ANTHONY P. PATTI, Magistrate Judge.
For the reasons that follow, it is
Plaintiff, Theresa Marie Chappell, brings this action under 42 U.S.C. §§ 405(g), 1383(c)(3) for review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for Supplemental Security Income (SSI) benefits. This matter is before the United States Magistrate Judge for a Report and Recommendation on Plaintiff's motion for summary judgment (DE 15), the Commissioner's cross-motion for summary judgment (DE 18), Plaintiff's reply (DE 19), and the administrative record (DE 7).
Plaintiff applied for SSI on June 20, 2014. (R. at 349-354.) Plaintiff alleges her disability began on February 10, 2014, at the age of 48, at which point the Social Security Administration (SSA) considers her a "[y]ounger person." 20 C.F.R. §§ 404.1563(c), 416.963(c). (R. at 349.) In her disability report, she lists several conditions (anxiety, high blood pressure, post-traumatic stress disorder (PTSD), and back injury due to an accident at work) as limiting her ability to work. (R. at 395.) Her application was denied on September 24, 2014. (R. at 186-202, 240-243.)
In October 2014, Plaintiff requested a hearing by an Administrative Law Judge ("ALJ"). (R. at 246-248.) Plaintiff turned 50 years old on December 8, 2015, at which point the Social Security Administration considers her a "[p]erson closely approaching advanced age." 20 C.F.R. §§ 404.1563(d), 416.963(d). (R. at 349, DE 15 at 31.)
On January 22, 2016, ALJ Andrew G. Sloss held a hearing, at which Plaintiff and a vocational expert (VE), Michelle Robb, testified. (R. at 155-185.) On the same date, Plaintiff amended her alleged onset date (AOD) to June 19, 2014, which happens to be the same day as a neurology progress note by neurologist Mouaz Sbei, M.D. (R. at 368, 1519-1656.) On February 2, 2016, ALJ Sloss issued an opinion, which determined that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 203-224.)
Plaintiff submitted a request for review of the hearing decision/order. (R. at 294-296.) On February 6, 2017, the Appeals Council remanded the case to the ALJ for resolution of issues concerning:
On July 13, 2017, ALJ Sloss held a hearing, at which Plaintiff and a vocational expert (VE), Judith Findora, testified. (R. at 137-154.) On August 1, 2017, ALJ Sloss issued an opinion, which determined that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 11-34.)
Plaintiff submitted a request for review of the hearing decision/order. (R. at 346-348.) However, on April 25, 2018, the Appeals Council denied Plaintiff's request for review. (R. at 1-6.) Thus, ALJ Sloss's decision became the Commissioner's final decision.
Plaintiff timely commenced the instant action on May 3, 2018.
The administrative record contains approximately 1,614 pages of medical records, which were available to the ALJ at the time of his August 1, 2017 decision. (R. at 32-34, 473-2,086 [Exhibits 1F-31F].) These materials will be discussed in detail, as necessary, below.
Pursuant to 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4), at
(Id. at 19-26.) At
The District Court has jurisdiction to review the Commissioner's final administrative decision pursuant to 42 U.S.C. § 405(g). When reviewing a case under the Social Security Act, the Court "must affirm the Commissioner's decision if it `is supported by substantial evidence and was made pursuant to proper legal standards.'" Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. at 2009) (quoting Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. at 2007)); see also 42 U.S.C. § 405(g) ("[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . ."). Under this standard, "substantial evidence is defined as `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, 486 F.3d at 241 (quoting Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)). In deciding whether substantial evidence supports the ALJ's decision, the court does "not try the case de novo, resolve conflicts in evidence or decide questions of credibility." Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007); Rogers, 486 F.3d at 247 ("It is of course for the ALJ, and not the reviewing court, to evaluate the credibility of witnesses, including that of the claimant.").
Although the substantial evidence standard is deferential, it is not trivial. The Court must "`take into account whatever in the record fairly detracts from [the] weight'" of the Commissioner's decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, "if substantial evidence supports the ALJ's decision, this Court defers to that finding `even if there is substantial evidence in the record that would have supported an opposite conclusion.'" Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)). Finally, even if the ALJ's decision meets the substantial evidence standard, "`a decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right.'" Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)).
Plaintiff contends that the ALJ erred in failing to give significant weight to the opinions of four treating medical providers. Plaintiff also contends that the ALJ erred by failing to accurately characterize her limitations related to:
Plaintiff claims to have "back pain and lumbar radiculopathy not corrected by a surgical fusion[.]" (DE 15 at 22.) The ALJ's decision contains an extensive review of the treatment records. (R. at 21-24.) Then, the ALJ discussed multiple pieces of opinion evidence, including the following regarding Plaintiff's physical health:
The ALJ accorded "great weight" to Dr. Ray's findings and "little weight" to the remainder of these opinions, with the exception of Dr. Eldohiri's disability certificate, as to which the ALJ did not make a specific assignment of weight. (R. at 22-26.)
Exertional limitations include "sitting, standing, walking, lifting, carrying, pushing, and pulling[.]" 20 C.F.R. §§ 404.1569a(b), 416.969a(b). According to Plaintiff, substantial evidence of his capability to perform "any of the defining characteristics of light work" is lacking. (DE 15 at 23.) "Light work involves lifting no more than 20 pounds at a time with frequent
The four treating medical providers to whom Plaintiff refers are: (1) primary care provider Ms. Holloway; (2) neurologist Dr. Sbei; and, (3) pain management specialist Dr. Eldohiri (each of whom filled out the same MSS form); as well as, (4) neurosurgeon Dr. Shah (whose letter provides 3 substantive sentences). (DE 15 at 3, 6, 22.) The parties agree that Holloway, Sbei, and Eldohiri opined that Plaintiff had standing, walking, and lifting limitations that would have prevented her from performing a full range of light work. (DE 15 at 23-24, DE 18 at 17.) Dr. Shah's opinion letter provides the ultimate limitation of "cannot work." (R. at 2023.) Plaintiff contends that "other evidence in the record supports these limitations." (DE 15 at 24-26.) Yet, as described below, the ALJ:
(R. at 24-26 (emphases added).) Thus, the ALJ discounted Dr. Eldohiri's MSS, Dr. Sbei's MSS, and Dr. Shah's statements based on the supportability and/or consistency factors. 20 C.F.R. §§ 404.1527(c)(3),(4), 416.927(c)(3),(4). Additionally, the ALJ considered Ms. Holloway's MSS as an opinion from a medical source who is not an acceptable medical source. 20 C.F.R. §§ 404.1527(f), 416.927(f).
In assigning "great weight" to Dr. Ray's findings, the ALJ explains that they are "consistent with the medical evidence of record[,]" and that "[t]he overall record is consistent with restricted light work." (R. at 24.) Later, when considering Ms. Holloway's opinion, the ALJ notes: "the medical evidence of record reveals only mild degenerative changes with regard to the claimant's [DDD] and improvement with treatment. The medical evidence is also consistent with a finding of light work." (R. at 26.)
Still, it is not clear that the subsequent decision's light work limitation is supported by substantial evidence. By way of background, in his prior opinion, the ALJ accorded "great weight" to the state agency's physical RFC assessment, which was consistent with light work. (R. at 216, 194-196.) However, it was authored by an SDM. As the Appeals Council acknowledged on February 6, 2017, "[s]ingle decision-maker findings do not constitute opinion evidence and must not be considered or evaluated in determining the claimant's disability . . . ." (R. at 228.)
More concerning, although the ALJ's prior and subsequent opinions provided similar summaries of Dr. Ray's report (compare R. at 213, with R. at 22-23), the ALJ previously assigned Dr. Ray's report "little weight," dispelling his opinion of "no work restrictions" by claiming the overall record was "consistent with restricted light work." (R. at 216.) Now, in the subsequent decision, without an assignment of "great weight" to the SDM's physical RFC assessment, the ALJ this time assigns Dr. Ray's report "great weight," still because "[t]he overall record is consistent with restricted light work." (R. at 24).
The Commissioner is correct that the ALJ referred to "extensive evidence" when reviewing the treatment records. (R. at 21-24, DE 18 at 7-8, 20.) Nonetheless, the Undersigned does not see an "accurate and logical bridge" between the evidence and the ALJ's determination that Plaintiff is capable of the lifting, carrying, standing, walking, sitting, pushing and pulling limitations of light work. See Gross v. Comm'r of Soc. Sec., 247 F.Supp.3d 824, 829 (E. D Mich. 2017) (the Court "may not uphold an ALJ's decision, even if there is enough evidence in the record to support it, if the decision fails to provide an accurate and logical bridge between the evidence and the result.") (citation omitted); see also Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (requiring an appellate record that would "permit meaningful review" of the ALJ's application of the rules).
Plaintiff also claims to have "facial droop, weakness, hemiplegia, dizziness and confusion and impaired speech . . . secondary to complicated migraines[.]" (DE 15 at 22.) By way of background, in his initial decision, ALJ Sloss listed only osteoarthritis and DDD as Plaintiff's Step 2 severe impairments. (R. at 208-209.) However, as noted above, the Appeals Council's order remanding the case included instructions that "[f]urther consideration is needed of the claimant's migraines at step two of the sequential evaluation . . . ." (R. at 227.)
On August 1, 2017, ALJ Sloss determined that Plaintiff's severe impairments included osteoarthritis, DDD and migraine headaches. (R. at 16-18.) Within the Step 2 discussion, the ALJ stated that Plaintiff's "symptoms have been attributed to migraine headaches[,]" for which he cited six exhibits. (R. at 17.) In addition, the ALJ accorded "little weight to [consultative examiner] Dr. Dickson's findings with regard to the claimant's speech[.]" (Id., R. at 605-607.) The ALJ also reviewed state agency consultant Dr. Kaul's conclusions as to the broad functional areas, including that Plaintiff had
At Step 3, the ALJ concluded that Plaintiff's experience of migraine headaches "fails to meet the requirements of any relevant listing under 11.00 Neurological." (R. at 19.) Then, within the RFC discussion, the ALJ mentioned several records related to headaches, migraines and neurological examinations:
(R. at 21-24.)
In addition to the ALJ's acknowledgement of the aforementioned headache and migraine treatment records, the Court notes that, in January 2016, Ms. Holloway, Dr. Sbei and Dr. Eldohiri each opined that Plaintiff's pain, fatigue and other symptoms caused marked and/or substantial interference with Plaintiff's abilities to "understand, remember and/or carry out instructions or procedures[,]" and "maintain attention, concentration, persistence and pace[,]" and further opined that Plaintiff would be "off task or away from a work station . . . more than two 15 minute breaks and a 30 minute lunch[,]" and would "miss[] three or more days from work in a typical month." (R. at 1919, 2020, 2022.) The ALJ mentioned many of these opinions, although he did not accord them controlling weight. (R. at 24-26.)
Ultimately,
In support of this argument, Plaintiff expressly cites several records. (DE 15 at 30-31.) Some of them pre-date the June 19, 2014 amended AOD (R. at 970, 999, 1084, 1086, 586, 1401, 1412),
The Commissioner contends that the ALJ accommodated Plaintiff's headaches with the environmental limitation of "avoid[ing] even moderate exposure to hazards." (R. at 19, DE 18 at 14.) However, the ALJ did not actually supply this reasoning, and the Commissioner's explanation here is a post hoc rationalization. Hyatt Corp. v. N.L.R.B., 939 F.2d 361, 367 (6th Cir. 1991) ("Courts are not at liberty to speculate on the basis of an administrative agency's order.... The court is not free to accept `appellate counsel's post hoc rationalization for agency action in lieu of reasons and findings enunciated by the Board.'") (internal citation omitted; see also, Schroeder v. Comm'r of Soc. Sec., No. 11-14778, 2013 WL 1316748, at *13 (E.D. Mich. Mar. 1, 2013). Even if this were the ALJ's intention, he does not explain which hazards are to be avoided or how such avoidance will accommodate for migraines. And, as Plaintiff correctly notes, the ALJ's prior opinion, which did not include migraines as a severe impairment at Step 2, already had an RFC limitation that Plaintiff "must avoid even moderate exposure to hazards." (R. at 208, 210.) (See DE 19 at 4.) In fact, the Disability Determination Explanation (DDE) form exemplifies "hazards" as "machinery, heights, etc." (R. at 196.) Without more, it is difficult to see how this singular environmental limitation — or any of the exertional or postural limitations — is meant to address migraine headaches. The Commissioner's explanation would make more sense if the ALJ had assessed environmental limitations to "noise" or "vibration" or "[f]umes, odors, dusts, gases, poor ventilation," or perhaps with respect to certain types of workplace lighting, as these are areas that one would expect to aggravate an individual's propensity for headaches.
Still, even if the ALJ mentioned Plaintiff's headaches "on nearly every page of the lengthy RFC analysis[,]" (DE 18 at 15), and even if the ALJ did not give controlling weight to MSS opinions on CPP (R. at 24-26, 1919, 2020, 2022), it remains to be seen how the ALJ concluded that Plaintiff's migraines were a severe impairment, yet did not include a relative limitation, or at least did not make clear why Plaintiff's migraine headaches either did not warrant one or were somehow addressed by the identical RFC found in both of this ALJ's decisions, which seems unlikely.
Plaintiff essentially advocates that, as a person "closely approaching advanced age," whose education is "limited or less," and whose previous work experience is "unskilled or none," she is considered "disabled" if found to be exertionally limited to sedentary work. 20 C.F.R. § Pt. 404, Subpt. P, App. 2, Rule 201.09. (DE 15 at 31.) Plaintiff has shown legal error that could upend the ALJ's decision as to the explanation for the physical RFC assessment and the absence of mental health RFC limitations. For the foregoing reasons, it is
The parties to this action may object to and seek review of this Report and Recommendation, but are required to file any objections within 14 days of service, as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule 72.1(d). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec'y of Health & Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some issues but fail to raise others with specificity will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Sec'y of Health & Hum. Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1273 (6th Cir. 1987). Pursuant to Local Rule 72.1(d)(2), any objections must be served on this Magistrate Judge.
Any objections must be labeled as "Objection No. 1," and "Objection No. 2," etc. Any objection must recite precisely the provision of this Report and Recommendation to which it pertains. Not later than 14 days after service of an objection, the opposing party may file a concise response proportionate to the objections in length and complexity. Fed. R. Civ. P. 72(b)(2); E.D. Mich. LR 72.1(d). The response must specifically address each issue raised in the objections, in the same order, and labeled as "Response to Objection No. 1," "Response to Objection No. 2," etc. If the Court determines that any objections are without merit, it may rule without awaiting the response.
