ANTHONY P. PATTI, Magistrate Judge.
For the reasons that follow, it is
Plaintiff, Gregory Lee Isom, brings this action under 42 U.S.C. § 405(g) for review of a final decision of the Commissioner of Social Security ("Commissioner") denying his applications for disability insurance (DI) benefits. This matter is before the United States Magistrate Judge for a Report and Recommendation on Plaintiff's motion for summary judgment (DE 17), the Commissioner's cross-motion for summary judgment (DE 18), Plaintiff's reply (DE 19), and the administrative record (DE 13).
Plaintiff filed his application for DI benefits on May 5, 2014, alleging that he has been disabled since October 3, 2013, at the age of 49. (R. at 188-92.) In his May 5, 2014 disability report, he states that his "right leg vascular injury" limited his ability to work. (R. at 212.) His application was denied initially on July 11, 2014, and again on reconsideration on September 29, 2014. (R. at 78-81, 86-94.)
On October 6, 2014, Plaintiff requested a hearing by an Administrative Law Judge ("ALJ"). (R. at 95-96.) On May 19, 2016, ALJ Donald G. D'Amato held a hearing, at which Plaintiff and a vocational expert (VE), Michele D. Robb, testified. (R. at 39-55.) On this same day, Plaintiff amended his application and requested a closed period of disability, beginning on October 3, 2013 and ending on November 23, 2015, the date he returned to work. (R. at 20, 207.) ALJ D'Amato issued an opinion on June 14, 2016, which determined that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 17-34.)
On August 3, 2016, Plaintiff submitted a request for review of the hearing decision/order. (R. at 183-85.) However, on August 4, 2017, the Appeals Council denied Plaintiff's request for review. (R. at 1-6.) Thus, ALJ D'Amato's decision became the Commissioner's final decision.
Plaintiff timely commenced the instant action on August 30, 2017. (DE 1.)
The administrative record contains approximately 230 pages of medical records, which were available to the ALJ at the time of his June 14, 2016 decision. (R. at 270-500 [Exhibits 1F — 5F].) 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
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)).
In his motion for summary judgment, Plaintiff asserts a single claim of error: that the ALJ erroneously included in his RFC a limitation that allowed Plaintiff to "elevate his right leg on a stool 12 inches or lower" while sitting. (DE 17 at 6-9.) Plaintiff contends that the ALJ had no basis for this "12 inches or lower" rule because, although his treating physician, Dr. Mark Rojec, did not indicate how high Plaintiff's leg should be elevated in his Medical Source Statement, in which he opined that Plaintiff could sit for eight hours without interruption with his right leg elevated, a handout from Dr. Rojec in April 2014 indicated that his leg should be elevated "above heart level," and Plaintiff testified at the hearing that he elevated his leg on most days above the hip level for at least five hours. (R. at 49; DE 17 at 7-8, citing R. at 340, 495-500.) The Commissioner contends that the ALJ's RFC finding is supported by substantial evidence, and that Plaintiff fails to prove that he is more functionally limited than the ALJ determined. (DE 18 at 5-10.)
Initially, it must be borne in mind that Plaintiff bears the burden of proof at Steps 1-4, including proving his RFC. Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997) (["D]uring the first four steps, the claimant has the burden of proof; this burden shifts to the Commissioner only at Step Five.") (citing Young v. Sec'y of Health and Human Servs., 925 F.2d 146, 148 (6th Cir.1990); Allen v. Califano, 613 F.2d 139, 145 (6th Cir.1980)); Cole v. Sec'y of Health and Human Servs., 820 F.2d 768, 771 (6th Cir.1987)); see also Jordan v. Comm'r of Soc. Sec., 548 F.3d 417, 423 (6th Cir. 2008) ("The claimant, however, retains the burden of proving her lack of residual functional capacity"). The Commissioner has the burden of proof only on "the fifth step, proving that there is work available in the economy that the claimant can perform." Her, 203 F.3d at 391-92.
Plaintiff's RFC is "the most [he] can still do despite the physical and mental limitations resulting from [his] impairments." Poe v. Comm'r of Soc. Sec., 342 F. App'x 149, 155 (6th Cir. 2009); see also 20 C.F.R. §§ 404.1545(a), 416.945(a). The determination of Plaintiff's RFC is an issue reserved to the Commissioner and must be supported by substantial evidence. 20 C.F.R. §§ 404.1527(e), 416.927(e). However, `"ALJs must not succumb to the temptation to play doctor and make their own independent medical findings.'" Simpson v. Comm'r of Soc. Sec., 344 F. App'x 181, 194 (6th Cir. 2009) (citation omitted). Pursuant to Social Security Rule 96-8p, the RFC assessment must include:
S.S.R. 96-8p, 1996 WL 374184, at *6-7. "Although SSR 96-8p requires a `function-by-function evaluation' to determine a claimant's RFC, case law does not require the ALJ to discuss those capacities for which no limitation is alleged." Delgado v. Comm'r of Soc. Sec., 30 F. App'x 542, 547 (6th Cir. 2002). Instead, the ALJ `"need only articulate how the evidence in the record supports the RFC determination, discuss the claimant's ability to perform sustained work-related activities, and explain the resolution of any inconsistencies in the record.'" Id. (citations omitted).
ALJ D'Amato determined that Plaintiff had the RFC to perform a reduced range of light work which included, among many other limitations, that "[w]hile in the sitting position [Plaintiff] may elevate his right lower extremity on a stool 12 inches or lower." (R. at 25-31 (emphasis added).) Plaintiff contends that the ALJ has no basis for this "12 inch limitation." Plaintiff explains that a handout from his treating physician, Dr. Mark Rojec, recommended that Plaintiff elevate his leg "above heart level" for 30 minutes each time, three times a day. (DE 17 at 7-8, citing R. at 340.) Further, Plaintiff testified at the hearing that he elevated his leg on most days above hip level for at least five hours. (Id., citing R. at 49.) Plaintiff argues therefore that the ALJ's "12-inch rule" was based upon speculation and not any evidence nor testimony in the record. (Id. at 8.) Plaintiff disagrees with the ALJ's pronouncement that the "12 inches or lower" condition was "generally consistent" with the recommendation of Plaintiff's treating physician. (See R. 31 and DE 17 at 7.) The Undersigned finds that the "12 inches or lower rule" is not "generally consistent" with the medical record, and certainly not supported within the ALJ's opinion.
The vocational expert testified at the hearing in this case that 12 inches is the maximum height a claimant could elevate his leg before all work would be precluded. (R. at 54.) Therefore, the determination of the height at which Plaintiff must elevate his leg is critical to analyzing Plaintiff's ability to work in this case.
ALJ D'Amato recognized in his opinion that Dr. Rojec opined in a Medical Source Statement, in relevant part, that Plaintiff could sit for eight hours without interruption with his "[right] leg elevated." (R. 30, citing R. at 496.) However, Dr. Rojec did not indicate in that Statement how high Plaintiff's leg should be elevated, or for how long. (Id.) The ALJ gave this opinion significant weight, but did not give it controlling weight because Dr. Rojec failed to cite any specific clinical signs or findings in support of his assertions. (R. at 30.) ALJ D'Amato also recognized in his opinion that Dr. Rojec had previously provided Plaintiff a handout recommending 30 minutes of elevation "above his heart level 3 times a day," and that Plaintiff had testified at the hearing that he "had to elevate his leg above hip level for at least 5 hours" per day. (R. at 27-28, citing R. at 49, 340.)
In his decision, the ALJ concluded, "[a]fter carefully considering the longitudinal record," that Plaintiff has the RFC to perform a reduced range of light work, provided, in part, that he has the ability to "elevate his right lower extremity on a stool 12 inches or lower." (R. at 25 (emphasis added).) However, it is not clear from the ALJ's opinion the basis for his conclusion that Plaintiff would only need to elevate his right leg "on a stool 12 inches or lower." While the ALJ generally opined, with regard to Plaintiff's testimony, that "the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision," (R. at 8), he did not explain his reason for discounting Plaintiff's testimony regarding his need to elevate his leg "above hip level" for five hours per day. ALJ D'Amato similarly did not explain his reason for ignoring Dr. Rojec's recommendation that Plaintiff elevate his leg above heart level for 30 minutes three times per day. While it is true that Dr. Rojec did not indicate in his Medical Source Statement how high Plaintiff's leg should be elevated, or for how long, that absence of evidence does not supply a basis for the ALJ's "12 inch rule." The ALJ failed to cite to any record evidence supporting the requirement that Plaintiff elevate his right leg "on a stool 12 inches or lower[,]" despite his recognition that the treating physician's handout called for elevation "above your heart level[,]" i.e., well above 12 inches for anyone older than a toddler.
The ALJ's failure to articulate his reasons for discounting the only record evidence which even addresses the height at which Plaintiff needed to elevate his leg makes it impossible for the Court to determine whether the ALJ's rationale or conclusion is supported by substantial evidence. At a minimum, the ALJ must "`articulate how the evidence in the record supports the RFC determination, discuss the claimant's ability to perform sustained work-related activities, and explain the resolution of any inconsistencies in the record."" Delgado v. Comm'r of Soc. Sec., 30 F. App'x 542, 547-48 (6th Cir. 2002) (citation omitted). ALJ D'Amato neglected to explain why he discounted both Plaintiff's testimony about his need to elevate his leg above hip level and Dr. Rojec's recommendation to elevate his leg above heart level in reaching his conclusion that he only needed to elevate his leg 12 inches or lower. In choosing to ignore rather than confront this record evidence, the ALJ failed to build a logical bridge from the evidence to his determination that Plaintiff was not disabled during the closed period. 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).
Further, I note that the Commissioner proffers reasons in her motion as to why the ALJ's RFC determination is proper. She contends that the handout Dr. Rojec provided to Plaintiff is not specifically tailored to Plaintiff, and proposes that Plaintiff could comply with the handout's restrictions by "elevat[ing] his legs once before starting work, a second time during his lunch break, and a third time after the end of the workday." (DE 18 at 7.) These may well be valid points; however, the ALJ never made those findings. And as Plaintiff points out in his reply brief, "[t]otally lacking in defendant's Brief is there [sic] any citation to support the `12 inch rule' used by the ALJ because there is no such evidence." (DE 19 at 3.) The Commissioner's post hoc rationalizations for the ALJ's failure to discuss this evidence are not an acceptable substitute for the ALJ's lack of rationale concerning treatment of that evidence. See Schroeder v. Comm'r of Soc. Sec., No. 11-14778, 2013 WL 1316748, at *13 (E.D. Mich. Mar. 1, 2013) (the Commissioner's "post hoc rationalization" is not an acceptable substitute for the ALJ's failure to adequately evaluate the medical evidence); Weeks v. Comm'r of Soc. Sec., No. 1:16-cv-121, 2016 WL 6067957, at *4 (W.D. Mich. Oct. 17, 2016) ("An ALJ `must articulate, at some minimum level, his analysis of the evidence to allow the appellate court to trace the path of his reasoning.' The Court cannot do so here. The Commissioner's attempt to rehabilitate the ALJ's reasoning on this point is precisely the type of analysis the ALJ should have undertaken in the first place.") (internal citation omitted and quoting Diaz v. Chater, 55 F.3d 300, 307 (7th Cir. 1995)).
The deficiencies identified herein require remand. It is conceivable that the ALJ found Plaintiff's testimony about the need to elevate his foot above hip level for five hours a day not credible and simply discounted it. It is also possible that he did not find Dr. Rojec's recommendation in April 2014 to elevate Plaintiff's leg above heart level still applied. But if that is what the ALJ did, then he did not explain his reason for doing so. It is not within the Court's authority to independently review and re-analyze the evidence bearing on Plaintiff's credibility, the medical record evidence, and the steps Plaintiff needs to take to relieve the pain in his leg and the "risk of more serious vein problems" so as to uphold the ALJ's decision on these issues. (See R. at 340.) The failure to articulate that link makes it impossible for this Court to determine whether the ALJ's rationale or conclusion that Plaintiff can perform a reduced range of light work during the closed period is supported by substantial evidence in the record. With nothing more, in light of the VE's testimony, he may not.
The Social Security Act authorizes "two types of remand: (1) a post judgment remand in conjunction with a decision affirming, modifying, or reversing a decision of the [Commissioner] (a sentence-four remand); and (2) a pre-judgment remand for consideration of new and material evidence that for good cause was not previously presented to the [Commissioner] (a sentence-six remand)." Faucher v. Sec'y of Health and Human Servs., 17 F.3d 171, 174 (6th Cir.1994) (citing 42 U.S.C. § 405(g)). Under a sentence-four remand, the Court has the authority to "enter upon the pleadings and transcript of the record, a judgment affirming, denying, or reversing the decision of the [Commissioner], with or without remanding the cause for a hearing." 42 U.S.C. § 405(g). Where there is insufficient support for the ALJ's findings, "the appropriate remedy is reversal and a sentence-four remand for further consideration." Morgan v. Astrue, 10-207, 2011 WL 2292305, at *8 (E.D. Ky. June 8, 2011) (citing Faucher, 17 F.3d at 174); see also White v. Comm'r of Soc. Sec., 312 F. App'x 779, 790 (6th Cir. 2009) ("If a court determines that substantial evidence does not support the [Commissioner's] decision, the court can reverse the decision and immediately award benefits only if all factual issues have been resolved and the record adequately establishes a plaintiff's entitlement to benefits." (internal quotations omitted)).
Here, the ALJ's RFC determination that Plaintiff could work if "[w]hile in the sitting position he may elevate his right lower extremity on a stool 12 inches or lower" is either not supported by substantial evidence, or in any case, not explained. Accordingly, I recommend that the Court remand this case under Sentence Four for further development of the record and for a more robust analysis and explanation by the ALJ.
Due to the errors outlined above, Plaintiff is entitled to an order remanding this case to the Social Security Administration pursuant to Sentence Four of 42 U.S.C. § 405(g). At first blush, the VE's testimony could be read to suggest that the need to elevate Plaintiff's leg more than 12 inches would be definitively preclusive of performing any jobs. (R. at 54.) However, this testimony was given in response to a single question during cross-examination, lacking the necessary context and foundation for the Court to conclude that an automatic award of benefits would be in order. Furthermore, the Commissioner's suggestion that the treating physician's "above your heart level 3 times a day, for 30 minutes each time" directive need not necessarily be carried out during work hours (DE 18 at 7), contrasted with the Plaintiff's testimony that he has to elevate his leg above his hip level "every day [for] [f]ive hours a day on a minimum" (R. at 49), also creates too murky a picture for an automatic award of benefits.
Accordingly, 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.
