DAVID R. GRAND, Magistrate Judge.
Plaintiff Laurie Walker ("Walker") brings this action pursuant to 42 U.S.C. §405(g), challenging the final decision of Defendant Commissioner of Social Security ("Commissioner") denying her applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under the Social Security Act (the "Act"). Both parties have filed summary judgment motions [12, 13], which have been referred to this Court for a Report and Recommendation pursuant to 28 U.S.C. §636(b)(1)(B).
For the reasons set forth below, the Court finds that the Administrative Law Judge's ("ALJ") conclusion that Walker is not disabled under the Act is not supported by substantial evidence. Accordingly, the Court recommends that the Commissioner's Motion for Summary Judgment [13] be DENIED, Walker's Motion for Summary Judgment [12] be GRANTED IN PART to the extent it seeks remand and DENIED IN PART to the extent it seeks an award of benefits, and that, pursuant to sentence four of 42 U.S.C. §405(g), this case be REMANDED to the ALJ for further proceedings consistent with this Recommendation.
On May 23, 2012, and June 4, 2012, Walker filed applications for DIB and SSI, respectively, alleging a disability onset date of April 21, 2012. (Tr. 118-24, 130-35). These applications were denied initially on August 21, 2012. (Tr. 66-73). Walker filed a timely request for an administrative hearing, which was held on February 12, 2013, before ALJ Timothy Scallen. (Tr. 33-52). Walker, who was represented by attorney Cassandra Frum, testified at the hearing, as did vocational expert Kimberly Warner. (Id.). On May 22, 2013, the ALJ issued a written decision finding that Walker is not disabled. (Tr. 20-28). On September 6, 2013, the Appeals Council denied review. (Tr. 1-5). Walker filed for judicial review of the final decision on November 5, 2013. (Doc. #1).
At the time of the administrative hearing, Walker was 51 years old. (Tr. 37). She testified that she graduated from high school but had no further education. (Id.). She lived alone in a condominium. (Tr. 42). According to Walker, her back was badly injured in 2004 when she was pushed down a set of stairs by her boyfriend; she underwent fusion surgery at that time, and titanium rods and cages were put in place. (Tr. 49, 166, 174). Afterwards, however, Walker recovered fairly well and was able to work as a waitress until April 2012, when her low back pain became "way worse." (Tr. 38-39, 171). Walker testified that her back pain is a 10/10 on the pain scale "90 percent of the time," and it radiates down her right leg. (Tr. 40). She also gets what she calls "shockers," which are sudden jolts of pain down her back and her right side, two or three times a day. (Tr. 40-41). In addition, she has severe arthritis in her right hip; she testified that walking is difficult and she is "losing the use of [her] right leg now." (Tr. 38, 48). However, she does not take any pain medication other than ibuprofen because Vicodin upsets her stomach. (Tr. 40).
Walker indicated that she cannot kneel or lift anything heavier than a gallon of milk. (Tr. 38, 42). She can sit for ten minutes, stand for "only a couple minutes," and walk less than a city block. (Tr. 42-43). Walker testified that, approximately three times a week, she cannot walk at all for some period of time and can only "crawl through the house." (Tr. 46-47). She also asserted that she "can't put any weight" on her right leg; she has to "drag it" or "pick it up to move it." (Tr. 38). She wears a back brace for support and sometimes uses a walker at home. (Tr. 39). She cannot climb stairs and has difficulty sleeping because of pain. (Tr. 43, 49).
On June 5, 2012, Walker presented to the emergency department at Mount Clemens Regional Medical Center, complaining of increasing back pain. (Tr. 229-31). On examination, she was in no apparent distress, had no point tenderness anywhere over her spine, and had full ranges of motion, but she had mildly decreased strength in the right lower extremity. (Tr. 230). A lumbar spine x-ray performed that day revealed only stable postoperative changes. (Tr. 231). Walker was advised to follow up with her neurosurgeon, Dr. Mark Goldberger. (Tr. 230).
On June 13, 2012, Walker again presented to the emergency department, this time "fully intoxicated" and complaining of right rib pain. (Tr. 222-23). Walker indicated that she had been drinking two days earlier and was unsure how she was injured. (Tr. 222). Attending physician Michael Kitto, D.O., noted that Walker was not taking any medications, although she indicated that her doctor previously had prescribed Vicodin, Naprosyn, and Valium for her back pain. (Id.). X-rays revealed no sign of an acute fracture, but Dr. Kitto's examination found a possible hairline rib fracture. (Tr. 223). Walker was discharged with pain medication. (Id.).
On June 20, 2012, Walker saw Mark Goldberger, D.O., a neurosurgeon. (Tr. 227-28). He noted that that Walker underwent back surgery with fusion (in 2004), did well postoperatively, and was able to return to work as a waitress. (Tr. 227). Walker reported experiencing progressively worsening back and leg pain over the past couple of years. (Id.). Dr. Goldberger reviewed x-rays from McLaren Macomb Hospital and noted that the fusion appeared to be well-healed. (Tr. 228). On examination, Walker had 5/5 strength throughout, except for a "giveaway-type" weakness in her right lower extremity. (Id.). Dr. Goldberger's impressions were lumbago, radiculitis, and degenerative disc disease, but he recommended that Walker have an MRI.
On November 7, 2012, Walker presented to Norman Rotter, M.D., a neurosurgeon. (Tr. 233-34). On examination, Dr. Rotter described Walker as alert, pleasant, cooperative, tearyeyed, and somewhat depressed. (Tr. 233). The motor exam showed that Walker's motor bulk, strength, and coordination were good. (Id.). She had a mild limp on her right side but performed heel and toe walking well. (Id.). Straight leg raising tests were negative on the left, but positive for pain at 30 degrees on the right. (Id.). Dr. Rotter noted that flexion, abduction, and external rotation of the left hip were normal, but the right was "markedly abnormal causing severe pain." (Id.). Dr. Rotter noted that the etiology of Walker's symptoms was not clear, although he thought that her right hip joint was her most serious problem. (Id.). Dr. Rotter also suggested that there was some element of posterior musculoskeletal pain and degenerative disc disease, which — combined with her hip pain — made her "totally and permanently disabled from any gainful employment." (Id.). Dr. Rotter ordered an x-ray of Walker's right hip and indicated that once she obtained health insurance, additional studies should be performed. (Tr. 233-34). Xrays of Walker's hips performed on January 14, 2013, revealed "very severe degenerative osteoarthritic disease of the right hip with marked narrowing of the right hip joint space," along with less severe degenerative disease of the left hip. (Tr. 236).
On February 5, 2013, Walker saw Muwaffak Abdulhak, M.D., for a neurosurgical opinion. (Tr. 245-46). Although Walker had some noted weakness in the right lower extremity on motor examination, she had normal sensory and reflex functioning. (Tr. 245). Dr. Abdulhak expressed more concern about "hardware failure versus adjacent level disease." (Tr. 246). He ordered a lumbar spine x-ray, an EMG study of Walker's lower extremities, and a CT myelogram of her lumbar spine. (Id.). The February 15, 2013, lumbar spine x-rays revealed mild anterior wedging of the L1 vertebral body, but, otherwise, the vertebral body heights and alignment and disc interspaces were well-maintained. (Tr. 251). The EMG, performed on February 26, 2013, produced electrodiagnostic evidence of a mild chronic right L4 radiculopathy without denervation. (Tr. 249).
Kimberly Warner testified as an independent vocational expert ("VE") at the administrative hearing. (Tr. 50-51). The VE characterized Walker's past relevant work as a waitress as semi-skilled in nature and performed at the light exertional level. (Tr. 50). Then, the ALJ asked the VE to imagine a claimant of Walker's age, education, and work experience, who could perform light work, with the following additional limitations: occasional climbing of stairs and ramps; no climbing of ropes, ladders, or scaffolds; occasional balancing, stooping, kneeling, crouching, and crawling; frequent reaching bilaterally; no concentrated exposure to unprotected heights, vibrating tools, or moving machines; and only simple, routine, and repetitive tasks. (Tr. 50-51). The VE testified that the hypothetical individual would not be capable of performing Walker's past relevant work. (Tr. 51). However, the VE testified that the hypothetical individual would be capable of working in the jobs of information clerk (4,500 jobs in the state of Michigan), sorter (11,000 jobs), and usher (3,100 jobs). (Id.).
Under the Act, DIB and SSI 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:
42 U.S.C. §1382c(a)(3)(A). The Commissioner's regulations provide that a disability is to be determined through the application of a five-step sequential analysis:
Scheuneman v. Comm'r of Soc. Sec., 2011 WL 6937331, at *7 (E.D. Mich. Dec. 6, 2011) (citing 20 C.F.R. §§404.1520, 416.920). "The burden of proof is on the claimant throughout the first four steps. . . . If the analysis reaches the fifth step without a finding that claimant is not disabled, the burden transfers to the [defendant]." Preslar v. Sec'y of Health & Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994).
Following the five-step sequential analysis, the ALJ found that Walker is not disabled under the Act. At Step One, the ALJ found that Walker has not engaged in substantial gainful activity since April 21, 2012, the alleged onset date. (Tr. 22). At Step Two, the ALJ found that Walker has the severe impairments of lumbago status-post a 2004 surgery with hardware placement, mild right radiculopathy without denervation, and osteoarthritis (bilateral hips). (Tr. 22-23). At Step Three, the ALJ found that Walker's impairments do not meet or medically equal a listed impairment. (Tr. 23).
The ALJ then assessed Walker's residual functional capacity ("RFC"), concluding that she is capable of performing light work, with the following additional limitations: only occasional climbing of stairs and ramps; no climbing of ropes, ladders, or scaffolds; only occasional balancing, stooping, kneeling, crouching, and crawling; no more than frequent reaching bilaterally; no concentrated exposure to unprotected heights, vibrating tools, or moving machines; and only simple, routine, and repetitive tasks due to the combined symptoms of pain and anxiety. (Tr. 23-26).
At Step Four, the ALJ determined that Walker is not capable of performing her past relevant work as a waitress. (Tr. 26). At Step Five, the ALJ concluded, based in part on the VE's testimony, that Walker is capable of performing a significant number of jobs that exist in the national economy. (Tr. 26-27). As a result, the ALJ concluded that Walker is not disabled under the Act. (Tr. 27).
The District 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 in 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 citations 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 quotations 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 quotations omitted). 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.").
When reviewing the Commissioner's factual findings, the court is limited to an examination of the record and must consider the record as a whole. Bass, 499 F.3d at 512-13; Wyatt v. Sec'y of Health & Human Servs., 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," or in this case, the ALJ. Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2011); Walker v. Sec'y of Health & Human Servs., 884 F.2d 241, 245 (6th Cir. 1989). 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 evidence without directly addressing in his written decision every piece of evidence submitted by a party.") (internal quotations omitted). 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." Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (internal citations omitted).
The ALJ considered Walker's back and hip impairments and concluded that, despite these conditions, Walker can perform a limited range of light work. (Tr. 23-26). In reaching this conclusion, the ALJ characterized the objective medical evidence as "almost entirely unremarkable" and opined that "save for the claimant's subjective allegations, there is little in the way of support for a finding of `disabling' impairments." (Tr. 24). After reviewing the evidence of record, however, the Court disagrees. Indeed, there are two critical pieces of medical evidence in this case — Dr. Rotter's November 7, 2012 report and Walker's January 14, 2013 hip x-rays — the first of which the ALJ mischaracterized, and the second of which the ALJ seems to have ignored. For the reasons set forth below, these errors require remand.
Beginning with the first piece of evidence, the ALJ discussed Dr. Rotter's report in his decision, stating:
(Tr. 25 (internal citations omitted)).
Although the ALJ is correct that there is no indication that Dr. Rotter is one of Walker's treating physicians,
The same is true with respect to the second piece of critical medical evidence — Walker's January 14, 2013 hip x-rays, which revealed "very severe degenerative osteoarthritic disease of the right hip with marked narrowing of the right hip joint space," along with less severe degenerative disease of the left hip. (Tr. 236). There is no mention of these x-ray results whatsoever in the ALJ's decision.
First, the x-rays, although occurring after Dr. Rotter's findings discussed above, are consistent with those findings. Given the importance of the issue to Walker's claim, the two pieces of evidence should have been discussed together to ensure a fair analysis.
Second, this is not a case where the ALJ merely failed to reference a piece of evidence that was cumulative of other evidence already discussed, or glossed over or minimized the import of the evidence; rather, the ALJ here ignored the important x-rays and then affirmatively discounted the credibility of Walker's allegations on the grounds that "objective test results show almost entirely normal functioning." (Tr. 25). This was simply inaccurate and, as a result, the ALJ's credibility finding is not supported by substantial evidence.
Finally, the January 2013 x-ray results are significant because they reveal evidence of joint space narrowing, which is relevant at Step Three (in determining whether Walker meets or medically equals Listing 1.02). The ALJ's error in failing to properly discuss this medical evidence was significant, as a conclusion that Walker meets or medically equals a Listing would have resulted in a presumptive finding of disability. See Christephore v. Comm'r of Soc. Sec., 2012 WL 2274328, at *6 (E.D. Mich. June 18, 2012).
When considering presumptive disability at Step Three, "an ALJ must analyze the claimant's impairments in relation to the Listed Impairments and must give a reasoned explanation of his findings and conclusions in order to facilitate meaningful review." Id. (citing Reynolds v. Comm'r of Soc. Sec., 424 F. App'x 411, 416 (6th Cir. 2011)). In this case, at Step Three, the ALJ evaluated Walker's impairments in the context of Listing 1.02, which requires evidence of the following, in relevant part:
20 C.F.R. Pt. 404, Subpt. P., App. 1, Listing 1.02. Without any further explanation, the ALJ concluded that Walker does not meet or medically equal the requirements of this Listing because she does not have "medical evidence of involvement of one peripheral weight-bearing joint resulting in the inability to ambulate effectively. . . ." (Tr. 23).
Walker argues that the ALJ conducted "no analysis whatsoever" in reaching this conclusion. (Doc. #12 at 16). It is clear that the January 2013 x-ray — which, again, the ALJ did not mention in his decision — reveals "very severe degenerative osteoarthritic disease of the right hip with marked narrowing of the right hip joint space." (Tr. 236). This certainly appears to provide the evidence of "joint space narrowing" required by Listing 1.02.
In light of all of the foregoing, the Court finds that the ALJ's failure to discuss the appropriate medical evidence was not mere "harmless error," and that his decision that Walker does not meet or medically equal the requirements of Listing 1.02 is not supported by substantial evidence. Because a possibility exists that Listing 1.02 is met, remand is appropriate. See Reynolds, 424 F. App'x at 416 ("in this case, correction of such an error is not merely a formalistic matter of procedure, for it is possible that the evidence [the plaintiff] put forth could meet this listing.").
For all of the above reasons, the ALJ's conclusion that Walker is not disabled is not supported by substantial evidence, and remand is warranted.
For the foregoing reasons, the Court RECOMMENDS that the Commissioner's Motion for Summary Judgment [13] be DENIED, Walker's Motion for Summary Judgment [12] be GRANTED IN PART, the ALJ's decision be REVERSED, and this case be REMANDED for further proceedings consistent with this Recommendation.
