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Carmack v. Commisioner of Social Security

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

March 28, 2017

SALLY LYNN CARMACK, 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 15 and 16]. 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 application for Supplemental Security Income (“SSI”) benefits. An Administrative Law Judge (“ALJ”) held a hearing in June 2015 (Tr. 26-52) and issued a decision denying benefits in August 2015 (Tr. 10-21). This became defendant's final decision in August 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. 49). She has a high school education and no relevant work experience (Tr. 49). Plaintiff claims she has been disabled since September 2012 due to migraines, depression, dyslexia, and nerve damage in her back, shoulders, and neck (Tr. 155-56).

         The ALJ found that plaintiff's severe impairments are “dysfunction of a major joint, spine disorder, disorders of muscle, ligament and fascia, and migraines” and that her affective disorder is nonsevere (Tr. 15). He found that despite these impairments plaintiff has the residual functional capacity (“RFC”) to perform “light work as defined in 20 CFR 416.967(b)[1] except frequent overhead reaching; never climb ladders and scaffolds; and occasionally crawl” (Tr. 17). 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, light-level jobs such as an inspector, packager, and office cleaner (Tr. 50). 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 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, a number of medications, including Cymbalta, Norco, Vicodin, Butalbital, Desipramine, Hydrocodone, Sumatriptan, Topamax, Gabapentin (Neurontin), Methocarbamo (Robaxin), Naproxen, Sumatriptan (Imitrex), Flexeril, Percocet, Maloxicam, Wellbutrin, Bupropion, Duloxetine, and Topiramate (Tr. 31, 158, 183, 229-30, 232, 234, 237, 330, 338, 357, 442, 458), many of which have known side effects. On her function and disability reports plaintiff reported side effects of drowsiness, mood swings, and depression (Tr. 183, 192) and at the hearing she testified that her medications make her feel drowsy (Tr. 47). Further, two of plaintiff's physicians noted she experiences drowsiness and fatigue as medication side effects (Tr. 322, 324), while another noted that one of plaintiff's headache medications “helps but decreases function” (Tr. 377).

         The ALJ's failure to make any findings as to this issue 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 record contains several notations that plaintiff's body mass index (“BMI) is over 30 (see, e.g., Tr. 215, 230, 340, 413, 464, 468, 471, 490), which is the point at which defendant's regulations consider a person to be obese. See SSR 02-1p. Under this SSR, 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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