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Preston v. Commissioner of Social Security

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

July 29, 2019

KELLY RENEE PRESTON, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          GERSHWIN A. DRAIN DISTRICT JUDGE

          REPORT AND RECOMMENDATION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT (R. 13, 14)

          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. 13), be GRANTED, the Commissioner's Motion for Summary Judgment, (R. 14), 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 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).

         Plaintiff filed her application for DIB on November 18, 2015, [1] 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).

         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 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, 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).

         Before 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).

         At 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. at PageID.54).

         E. Administrative Record

         1. Medical Evidence

         I have thoroughly reviewed the medical record, and will refer to it as necessary in my analysis below.

         2. Application Reports and Administrative Hearing

         i. Plaintiff's Function Report

         Plaintiff 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.).

         On a 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. (Id.).

         When it 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.).

         For 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 PageID.279).

         She 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).

         For 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 computer. (Id.).

         She 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 assignments. (Id.).

         Plaintiff's 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).

         In 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 ...


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