BERNARD A. FRIEDMAN, Senior District Judge.
This matter is presently before the Court on cross motions for summary judgment [docket entries 17 and 19]. Pursuant to E.D. Mich. LR 7.1(f)(2), the Court shall decide these motions without a hearing. For the reasons stated below, the Court shall grant plaintiff's motion and deny defendant's motion.
Plaintiff has brought this action under 42 U.S.C. § 405(g) to challenge defendant's denial of his application for Social Security disability insurance benefits. Under § 405(g), the issue before the Court is whether the ALJ's decision is supported by substantial evidence, which is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consol. Edison Co. v. Nat'l Labor Relations Bd., 305 U.S. 197, 229 (1938). In making this determination, the Court does not review the record de novo, and it may not weigh the evidence or make credibility findings. If supported by substantial evidence, defendant's decision must be upheld even if substantial evidence would have supported a contrary decision and even if the Court may have decided the case differently in the first instance. See Engebrecht v. Comm'r of Soc. Sec., 572 F. App'x 392, 396 (6th Cir. 2014).
This case has a protracted history. Plaintiff filed for benefits in December 2001, claiming disability as of July 1996 (Tr. 44). After the claim was denied initially and on reconsideration, an ALJ held a hearing in February 2005 and issued a written decision denying plaintiff's application in May 2005 (Tr. 41-50).
At the time of the most recent ALJ decision, plaintiff was 55 years old. When his insured status expired in December 2001 (see Tr. 73), he was 44 years old. Plaintiff attended school through the ninth grade and obtained his GED in 1999 (Tr. 541). He has work experience as a builder and laborer (Tr. 101, 119). Plaintiff claims he has been disabled since July 1996 due to back and leg pain (Tr. 70, 92). On his claimed disability onset date, plaintiff sought emergency room treatment for severe lower back pain following a work injury the previous May that occurred when plaintiff lifted a heavy plank (Tr. 143-44, 230). X-rays in July 1996 showed "left paramedian L-5/S-1 hard disc which may contact the left S-1 nerve root" (Tr. 151) and an MRI in August 1996 showed "[d]egenerative disc disease and herniations at L5-S1 centrally and to the left and L4-5 centrally" (Tr. 228). In July 1997 plaintiff underwent a "hemilaminotomy . . . to remove the disk at L5-S1 on the left" (Tr. 152).
The ALJ found plaintiff's severe impairments to be "degenerative disk disease of the lumbar spine status post laminectomy, chronic low back pain, left shoulder disorder" (Tr. 614). The ALJ found that despite these impairments plaintiff has the residual functional capacity ("RFC") to perform unskilled, sedentary work with various restrictions (Tr. 615).
Having reviewed the voluminous administrative record and the parties' briefs, the Court concludes that the ALJ's decision in this matter is not supported by substantial evidence because the ALJ's RFC evaluation of plaintiff and his hypothetical question to the VE are flawed. Since the hypothetical question failed to describe plaintiff in all relevant respects, the VE's testimony cannot be used to carry defendant's burden to prove the existence of a significant number of jobs plaintiff is capable of performing. Additionally, the ALJ failed to give sufficient weight to the opinion of plaintiff's primary treating physician, Dr. Richard Hall, who has indicated repeatedly that plaintiff is unable to work due to, among other factors, his pain level, his medication side effects, and his need to lie down periodically throughout the day.
The flaw in the ALJ's RFC evaluation and in his hypothetical question to the VE is that neither included findings regarding the side effects of plaintiff's medications or his alleged need to lie down during the day. Regarding the former, during the relevant time period (i.e., from November 1999, see n.1, supra, through the date his insured status expired in December 2001) plaintiff was taking Percocet/Percodan (Oxycodone) and Diazepam (Valium) on a daily basis. See, e.g., Tr. 133, 139, 171, 175, 395, 616. These medications have common side effects, including dizziness, drowsiness, and sleepiness. See
In his written decision, the ALJ noted that plaintiff was prescribed Percocet/Percodan and Valium during the relevant time period (see, e.g., Tr. 616-18), but he appears to have either misunderstood or understated the daily quantities plaintiff was taking. The ALJ wrote ambiguously that plaintiff was "taking 2 pills as needed" (Tr. 616), whereas plaintiff indicated he was taking Percodan every two to three hours and Valium twice per day (Tr. 109), up to "six of each a day" (Tr. 836). Dr. Hall wrote in a March 2007 report that plaintiff had been on the same medications for ten years, namely, "Percodan, 320mg q 4-6 hours prn, and Valium, 10 mg, q 4-6 hours, prn" (Tr. 471). The ALJ swept away the medication side effects issue by stating that "[a]though the extent of limitations (i.e., the need to lie down and drowsiness) identified by Dr. Hall are not consistent with the claimant's daily activities or the record, the undersigned has nevertheless restricted the claimant to unskilled work to account for his pain and/or medication side effects" (Tr. 621).
Elsewhere in his decision the ALJ appeared to dismiss plaintiff's medication side effects on the grounds that plaintiff
(Tr. 618-19.) A review of the pages cited by the ALJ reveals that this portrayal of plaintiff's activities is both exaggerated and fails to justify the ALJ's implied finding that plaintiff could work full-time despite his medication side effects. At Tr. 237, Dr. Jones noted in January 2000 that plaintiff "has finished his GED" and at Tr. 324 Dr. Hall noted in August 2001 that plaintiff "is going to start school." These simple facts say nothing to discount medication side effects and they certainly do not support a finding that plaintiff can work full-time. At Tr. 358, Dr. Hall indicated in December 2000 that plaintiff "may return to job [illegible] job with restrictions on a temporary basis to see if can tolerate driving" and Tr. 359 is a medical form, presumably from Dr. Hall's office, that says nothing about medication side effects or plaintiff's activities. At Tr. 378, the occupational therapist did note, as the ALJ indicates, that plaintiff "was able to pace self to drive 3.5 hours to this appointment, . . ." However, the ALJ neglected to acknowledge that this sentence continued as follows: ". . . although he arrived reporting a pain level of 10 on a 0=no pain, 10=max. pain scale at the start of the evaluation and required 22 minutes supine positioning to reduce reported pain to a starting level of 5-6."
None of the pages cited by the ALJ suggest that plaintiff was "fully independent in personal care activities." At the other pages cited by the ALJ ("545, 546, 568-569 and testimony"), which the ALJ cited for the proposition that "the claimant described significant daily activities during the period at issue in this case," plaintiff testified to the most minimal of activities. At Tr. 545, plaintiff testified that in 2003 he "tried to set up a small craft shop at my residence just to simply be doing something," although he did not say, and the ALJ did not ask, if this effort succeeded or what, if anything, plaintiff did with this craft shop if indeed he set one up. At Tr. 546, plaintiff testified that "with my physical restrictions, it's . . . all I can do to walk. I mean, I . . . don't just lay around. . . . I'm pretty motivated and the best thing I can do now is house chores. And then I complete any one facet of that. I have to do it in phases over a period of several days just to complete simple household chores." At Tr. 568-69, plaintiff testified he would "do what I could" in terms of household chores, such as "[v]ery minimal trash. I couldn't do the dishes, you know. I had very minimal dishes, two or three maybe at a time. Laundry was just a handful of just clothes." Plaintiff testified he shopped "[s]eldom"; that he walked his dog "as much as I can" and "[j]ust around the yard"; that he did not get out to see people regularly; that friends or relatives would occasionally visit him; that he had hobbies before getting injured but has none now; and that he had trouble bathing and dressing himself (Tr. 569). No reasonable fact-finder could interpret this testimony as indicative of plaintiff being "independent in personal care activities" and engaging in "significant daily activities." Nor does this testimony support the finding that plaintiff does not experience medication side effects that would interfere with full-time work.
At his most recent hearing in January 2013, plaintiff testified similarly to his daily activities. He indicated that during the time period in question he lived alone, that he was therefore responsible for the care of the house but his brother "would take care of all the outside things from grocery shopping to the lawn" (Tr. 834-35). Plaintiff could wash the dishes, but "there wasn't much activity in the house, so I couldn't dirty it up very much" and "I would have friends help back [sic] and that kind of thing" (Tr. 835). Plaintiff could make "simple meals" for himself, but only "[m]icrowavable, no full-prepared meals, I just couldn't stand that long" (Tr. 843). Plaintiff could dress himself "most of the time," but he would "have to call my brother, and just simply get my jeans on [sic] because I couldn't do it" (Tr. 843). Plaintiff's other activities were watching television, walking his brother's dog, "[r]arely" playing computer games ("once or twice a week" for "five or 10 minutes"), walking to his brother's house "a couple hundred feet," driving 15 miles into town once per month to go to the bank and for doctor appointments, and shopping "[v]ery little" (Tr. 843-48). Plaintiff testified that he did no yard work or repairs around the house and that he and his brother sometimes attended concerts in a local park (Tr. 848-49). No reasonable fact-finder could review this evidence and conclude that plaintiff engaged in "significant" activities that are inconsistent with severe pain, medication side effects, or the need to lie down periodically throughout the day.
The Sixth Circuit has held that the ALJ must evaluate "[t]he type, dosage, effectiveness, and side effects of any medication" as part of the process of determining the extent to which symptoms impair a claimant's capacity to work. Keeton v. Comm'r of Soc. Sec., 583 F. App'x 515, 532 (6th Cir. 2014) (quoting 20 C.F.R. § 416.929(c)(3)(i)-(vi)). Further, hypothetical questions to vocational experts must account for medication side effects. See White v. Comm'r of Soc. Sec., 312 F. App'x 779, 789-90 (6th Cir. 2009). These rules were disregarded in this case. The ALJ did not make findings regarding the amount (dosages) of the medications plaintiff was taking. Nor did the ALJ evaluate plaintiff's testimony or written comments concerning his medication side effects and he offered no reason for doubting plaintiff's credibility as to this issue. Nor did the ALJ develop the record by probing further when plaintiff testified that his medications make him feel "drowsy, . . . incoherent . . . [and] stumbly" (Tr. 837). It appears the ALJ dismissed drowsiness as a medication side effect mentioned by Dr. Hall because it, and plaintiff's need to lie down, "are not consistent with the claimant's daily activities or the record" (Tr. 621). Yet this finding is not supported by substantial evidence because the record confirms that during the relevant time frame plaintiff was daily taking Percodet/Percodan and Valium/Diazepam in significant quantities, and his reported daily activities were so minimal (see, e.g., Tr. 99, 112, 568-70, 576, 834-35, 842-50) that no reasonable fact-finder could conclude they rule out drowsiness.
On remand, the ALJ must (1) determine the amount of Percodet/Percodan/Oxycodone and Valium/Diazepam plaintiff was taking daily during the relevant time period, (2) make findings as to the nature and extent of these medications' side effects, if any, and adjust his findings as appropriate regarding plaintiff's RFC, and (3) incorporate these findings in proper hypothetical question(s) to the VE to determine whether work exists in significant numbers that can be performed by a person such as plaintiff who experiences such medication side effects.
The ALJ's RFC evaluation of plaintiff and his hypothetical question to the VE is also flawed due to the ALJ's failure to assess plaintiff's alleged need to lie down frequently throughout the day. Plaintiff testified that he must lie down three or four times for "anywhere from 15 to 30 minutes to an hour and a half . . . each time" to alleviate his back pain (Tr. 851; see also Tr. 576). When he underwent a functional capacities evaluation in June 2000, plaintiff told the occupational therapist that on a "typical day [he] will require ½ hour to 1 hour supine positioning twice a day for pain control" (Tr. 378).
Just as with the medication side effects issue, the ALJ dismissed plaintiff's alleged need to lie down periodically throughout the day by asserting that this need and the drowsiness "identified by Dr. Hall are not consistent with the claimant's daily activities or the record" (Tr. 621). Yet, as noted above, plaintiff has described extremely limited daily activities which no reasonable fact-finder could find to be inconsistent with the need to lie down periodically throughout the day to relieve back and leg pain. Nor is "the record" inconsistent with this alleged need, as the medical records uniformly show that plaintiff experiences back and leg pain (the differences of opinion concerning not the fact but the severity and causation thereof), and the other physicians who have expressed opinions regarding plaintiff's ability to sit, stand, and walk simply have not commented on plaintiff's need, if any, to lie down during the day. In short, plaintiff's testimony and Dr. Hall's opinion regarding this particular aspect of plaintiff's back and leg pain is neither inconsistent with nor contradicted by any other evidence in this record.
On remand, the ALJ must (1) determine whether plaintiff must lie down periodically throughout the day and, if so, how often and for how long he must do so, and (2) incorporate these findings in proper hypothetical question(s) to the VE to determine whether work exists in significant numbers that can be performed by a person such as plaintiff who has this need.
On remand, the ALJ must also reevaluate Dr. Hall's opinion, expressed repeatedly, that plaintiff is unable to work (Tr. 285, 310, 373, 375, 470-72). The Court of Appeals remanded the matter in June 2012 with instructions that the ALJ identify and evaluate Dr. Hall's restrictions so that "a meaningful review of the ALJ's application of the treating-physician rule" could occur. While the ALJ did, on remand, identify and evaluate Dr. Hall's restrictions, he failed to give proper weight to Dr. Hall's opinion. As the Court of Appeals noted,
Rife v. Comm'r of Soc. Sec., 485 F. App'x 56, 58 (6th Cir. 2012). The ALJ did not give good reasons for giving "no weight" (Tr. 619) to Dr. Hall's opinion that plaintiff is unable to work. Dr. Hall, who has treated plaintiff regularly since his back injury in 1996, has opined that plaintiff is unable to work because (1) he must lie down periodically throughout the day, and (2) his pain level and medication side effects impair his concentration (Tr. 471). This opinion, expressed in March 2007, cannot be dismissed on the grounds that it post-dates the expiration of plaintiff's insured status because Dr. Hall clearly indicated that plaintiff "has had all of these problems since his surgery in January of 1997 with little if any improvement" (Tr. 472). Moreover, Dr. Hall had previously expressed the same opinion in December 2001, before plaintiff's insured status expired (Tr. 310). Nor can Dr. Hall's opinion be dismissed on the grounds that it is unsupported by objective findings, as Dr. Hall noted (in January 2000) "MRI testing confirming the degenerative disc disease" (Tr. 393, 442) and repeatedly observed muscle spasms in plaintiff's back and neck and decreased range of motion during the relevant period (Tr. 179, 318, 333, 343, 348, 351, 362, 368, 371, 373, 375). While the ALJ correctly notes that other physicians, such as Dr. Buszek who examined plaintiff once in May 2001 (Tr. 336-40), have opined that plaintiff could meet the exertional demands (i.e., the ability to sit, stand, walk, and lift) of sedentary work, no physician has expressed an opinion contradicting Dr. Hall as to plaintiff's need to lie down and his reduced ability to concentrate due to pain and medication side effects. Nor do plaintiff's minimal daily activities provide a reasonable basis for rejecting these critical aspects of Dr. Hall's opinion. In short, the record does not support the ALJ's rejection of the specific bases of Dr. Hall's opinion. On remand, the ALJ must either defer to Dr. Hall or give good reasons for finding that plaintiff, during the relevant time period, did not need to lie down periodically throughout the day and that plaintiff's concentration was not impaired to a disabling degree by his pain level and medication side effects.
For the reasons stated above, the Court concludes that the ALJ's decision in this matter is not supported by substantial evidence. Although proof of disability is strong in this case, the Court believes that remanding the matter for an award of benefits would not be appropriate at this time because the record, in its current state, is not such that "proof of disability is overwhelming or . . . proof of disability is strong and evidence to the contrary is lacking." Faucher v. Sec'y of Health and Human Servs., 17 F.3d 171, 176 (6th Cir. 1994). Rather, the matter must be remanded so that the record may be further developed to correct the errors noted above. Accordingly,
IT IS ORDERED that defendant's motion for summary judgment is denied.
IT IS FURTHER ORDERED that plaintiff's motion for remand is granted and this matter is remanded for further proceedings as specified above. This is a sentence four remand under § 405(g).
(Tr. 615.)
