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Fluckes v. Commissioner of Social Security

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

May 26, 2017

DENNIS BRUCE FLUCKES, 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 13 and 14]. 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 his application for Supplemental Security Income (“SSI”) benefits. An Administrative Law Judge (“ALJ”) held a hearing in November 2015 (Tr. 29-57) and issued a decision denying benefits in December 2015 (Tr. 13-24). This became defendant's final decision in September 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).

         Plaintiff was 47 years old at the time of the ALJ's decision (Tr. 32). He has an eleventh grade education and work experience as a house builder (Tr. 32, 50). Plaintiff claims he has been disabled since October 2011[1] due to depression, back pain, diabetes, high blood pressure, neuropathy, a learning disability, a personality disorder, and anxiety attacks (Tr. 33-47, 218).

         The ALJ found that plaintiff's severe impairments are “chronic back pain; borderline intellectual functioning; anti-social personality disorder; major depressive disorder; diabetes, alcohol, cannabis and cocaine abuse in remission[;] and obstructive sleep apnea” (Tr. 18-19). The ALJ further found that despite these impairments plaintiff has the residual functional capacity (“RFC”) to perform a limited range of light work.[2] 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 assembly and packaging jobs (Tr. 51-52). 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. 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's RFC assessment of plaintiff is flawed for five reasons. First, the ALJ failed to consider the side effects of plaintiff's medications. Plaintiff testified that his pain medications made him drowsy (Tr. 33-34, 45) and that he feels “sluggish and weak” from his diabetes or his diabetes medications (Tr. 46). Plaintiff indicated that he naps for several hours during the day because he sleeps poorly at night and “my medications . . . makes me drowsy” (Tr. 45). Plaintiff also testified that for some period of time he was taking Sinequan, which gave him nightmares (Tr. 36). The record indicates that he has been prescribed a large number of medications, including Benadryl, Cymbalta, Elavil, Gabapentin, Hydrocodone, Lantus Solostar, Losartan potassium, Novolog, Pravastatin, Abilify, Duloxetine, Hydrochlorothiazide, Omeprazole, Amlodipine, Tramadol, Sinequan, Advair, Tudorza, Amitriptyline, Risperdal, Glucophage, Neurontin, Prilosec, Seroquel, Simvastatin, Docusate, Insulin, Senna, Flonase, Albuterol, Prilosec, Doxepin, Trazodone, and Norco (Tr. 221, 253, 279, 281, 471-72, 476-77, 479-80, 482-83, 485-86, 498-99, 522-23, 569-70, 583-85, 595-96, 616-17, 678-80, 731, 752, 768, 771, 787-88, 812, 816-18, 821, 835-36, 849-50, 859-61, 886-87, 905-06, 921-22, 942, 965), many of which have known side effects.

         The ALJ clearly erred in failing to make any findings regarding this issue. 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 extent 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, and remand is required, because the ALJ neglected to make required findings concerning the effect, if any, of plaintiff's obesity on his other impairments. Plaintiff testified that he is 5'-7-1/2" tall and weighs 227 pounds (Tr. 40), which yields a body-mass index (“BMI”) of 35.[3] See https://www.nhlbi.nih.gov/health/educational/lose_wt/BMI/ bmicalc.htm. A medical record from May 2015 indicates plaintiff is 5'-8" tall and weighed 220 pounds, yielding a body-mass index (“BMI”) of 33.46 (Tr. 1011). Medical reports in August 2015 and October 2015 indicate a BMI of 36.2 and 34, respectively (Tr. 770, 782). Under SSR 02-1p, an adult with a BMI of 30 or above is deemed to be obese, and an ALJ must consider a disability claimant's obesity at all steps of the sequential process. 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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