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Terry v. Berryhill

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

May 18, 2018

LINDA TERRY, Plaintiff,
v.
ACTING COMMISSIONER NANCY A. BERRYHILL, Defendant.

          Honorable Paul D. Borman, Judge

          REPORT AND RECOMMENDATION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT [14, 16]

          DAVID R. GRAND, MAGISTRATE JUDGE

         Plaintiff Linda Terry (“Terry”) brings this action pursuant to 42 U.S.C. § 405(g), challenging the final decision of Defendant Commissioner of Social Security (“Commissioner”) denying her application for Disability Insurance Benefits (“DIB”) under the Social Security Act (the “Act”). Both parties have filed summary judgment motions [14, 16], which have been referred to this Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

         I. RECOMMENDATION

         For the reasons set forth below, the Court finds that the Administrative Law Judge's (“ALJ”) conclusion that Terry is not disabled under the Act is not supported by substantial evidence. Accordingly, the Court recommends that the Commissioner's motion for summary judgment [16] be DENIED; that Terry's motion for summary judgment [14] be GRANTED; and that, pursuant to sentence four of 42 U.S.C. § 405(g), this case be REMANDED to the ALJ for further proceedings consistent with this Report and Recommendation.

         II. REPORT

         A. Procedural History

         On September 14, 2011, Terry filed an application for DIB, alleging a disability onset date of September 12, 2003. (Tr. 11, 78, 85). This application was denied at the initial level. (Tr. 85). Terry filed a timely request for an administrative hearing, which was held on August 6, 2012, before ALJ Richard L. Sasena. (Tr. 22-42, 553-76). Terry, who was represented by non-attorney representative Dannelly C. Smith, testified at the hearing, as did vocational expert (“VE”) Michael E. Rosko. (Id.). At the hearing, Terry amended her alleged onset date to February 21, 2007. (Tr. 25, 557). On November 29, 2012, the ALJ issued a written decision finding that Terry is not disabled under the Act. (Tr. 8-21). On April 3, 2014, the Appeals Council denied review. (Tr. 1-5, 592-96). Terry timely filed for judicial review of the final decision on June 9, 2014. (Civil Action No. 14-12274, Doc. #1).

         On July 14, 2015, Magistrate Judge Michael Hluchaniuk issued a Report and Recommendation in which he found that remand was necessary to obtain a proper medical source opinion to support the ALJ's residual functional capacity (“RFC”) determination, and also to supplement and clarify treating physician Dr. Craig Everingham's records and opinions, which were illegible.[1] (Tr. 643-44). Because Dr. Everingham's records were illegible, Judge Hluchaniuk concluded that “there [wa]s simply no way for [him] to evaluate whether the ALJ correctly analyzed Dr. Everingham's records.” (Tr. 641-43). This was significant given that “[t]he only functional limitations in the record [we]re those found in Dr. Everingham's records, which the ALJ discredit[ed], finding them inconsistent with the medical evidence during the period at issue.”[2] (Tr. 635, 643). Magistrate Judge Hluchaniuk pointed out that there was no RFC determination in the record by a consulting physician, which led him to conclude that “the ALJ's RFC determination (at least in part) was not based on any medical opinion but was apparently formulated based on his own independent medical findings.” (Tr. 635-36, 643-44). Magistrate Judge Hluchaniuk found this problematic given that case law indicates that at an ALJ should rely on medical opinions to support a claimant's RFC rather than make his “own independent [lay] medical findings” based on his “own expertise in drawing RFC conclusions from raw medical data.” (Tr. 636-37).

         On September 28, 2015, the Honorable Arthur J. Tarnow adopted the Report and Recommendation issued by Magistrate Judge Hluchaniuk and ordered that the case be remanded under Sentence Four. (Tr. 598-611). In reviewing the Commissioner's objections, Judge Tarnow agreed with Magistrate Judge Hluchaniuk's assessment “regarding the need to update and obtain sufficient medical RFC assessments in order to evaluate [Terry's] credibility.” (Tr. 608). In addition, Judge Tarnow found that the two-part test that triggers a duty to re-contact a treating physician was met. (Tr. 609-10). He determined that it would have been easy for the ALJ to contact Dr. Everingham to resolve the ambiguity that resulted from the lack of information in the record to support Dr. Everingham's RFC opinion. (Tr. 610). As a result, Judge Tarnow ordered that “[o]n remand an updated medical opinion from [Terry's] treating physician should be obtained so that there is objective medical evidence from the claim time at issue from which to adequately assess the credibility of [Terry's] subjective information from . . . that time.” (Tr. 610-11).

         On October 20, 2015, the Appeals Council vacated the ALJ's decision and remanded the case to an ALJ “for further proceedings consistent with the order of the court, ” which included the opportunity for a hearing, taking additional steps to complete the administrative record, and issuing a new decision. (Tr. 649).

         A second administrative hearing was held on March 24, 2016, before ALJ Sasena, but it was adjourned because of issues with the ALJ's request for a medical expert. (Tr. 545-52). A third administrative hearing was held on October 19, 2016, also before ALJ Sasena. (Tr. 500-44). Terry was again represented by non-attorney representative Smith, and testified at the hearing, along with medical expert Chukwuemeka Ezike, M.D., and VE Cheryl Mosley. (Id.). On January 12, 2017, the ALJ issued a written decision finding that Terry was not disabled under the Act between February 21, 2007 (the alleged onset date)[3] and December 31, 2008 (the date last insured). (Tr. 481-99). Terry timely filed for judicial review of the final decision on May 10, 2017. (Doc. #1). The parties filed cross-motions for summary judgment (Docs. #14, #16), and Terry filed a reply. (Doc. #17).

         B. Framework for Disability Determinations

         Under the Act, DIB are available only for those who have a “disability.” See Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). The Act defines “disability” as the:

inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.

42 U.S.C. § 423(d)(1)(A). The Commissioner's regulations provide that a disability is to be determined through the application of a five-step sequential analysis:

Step One: If the claimant is currently engaged in substantial gainful activity, benefits are denied without further analysis.
Step Two: If the claimant does not have a severe impairment or combination of impairments that “significantly limits . . . physical or mental ability to do basic work activities, ” benefits are denied without further analysis.
Step Three: If the claimant is not performing substantial gainful activity, has a severe impairment that is expected to last for at least twelve months, and the severe impairment meets or equals one of the impairments listed in the regulations, the claimant is conclusively presumed to be disabled regardless of age, education, or work experience.
Step Four: If the claimant is able to perform his or her past relevant work, benefits are denied without further analysis.
Step Five: Even if the claimant is unable to perform his or her past relevant work, if other work exists in the national economy that the claimant can perform, in view of his or her age, education, and work experience, benefits are denied.

Scheuneman v. Comm'r of Soc. Sec., No. 11-10593, 2011 WL 6937331, at *7 (E.D. Mich. Dec. 6, 2011) (citing 20 C.F.R. §§ 404.1520, 416.920); see also Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001). “The burden of proof is on the claimant throughout the first four steps . . . . If the analysis reaches the fifth step without a finding that claimant is not disabled, the burden transfers to the [defendant].” Preslar v. Sec'y of Health & Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994).

         C. Background

         1. The Record

         Terry alleges disability as a result of diabetes, issues with her heart, kidney stones, having one kidney, and arthritis. (Tr. 140). At the time of the first administrative hearing, Terry was forty-nine years old.[4] (Tr. 28, 561). She was 5'9'' tall and weighed 393 pounds (she indicated that her weight fluctuated between 385 and 400 pounds). (Tr. 29, 140, 561). From 1996 to 1997, she was a housekeeping manager at Hampton Inn. (Tr. 507, 540). She last worked in 2003 as a machine operator for a manufacturing company called Honalestemer. (Tr. 507-08). In 2006, she had a kidney removed because of a large kidney stone. (Tr. 509).

         The Court has thoroughly reviewed the record in this matter, including Terry's medical record, Function Reports, Disability Reports, and testimony as to her conditions and resulting limitations. Instead of summarizing that information here, the Court will make references and provide citations to the record as necessary in its discussion of the parties' arguments.

         2. Medical Expert's Testimony

         Chukwuemeka Ezike, M.D., testified by phone as an impartial medical expert at the October 19, 2016 administrative hearing. (Tr. 521-39). Dr. Ezike, who did not examine Terry, opined that prior to December 2008 Terry had the severe impairments of morbid obesity and bilateral recurrent kidney stones that resulted in the removal of her right kidney in February 2006. (Tr. 523-24, 527). In his opinion, none of Terry's impairments during the relevant time frame met or equaled a listed impairment - in particular, Listing 6.00. (Tr. 524-25). He determined an RFC for Terry where prior to December 2008 she would have been able to lift, push, and pull twenty pounds occasionally and ten pounds frequently; sit six hours a day with normal breaks; stand and walk at least two hours a day with normal breaks; occasionally climb stars, balance, bend, stoop, crawl, and kneel; and never climb roofs, ladders, and scaffolds. (Id.). In addition, there would have been no established environmental limitations and no visual, communicative, or manipulative limitations. (Tr. 525).

         Dr. Ezike testified that Terry did have edema in 2007, which “may affect her ability to stand for a long period of time, ” but “edema in itself does not preclude employment.” (Tr. 526, 531). He explained that the limitation in the RFC that limited standing to about two hours a day “covers any kind of limitations that can arise from [INAUDIBLE] edema in combination with . . . treatment which would include . . . vascular stockings and . . . diuretics.” (Tr. 532). He stated that in his own practice he does not have patients keep their feet elevated, but it would not be “unreasonable” for a physician to instruct a patient to do so. (Tr. 533, 538). He testified that he saw no evidence indicating that before December 2008 Terry had a disturbance of gait and station “the way [he] understand[s] it.” ...


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