DAVID R. GRAND, Magistrate Judge.
Plaintiff Lyn Prudhomme ("Prudhomme") brings this action pursuant to 42 U.S.C. § 405(g), challenging the final decision of Defendant Commissioner of Social Security ("Commissioner") denying her application for Disability Insurance Benefits ("DIB") under the Social Security Act (the "Act"). Both parties have filed summary judgment motions (Docs. #11, #12), 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 Prudhomme is not disabled under the Act is not supported by substantial evidence. Accordingly, the Court recommends that the Commissioner's Motion for Summary Judgment (
Prudhomme was 62 years old at the time of her alleged onset date of June 12, 2014, and at 5' tall weighed approximately 130 pounds during the relevant time period. (Tr. 221, 225). She completed high school and college. (Tr. 226). She worked for two banner companies — first primarily dealing with shipping and inventory (from 1985 to 2009), and then working in sales (from 2010 to 2014) — but she stopped working in June 2014 because of her medical conditions. (Tr. 225, 233-34). She now alleges disability primarily as a result of coronary artery disease, chronic obstructive pulmonary disorder, HIV, depression, and anxiety. (Tr. 225).
After Prudhomme's application for DIB was denied at the initial level on April 6, 2015 (Tr. 105-08), she timely requested an administrative hearing, which was started on August 9, 2016 (Tr. 74-90) and continued on October 26, 2016, before ALJ Timothy Scallen (Tr. 43-73). Prudhomme, who was represented by two different attorneys, testified at both hearings, and vocational expert ("VE") Scott Silver testified at the October 2016 hearing. (Id.). On March 8, 2017, the ALJ issued a written decision finding that Prudhomme is not disabled under the Act. (Tr. 25-37). On January 11, 2018, the Appeals Council denied review. (Tr. 1-6). Prudhomme timely filed for judicial review of the final decision on March 11, 2018. (Doc. #1).
The Court has thoroughly reviewed the transcript in this matter, including Prudhomme's medical record, Function and Disability Reports, and testimony as to her conditions and resulting limitations. Instead of summarizing that information here, the Court will make references and provide citations to the transcript as necessary in its discussion of the parties' arguments.
Under the Act, DIB 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" 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). 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); 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 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 this sequential analysis, the ALJ found that Prudhomme is not disabled under the Act. At Step One, the ALJ found that Prudhomme has not engaged in substantial gainful activity since June 12, 2014 (the alleged onset date). (Tr. 27). At Step Two, the ALJ found that she has the severe impairment of "nonobstructive coronary artery disease with nonobstructive and preserved [left ventricular ejection fraction]." (Id.). At Step Three, the ALJ found that Prudhomme's impairments, whether considered alone or in combination, do not meet or medically equal a listed impairment. (Tr. 32).
The ALJ then assessed Prudhomme's residual functional capacity ("RFC"), concluding that she is capable of performing medium work, with the following additional limitations: can only occasionally perform postural activities, such as climbing stairs and ramps; can never climb ropes, ladders or scaffolds; and must avoid concentrated exposure to unprotected heights and moving machinery. (Id.).
At Step Four, the ALJ found that Prudhomme is capable of performing her past relevant work, which he characterized as that of a "secretary." (Tr. 36). As a result, the ALJ concluded that Prudhomme is not disabled under the Act. (Id.).
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). 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).
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. See 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, 245 F.3d at 535; 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).
In her motion, Prudhomme argues that the ALJ's finding that she retains the RFC to perform her past relevant work as a secretary "must be reversed because she never engaged in that type of work."
See
Social Security Ruling ("SSR") 82-62 recognizes that a claimant is the "primary source" of information regarding past relevant work. Soc. Sec. Rul. 82-62, 1982 WL 31386, at *3 (1982). The Ruling further provides that, "The decision as to whether the claimant retains the functional capacity to perform past work . . . has far-reaching implications and must be developed and explained fully in the disability decision. Since this is an important and, in some instances, a controlling issue, every effort must be made to secure evidence that resolves the issue as clearly and explicitly as circumstances permit." Id.
In this case, Prudhomme completed a Work History Report on December 15, 2014, in which she described her work at American Flag and Banner ("American") (from 1985 to 2008) and at Banner Sign Company ("Banner") (from 2008 to 2014). (Tr. 232-39). In that report, she indicated that her job title at American was "Sales Clerk," and she described her job duties as carrying flags, shipping, and inventory. (Tr. 233). Similarly, she listed her job title at Banner as "Sales/Delivery," and she indicated she "sold flags [and] also did delivery" in that job. (Tr. 234). With respect to both jobs, Prudhomme denied using technical knowledge or skills, or doing any writing, completing reports, or performing similar duties. (Tr. 233-34).
In an updated Work History Report, completed on April 6, 2015, Prudhomme provided more detail about her job duties at each of these companies. (Tr. 249-56). Specifically, with respect to her job at American, Prudhomme reported:
(Tr. 250). Similarly, in describing her job duties at Banner, Prudhomme stated:
(Tr. 251).
The record also contains two VE-prepared summaries of Prudhomme's employment history. Specifically, in preparation for the August 2016 administrative hearing, VE Michael Rosko
Prudhomme also testified regarding her past work at both administrative hearings. At the first hearing, held in August 2016, Prudhomme testified that she previously worked as "a factory worker at a sign company." (Tr. 77). When asked what specifically she had done in this job, Prudhomme replied, "I made vinyl banners. I did some sewing on cloth. I cut stickers out. Whatever needed to be done in the back as far as sign manufacturing." (Tr. 78). She also testified that, prior to her last job (at Banner), she worked for 26 years as a "factory worker" at another "flag and sign company" (American), saying that she did the "[s]ame thing" in both jobs. (Id.).
Crucially, however, the ALJ appears to have either overlooked or disregarded Prudhomme's testimony in this respect in favor of a confusing snippet of testimony from the second administrative hearing. Specifically, the following exchange occurred between the ALJ, VE Scott Silver, and Prudhomme at the October 2016 hearing:
(Tr. 68-69). From this testimony, VE Silver opined, in relevant part, that Prudhomme's past relevant work was that of a secretary (which he characterized as light and skilled). (Id.). Prudhomme now argues that she never worked as a secretary, and "it was clear legal error in violation of the Social Security Rules and Regulations, and unsupported by substantial evidence, to find past relevant work as a secretary, let alone to make a finding that [she] can do such (skilled) work." (Doc. #11 at 30).
In response, the Commissioner makes two arguments. First, she argues that Prudhomme "has waived any challenge to the ALJ's characterization of her past relevant work by not raising it at the administrative level." (Doc. #12 at 20). The Commissioner also argues that even if the Court declines to find waiver, "substantial evidence supports the ALJ's step four finding." (Id. at 22). In advancing this second argument, the Commissioner points to Prudhomme's testimony at the second administrative hearing that, at her last job, she "basically [did] office work" and that she would "consider [herself] an office manager." (Tr. 49, 68-69). In light of this testimony, the Commissioner claims that Prudhomme's "bald assertion . . . that she never worked as a secretary. . . is insufficient to undermine the VE's testimony or the ALJ's findings." (Doc. #12 at 22).
To begin with, it is true that VE Silver opined that Prudhomme had past relevant work as a secretary, and as the Commissioner asserts, Prudhomme's attorney failed to object to this testimony or cross-examine the VE regarding the basis for this opinion. (Id. at 21 (citing Tr. 68-72)). Under similar circumstances, courts have held that such a failure results in waiver of any challenge to the VE's testimony. See, e.g., Zorn v. Comm'r of Soc. Sec., 2015 WL 5545257, at *4 (E.D. Mich. Sept. 18, 2015) (finding, where the VE testified that the plaintiff could return to his past relevant work, that "[b]y declining to question the VE on cross-examination, any objections were waived and there are no grounds for relief").
In this case, however, several facts compel the Court to consider the merits of Prudhomme's argument. First, the applicable regulations clearly require that the ALJ afford the plaintiff an opportunity to question the VE. See 20 C.F.R. § 404.950(e) ("The administrative law judge may ask the witness any questions material to the issues and will allow the parties or their designated representatives to do so.") (emphasis added). Here, that was not done. Second, it appears that Prudhomme was blind-sided to learn on the morning of the second hearing that she would be represented by an attorney she had never met who knew little (if anything) about her case.
Turning to the merits of Prudhomme's argument, and looking at all of the evidence of record, it certainly appears that both the VE and the ALJ mischaracterized Prudhomme's past relevant work as that of "secretary." Indeed, the description of "secretary" in the DOT bears little resemblance to the job described by Prudhomme. Specifically, Prudhomme indicated in Work History Reports that her job duties at American included carrying flags, shipping, and inventory (Tr. 233), while she "sold flags [and] also did delivery" at Banner (Tr. 234). In summarizing Prudhomme's employment history in preparation for hearing, the VEs characterized Prudhomme's past work variously as that of shipping and receiving clerk, sewing machine operator, deliverer, decorator, hand packager, commercial or industrial cleaner, outside deliverer, sewing machine operator, and shipping and receiving clerk. (Tr. 276, 282-83). Tellingly, neither VE identified a secretarial job as part of Prudhomme's work history. Moreover, at the August 2016 administrative hearing, Prudhomme testified clearly that she worked as "a factory worker at a sign company," saying, "I made vinyl banners. I did some sewing on cloth. I cut stickers out. Whatever needed to be done in the back as far as sign manufacturing." (Tr. 77-78).
In contrast to all of the aforementioned evidence, the Commissioner relies only on Prudhomme's testimony at the second administrative hearing that, at her last job, she "basically [did] office work" and that she would "consider [herself] an office manager." (Doc. #12 at 22 (citing Tr. 49, 68-69)). However, it is unclear whether Prudhomme properly understood the questions presented by the VE. Indeed, VE Silver appeared to suggest an "either/or" scenario — either she worked as a secretary or she worked in shipping and receiving. (Tr. 69). Only when presented with a choice between these two alternatives did Prudhomme say that she "did no shipping and receiving" and therefore "would consider [herself] an office manager." (Tr. 68-69).
In summary, then, the record indicates that: the key testimony on which both the VE and the ALJ relied is, at best, muddled; Prudhomme's long-time attorney was not present during that testimony; the attorney representing her at the time this testimony was provided was not explicitly offered the opportunity to cross-examine the VE; and the DOT's description of the "secretary" job bears no resemblance whatsoever to Prudhomme's description of her actual prior work. Given all of these facts, the Court simply cannot find that substantial evidence supports the ALJ's determination that Prudhomme had past relevant work as a "secretary," or that she has the RFC to perform that or any other actual past relevant work. As such, remand is required. See, e.g., Valentin v. Barnhart, 339 F.Supp.2d 596, 600 (S.D.N.Y. 2004) (remanding for further proceedings where "the erroneous testimony by the VE [ ] invalidate[d] the ALJ's finding that [the plaintiff] would be able to perform his past work . . . ."); Diaz v. Astrue, 2009 WL 3045875, at *8 (C.D. Cal. Sept. 21, 2009) (remanding where the ALJ improperly relied on the VE's characterization of the plaintiff's past work where there was "some confusion as to the physical exertion requirements" of that job); Martin v. Colvin, 2017 WL 132848, at *3-4 (E.D. Ark. Jan. 12, 2017) (remanding where the VE characterized the plaintiff's past work in a manner inconsistent with his testimony and Work History Reports).
For the foregoing reasons, the Court
The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within fourteen (14) days of service of a copy hereof as provided for in 28 U.S.C. §636(b)(1) and Fed. R. Civ. P. 72(b)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec'y of HHS, 932 F.2d 505, 508 (6th Cir. 1991); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981). The filing of objections which 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. See Willis v. Sec'y of HHS, 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. L.R. 72.1(d)(2), a copy of any objections is to be served upon this magistrate judge.
