Morgan v. Commissioner of Social Security

Filing 12

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

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MELINDA MORGAN,
Plaintiff,

Hon. Ellen S. Carmody

v.
Case No. 1:18-cv-422
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) and Supplemental Security Income (SSI) under
Titles II and XVI of the Social Security Act. The parties have agreed to proceed in this Court for
all further proceedings, including an order of final judgment. 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 vacated and the 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. 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 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

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evidence would have supported a contrary decision. See Bogle, 998 F.2d at 347; Mullen, 800
F.2d at 545.
PROCEDURAL POSTURE
Plaintiff was 46 years of age on her alleged disability onset date. (PageID.354).
She possesses a ninth grade education and worked previously as a retail cashier and fast food
worker. (PageID.68, 85). Plaintiff applied for benefits on October 7, 2013, alleging that she
had been disabled since February 6, 2011, due to scoliosis, depression, Bell’s palsy, carpal tunnel
syndrome, anxiety, hip and knee pain, arthritis, kidney stones, asthma, and low blood pressure.
(PageID.354-66, 188-89). Plaintiff=s applications were denied, after which time she requested a
hearing before an Administrative Law Judge (ALJ). (PageID.178-200). Following a May 20,
2015 hearing, ALJ Lawrence Blatnik denied Plaintiff’s claim. (PageID.131-52, 204-15). The
Appeals Council subsequently remanded the matter to the ALJ. (PageID.220-23).
On November 8, 2016, ALJ Blatnik conducted a second hearing at which Plaintiff
and a vocational expert testified. (PageID.78-130). In a written decision dated January 24,
2017, the ALJ determined that Plaintiff was not disabled.

(PageID.60-71).

The Appeals

Council declined to review the ALJ=s determination, rendering it the Commissioner=s final decision
in the matter. (PageID.41-45). Plaintiff subsequently initiated this appeal 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
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.

1

1.

An individual who is working and engaging in substantial gainful activity will not be found to be
Adisabled@ regardless of medical findings (20 C.F.R. '' 404.1520(b), 416.920(b));

2.

An individual who does not have a Asevere impairment@ will not be found Adisabled@ (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 Ameets or equals@ a listed impairment in Appendix 1 of Subpart P of Regulations
No. 4, a finding of Adisabled@ 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 Anot 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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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).
The ALJ determined that Plaintiff suffered from: (1) peripheral neuropathy; (2)
degenerative disc disease and scoliosis of the lumbar spine; (3) osteoarthritis; (4) asthma; (5) sleep
apnea; and (6) obesity, 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.63).
With respect to Plaintiff=s residual functional capacity, the ALJ determined that
Plaintiff retained the capacity to perform light work subject to the following limitations: (1) she
requires the option to alternate to standing for 3-5 minutes after one hour of sitting and to alternate
to sitting for 3-5 minutes after every 30-45 minutes of standing/walking; (2) she can occasionally
balance, stoop, kneel, crouch, and crawl; (3) she can occasionally climb ramps and stairs, but can
never climb ladders, ropes, or scaffolds; (4) she must avoid all exposure to unprotected heights or
moving parts; (5) she can tolerate occasional exposure to extreme cold or heat, humidity, or
wetness; and (6) must avoid concentrated exposure to fumes, odors, dusts, and other pulmonary
irritants. (PageID.64).
The ALJ found 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 this issue, Aa finding supported by substantial evidence that a
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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). 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 480,000 jobs in the
national economy which an individual with Plaintiff=s RFC could perform, such limitations
notwithstanding. (PageID.112-16). This represents a significant number of jobs. See, e.g.,
Taskila v. Commissioner of Social Security, 819 F.3d 902, 905 (6th Cir. 2016) (“[s]ix thousand
jobs in the United States fits comfortably within what this court and others have deemed
‘significant’”). Accordingly, the ALJ concluded that Plaintiff was not entitled to disability
benefits.
I.

ALJ’s Description of the Relevant Medical Evidence
The ALJ discussed the medical evidence at great length. Specifically, the ALJ

stated as follows:
The claimant participated in a consultative examination in October
2012, during the pendency of her previous application for disability
benefits, conducted by Scott Lazzara, M.D. During this
examination, the claimant reported a history of degenerative joint
disease and shortness of breath. During his physical examination,
Dr. Lazzara noted mild bronchial breath sounds without wheezes,
[rales], or rhonchi. There was prolongation of the expiratory phase,
but no accessory muscle use. There was no evidence of joint laxity,
repentance, or effusion. The claimant had pain in the lumbar spine
area, but had no difficulty getting on and off the examination table.
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She had mild difficulty with heel and toe walking, squatting, and
standing on her left foot. She had no difficulty standing on the right
foot, and a straight leg raising test was negative. Range of motion
was slightly decreased in the dorsolumbar spine, left shoulder, and
both knees. Dr. Lazzara noted a mild left limp and guarded gait, but
no use of any assistive device. Dr. Lazzara recommended use of an
inhaler, avoidance of triggers and cessation of tobacco use (Exhibit
B1F).
The claimant reports a history of shortness of breath. In an unsigned
and undated Asthma Form, the claimant reported she was not being
treated for asthma (Exhibit B5E). Physical examination in August
2013, after the claimant went to the emergency room complaining
of nausea, vomiting, and dizziness, revealed a reasonably well
developed, well nourished individual, in no acute distress. Her lungs
were clear with no rhonchi, rales, or wheezes heard (Exhibit B3F).
Physical examination from September 2013 revealed normal
respiratory effort and auscultation (Exhibit B5F). The record
indicates the claimant stopped smoking around August 2014. A
chest electromagnetic x-ray taken in September 2014 revealed a
stable chest with no acute cardiopulmonary pathology. Physical
examination noted diminished breath sounds with expiratory rales
in the right lower lung, but no shortness of breath when speaking in
complete sentences (Exhibit B5F).
The claimant complains of low back pain and hip pain. The claimant
received treatment from the Family Medical Clinic beginning in
September 2013. She reported normal activities of daily living and
limited outside activity. She complained of chronic leg and back
pain with scoliosis. A neurological examination was normal, and a
musculoskeletal assessment revealed increased thoracic kyphosis
and mild scoliosis. The claimant indicated she did not use any
ambulatory assistive device. A physical examination in November
2013 revealed no scoliosis (Exhibit B5F). The claimant attended an
initial evaluation for physical therapy in December 2013 with the
Community Health Center of Branch County. She again complained
of pain in her back and hip, with tingling in her feet. She reported
difficulty walking and putting on clothes. Practitioners observed an
antalgic gait with decreased weight bearing in the left lower
extremity, mild scoliosis to the left in the lower thoracic spine to
lumbar region, tightness in the lumbar spine and gluteal region, and
muscle guarding in the left lower quadrant. X-rays of the claimant's
hips taken in October 2013 revealed no significant joint space
narrowing or degenerative changes. There were no fractures,
dislocation, or acute abnormalities. The bony pelvis was normal
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other than some minimal degenerative spurring at the inferior
sacroiliac joint. There was decreased range of motion in the lumbar
spine and hip, and practitioners noted functional limitations in
sitting, walking, standing, and sleeping. It was recommended the
claimant would benefit from skilled therapy two times a week for
four weeks to address these areas (Exhibit B4F). The claimant
canceled a return visit, and never returned or called to schedule
further treatments (Exhibit B6F).
The record indicates the claimant began using a cane for balance
around August 2014 after reportedly tripping over her feet. She
denied dizziness or lightheadedness at this time (Exhibit B5F).
Magnetic resonance imaging (MRI) of the claimant's lumbar spine
performed in January 2015 was generally unremarkable for the
claimant's age. There was some mild disc protrusion at L5-S1, but
no central canal stenosis. X-rays of the claimant's hips were
negative, and there was no evidence of any hip pathology (Exhibit
B8F). In March 2015, the claimant complained of low back and leg
pain in treatment with Sturgis Hospital Pain Center. During a
physical examination, there was some pain with flexion and
extension. Palpation revealed bilateral tender spots and trigger
points in an L4, L5 distribution. A straight leg raising was somewhat
positive and sensation was decreased to light touch in her lower
extremities. On follow-up in May 2015, she reported continued pain.
There were some bilateral tender spots and trigger points, but a
straight leg raising was negative. She received bilateral lumbar facet
injections at L3-4, L4-5, and L5-S1 in June 2015 (Exhibit B16F).
The claimant complained of hip pain during treatment with the
Community Health Center of Branch County in May 2016. She
reported radiation of pain down her legs and also reported tingling
in her feet. Practitioners noted trace edema in her lower extremities,
but she also admitted to walking her dog at this time (Exhibit Bl IF).
An electromyogram (EMG) performed in July 2016 revealed
moderately severe polyneuropathy of both legs (Exhibit B12F). The
claimant reported to the Emergency Room in July 2016 after
injuring her ankle. Radiology imaging was unremarkable (Exhibit
B13F). She returned in August complaining of continued symptoms,
and practitioners indicated they were related to osteoarthritis
(Exhibit B14F). An ultrasound of her lower extremities performed
in October 2016 was normal (Exhibit B24F). The claimant was
diagnosed with sleep apnea and practitioners noted good response
to 9 centimeters (cm) of a continuous positive airway pressure
(CPAP) device after a polysonmography study in January 2015
(Exhibit B11F).
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The claimant weighs approximately 181 pounds and is 63 inches
tall, which results in a body mass index (BMI) of 32.1, which the
National Institutes of Health (NIH) classifies as obese (Clinical
Guidelines on the Identification, Evaluation, and Treatment of
Overweight and Obesity in Adults. NIH Publication No. 98-4083).
The levels of obesity described by the NIH do not correlate with any
specific degree of functional loss. Obesity can, however, cause or
contribute to impairments in the musculoskeletal, respiratory, and
cardiovascular body systems. I have considered this condition to
determine if it alone, or in combination with other impairments,
significantly limits the claimant's physical or mental ability to do
basic work activities (20 CFR, Subpt. P, App. 1.00Q: 3.001: 4.00F:
SSR 02-lp). There is no evidence of any specific or quantifiable
impact on the claimant's pulmonary, musculoskeletal, endocrine, or
cardiac functioning. It appears that her obesity is not the main cause
of her osteoarthritis or asthma issues.
The claimant participated in a second consultative examination in
March 2015, again conducted by Dr. Lazzara. During this
assessment, the claimant reported a history of chronic pain in her
lower extremities and back. She denied physical therapy or surgical
intervention, other than a carpal tunnel release on her right hand
when she was 30 years old. She indicated she could perform
activities of daily living, does not drive a motor vehicle, completes
household chores, grocery shops in stores, reads and completes
puzzles. The claimant denied trouble sitting, but reported she could
stand for 15 minutes, walk half a block, and lift only ten pounds.
Physical examination revealed the presence of trace edema, but no
clubbing or cyanosis. The claimant's breath sounds were clear to
auscultation and symmetrical, and there was no accessory muscle
use. There was no joint laxity, crepitance, or effusion. The claimant's
grip strength was intact, and her dexterity was unimpaired. The
claimant had mild difficulty getting on and off the examination
table, heel and toe walking, squatting, and standing on either foot.
She had decreased range of motion in the cervical and dorsolumbar
spine and both shoulders and knees. There was a right nasolabial
fold droop, but her motor strength and muscle tone was normal. Dr.
Lazzara observed the claimant had a guarded gait, without the use
of an assistive device (Exhibit B7F).
(PageID.65-68).

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II.

The ALJ’s RFC Assessment is Not Supported by Substantial Evidence
A claimant’s RFC represents the “most [a claimant] can still do despite [her]

limitations.” Sullivan v. Commissioner of Social Security, 595 Fed. Appx. 502, 505 (6th Cir.,
Dec. 12, 2014); see also, Social Security Ruling 96-8P, 1996 WL 374184 at *1 (Social Security
Administration, July 2, 1996) (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”). As noted above, the ALJ
concluded that Plaintiff can perform a limited range of light work. Plaintiff argues that she is
entitled to relief because the ALJ’s RFC assessment is not supported by substantial evidence.
While the ALJ found that Plaintiff suffered from several severe impairments, the
ALJ failed to find that Plaintiff’s alleged carpal tunnel syndrome constituted a severe impairment.
Defendant expressly concedes that “the ALJ erred in finding that carpal tunnel syndrome was not
a medically determinable impairment for plaintiff.” (ECF No. 11 at PageID.712). Defendant
further argues, however, that this error is harmless because Plaintiff has failed to establish that “her
carpal tunnel syndrome, either by itself or in combination with any other medically determinable
impairment(s), resulted in a more limited RFC than the one the ALJ set forth.” (ECF No. 11 at
PageID.712). The Court disagrees.
Plaintiff underwent carpal tunnel surgery on her right hand when she was
approximately 30 years old. (PageID.548, 675). A number of years later, Plaintiff began to
again experience carpal tunnel symptoms. On March 10, 2015, Plaintiff reported to Dr. R. Scott
Lazzara that she was suffering carpal tunnel syndrome.

(PageID.548).

Following an

examination, the doctor reported that Plaintiff could perform handling, fingering, and feeling
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activities only one-third to two-thirds of the workday.

(PageID.555).

An examination of

Plaintiff’s hands and wrists, conducted on October 17, 2016, revealed a positive Phalen’s Test.2
(PageID.677-81). Plaintiff was prescribed Lyrica and wrist splints. (PageID.90, 677-81). A
November 14, 2016 examination revealed decreased range of motion in Plaintiff’s wrists and
hands. (PageID.675). Plaintiff’s care providers further noted that Plaintiff’s medication and
wrist splints were only helping “a little.” (PageID.675).
While the record does not support the argument that Plaintiff’s carpal tunnel
syndrome renders her unable to work, the record likewise does not support the ALJ’s RFC
assessment which contains no limitations for such. Accordingly, the undersigned finds that the
ALJ’s RFC assessment 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 questions must accurately portray the claimant’s impairments).
III.

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 Aall essential factual issues have been resolved@
and Athe record adequately establishes [her] 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

2
Phalen’s test is performed to determine the presence of carpal tunnel syndrome. See Tinels and Phalens Tests,
available at http://www.carpal-tunnel-symptoms.com/tinels-and-phalens-tests.html (last visited on December 18,
2018). Phalen’s test is performed by bending the patient’s wrists downwards as far as they will comfortably go and
pushing the backs of the hands together. The patient should hold this position for one minute. A positive test is
indicated by numbness or tingling along the median nerve distribution. Id.

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Social Security, 531 Fed. Appx. 636, 644 (6th Cir., Aug. 6, 2013). This latter requirement is
satisfied Awhere 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 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 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.

Dated: December 18, 2018

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

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