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Anderson v. Commissioner of Social Security

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

July 31, 2019

THERESA A. ANDERSON, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          NANCY G. EDMUNDS DISTRICT JUDGE

          REPORT AND RECOMMENDATION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT, (R. 17, 21)

          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. 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).

         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 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).

         Previously, 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).

         After a 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).

         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

         When, 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).

         The 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).

         The 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)).

         The 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).

         In 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).

         There 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.

         D. ALJ Findings

         Following 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 activity. (Id.).

         Since 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.).

         Based 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).

         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 March 2014 Function Report

         Plaintiff completed a function report on March 22, 2014.[1] (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. (Id.).

         On a 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 ...


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