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Clark v. Saul

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

June 28, 2019

RONALD CLARK, Plaintiff,
v.
ANDREW SAUL, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

          HONORABLE ROBERT H. CLELAND JUDGE

          REPORT AND RECOMMENDATION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT [14, 17]

          DAVID R. GRAND UNITED STATES MAGISTRATE JUDGE

         Plaintiff Robert Clark (“Clark”) brings this action pursuant to 42 U.S.C. § 405(g), challenging the final decision of Defendant Commissioner of Social Security (“Commissioner”) denying his applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under the Social Security Act (the “Act”). Both parties have filed summary judgment motions (Docs. #14, #17), which have been referred to this Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

         I. RECOMMENDATION

         For the reasons set forth below, the Court finds that substantial evidence does not support the Administrative Law Judge's conclusion that Clark is not disabled under the Act from the onset date through February 15, 2015. Accordingly, the Court RECOMMENDS that the Commissioner's Motion for Summary Judgment (Doc. #17) be DENIED, Clark's Motion for Summary Judgment (Doc. #14) be GRANTED IN PART, and that, under sentence four of 42 U.S.C. §405(g), the case be REMANDED for further proceedings consistent with this Report and Recommendation.

         II. REPORT

         A. Background

         Clark was 48 years old at the time of his alleged onset date of March 3, 2012. At 5'9” tall, he weighed approximately 175 pounds during the relevant time period. (Tr. 356). He received an education through eleventh grade. (Tr. 357). He reported previous work as a cook, painting car parts, plastic extruder operator, supervisor of plastics, assistant foreman of plastics, and, most recently, a roofer. (Tr. 70, 117, 357-58). On February 28, 2012, Clark fell 28 feet off a roof on which he was working. (Tr. 494). Among other injuries, he fractured multiple ribs and vertebrae, dislocated his right shoulder and suffered a “massive rotator cuff tear, ” and suffered a pneumothorax. (Tr. 495, 631-34, 637). As discussed below, over the next 18 months, Clark underwent extensive treatment for his injuries (particularly those to his shoulder), spent a few dozen days in the hospital (sometimes due to involuntary admissions), and attempted suicide. Thereafter, on September 4, 2013, Clark filed his application for DIB and SSI, alleging disability due to the aforementioned problems, as well as arthritis in his hips and back, and mental impairments. (Tr. 356).

         Clark's applications for DIB and SSI were denied at the initial level in November 2013 (Tr. 127-52), after which he timely requested an administrative hearing, which was held on February 5, 2015 before ALJ Kathleen Eiler. (Tr. 52-75). Clark appeared pro se before ALJ Eiler. (Id.). On December 3, 2015, ALJ Eiler issued a written decision finding that Clark is not disabled under the Act. (Tr. 153-175). Clark retained counsel, who filed a request for review of ALJ Eiler's denial, and on June 30, 2016, the Appeals Council denied review. (Tr. 176-78). Clark then filed a formal motion to reopen the Appeals Council's decision (Tr. 415-38), and on April 20, 2017, the Appeals Council vacated ALJ Eiler's decision and remanded the matter, explaining:

The hearing decision finds, Finding 5, that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(a) and 416.967(b), except that the claimant, amongst other limitations, is limited to “minimal, superficial interaction with the general public.” The phrase “minimal, superficial interaction” is vague and does not sufficiently describe the claimant's mental residual functional capacity. The decision must indicate whether the individual can perform the work-related mental activities generally required by competitive remunerative work, i.e., the abilities to: understand, carry out, and remember instructions; use judgment in making work related decisions; respond appropriately to supervision, coworkers, and work situations; and accommodate changes in a routine work setting (20 CFR 404.1545(c) and 416.945(c) and Social Security Rulings 85-16 and 96-8p).
New evidence submitted with the request for review suggests additional loss of functionality due to impairments associated with the claimant's lumbar spine and hips. X-rays taken on February 16, 2015 revealed severe degenerative disc disease at the L4-5 level as well as narrowing joint space of the left hip and possible early avascular necrosis of the right femoral head, and the claimant was observed with stiffness in the lumbar spine and bilateral hip stiffness, much more on the left side. On February 12, 2016, Brian de Beaublean, M.D., a treating physician, noted that he did not think that continuing physical therapy or proceeding with conservative treatment would be beneficial and scheduled the claimant for a left hip total replacement. This new evidence of the claimant's impairments warrants consideration on remand.

(Tr. 181-83). The Appeals Council also ordered the ALJ on remand to, “[o]btain additional evidence concerning claimant's medically determinable impairments in order to complete the administrative record in accordance with the regulatory standards regarding consultative examinations and existing medical evidence, ” to “[g]ive further consideration to the claimant's maximum residual functional capacity and provide appropriate rationale with specific references to evidence of record in support of the asserted limitations, ” and, finally, “[i]f warranted by the expanded record, obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base. . .” (Tr. 182). Per Clark's brief, by the time the matter was remanded, ALJ Eiler had been transferred to a new location and the matter was assigned to ALJ Sarah Zimmerman (hereafter, the “ALJ”). (Doc. #14 at 5). The ALJ then set a hearing date of September 8, 2017.

         On Friday September 1, 2017, one full week before the September 8th hearing date, but - due to the intervening Labor Day holiday - one business day short of the Regulations' “five business day” requirement, Clark's counsel (who still represents him in his instant appeal) submitted a letter to the ALJ, along with certain medical records, and an 18-page detailed summary of the medical evidence of record. (Tr. 467-93). Counsel also indicated that he was awaiting medical evidence from five providers which he described as “critically important to this claim, ” and requested “additional time of thirty days to complete the record or, in failing that, that the matter be adjourned for a period to allow us to obtain these records.” (Tr. 467-68).

         Despite this request, the hearing before the ALJ was held a week later on September 8, 2017. At the hearing, the ALJ stated that she reviewed only the first page of counsel's September 1, 2017 letter, and that she “stopped with the first page” and did not examine any of the accompanying evidence because the first page of the letter did not, in her opinion, “have a reason for the lateness that [she] felt fell within one of the exceptions . . .” (Tr. 80-81). For the same reason, the ALJ denied Clark's request to adjourn the hearing so that he could obtain additional records. (Tr. 84-85, 468). Ultimately, the ALJ stated that she would take under advisement the decision of whether to admit Clark's late-submitted evidence. (Tr. 82). She then heard the testimony of Clark, vocational expert (“VE”) Susan Roe, and Clark's girlfriend, Annette Butterfield. (Tr. 76-126).

         On October 23, 2017, the ALJ issued a partially favorable decision, finding that beginning on February 16, 2015, Clark was disabled, but that he was not disabled prior to that date. (Tr. 31-33). In her decision, the ALJ wrote that she was “declin[ing] to admit the evidence submitted [less than] [sic] five business days prior to the hearing.” (Tr. 18-19). On April 30, 2018, the Appeals Council denied review. (Tr. 1-3). Clark timely filed for judicial review of the final decision on June 29, 2018. (Doc. #1).

         The Court has thoroughly reviewed the transcript in this matter, including Clark's medical record, function and disability reports, and testimony as to his conditions and resulting limitations. Instead of summarizing that information here, the Court will make references and provide citations to the transcript as necessary in its discussion of the parties' arguments.

         B. The ALJ's Application of the Disability Framework Analysis

         Under the Act, DIB and SSI are available only for those who have a “disability.” See Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). The Act defines “disability” as 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 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Commissioner's regulations provide that a disability is to be determined through the application of a five-step sequential analysis:

Step One: If the claimant is currently engaged in substantial gainful activity, benefits are denied without further analysis.
Step Two: If the claimant does not have a severe impairment or combination of impairments that “significantly limits . . . physical or mental ability to do basic work activities, ” benefits are denied without further analysis.
Step Three: If the claimant is not performing substantial gainful activity, has a severe impairment that is expected to last for at least twelve months, and the severe impairment meets or equals one of the impairments listed in the regulations, the claimant is conclusively presumed to be disabled regardless of age, education, or work experience.
Step Four: If the claimant is able to perform his or her past relevant work, benefits are denied without further analysis.
Step Five: Even if the claimant is unable to perform his or her past relevant work, if other work exists in the national economy that the claimant can perform, in view of his or her age, education, and work experience, benefits are denied.

Scheuneman v. Comm'r of Soc. Sec., 2011 WL 6937331, at *7 (E.D. Mich. Dec. 6, 2011) (citing 20 C.F.R. § 404.1520); see also Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001). “The burden of proof is on the claimant throughout the first four steps …. If the analysis reaches the fifth step without a finding that claimant is not disabled, the burden transfers to the ...


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