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 16 and 20]. 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 his
application for Social Security disability insurance and
Supplemental Security Income (“SSI”) benefits. An
Administrative Law Judge (“ALJ”) held a hearing
in April 2015 (Tr. 25-67) and issued a decision denying
benefits in May 2015 (Tr. 9-24). This became defendant's
final decision in June 2016 when the Appeals Council denied
plaintiff's request for review (Tr. 1-3).
§ 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 his April 2015 hearing, plaintiff was 57 years old
(Tr. 30). He has a high school education and some college
(Tr. 30) and work experience as a customer service clerk for
a newspaper (Tr. 34, 201). Plaintiff claims he has been
disabled since August 2013 due to having HIV, Hepatitis B,
hypertension, medication side effects, anxiety, depression,
chronic fatigue, wasting, rashes, hearing loss, recurrent
upper respiratory infections, chronic acute sinusitis,
lightheadedness, dehydration, and status post hernia (Tr. 27,
found that plaintiff's severe impairments are “HIV,
hypertension and adjustment disorder” (Tr. 14). He
found that despite these impairments plaintiff has the
residual functional capacity (“RFC”) to perform
“a full range of work at all exertional levels but with
the following nonexertional limitations: limited to simple,
routine tasks, low stress and few changes in the work
setting; avoid concentrated exposure to moving machinery and
unprotected heights; located reasonably close to bathroom; no
climbing ladders but occasional ramps and stairs” (Tr.
16). 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 various unskilled
medium-level jobs such as dining room attendant,
assembler, and packer (Tr. 61-62). The ALJ cited this
testimony as evidence that work exists in significant numbers
that plaintiff could perform and concluded that he is not
disabled (Tr. 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 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.
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,
Efavirenz-Emtrictabine-Tenofovir (Atripla), Stribild,
Amlodipine (Norvasc), Clonidine (Catapres), Hydrazaline
(Apresoline), Atenolol-Chlorthalidone (Tenoretic),
Lisinopril, Benazepril, Atenolol, Hydrochlorothiazide, and
Sulfamethoxazole-Trimethoprim (Bactrim) (Tr. 47, 203, 244,
247, 251, 273, 279, 287, 312). At the hearing he testified
that his medications cause him to have “cloudy
thinking” and to feel unfocused, interfere with his
concentration, and cause urinary frequency (Tr. 51, 57).
Plaintiff also testified to feeling extreme fatigue (Tr. 32,
36, 41, 51-53, 56). On his function report plaintiff
indicated that he is “often lightheaded or fuzzy
thinking almost dizzy-like”; that his “meds keep
me getting up to use bathroom”; that he is “often
fatigued”; and that he “often falls asleep from
fatigue” (Tr. 216, 220, 223). He also reported
medication side effects of nightmares, “bloat stomach,
” and dehydration (Tr. 223).
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.
the RFC evaluation in this matter is flawed because the ALJ
did not adequately explain why he discounted plaintiff's
credibility. In addition to testifying about his medication
side effects, plaintiff testified that while he has no
difficulty sitting, he can stand for only five minutes or
walk for 10-15 minutes before becoming exhausted/fatigued and
having to rest, and that he can lift at most 20 pounds (Tr.
52-53). Plaintiff also testified that due to fatigue he must
nap for 5-10 minutes up to five times per day (Tr. 56-57). If
plaintiff's testimony regarding his standing, walking,
and lifting abilities is credited, he would not have the RFC
to do the medium-level jobs identified by the VE (Tr. 61-62),
which the ALJ cited as jobs plaintiff could perform (Tr. 21);
and if plaintiff's testimony regarding his need to nap
frequently due to fatigue is credited, he would not be able
to work at all, according to the VE (Tr. 64).
is not required to accept a claimant's testimony, but if
he rejects testimony on credibility grounds, he must state
his reasons for doing so and the reasons must be supported by
substantial evidence. As the Sixth Circuit has explained,
the ALJ is not free to make credibility determinations based
solely upon an “intangible or intuitive notion about an
individual's credibility.” Soc. Sec. Rul. 96-7p,
1996 WL 374186, at *4. Rather, such determinations must find
support in the record. Whenever a claimant's complaints
regarding symptoms, or their intensity and persistence, are
not supported by objective medical evidence, the ALJ must
make a determination of the credibility of the claimant in
connection with his or her complaints “based on a
consideration of the entire case record.” The entire
case record includes any medical signs and lab findings, the
claimant's own complaints of symptoms, any information
provided by the treating physicians and others, as well as
any other relevant evidence contained in the record.
Consistency of the various pieces of information contained in
the record should be scrutinized. ...