Brown-Hudgins v. Social Security Administration et al

Filing 23

ORDER ADOPTING REPORT AND RECOMMENDATION: For the reasons stated below, the Report (Doc. No. 20 ) is ADOPTED as modified below, Brown-Hudgins' Motion (Doc. No. 15 ) is GRANTED, and this case is REMANDED to the Commissioner for further proceedings. The Clerk of the Court is DIRECTED to close the case. Signed by Senior Judge John T. Nixon on 9/23/2015. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
COURTNEY ELIZABETH BROWN-HUDGINS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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No. 3:13-cv-00874
Judge Nixon
Magistrate Judge Brown

ORDER
Pending before the Court is Plaintiff Courtney Elizabeth Brown-Hudgins’ Motion for
Judgment on the Administrative Record (“Motion”). (Doc. No. 15.) On June 24, 2014,
Magistrate Judge Brown issued a Report and Recommendation (“Report”) recommending that
Brown-Hudgins’ Motion be granted and the matter be remanded to the Commissioner for further
proceedings. (Doc. No. 20 at 13.) On July 7, 2014, the Commissioner filed Objections to the
Report (Doc. No. 21), to which Brown-Hudgins filed a Response (Doc. No. 22). For the reasons
stated below, the Report (Doc. No. 20) is ADOPTED as modified below, Brown-Hudgins’
Motion (Doc. No. 15) is GRANTED, and this case is REMANDED to the Commissioner for
further proceedings. The Clerk of the Court is DIRECTED to close the case.
I.

BACKGROUND
The Court adopts the statement of facts and the procedural posture of this case as set forth

by the Magistrate Judge (Doc. No. 20 at 1–8) with the following elaborations and exception.
Brown-Hudgins has obesity, degenerative joint disease in both knees, and has undergone three

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surgeries on her right knee to correct a congenital malformation. (Id. at 2–4; Tr. 229–30.)1 The
last surgery took place sometime before August 11, 2009, and the average recovery time is four
to six months. (Doc. No. 20 at 4.)
As described by the Magistrate Judge, the record contains three medical source
statements about Brown-Hudgins’ ability to perform work-related activities. The first, issued by
Dr. Marc Bennett after examining Brown-Hudgins on August 28, 2009, found Brown-Hudgins’
ability to “walk, twist, turn, bend and lift was adversely affected” by her obesity, and that she
could frequently and occasionally lift a maximum of ten pounds, walk for less than two hours a
day, and sit for less than six hours a day. (Tr. 235–37 (emphasis original).) The second, issued
after a review of Brown-Hudgins’ medical records by non-examining physician Dr. Christopher
Fletcher on December 4, 2009, found Brown-Hudgins could lift fifty pounds occasionally;
twenty-five pounds frequently; stand or walk about six hours in a workday; sit for about six
hours in a workday; climb ramps and stairs, balance, and stoop frequently; and climb ladders,
kneel, crouch, and crawl occasionally. (Tr. 244–45.) The third, issued after a review of the
medical records by non-examining physician Dr. Kanika Chaudhuri on April 13, 2010, reached
the same conclusions as Dr. Fletcher’s evaluation, except Dr. Chaudhuri found Brown-Hudgins
could frequently climb, kneel, crouch, and crawl. (Tr. 253–54.)
At the administrative hearing, Administrative Law Judge (“ALJ”) Shannon H. Smith
posed three hypotheticals to the Vocational Expert (“VE”). First, the ALJ asked the VE what
jobs a person with the functional limitations described by Dr. Fletcher could perform, and the VE
concluded the person could perform three of Brown-Hudgins’ past clerical jobs. (Tr. 46–47; see
Tr. 244–45.) Second, the ALJ asked the VE what jobs a person with the functional limitations

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The administrative record is available electronically at Docket Number 13.

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described by Dr. Chaudhuri could perform, and the VE concluded the person could perform three
of Brown-Hudgins’ past clerical jobs. (Tr. 47; see Tr. 253–54.) Third, the ALJ said “I’m looking
at [Dr. Bennett’s opinion] on this one” and asked the VE what jobs a person with the following
functional limitations could perform: “limited to lifting and carrying 10 pounds occasionally and
frequently; can sit for six to eight hours; can stand or walk for two out of eight hours in a normal
workday, all with normal breaks; can frequently climb, kneel, crouch, crawl, balance, and stoop.”
(Tr. 47; see Tr. 237.) The VE concluded this person would be capable of two of Brown-Hudgins’
past jobs. However, contrary to the ALJ’s statement at the hearing, these are not the functional
limitations described by Dr. Bennett because he found Brown-Hudgins could sit for less than six
hours and stand or walk for less than two hours. (Tr. 235–37.)
Following the ALJ’s line of questioning, Brown-Hudgins’ attorney asked the VE what
jobs a person with the functional limitations imposed by Dr. Bennett could perform, and the VE
concluded “that would render a person unemployable . . . since the totals for standing, sitting,
and walking would equal less than eight hours.” (Tr. 48; see Tr. 237.)
II.

STANDARD OF REVIEW
The Court’s review of the Report is de novo. 28 U.S.C. § 636(b) (2012). This review,

however, is limited to “a determination of whether substantial evidence exists in the record to
support the [Commissioner’s] decision and to a review for any legal errors.” Landsaw v. Sec’y of
Health & Human Servs., 803 F.2d 211, 213 (6th Cir. 1986). Title II of the Social Security Act
provides that “[t]he findings of the Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). Accordingly, the reviewing
court will uphold the Administrative Law Judge’s (“ALJ”) decision if it is supported by
substantial evidence. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). Substantial evidence
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is a term of art and is defined as “‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It is “more than a mere scintilla of
evidence, but less than a preponderance.” Bell v. Comm’r of Soc. Sec., 105 F.3d 244, 245 (6th
Cir. 1996) (citing Consol. Edison, 305 U.S. at 229).
“Where substantial evidence supports the [Commissioner’s] determination, it is
conclusive, even if substantial evidence also supports the opposite conclusion.” Crum v. Sullivan,
921 F.2d 642, 644 (6th Cir. 1990) (citing Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en
banc)). This standard of review is consistent with the well-settled rule that the reviewing court in
a disability hearing appeal is not to weigh the evidence or make credibility determinations
because these factual determinations are left to the ALJ and to the Commissioner. Hogg v.
Sullivan, 987 F.2d 328, 331 (6th Cir. 1993); Besaw v. Sec’y of Health & Human Servs., 966 F.2d
1028, 1030 (6th Cir. 1992). Thus, even if the Court would have come to different factual
conclusions as to the Plaintiff’s claim on the merits than those of the ALJ, the Commissioner’s
findings must be affirmed if they are supported by substantial evidence. Hogg, 987 F.2d at 331.
III.

THE COMMISSIONER’S OBJECTIONS TO THE MAGISTRATE JUDGE’S REPORT
The ALJ adopted Dr. Chaudhuri’s residual functional capacity assessment (“RFC”) and

found Brown-Hudgins capable of “medium exertional work,” except the ALJ found BrownHudgins must alternate “sitting and standing as necessary for pain.” (Tr. 15–16.) Before the
Magistrate Judge, Brown-Hudgins argued the ALJ’s RFC assessment was erroneous because the
ALJ did not properly consider the impact of Brown-Hudgins’ obesity, weigh the medical
opinions, perform a function-by-function assessment to determine her RFC, or assess her
credibility. (Doc. No. 16 at 1.) Finding Brown-Hudgins was entitled to remand on the basis of
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the erroneous obesity analysis alone, the Magistrate Judge did not address the other alleged
errors. (Doc. No. 20 at 12.)
Upon review of the record, the Court agrees, for reasons other than those set forth by the
Magistrate Judge, that the ALJ improperly evaluated the effects of obesity on Brown-Hudgins’
RFC. Furthermore, the Court finds the RFC assessment is not supported by substantial evidence
because the ALJ failed to explain her credibility findings and her RFC findings, contrary to SSA
procedures.
A. The ALJ’s Analysis
The SSA recognizes that “obesity may increase the severity of coexisting or related
impairments,” and that “[t]he combined effects of obesity with other impairments may be greater
than might be expected without obesity. For example, someone with obesity and arthritis
affecting a weight-bearing joint may have more pain and limitation than might be expected from
the arthritis alone.” Soc. Sec. Admin., Titles II & XVI: Evaluation of Obesity, Soc. Sec. Ruling
02-1P, 2002 WL 34686281, at *5–6 (Sept. 12, 2002) [hereinafter SSR 02-1P]. Accordingly, SSR
02-1P requires ALJs to consider the effects of obesity at all steps of the sequential disability
evaluation process. Id. To trigger this requirement, the claimant must put forth evidence of
“functional limitations resulting specifically from her obesity”—a doctor’s recommendation that
the claimant lose weight will not do. Essary v. Comm’r of Soc. Sec., 114 F. App’x 662, 667 (6th
Cir. 2004); see Cranfield v. Comm’r of Soc. Sec., 79 F. App’x 852, 857–58 (6th Cir. 2003). Even
then, “the ALJ does not need to make specific mention of obesity if he credits an expert’s report
that considers obesity.” Bledsoe v. Barnhart, 165 F. App’x 408, 412 (6th Cir. 2006). However, if
a claimant puts forth evidence of the impact of obesity and the expert reports relied on by the
ALJ do not otherwise account for its effects, the ALJ “will explain how [she] reached [her]
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conclusions on whether obesity caused any physical or mental limitations” in her Decision.
Norman v. Astrue, 694 F. Supp. 2d 738, 749 (N.D. Ohio 2010) (quoting SSR 02-1P at *7).
Brown-Hudgins presented evidence that her obesity impacted her ability to perform
work-related exertional activities. Dr. Bennett explicitly determined “[t]he ability of the patient
to walk, twist, turn, bend and lift was adversely affected” by her obesity. (Tr. 235.) Furthermore,
the ALJ did not credit Dr. Bennett’s opinion. Instead, the ALJ appears to have based her RFC
assessment on the opinions of the two non-examining physicians, Brown-Hudgins’ x-rays, and
two objective findings from Dr. Bennett’s physical exam,2 which together show “only mild
degenerative joint disease in the claimant’s left knee, and more pronounced degenerative disc
disease in the right knee. The medical evidence establishes that the claimant’s strength is
maintained in her lower extremities, that her sensation is good and she is neurologically intact.”
(Tr. 18.) The non-examining physicians, Drs. Chaudhuri and Fletcher, also based their opinions
primarily on these findings. Dr. Fletcher found Brown-Hudgins’ allegations were “minimally
credible” because “her surgery in 2007 was not major and not reconstructive, and the recent xray shows no chronic deg changes.” (Tr. 250.) Although Dr. Chaudhuri stated “clt obesity
considered w/alleged pain,” Dr. Chaudhuri found Brown-Hudgins only “partially credible”
because “[k]nee xr shows no degenerative changes,” her 2007 knee surgery resulted in no
complications, and “no neuro deficit at exam to support alleged dizziness.” (Tr. 259.) The nonexamining physician opinions and the ALJ’s ultimate RFC assessment are all based on the same
x-rays and normal strength and neurological test, and all three apparently relied on the objective

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Although the ALJ declined to give weight to examining physician Dr. Bennett’s opinion because it was conducted
shortly after Brown-Hudgins’ last surgery and was “not consistent with the residual functional capacity and the
medical evidence of record as a whole” (Tr. 18), the ALJ apparently credited certain of Dr. Bennett’s findings
because the only strength testing discussed in the ALJ’s Decision was performed by Dr. Bennett (see Tr. 16).

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medical evidence without considering how Brown-Hudgins’ obesity compounded the functional
limitations caused by her knee problems.3
Because Brown-Hudgins presented evidence that her obesity resulted in functional
limitations and the ALJ did not credit an expert opinion that accounted for these limitations, the
ALJ was required to explain how she considered the effects of Brown-Hudgins’ obesity in
making her RFC assessment. However, the ALJ did not. The ALJ did not address the specific
functional limitations found by Dr. Bennett or explain why she credited certain findings in Dr.
Bennett’s opinion but not others. Instead, the ALJ wrote “[i]t has been noted that the claimant’s
obesity contributes to her knee pain, which is understandable,” and modified the medium RFC to
permit Brown-Hudgins to sit or stand as needed for pain. (Tr. 17.) This is an inadequate
explanation because it does not account for any of the other alleged functional limitations or
permit this Court to evaluate her reasoning. Accordingly, the Court concurs with the Magistrate
Judge that the ALJ did not properly account for the effects of obesity in her RFC assessment.
In assessing a claimant’s RFC, the ALJ must also address “the medical and other
evidence on the disputed issues and explain[] the basis for his determination.” Delgado v.
Comm’r of Soc. Sec., 30 F. App’x 542, 547–48 (6th Cir. 2002). Although “[t]he ALJ need not

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The Court also notes that the most recent MRI, performed November 7, 2011 (Tr. 294), appears to show BrownHudgins’ condition had deteriorated since the x-rays relied on by the ALJ were taken. However, the ALJ found
records dating after Brown-Hudgins’ date last insured, September 30, 2011, were “not relative [sic] to the
establishment of disability prior to the date last insured” and did not consider them in the Decision. (Tr. 17.) This
was error. Disability insurance benefits claimants must establish “the onset of disability prior to the expiration of
[]insured status.” Garner v. Heckler, 745 F.2d 383, 390 (6th Cir. 1984) (quoting Gibson v. Sec’y of Health, Educ., &
Welfare, 678 F.2d 653, 654 (6th Cir. 1982)). “Medical evidence of a subsequent condition of health, reasonably
proximate to a preceding time may be used to establish the existence of the same condition at the preceding time,”
Begley v. Mathews, 544 F.2d 1345, 1354 (6th Cir. 1976), provided the evidence relates back “to the claimant’s
condition prior to the expiration of her date last insured.” Wirth v. Comm’r of Soc. Sec., 87 F. App’x 478, 480 (6th
Cir. 2003). The ALJ excluded emergency room records from October 2011, as well as notes and MRIs from Dr.
Stacy Dinkins dating from November 2011 through January 2012. However, Brown-Hudgins alleges a degenerative
condition, the emergency room records document a fall allegedly resulting from that condition, and the treatment
notes from Dr. Dinkins describe efforts to seek further care for the same condition. In light of Brown-Hudgins’
degenerative condition, these records were created close enough to the insured period that the records are relevant to
establish her condition and functional abilities during that period.

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decide or discuss uncontested issues,” she must “articulate how the evidence in the record
supports the RFC determination, discuss the claimant’s ability to perform sustained work-related
activities, and explain the resolution of any inconsistencies in the record.” Id. at 548 (citation
omitted). Brown-Hudgins presented evidence that she had functional limitations beyond those
incorporated into her RFC assessment, but the ALJ did not adequately address that evidence or
explain the basis for her determination.
For instance, the ALJ determined Brown-Hudgins can “frequently” balance and climb.
(Tr. 16.) The ALJ’s Decision repeatedly cites evidence of Brown-Hudgins’ balance problems,
noting that “Dr. Goodhart gave the claimant a knee sleeve to help with her stability” (Tr. 16), and
that Brown-Hudgins testified she “was still unable to use stairs because of the likelihood of
falling and her knees giving out, causing balance and stability issues” (Tr. 17.), despite her
surgeries. The ALJ also noted Brown-Hudgins “fell [in September 2011] and consequently
reported experiencing knee pain” but the x-rays performed at that time “showed no evidence of
fracture, bony abnormality, dislocation, or joint effusion.” (Id.) However, the record shows
Brown-Hudgins fell twice—in September 2011 and October 2011—when her knee “gave way”
as she attempted to climb stairs (Tr. 262) and when she fell on an incline in her yard and was
unable to lift herself off the ground (Tr. 282). The ALJ’s assessment misrepresents the record
because it does not recognize that Brown-Hudgins fell because her knee collapsed, or that the
events took place while attempting to climb. Moreover, the ALJ did not explain why, despite the
evidence to the contrary, she found Brown-Hudgins capable of frequently balancing and
climbing.
Additionally, the ALJ apparently credited Brown-Hudgins’ statement that she could
perform certain household chores “but only when she could reach without bending down or
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having to climb” (see Tr. 18), but the ALJ did not explain why she did not impose any resulting
limitations on Brown-Hudgins’ abilities to climb, stoop, kneel, crouch, or crawl. The ALJ also
recognized that examining physician Dr. Bennett and the non-examining physicians, Drs.
Chaudhuri and Fletcher, all reached different conclusions about Brown-Hudgins’ abilities to
climb, kneel, crouch, and crawl. Although the ALJ explained she did not credit Dr. Bennett’s
opinion because he examined Brown-Hudgins shortly after her last surgery (Tr. 16), the ALJ
gave “significant weight” to both non-examining physician opinions without explaining how she
reconciled the differences between them (Tr. 18).
Brown-Hudgins also alleged disabling pain when performing work-related activities. For
instance, she “alleged a lot of pain when walking just a few feet . . . [and] she needed assistance
getting out of bed, getting out of the tub or rising from a couch or chair because she cannot bend
her right knee all the way.” (Tr. 17.) The ALJ is required to assess the claimant’s credibility as to
subjective complaints of pain and other symptoms according to the following two-step process:
First, the ALJ will ask whether the there is an underlying medically determinable
physical impairment that could reasonably be expected to produce the claimant’s
symptoms. 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.
Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007) (internal citations omitted);
accord Kalmbach v. Comm’r of Soc. Sec., 409 F. App’x 852, 862–63 (6th Cir. 2011). “If an ALJ
rejects a claimant’s testimony as incredible, he must clearly state his reasons for doing so.”
Felisky v. Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994). The ALJ’s credibility determination “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.
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Although the ALJ determined “the claimant’s medically determinable impairments could
reasonably be expected to cause some of the alleged symptoms,” she stopped after the first step
of the credibility analysis. (Tr. 17.) The ALJ found Brown-Hudgins should be permitted to sit
and stand “as necessary for pain” (Tr. 16), but she did not explain which of Brown-Hudgins’
other allegations were credible, the weight given to the testimony as a whole, or why none of the
other described limitations were incorporated into her RFC assessment. Although the ALJ found
some evidence in the record was contrary to Brown-Hudgins’ testimony (Tr. 17), the explanation
that follows only cites evidence consistent with the allegations earlier in the paragraph (Tr. 18),
and is therefore not sufficiently specific to make clear what testimony the ALJ credited and why.
B. Harmless Error
The Commissioner contends that even if the ALJ erred, remand is inappropriate because
(1) the RFC determination is supported by substantial evidence, and (2) any failure to consider
the functional limitations resulting from Brown-Hudgins’ obesity is harmless error because
Brown-Hudgins is not disabled: even under a more restrictive RFC assessment she still would be
capable of performing her past sedentary work.
“An ALJ’s failure to follow agency rules and regulations denotes a lack of substantial
evidence, even where the conclusion of the ALJ may be justified based upon the record.” Cole v.
Astrue, 661 F.3d 931, 937 (6th Cir. 2011) (citation and quotations omitted). “A court cannot
excuse the denial of a mandatory procedural protection simply because . . . a different outcome
on remand is unlikely.” Wilson, 378 F.3d at 546. Therefore “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.” Bowen v. Comm’r of Soc.
Sec., 478 F.3d 742, 746 (6th Cir. 2007) (citing Wilson, 378 F.3d at 546–47).
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Standing alone, the ALJ’s failure to explain the weight given Brown-Hudgins’ testimony
and the reasons for that weight is grounds for reversal unless that failure was harmless error.
Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 714 (6th Cir. 2012); see Rogers, 486 F.3d at 248.
Such an error is harmless if, “leaving the problematic reasoning aside,” “the rest of the ALJ’s
reasons support [the credibility] finding.” Riser v. Comm’r of Soc. Sec., No. 13-cv-11135, 2014
WL 1260127, at *16 (E.D. Mich. Mar. 26, 2014) (quoting New v. Colvin, No. 12-219-ART, 2013
WL 4400522, at *4 (E.D. Ky. Aug. 13, 2013)). In this case, the ALJ did not make an explicit
credibility finding or explain her reasoning. This error is not harmless because the determination
“fails to contain specific reasons for the finding on credibility, supported by the evidence in the
case record, nor is it sufficiently specific to make clear to the individual and to any subsequent
reviews the weight the adjudicator gave to [Brown-Hudgins’] statements and the reasons for that
weight.” Rogers, 486 F.3d at 249 (citations and quotations omitted). Therefore, Brown-Hudgins
is entitled to remand for the ALJ to address the credibility of her subjective complaints.
As explained above, the same failure to explain her reasoning infected the ALJ’s RFC
assessment. Both the ALJ’s failure to properly consider the impact of obesity and address how
she determined the claimant’s RFC may constitute grounds for remand. See, e.g., Christephore v.
Comm’r of Soc. Sec., No. 11-13547, 2012 WL 2274328, at *14 (E.D. Mich. June 18, 2012)
(remanding for failure to resolve inconsistencies in the record in RFC assessment); Norman, 694
F. Supp. 2d at 750 (remanding because ALJ failed to consider impact of obesity under SSR 021P); Rojas v. Comm’r of Soc. Sec., No. 1:07-CV-1035, 2009 WL 465768, at *7 (W.D. Mich.
Feb. 24, 2009) (same). “[A]n ‘ALJ may not select and discuss only that evidence that favors his
ultimate conclusion, but must articulate, at some minimum level, his analysis of the evidence to
allow the appellate court to trace the path of his reasoning.’” Lowery v. Comm’r, Soc. Sec.
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Admin., 55 F. App’x 333, 339 (6th Cir. 2003) (quoting Diaz v. Chater, 55 F.3d 300, 307 (7th Cir.
1995)). Because the ALJ also failed to meaningfully address inconsistencies in the record
regarding Brown-Hudgins’ RFC, or the impact of her obesity on her RFC, the Court finds
Brown-Hudgins is entitled to remand.
IV.

CONCLUSION
For the reasons stated above, the Report (Doc. No. 20) is ADOPTED as modified,

Brown-Hudgins’ Motion (Doc. No. 15) is GRANTED, and this case is REMANDED to the
Commissioner for further proceedings. The Clerk of the Court is DIRECTED to close this case.
It is so ORDERED.
Entered this the __23rd ___ day of September, 2015.

____________________________________
JOHN T. NIXON, SENIOR JUDGE
UNITED STATES DISTRICT COURT 

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