United States District Court, E.D. Michigan, Southern Division
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.
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.
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).
§ 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).
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).
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. 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).
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.
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).
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.
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 (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.
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).
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.
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 ...