United States District Court, E.D. Michigan, Southern Division
TERRENCE G. BERG DISTRICT JUDGE.
REPORT AND RECOMMENDATION ON CROSS-MOTIONS FOR
SUMMARY JUDGMENT (R. 10, 11)
Patricia T. Morris United States Magistrate Judge.
light of the entire record in this case, IT IS
RECOMMENDED that Plaintiff's Motion for Summary
Judgment, (R. 10), be GRANTED, the
Commissioner's Motion for Summary Judgment, (R. 11), be
DENIED, and this case be REVERSED
AND REMANDED under sentence four of 42 U.S.C. §
405(g) for further proceedings consistent with this report.
Introduction and Procedural History
an action for judicial review of a final decision by the
Commissioner of Social Security denying Plaintiff Susan
Crandall's claim for Supplemental Security Income (SSI)
under Title XVI, 42 U.S.C. §§
1381-1383f. (R. 1). Pursuant to 28 U.S.C. §
636(b)(1)(B), E.D. Mich. LR 72.1(b)(3), and by Notice of
Reference, this case was referred to the undersigned
Magistrate Judge. (R. 3). Currently before the Court are
Plaintiff's and Defendant's cross-motions for summary
judgment (R. 10, 11). Plaintiff has also filed a reply, (R.
12), and Defendant filed a supplemental memorandum with the
court's permission, (R. 14).
filed her application for SSI on September 11, 2015, alleging
onset on June 1, 2003. (R. 8 at PageID.221-229). Her claim
was denied at the initial level on May 17, 2016.
(Id. at PageID.126). After an administrative hearing
was held at Plaintiff's request, (id. at
PageID.67-87), Administrative Law Judge (ALJ) Terry Michael
Banks issued a decision finding that Plaintiff had not been
under a disability from her amended alleged onset date of
March 12, 2017, through the date of the decision, February
16, 2018. (Id. at PageID.48-66). The Appeals Council
denied Plaintiff's request for review. (Id. at
PageID.36-42). This action followed. (R. 1).
Standard of Review
district court has jurisdiction to review the
Commissioner's final administrative decision pursuant to
42 U.S.C. § 405(g). The district court's review is
restricted solely to determining whether the
“Commissioner has failed to apply the correct legal
standard or has made findings of fact unsupported by
substantial evidence in the record.” Sullivan v.
Comm'r of Soc. Sec., 595 Fed.Appx. 502, 506 (6th
Cir. 2014) (internal quotation marks omitted). Substantial
evidence is “more than a scintilla of evidence but less
than a preponderance; it is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Rogers v. Comm'r of Soc.
Sec., 486 F.3d 234, 241 (6th Cir. 2007) (internal
quotation marks omitted).
court must examine the administrative record as a whole, and
may consider any evidence in the record, regardless of
whether it has been cited by the ALJ. See Walker v.
Sec'y of Health & Human Servs., 884 F.2d 241,
245 (6th Cir. 1989). The court will not “try the case
de novo, nor resolve conflicts in the evidence, nor decide
questions of credibility.” Cutlip v. Sec'y of
Health & Human Servs., 25 F.3d 284, 286 (6th Cir.
1994). If the Commissioner's decision is supported by
substantial evidence, “it must be affirmed even if the
reviewing court would decide the matter differently and even
if substantial evidence also supports the opposite
Framework for Disability Determinations
the Act, “DIB and SSI are available only for those who
have a ‘disability.'” Colvin v.
Barnhart, 475 F.3d 727, 730 (6th Cir. 2007).
“Disability” means 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 [twelve] months.
42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (DIB); 20
C.F.R. § 416.905(a) (SSI). The Commissioner's
regulations provide that disability is to be determined
through the application of a five-step sequential analysis:
(i) At the first step, we consider your work activity, if
any. If you are doing substantial gainful activity, we will
find that you are not disabled. . . .
(ii) At the second step, we consider the medical severity of
your impairment(s). If you do not have a severe medically
determinable physical or mental impairment that meets the
duration requirement . . . or a combination of impairments
that is severe and meets the duration requirement, we will
find that you are not disabled. . . .
(iii) At the third step, we also consider the medical
severity of your impairment(s). If you have an impairment(s)
that meets or equals one of our listings in appendix 1 of
this subpart and meets the duration requirement, we will find
that you are disabled. . . .
(iv) At the fourth step, we consider our assessment of your
residual functional capacity and your past relevant work. If
you can still do your past relevant work, we will find that
you are not disabled. . . .
(v) At the fifth and last step, we consider our assessment of
your residual functional capacity and your age, education,
and work experience to see if you can make an adjustment to
other work. If you can make an adjustment to other work, we
will find that you are not disabled. If you cannot make an
adjustment to other work, we will find that you are disabled.
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). “Through step four, the claimant bears the
burden of proving the existence and severity of limitations
caused by [his or] her impairments and the fact that [he or]
she is precluded from performing her past relevant
work.” Jones v. Comm'r of Soc. Sec., 336
F.3d 469, 474 (6th Cir. 2003). A claimant must establish a
medically determinable physical or mental impairment
(expected to last at least twelve months or result in death)
that rendered him or her unable to engage in substantial
gainful activity. 42 U.S.C. § 423(d)(1)(A). The burden
transfers to the Commissioner if the analysis reaches the
fifth step without a finding that the claimant is not
disabled. Combs v. Comm'r of Soc. Sec., 459 F.3d
640, 643 (6th Cir. 2006). At the fifth step, the Commissioner
is required to show that “other jobs in significant
numbers exist in the national economy that [the claimant]
could perform given [his or] her RFC [residual functional
capacity] and considering relevant vocational factors.”
Rogers, 486 F.3d at 241 (citing 20 C.F.R.
§§ 416.920(a)(4)(v), (g)).
the five-step sequential analysis, the ALJ found Plaintiff
had not been under a disability from the alleged onset date
of March 12, 2017, through the date of the decision, February
16, 2018. (R. 8 at PageID.61-62). At step one, the ALJ found
that Plaintiff had not engaged in substantial gainful
activity during the relevant period. (Id. at
PageID.54). Next, the ALJ determined Plaintiff had the
following medically determinable, non-severe impairments:
affective disorder; anxiety; alcohol addiction; personality
disorder; lumbar degenerative disc disease; right elbow mild
degenerative change; right elbow lipoma; right elbow lateral
epicondylitis; carpal tunnel syndrome; gastroesophageal
reflux disease; dizziness; and mild hearing loss.
(Id.). The ALJ found that Plaintiff did not have a
severe impairment or combination of impairments.
(Id. at PageID.54-61). Thus, the ALJ did not craft
an RFC for Plaintiff or proceed to steps four or five.
September 2011, Plaintiff saw Jamie Mulkey, a Family Nurse
Practitioner, to establish a provider. (R. 8 at PageID.377).
She complained of a bump on her right inner elbow, a foot
rash, and sharp, intermittent pelvic pain. (Id.).
Mulkey assessed her with hyperlipidemia, GERD, and a hematoma
on her right elbow, and instructed her to increase her
physical activity, follow a healthy diet, elevate her lower
legs, and apply warm moist heat to the hematoma.
(Id.). She also prescribed Mevacor and Zantac.
(Id.). A bone density study came back normal.
(Id. at PageID.384).
next most recent records seem to be from 2014. Plaintiff saw
Nurse Practitioner (NP) Rose Ross several times between April
2014 and May 2015. Relevant here, she complained of groin and
low abdominal pain several times in April 2014. (Id.
at PageID.353, 354, 356). And in May 2014, she presented with
complaints of abdominal pain and low back pain, explaining
she had fallen many years ago. (R. 8 at PageID.351). The NP
noted she was tender across her upper abdomen and referred
her for testing. (Id. at PageID.352). Because
Plaintiff was struggling with alcohol abuse, they discussed
strategies for Plaintiff to abstain from alcohol, but
Plaintiff had “very little soc[ial] support” and
no transportation to attend AA meetings. (Id. at
PageID.351-352). On a health risk assessment Plaintiff
completed the same day, she reported that she had exercised
at least 20 minutes every day for the past week.
(Id. at PageID.358). She had felt tense, anxious, or
depressed almost every day for the past 30 days.
year later, Plaintiff reported at her annual checkup that her
anxiety and depression had been stable since the last visit
and denied a depressed mood, any loss of interest or pleasure
in activities, insomnia or excessive sleepiness, the
inability to perform normal activities, a loss of energy,
feelings of worthlessness or guilt, or trouble concentrating.
(Id. at PageID.367). She had a normal mood and
affect. (Id. at PageID.368). Her physical
examination was normal except for tenderness in the
epigastric region. (Id.). The NP assessed her with
depression, onychomycosis, and low back pain, prescribed
various medications-noting Plaintiff had not been adhering to
her medication regimen- and recommended she take walks daily
and work on decreasing her smoking and alcohol intake.
(Id. at PageID.367-369). About a week later, a May
1, 2015 lumbar spine study showed “[m]ild exaggerated
lumbar lordosis, ” but “[o]therwise, no acute
abnormality in the lumbosacral spine, ” and
“[m]inimal degenerative changes in the facet joints in
the lumbar spine.” (Id. at PageID.375).
made several visits to emergency rooms in 2015. In July, she
reported with shortness of breath and pain in her left arm,
chest, back and abdomen, which had started that morning.
(Id. at PageID.443-444). She was hyperventilating.
(Id. at PageID.444). Plaintiff explained that she
had lost her husband a couple weeks prior and was under a lot
of stress. (Id.). A physical examination was normal
except that Plaintiff was anxious, and an EKG showed normal
sinus rhythm with possible prior septal wall myocardial
infarction of an undetermined age. (Id. at
PageID.447, 448). The physician diagnosed the cause as
anxiety and discharged Plaintiff in stable condition.
(Id. at PageID.447).
next month, Plaintiff visited the emergency room for anxiety,
dizziness, back pain, and a mild headache. (Id. at
PageID.459, 461). She reported that had “moments
related to recent (1 month) death of husband.”
(Id. at PageID.461). She had smoking while sitting
at a picnic, and when she stood up, she suddenly felt dizzy
and off-balance. (Id.). A physical examination was
normal, with normal range of motion on a musculoskeletal
examination, and she had a normal mood and affect with normal
behavior. (Id. at PageID.462-463). A CT scan of her
head was normal. (Id. at PageID.470). The final
diagnoses were dizziness and situational anxiety, and she was
discharged in good condition. (Id. at PageID.459).
next month, too, Plaintiff returned to the emergency room for
a headache and anxiety. (Id. at PageID.473).
Plaintiff had gone to see her doctor that day, but when she
had been told she could not be seen due to an insurance
issue, she had a panic attack. (Id. at PageID.477).
She explained that the attacks had started after her husband
died suddenly in July. (Id.). In addition to her
headache, which Plaintiff rated as a 5 out of 10 on the pain
scale, she complained of back pain, ear pain, myalgias, sinus
pressure, and an upper respiratory tract infection.
(Id. at PageID.475). She was “distressed
(crying), ” tearful, and anxious. (Id. at
PageID.476, 477). Her speech, behavior, judgment, and
cognition and memory were normal, although her mood was
anxious and thought content paranoid. (Id. at
PageID.477). About two hours after her arrival at the
emergency room, she had rested for a while and her headache
and anxiety had improved. (Id.) She had appointments
scheduled with a doctor and a therapist. (Id.).
that month, September 2015, Plaintiff began seeing Stephanie
Sethi at Monroe Community Mental Health Authority.
(Id. at PageID.507). At the psychological evaluation
with psychiatrist Kim Horn, Plaintiff reported “a lot
of anxiety.” (Id. at PageID.493). She
explained she had been suffering from alcoholism “for a
long time, ” which had worsened after she had to make
the decision to “pull the plug” for her husband
that summer. (Id.). She had since been getting
Ativan from the emergency room on a regular basis.
(Id.). Plaintiff complained of crying spells,
dizziness, and blackouts, as well as memory and concentration
issues. (Id.). And she reported “a long
history of outburst[s] and aggressive behaviors.”
(Id. at PageID.504). She slept six to eight
hours a night, usually ate well, and had been losing weight.
(Id. at PageID.493). Since August, she had been
living at her mother's house, where she felt safe; she
was close with her mother. (Id.). Horn observed
Plaintiff to have an average appearance with normal speech
rate, rhythm, and volume; good eye contact; normal kinetics;
cooperative; euthymic affect; logical thought processes;
congruent mood; poor to moderate insight; and intact
judgment. (Id. at PageID.503-504). Horn noted that
Plaintiff had suffered physical and sexual abuse throughout
her childhood. (Id. at PageID.502). Further,
Plaintiff said she had struggled with “attention
deficit” during school. (Id.). She had had
four children with her husband; all had been removed from her
care before puberty and placed in foster care.
was diagnosed with major depressive affective disorder
recurrent episode severe degree without psychotic behavior;
anxiety state unspecified; “acute alcoholic
intoxication in alcoholism continuous drinking
behavior”; nondependent cannabis abuse unspecified use
(early full remission); bereavement uncomplicated; and
unspecified personality disorder. (Id. at
October 20, 2015, Plaintiff visited Sethi for a medication
refill. (Id. at PageID.493). She ranked her anxiety
at 5 out of 10 and depression at 4 or 5. (Id.). She
had occasional suicidal ideation but denied any intent to try
suicide. (Id.). She had a lot of guilt over her
husband's death and described paranoia and mood swings.
(Id.). She had not had a drink in the past month.
(Id.). Sethi adjusted her medications and asked her
to follow up in a month. (Id.).
November 2015, Plaintiff again visited Sethi for medication
refill. (Id.). She had not had any alcohol for more
than a month. (Id.). She rated her anxiety at ¶
4 out of 10. (Id.). She denied having a suicide plan
but “wishes she wouldn't wake up.”
(Id.). Occasionally, she had “flashes of
seeing her husband” and hearing him say negative
things. (Id.). She got five or six hours of sleep a
night; some nights she slept well, and others she tossed and
turned. (Id.). Sethi noted continued improvement in
her depression and anxiety, and adjusted her medications.
returned to Sethi in December 2015. (Id. at
PageID.514). She reported that thoughts of suicide came and
went, but she was not going to act on them. (Id. at
PageID.514). She complained of poor sleep. (Id.).
Sethi considered her stable on current meds but added