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Dillard v. Colvin

United States District Court, E.D. Michigan, Southern Division

February 1, 2017

KAREN DILLARD, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, AND REMANDING FOR FURTHER PROCEEDINGS

          BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE

         This matter is presently before the Court on cross motions for summary judgment [docket entries 16 and 21]. Pursuant to E.D. Mich. LR 7.1(f)(2), the Court shall decide these motions without a hearing. For the reasons stated below, the Court shall grant plaintiff's motion, deny defendant's motion, and remand the matter for further proceedings.

         Plaintiff has brought this action under 42 U.S.C. § 405(g) to challenge defendant's decision denying her application for Social Security disability insurance benefits. An Administrative Law Judge (“ALJ”) held a hearing in February 2015 (Tr. 25-54) and issued a decision denying benefits in March 2015 (Tr. 10-21). This became defendant's final decision in April 2016 when the Appeals Council denied plaintiff's request for review (Tr. 1-4).

         Under § 405(g), the issue before the Court is whether the ALJ's decision is supported by substantial evidence. As the Sixth Circuit has explained, the Court

must affirm the Commissioner's findings if they are supported by substantial evidence and the Commissioner employed the proper legal standard. White, 572 F.3d at 281 (citing 42 U.S.C. § 405(g)); Elam ex rel. Golay v. Comm'r of Soc. Sec., 348 F.3d 124, 125 (6th Cir.2003); Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 528 (6th Cir.1997). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, L.Ed.2d 842 (1971) (internal quotation marks omitted); see also Kyle, 609 F.3d at 854 (quoting Lindsley v. Comm'r of Soc. Sec., 560 F.3d 601, 604 (6th Cir.2009)). Where the Commissioner's decision is supported by substantial evidence, it must be upheld even if the record might support a contrary conclusion. Smith v. Sec'y of Health & Human Servs., 893 F.2d 106, 108 (6th Cir.1989). However, 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.” Garner v. Heckler, 745 F.2d 383, 388 (6th Cir.1984) (internal citations and quotation marks omitted).

Brooks v. Comm'r of Soc. Sec., 531 F. App'x 636, 640-41 (6th Cir. 2013).

         At the time of her February 2015 hearing, plaintiff was 56 years old (Tr. 42). She has a high school education (Tr. 137) and experience doing sedentary work at a bank and a phone center (Tr. 28-29, 39-40, 43-45, 138, 152). Plaintiff claims she has been disabled since March 2013 (Tr. 122) due to irritable bowel syndrome (“IBS”), colitis, depression, anxiety, pain in her lower back and neck, asthma, ankle spurs, bilateral carpal tunnel syndrome, and insomnia (Tr. 28, 32-37, 136). Plaintiff's insured status expires in December 2018 (Tr. 126).

         The ALJ found that plaintiff's severe impairments are “irritable bowel syndrome, meralgia paresthesia, GERD, arthralgia of the knees and elbows, arthritis, and obesity” (Tr. 15). The ALJ found plaintiff's asthma, depression, and anxiety to be “non-severe” (Tr. 15). He found that plaintiff cannot perform any of her past relevant work (Tr. 20) but that she has the residual functional capacity (“RFC”) “to perform sedentary work as defined in 20 CFR 404.1567(a) with the following additional limitations: occasional lifting of five pounds” (Tr. 17). A vocational expert (“VE”) testified to the existence in Michigan of 16, 000 “clerical support type jobs, ” which typically require occasional lifting of five pounds or less (Tr. 46-51). The ALJ cited this testimony as evidence that work exists in significant numbers that plaintiff could perform and concluded that she is not disabled (Tr. 20-21).

         Having reviewed the administrative record and the parties' briefs, the Court concludes that the ALJ's decision in this matter is not supported by substantial evidence for the following reasons. First, the ALJ improperly characterized plaintiff's mental impairments (depression and anxiety) as “nonsevere” (Tr. 15). As this Court has explained,

[a]t Step Two of the sequential evaluation process, Plaintiff was required to show that she suffered from a severe impairment. A severe impairment or combination of impairments is one that significantly limits the claimant's physical or mental ability to perform basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). Basic work activities, defined as the physical or mental abilities and aptitudes necessary to perform most jobs, includes the ability to walk; stand; sit; lift; push; pull; reach; carry; handle; see; hear; speak; understand, carry out, and remember simple instructions; use judgment; respond appropriately to supervision, coworkers and usual work situations; and deal with changes in a routine work setting. 20 C.F.R. §§ 404.1521, 416.921. The Sixth Circuit court has determined that the step-two requirement serves as a “de minimus” threshold hurdle in the disability process. Higgs v. Bowen, 880 F.2d 860, 862-63 (6th Cir.1988). The inquiry at step two functions as an “administrative convenience to screen out claims that are totally groundless” from a medical perspective. Id. at 863 (citation omitted). An impairment will be considered non-severe only if it is a “slight abnormality which has such a minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education and work experience.” Farris v. Sec'y of Health & Human Servs., 773 F.2d 85, 90 (6th Cir.1985) (citation omitted). “Under this standard, the question . . . is whether there is substantial evidence in the record supporting the ALJ's finding that [the plaintiff] has only a ‘slight' impairment that does not affect her ability to work.” Id.

Betty v. Comm'r of Soc. Sec., No. 15-CV-10734, 2016 WL 1105008, at *3 (E.D. Mich. Feb. 17, 2016), report and recommendation adopted, No. 15-CV-10734-DT, 2016 WL 1090554 (E.D. Mich. Mar. 21, 2016).

         In the present case, the ALJ clearly erred in finding that plaintiff's depression and anxiety are “slight abnormalities” that minimally affect her ability to work. The psychologists who evaluated plaintiff in December 2013 at the request of the Disability Determination Service diagnosed her with persistent depressive disorder and generalized anxiety disorder and concluded that she “would appear to have difficulty maintaining standards of behavior and safety issues due to psychiatric and medical issues” (Tr. 249). Plaintiff has been prescribed significant medication for these conditions, including Cymbalta, Lorazepam, Trazodone, Amitriptyline, Effexor, and Buspar (see, e.g., Tr. 139, 183, 201-02, 254, 256, 260, 288-89, 294). A physician, Dr. Paragi, noted in December 2013 that plaintiff's anxiety “seems to be poorly controlled” (Tr. 294). A psychiatrist, Dr. Rana, who examined plaintiff in February 2014, found plaintiff's anxiety to be “severe” and opined that its impact on plaintiff's “social/academic/occupational functioning and activities of daily living” was “severe” (Tr. 297, 306). In August and November 2014, another psychiatrist, Dr. Rifai, diagnosed dysthymia and anxiety (Tr. 322, 338) and rated the impact as “moderate” and then “mild” (Tr. 319, 335), although he, too, rated plaintiff's anxiety as “severe” (Tr. 322, 337). Dr. Rifai also indicated that plaintiff's attention and concentration are “impaired” (Tr. 321, 337). Plaintiff's main treating physician, Dr. Haddad-Khoury, similarly has opined that plaintiff's physical condition is affected by her depression and other “psychological factors” (Tr. 237, 253). Under these circumstances, the ALJ plainly erred in characterizing plaintiff's anxiety and depression as non-severe. It simply cannot be said that plaintiff's mental impairments are “slight” and have only a minimal effect on her ability to work.

         While the ALJ stated that he nonetheless considered plaintiff's mental impairments in evaluating her RFC, his conclusion that these impairments do not “cause more than a minor interference with her ability to work” (Tr. 19) is not supported by substantial evidence. The ALJ's statement that plaintiff “had no history of . . . prescribed psychiatric medications or outpatient treatment” (Tr. 19) is simply incorrect. As noted above, plaintiff has in fact been prescribed a great deal of medication for depression and anxiety, and she was seen for these conditions on the occasions indicated by Drs. Paragi, Rana, and Rifai. Additionally, it is not apparent from the ALJ's decision that he was aware that these physicians thought plaintiff's anxiety is “severe” and “poorly controlled.” On remand, the ALJ must reevaluate plaintiff's mental impairments and the extent to which they affect her ability to work.

         Second, the ALJ erred in failing to make any findings regarding the significance of plaintiff's obesity on her RFC. Under defendant's regulations, an adult with a BMI of 30 or above is deemed to be obese. See SSR 02-1p. While obesity is no longer a “listed impairment, ” this Social Security ruling does require the ALJ to consider it at all steps of the sequential process while evaluating applicants for disability insurance benefits. See id., Policy Interpretation ¶ 3 (“We will consider obesity in determining whether: The individual has a medically determinable impairment. . . .; [t]he individual's impairment(s) is severe. . . .; [t]he individual's impairment(s) meets or equals the requirements of a listed impairment in ...


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