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Crandall v. Commissioner of Social Security

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

June 19, 2019

SUSAN CRANDALL, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          TERRENCE G. BERG DISTRICT JUDGE.

          REPORT AND RECOMMENDATION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT (R. 10, 11)

          Patricia T. Morris United States Magistrate Judge.

         I. RECOMMENDATION

         In 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.

         II. REPORT

         A. Introduction and Procedural History

         This is 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.[1] (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).

         Plaintiff 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).

         B. Standard of Review

          The 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).

         The 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 conclusion.” Id.

         C. Framework for Disability Determinations

         Under 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)).

         D. ALJ Findings

         Following 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.

         E. Administrative Record

         1. Medical Evidence

          In 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).

         The 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. (Id.).

         About a 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).

         Plaintiff 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).

         The 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).

         The 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.).

         Later 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. (Id.).

         Plaintiff 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 PageID.495).

         On 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.).

         In 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. (Id.).

         Plaintiff 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 ...


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