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Oliver v. Commissioner of Social Security

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

March 24, 2017

PHYLLIS OLIVER, Plaintiff,
v.
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 13 and 17]. 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 case for further proceedings.

         Plaintiff has brought this action under 42 U.S.C. § 405(g) to challenge defendant's final decision denying her applications for Social Security disability insurance and Supplemental Security Income (“SSI”) benefits. An Administrative Law Judge (“ALJ”) held hearings in October 2014 and February 2015 (Tr. 27-74) and issued a decision denying benefits in April 2015 (Tr. 7-20). This became defendant's final decision in June 2016 when the Appeals Council denied plaintiff's request for review (Tr. 1-3).

         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, 28 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 45 years old (Tr. 51). She has the equivalent of a high school education and work experience as a deejay, cashier, inspector, packager, and stock/maintenance worker (Tr. 49-52, 307). Plaintiff claims she has been disabled since June 2010 due to sarcoidosis, fibromyalgia, Bell's palsy, asthma, hypertension, anemia, depression, joint pain, depression, and sleep deprivation (Tr. 31, 305-06).

         The ALJ found that plaintiff's severe impairments are “degenerative disc disease of the thoracic and lumbar spine; obesity (5'7" and 200 pounds); sarcoidosis; asthma; fibromyalgia; osteoarthritis; depressive disorder; and polysubstance dependence” (Tr. 12) and that her Bell's palsy and hypertension are non-severe impairments (Tr. 12-13). The ALJ found that plaintiff cannot perform her past work (Tr. 18) but that she has the residual functional capacity (“RFC”) to perform a limited range of unskilled, sedentary work.[1] A vocational expert (“VE”) testified in response to a hypothetical question that a person of plaintiff's age, education, and work experience, and who has this RFC, could perform certain unskilled, sedentary jobs such as hand packer, bench assembler, and general office clerk (Tr. 72). 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. 19-20).

         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 because his RFC evaluation of plaintiff is flawed. Since the hypothetical question incorporated this flawed RFC evaluation, it failed to describe plaintiff in all relevant respects and the VE's testimony given in response thereto cannot be used to carry defendant's burden to prove the existence of a significant number of jobs plaintiff is capable of performing.

         Plaintiff's RFC evaluation is flawed for the following reasons. First, the ALJ failed to consider the side effects of plaintiff's medications. The record indicates that plaintiff takes, or at various times has taken, an astonishing number of medications, including Flovent, Methotrexate, Prednisone, Zoloft, Albuterol, Vicodin, Cyclobenzaprine, Gabapentin, Hydrocodone, Zantac, Hydrochlorothiazide, Ultram, Advair, Naprosyn, Lorazepam, Mobic, Promethazine Hydrochloride, Ativan, Ranitidine, Phenergan, Cymbalta, Dulera, Flexeril, Neurontin, Norco, Fexmid, Lortab, Vistaril, Sertraline, Tramadol, Qvar, Meloxicam, and Benadryl (Tr. 308, 322, 338, 400, 415, 417, 430, 435-36, 438, 454-56, 469, 538, 551, 583, 585, 616, 620, 732, 897, 1037, 1043-45, 1048, 1063-65, 1310-12, 1385), many of which have known side effects. Plaintiff testified that one reason she believes she cannot work is that “all the drugs that I take, a lot of time I'm not functionable [sic]” (Tr. 59) and that her medications make her feel “jittery and shaky, ” drowsy, dizzy, and “off balance” (Tr. 61). On her function report plaintiff reported side effects of tiredness, fatigue, dizziness, shakiness, nervousness, difficulty sleeping, and nausea (Tr. 315, 322). The medical records contains several entries indicating plaintiff experiences fatigue, steroid side effects, nausea, dizziness, and insomnia (e.g., Tr. 416-17, 429, 435, 437-39, 485, 517, 615, 819, 943, 960, 1114, 1383).

         At the hearing, plaintiff was asked if she experiences medication side effects, but the ALJ did not inquire further when she answered affirmatively. Nor did he make any findings on this issue, [2] although he acknowledged plaintiff's testimony that “[h]er inhaler causes her to be jittery and shaky” and that “[h]er prescription medication[s] cause drowsiness and dizziness” (Tr. 15). This lack of findings is an error requiring remand, as the Sixth Circuit has held that the ALJ must evaluate “[t]he type, dosage, effectiveness, and side effects of any medication” as part of the process of determining the extent to which side effects impair a claimant's capacity to work. Keeton v. Comm'r of Soc. Sec., 583 F. App'x 515, 532 (6th Cir. 2014) (quoting 20 C.F.R. § 416.929(c)(3)(i)-(vi)). Further, hypothetical questions to vocational experts must account for medication side effects. See White v. Comm'r of Soc. Sec., 312 F. App'x 779, 789-90 (6th Cir. 2009). On remand, the ALJ must determine which medications plaintiff was taking during the relevant time period; make findings as to the nature and severity of these medications' side effects, if any; adjust his findings as appropriate regarding plaintiff's RFC; and incorporate these findings in proper hypothetical questions to the VE.

         Second, the RFC evaluation is flawed because the ALJ neglected to make required findings concerning the effect, if any, of plaintiff's obesity on her other impairments. The ALJ found that obesity is one of plaintiff's severe impairments, as the record shows she is 5'-7" tall and weighs 200 pounds (Tr. 12).[3] Under SSR 02-1p, the ALJ must consider a disability claimant's obesity at all steps of the sequential process. See id., Policy Interpretation ¶ 3. Further,

[o]besity is a medically determinable impairment that is often associated with disturbance of the musculoskeletal system, and disturbance of this system can be a major cause of disability in individuals with obesity. The combined effects of obesity with musculoskeletal impairments can be greater than the effects of each of the impairments considered separately. Therefore, when determining whether an individual with obesity has a listing-level impairment or combination of impairments, and when assessing a claim at other steps of the sequential evaluation process, including ...

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