Lippincott v. Commissioner of Social Security
DECISION AND ENTRY - IT IS THEREFORE ORDERED THAT: 1. The Commissioners non-disability finding is vacated; 2. No finding is made as to whether Plaintiff Elizabeth D. Lippincott was under a disability within the meaning of the Social Security Act; 3 . This matter is REMANDED to the Social Security Administration under sentence four of 42 U.S.C. § 405(g) for further consideration consistent with this Decision and Entry; and 4. The case is terminated on the Courts docket. Signed by Magistrate Judge Sharon L. Ovington on 9/22/17. (pb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
ELIZABETH D. LIPPINCOTT,
NANCY A. BERRYHILL,
COMMISSIONER OF THE SOCIAL
: Case No. 3:16-cv-358
: Magistrate Judge Sharon L. Ovington
(by full consent of the parties)
DECISION AND ENTRY
Plaintiff Elizabeth D. Lippincott brings this case challenging the Social Security
Administration’s denial of her application for period of disability and Disability
Insurance Benefits. She applied for benefits on May 14, 2013, asserting that she could no
longer work a substantial paid job. Administrative Law Judge (ALJ) Mark Hockensmith
concluded that she was not eligible for benefits because she is not under a “disability” as
defined in the Social Security Act.
The case is before the Court upon Plaintiff’s Statement of Errors (Doc. #10), the
Commissioner’s Memorandum in Opposition (Doc. #13), and the administrative record
Plaintiff seeks a remand of this case for payment of benefits or, at a minimum, for
further proceedings. The Commissioner asks the Court to affirm ALJ Hockensmith’s
Plaintiff asserts that she has been under a “disability” since August 22, 2011. She
was thirty-six years old at that time and was therefore considered a “younger person”
under Social Security Regulations. See 20 C.F.R. § 404.1563(c). She has a high school
education. See id. § 404.1564(b)(4).
Plaintiff testified at the hearing before ALJ Hockensmith that she sees Shirley Jean
Budding, a psychiatric nurse (certified nurse practitioner), at least every three months.
(Doc. #6, PageID #s 143-44). Ms. Budding manages Plaintiff’s depression and anxiety
medications. Id. at 143. Plaintiff stated that her anxiety is not getting any better and is
“probably getting worse.” Id. She does not like to leave her house and gets nervous in
groups of ten or more. Id. at 143-44. She no longer sees a counselor because she cannot
afford it. Id. at 144-45.
Plaintiff’s “main physician” is Dr. Valle, a sleep doctor who treats her sleep apnea.
Id. at 145-47. She sees him every three to six months. Id. at 146. Dr. Valle prescribes
methamphetamine. Id. Plaintiff tells “him the same thing over and over again: the
medication is not holding [her] near as long as [she] feel[s] like it should.” Id. She
estimated that it is effective for three hours. Id. at 159. She has sleepiness daily. Id. at
154. She estimated that she has two to three good days a week. Id.
Plaintiff has a CPAP machine that she is supposed to use while sleeping. Id. at
147. She did not use it every night because when she wore the mask, she woke up feeling
like she was suffocating. Id. She had to take anxiety medicine with Ambien to be able to
sleep with the mask on. Id. She explained that because “it’s been so choppy, as far as
using it,” she could not say how well it works. Id. at 153-54. They have tried several
masks and she thinks it has been “a little successful.” Id. at 148. At the time of the
hearing, Plaintiff had just taken her machine to Dr. Valle’s office because the settings
were messed up. Id. She had not set it up yet and was having trouble getting the bucket
of water out of it. Id.
Plaintiff also sees Dr. Schoonover, a neurologist at the same practice as Dr. Valle.
Id. He treats her migraines. Id. For years, Plaintiff’s migraines were pretty well
managed. Id. However, about six to eight months before the hearing, she started having
more problems with them. Id. at 148-49. She started losing slight peripheral vision for
twenty minutes when she had a migraine. Id. at 149. Plaintiff has headaches several
times a week and migraines once every couple weeks. Id. at 149-50. Dr. Schoonover
prescribes Zanaflex. Id. at 149. Plaintiff reported, “it makes me feel like I’m flying
through the air.” Id. And, it only works sometimes. Id.
Plaintiff sees Dr. Saxe, an internal GI doctor who diagnosed chronic pancreatitis.
Id. at 150. He also treats her irritable bowel and reflux. Id. at 151. She sees him about
once per year. Id. Plaintiff gets pain in her sternum that radiates outward. Id.
Sometimes she is able to “walk and carry on, and still be in pain.” Id. Other times, she
has to lie down on the floor “because I’m in so much pain, I can’t even stand.” Id. Her
doctors have done procedures that have helped some. Id. at 152. She has an “attack” of
severe pain about every three weeks to one month. Id. at 151-52. The attacks last for a
minute. Id. at 152. But, she is “out of commission for … maybe an hour or so …
because … I’m just physically worn out after it happens ….” Id. at 153.
Plaintiff lives in a house with her husband and two children (ages 8 and 11). Id. at
124. She has a driver’s license and drives short distances—no more than thirty
minutes—several times a week. Id. at 125-26. She does not drive longer distances
because she is afraid that she will get too sleepy while driving. Id. at 126. In the past,
when she felt tired while driving, she pulled into a parking lot to rest. Id.
Plaintiff can “physically” handle personal care activities such as getting dressed
and bathing. Id. at 154-55. However, “depression makes it hard.” Id. at 155. She
explained that although she did not want to admit it, she does not shower as much as she
should. Id. Plaintiff’s husband does eighty to ninety percent of the cooking. Id. He also
vacuums because “bending, pulling, pushing motion … seems to aggravate [pancreatitis].
Id. at 155-56. Plaintiff tries to help with the general housework as much as she can. Id.
at 156. For example, she does some laundry. Id. However, she sometimes forgets that
she put a load in and then it just sits in the washer. Id. Plaintiff takes two naps
throughout the day, once in the late morning and once in the early afternoon. Id. at 157.
She naps anywhere from thirty minutes to two hours. Id. Other than trying to help
around the house and napping, Plaintiff watches TV or is on her computer. Id. She
attends her kids’ activities when she can. Id. at 159. But, sometimes, she cannot because
she is tired and depression maker her “feel paralyzed.” Id. at 160.
Plaintiff has a bachelor’s degree in social work. Id. at 126. At the time of the
hearing, she worked part time for Centerville City Schools. Id. at 127. She coordinated
teachers with parents who were willing to volunteer. Id. Her work is all from home, and
she does not volunteer in the classrooms. Id. at 127-29. The school gives papers to her
son to take home and then Plaintiff emails parents to see who is available. Id. at 128. At
the beginning of the school year, Plaintiff estimated that she worked five hours a week.
Id. at 130. At the time of the hearing, because it was the end of the school year, she was
not working very much. Id. at 128. She received one-thousand dollars for the entire
school year. Id.
Plaintiff worked at Market Day, a grocery program, for two or three years, ending
in March 2015. Id. at 127, 130. Although her schedule varied, she averaged around
fifteen hours per week. Id. at 132. She worked from home part of the time, as the
contact person for the chairperson at each school, and then she also visited the schools to
help the day of the sale. Id. at 131.
Prior to that, she worked at a nursing home where she coordinated discharge
planning, set up community resources and home health care, answered insurance
questions. Id. at 133. She left after she started falling asleep at morning meetings and
throughout the day. Id. During the time she worked at the nursing home, she was also
pursuing an associate’s degree in medical billing and coding. Id. at 137. She had to take
a break from school because she had a nervous breakdown. Id. at 138. But, when she
began feeling “a little bit better,” she went back and graduated in December 2014. Id.
She has not been able to use her degree because she has not taken a required certification
exam. Id. at 139.
ii. Plaintiff’s Mother
Sue Weeks, Plaintiff’s mother, also testified at the hearing. When asked what
Plaintiff’s biggest issues are, she responded, “The word ‘lethargic’ comes to mind a lot.
…” Id. at 167. She explained that her daughter had an “inability to function consistently
….” Id. at 168. Almost every day, Ms. Weeks observes Plaintiff’s “tiredness, wanting to
nap, forgetfulness, confusion, things like that.” Id. When Plaintiff is tired, she is not able
to focus and it sometimes interferes with her ability to function. Id. She has to write
down everything because she forgets what she is supposed to do. Id. at 169. When
asked, “does she have trouble taking care of even just the basic needs of her household,
Ms. Weeks responded, “To some degree, yeah. I guess my word would be ‘chaos.’” Id.
at 170. She further explained that Plaintiff takes care of her children but she is “not able
to get all the stuff done that I would think you should do ….” Id. For example, Plaintiff
has difficult mornings. And, it is sometimes a “struggle” to get the kids to school in the
morning. Id. Ms. Weeks indicated that it may because Plaintiff takes a “relatively strong
narcotic.” Id. But when Plaintiff had to go without her medication for “a couple days,”
“[s]he couldn’t function well at all.” Id. at 171.
Standard of Review
The Social Security Administration provides Disability Insurance Benefits to
individuals who are under a “disability,” among other eligibility requirements. Bowen v.
City of New York, 476 U.S. 467, 470 (1986); see 42 U.S.C. § 423(a)(1). The term
“disability”—as defined by the Social Security Act—has specialized meaning of limited
scope. It encompasses “any medically determinable physical or mental impairment” that
precludes an applicant from performing a significant paid job—i.e., “substantial gainful
activity,” in Social Security lexicon. 42 U.S.C. § 423(d)(1)(A); see Bowen, 476 U.S. at
Judicial review of an ALJ’s non-disability decision proceeds along two lines:
“whether the ALJ applied the correct legal standards and whether the findings of the ALJ
are supported by substantial evidence.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399,
406 (6th Cir. 2009); see Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir.
2007). Review for substantial evidence is not driven by whether the Court agrees or
disagrees with the ALJ’s factual findings or by whether the administrative record
contains evidence contrary to those factual findings. Gentry v. Comm’r of Soc. Sec., 741
F.3d 708, 722 (6th Cir. 2014); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir.
2007). Instead, the ALJ’s factual findings are upheld if the substantial-evidence standard
is met—that is, “if a ‘reasonable mind might accept the relevant evidence as adequate to
support a conclusion.’” Blakley, 581 F.3d at 407 (quoting Warner v. Comm’r of Soc.
Sec., 375 F.3d 387, 390 (6th Cir. 2004)). Substantial evidence consists of “more than a
scintilla of evidence but less than a preponderance ….” Rogers, 486 F.3d at 241
(citations and internal quotation marks omitted); see Gentry, 741 F.3d at 722.
The other line of judicial inquiry—reviewing the correctness of the ALJ’s legal
criteria—may result in reversal even when the record contains substantial evidence
supporting the ALJ’s factual findings. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647,
651 (6th Cir. 2009); see Bowen, 478 F.3d at 746. “[E]ven if supported by substantial
evidence, ‘a decision of the Commissioner will not be upheld where the SSA fails to
follow its own regulations and where that error prejudices a claimant on the merits or
deprives the claimant of a substantial right.’” Rabbers, 582 F.3d at 651 (quoting in part
Bowen, 478 F.3d at 746, and citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 546-47
(6th Cir. 2004)).
The ALJ’s Decision
As noted previously, it fell to ALJ Hockensmith to evaluate the evidence
connected to Plaintiff’s application for benefits. He did so by considering each of the
five sequential steps set forth in the Social Security Regulations. See 20 C.F.R. §
404.1520. He reached the following main conclusions:
Plaintiff has not engaged in substantial gainful employment since
August 22, 2011.
She has the severe impairments of obstructive sleep apnea (OSA),
chronic pancreatitis, affective disorder, anxiety disorder, and
She does not have an impairment or combination of impairments that
meets or equals the severity of one in the Commissioner’s Listing of
Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1.
Her residual functional capacity, or the most she could do despite her
impairments, see Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 239
(6th Cir. 2002), consists of “work at all exertional levels … with the
following additional limitations: (1) only occasional stooping,
crouching, kneeling and crawling; (2) no climbing of ladders, ropes
and scaffolds; (3) no exposure to hazards such as moving machinery
or unprotected heights; (4) no commercial driving; (5) limited to
performing simple, routine tasks; (6) no fast paced work or strict
production quotas; (7) limited to a static work environment; (8)
limited to making simple work related decisions; (9) only occasional
interaction with the public and coworkers.”
She is unable to perform any of her past relevant work.
She could perform a significant number of jobs that exist in the
(Doc. #6, PageID #s 98-109). These main findings led the ALJ to ultimately conclude
that Plaintiff was not under a benefits-qualifying disability. Id. at 109.
Plaintiff contends that the ALJ erred in finding that Plaintiff’s testimony was not
credible. She also argues that the ALJ erred by improperly substituting his own opinions
as a medical conclusion and in failing to fully consider the vocational expert’s entire
testimony. The Commissioner maintains that substantial evidence supports the ALJ’s
assessment of Plaintiff’s subjective complaints; his consideration of Nurse Budding’s
opinions; and his conclusion that Plaintiff could perform other jobs that existed in
substantial numbers in the national economy.
Plaintiff contends that the ALJ erred in finding that she was “not entirely
credible.” The Sixth Circuit established the following analysis for evaluating a plaintiff’s
First, the ALJ will ask whether there is an underlying
medically determinable physical impairment that could
reasonably be expected to produce the claimant’s symptoms.
20 C.F.R. § 416.929(a). Second, if the ALJ finds that such an
impairment exists, then he must evaluate the intensity,
persistence, and limiting effects of the symptoms on the
individual’s ability to do basic work activities. Id.
Rogers, 486 F.3d at 247. When evaluating the intensity, persistence, and limiting effects
of a plaintiff’s symptoms, Social Security Regulations require the ALJ to consider the
following factors: daily activities; location, duration, frequency, and intensity of the pain
or other symptoms; precipitating and aggravating factors; the type, dosage, effectiveness,
and side effects of any medication the plaintiff takes or has taken to alleviate symptoms;
treatment, other than medication, the plaintiff receives or has received for relief of
symptoms; any measures the plaintiff uses or has used to relieve symptoms; and other
factors concerning the plaintiff’s functional limitations and restrictions due to pain or
other symptoms. 20 C.F.R. § 404.1529(c)(3).
The ALJ “must then make a finding on the credibility of the individual’s
statements about symptoms and their functional effects.” Soc. Sec. R. 96-7p, 1996 WL
374186, at *4 (Soc. Sec. Admin. July 2, 1996).1 “Social Security Ruling 96-7p also
requires the ALJ explain his credibility determinations in his decision such that it 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.” Rogers, 486 F.3d at 248 (internal quotation and footnote omitted); see also
Felisky v. Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994) (“If an ALJ rejects a claimant’s
The Social Security Administration issued Soc. Sec. R. 16-3p, effective March 16, 2016, which
supersedes Soc. Sec. R. 96-7p. At the time of the ALJ’s decision in this case, Soc. Sec. R. 96-7p was still
testimony as incredible, he must clearly state his reasons for doing so.”) (citation
“[A]n ALJ’s findings based on the credibility of the applicant are to be accorded
great weight and deference, particularly since an ALJ is charged with the duty of
observing a witness’s demeanor and credibility.” Walters v. Comm’r of Soc. Sec., 127
F.3d 525, 531 (6th Cir. 1997) (citing Villarreal v. Sec’y of Health & Human Servs., 818
F.2d 461, 463 (6th Cir. 1987); see Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 542 (6th
Cir. 2007). However, an ALJ’s assessment of credibility must be supported by
substantial evidence. Cruse, 502 F.3d at 542 (citing Walters, 127 F.3d at 531).
The ALJ concluded that Plaintiff’s “complaints of disabling symptoms are not
fully credible.” (Doc. #6, PageID #105). The ALJ provided several reasons in support
of his credibility determination. He first found that Plaintiff’s “assertion that she has not
been able to work at any time since the alleged disability onset date is not supported by
substantial evidence.” Id. at 103. He then lists evidence that he thought supported his
finding: “Treatment notes indicate the claimant has obstructive sleep apnea and
narcolepsy. The evidence of record reveals daytime sleepiness, ptosis eyelids, and a
tired/sleepy appearance. The claimant reports excessive daytime sleepiness and fatigue,
snoring, and nighttime restlessness. In addition to prescription medication, the claimant
has used a CPAP machine, albeit infrequently at best.” Id. (internal citations omitted).
This evidence, however, describes signs and symptoms that tend to confirm Plaintiff’s
testimony. It was thus unreasonable for the ALJ to rely on such evidence.
The ALJ also notes that she has been noncompliant with her treatment regimen for
hypertension and diabetes. Id. Plaintiff correctly points out that she does not allege
disability based on either of those conditions.
The ALJ proceeds to discuss her noncompliance with her treatment for sleep
apnea. Id. Specifically, Plaintiff was prescribed and reported using a CPAP machine and
nocturnal oxygen to treat sleep apnea. But, her doctor indicated, “I suspect once we treat
her apnea she will feel more rested[.]” Id. (citing Exhibits 16F [PageID #s 945-76] and
19F [PageID #s 1060-1105]). The ALJ implies that this note was written after she
claimed to be using the CPAP machine. However, it was not. Indeed, in May 2011, Dr.
Valle indicated that Plaintiff’s “mild very central sleep apnea doesn’t require PAP
therapy.” Id. at 544. On July 15, 2013, Plaintiff’s sleep was evaluated again and Dr.
Valle diagnosed moderate obstructive sleep apnea. Id. at 832. Based on those results, on
August 7, 2013, Dr. Valle instructed Plaintiff to schedule a CPAP titration study. Id. at
956. On the same day, after noting that she reported that she was still struggling with
daytime sleepiness despite her medication, Dr. Valle stated (in full), “She still wishes that
it would work better for her and I suspect once we treat her apnea she will feel more
rested.” Id. at 955. On September 14, 2013, Plaintiff underwent the CPAP titration study
to calibrate a CPAP machine. Id. at 948. Dr. Valle’s statement concerning the treatment
of Plaintiff’s sleep apnea occurred before Plaintiff was prescribed a CPAP machine.
The ALJ also overlooks that Plaintiff had difficulty affording a CPAP machine. In
February 2014, Dr. Valle noted that she “did give the CPAP a trial, but unfortunately
stopped it because she had a 60-dollar co-pay, which she said that she was no longer able
to afford.” Id. at 946. Dr. Valle indicated in June 2014, “She has not been able to get her
CPAP machine. It all comes down to dollars and cents. She cannot afford to pay the
monthly rental charge for 15 months, nor can she afford to buy a machine outright. We
talked about this at length today. She says she can afford most of her medications but
certainly not all of them.” Id. at 945. He told her that his office would see if they could
find a used machine that someone donated back. Id.
Although it is appropriate to consider an individual’s failure to follow a prescribed
treatment, the Social Security Administration has set forth four conditions that must all be
met before an ALJ can find that an individual failed to follow prescribed treatment:
1. The evidence establishes that the individual’s impairment
precludes engaging in any substantial gainful activity …;
2. The impairment has lasted or is expected to last for 12
continuous months from onset of disability or is expected
to result in death; and
3. Treatment which is clearly expected to restore capacity to
engage in any SGA (or gainful activity, as appropriate) has
been prescribed by a treating source; and
4. The evidence of record discloses that there has been refusal
to follow prescribed treatment.
Soc. Sec. R. 82-59, 1982 WL 31384, at *1 (Soc. Sec. Admin. 1982). And, if those
conditions are met, the ALJ must consider whether the individual’s failure was
There is no indication the ALJ addressed all four conditions set forth above, and to
the extent that he did, there is no indication that he considered Plaintiff’s reasons for not
using the machine. This constitutes error: “The record must reflect as clearly and
accurately as possible the claimant’s … reason(s) for failing to follow the prescribed
treatment.” Id. at *2.
The ALJ then points out that Plaintiff testified that she naps for between thirty
minutes and three hours despite her doctor advising her to limit her naps to less than
twenty minutes. (Doc. #6, PageID #103) (citation omitted). The ALJ is correct that
Plaintiff’s doctor, at one point, advised her to take shorter naps. Specifically, in May
2011, Dr. Valle noted that Plaintiff “has been managing her sleepiness with brief naps
during the day which can be restorative for her, which is rather typical of narcolepsy.”
Id. at 543. Plaintiff reported in June 2011that short naps are restorative and long naps
cause increased fatigue. Id. at 542. Accordingly, she was “instructed to try to take a less
than 20 minute nap daily as that appears to be restorative to her. Id. There is no further
discussion regarding the length of her naps in the remaining notes from Dr. Valle. And,
both notes in the record occurred before Plaintiff’s alleged disability onset date (August
22, 2011). Accordingly, it was not reasonable for the ALJ to rely on her longer naps four
years later to discount her credibility.
And, the ALJ accurately observed that despite Plaintiff’s doctor recommending
weight loss, she gained weight. Id. at 103 (citation omitted). In May 2011, for instance,
Dr. Valle noted that “[a] little weight loss would probably help with [her mild very
central sleep apnea].” Id. at 544. He also indicated in May 2013, “We recommended that
she work on weight loss to treat the mild apnea; however, she was not successful in doing
so and has since gained 10 pounds.” Id. at 833.
However, the ALJ does not acknowledge that in February 2014, Dr. Valle noted,
“She did have associated weight gain with these medications and feels that since she has
been off of them she has been losing weight.” Id. at 946. And, medical records from
Dayton Gastroenterology support Plaintiff’s statement. In April 2013, Plaintiff weighed
197 pounds. Id. at 816. By April 2014, she weighed 185 pounds—a loss of 12 pounds.
Id. at 874. Plaintiff did, however, gain the weight back. At the hearing, she testified that
she weighed 212 pounds. Nonetheless, Plaintiff’s weight gain was not a failure to follow
a prescribed treatment—only Dr. Valle’s recommendation. See Harris v. Heckler, 756
F.2d 431, 436 (6th Cir. 1985) (“the dissent is incorrect in characterizing the physicians’
recommendations as a prescribed course of treatment. Rather, they should more properly
be viewed as a suggested course of treatment since there is no evidence that [the plaintiff]
was ever ordered by any of his physicians … to lose weight. We therefore reject the
dissent’s implication that [the plaintiff’s] failure to change these habits constituted a
willful failure to follow prescribed treatment.”) (citing Fraley v. Sec’y of Health &
Human Servs., 733 F.2d 437, 440 (6th Cir. 1984); Perkins v. R.R. Ret. Bd., 725 F.2d 46
(6th Cir. 1984); Young v. Califano, 633 F.2d 469, 472-73 (6th Cir.1980)).
The ALJ further discounted Plaintiff’s credibility by finding her own statements to
be inconsistent. He notes Plaintiff testified that she stopped working at Heartland of
Centerville because she could not stay awake at work. By comparison, “she reported to
her psychiatrist that she quit working due to anxiety triggered by job situations, demands
of leadership, crisis management and responsibilities, and unpredictable episodes of
chronic pancreatitis[.]” (Doc. #6, PageID #104) (citation omitted). Additionally,
Plaintiff testified that she had two to three good days a week but “never indicated to her
treatment provider that she had ‘good’ and ‘bad’ days.” Id.
There are several holes in the ALJ’s findings. The psychiatric progress note from
September 7, 2011, indicates that Plaintiff reported quitting her job three weeks before
“due to a combo of depression/anxiety and pain. States [she] has good days/bad days but
[symptoms] are unpredictable.” Id. at 1055 (emphasis added). On November 2, 2011,
Plaintiff’s psychiatrist indicates that she quit because of “anxiety triggered by job
situation – demands of leadership, crisis management responsibilities, unpredictable
episodes of pain ….” Id. at 1054. This is not inconsistent with Plaintiff’s testimony.
Plaintiff being written up for sleeping during meetings illustrates problems with
supervisors and sleeping at, for example, a nurse’s station, during work certainly restricts
her ability to fulfill her responsibilities. See id. at 133-34 (Sleeping at work “wasn’t
productive. It wasn’t good for my job. It wasn’t good for the people that I was working
The ALJ also observed: (1) On June 8, 2011, she reported she was doing well at
work and was not falling asleep; (2) on February 6, 2013, Plaintiff again reported that she
was functioning very well during the day while taking the methamphetamine; and (3) on
June 12, 2014, Plaintiff indicated that methamphetamine works well for her sleepiness.
Id. (citations omitted).
These statements, however, do not identify substantial evidence in support of his
conclusion that Plaintiff is not credible. “[A] substantiality of evidence evaluation does
not permit a selective reading of the record. ‘Substantiality of the evidence must be
based upon the record taken as a whole. Substantial evidence is not simply some
evidence, or even a great deal of evidence. Rather, the substantiality of evidence must
take into account whatever in the record fairly detracts from its weight.’” Brooks v.
Comm’r of Soc. Sec., 531 F. App’x 636, 641 (6th Cir. 2013) (quoting, in part, Garner v.
Heckler, 745 F.2d 383, 388 (6th Cir. 1984)) (internal citations and quotation marks
The statement from June 2011 occurred before Plaintiff’s alleged disability onset
date. And, although Plaintiff stated that she was not falling asleep at work, she also said
that she “does feel somewhat sleepy throughout the day.” (Doc. #6, PageID #541). Her
statement in February 2013 is an isolated instance when Plaintiff reported doing well—
one of very few. In contrast, at her appointment on December 19, 2012, Plaintiff
reported that she was not happy with how the methamphetamine was working in the
afternoon. Id. at 836. Additionally, “her kids tell her that all she does is sleep all the
time [and] [s]he feels very run down in the late afternoons.” Id. On May 6, 2013,
Plaintiff reported that the methamphetamine was beneficial but she still has to take a nap
every afternoon. Id. at 833. On February 19, 2014, she reported that methamphetamine
15 mg twice a day helps with her daytime sleepiness but she still experienced daytime
fatigue. Id. at 946. Then, as the ALJ recognized, Dr. Valle noted on June 12, 2014,
“Methamphetamine 5 mg 3 pills b.i.d. works well for her sleepiness.” Id. at 104
The ALJ next acknowledges that Plaintiff has a history of pancreatitis. He finds
that one-minute attacks of abdominal pain once every three weeks to one month “cannot
support a finding of disability.” Id. He also emphasizes that she did not report the
attacks to her treatment provider and “in April of 2014, [Plaintiff] reported to her
specialist for this condition that she stopped taking pain medication, has done fairly well
over the year, and rarely has abdominal cramping. At that time, [she] had not seen this
specialist since 2011.” Id. The ALJ concluded that Plaintiff’s “failure to attend treatment
during this period suggests [her] symptoms were not as severe as she alleged.” Id.
The ALJ’s summary of the facts is not entirely accurate. The ALJ is correct that
Plaintiff testified that the severe pain lasted a minute. She also, however, testified,
“sometimes I’ll even – it’ll be so bad that if – when I get up afterwards, that … I feel like
I’ve ran through a marathon. I mean, I’m out of breath. And I feel like somebody’s
punched me in my gut. I mean, I feel real tender. …” Id. at 152. And after the attack,
“I’m out of commission for, you know, maybe an hour or so – because it just – like I said,
you know, I have that just worn out. I’m just physically worn out after it happens, after
that minute of pain.” Id. at 153.
Additionally, Plaintiff returned to Dayton Gastroenterology in April 2013. Id. at
814. At that time, her treatment provider noted that she had not been treated by their
office since 2011. Id. And, “Since that time, she has weaned herself off of any narcotics,
after being seen by pain physician but did not like this. She has dealt with the pain by
distraction, warm compresses, and occasional Aleve. She continues to have some nausea,
several mornings per week, often will be able to get by without taking Zofran, but still
needs it on occasions. …” Id. Plaintiff then returned again on April 2, 2014. Id. at 873.
Dr. Saxe indicated, “her chronic abdominal pain is at baseline. She rarely has abdominal
cramping. …” Id. (emphasis added).
The ALJ does not seem to consider that Plaintiff received treatment for abdominal
pain from several other physicians. For instance, between January 2010 and September
2011, Plaintiff consistently saw Dr. Donnini, a pain specialist, for abdominal pain. Id. at
726-76. And, between October 2011 and November 2012, Plaintiff saw a pain specialist
eleven times (averaging almost once per month) for her “chronic abdominal pain.” See
id. at 977-1016. She testified, moreover, that after she stopped treatment at the pain
clinic, Dr. McCarthy, her primary-care physician, agreed to prescribe pain medication for
abdominal pain when needed. Id. at 142. Together, this evidence shows that there was
no gap in her treatment of abdominal pain.
The ALJ then turned his attention to Plaintiff’s mental conditions, concluding that
her assertion of disabling mental symptoms is not supported by objective medical
evidence. Yet, as the ALJ did with physical symptoms, he listed evidence that supports
Treatment notes indicate the claimant suffers from an
affective disorder and anxiety disorder. The claimant exhibits
a constricted affect, anxiety, confusion, remote memory
deficits, diminished concentration, attention and focus,
limited social interaction and adaptation, low stress tolerance,
anxious and/or depressed mood, and a tendency toward selfisolation and being overwhelmed. The claimant alleges
anxiety, depression, worry, crying spells, withdrawal,
anhedonia, poor appetite, low energy, agitation, racing
thoughts, impulsive behavior, paranoid-like thinking, sadness,
stress, and panic attacks. She is prescribed medication for
this condition and has attended individual counseling in the
Id. at 104-05 (internal citations omitted).
The ALJ also attacked Plaintiff’s credibility based on the fact that she had only
received limited mental health treatment. He noted that she sees a certified nurse
practitioner for pharmaceutical management but has not sought individual counseling.
Ruling 96-7p explains, “the adjudicator must not draw any inferences about an
individual’s symptoms and their functional effects from a failure to seek or pursue
regular medical treatment without first considering any explanations that the individual
may provide, or other information in the case record, that may explain infrequent or
irregular medical visits or failure to seek medical treatment....” 1996 WL 374186, at *7.
In the present case, the ALJ did not consider Plaintiff’s testimony that she is not seeing a
counselor because she cannot afford the co-pay. (Doc. #6, PageID #s 144-45). Her
difficulty affording medication is noted throughout the record. See id. at 890, 946. Yet,
the ALJ makes no mention of it. The record also shows that Plaintiff has sought
counseling—presumably when she is able to afford it. For example, she attended
counseling with Stephanie Hittle, MS, LPCC, from March 2012 to October 2012. Id. at
The ALJ also found that Plaintiff’s testimony was inconsistent with other
statements she made. For example, Plaintiff testified that she showers less because of
her depression. Id. at 105, 155. But, according to the ALJ, in her Function Report,
Plaintiff check the box indicating that she had no problems with personal care, including
bathing and dressing. Id. at 105 (citation omitted). This overlooks ignores two
significant facts. First, Plaintiff completed the Function Report on August 7, 2013 and
testified almost two years later, on April 15, 2015. Id. at 116, 390. Second, when
asked, “Any issues with getting yourself dressed, bathing, just sort of general grooming
and getting yourself together during the day?” Plaintiff testified, “No. I can physically
do those things. The depression makes it hard. I really don’t want to admit this in front
of everyone, but it – the depression makes it -- I don’t know. It sounds stupid. I don’t,
you know, probably don’t shower as much as I should.” Id. at 154-55 (emphasis added).
The ALJ also points to a supposed difference between Plaintiff’s testimony that
her husband does most of the grocery shopping, and her indication in the function report
that she goes to the store once per week. Id. at 105, 155. Again, the ALJ incorrectly
states the facts. Plaintiff indicated that she shops in stores and by computer. Id. at 386.
She shops for groceries, household items, toys, and clothes. Id. And, when asked, “How
often do you shop and how long does it take?” she responded, “Once a week or less;
depends upon how tired I am, if someone goes with me, etc.” Id. In addition, Plaintiff
testified that her husband goes grocery shopping, and “I try and go when I can.” Id. at
155. She also explained, “It takes every ounce of energy I have to go grocery shopping
….” Id. at 144. These statements are not inconsistent. Thus, substantial evidence does
not support the ALJ’s conclusion that “[her] information may not be entirely reliable.”
The ALJ further reduced Plaintiff’s credibility by finding that her description of
her daily activities was inconsistent with her reports of disabling symptoms and
limitations. Id. at 105. In support, the ALJ notes that Plaintiff “admits she performs
personal care, performs light household chores, drives a car, and goes grocery shopping.
In addition, she cares for her children, is involved with daughter’s school, watches
television, listens to music, uses a computer, attends her children’s events, and visits with
friends.” Id. (citation omitted). He concluded, “The performance of such activities on a
regular and continuing basis indicates that the claimant’s level of pain, anxiety and
depression does not seriously interfere with her ability to maintain attention and
concentration, perform routine tasks, understand and follow simple instructions, and
interact with others.” Id.
In summarizing Plaintiff’s activities, the ALJ selectively picked facts from both
function reports and the hearing that support his conclusion while ignoring essential facts
from those same sources that do not. In doing so, the ALJ has gone far past merely
weighing the evidence. See Young v. Comm’r of Soc. Sec., 351 F. Supp. 2d 644, 649
(E.D. Mich. 2004) (“[The ALJ] may not pick and choose the portions of a single report,
relying on some and ignoring others, without offering some rationale for his decision.”).
As explained in more detail above, the ALJ’s mischaracterized Plaintiff’s
description of her personal care and grocery shopping. Similarly, although Plaintiff
testified that she is able to drive, she explained that she does not drive anywhere further
than thirty minutes away because she gets tired while driving, and the couple times it has
happened, she had to pull into a parking lot to rest before she could continue her drive.
(Doc. #6, PageID #s 125-26). In March 2012, Dr. Valle indicated that Plaintiff’s
medication helped, “but in the afternoon she becomes sleepy such that she really should
not be operating a motor vehicle; we discussed this today.” Id. at 847. Similarly,
Plaintiff reported that she tries to go to her children’s activities—as much as she can. Id.
at 159. She explained that if she goes to baseball games, she sits away from other people
so she is not embarrassed if she falls asleep. Id. at 159-60. And, she is not able to attend
all of her children’s activities: “there are times where … I just cannot go out. I feel
paralyzed. …” Id. at 160.
The ALJ further found that Plaintiff’s presentation and demeanor at the hearing
was inconsistent with her allegations of disabling symptoms: “The claimant was able to
closely and fully attend the hearing proceedings. She sat throughout the entire hearing,
appeared to have no difficulty sitting or rising, and did not appear to be in pain or any
other distress. The claimant also attended the hearing without the use of an ambulation
aid.” Id. at 105. Plaintiff contends that her “alleged disability is fundamentally based
upon narcolepsy and obstructive sleep apnea—not musculoskeletal complaints.” (Doc.
#10, PageID #1287). The Commissioner finds Plaintiff’s argument odd because she
“apparently [forgot] she had alleged disability, in part, due to pain from chronic
pancreatitis and other lower abdominal pain.” (Doc. #13, PageID #1304) (citation
Plaintiff did not allege that she has constant debilitating abdominal pain that
prevents her from ever moving. Rather, she testified that she has severe pain every three
weeks to one month, and it lasts one minute. But, as a result of the pain, she is
physically worn out for about an hour. It is not reasonable to connect Plaintiff’s lack of
pain indication during the hearing to a conclusion that she does not suffer the severe
pain she described. Further, even if she experienced severe pain at the hearing, there is
no indication that she would have difficulty sitting or rising or need an ambulation aid.
Accordingly, for the above reasons, Plaintiff’s Statement of Errors is well taken.2
A remand is appropriate when the ALJ’s decision is unsupported by substantial
evidence or when the ALJ failed to follow the Administration’s own regulations and that
shortcoming prejudiced the plaintiff on the merits or deprived the plaintiff of a substantial
right. Bowen, 478 F.3d at 746. Remand may be warranted when the ALJ failed to
provide “good reasons” for rejecting a treating medical source’s opinions, see Wilson,
378 F.3d at 545-47; failed to consider certain evidence, such as a treating source’s
opinions, see Bowen, 478 F.3d at 747-50; failed to consider the combined effect of the
plaintiff’s impairments, see Gentry, 741 F.3d at 725-26; or failed to provide specific
reasons supported by substantial evidence for finding the plaintiff lacks credibility, see
Rogers, 486 F.3d at 249.
Under sentence four of 42 U.S.C. § 405(g), the Court has authority to affirm,
modify, or reverse the Commissioner’s decision “with or without remanding the cause for
rehearing.” Melkonyan v. Sullivan, 501 U.S. 89, 99 (1991). Consequently, a remand
under sentence four may result in the need for further proceedings or an immediate award
of benefits. E.g., Blakley, 581 F.3d at 410; Felisky, 35 F.3d at 1041. The latter is
warranted where the evidence of disability is overwhelming or where the evidence of
disability is strong while contrary evidence is lacking. Faucher v. Sec’y of Health &
Human Servs., 17 F.3d 171, 176 (6th Cir. 1994).
In light of the above discussion, and the resulting need to remand this case, an in-depth analysis of
Plaintiff’s other challenges to the ALJ’s decision is unwarranted.
A judicial award of benefits is unwarranted in the present case because the
evidence of disability is not overwhelming and the evidence of disability is not strong
while contrary evidence is lacking. However, Plaintiff is entitled to an Order remanding
this case to the Social Security Administration pursuant to sentence four of § 405(g) due
to the problems discussed above. On remand, the ALJ should be directed to evaluate the
evidence of record, including the medical source opinions, under the applicable legal
criteria mandated by the Commissioner’s Regulations and Rulings and by case law; and
to evaluate Plaintiff’s disability claim under the required five-step sequential analysis to
determine anew whether Plaintiff was under a disability and whether her application for
Disability Insurance Benefits should be granted.
IT IS THEREFORE ORDERED THAT:
The Commissioner’s non-disability finding is vacated;
No finding is made as to whether Plaintiff Elizabeth D. Lippincott was
under a “disability” within the meaning of the Social Security Act;
This matter is REMANDED to the Social Security Administration under
sentence four of 42 U.S.C. § 405(g) for further consideration consistent
with this Decision and Entry; and
The case is terminated on the Court’s docket.
Date: September 22, 2017
s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge
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