United States District Court, E.D. Michigan, Southern Division
HONORABLE ROBERT H. CLELAND JUDGE
REPORT AND RECOMMENDATION ON CROSS-MOTIONS FOR
SUMMARY JUDGMENT [14, 17]
R. GRAND UNITED STATES MAGISTRATE JUDGE
Robert Clark (âClarkâ) brings this action pursuant to 42
U.S.C. Â§ 405(g), challenging the final decision of Defendant
Commissioner of Social Security (âCommissionerâ) denying his
applications for Disability Insurance Benefits (âDIBâ) and
Supplemental Security Income (âSSIâ) under the Social
Security Act (the âActâ). 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. Â§ 636(b)(1)(B).
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
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.
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.
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).
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).
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).
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'
The ALJ's Application of the Disability Framework
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
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
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 ...