Morris v. Commissioner of Social Security

          ARTHUR J. TARNOW DISTRICT JUDGE

          REPORT AND RECOMMENDATION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT (R. 12, 13)

          PATRICIA T. MORRIS UNITED STATES MAGISTRATE JUDGE

         I. RECOMMENDATION

         In light of the entire record in this case, I suggest that substantial evidence does not support the Commissioner's determination that Plaintiff is not disabled. Accordingly, IT IS RECOMMENDED that Plaintiff's Motion for Summary Judgment, (R. 12), be GRANTED, the Commissioner's Motion for Summary Judgment, (R. 13), be DENIED, and this case be REMANDED for further proceedings.

         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 Jerome Morris's claim for Disability Insurance Benefits (DIB) under Title II, 42 U.S.C. § 401 et seq. (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. 2). Currently before the court are Plaintiff's and Defendant's cross-motions for summary judgment (R. 12, 13). Plaintiff has also filed a response to Defendant's motion. (R. 14).

         Plaintiff filed his application for DIB on May 14, 2015, ^[1] alleging onset on April 20, 2014. (R. 10 at PageID.294-300). His claim was denied at the initial level on September 22, 2015. (Id. at PageID.180). After an administrative hearing was held at Plaintiff's request, (id. at PageID.124-165), Administrative Law Judge (ALJ) Lawrence E. Blatnik issued a decision finding that Plaintiff had not been under a disability from his alleged onset date through the date of the decision, August 16, 2017, (id. at PageID.100-123). The Appeals Council denied Plaintiff's request for review. (Id. at PageID.42-48).^[2] 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 to determining solely 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 Social Security 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 April 20, 2014, through the date of the decision, August 16, 2017. (R. 10 at PageID.119). At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity during the relevant period. (Id. at PageID.105). Next, the ALJ determined Plaintiff had the following severe impairments: degenerative disc disease of the lumbar spine, status post lumbar fusion; peripheral arterial disease, status post femoral popliteal bypass; history of deep vein thrombosis with corrective surgery; osteoarthritis; degenerative joint disease/tendinosis of the right shoulder; and an adjustment disorder. (Id. at PageID.106). The ALJ found that Plaintiff's plantar fasciitis, hypertension, hyperlipidemia, obesity, and alcohol use were not severe impairments, and he had no medically determinable substance use disorder. (Id. at PageID.106-107). He did not have an impairment or combination of impairments that met or medically equaled the severity of a listed impairment. (Id. at PageID.107-110).

         Before proceeding further, the ALJ found Plaintiff had the RFC to perform light work as defined in 20 C.F.R. § 404.1567(b), and

can lift, carry, push and pull 20 pounds occasionally and ten pounds frequently. He can sit for six hours, with a need to alternate to standing for three to five minutes after every 20 to 30 minutes of sitting; and can stand and walk for six hours, with a need to alternate to sitting for three to five minutes after every 20 to 30 minutes of standing or walking. The claimant is limited to occasional reaching overhead and frequent[] reaching below head level with the right upper extremity. He can frequently handle and finger with both hands. The claimant can frequently climb ramps and stairs; never climb ladders, ropes, or scaffolds; occasionally stoop and crouch; and frequently balance, kneel, and crawl. He can tolerate occasional exposure to vibration. In addition, the claimant can perform simple, routine[, ] and repetitive tasks.

(Id. at PageID.110). At steps four and five, the ALJ concluded that Plaintiff was unable to perform any of his past relevant work, but that jobs he could perform existed in significant numbers in the national economy-for example, office helper (180, 000 jobs nationally), laundry worker (30, 000 jobs nationally), and cashier (800, 000 jobs nationally). (Id. at PageID.117-19). Thus, the ALJ determined that Plaintiff had not been under a disability as defined in the Social Security Act during the relevant time. (Id. at PageID.119).

         E. Administrative Record

         1. Medical Evidence

         I have thoroughly reviewed the medical record. In lieu of summarizing Plaintiff's medical history here, I will reference and provide citations to the record as necessary in my discussion of the parties' arguments.

         2. Application Reports and Administrative Hearing

         i. Plaintiff's Function Report

         Plaintiff completed a function report on June 15, 2015. (R. 10 at PageID.322-29). In it, Plaintiff explained that he was in constant pain-his back, legs, and feet hurt; his legs and feet swelled; and his knees hurt when he stood, walked, or sat. (Id. at PageID.322). “It hurts to stand, walk, sit, drive, lay, bend, twist, cough, or sneeze.” (Id.). From the time he woke up until he went to bed, he did “[n]othing but try to deal with the pain.” (Id. at PageID.323). Because his sleep was also troubled by pain, he got up around noon and took a pain pill, which made him “tired but still in pain.” (Id.).

         Before onset, Plaintiff had been able to work, play sports, socialize, worship, and have “relationships.” (Id.). Now he suffered from constant pain in his back, legs, knees, and feet. (Id.). Many aspects of personal care caused him pain: it hurt to bend to put on his pants, shoes, and socks; it hurt to bend, twist, and lift his feet during bathing or showering; and it hurt too much to reach, stand, and twist as necessary to shave his head. (Id.). Using the toilet also caused him discomfort, as bending or squatting hurt, his feet would go to sleep, and he had “to strain due to the pain pills which causes blood in my stool.” (Id.).

         Once a week he prepared his own meals, which consisted of TV dinners, hamburgers, and chips. (Id. at PageID.324). Making food took him several hours because he could not stand long; he had to sit on a stool near the stove to cook a hamburger. (Id.). He could no longer grill. (Id.). And sometimes he was in too much pain to eat. (Id.).

         As for housework, he was able to load the dishwasher or washing machine-taking about 30 minutes to do each chore, once a week-but then his back, leg, and foot pain forced him to sit down. (Id.). He could fold clothes while sitting. (Id.). His daughter sometimes called and asked if he had done his dishes “because she knows [he] won't ask for help.” (Id.). Meanwhile, his son did the yardwork and “lift[ed] anything heavy.” (Id. at PageID.325).

         When going out, Plaintiff could drive and go out alone, though when he drove “the smallest things upset [him] now.” (Id. at PageID.325, 327). He shopped for groceries and household goods for about 45 minutes every couple of weeks, “mov[ing] slow and stiff.” (Id. at PageID.325). He remained able to pay bills, count change, handle a savings account, and use a checkbook or money orders. (Id. at PageID.326). Before onset, he had enjoyed going to the gym three to four days a week, bowling in two leagues, golfing, fishing, shooting, and dancing. (Id.). Now pain prevented him from doing any of his hobbies. (Id.).

         Plaintiff stayed at home and did not spend time with other people, which hurt “both physically and mentally.” (Id.). Although he used to be an usher at his church, pain now kept him from standing during the service. (Id. at PageID.327). Further, he had problems getting along with family “due to [his] finances from not working.” (Id.). He felt sad most of the time and did not want to be with others. (Id.). And he said he did not get along well with authority figures, explaining, “I don't like to be asked foolish questions by authority figures.” (Id. at PageID.328). During his time working at the Michigan Department of Corrections, his issues getting along with others had earned him a demotion of “two levels” in 2009 and “several disciplinary actions” between 2010 and 2012. (Id.).

         His conditions affected his abilities to lift, squat, bend, stand, reach, walk, sit, kneel, hear, climb stairs, see, remember, complete tasks, concentrate, and get along with others. (Id. at PageID.327). He could lift five pounds without pain, and walk for about two minutes before pain set in. (Id.). He could walk about four minutes at a time, but in “serious pain, ” before needing to stop and rest for a half hour. (Id.). His attention span was 20 minutes. (Id.). He could follow written instructions after reading them several times, and spoken instructions “as long as it is said loud enough.” (Id.).

         Because he was “in so much pain all the time, ” Plaintiff did not handle stress or changes in routine well. (Id. at PageID.328). He was afraid of dying from blood ...