United States District Court, E.D. Michigan, Southern Division
THERESA A. ANDERSON, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
G. EDMUNDS DISTRICT JUDGE
REPORT AND RECOMMENDATION ON CROSS-MOTIONS FOR
SUMMARY JUDGMENT, (R. 17, 21)
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. 17), be
GRANTED, the Commissioner's Motion for
Summary Judgment, (R. 21), be DENIED, and
this case be REMANDED under sentence four of
42 U.S.C. § 405(g).
Introduction and Procedural History
an action for judicial review of a final decision by the
Commissioner of Social Security denying Plaintiff Theresa Ann
Anderson's claim for disability benefits. (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. 6).
Currently before the court are Plaintiff's and
Defendant's cross-motions for summary judgment (R. 17,
21). Plaintiff has also filed a response to Defendant's
motion. (R. 23).
Plaintiff had filed for disability and testified at a hearing
on April 12, 2011. (R. 14 at PageID.120). Administrative Law
Judge (ALJ) John Dodson found she had the severe impairments
of malignant neoplastic breast cancer and an affective
disorder, and she lacked the residual functional capacity
(RFC) to perform work activities in an ordinary work setting
on a regular and continuing basis. (Id. at
PageID.122). Thus, as of May 16, 2011, the ALJ concluded she
had been under a disability since December 29, 2009; he
recommended a continuing disability review in 24 months,
because “[m]edical improvement is expected with
appropriate treatment.” (Id. at PageID.125).
determination was made that Plaintiff's disability had
ended on May 19, 2014, (id. at PageID.126),
Plaintiff requested reconsideration, (id. at
PageID.135). In the decision at issue here, the ALJ found
that Plaintiff's disability had ended on May 19, 2014,
and she had not become disabled again since that date.
(Id. at PageID.75). The Appeals Council denied her
request for review. (Id. at PageID.53-57). 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 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).
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
as here, a recipient of disability benefits challenges the
cessation of benefits, the central issue is whether the
recipient's medical impairments have improved to the
point where she is able to perform substantial gainful
activity. 42 U.S.C. § 423(f)(1); Kennedy v.
Astrue, 247 Fed.Appx. 761, 764 (6th Cir. 2007). Whether
an individual is entitled to continued benefits depends on
whether “there has been any medical improvement in [the
person's] impairment(s) and, if so, whether this medical
improvement is related to [the person's] ability to
work.” 20 C.F.R. §§ 404.1594(a), 416.994(b)
(eff. Aug. 24, 2012 to Mar. 26, 2017).
implementing regulations incorporate many of the standards
set forth in regulations governing initial disability
determinations. See 20 C.F.R. §§
404.1594(b)(5), 404.1594(f)(7). The difference, however, is
that the ultimate burden of proof lies with the Commissioner
in termination proceedings. Id.; Kennedy,
supra; Griego v. Sullivan, 940 F.2d 942, 944
(5th Cir. 1991).
cessation evaluation process is a two-part process. See
Kennedy, 247 Fed.Appx. 764-65. The first part of the
process focuses on medical improvement. Id. at 764.
The implementing regulations define “medical
improvement” as “any decrease in the medical
severity of [the individual's] impairment(s) which was
present at the time of the most recent favorable medical
decision that [the individual was] disabled or continued to
be disabled.” Id. at 764-65 (citing 20 C.F.R.
§ 404.1594(b)(1)). “A determination that there has
been a decrease in medical severity must be based on changes
(improvement) in the symptoms, signs and/or laboratory
findings associated with [the person's]
impairment(s).” 20 C.F.R. §§ 404.1594(b)(1),
416.994(b)(1). If there has been a decrease in the severity
of the impairments since the favorable decision, the medical
improvement is related to the individual's ability to
work only if there has been a corresponding ‘increase
in [the claimant's] functional capacity to do basic work
activities . . . .'” Kennedy, 247
Fed.Appx. at 765 (quoting 20 C.F.R. § 404.1594(b)(3)).
second part of the cessation analysis focuses on whether the
person can engage in substantial gainful activity.
Kennedy, 247 Fed.Appx. at 765. The implementing
regulations for this part of the evaluation incorporate many
of the standards set forth in the regulations that govern
initial disability determinations. Id. (citing 20
C.F.R. § 404.1594(b)(5) and (f)(7)). The difference is
that “the ultimate burden of proof lies with the
Commissioner in termination proceedings.” Id.
(citing 20 C.F.R. § 404.1594(b)(5) and (f)(7);
Griego, 940 F.2d at 944). An increase in the
claimant's functional capacity will lead to a cessation
of benefits only if, as a result, the claimant can perform
her past work or other work that exists in significant
numbers in the national economy. 20 C.F.R.
§§404.1594(f)(7), (8), 416.994(b)(5)(vii), (viii).
deciding whether a recipient's entitlement to disability
benefits has ended, the Commissioner uses the eight-step
sequential evaluation process outlined in 20 C.F.R.
§§ 404.1594(f)(1)-(8) and 416.994(b)(5)(i)-(viii).
Kennedy, 247 Fed.Appx. at 764. The steps are:
(1) Are you engaging in substantial gainful activity? If you
are . . . we will find disability to have ended . . . .
(2) If you are not, do you have an impairment or combination
of impairments which meets or equals the severity of an
impairment listed in appendix 1 of this subpart? If you do,
your disability will be found to continue.
(3) If you do not, has there been medical improvement as
defined in paragraph (b)(1) of this section? . . .
(4) If there has been medical improvement, we must determine
whether it is related to your ability to do work in
accordance with paragraphs (b)(1) through (4) of this section
. . . .
(5) If we found at step (3) that there has been no medical
improvement or if we found at step (4) that the medical
improvement is not related to your ability to work, we
consider whether any of the exceptions in paragraphs (d) and
(e) of this section apply. . . .
(6) If medical improvement is shown to be related to your
ability to do work or if one of the first group of exceptions
to medical improvement applies, we will determine whether all
your current impairments in combination are severe . . . .
(7) If your impairment(s) is severe, . . . . we will assess
your residual functional capacity based on all your current
impairments and consider whether you can still do work you
have done in the past. If you can do such work, disability
will be found to have ended.
(8) If you are not able to do work you have done in the past,
we will consider whether you can do other work given the
residual functional capacity assessment . . . . If you can,
we will find that your disability has ended. If you cannot,
we will find that your disability continues.
20 C.F.R. §§ 404.1594(f), 416.994(b)(5).
is no presumption of continuing disability. Kennedy,
247 Fed.Appx. at 764 (citing Cutlip v. Secretary of
Health and Human Services, 25 F.3d 284, 286-87 n. 1 (6th
Cir. 1994)). Instead, the Commissioner applies the above
procedures to determine whether the claimant's disability
has ended and if she is now able to work. Id.
the eight-step sequential analysis, the ALJ found that
Plaintiff's disability had ended on May 19, 2014, and she
had not become disabled again since then. (R. 14 at
PageID.75). First, the ALJ found that Plaintiff had not been
engaging in substantial gainful activity. (Id. at
PageID.65). The ALJ determined that medical improvement
occurred on May 19, 2014. (Id. at PageID.67). Since
that date, the impairments present at the time of the
comparison point decision (CPD) had decreased in medical
severity to the point where Plaintiff had the residual
functional capacity (RFC) to perform a full range of work
May 19, 2014, however, Plaintiff had had the following
medically determinable impairments: fibromyalgia;
hypothyroidism; migraine headaches; a history of breast
cancer and treatment, in remission; and anxiety.
(Id. at PageID.65). She had not had an impairment or
history of impairments that met or medically equaled the
severity of a listed impairment. (Id.).
on Plaintiff's more recent severe impairments-namely,
fibromyalgia, hypothyroidism, migraines, and anxiety-the ALJ
found that Plaintiff had the RFC to perform light work as
defined in 20 C.F.R. § 404.1567(b), but she could
occasionally climb stairs and ramps; never climb ropes,
ladders, or scaffolds; occasionally balance, stoop, kneel,
crouch, and crawl; occasionally reach overhead. (Id.
at PageID.68). Further, she was limited to no concentrated
exposure to unprotected heights, vibrating tools, or moving
machinery; only simple, routine, repetitive tasks involving
little judgment and that could be learned in a short period
of time; and only occasional contact with the public,
coworkers, and supervisors. (Id.). In conclusion,
the ALJ determined that Plaintiff's disability had ended
on May 19, 2014, and Plaintiff had not become disabled again
since that date. (Id. at PageID.75).
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.
Application Reports and Administrative Hearing
Plaintiff's March 2014 Function Report
completed a function report on March 22, 2014. (R. 14 at
PageID.248-55). She explained that she could not stand or
walk “all day” because her legs would swell and
she would have numbness and tingling in her arms and feet.
(Id. at PageID.248). She could not lift or carry
things like she used to because of her upper body pain and
numbness, especially the pain in her neck and skull.
(Id.). Migraines often forced her to lie down.
(Id.). She was constantly tired, and had to take
breaks often when doing light housework due to her
fibromyalgia and chronic fatigue post-chemotherapy.
typical day, Plaintiff got her kids ready for school and
dropped them off, then took a nap, did some light housework,
fixed her kids an after-school snack, rested, helped her kids
with homework, and went to bed. (Id. at PageID.249).
She also ...