United States District Court, W.D. Michigan, Southern Division
S. CARMODY U.S. MAGISTRATE JUDGE
an action pursuant to Section 205(g) of the Social Security
Act, 42 U.S.C. § 405(g), to review a final decision of
the Commissioner of Social Security denying Plaintiff's
claim for Supplemental Security Income (SSI) under Title II
of the Social Security Act. The parties subsequently agreed
to proceed in this Court for all further proceedings,
including an order of final judgment. Section 405(g) limits
the Court to a review of the administrative record and
provides that if the Commissioner's decision is supported
by substantial evidence it shall be conclusive. The
Commissioner has found that Plaintiff is not disabled within
the meaning of the Act. For the reasons articulated herein,
the Commissioner's decision is vacated and this
matter remanded for further factual findings pursuant to
sentence four of 42 U.S.C. Â§ 405(g).
Court's jurisdiction is confined to a review of the
Commissioner's decision and of the record made in the
administrative hearing process. See Willbanks v.
Sec'y of Health and Human Services, 847 F.2d 301,
303 (6th Cir. 1988). The scope of judicial review in a social
security case is limited to determining whether the
Commissioner applied the proper legal standards in making her
decision and whether there exists in the record substantial
evidence supporting that decision. See Brainard v.
Sec'y of Health and Human Services, 889 F.2d 679,
681 (6th Cir. 1989).
Court may not conduct a de novo review of the case, resolve
evidentiary conflicts, or decide questions of credibility.
See Garner v. Heckler, 745 F.2d 383, 387 (6th Cir.
1984). It is the Commissioner who is charged with finding the
facts relevant to an application for disability benefits, and
her findings are conclusive provided they are supported by
substantial evidence. See 42 U.S.C. § 405(g).
Substantial evidence is more than a scintilla, but less than
a preponderance. See Cohen v. Sec'y of Dep't of
Health and Human Services, 964 F.2d 524, 528 (6th Cir.
1992) (citations omitted). It is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion. See Richardson v. Perales, 402 U.S. 389,
401 (1971); Bogle v. Sullivan, 998 F.2d 342, 347
(6th Cir. 1993). In determining the substantiality of the
evidence, the Court must consider the evidence on the record
as a whole and take into account whatever in the record
fairly detracts from its weight. See Richardson v.
Sec'y of Health and Human Services, 735 F.2d 962,
963 (6th Cir. 1984).
been widely recognized, the substantial evidence standard
presupposes the existence of a zone within which the decision
maker can properly rule either way, without judicial
interference. See Mullen v. Bowen, 800 F.2d 535, 545
(6th Cir. 1986) (citation omitted). This standard affords to
the administrative decision maker considerable latitude, and
indicates that a decision supported by substantial evidence
will not be reversed simply because the evidence would have
supported a contrary decision. See Bogle, 998 F.2d
at 347; Mullen, 800 F.2d at 545.
was 42 years of age on the date his insured status expired.
(PageID.88). He successfully completed high school and worked
previously as a garbage truck driver, semi-truck driver,
drywall finisher, meat cutter, and office manager/cable
supervisor. (PageID.88). Plaintiff applied for benefits on
December 20, 2012, alleging that he had been disabled since
December 25, 2011, due to depression and various shoulder
impairments. (PageID.317-23, 365). Plaintiff's
application was denied, after which time he requested a
hearing before an Administrative Law Judge (ALJ).
October 23, 2013, Plaintiff appeared before ALJ Donna Grit
with testimony being offered by Plaintiff and a vocational
expert. (PageID.98-137). In a written decision dated January
10, 2014, the ALJ determined that Plaintiff was not disabled.
(PageID.200-12). The Appeals Council remanded the matter on
the ground that the ALJ's decision was not supported by
the record. (PageID.217-20).
September 10, 2015, ALJ Grit conducted a second
administrative hearing at which Plaintiff and a vocational
expert testified. (PageID.138-83). In a written decision
dated December 24, 2015, the ALJ again determined that
Plaintiff was not disabled. (PageID.72-90). The Appeals
Council declined to review the ALJ's decision, rendering
it the Commissioner's final decision in the matter.
(PageID.32-38). Plaintiff subsequently initiated this appeal
pursuant to 42 U.S.C. § 405(g), seeking judicial review
of the ALJ's decision.
insured status expired on March 31, 2015. (PageID.74). To be
eligible for Disability Insurance Benefits under Title II of
the Social Security Act, Plaintiff must establish that he
became disabled prior to the expiration of his insured
status. See 42 U.S.C. § 423; Moon v.
Sullivan, 923 F.2d 1175, 1182 (6th Cir. 1990).
OF THE ALJ'S DECISION
social security regulations articulate a five-step sequential
process for evaluating disability. See 20 C.F.R.
'' 404.1520(a-f), 416.920(a-f). If the
Commissioner can make a dispositive finding at any point in
the review, no further finding is required. See 20
C.F.R. '' 404.1520(a), 416.920(a). The regulations
also provide that if a claimant suffers from a nonexertional
impairment as well as an exertional impairment, both are
considered in determining his residual functional capacity.
See 20 C.F.R. '' 404.1545, 416.945.
burden of establishing the right to benefits rests squarely
on Plaintiff's shoulders, and he can satisfy his burden
by demonstrating that his impairments are so severe that he
is unable to perform his previous work, and cannot,
considering his age, education, and work experience, perform
any other substantial gainful employment existing in
significant numbers in the national economy. See 42
U.S.C. § 423(d)(2)(A); Cohen, 964 F.2d at 528.
While the burden of proof shifts to the Commissioner at step
five of the sequential evaluation process, Plaintiff bears
the burden of proof through step four of the procedure, the
point at which his residual functioning capacity (RFC) is
determined. See Bowen v. Yuckert, 482 U.S. 137, 146
n.5 (1987); Walters v. Comm'r of Soc. Sec., 127
F.3d 525, 528 (6th Cir. 1997) (ALJ determines RFC at step
four, at which point claimant bears the burden of proof).
determined that Plaintiff suffers from: (1) obesity; (2)
status-post bilateral shoulder surgeries; (3) degenerative
changes, right shoulder; (4) chronic pain; (5) asthma; (6)
degenerative changes and trochanteric bursitis, left hip; and
(7) depression/anxiety, severe impairments that whether
considered alone or in combination with other impairments,
failed to satisfy the requirements of any impairment
identified in the Listing of Impairments detailed in 20
C.F.R., Part 404, Subpart P, Appendix 1. (PageID.75-77).
respect to Plaintiff's residual functional capacity, the
ALJ found that Plaintiff retained the ability to perform work
subject to the following limitations: (1) he can lift/carry
and push/pull 10 pounds occasionally and less than 10 pounds
frequently; (2) during an 8-hour workday, he can sit and
stand/walk for six hours each; (3) he cannot crawl or climb
ladders, ropes, or scaffolds; (4) he can frequently stoop,
crouch, kneel, and climb ramps/stairs; (5) he cannot perform
overhead work with his right upper extremity; (6) he cannot
perform frequent overhead work with his left upper extremity;
(7) he must avoid all exposure to vibration, extreme cold,
and dampness; (8) he must avoid more than occasional exposure
to fumes, dusts, gases, odors, poor ventilation, and
dangerous moving machinery; (9) he cannot work at unprotected
heights; (10) he can understand, remember, and perform simple
tasks; and (11) he can make simple work-related decisions and
adapt to routine changes in the workplace. (PageID.77).
found that Plaintiff cannot perform his past relevant work at
which point the burden of proof shifted to the Commissioner
to establish by substantial evidence that a significant
number of jobs exist in the national economy which Plaintiff
could perform, his limitations notwithstanding. See
Richardson, 735 F.2d at 964. While the ALJ is not
required to question a vocational expert on this issue,
“a finding supported by substantial evidence that a
claimant has the vocational qualifications to perform
specific jobs" is needed to meet the burden.
OBanner v. Secy of Health and Human Services, 587
F.2d 321, 323 (6th Cir. 1978) (emphasis added). This standard
requires more than mere intuition or conjecture by the ALJ
that the claimant can perform specific jobs in the national
economy. See Richardson, 735 F.2d at 964.
Accordingly, ALJs routinely question vocational experts in an
attempt to determine whether there exist a significant number
of jobs which a particular claimant can perform, his
limitations notwithstanding. Such was the case here, as the
ALJ questioned a vocational expert.
vocational expert testified that there existed approximately
520, 000 jobs in the national economy which an individual
with Plaintiffs RFC could perform, such limitations
notwithstanding. (PageID.169-74). This represents a
significant number of jobs. See Born v. Sec'y of
Health and Human Services, 923 F.2d 1168, 1174 (6th Cir.
1990); Hall v. Bowen, 837 F.2d 272, 274 (6th Cir.
1988); Martin v. Commissioner of Social Security,
170 Fed.Appx. 369, 374 (6th Cir., Mar. 1, 2006). Accordingly,
the ALJ concluded that Plaintiff was not entitled to
The ALJ's Credibility Assessment is not Supported by
second administrative hearing, Plaintiff testified that his
ability to function was more limited than the ALJ recognized.
(PageID.144-69). The ALJ, however, discounted Plaintiff's
allegations on the ground that Plaintiff's allegations
“are not entirely credible.” (PageID.77-79).
Plaintiff argues that he is entitled to relief because the
ALJ's assessment of his credibility is not supported by
substantial evidence. The Court agrees.
Sixth Circuit has long recognized, “pain alone, if the
result of a medical impairment, may be severe enough
to constitute disability.” King v. Heckler,
742 F.2d 968, 974 (6th Cir. 1984) (emphasis added); see
also, Grecol v. Halter, 46 Fed.Appx. 773, 775
(6th Cir., Aug. 29, 2002) (same). As the relevant Social
Security regulations make clear, however, a claimant's
“statements about [his] pain or other symptoms will not
alone establish that [he is] disabled.” 20 C.F.R.
§ 404.1529(a); see also, Walters v.
Commissioner of Social Security, 127 F.3d 525, 531 (6th
Cir. 1997) (quoting 20 C.F.R. § 404.1529(a)) Hash v.
Commissioner of Social Security, 309 Fed.Appx.
981, 989 (6th Cir., Feb. 10, 2009). Instead, as the Sixth
Circuit has established, a claimant's assertions of
disabling pain and limitation are evaluated pursuant to the
First, we examine whether there is objective medical evidence
of an underlying medical condition. If there is, we then
examine: (1) whether objective medical evidence confirms the
severity of the alleged pain arising from the condition; or
(2) whether the objectively established medical condition is
of such a severity that it can reasonably be expected to
produce the alleged disabling pain.
Walters, 127 F.3d at 531 (citations omitted). This
standard is often referred to as the Duncan
standard. See Workman v. Commissioner of Social
Security, 105 Fed.Appx. 794, 801 (6th Cir., July 29,
as the Sixth Circuit has repeatedly held, “subjective
complaints may support a finding of disability only where
objective medical evidence confirms the severity of the
alleged symptoms.” Id. (citing Blankenship
v. Bowen, 874 F.2d 1116, 1123 (6th Cir. 1989)). However,
where the objective medical evidence fails to confirm the
severity of a claimant's subjective allegations, the ALJ
“has the power and discretion to weigh all of the
evidence and to resolve the significant conflicts in the
administrative record.” Workman, 105 Fed.Appx.
at 801 (citing Walters, 127 F.3d at 531).
respect, it is recognized that the ALJ's credibility
assessment “must be accorded great weight and
deference.” Workman, 105 Fed.Appx. at 801
(citing Walters, 127 F.3d at 531); see
also, Heston v. Commissioner of Social
Security, 245 F.3d 528, 536 (6th Cir. 2001) (“[i]t
is for the [Commissioner] and his examiner, as the
fact-finders, to pass upon the credibility of the witnesses
and weigh and evaluate their testimony”). It is not for
this Court to reevaluate such evidence anew, and so long as
the ALJ's determination is supported by substantial
evidence, it must stand. The ALJ found Plaintiff's
subjective allegations to not be fully credible, a finding
that should not be lightly disregarded. See Varley v.
Sec'y of Health and Human Services, 820 F.2d 777,
780 (6th Cir. 1987). As the Sixth Circuit has stated,
“[w]e have held that an administrative law judge's
credibility findings are virtually unchallengeable.”
Ritchie v. Commissioner of Social Security, 540
Fed.Appx. 508, 511 (6th Cir., Oct. 4, 2013) (citation
the ALJ is not permitted to make credibility determinations
based upon “an intangible or intuitive notion about an
individual's credibility.” Rogers v.
Commissioner of Social Security, 486 F.3d 234, 247 (6th
Cir. 2007). Instead, the ALJ's rationale for discrediting
a claimant's testimony “must be sufficiently
specific to make clear to the individual and to any
subsequent reviewers the weight the adjudicator gave to the
individual's statements and the reasons for that
weight.” Id. at 248. Accordingly,
“blanket assertions that the claimant is not believable
will not pass muster, nor will explanations as to credibility
which are not consistent with the entire record and the
weight of the relevant evidence.” Id.
ALJ's assessment of Plaintiff's credibility falls
short because it is premised upon a selective citation to the
record, a mischaracterization of much of the record, and a
failure by the ALJ to recognize the deterioration in
Plaintiff's condition subsequent to her initial decision.
For example, on January 28, 2013, Plaintiff completed a
report in which he described his ability to function.
(PageID.399-410). In this report, Plaintiff reported that he
could walk “maybe a half mile.” (PageID.401).
Treatment notes dated October 17, 2012, indicate that
Plaintiff was then riding a bicycle for 30-60 minutes three
times weekly. (PageID.578). In her December 24, 2015
decision, the ALJ cited to this evidence as support for her
decision to discredit Plaintiff's testimony offered at
the September 10, 2015 hearing. (PageID.79).
ALJ's reliance on this evidence, however, is
unpersuasive. The ALJ ignored Plaintiff's assertion in a
June 29, 2015 function report that he was unable to walk
“for any amount of time” unless he was able to
“hold [his shoulder] close to [his] body.”
(PageID.476). The ALJ ignored Plaintiff's testimony at
the second hearing that he was no longer able to ride a
bicycle because his physical condition had deteriorated.
(PageID.151-53). These assertions by Plaintiff are consistent
with the medical record which indicates that Plaintiff's
condition deteriorated following the ALJ's initial
decision. Prior to the ALJ's initial decision, Plaintiff
underwent several shoulder surgeries. (PageID.493-94, 498-99,
606, 647-48). Following the ALJ's initial decision,
however, Plaintiff's condition deteriorated necessitating
yet another shoulder surgery. (PageID.734-36, 765-67,
851-52). The ALJ appears to have ignored this evidence.
support of her decision to discredit Plaintiff's
testimony, the ALJ also stated that “the evidence also
showed that he overused his medication despite a conversation
with a physician that he should not do so.”
(PageID.77). In support of this assertion, the ALJ cited to a
March 18, 2014 treatment note by Edwin Kremer, Ph.D.
(PageID.77, 733). There is nothing in this treatment note,
however, indicating that Plaintiff was overusing or misusing
his medication. (PageID.733). Rather, Dr. Kremer noted that
he emphasized to Plaintiff “the importance of balance
between pharmacotherapy and behavioral management.”
(PageID.733). While it is perhaps not unreasonable to
interpret Dr. Kremer's statement as suggesting that
Plaintiff was “overusing” his medication, it is
just as likely that Dr. Kremer, apparently trained in
psychiatry rather than medicine, simply believed that
Plaintiff would benefit from a greater emphasis on
“behavioral management” techniques, an
interpretation which does not rely on, or imply, a conclusion
that Plaintiff was “overusing” his medication.
That the ALJ adopted an interpretation of Dr. Kremer's
statement neither compelled by logic nor supported by the
record constitutes a mischaracterization of the record which
further detracts from the supportability of her credibility
further support of her credibility assessment, the ALJ, again
citing to the function report Plaintiff completed in January
2013, stated “[Plaintiff] admitted he played cards
daily, shopped for groceries on a weekly basis, used a
computer, and prepared his own simple meals.”
(PageID.78). The ALJ's characterization of
Plaintiff's reported activities is misleading and
inaccurate. While Plaintiff acknowledged performing, certain
limited activities, he indicated that he performed such
either for very limited periods of time or completely with
his left arm. (PageID.118, 122, 399-410). The ALJ's
statement that, “[u]ndoubtedly, such activities would
have required the use of [Plaintiff's] right arm, which
diminishes the credibility of his report of intense pain,
” (PageID.78), is little more than unsubstantiated
speculation. The ALJ also ignored the function report
Plaintiff completed in June 2015, in which he asserts that
his ability to function has further diminished.
(PageID.472-78). As previously noted, this particular
assertion is consistent with the medical record.
the ALJ's assessment of Plaintiff's hunting and
fishing activities is even less persuasive. At the initial
administrative hearing, the following exchange occurred
between Plaintiff and his attorney:
Q You testified, initially, that you had fished at some point
Q Is your fishing or your ability to fish different than it
used to be?
A It is, drastically.
Q Could you explain that a little bit?
A I grew up on the water. I had a boat at the age of ten.
Fishing is something that kept me out of trouble all the
years when I was younger, growing up. And love to bass fish.
I love to cast. I love the art of fooling a fish into
striking something that isn't real. Can't cast
anymore. And now I do more - - when I go out, we ...