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 13 and 15]. 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 her applications
for social security disability benefits and supplemental
security income benefits. An Administrative Law Judge
(“ALJ”) held a hearing in April 2018 (Tr. 40-67)
and issued a decision denying benefits in May 2018 (Tr.
13-33). This became defendant's final decision in October
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 forty-seven
years old (Tr. 32). She has a high school education and work
experience as an automotive assembler, office clerk, and
security guard (Tr. 45, 58). Plaintiff claims she has been
disabled since May 2014 due to epilepsy, right shoulder
issues, migraines, and depression (Tr. 400). The claimed
disability onset date coincides with the date plaintiff
experienced a seizure for which she was hospitalized for two
days (Tr. 497).
found that plaintiff's severe impairments are
“degenerative disc disease of the cervical spine,
osteoarthritis of the right hip, seizure disorder, headaches,
obesity, hypertension, and major depressive disorder”
(Tr. 20). The ALJ further found that despite these
impairments plaintiff has the residual functional capacity
(“RFC”) to perform a limited range of light
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 a laundry sorter, office helper, or
inspector (Tr. 67). The ALJ cited this testimony as evidence
that work exists in significant numbers that plaintiff could
perform and determined that she is not disabled (Tr. 33).
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 Cozaar (Losartan), Keppra
(Levetiracetam), Topamax (Topiramate), Lisinopril, Lovenox,
Hydrocodone-acetaminophen, Belviq (Lorcaserin), Imitrex
(Sumatriptan), Lamictal (Lamotrigine), Trileptal
(Oxcarbazepine), Ativan (Lorazepam), Nortriptyline (Pamelor),
Xanax, Vimpat (Lacosamide), Trazodone (Desyrel), Sumatriptan,
Hyzaar (Losartan-hydrochlorothiazide), Norco
(Hydrocodone-acetaminophen), Cymbalta, Ambien (Zolpidem),
Catapres (Clonidine), Famotidine, Norvasc, Zofran, Estrace
(Estradiol), Haldol (Haloperidol), Lexapro, Remeron
(Mirtazapine), Atarax (Hydroxyzine hydrochloride), Restoril
(Temazepam), Cyclobenzaprine, and Adipex (Tr. 402, 426, 490,
506, 523, 529-30, 538-40, 544, 547, 586, 601-02, 618, 628,
652, 656, 667, 731, 739, 741, 744, 764-65, 768, 775, 781-82,
793, 807-08, 827, 835, 845, 870-71), some of which have known
side effects. On her function report, plaintiff reported that
one of her medications causes her “los[s] of
memory” and “slurring speech” (Tr. 416,
436). She reported to one of her physicians that she believed
Lamictal was causing her memory problems and fatigue, and
that two of her other medications were “causing
breakthrough seizures or side effects” (Tr. 538).
ALJ's failure to make any findings as to this issue 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 of
plaintiff's obesity on her other impairments. The ALJ
found that obesity is one of plaintiff's severe
impairments (Tr. 20) and that her obesity “is
severe for [sic] exacerbating the pain and mobility
limitations stemming from her musculoskeletal disorders.
However, the claimant's combined impairment, including
obesity, do not cause disabling limitations” (Tr. 20).
This finding fails to comply with the regulations requiring
ALJs to consider the effects of a claimant's obesity at
all steps of the sequential evaluation process. 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.”). It does not suffice for the ALJ to find
that plaintiff's obesity exacerbates her pain and
“mobility limitations” without explaining the
extent of this exacerbation and the effect on her RFC. On
remand, the ALJ must make findings as to the effect of
plaintiff's obesity on her other impairments. In
particular, the ALJ must determine the extent to which
plaintiff's obesity exacerbates her back and hip pain
and/or diminishes her 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 plaintiff's right hip
impairment. While the ALJ found that “osteoarthritis of
the right hip” is one of plaintiff's severe
impairments (Tr. 20), he also found that plaintiff has the
ability to do light-level work which, as noted above,
involves a significant amount of standing and walking.
Substantial evidence does not support the finding that
plaintiff can sit and stand throughout an eight-hour work
day. A CT scan in October 2015 showed “[m]oderate
posterior medial osteoarthritis of the right hip” with
“moderately severe joint space narrowing of the
posterior medial joint space” (Tr. 581). The same
month, an occupational therapist noted that plaintiff was
able to sit for twenty-eight minutes before needing to change
position and that she was able to stand for thirteen minutes
before needing to sit (Tr. 553). This occupational therapist
opined that in an eight-hour work day plaintiff could sit for
three hours, stand for one hour, and walk for forty minutes
(Tr. 558). Plaintiff has received a number of injections to
treat her right hip degenerative joint disease (Tr. 676-91).
When plaintiff saw Dr. Abdulah Omari, M.D., at Oakwood
Orthopaedic Services in March 2016, her chief complaint was
“can't stand on right leg” (Tr. 712). Another
of plaintiff's treating physicians, Dr. Perez, M.D.,
noted in September 2016 that plaintiff “could not stand
on rt hip, sec to pain” (Tr. 844). At the hearing,
plaintiff testified that she can sit for five minutes before
needing to stand, and that she can stand for five to ten
minutes but cannot put any pressure on her right leg (Tr.
55). Even Dr. Katherine Karo, D.O., who examined plaintiff in
November 2017 at defendant's request, opined that
plaintiff can sit, stand, or walk for just thirty minutes at
a time, and that in an eight-hour work day she can do each of
these activities for a total of only three hours (Tr. 632).
light of this evidence, no reasonable fact-finder could
determine that plaintiff has the ability to sit or stand
uninterruptedly throughout an eight-hour work day. At a
minimum, it would appear that plaintiff would have to be
permitted to sit or stand at her option, yet the ALJ did not
include this limitation in his RFC evaluation or in his
hypothetical questions to the VE. It is also doubtful whether
plaintiff can do light-level work, even with a sit-stand
option, given plaintiff's limited ability to sit, stand,
and walk, but it will be for the ALJ to make this
determination. On remand, the ALJ must reconsider all of the
evidence regarding plaintiff's right hip osteoarthritis,