United States District Court, E.D. Michigan, Southern Division
GERSHWIN A. DRAIN DISTRICT JUDGE
REPORT AND RECOMMENDATION ON CROSS-MOTIONS FOR
SUMMARY JUDGMENT (R. 13, 14)
Patricia T. Morris United States Magistrate Judge
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. 13), be
GRANTED, the Commissioner's Motion for
Summary Judgment, (R. 14), be DENIED, and
this case be REMANDED for further
Introduction and Procedural History
an action for judicial review of a final decision by the
Commissioner of Social Security denying Plaintiff Kelly Renee
Preston's claims for Disability Insurance Benefits (DIB)
under Title II, 42 U.S.C. § 401 et seq., and
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. 13, 14). Plaintiff has also filed a
response to Defendant's motion. (R. 16).
filed her application for DIB on November 18, 2015,
alleging onset on December 5, 2014, (R. 9 at PageID.239-40);
she filed for SSI on December 1, 2015, (R. 9 at
PageID.241-46). Her claims were denied at the initial level
on March 17, 2016. (Id. at PageID.125-26). After an
administrative hearing was held at Plaintiff's request,
(id. at PageID.60-99), Administrative Law Judge
(ALJ) Terry Michael Banks issued a decision finding that
Plaintiff had not been under a disability from her alleged
onset date through the date of the decision, December 21,
2017. (Id. at PageID.34-59). The Appeals Council
denied Plaintiff's request for review. (Id. at
PageID.28-33). 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 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)).
the five-step sequential analysis, the ALJ found Plaintiff
had not been under a disability from the alleged onset date,
December 5, 2014, through the date of the decision, December
21, 2017. (R. 9 at PageID.54). At step one, the ALJ found
that Plaintiff had not engaged in substantial gainful
activity during the relevant period. (Id. at
PageID.44). Next, the ALJ determined Plaintiff had the
following severe impairments: tibial tendinitis, depression,
and anxiety. (Id. at PageID.44-45). In addition,
Plaintiff had the following non-severe impairments: obesity,
pneumonia, obstructive sleep apnea, trichotillomania,
vertigo, and left posterior tibial tendinitis/synovitis.
(Id.). The ALJ found the record “devoid of
evidence, ” however, “to establish the claimant
has the impairments of fibromyalgia, COPD/asthma/bronchitis,
and right shoulder pain.” (Id. at PageID.45).
And Plaintiff did not have an impairment or combination of
impairments that met or medically equaled the severity of a
listed impairment. (Id. at PageID.45-48).
proceeding further, the ALJ found Plaintiff had the RFC to
perform medium work, as defined in 20 C.F.R. §
404.1567(c) and 416.967(c), except that
with respect to understanding, remembering, and carrying out
instructions, she is limited to performing simple and routine
tasks; with respect to the use of judgment, she is limited to
simple work-related decisions; and there should be no more
than occasional changes in the workplace setting, and any
changes should be well explained in advance.
(Id. at PageID.48).
steps four and five, the ALJ concluded that Plaintiff could
perform her past relevant work as an assembler and as an
inspector. (Id. at PageID.52-53). In the
alternative, the ALJ found that other jobs that Plaintiff
could perform existed in significant numbers in the national
economy. (Id.). Thus, the ALJ determined that
Plaintiff had not been under a disability as defined in the
Social Security Act during the relevant time. (Id.
thoroughly reviewed the medical record, and will refer to it
as necessary in my analysis below.
Application Reports and Administrative Hearing
Plaintiff's Function Report
completed a function report on December 21, 2015. (R. 9 at
PageID.276-83). She explained that her anxiety and depression
made it hard to be around people, leave her house, and stay
focused. (Id. at PageID.276). Her illnesses caused
vertigo, panic attacks, and excessive sleep. (Id.).
She did not rouse easily, “[did] not hear alarms,
” and took “a lot of naps.” (Id.
at PageID.276-77). She also had difficulty sitting for long
periods of time, and “permanent lifting
restrictions” from a work-related shoulder injury.
(Id. at PageID.276). Further, she explained, she had
a lot of pain that made it hard to cope or stay focused.
(Id.). She struggled to get places on time and
remember things, and had to use a calendar in her phone to
set reminders. (Id.).
typical day, Plaintiff would take the kids to school, go to
appointments, do chores around the house, attend online
classes, and take long naps. (Id. at PageID.277).
She took care of her children by cooking and cleaning for
them, and driving them around. (Id.). Her children
helped with chores around the house. (Id.).
Plaintiff also took care of a pet, providing her food, water,
and treats, and letting her outside. (Id.). In the
past, Plaintiff had been “able to keep a job and
function, ” and had not had lifting restrictions.
came to personal care, Plaintiff usually stayed in pajamas,
did not take as many showers as she used to or shave very
often, and generally lacked energy and slept “a lot
more.” (Id.). She also ate less, because she
was often nauseated, and had “diarrhea and constipation
issues.” (Id.). In addition, she kept her hair
short “due to pulling my hair.” (Id.).
food, Plaintiff prepared frozen dinners or simple meals
because of fatigue; her son had had to start helping with the
cooking. (Id. at PageID.278). Around the house,
Plaintiff did the cleaning, laundry and dishes, though it
took “a while” because she needed breaks or
sleep. (Id.). Her children helped with some chores,
including with lifting and reaching things, and reminded her
to do laundry. (Id.). Plaintiff did not do yard work
because she was allergic to grass. (Id. at
took the kids to school every day and was able to drive and
go out alone. (Id.). She shopped two or three times
a month for food and household necessities, either in store
or online, and went “during later hours to avoid people
and get out quicker.” (Id.). She did not like
being around a lot of people or leaving her house.
(Id. at PageID.280). And although she usually got
along well with authority figures, she occasionally had
problems getting along with others due to her anxiety or
depression. (Id. at PageID.281, 282). She used to
visit family and friends more often and participate in her
kids' school activities. (Id. at PageID.281).
hobbies, Plaintiff enjoyed drawing, crochet, watching
television, and listening to music; she now did them
“not as often due to fatigue and lack of
interest.” (Id. at PageID.280). She spent time
with her kids every day, and talked to others on the phone or
indicated that her impairments affected her abilities to
lift, squat, bend, stand, reach, walk, sit, kneel, climb
stairs, see, complete tasks, and get along with others, as
well as her memory and concentration. (Id. at
PageID.281). She estimated she could lift 5 pounds
consistently and up to 20 pounds occasionally.
(Id.). Pain, poor balance, and vertigo had tempered
her endurance. (Id.). She was not sure how long she
could walk, and found it varied how long she could walk
before needing to rest for a few minutes. (Id.). She
struggled to pay attention to things that did not keep her
interest. (Id.). She followed written instructions
“pretty well, ” but spoken instructions
“not as well.” (Id.). She did not handle
either stress or changes in routine very well. (Id.
at PageID.282). She had noticed fears of being around people,
leaving the house, not waking up, and missing appointments or
Xanax, Lyrica, Cymbalta, Buspirone, and Promethazine caused
drowsiness, and her Lyrica and Brintellix caused dizziness.
(Id. at PageID.283). Plaintiff also wore glasses and
had used crutches or a brace as needed since December 2007.
(Id. at PageID.282).
closing, she said: “I recently started going to U of M
cancer center due to illnesses and blood results. I will also
be seeing a specialist at U of M in March 2016 for my ankle
and needed surgery, ” which physical therapy could not
fix. (Id. at PageID.283). Because her counselor had
left for a new job, Plaintiff needed to find a new counselor.
(Id.). Her nausea had also worsened in the past
couple of ...