United States District Court, E.D. Michigan, Southern Division
Honorable Paul D. Borman, Judge
REPORT AND RECOMMENDATION ON CROSS-MOTIONS FOR
SUMMARY JUDGMENT [14, 16]
R. GRAND, MAGISTRATE JUDGE
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).
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  be
DENIED; that Terry's motion for summary judgment  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.
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).
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. (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.” (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).
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).
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).
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) 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).
Framework for Disability Determinations
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
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
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).
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. (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).
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
Medical Expert's Testimony
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).
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.” ...