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Smith v. Commissioner of Social Security

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

May 15, 2019

SEAN LAMAR SMITH SR., 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 17 and 18]. 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 decision denying his application for social security disability benefits. An Administrative Law Judge (“ALJ”) held a hearing in October 2017 (Tr. 41-72) and issued a decision denying benefits in February 2018 (Tr. 8-25). This became defendant's final decision in September 2018 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 Fed.Appx. 636, 640-41 (6th Cir. 2013).

         At the time of the ALJ's decision, plaintiff was forth-five years old (Tr. 23). He has a college education and work experience as a recycler (Tr. 46, 65). Plaintiff claims he has been disabled since December 2014 (Tr. 155), when he was involved in a rollover automobile accident (Tr. 268), due to back injury, neck injury, shoulder injury, high blood pressure, depression, blurry vision, headaches, TMJ, dizziness, and mental trauma (Tr. 158).

         The ALJ found that plaintiff's severe impairments are “residuals of a motor vehicle accident (‘MVA'); degenerative disc disease of the spine with cervical disc bulging and radiculopathy; bilateral shoulder tears, status-post left shoulder repair; temporomandibular joint disorder (‘TMJ' or ‘TMD'); hypertension; and obesity” (Tr. 14) and that his non-severe impairments are diabetes, “moderate bilateral carpal tunnel syndrome (‘CTS') and motor sensory polyneuropathy, ” “visual disturbances . . . and blurry vision, ” cholelithiasis, “sensorineural hearing loss, ” “adjustment disorder with PTSD features, ” and anxiety (Tr. 14-15). The ALJ found that despite these impairments plaintiff has the residual functional capacity (“RFC”) to perform a limited range of sedentary work.[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 perform certain unskilled jobs as an inspector, assembler, or packer (Tr. 67). The ALJ cited this testimony as evidence that work exists in significant numbers that plaintiff could perform and determined that he is not disabled (Tr. 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.

         Plaintiff's RFC evaluation is flawed for the following reasons. First, the ALJ failed to consider the side effects of plaintiff's medications. The record indicates that plaintiff takes, or at various times has taken, a number of medications, including Azor (Amlodipine-Olmesartan), Flexeril (Cyclobenzaprine), Norco (Hydrocodone), Nortriptyline, Diclofenac, Gabapentin, Omeprazole, Tramadol, Xanax, Amitiza, Benicar, Fioricet, Cambia, Oxycodone, Neurontin, and Janumet XR (Tr. 160, 180, 187, 207, 217, 263, 568, 570, 575-78, 930, 934-35, 989, 1305, 2061, 2087, 2103-2111, 2113-18, 2844, 2849, 2855, 2894, 2912, 2945-47), some of which have known side effects. On his function and disability reports, plaintiff indicated that some of his medications cause dizziness, lightheadedness, and drowsiness (Tr. 180, 187). Plaintiff also reported to his neurologist that some of his medications cause him to experience drowsiness (Tr. 929).

         The ALJ's failure to make any findings as to this issue (or to make any inquiry at the hearing at which plaintiff appeared pro se) is an error requiring remand, as 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 Fed.Appx. 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 Fed.Appx. 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 severity of these medications' side effects, if any; and adjust his RFC evaluation of plaintiff and his hypothetical question(s) to the VE, as appropriate.

         Second, the RFC evaluation is flawed because the ALJ neglected to make required findings concerning the effect, if any, of plaintiff's obesity on his other impairments. The ALJ found that obesity is one of plaintiff's severe impairments[2] (Tr. 14) and that his obesity “does not meet or medically equal any listing, singly or in combination with the other impairments” (Tr. 18). This was error because the regulations require ALJs to consider the effects of a claimant's obesity at all steps of the sequential evaluation process, not just “step three.” See SSR 02-1p; 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.00Q (“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 when assessing an individual's residual functional capacity, adjudicators must consider any additional and cumulative effects of obesity.”). On remand, the ALJ must make findings as to the effect, if any, of plaintiff's obesity on his other impairments. In particular, the ALJ must determine whether and to what extent plaintiff's obesity exacerbates his back pain and/or diminishes his ability to sit, stand, or walk. The ALJ must include any such findings in reevaluating plaintiff's RFC and, as appropriate, in framing revised hypothetical question(s) to the VE.

         Third, the RFC evaluation is flawed because the ALJ unjustifiably minimized the significance of the numbness plaintiff experiences in his fingers. The ALJ found these symptoms to be non-severe (Tr. 14) and therefore did not include them in his RFC assessment. However, plaintiff's neurologist, Dr. Nilofer Nisar, MD, reported in June 2016 that plaintiff “previously had tingling and numbness of the fourth and fifth fingers bilaterally even prior to the [April 2016 left rotator cuff] surgery, but now has tingling and numbness of the thumb and index also especially in the left hand. Patient is left-handed” (Tr. 2969). Upon EMG testing, Dr. Nisar found “electrodiagnostic evidence of moderate intensity carpal tunnel syndrome and motor-sensory neuropathy at both wrists” as well as “electrodiagnostic evidence of C5-C6 radiculopathy involving left upper extremity and C7-C8 radiculopathy involving right upper extremity” (Tr. 2969). In August 2017, Dr. Nisar confirmed these EMG results and reported that plaintiff now “has almost permanent numbness in the third, fourth and fifth fingers bilaterally” (Tr. 2963).

         In light of this evidence, plaintiff's numbness cannot be characterized as a non-severe impairment, i.e., one that is “totally groundless from a medical perspective, ” Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir.1988), or one that constitutes a “slight abnormality which has such a minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education and work experience.” Farris v. Sec'y of Health & Human Servs., 773 F.2d 85, 90 (6th Cir. 1985). Obviously, permanent numbness in six fingers is an impairment that could affect, if not preclude, plaintiff's ability to perform the jobs identified by the VE, or indeed any jobs involving the use of one's hands. On remand, the ALJ must make findings as to the severity of the numbness plaintiff experiences in his fingers and incorporate these findings in a revised RFC assessment and revised hypothetical question(s) to the VE.

         Fourth, and similarly, the RFC assessment in this matter is flawed because the ALJ neglected to make findings regarding plaintiff's headaches, which are one of the impairments plaintiff claims to be disabling (Tr. 158). In fact, plaintiff testified that his neck pain and headaches are his main medical problems (Tr. 55). On his disability report, plaintiff indicated that he has “head aches every day and the pain is sometimes unbearable” (Tr. 189). The ALJ noted this testimony (Tr. 19) as well as the fact that headaches are among the symptoms plaintiff has complained about since his rollover accident in December 2014 (Tr. 19). The ALJ also noted that plaintiff has complained of headaches to his treating physician (Tr. 19) and his neurologist (Tr. 20), and that he sought emergency room treatment for headaches on one occasion (Tr. 22). Nonetheless, the ALJ made no findings as to whether plaintiff's headaches are severe or non-severe, or how often the headaches occur or how severe they are. Oddly, the ALJ did find that plaintiff should not be exposed to “dust, fumes, odors, humidity, or wetness [or] . . . temperature extremes” so as to “reduce the potential of pain or headaches being triggered by climate change” (Tr. 21), although there is no evidence in the record of which the Court is aware to suggest that plaintiff's headaches have anything to do with such environmental factors. Rather, the evidence seems to indicate that plaintiff's headaches, which his neurologists have diagnosed as ...


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