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Morin v. Commissioner of Social Security

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

April 13, 2017

KIM LORRAINE MORIN, 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 9 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 Social Security disability insurance and Supplemental Security Income (“SSI”) benefits. An Administrative Law Judge (“ALJ”) held a hearing in May 2015 (Tr. 30-75) and issued a decision denying benefits in July 2015 (Tr. 12-24). This became defendant's final decision in July 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 May 2015 hearing, plaintiff was 53 years old (Tr. 37). She has an eleventh grade education (Tr. 234) and relevant work experience as a cashier, stock person, and store assistant manager (Tr. 39-41, 218, 235). Plaintiff claims she has been disabled since February 2013 (Tr. 202) due to diabetes, depression, sleep apnea, neuropathy, restless leg syndrome, arthritis in her knees, inability to sit or stand for long, numbness and pain in her feet and legs, blacking out, and difficulty with her legs (Tr. 233).

         The ALJ found that plaintiff's severe impairments are “obesity, peripheral neuropathy, diabetes mellitus, chronic obstructive pulmonary disease, and affective disorder” (Tr. 14). He also found that plaintiff's bilateral carpal tunnel syndrome is non-severe and that her fibromyalgia and restless leg syndrome are “non-medically determinable impairments” (Tr. 14- 15). Further, the ALJ found that plaintiff cannot perform any of her past work (Tr. 22) but that she has the residual functional capacity (“RFC”) to perform a limited range of light work.[1] A vocational expert (“VE”) testified initially 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 as electrical assembler, small parts assembler, or inspector/hand packager (Tr. 64). When questioned further, however, the VE stated that if the hypothetical worker needed to use an assistive device, such as a walker, at all times while standing, then he/she would have to do these jobs entirely while sitting (Tr. 70, 73). Although the ALJ found that plaintiff “is limited to performing jobs where an individual can use a handheld assistive device at all times when standing, ” and the VE testified that this limitation would restrict the worker to sedentary jobs, the ALJ nonetheless concluded that plaintiff is not disabled because she could perform the light-level jobs identified by the VE (Tr. 23-24).

         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. The ALJ also erred in finding that plaintiff is not disabled based on the existence of jobs which, according to the VE, appear to exceed plaintiff's RFC.

         The 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 number of medications for pain, diabetes, depression, and other ailments, including atorvastatin calcium, crestor, bagapentin, glyburide, lantus injections, lyrica, metformin, effexor, lasix, citalopram, furosemide, aspir, meloxicam, sertraline, zoloft, venlafaxine, buspar, and buspirone (Tr. 44, 236, 273, 316, 372-73, 508, 744-47, 871, 889, 897, 910, 920). Plaintiff told one of her treating physicians, Dr. Jawed, that one of her pain medications B of which she takes nine pills per day (Tr. 44, 897) B makes her feel “goofy” (Tr. 371). Plaintiff's psychotherapist reported that plaintiff experiences medication side effects of fatigue, lethargy, and confusion (Tr. 586). Another treating physician, Dr. Hanna, reported that one of plaintiff's depression medications “caused side effects with increased fatigue and tiredness and excessive sleep” (Tr. 895, 897). Plaintiff testified that she “sleep[s] a lot” (Tr. 49).

         The ALJ clearly erred in failing to make any findings regarding plaintiff's medication side effects. The Sixth Circuit has held that the ALJ must evaluate A[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 extent of these medications' side effects, if any; adjust his findings as appropriate regarding plaintiffs RFC; and incorporate these findings in proper hypothetical questions to the VE.

         Second, the RFC evaluation in this case is flawed because the ALJ neglected to make required findings concerning the effect, if any, of plaintiff s obesity on her other impairments and on her RFC. The record contains several notations that plaintiffs body mass index (ABMI") is well over 30, [2] which is the point at which defendant's regulations consider a person to be obese. See 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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