United States District Court, E.D. Michigan, Southern Division
JAMES R. JOHNSON, Plaintiff,
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.
matter is presently before the Court on cross motions for
summary judgment [docket entries 14 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.
has brought this action under 42 U.S.C. § 405(g) to
challenge defendant's final decision denying his
application for Supplemental Security Income
(“SSI”) benefits. An Administrative Law Judge
(“ALJ”) held a hearing in April 2013 (Tr. 58-85)
and issued a decision denying benefits in June 2013 (Tr.
147-58). In August 2014, the Appeals Council remanded for
further proceedings because the ALJ had neglected to
“address the claimant's truncal ataxia,
polyneuropathy, heavy alcohol abuse, alcohol induced
psychotic disorder with hallucination, major depressive
disorder, brain atrophy with diffuse sulcal and ventricular
prominence, ” plaintiff's need to use a cane, or
his substance abuse (Tr. 163-64). In November 2014, a
different ALJ held another hearing (Tr. 86-118). That ALJ
issued a decision denying benefits in March 2015 (Tr. 13-29).
This became defendant's final decision in August 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 the ALJ's March 2015 decision, plaintiff was 53
years old (Tr. 60). He has a tenth grade education and has
not worked since the late 1980s (Tr. 62). Plaintiff claims he
has been disabled since August 1988 due to “both legs
give out/hypertension, ‘nerves' memory loss”
(Tr. 257). The ALJ found that plaintiff's severe
impairments are “degenerative disc disease of the
cervical and lumbar spine, an adjustment disorder, heavy
alcohol abuse, polyneuropathy, truncal ataxia, alcohol
induced psychotic disorder, major depressive disorder, brain
atrophy with diffuse sulcal, ventricular prominence, and
arthritis/myositis” (Tr. 18). The ALJ found that
plaintiff's asthma, hypertension, and lipidemia are
non-severe, and that his retinopathy is not medically
determinable (Tr. 19). Despite plaintiff's severe
impairments, the ALJ found that he has the residual
functional capacity (“RFC”) to perform a limited
range of light work. A vocational expert (“VE”)
testified in response to a hypothetical question that a
person of plaintiff's age and education, and who has this
RFC, could perform certain unskilled, light-level jobs such
as a machine tender, sorter, or bench assembler (Tr. 113-14).
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. 28-29).
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.
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 large number of medications,
including Vicodin, Tramadol, Ultram, Lyrica, Lorazepam,
Celexa, Trazodone, Trilafon, Flexeril, Flonase, Naprosyn,
Remeron, Robaxin (Methocarbamol), Neurontin, Norco, Ambien,
Gabapentin, Loratadine, Lisinopril, Metoprolol, Benadryl,
Zyrtec, Zyprexa, and Hydrocodone (Tr. 291, 346, 421, 450,
457, 465, 496, 498, 500, 506, 510, 522, 557, 579, 580, 586,
587, 612, 617, 619, 622, 627, 644, 645), many of which have
known side effects. One of plaintiff's treating
physicians noted that plaintiff experiences drowsiness as a
medication side effect (Tr. 517). Plaintiff's
psychiatrist noted that plaintiff experiences side effects
from two of his medications, although she did not indicate
the nature of the side effects (Tr. 644). Plaintiff testified
that he feels dizzy “almost every day” (Tr. 103).
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 is flawed because substantial evidence
does not support the ALJ's finding that plaintiff can
meet the lifting requirements of light level work. As noted
above, this exertional level requires the ability to lift up
to ten pounds frequently and twenty pounds occasionally. When
questioned by the ALJ, plaintiff testified that he can lift a
gallon of milk (eight pounds) (Tr. 107-08), but the ALJ did
not ask plaintiff how frequently he could lift this weight
(or, more relevantly, how frequently he could lift ten
pounds) or whether he could lift twenty pounds occasionally.
Dr. Shaw, who examined plaintiff once in March 2012 on behalf
of the Disability Determination Service, opined that
plaintiff can “lift at least 10 to 15 pounds of weight
without difficulty” (Tr. 423), although he did not
indicate how he arrived at this conclusion, and he did not
opine how frequently plaintiff could lift this weight or
whether he could lift twenty pounds occasionally.
Plaintiff's treating physician, Dr. Kushner, opined in
March 2013 that plaintiff can only “rarely” lift
less than ten pounds (Tr. 519). The ALJ acknowledges that
plaintiff has degenerative disc disease in his cervical and
lumbar spine and bilateral C6-7 radiculitis (Tr. 23-24),
impairments which clearly could limit plaintiff's ability
to lift weight. This record simply does not support the
ALJ's finding that plaintiff can meet the lifting
requirements of light level work. On remand, the ALJ must
reexamine the evidence of plaintiff's lifting ability
and, as appropriate, revise his RFC evaluation and his
hypothetical question(s) to the VE.
the RFC evaluation is flawed because substantial evidence
does not support the ALJ's finding that plaintiff can
meet the sitting and standing requirements of light level
work. Dr. Kushner indicated that plaintiff can sit, stand,
and walk for a combined total of less than four hours during
an eight-hour work day (Tr. 519). The ALJ rejected this
assessment as “overly restrictive, ” and instead
gave “most weight” to Dr. Shaw's opinion that
plaintiff “can work eight hours a day” because
“[t]his opinion is consistent with the essentially
unremarkable examination findings” (Tr. 26, 423).
However, Dr. Shaw apparently was under the mistaken
impression that plaintiff's only medication was
“Vicodin for pain” (Tr. 421), and he did not have
the benefit of the objective findings that post-date his
March 2012 examination, including CT scans and MRIs in 2014
showing bulging discs and foraminal narrowing at several
locations in plaintiff's lumbar spine and a herniated
disc at ¶ 5-S1 (Tr. 585, 591, 606, 615). On remand, the
ALJ must reexamine the evidence of plaintiff's ability to
sit, stand, and walk and, as appropriate, revise his RFC
evaluation and his hypothetical question(s) to the VE. In
particular, the ALJ must explain how it is possible for
plaintiff to engage in these activities on a full-time basis
in light of the objective evidence of his lower back
the RFC evaluation is flawed because the ALJ neglected to
make any findings as to whether plaintiff has sufficient use
of his fingers and hands to do full-time light level work. At
his April 2013 hearing, plaintiff testified that “I can
use my hands, but like, they're just so stiff on
me” (Tr. 76). Dr. Kushner opined that during an
eight-hour workday plaintiff could use his hands only 25% of
the time for grasping, turning, and twisting, and that he
could use his fingers only 40% of the time for going fine
manipulations (Tr. 520). There appears to be no contrary
evidence regarding plaintiff's restricted ability to use
his hands and fingers. On remand, the ALJ must make specific
findings as to plaintiff's ability to use his hands and
fingers and, as appropriate, revise his RFC evaluation and
his hypothetical question(s) to the VE.
these reasons, the Court concludes that the ALJ's
decision in this matter is not supported by substantial
evidence. Remanding the matter for an award of benefits would
not be appropriate at this time because the record, in its
current state, is not such that “proof of disability is
overwhelming or . . . proof of disability is strong and
evidence to the contrary is lacking.” Faucher v.
Sec'y of Health and Human Servs., 17 F.3d 171, 176
(6th Cir. 1994). Rather, the matter must be remanded so that
the record may ...