United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT, DENYING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT, AND REMANDING FOR FURTHER
BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE
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.
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).
§ 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).
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).
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).
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
[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).
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.
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.
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 ...