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Tyrrell v. Commissioner of Social Security

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

January 3, 2018

THOMAS TYRRELL, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION AND ORDER GRANTING PLAINTIFF'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 plaintiff's motion for summary judgment [docket entry 10]. Defendant has not responded to this motion or filed a summary judgment motion of her own. Rather, after plaintiff filed his motion for summary judgment, the parties filed a stipulation in which they agree “that the Court should enter an order remanding the above-captioned matter” with instructions that “the ALJ . . . conduct a new hearing and issue a new decision” [docket entry 13]. The parties' stipulation does not indicate why a new hearing and decision are necessary. For the reason explained below, the Court agrees that defendant's final decision in this matter is not supported by substantial evidence and that the matter must be remanded so that defendant may correct a number of errors.

         Plaintiff has brought this action under 42 U.S.C. § 405(g) to challenge defendant's final decision denying his applications for Supplemental Security Income and Social Security disability insurance benefits. An Administrative Law Judge (“ALJ”) held a hearing in October 2015 (Tr. 667-702) and issued a decision denying benefits in June 2016 (Tr. 76-90). This became defendant's final decision in July 2017 when the Appeals Council denied plaintiff's request for review (Tr. 1-4).

         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 the ALJ's decision, plaintiff was 44 years old. He has a high school education (Tr. 675) and work experience as a maintenance repairer (Tr. 696). Plaintiff claims he has been disabled since February 2013 due to back pain (Tr. 784, 813). The ALJ found that plaintiff's severe impairments are “congenital spina bifida; disorder of the lumbar spine, status post spinal fusion; and impingement syndrome of the left shoulder” (Tr. 81). He found that plaintiff cannot perform his past work, but that he has the residual functional capacity (“RFC”) to perform a limited range of unskilled, sedentary work (Tr. 81-82).[1] 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 work as an administrative support clerk, surveillance system monitor, or sorter (Tr. 89). 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. 89-90).

         Having reviewed the administrative record and the parties' briefs, the Court finds that the ALJ's decision in this matter is not supported by substantial evidence for the following reasons. First, the ALJ failed to adequately consider the side effects of plaintiff's medications. During the relevant time frame, plaintiff was prescribed a number of medications including Percocet, Robaxin, Neurontin (Gabapentin), Oxycodone, Morphine, Valium, Tizanidine, and Lidocaine patch (Tr. 17, 25, 44, 103, 240, 1201, 1228, 1380, 1510), some of which have known side effects including dizziness and drowsiness. Plaintiff testified that “[w]atching TV is kind of tough with the medications I'm on” because “[i]n a half-hour span, I'll nod out a couple of different times” (Tr. 692). On his function report, plaintiff indicated that certain of his medications cause him dizziness, drowsiness, and blurred vision (Tr. 829).

         The ALJ neglected to develop the record as to this medically and vocationally significant issue. The ALJ asked plaintiff no questions about his medications or his medication side effects. In his written decision, the ALJ acknowledged that plaintiff “tries to watch some television but he said that this is hard because his medications make it hard to focus” (Tr. 83), but he failed to acknowledge plaintiff's testimony that his medications cause him to fall asleep “a couple of different times” during a 30-minute period. The ALJ apparently believed that plaintiff experiences some medication side effects, as he found that plaintiff's “medication regimen . . . could reasonably keep the claimant off-task up to 10% of the workday” (Tr. 87). However, the ALJ did not make any findings as to what medications plaintiff has taken since the alleged onset date (and at what dosage levels) or which side effects he experiences. Nor did the ALJ explain how he arrived at this percentage figure.

         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 (1) determine which medications plaintiff was taking during the relevant time period, and at what dosages, (2) make findings as to the nature and severity of these medications' side effects and revise plaintiff's RFC accordingly, (3) explain his reasoning for translating the impact of plaintiff's medication side effects into a particular percentage figure, and (4) incorporate these findings in proper hypothetical questions to the VE to determine whether work exists in significant numbers that can be performed by a person such as plaintiff experiencing such side effects.

         Second, the decision in this matter is flawed, and remand is required, because the ALJ failed to explain adequately why he rejected plaintiff's testimony concerning his need to lie down periodically during the day. Plaintiff testified that due to his back and leg pain, he must change position frequently, moving from his bed to a chair to a couch, and that on a usual day he lies down three times for 45-60 minutes each time (Tr. 692). Although the ALJ did not find plaintiff to lack credibility, he concluded that “the record fails to show any complaints that would justify the need to lie down during the day” (Tr. 87). The ALJ then found that “the claimant's complaints of pain could reasonably distract the claimant up to 10% of the workday” (Tr. 88).

         The ALJ's statement that “the record fails to show any complaints that would justify the need to lie down during the day” defies belief. The ALJ himself noted that “the claimant has a well-supported history of discogenic syndrome, lumbar radiculopathy, cervical myelopathy with cervical radiculopathy, left hip bursitis, thoracic compression fracture, and spina bifida, which have required ongoing treatment” (Tr. 83). The ALJ then provided a rather detailed (4-page, single-spaced) summary of this medical history (Tr. 83-87). The 2, 030-page record in this case documents plaintiff's three spinal surgeries (two lumbar fusions and one cervical laminectomy); regular and frequent visits to a pain clinic for treatment (including epidural injections, zhizotomies, nerve root block, back bracing, a TENS unit, and various medications) for back, leg, and neck pain; a course of physical therapy; and numerous visits to the ER for back and leg pain and numbness. Throughout the medical records plaintiff's back and leg pain level is characterized as “significant, ” “severe, ” and “acute” (e.g., Tr. 65, 103, 969, 1218, 1268, 1318) and plaintiff has consistently reported pain levels at 6 to 10 on a scale of 1 to 10 (e.g., Tr. 1361, 1365, 1380, 1382, 1398, 1400, 1532, 1573, 1600). The objective evidence (MRIs, CTs, x-rays) of bulging discs, herniated discs, torn discs, and other spinal deformities is abundant.

         In light of this evidence, the ALJ plainly erred in finding that “the record fails to show any complaints that would justify the need to lie down during the day” (Tr. 87). On remand, the ALJ must reconsider this finding and either accept plaintiff's testimony regarding his need to lie down or provide a reasoned basis for rejecting it. To the extent the ALJ finds that plaintiff needs to lie down, he must quantify the need and revise his RFC assessment of plaintiff and his hypothetical questions to the VE accordingly. The ALJ must also explain his reasoning for translating the nature and severity of plaintiff's pain into a particular percentage of the workday during which plaintiff would be “off task” or “distracted.”

         Third, the decision in this matter is not supported by substantial evidence and remand is required because the ALJ did not include in his RFC assessment and in his hypothetical question to the VE all of the findings he made regarding plaintiff being “off task.” One aspect of the ALJ's RFC assessment is that plaintiff “requires work that allows [him] to be off-task 10% of the workday” (Tr. 82), and this is the figure the ALJ included in his hypothetical question to the VE (Tr. 699). However, it appears that the ALJ found that plaintiff's medication side effects “could reasonably keep [him] off-task up to 10% of the workday” and, in addition, that his “complaints of pain could reasonably distract [him] up to 10% of the workday” (Tr. 87-88). These percentage figures (which, as noted above, are themselves not adequately explained) together come to ...


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