MARK A. RANDON, Magistrate Judge.
Plaintiff Salena Glenn challenges the Commissioner of Social Security's ("the Commissioner") final denial of her benefits application. Cross motions for summary judgment are pending (Dkt. Nos. 14, 18). Plaintiff also filed a response (Dkt. No. 19). Judge Thomas L. Ludington referred the motions to this Magistrate Judge for a Report and Recommendation (Dkt. No. 3).
Because the Administrate Law Judge's ("ALJ") determination that Plaintiff was not disabled is not supported by substantial evidence, this Magistrate Judge
Under the Social Security Act, (the "Act") Disability Insurance Benefits and Supplemental Security Income are available only for those who have a "disability." See Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). The Act defines "disability," in relevant part, as the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment, which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (DIB); 20 C.F.R. § 416.905(a) (SSI).
The Commissioner's regulations provide that disability is to be determined through the application of a five-step sequential analysis:
See 20 C.F.R. §§ 404.1520, 416.920; see also Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001). "The burden of proof is on the claimant throughout the first four steps. . . . If the analysis reaches the fifth step without a finding that the claimant is disabled, the burden transfers to the [Commissioner]." Preslar v. Sec'y of HHS, 14 F.3d 1107, 1110 (6th Cir. 1994).
This Court has jurisdiction to review the Commissioner's final administrative decision pursuant to 42 U.S.C. § 405(g). Judicial review under this statute is limited such that the Court "must affirm the Commissioner's conclusions absent a determination that the Commissioner has failed to apply the correct legal standard or has made findings of fact unsupported by substantial evidence in the record." Longworth v. Comm'r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005) (internal quotation marks omitted); Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 654 (6th Cir. 2009) ("[I]f an agency has failed to adhere to its own procedures, we will not remand for further administrative proceedings unless the claimant has been prejudiced on the merits or deprived of substantial rights because of the agency's procedural lapses") (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); see also Cutlip v. Sec'y of HHS, 25 F.3d 284, 286 (6th Cir. 1994) (internal citations omitted) (explaining that 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"); Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc) (noting that the substantial evidence standard "presupposes . . . a zone of choice within which the decisionmakers can go either way, without interference by the courts" (internal quotation marks omitted)).
When reviewing the Commissioner's factual findings for substantial evidence, this Court is limited to an examination of the record and must consider that record as a whole. See Bass v. McMahon, 499 F.3d 506, 512-13 (6th Cir. 2007); Wyatt v. Sec'y of HHS, 974 F.2d 680, 683 (6th Cir. 1992). The Court "may look to any evidence in the record, regardless of whether it has been cited by the Appeals Council." Heston, 245 F.3d at 535. There is no requirement, however, that either the ALJ or this Court discuss every piece of evidence in the administrative record. See Kornecky v. Comm'r of Soc. Sec., 167 F. App'x 496, 508 (6th Cir. 2006) ("[A]n ALJ can consider all the evidence without directly addressing in his written decision every piece of evidence submitted by a party") (internal quotation marks omitted). Further, this Court does "not try the case de novo, resolve conflicts in evidence, or decide questions of credibility." Bass, 499 F.3d at 509; 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").
Plaintiff applied for supplemental security disability income and disability insurance benefits on August 14, 2008, alleging she became disabled on March 28, 2007 (Tr. 14). After the Commissioner initially denied Plaintiff's application, she appeared without counsel for a hearing before ALJ Curtis R. Boren, who considered the case de novo.
Plaintiff completed some college and has past relevant work as production worker, certified nursing assistant, assembly line worker and group home worker (Tr. 21, 35). The ALJ applied the five-step disability analysis to Plaintiff's claim and found at step one that she had not engaged in substantial gainful activity since her disability onset date in March of 2007 (Tr. 16).
At step two, the ALJ found that Plaintiff had the following "severe" impairments: degenerative disc disease,
At step three, the ALJ found no evidence that Plaintiff's impairments met or medically equaled one of the listings in the regulations (Tr. 17).
Between steps three and four, the ALJ found that Plaintiff had the Residual Functional Capacity ("RFC") to perform:
(Tr. 18).
At step four, the ALJ found that Plaintiff could not perform her past relevant work as a production worker, certified nursing assistant, assembly line worker or group home worker (Tr. 21).
At step five, the ALJ found Plaintiff was not disabled, because there are a significant number of jobs available in the national economy that Plaintiff could perform (Tr. 22).
Plaintiff's impairments stem from a March 28, 2007 car accident (Tr. 38, 198). Plaintiff testified that she has headaches that make her feel like she is going to die, constant neck and back pain, trouble with her memory, problems with her shoulder, and cysts around her vulva which occasionally prevent her from walking and require extra bathroom breaks (Tr. 38-39, 42, 44, 49-50). To manage the pain, Plaintiff took a pain management class and exercises (Tr. 38). She uses a walker when her pain becomes unbearable (Tr. 44-45).
Plaintiff testified that she can rotate her neck and do household chores for short periods of time (Tr. 39, 47).
On January 12, 2007 and March 16, 2007, Plaintiff complained of cysts around her vulva (Tr. 285, 294). Lisa A. Manz-Dulac, M.D. diagnosed Plaintiff with hidradenitis suppurativa
On February 27, 2007, Sudha Chakravarty, M.D., opined that Plaintiff may need to use the restroom frequently and take 1-2 days off work per month (if her cysts flare up) (Tr. 473-474).
Plaintiff's condition prevented her from working between February 27, 2007 and March 29, 2007 (Tr. 469-470).
On March 27, 2007, Veena B. Chari-Hedni, M.D., opined that Plaintiff could return to work, but she needed extra breaks for medical reasons (Tr. 472).
In a letter dated April 23, 2008, Richard J. Ferrara, Jr., M.D., indicated that Plaintiff was seen in his office on April 14, 2008 for hidradenitis suppurativa, and "[t]reatment options were discussed[.]" Plaintiff was to return in six months (or earlier, if needed) (Tr. 351).
On July 29, 2010, Plaintiff reported that the hidradenitis suppurativa was inflamed due to stress (Tr. 463).
On February 27, 2007, Plaintiff complained of pain in her shoulder (Tr. 292). While radiographs of Plaintiff's shoulders were normal, an MRI of Plaintiff's left shoulder three months later revealed possible tendinitis (Tr. 224, 293).
On June 6, 2007, Plaintiff began treatment with John C. Pollina, M.D. Plaintiff reported pain in her left shoulder and lower back. Her pain decreased with medication and hot baths; it increased when she raised her arm above her head, walked or stood up. On examination, Plaintiff had full range of motion in her neck, but she was moderately restricted in her lumbar range of motion. She could only abduct her left shoulder to 90 degrees
On June 21, 2007, Plaintiff treated with Yi C. Sul, M.D. Plaintiff complained of neck, left shoulder, and lower back pain which increased with activity. Plaintiff had a slow gait, but did not need a walking aid (Tr. 231-232).
On June 26, 2007, an MRI of Plaintiff's lumbar spine was negative (Tr. 281). An EEG performed by Dr. Sul on June 30, 2007 was also normal (Tr. 216).
On July 9, 2007, an examination of Plaintiff's neck and lumbar spine revealed muscle spasms (mostly on the left side) and restricted range of motion. David M. Katz, D.C. diagnosed Plaintiff with: (1) cervical, thoracic and lumbar sprain; and (2) left side cervical and lumbar radiculitis
On July 12, 2007, Plaintiff had restricted range of motion in her spine (Tr. 192). Approximately two weeks later, Plaintiff reported trouble walking and performing functional activities (Tr. 277).
On August 2, 2007, Plaintiff reported improvement in her left shoulder, neck, and lower back pain. But, she was still mildly restricted in her lumbar range of motion and in her ability to abduct and rotate her left shoulder; she did have full range of motion in her cervical and thoracic spine (Tr. 257).
On August 29, 2007, Plaintiff reported pain in her neck, upper and lower back, and left shoulder. Dr. Pollina indicated that Plaintiff: (1) moved slowly; (2) was mild-to-moderately limited in her ability to abduct and rotate her right shoulder; and (3) had restricted range of motion in her lumbar spine. Plaintiff had full range of motion in her neck. Dr. Pollina diagnosed Plaintiff with: (1) left shoulder tendinitis; and (2) cervical, thoracic, and lumbar myofascitis.
Edward J. Dailey, D.C. diagnosed Plaintiff with spondylosis of the cervical spine,
On October 2, 2007, an MRI of Plaintiff's cervical spine revealed: (1) disc protrusion; (2) neural foraminal narrowing;
Plaintiff began physical therapy at the Rehabilitation Institute of Michigan on December 18, 2007. Her progress was limited, because Plaintiff was distracted by lights, noises and other patients. The Rehabilitation Institute discharged Plaintiff due to poor attendance (Tr. 275).
On December 19, 2007, Plaintiff continued to report neck and lower back pain as well as discomfort in her left shoulder. Her pain was worse with movement. On examination, Dr. Pollina concluded that Plaintiff's neck range of motion was mildly limited; she had mild-tomoderate restriction in her left shoulder range of motion; and, she could only bend 40 degrees and extend 10 degrees. Dr. Pollina diagnosed Plaintiff with: (1) cervical disc herniation; (2) left shoulder rotator cuff and bicipital tendinitis;
On December 27, 2007, Plaintiff could not raise her left arm; her gait was slow; and, she had trouble walking on her toes and heels, and tandem walking
A February 1, 2008 examination showed Plaintiff had restricted range of motion in her lumbar and cervical spine (Tr. 275).
On February 7, 2008, Plaintiff reported discomfort in her neck and pain in her left shoulder. On examination, Dr. Pollina concluded that Plaintiff's neck range of motion was mildly limited. She diagnosed Plaintiff with: (1) cervical disc herniation; (2) bicipital tendinitis; and (3) thoracic and lumbar strain. Dr. Pollina recommended that Plaintiff not return to work for an additional eight weeks (Tr. 251-252).
On April 2, 2008, Plaintiff reported pain in her neck and left shoulder. Dr. Pollina again concluded that Plaintiff's neck and lumbar spine range of motion were mildly limited, and Plaintiff could only abduct her left shoulder to 90 degrees (Tr. 249-250). Dr. Pollina recommended that Plaintiff not return to work for eight more weeks. She diagnosed Plaintiff with: (1) cervical disc herniations; (2) bicipital and supraspinatus tendinitis;
An MRI of Plaintiff's left shoulder was performed on April 19, 2008. Javier Beltran, M.D. found a small medium grade articular surface partial tear of the distal supraspinatus tendon. There was no muscular atrophy,
On April 21, 2008, an examination revealed minimal arthritis in Plaintiff's left shoulder with calcific tendinitis
Plaintiff's neck pain improved in May of 2008: her ability to dress and groom herself increased 25% (Tr. 267).
On June 5, 2008, Plaintiff reported neck pain, left shoulder pain, and lower back pain (Tr. 245). On examination, Dr. Pollina determined that Plaintiff's range of motion in her left shoulder was moderately restricted. Dr. Pollina diagnosed Plaintiff with: (1) cervical strain and disc herniations; (2) tendinitis and rotator cuff tear; and (3) thoracic and lumbar strain (Tr. 245-246). She recommended that Plaintiff remain off work for an additional eight weeks (Tr. 361).
On June 20, 2008, Suchetha Pandva, P.T., M.S., P.E.S., reported that Plaintiff had limited functional tolerance with reaching, driving, looking over her shoulder while driving, doing household chores, walking, ascending stairs, prolonged sitting, grocery shopping, and performing activities of daily living and functional activities at chest height and above (Tr. 266).
On July 9, 2008, Cezar Cabrera Jr., P.T.A., indicated that Plaintiff's report of constant pain with activities of daily living and prolonged standing and standing was inconsistent with the clinical objective findings (Tr. 264).
On July 22, 2008, Plaintiff reported pain in her left shoulder, neck and lower back. Dr. Pollina concluded that Plaintiff's range of motion in her left shoulder was moderately restricted. She diagnosed Plaintiff with: (1) cervical strain and disc herniations; (2) bicipital and supraspinatus tendinitis; and (3) thoracic and lumbar strain. She recommended that Plaintiff increase her activity (Tr. 243).
On August 14, 2008, Plaintiff complained of pain in her thoracic and lumbar spine, and Dr. Pollina diagnosed Plaintiff with acute thoracolumbar strain (Tr. 242).
On August 28, 2008, Plaintiff remained off work on "total disability." Her pain lessened with rest, and increased when she moved her left arm. On examination, Dr. Pollina found Plaintiff had moderate left cervical and shoulder muscle spasms, and severely limited range of motion in the neck. Dr. Pollina diagnosed Plaintiff with: (1) cervical strain and disc herniations;
(2) bicipital and supraspinatus tendinitis; (3) thoracic and lumbar strain; and (4) left shoulder myofascitis. She recommended that Plaintiff not return to work for an additional six weeks (Tr. 240-241).
On September 6, 2008, September 10, 2008, and September 27, 2008, Plaintiff continued to report pain in her neck, left shoulder and lower back. Dr. Pollina performed acupuncture treatment (Tr. 237-239).
On October 4, 2008, Plaintiff reported that she felt better and could move around easier, but she still had pain in her neck and lower back. The pain decreased with medication and increased with activity. Dr. Pollina diagnosed Plaintiff with cervical strain and disc herniations, myofascitis in her shoulder, and thoracic and lumbar myofascitis (Tr. 236).
On November 26, 2008, Plaintiff complained of arthritis in her neck and back that increased when she lifted objects, pushed, pulled, and reached (Tr. 374). Dr. Cynthia Shelby-Lane, M.D. found Plaintiff had mild tenderness to palpation of the low lumbar area; and while lying down, Plaintiff could only raise her leg to 50 degrees (Tr. 376). Dr. Shelby-Lane found that Plaintiff could: (1) occasionally lift 10 or 15 pounds; (2) stand and walk four hours in an eight-hour workday; (3) sit less than six hours in an eight-hour workday (with the ability to change positions); (4) use her upper extremities for simple grasping, reaching, pushing, pulling, and fine manipulation; and (5) operate foot and leg controls bilaterally (Tr. 377). Brian Neu — a consultative examiner for the Social Security Administration ("SSA") — found that Dr. Shelby-Lane's standing, walking and sitting restrictions were unsupported (Tr. 383).
William Joh, M.D. completed a Physical RFC on December 22, 2008. He found that Plaintiff could perform light work with the following limitations: (1) occasionally lift 20 pounds;
(2) frequently lift 10 pounds; (3) stand, sit and walk for six hours in an eight-hour workday; (4) only use her left shoulder frequently; and (5) avoid frequently using her left arm to lift objects above her shoulder and perform overhead work (Tr. 403, 405). Dr. Joh reported that his conclusion regarding Plaintiff's ability to lift, stand, walk, and sit were based on the fact that Plaintiff's "[a]llegation[s] seem[ed] out of proportion" (Tr. 403).
Plaintiff experienced headaches from the car accident in March of 2007. On June 21, 2007, Plaintiff reported that her headaches were slightly relieved by taking Tylenol #3, and she only experienced dizziness 2-3 times per week (i.e., a spinning sensation that lasted for two minutes) (Tr. 231). On June 30, 2007, Plaintiff reported daily headaches and light-headedness (Tr. 229).
Plaintiff reported frequent headaches on December 19, 2007, December 27, 2007, and February 7, 2008 (Tr. 228, 251, 253).
On December 18, 2007, Plaintiff reported dizziness when she squatted; carried objects; and sat and stood up for extended periods of time (Tr. 274).
Plaintiff reported that her headaches improved in June of 2008, and her dizziness decreased in May of 2008; her headaches returned on the left side in August of 2008 (Tr. 225, 240, 267). And, Plaintiff reported increased headaches on July 21, 2010 (Tr. 455). Plaintiff's diagnoses included the following:
Between 2007 and 2010, Plaintiff experienced depression; anxiety; problems with memory and focus; a slow thought process; irritability; agitation; mood swings; flight of ideas; poor concentration; anxiousness; feelings of anger, frustration, hopelessness and helplessness; crying spells; sadness; low self esteem; lack of motivation; low energy; paranoia; auditory hallucinations; and suicidal and homicidal ideation (Tr. 225, 228, 232, 243, 247-250, 253, 255, 259, 292, 368, 372, 374, 377, 415-416, 420, 422, 426, 428, 435, 443, 445, 451, 455). Her diagnoses included the following:
During an interview on August 22, 2008, Social Security representative B. Glodowski stated that Plaintiff had a "hard time remembering dates and other items" (Tr. 139).
On November 26, 2008, Dr. Qadir evaluated Plaintiff and completed a psychiatric report (Tr. 368-370). Dr. Qadir found that Plaintiff had trouble performing simple manual labor jobs due to depression, short-term memory problems, and trouble concentrating (Tr. 370).
On December 10, 2008, Mr. King concluded that Plaintiff was moderately limited in her ability to: (1) perform activities of daily living; and (2) maintain concentration, persistence or pace (Tr. 398). She was mildly limited in her ability to maintain social functioning (Tr. 398).
On December 14, 2008, Mr. Neu wrote:
(Tr. 372).
James Tripp, ED.D. completed a Mental RFC on December 17, 2008. Dr. Tripp determined that Plaintiff was moderately limited in her ability to: (1) understand and remember detailed instructions; (2) carry out detailed instructions; (3) maintain attention and concentration for extended periods; and (4) interact appropriately with the general public (Tr. 384-385). Dr. Tripp concluded that Plaintiff was not precluded from performing simple, unskilled work activities (Tr. 386).
The ALJ asked a VE to assume a hypothetical individual of Plaintiff's age, education and past work experience. The individual could perform light work but could only occasionally reach overhead and lift objects above shoulder level. The individual also has mental limitations "consistent with Exhibit 9F" [i.e., moderately limited in her ability to: (1) understand and remember detailed instructions; (2) carry out detailed instructions; (3) maintain attention and concentration for extended periods; and (4) interact appropriately with the general public] (Tr. 55-56, 384-385). The VE testified that such an individual could not perform Plaintiff's past relevant work (Tr. 56). But, the individual could perform work as a laundry sorter or classifier
According to the VE, the individual would be precluded from work if she: (1) could only work for small increments of time — with breaks between increments — for a total of four hours of work per day; (2) had moderately severe to severe chronic pain; and (3) had depression or anxiety that interfered with her ability to maintain attention, concentration, persistence and pace such that she could not complete an eight-hour work day or a 40-hour work week (Tr. 58-59).
Plaintiff argues that the ALJ erred by failing to request a medical source statement from Plaintiff's treating physician — Dr. Pollina — regarding her "ability, despite [her] impairment(s), to do work-related activities such as sitting, standing, walking, lifting carrying, handling objects, hearing, speaking, and traveling[.]" See 20 C.F.R. §416.913(c)(1).
Because Plaintiff was not represented by counsel at the administrative hearing, the ALJ had a heightened duty to fully develop the record. See Lashley v. Sec. of HHS, 708 F.2d 1048, 1051 (6th Cir. 1983). Specifically, the ALJ was required to "scrupulously and conscientiously probe into, inquire of, and explore the relevant facts." Id. (citation omitted). As part of this duty, the regulations require the ALJ to request a medical source statement. See 20 C.F.R. §404.1513(b)(6) ("we will request a medical source statement about what [Plaintiff] can still do despite [her] impairment(s)") (emphasis added). But, the regulations further state that "the lack of the medical source statement will not make the report incomplete." Id.; see also Mayes v. Massanari, 276 F.3d 453, 459-460 (9th Cir. 2001) ("[a]n ALJ's duty to develop the record further is triggered only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence"). Accordingly, "remand is not always required when an ALJ fails in his duty to request opinions, particularly where, as here, the record contains sufficient evidence from which an ALJ can assess the petitioner's residual functional capacity." Tankisi v. Comm'r of Soc. Sec., No. 12-1398-cv, 2013 WL 1296489 at *4 (2nd Cir. April 2, 2013) (citing Moser v. Barnhart, 89 F. App'x 347, 348 (3rd Cir. 2004); Scherschel v. Barnhart, 72 F. App'x 628, 630 (9th Cir. 2003); Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995)).
The medical evidence in this case is extensive. It includes the following assessments of Plaintiff's limitations:
(Tr. 21). Because the medical record was voluminous, the medical evidence unambiguous, and the record adequate to permit an informed finding by the ALJ, there was no error in the ALJ's failure to request a medical source statement from Dr. Pollina.
Plaintiff next argues that the ALJ's RFC determination is unsupported by substantial evidence because the ALJ: (1) erred in affording "great weight" to Dr. Joh and Dr. Tripp's opinions; (2) erred in failing to afford the proper weight to Dr. Qadir and Dr. Shelby-Lane's opinions; and (3) failed to accurately consider limitations stemming from her hidradenitis suppurativa.
The Sixth Circuit has instructed ALJs on how to assess opinions from nonexamining sources like Dr. Joh and Dr. Tripp and nontreating sources like Dr. Qadir and Dr. Shelby-Lane:
Gayheart v. Comm'r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013). The ALJ concluded that Dr. Joh and Dr. Tripp's opinions were entitled to "great weight":
(Tr. 21).
This Magistrate Judge finds the ALJ failed to discuss the supportability factor when assessing Dr. Joh's opinion. See 20 C.F.R. §404.1527(c)(3):
The only rationale for Dr. Joh's opinion that Plaintiff could perform light work was that Plaintiff's allegations seemed out of proportion (Tr. 403). Dr. Joh did not "[c]ite the specific facts upon which [his] conclusion [was] based" or "explain how and why the evidence support[ed] [his] conclusions" (Tr. 403, 405). In addition, Dr. Joh indicated that a treating or examining source statement regarding Plaintiff's physical capacities was in the file and the statement was significantly different from his findings; but, when asked to explain why the treating or examining source's statement was not supported by the evidence in the file (including the source's name and date of the statement), Dr. Joh simply wrote "[n]ot substantiated" (Tr. 408). This case should be remanded to the ALJ for a discussion on whether Dr. Joh's opinion should still be afforded "great weight" given the apparent lack of supportability.
Plaintiff also argues that the ALJ did not consider the fact that Dr. Tripp's opinion that Plaintiff could perform "simple, unskilled work activities," (Tr. 386) was inconsistent with Dr. Qadir's opinion that Plaintiff "will have problems attending to simple manual labor jobs" (Tr. 370).
Plaintiff's argument ignores the fact that the ALJ discounted Dr. Qadir's opinion because he "did not specify the nature or degree of [Plaintiff's] difficulty [with performing simple manual labor jobs]" (Tr. 21). This Magistrate Judge finds the ALJ did not err by failing to address the consistency factor outlined in 20 C.F.R. §404.1527(c)(4).
The ALJ concluded as follows regarding Dr. Qadir's opinion:
(Tr. 21) (emphasis added). While the ALJ discounted Dr. Qadir's opinion that Plaintiff "will have problems attending to simple manual labor jobs," it appears that he adopted the reasoning underlying the opinion: that Plaintiff has trouble with short-term memory and concentration (Tr. 370). Plaintiff says it is unclear how the ALJ adopted Dr. Qadir's reasoning, but concluded in his RFC determination that Plaintiff "can understand, remember and carry-out simple tasks with no limitations" (Tr. 18).
A review of the ALJ's decision — in its totality — reveals that in reaching his RFC determination, the ALJ read the reasoning underlying Dr. Qadir's opinion (i.e., that Plaintiff had trouble with short-term memory and concentration) together with Dr. Tripp's opinion that Plaintiff could perform "simple, unskilled work activities." As such, the ALJ's decision should not be disturbed on appeal.
The ALJ concluded as follows regarding Dr. Shelby-Lane's opinion:
(Tr. 21).
This Magistrate Judge finds the ALJ did not err in his conclusion that Dr. Shelby-Lane's opinion — that Plaintiff was limited to standing and walking no more than four hours — was inconsistent with her findings during the examination. Although Plaintiff had mild tenderness to palpation of the low lumbar area and she could only raise her leg to 50 degrees lying down (Tr. 376), Dr. Shelby-Lane noted that Plaintiff did not use a walking aid; her gait and stance were normal; and, she could tandem walk, heel walk and toe walk without difficulty (Tr. 376). Further, Mr. Neu opined that Dr. Shelby-Lane's standing and walking restrictions were unsupported (Tr. 383).
However, the ALJ did err in his conclusion that Plaintiff's ability to occasionally lift 10 or 15 pounds was consistent with the requirements of light work. "The regulations define light work as lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds." SSR 83-10 (emphasis added). This case should be remanded to the ALJ to explain how Plaintiff could perform the lifting requirement of light work given Dr. Shelby-Lane's opinion.
This case should also be remanded to the ALJ for consideration of Dr. Shelby-Lane's opinion that Plaintiff could sit less than six hours in an eight-hour workday (with the ability to change positions). A finding that Plaintiff cannot sit for six hours — coupled with the requirement that she change positions — means she may be unable to perform the requirements of light, unskilled work. See SSR 83-10 ("the full range of light work requires standing or walking, off and on, for a total of approximately [six] hours of an [eight]-hour workday"); see also SSR 83-12 ("[u]nskilled types of jobs are particularly structured so that a person cannot ordinarily sit or stand at will"); SSR 96-9p (where the need to alternate sitting and standing "cannot be accommodated by scheduled breaks and a lunch period, the occupational base for a full range of unskilled sedentary work will be eroded").
In determining Plaintiff's RFC, the ALJ noted that "[a] statement from March 2007 related to short-term hidradenitis suppurtiva is not material to an assessment of the effect of [Plaintiff's] long-term severe impairments upon her ability to perform vocational tasks" (Tr. 21). But, the regulations require the ALJ to "consider the limiting effects of all [Plaintiff's] impairments, even those that are not severe, in determining [her] [RFC]." 20 C.F.R. §404.1545(e).
This case should be remanded to the ALJ for a discussion of Plaintiff's hidradenitis suppurtiva, including the need to take extra breaks.
The ALJ discussed the factors outlined in 20 C.F.R § 404.1529(c)(3) that must be considered when assessing the credibility of Plaintiff's statements:
(Tr. 19-21). With regard to the first factor, the ALJ stated "[Plaintiff] remains capable of caring for her children, can prepare meals, and recently began exercising at a local gym (including use of the treadmill and aquatic exercise)" (Tr. 19).
The ALJ's description of Plaintiff's daily activities "not only mischaracterizes [Plaintiff's] testimony regarding the scope of her daily activities, but also fails to examine the physical effects coextensive with their performance." See Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 248-49 (6th Cir. 2007). Specifically, Plaintiff reported that her roommate helps her care for her children,
But, Plaintiff's argument that the ALJ erred in failing to consider her MRI results — which arguably support Plaintiff's credibility — lacks merit. There is no requirement that the ALJ discuss every piece of evidence in the administrative record, See Kornecky, 167 F. App'x at 508, and the ALJ accounted for Plaintiff's shoulder pain by restricting the use of her left shoulder when reaching or working overhead (Tr. 20).
Before the ALJ began the administrative hearing, he informed Plaintiff about the benefits of representation. The following colloquy — in relevant part — occurred between the ALJ and Plaintiff:
(Tr. 29-30) (emphasis added). After the VE's testimony, the ALJ said:
(Tr. 59-60). The transcript of the hearing confirms that Plaintiff — proceeding pro se — did not receive an invitation to cross-examine the VE. Plaintiff says this was error.
The social security regulations require that the ALJ afford Plaintiff an opportunity to question the VE: "[t]he administrative law judge may ask the witnesses any questions material to the issues and shall allow the parties or their designated representatives to do so." 20 C.F.R. §404.950(e) (emphasis added); see also e.g., Haddock v. Apfel, 196 F.3d 1084, 1090 (10th Cir. 1999) ("[c]laimants have a right to cross-examine vocational experts as a part of procedural due process") (citation omitted); Howe v. Astrue, No. 12-93, 2013 WL 593975 at *3 (W.D. Pa. Feb. 14, 2013) ("a claimant has the right to cross-examine vocational experts as a part of procedural due process") (citing Gauthney v. Shalala, 890 F.Supp. 401 (E.D. Pa. 1994)). But, to demonstrate a due process violation, there "must be a showing of prejudice." Carter v. Astrue, No. 3:10-cv-22-J-TEM, 2011 WL 4502024 at *7 (M.D. Fla. Sept. 28, 2011) (quoting Gordon v. Astrue, 249 Fed. Appx. 810, 813 (11th Cir. 2007)).
Plaintiff says she would have asked the VE whether — in identifying jobs Plaintiff could perform despite the limitations provided by the ALJ in the hypothetical question — he considered the fact that Plaintiff was moderately limited in her ability to interact appropriately with the general public. Plaintiff does not believe the VE fully understood the evidence in "Exhibit 9F" that he was supposed to consider (Dkt. No. 19 at 9-10 CM/ECF). This Magistrate Judge agrees. In response to the hypothetical question, the VE testified as follows:
(Tr. 56-57). While the ALJ attempted to formulate a hypothetical question that adequately accounted for Plaintiff's impairments — and included in his RFC determination that Plaintiff was "moderately limited in her ability to . . . interact appropriately with the general public" (Tr. 18)
The ALJ relied on the VE's testimony in finding Plaintiff was not disabled. See Tr. 23 ("[b]ased on the testimony of the [VE], the undersigned concludes that, considering [Plaintiff's] age, education, work experience, and [RFC], [Plaintiff] is capable of making a successful adjustment to other work that exists in significant numbers in the national economy. A finding of "not disabled" is therefore appropriate[.]"). Accordingly, this case should be remanded to allow Plaintiff the opportunity to cross-examine the VE regarding whether his testimony would be affected by an individual who was moderately limited in her ability to interact appropriately with the general public.
Plaintiff also says she would have asked the VE about inconsistencies between his testimony and the information contained in the DOT.
Because the ALJ's determination that Plaintiff was not disabled is not supported by substantial evidence, this Magistrate Judge
The parties to this action may object to and seek review of this Report and Recommendation within fourteen (14) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1). Failure to file specific objections constitutes a waiver of any further right of appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Frontier Ins. Co. v. Blaty, 454 F.3d 590, 596 (6th Cir. 2006); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005). The parties are advised that making some objections, but failing to raise others, will not preserve all the objections a party may have to this Report and Recommendation. See McClanahan v. Comm'r Soc. Sec., 474 F.3d 830 (6th Cir. 2006) (internal quotation marks omitted); Frontier, 454 F.3d at 596-97. Objections are to be filed through the Case Management/Electronic Case Filing (CM/ECF) system or, if an appropriate exception applies, through the Clerk's Office. See E.D. Mich. LR 5.1. A copy of any objections is to be served upon this Magistrate Judge but this does not constitute filing. See E.D. Mich. LR 72.1(d)(2). Once an objection is filed, a response is due within fourteen (14) days of service, and a reply brief may be filed within seven (7) days of service of the response. See E.D. Mich. LR 72.1(d)(3), (4).
