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 PROCEEDINGS
BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE
matter is presently before the Court on cross motions for
summary judgment [docket entries 15 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 case for further proceedings.
has brought this action under 42 U.S.C. § 405(g) to
challenge defendant's final decision denying her
application for Social Security disability insurance
benefits. An Administrative Law Judge (“ALJ”)
held a hearing in February 2015 (Tr. 33-52) and issued a
decision denying benefits in July 2015 (Tr. 16-28). This
became defendant's final decision in April 2016 when the
Appeals Council denied plaintiff's request for review
§ 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).
time of her February 2015 hearing, plaintiff was 43 years old
(Tr. 38). She has a high school education and work experience
as a metal finisher, waitress, and cashier (Tr. 145-46).
Plaintiff claims she has been disabled since January 2013 due
to bilateral tendonosis with surgery, multiple fractures in
her left leg and left ankle, arthritis in her knees, anxiety,
depression, irritable bowel syndrome, and acid reflux (Tr.
144-45). Her insured status expired in December 2016 (Tr.
found that plaintiff's severe impairments are
“right lower tendonosis status post surgery; multiple
fractures of the left lower extremity status post surgeries;
L4-L5 disc bulge; and tarsal tunnel syndrome” (Tr. 21).
The ALJ found that plaintiff's adjustment disorder is
non-severe (Tr. 21). The ALJ found that plaintiff cannot
perform her past work (Tr. 27) but that she has the residual
functional capacity (“RFC”) to perform a limited
range of sedentary work. 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 “sorting, inspecting and bench
assembly jobs” of which 360, 000 exist in the national
economy (Tr. 49). The ALJ cited this testimony as evidence
that work exists in significant numbers that plaintiff could
perform and concluded that plaintiff is not disabled (Tr.
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.
ALJ's RFC assessment of plaintiff 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, a large
number of medications, including ambien, bentyl, lomotril,
miralax, norco, prilosec, tramadol, vicodin, xanax,
trazodone, percocet, flexeril, tylenol #3, zaleplon,
tolterodine, gabapentin, and detrol (Tr. 147, 292, 433, 440,
445, 500, 502, 525, 518, 523, 528, 535, 548, 581), many of
which have known side effects. For an unspecified period of
time, plaintiff was taking up to eight norco pills per day
for pain (Tr. 440). Plaintiff testified that her medications
make her feel nauseous and “very tired” (Tr. 43).
On her function report plaintiff reported side effects of
upset stomach, constipation, and “very tired and
can't function” (Tr. 163), and on her disability
report she reported side effects of feeling drowsy and
“out of sorts” (Tr. 166).
hearing, the ALJ asked plaintiff if she experienced
medication side effects, but he did not inquire further when
she answered affirmatively (Tr. 42-43). Nor did he make any
findings on this issue. This was error, 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 (i.e., from the alleged disability
onset date through the date last insured); 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.
the RFC evaluation is flawed, and remand is required, because
the ALJ failed to explain adequately why he found that
plaintiff is able to sit to the extent necessary to engage in
full-time work. The ALJ acknowledged that one of
plaintiff's severe impairments is “L4-L5 disc
bulge” (Tr. 21), a finding confirmed by MRI (Tr.
466). In September 2014, plaintiff rated her
back pain as 7/10 (Tr. 469), and her treating physician, Dr.
Hall, increased her norco prescription accordingly (Tr. 470).
In January 2015, Dr. Hall noted that plaintiff's lumbar
radiculopathy (shown by EMG in September 2014 (Tr. 525))
improved after an epidural injection but that plaintiff
“is also having residual axial back pain so we will
schedule her for medial branch block” (Tr. 518). Dr.
Hall also noted plaintiff was experiencing muscle spasms, for
which she prescribed flexeril (Tr. 518, 523). Clearly, there
is an objective basis for plaintiff's complaints of back
testified that she can sit or stand for 30 to 45 minutes
before “get[ting] very uncomfortable” and that
her back was hurting at the hearing (Tr. 42-43). The ALJ did
not reject this testimony specifically, but he did give her
“credibility . . . little weight” for the
Foremost, the physical limitations that the claimant alleged
are unsupported by the medical evidence of record. There is
no evidence to support physical limitations that would cause
the claimant to be confined to lying down throughout most of
the day to elevate her legs. Physical examinations have been
mostly unremarkable with retained ability to walk. The
claimant has continued to perform a large range of activities
of daily living including shopping, cooking, and driving that
evidence greater ...