Colleen A. R. v. Comm'r of Soc. Sec.

DAVID R. GRAND UNITED STATES MAGISTRATE JUDGE

Matthew F. Leitman United States District Judge

REPORT AND RECOMMENDATION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT (ECF NOS. 11, 13)

DAVID R. GRAND UNITED STATES MAGISTRATE JUDGE

Plaintiff Colleen A. R. (“Plaintiff”) 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 (ECF Nos. 11, 13), which have been referred to this Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

I. RECOMMENDATION

For the reasons set forth below, the Court finds that the Administrative Law Judge's (“ALJ”) conclusion that Plaintiff is not disabled under the Act is not supported by substantial evidence. Thus, the Court RECOMMENDS that the Commissioner's Motion for Summary Judgment (ECF No. 13) be DENIED, Plaintiff's Motion for Summary Judgment (ECF No. 11) be GRANTED, and that, pursuant to sentence four of 42 U.S.C. § 405(g), this case be REMANDED for further proceedings consistent with this Report and Recommendation.

II. REPORT

A. Background

Plaintiff was 51 years old at the time of her alleged onset date of January 1, 2017, and at 5'6” tall weighed approximately 220 pounds. (PageID.109, 299). She completed eleventh grade but had no further education. (PageID.75-76, 300). She previously worked a number of jobs, including as a nurse's aide, cashier, and school cook, but she stopped working in June 2020 because of her medical conditions. (PageID.76, 80, 299-300, 319, 393). She now alleges disability primarily as a result of back pain (radiating down her legs), bilateral carpal tunnel syndrome, acid reflux, high cholesterol, and a history of uterine cancer. (PageID.89-91, 109, 299, 331).

Standalone citations to “PageID.__” are all to the administrative transcript in this case, which can be found at ECF No. 7-1.

After Plaintiff's applications for DIB and SSI were denied at the initial level on May 7, 2021 (PageID.156-59, 161-64), and on reconsideration on November 12, 2021 (PageID.178-81, 183-86), she timely requested an administrative hearing, which was held on November 2, 2022, before ALJ Michael Dunn (PageID.65-108). Plaintiff, who was represented by attorney Wesley Lamey, testified at the hearing, as did vocational expert Taylor Pytlik. (Id.). On January 31, 2023, the ALJ issued a written decision finding that Plaintiff is not disabled under the Act. (PageID.32-51). On November 30, 2023, the Appeals Council denied review. (PageID.23-27). Plaintiff timely filed for judicial review of the final decision on January 21, 2024. (ECF No. 1).

B. The ALJ's Application of the Disability Framework Analysis

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” 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). The Commissioner's regulations provide that a disability is to be determined through the application of a five-step sequential analysis:

Step One: If the claimant is currently engaged in substantial gainful activity, benefits are denied without further analysis.

Step Two: If the claimant does not have a severe impairment or combination of impairments that “significantly limits . . . physical or mental ability to do basic work activities,” benefits are denied without further analysis.

Step Three: If the claimant is not performing substantial gainful activity, has a severe impairment that is expected to last for at least twelve months, and the severe impairment meets or equals one of the impairments listed in the regulations, the claimant is conclusively presumed to be disabled regardless of age, education, or work experience.

Step Four: If the claimant is able to perform his or her past relevant work, benefits are denied without further analysis.

Step Five: Even if the claimant is unable to perform his or her past relevant work, if other work exists in the national economy that the

claimant can perform, in view of his or her age, education, and work experience, benefits are denied.

Scheuneman v. Comm'r of Soc. Sec., No. 11-10593, 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 five-step sequential analysis, the ALJ found that Plaintiff is not disabled under the Act. At Step One, the ALJ found that there has been a continuous 12-month period during which Plaintiff did not engage in substantial gainful activity. (PageID.35). At Step Two, the ALJ found that, during that time period, Plaintiff had the following severe impairments: degenerative disc disease of the lumbar spine, status post percutaneous lumbar discectomy; lumbar radiculopathy; bilateral carpal tunnel syndrome, right greater than left; ganglion cyst at volar aspect of the right wrist; and obesity. (Id.). At Step Three, the ALJ found that Plaintiff's impairments, whether considered alone or in combination, did not meet or medically equal a listed impairment. (PageID.37).

The ALJ then assessed Plaintiff's residual functional capacity (“RFC”), concluding that, during the relevant period of time, she was capable of performing sedentary work, with the following additional limitations: could frequently handle, finger, and feel bilaterally; could occasionally climb ramps and stairs; could never climb ladders or scaffolds; could occasionally stoop, kneel, crouch, and crawl; had to avoid concentrated exposure to vibration and all exposure to workplace hazards such as unprotected heights and hazardous machinery; had to avoid ambulating on rough terrain and slippery surfaces; and the work had to allow for a sit/stand option (defined as follows: there had to be work that could be done in the sitting or standing position such that the change in position would not cause the worker to go off task; after standing for 30 minutes, the worker should have the option to sit for up to 30 minutes; and after sitting for 30 minutes, the worker should have the option to stand for up to 30 minutes). (PageID.38).

At Step Four, the ALJ found that, during the relevant period of time, Plaintiff was capable of performing her past relevant work as a general inspector. (PageID.50). As a result, the ALJ concluded that Plaintiff was not disabled under the Act between January 1, 2017 (the alleged onset date) and the date of the decision. (PageID.51).

C. Standard of Review

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). The phrase “substantial evidence” is a “term of art ....” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (internal citations omitted). “Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains ‘sufficien[t] evidence' to support the agency's factual determinations.” Id. (internal citations omitted).

“And whatever the meaning of ‘substantial' in other contexts, the threshold for such evidentiary sufficiency is not high. Substantial evidence ... is ‘more than a mere scintilla.'” Id. (internal citations omitted). Specifically, “[i]t means - and means only -‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Id. (internal citations omitted).

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 v. McMahon, 499 F.3d 506, 512-13 (6th Cir. 2007); 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 Fed.Appx. 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) (citations omitted).

D. Analysis

As set forth above, the ALJ concluded that, during the relevant period of time, Plaintiff had the RFC to perform sedentary work with certain additional limitations - specifically, the requirement that “after standing for 30 minutes, [Plaintiff] should have the option to sit for up to 30 minutes [and] and after sitting for 30 minutes, [she] should have the option to stand for up to 30 minutes.” (PageID.38). Before this Court, Plaintiff argues that this aspect of the ALJ's RFC finding is not supported by substantial evidence. (ECF No. 11, PageID.1518-27). For the reasons set forth below, the Court agrees.

Plaintiff also argues that the ALJ erred in failing to consider her non-severe mental impairment of depression when formulating her RFC and in evaluating her subjective complaints. (ECF No. 11, PageID.1527-31). Because the Court is recommending remand on other grounds, it need not address in detail the merits of these arguments. However, on remand, due consideration should be given to these issues.

1. The Relevant Medical Evidence

In 2018, Plaintiff treated with her primary care physician, Faisal Shareefuddin, M.D., for several conditions, including low back pain. During this period, Dr. Shareefuddin noted tenderness of the thoracic and lumbar spine, administered Toradol injections, ordered physical therapy, and prescribed pain medications. (E.g., PageID.595-98, 600-08). At an appointment in May 2018, Plaintiff reported that her back pain radiated to both legs and was aggravated by sitting. (PageID.589-93). A July 2018 MRI revealed disc herniation and an annular tear. (PageID.586). Dr. Shareefuddin administered Toradol injections in July, August, September, October, and December 2018 and referred Plaintiff to pain management. (PageID.558, 564, 569, 575, 578-82).

Plaintiff established care with pain management specialists at Physiatry and Rehabilitation Associates for low back pain radiating to the right lower limb on January 8, 2019. (PageID.691-93). On examination, she had tenderness to palpation in the lumbosacral area, some difficulty standing from squatting and performing heel and toe walk, and a positive straight leg raise test on the right. (PageID.692). Trigger point injections were ordered, and referrals to physical therapy and surgery were discussed. (PageID.693). Plaintiff then saw pain specialist Usama Gabr, M.D. at Physiatry and Rehabilitation Associates monthly from February through December 2019. During this time, Plaintiff continued to complain of back pain, and she consistently had tenderness over the spine and restricted range of motion. (PageID.666-88, 754-67). Dr. Gabr prescribed Norco, Neurontin, and baclofen and administered lumbosacral ligament and trigger point injections, transforaminal epidural steroid injections, and diagnostic nerve blocks. (Id.). His notes regularly include recommendations that Plaintiff “continue physical restrictions as detailed previously especially frequent change of position, [and] maintain home exercise stretching as well as no heavy lifting.” (PageID.673, 676, 764, 766) (emphasis added). During this time, Plaintiff reported that the various injections administered provided effective but temporary relief of her low back pain and radicular symptoms. (PageID.669, 751, 754, 757, 763, 765).

Gregory Burek, P.A., who also treated Plaintiff at Physiatry and Rehabilitation Associates, noted the same restrictions between April 2020 and January 2022. (PageID.719, 723, 725, 728, 730, 732, 734, 744, 746, 866, 1041, 1043).

In January 2020, Plaintiff underwent radiofrequency ablation to her lower back. (PageID.748-53). On follow-up, she reported 75% relief of her low back pain, but for only two days; by February and March 2020, her pain level had returned to 8/10. (PageID.745, 748). Dr. Gabr performed a diagnostic lumbar discogram on September 15, 2020, and diagnosed chronic pain syndrome and intervertebral disc disorders with radiculopathy, lumbar region. (PageID.663-65).

Over the next few months, Plaintiff's pain did not improve significantly, and, in February 2021, Dr. Gabr performed a percutaneous lumbar discectomy/nucleoplasty. (PageID.714-16). At her one-week follow-up with PA Burek, Plaintiff reported 40% relief of both her low back pain and radicular symptoms. (PageID.720-21). By March 12, 2021, however, her pain had again worsened, and it was noted that, overall, her pain had only “minimally improved post discectomy.” (PageID.718). In April, May, and July 2021, Dr. Gabr administered transforaminal lumbar epidural injections, which improved Plaintiff's radicular symptoms but did not help the low back pain. (PageID.892, 901-05). In August 2021, Dr. Gabr administered lumbar medial branch blocks, with “excellent yet temporary relief.” (PageID.882, 899-900).

In this same time frame, on March 3, 2021, Plaintiff saw Scott Lazzara, M.D. for a consultative examination. (PageID.908-14). Dr. Lazzara noted that Plaintiff complained of back pain radiating to the right leg, which had “improved since her rhizotomy” in February 2021. (PageID.910). In reality, however, Plaintiff underwent a rhizotomy - i.e., radiofrequency ablation - in January 2020 and a discectomy in February 2021 (which Dr. Lazzara did not mention). On examination, Dr. Lazzara observed tenderness over L5-S1 and mildly diminished range of motion but no active findings of radiculopathy. (PageID.914). He opined that Plaintiff “appear[ed] to be relatively stable but [was] at risk for further decline over time.” (Id.).

In February 2022, Plaintiff presented to Dr. Shareefuddin for a pain management referral because Dr. Gabr's practice no longer accepted her insurance. (PageID.1110-14). Dr. Shareefuddin provided a referral, ordered an MRI, administered a Toradol injection, and prescribed Ultram and baclofen. (Id.). The MRI, performed on February 22, 2022, revealed multilevel degenerative changes without high-grade spinal canal stenosis, stable since March 2020, and mild-moderate spinal canal stenosis at ¶ 5-S1 with mild bilateral neural foraminal narrowing. (PageID.1338).

Two days later, Plaintiff saw neurosurgeon Todd Francis, M.D., who recommended a left L5-S1 laminoforaminotomy surgery. (PageID.1404). This surgery was performed on July 6, 2022. (PageID.1346-47). At a July 25, 2022, follow-up appointment with her new pain management physician, Mazher Hussain, M.D., Plaintiff reported continued low back pain and radicular symptoms, which interfered with her sleep, daily functioning, and quality of life. (PageID.1444-47). At subsequent appointments in August and September 2022, Plaintiff exhibited positive lumbar facet-loading and straight leg raise tests, as well as painful range of motion. (PageID.1440, 1443).

This surgery was delayed because a presurgical clearance appointment revealed an elevated A1C level, and Plaintiff needed to get her blood sugars under control. (PageID.1102-08).

2. The ALJ's RFC Finding is Not Supported by Substantial Evidence

An individual's RFC is a medical assessment of what she can do in a work setting in spite of functional limitations and environmental restrictions imposed by all of her medically determinable impairments. See 20 C.F.R. § 404.1545. “An ALJ must consider ‘all the relevant evidence in the record' - medical and non-medical alike - to determine a claimant's work capacity.” Reinartz v. Comm'r of Soc. Sec., 795 Fed.Appx. 448, 449 (6th Cir. 2020) (quoting 20 C.F.R. § 404.1545(a)(1)). Moreover, “the ALJ's written decision must make sufficiently clear how he translated the record evidence into the ultimate RFC.” Hightower v. Comm'r of Soc. Sec., No. 19-13433, 2020 WL 11563085, at *5 (E.D. Mich. Nov. 20, 2020) (citing Gross v. Comm'r of Soc. Sec., 247 F.Supp.3d 824, 829 (E.D. Mich. 2017)). See also McClellan v. Comm'r of Soc. Sec., No. 22-11713, 2023 WL 2472655, at *14 (E.D. Mich. Feb. 13, 2023) (ALJ must articulate his analysis of the evidence to allow the appellate court to trace the path of his reasoning). For this reason, a court “may not uphold an ALJ's decision ... if the decision fails to provide an accurate and logical bridge between the evidence and the result.” Gross, 247 F.Supp.3d at 829 (internal quotations omitted).

Here, the ALJ found, in relevant part, that Plaintiff had the RFC to perform sedentary work with certain additional limitations, including the requirement that “after standing for 30 minutes, [Plaintiff] should have the option to sit for up to 30 minutes [and] and after sitting for 30 minutes, [she] should have the option to stand for up to 30 minutes.” (PageID.38). Plaintiff points out that the 30-minute sit/stand option appears nowhere in her records and argues that, in including this limitation in the RFC, the ALJ failed to mention - let alone properly evaluate - the medical opinions of her treating providers, Dr. Gabr and PA Burek, that she was restricted to “frequent change of position” and “no heavy lifting.” (ECF No. 11, PageID.1519-24). The Court agrees.

Plaintiff also argues that the ALJ “failed to explain how he translated the objective evidence, including diagnostic imaging and clinical findings,” into an RFC for sedentary work with this specific sit/stand option, and that he erred in evaluating the medical opinion of the consultative examiner, Dr. Lazzara. (ECF No. 11, PageID.1519-27). Because the Court finds error in the ALJ's evaluation of Dr. Gabr's and PA Burek's opinions, it will not address these arguments in detail. On remand, however, the ALJ should ensure that full consideration is given to these issues.

Plaintiff argues that the ALJ erred by failing to treat this aspect of Dr. Gabr's and PA Burek's records as a medical opinion and evaluate its persuasiveness under 20 C.F.R. § 404.1520c. (ECF No. 11, PageID.1522-24). Under the revised regulations applicable to claims, like Plaintiff's, filed on or after March 27, 2017, ALJs must evaluate the persuasiveness of medical opinions and “explain how [they] considered the supportability and consistency” of such opinions - the two “most important” factors - in their decision. 20 C.F.R. § 404.1520c(b)(2). As to the first factor (supportability), “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) ... the more persuasive the medical opinions ... will be.” 20 C.F.R. § 404.1520c(c)(1). As to the second factor (consistency), “[t]he more consistent a medical opinion(s) ... is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) ... will be.” 20 C.F.R. § 404.1520c(c)(2).

Here, the Commissioner concedes that “the ALJ did not specifically discuss Dr. Gabr's opinion that Plaintiff should change positions and avoid heavy lifting .. ..” (ECF No. 13, PageID.1543). The Commissioner argues, however, that “the ALJ's failure to discuss this opinion did not prejudice Plaintiff ‘on the merits.'” (Id.) (quoting Jackson v. Comm'r of Soc. Sec., No. 1:19-CV-917, 2021 WL 612470, at *10 (S.D. Ohio Feb. 17, 2021)). The entirety of the Commissioner's argument in this respect consists of a single, conclusory sentence stating that Plaintiff failed to show “how explicit consideration of Dr. Gabr's statements would have led to a more restrictive RFC given that the opinion is consistent with the ALJ's finding.” (Id., PageID.1544).

The Court is not persuaded by the Commissioner's argument in this respect. As an initial matter, courts have routinely held that an ALJ must explain his consideration of the medical opinions of record and identify the evidence supporting his conclusions. See Gross, 247 F.Supp.3d at 829-30 (ALJ's decision must provide accurate and logical bridge between evidence and result and must permit meaningful review); Hunter v. Comm'r of Soc. Sec., No. 20-11388, 2022 WL 988366, at *4 (E.D. Mich. Mar. 31, 2022) (“It is generally true that 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.”) (internal quotations omitted). It is also imperative that an ALJ discuss the supportability and consistency of a physician's opinion, as required, by 20 C.F.R. § 404.1520c(b)(2); failure to do so warrants remand. See Judith F. v. Comm'r of Soc. Sec., No. 21-10712, 2024 WL 994683, at *9 (E.D. Mich. Feb. 13, 2024) (where the ALJ “did not explain in detail how he applied the factors of supportability and consistency” he “leaves the Court guessing as to what evidence he considered ....”); McClellan, 2023 WL 2472655, at *12 (ALJ's “failure to discuss the supportability and consistency of [the treating psychologist's] opinion (much less his failure to even acknowledge the opinion) constitutes reversible error); John F. v. Comm'r of Soc. Sec. Admin., No. 3:22-cv-00260, 2023 WL 4759127, at *4-6 (S.D. Ohio July 26, 2023) (ALJ's failure to follow the regulatory requirement that medical opinions be evaluated for supportability and consistency, and to explain his consideration of those factors, required remand); Richard R. v. Kijakazi, 691 F.Supp.3d 508, 527-58 (D. Conn. 2023) (ALJ's failure to discuss the “consistency” factor constituted reversible error, even when there was little evidence that was consistent with the opinion in question); Smith v. O'Malley, No. 23-CV-02339 (JLC), 2024 WL 1983881, at *9 (S.D.N.Y. May 6, 2024) (“The failure to properly consider and apply supportability and consistency is grounds for remand.”) (internal quotations omitted) (citing cases).

As set forth above, there is no dispute that the ALJ failed to discuss the supportability and/or consistency of Dr. Gabr's and PA Burek's opinion that Plaintiff was restricted to “frequent change of position” and “no heavy lifting.” And, contrary to the Commissioner's assumption, it is not clear that “the opinion is consistent with the ALJ's finding” (ECF No. 13, PageID.1544), as it is entirely possible that Dr. Gabr and PA Burek contemplated more frequent position changes than the 30-minute option adopted by the ALJ. Indeed, at the hearing before the ALJ, Plaintiff testified that she could only stand 20 minutes at a time and could only sit 10 minutes at a time, and in her function report, Plaintiff noted that “sitting hurt[s] after about 20 minu[tes].” (PageID.92-93, 336). The Court also notes the significance of the issue given that Dr. Gabr and PA Burek repeatedly stressed that a restriction to “frequent change of position” was “especially” important. (PageID.673, 676, 682, 719, 723, 725, 728, 730, 732, 734, 736, 744, 764, 766, 1041, 1043).

In the absence of any discussion by the ALJ as to how he arrived at the 30-minute sit/stand interval restriction, it is impossible for the Court to trace the path of his reasoning and determine whether sedentary work with that specific restriction, as opposed to say, a sit/stand “at will” restriction, is supported by and consistent with the opinion of Plaintiff's treating providers. Because the ALJ's decision fails to provide an accurate and logical bridge between the evidence and the result on that significant issue, it is not supported by substantial evidence. See Gross, 247 F.Supp.3d at 829. As such, remand is required.

III. CONCLUSION

For the foregoing reasons, the Court RECOMMENDS that the Commissioner's Motion for Summary Judgment (ECF No. 13) be DENIED, that Plaintiff's Motion for Summary Judgment (ECF No. 11) be GRANTED, and that, pursuant to sentence four of 42 U.S.C. § 405(g), this case be REMANDED for further proceedings consistent with this Report and Recommendation.

NOTICE REGARDING OBJECTIONS

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.