an initial matter, plaintiff does not explicitly identify the post-hearing evidence
at issue. 2 The records cited in her brief (PageID.793-800) appear to have been faxed on December
15, 2015, a few weeks before plaintiff’s January 5, 2016 administrative hearing. It appears that
plaintiff is relying on the documents which her counsel sent to the Appeals Council: Senior
Helpers Employment termination letter (Oct. 14, 2016) (Exh.15E) (PageID.292); medical
treatment records from Stephen C. Bloom, D.O. (Nov. 10, 2015) (Exh. 21F) (PageID.800-802);
and medical treatment records from James D. Hudson, M.D. (Dec. 2, 2015) (Exh. 22F)
(PageID.803-807). The Appeals Council reviewed these exhibits prior denying plaintiff’s request
for review. PageID.26-31.
In addition, plaintiff’s brief does not address the legal standard for medical
improvement which the Court should apply to determine the materiality of the new records.
Plaintiff’s claim is construed as a “closed period case,” i.e., one in which the ALJ determined that

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The Court notes that some of plaintiff’s citations to “PageID” numbers do not match the records discussed in her
brief.

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the claimant was disabled for a finite period of time that commenced and ended prior to the date
of the ALJ’s decision. See, e.g., Pickett v. Bowen, 833 F.2d 288, 289 n. 1 (11th Cir. 1987). The
medical improvement standard applies to closed period cases. “Once an ALJ finds a claimant
disabled, he must find a medical improvement in the claimant’s condition to end his benefits, a
finding that requires ‘substantial evidence’ of a ‘medical improvement’ and proof that he is ‘now
able to engage in substantial gainful activity.’” Niemasz v. Barnhart, 155 Fed.Appx. 836, 840 (6th
Cir. 2005), quoting 42 U.S.C. § 423(f)(1). The phrase “Medical improvement” is defined in 20
C.F.R. § 404.1594(b)(1) in relevant part as follows:
Medical improvement is any decrease in the medical severity of your
impairment(s) which was present at the time of the most recent favorable medical
decision that you were disabled or continued to be disabled. A determination that
there has been a decrease in medical severity must be based on changes
(improvement) in the symptoms, signs and/or laboratory findings associated with
your impairment(s).
Here, the ALJ explained her basis finding that plaintiff was no longer disabled due
to her medical improvement:
The claimant improved to the point that she is able to drive without
restrictions. Her orthopedist allowed her to return to work without restrictions as of
February 11, 2014 but, at that point she still had some left hand problems. The
medical records from late 2014 show that she refused her doctor's offer for hand
surgery (Exhibit 14F/1). She only did physical therapy, but it seemed to work well.
On February 16, 2015, she stated that she was able "to do most everything that I
need to do" (Exhibit 18F/4).
By October 8, 2015, the claimant reported a steady decrease in the
frequency and intensity of her pain symptoms (Exhibit 18F/2). Lisa Makuch, Ph.D.,
found her prognosis was very good, provided she remain committed to stress
reducing, health-promoting behaviors. She admitted that she was looking for part
time work and she was assisting her aunt with data entry (Exhibit 18F/17).
Although she was unable to tolerate the data helper job, she was investigating work
as an elder helper. Her left upper extremity strength was 5/5 and her left grip
strength was between 10-15 pounds (Exhibit 18F/18).
The undersigned finds that, at the hearing, she was actually able to move
her hand quite well, and the fact she was even attempting a data entry job shows
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she had greater function in that hand than she alleges. Her refusal to do surgery also
indicates that her functioning is not as bad as alleged (Exhibit 18F/17-19).
Moreover, the provider discharged her from the pain management program on
October 15, 2015. Overall, the record shows that her condition substantially
improved to justify the revised residual functional capacity.
PageID.53-54.
2.

The new evidence

a.

The termination letter

The October 14, 2016 letter from plaintiff’s former employer stated that plaintiff
was terminated “because due to your requested work schedule, you cannot meet the requirements
of the full-time office manager, a work schedule of Monday through Friday from 8:00 a.m. to 5:00
p.m.” PageID.292. Plaintiff has not shown good cause for failing to present this letter to the ALJ.
The letter was not in existence prior to the date of the ALJ’s decision and reflected events which
occurred in the nine months after the decision. Furthermore, this letter was not material. While
plaintiff was terminated from an office manager position in October 2016, there is no evidence
that the duties of this position fell within plaintiff’s RFC.
b.

Records of Dr. Bloom and Dr. Hudson

At the hearing, plaintiff’s counsel stated that he requested these medical records on
November 20, 2015 (more than one month before the administrative hearing), but had still not
received them at the time of the hearing. PageID.65. It appears that counsel received these records
on February 15, 2016, a few weeks after the ALJ’s decision. Based on this record, counsel has
demonstrated good cause. Dr. Bloom’s record from November 10, 2015 stated that plaintiff had
stopped all meds for left hand pain and was independent with driving. PageID.801. Nevertheless
the doctor stated that plaintiff was to investigate acupuncture with the pain clinic, stated that he
was “in support of full disability,” and wrote “a prescription for off from work [six months].” Id.

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Dr. Hudson from Mary Free Bed Rehabilitation Hospital examined plaintiff on
December 2, 2015, and diagnosed her with left hand weakness, intractable neuropathic pain of left
hand, and depression. PageID.804. The doctor noted “atrophy of the intrinsic muscles of the left
hand and weakness of the wrist flexors and extensors.” PageID.806. Plaintiff reported that “[s]he
has been trying various splints for typing which has not gone well,” that “[h]er wage replacement
has run out and she is afraid she won’t be able to go back to doing the transcription work that she
used to do.” PageID.804. Dr. Hudson continued plaintiff’s medication (Celexa) and recommended
an acupuncture evaluation and treatment for the next two months. PageID.806.
Taken together, it appears to the Court that the records of Dr. Bloom and Dr.
Hudson are material and appear to contradict the ALJ’s conclusion that plaintiff experienced
medical improvement by October 9, 2015, i.e., plaintiff’s had left hand weakness with atrophied
muscles and the doctor prescribed another course of pain treatment for two months (acupuncture).
In the Court’s opinion, plaintiff has demonstrated “that there was a reasonable probability that the
[Commissioner] would have reached a different disposition of the disability claim if presented
with the new evidence.” Sizemore, 865 F.2d at 711. Accordingly, this matter will be remanded
pursuant to sentence six of 42 U.S.C. § 405(g) for consideration of the new evidence from Dr.
Bloom and Dr. Hudson.
IV.

CONCLUSION

The ALJ’s decision shall be remanded pursuant to sentence six of 42 U.S.C. §
405(g). On remand, the Commissioner is directed to review the records of Dr. Bloom (Nov. 10,
2015) (Exh. 21F) (PageID.800-802) and Dr. Hudson (Dec. 2, 2015) (Exh. 22F) (PageID.803-807)

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and re-evaluate whether plaintiff’s disability ended on October 9, 2015. An order consistent with
this opinion will be issued forthwith.

Dated: March 26, 2018

/s/ Ray Kent
United States Magistrate Judge

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