UNITED STATES DISTRICT COURT

EASTERN DISTICT OF MICHIGAN

SOUTHERN DIVISION

DARYL KLUMP,

Plaintiff, Civil Action No. 14-12428

 Honorable Linda V. Parker

v. Magistrate Judge Elizabeth A. Stafford

 

CAROLYN W. COLVIN, 

Acting Commissioner of 

Social Security,

 

Defendant. 

_____________________________/

REPORT AND RECOMMENDATION

ON CROSS-MOTIONS FOR SUMMARY JUDGMENT [R. 9, 11] 

Plaintiff Daryl Klump appeals a final decision of Defendant 

Commissioner of Social Security (“Commissioner”) denying his application 

for disability insurance benefits (“DIB”) and supplemental security income 

benefits (“SSI”) under the Social Security Act (the “Act”). The parties filed 

motions for summary judgment, and the Honorable Linda V. Parker 

referred this matter for a Report and Recommendation pursuant to 28 

U.S.C. § 636(b)(1)(B). [R. 2]. The Court finds that the decision by the 

administrative law judge (“ALJ”) is not supported by substantial evidence, 

and thus RECOMMENDS that:

• Klump’s motion [R. 9] be GRANTED in part, to the extent it requests 

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remand;

• the Commissioner’s motion [R. 11] be DENIED; and,

• the Commissioner’s decision REMANDED, pursuant to sentence four 

of 42 U.S.C. § 405(g), for further consideration consistent with this 

Report and Recommendation. 

I. BACKGROUND

a. Procedural Background and Klump’s Claimed Disabilities

Klump was born in August 1963, making him forty-seven when he 

applied for disability benefits in March 2011. [R. 6-2, Tr. 16; R. 6-3, Tr. 87]. 

He alleged a disability onset date of November 14, 2004; however, he was 

previously denied benefits in a prior decision dated September 24, 2007. 

[R. 6-3, Tr. 76-84]. Therefore, the ALJ only considered whether Klump was 

disabled from September 25, 2007 onward, citing Drummond v. Comm'r of 

Soc. Sec., 126 F.3d 837 (6th Cir. 1997) and Social Security Administration 

Acquiescence Ruling 98-4(6). [R. 6-2, Tr. 16, 28]. Klump alleged that he 

was disabled by mental conditions (memory, head injury and depression) 

and physical conditions (back, shoulders, hip and no thyroid gland). [R. 6-

6, Tr. 200]. After a hearing, the ALJ determined that Klump was not 

disabled. [R. 6-2, Tr. 30]. The Appeals Council denied review, making the 

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ALJ’s decision the final decision of the Commissioner. [Id., Tr. 1-3]. Klump 

timely filed for judicial review. [R. 1].

b. The ALJ’s Application of the Disability Framework Analysis

A “disability” is 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 determines whether an applicant is disabled by 

analyzing five sequential steps. First, if the applicant is “doing substantial 

gainful activity,” he or she will be found not disabled. 20 C.F.R. § 

404.1520(a)(4); 20 C.F.R. § 416.920(a)(4).

1 Second, if the claimant has not 

had a severe impairment or a combination of such impairments2 for a 

continuous period of at least 12 months, no disability will be found. Id.

Third, if the claimant’s severe impairments meet or equal the criteria of an 

impairment set forth in the Commissioner’s Listing of Impairments, the 

claimant will be found disabled. Id. If the fourth step is reached, the 

Commissioner considers its assessment of the claimant’s residual 

 

1 Sections 1520(a)(4) and 920(a)(4), which pertain to DIB and SSI 

respectively, list the same five-step analysis.

2 A severe impairment is one that “significantly limits [the claimant’s] 

physical or mental ability to do basic work activities.” §§ 1520(c); 920(c).

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functional capacity (“RFC”), and will find the claimant not disabled if he or 

she can still do past relevant work. Id. At the final step, the Commissioner 

reviews the claimant’s RFC, age, education and work experiences, and 

determines whether the claimant could adjust to other work. Id. The 

claimant bears the burden of proof throughout the first four steps, but the 

burden shifts to the Commissioner if the fifth step is reached. Preslar v. 

Sec’y of Health & Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994). 

Applying this framework, the ALJ concluded that Klump was not 

disabled. At step one, the ALJ determined that Klump had not engaged in 

substantial gainful activity since September 25, 2007. [R. 6-2, Tr. 18]. At 

step two, the ALJ identified severe impairments of “degenerative disc 

disease, history of head injury, bilateral shoulder injury, major depressive 

disorder, generalized anxiety disorder, and alcohol dependence–in 

remission.” [Id., Tr. 19]. At step three, the ALJ determined that none of 

Klump’s impairments, either alone or in combination, met or medically 

equaled a listed impairment. [Id.]. In making this determination, the ALJ 

found that Klump had no more than mild limitations in activities of daily 

living, mild difficulties in social functioning, and moderate difficulties in 

maintaining concentration, persistence and pace with no episodes of 

decompensation that have been of extended duration. [Id., Tr. 20-21]. 

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Next, the ALJ assessed Klump’s RFC, finding him capable of 

performing light work with the following limitations:

[T]he claimant can never use bilateral use of foot controls. He 

can never perform any overhead reaching bilaterally, above 

shoulder level. He can never perform any crawling, crouching, 

climbing of ladders or scaffolds, squatting or kneeling. He can 

never be exposed to extreme cold, due to complaints of pain. 

The claimant is limited, generally, to simple, routine tasks. To 

reduce stress, he is limited to simple, work-related decisions. 

He should have no more than occasional contact with the 

general public.

[Id., Tr. 22]. At step four, the ALJ concluded that Klump has no past 

relevant work. [Id., Tr. 29]. At step five, with the assistance of VE testimony, 

the ALJ determined that a hypothetical claimant matching Klump’s profile 

could perform a substantial number of jobs in the national economy, such 

that he was not disabled, including packager (460,000 jobs nationally), 

cleaner (750,000 jobs) and inspector (11,000 jobs). [Id., Tr. 30]. 

II. ANALYSIS

Pursuant to § 405(g), this Court’s review is limited to determining 

whether the Commissioner’s decision is supported by substantial evidence 

and was made in conformity with proper legal standards. Gentry v. Comm’r 

of Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014). 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 

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support a conclusion.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 

(6th Cir. 2007) (internal quotation marks and citation omitted). Only the 

evidence in the record below may be considered when determining 

whether the ALJ’s decision is supported by substantial evidence. Bass v. 

McMahon, 499 F.3d 506, 513 (6th Cir. 2007). 

Klump’s prior attorney of record filed a motion for summary judgment,

but that attorney and his firm’s representation of Klump was terminated 

from this and other Social Security cases due to malfeasance. [See R. 15; 

13-cv-14544, R. 16-4]. The malfeasance came to light after the attorney 

was “repeatedly criticized by judicial officers in this district, and the relief 

requested therein routinely denied, due to their ‘conclusory assertions’ and

lack of any developed argument.” [14-cv-10251, R. 13, PgID 574]. After his 

attorney’s termination from this case, Klump was given an opportunity to 

file another motion for summary judgment, [R. 21], but he did not do so. 

The Court has therefore considered the arguments in the motion filed by 

Klump’s prior attorney, but it suffered from the same deficiencies previously 

described. Therefore, in the interest of justice, the Court has independently 

considered the evidence in the record.

Upon independent review, the Court finds that the ALJ’s erred at step 

three in failing to obtain a medical opinion on the issue of equivalency 

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relating to Klump’s physical impairments and that the ALJ’s assessment of 

Klump’s RFC is not supported by substantial evidence. 

A.

While the record contains an opinion regarding medical equivalency 

from Wayne Hill, Ph.D. as to Klump’s mental impairments, the only such 

opinion regarding his physical impairments comes from Lynn Aurilio, a 

“single decisionmaker” (“SDM”). [R. 6-3, Tr. 87-110]. Under the SDM 

model, non-medical agency employees may render an initial denial without 

expert opinions on the issue of equivalency or disability. 20 C.F.R. §§ 

404.906(b)(2), 416.1406(b)(2). The ALJ did not expressly rely on the 

SDM’s opinion in finding no medical equivalency to a listed impairment; 

however, she failed to follow SSR 96–6p, which “requires that the judgment 

of a physician (or psychologist) designated by the Commissioner on the 

issue of equivalence on the evidence before the administrative law judge or 

the Appeals Council must be received into the record as expert opinion 

evidence and given appropriate weight.” SSR 96–6p, 1996 WL 374180, at 

*3 (July 2, 1996). Most courts in this district agree that, when a SDM 

renders the initial denial, a medical opinion on the issue of equivalency is 

necessary at the administrative hearing stage. See, e.g., Fowler v. Comm'r 

of Soc. Sec., No. 12-12637, 2013 WL 5372883, at *4 (E.D. Mich. Sept. 25, 

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2013) (“[O]nce a hearing is requested, SSR 96–6p is applicable, and 

requires a medical opinion on the issue of equivalence.”).

Here, a SDM determined that Klump’s physical impairments did not 

meet or equal a Listing. [R. 6-3, Tr. 97, 109]. At the hearing stage, the ALJ 

analyzed Klump’s ability to meet or medically equal Listings 1.02 and 1.04 

without the benefit of a medical opinion. [R. 6-2, Tr. 19]. Under SSR 96–

6p, this was error.

Although this type of error may be considered harmless error when 

the evidence overwhelmingly demonstrates that the claimant could not 

meet the elements of a given listing, (see e.g. Bukowski v. Comm'r of Soc. 

Sec., No. 13-CV-12040, 2014 WL 4823861 (E.D. Mich. Sept. 26, 2014)), 

such is not the case here. “[C]ourts generally should exercise caution in 

conducting harmless error review in this context” because “it may be 

difficult, or even impossible, to assess . . .” Rabbers v. CSS, 582 F.3d 647, 

657–658 (6th Cir. 2009). See also Harris v. Comm'r of Soc. Sec., No. 12-

10387, 2013 WL 1192301, at *8 (E.D. Mich. Mar. 22, 2013) (court lacked 

medical expertise to determine whether impairments met equivalency 

requirement). 

Here, the Disability Determination Explanation stated that a 

consultative examination should be “required” because “[a]dditional 

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evidence is required to establish current severity of the individual’s 

impairment(s).” [R. 6-3, Tr. 90]. Additionally, although the ALJ claimed the 

record was devoid of any evidence satisfying the criteria for the Listings, a 

review of the record reveals at least “conflicting or inconclusive evidence” 

related to Klump’s ability to meet or medically equal a listing. Rabbers, 582 

F.3d at 657.

Klump was seen on several occasions from 2007 to 2013 for 

shoulder, neck, and back pain, [R. 6-7, Tr. 409, 410, 415, 416, 417, 428, 

443-44, 451-52, 461-62, 506-09, 529-33, 559-64], and complained of pain 

during numerous medical visits for other issues. [R. 6-7, Tr. 282, 283-84, 

285, 287, 289, 290, 293-94, 295-296, 297-99, 302-03, 304-05, 306-07, 

308-09, 310-11, 312-13, 335-45, 401-03, 404-05, 408, 503-05, 568-570].

During examinations, he was described as experiencing pain, tenderness 

and muscle spasms, and as having slow, pained ambulation and “barely 

walking.” [Id., Tr. 529-32, 538-43, 551, 562]. Klump was prescribed a 

number of medications, including Tramadol, Flexeril and Valium for his 

back pain and spasms. [Id.]. 

Diagnostic imaging revealed that Klump suffers from degenerative 

spinal diseases which appear to have worsened over time. In October 2007

(after the September 2007 prior decision denying disability benefits), 

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imaging showed that Klump suffered from facet arthritis with “extensive 

degenerative disc disease at L5-S1,” slight narrowing at L4-5 and possibly 

at L3-4. [Id., Tr. 429]. By November 2012, the degenerative disc disease at 

L5-S1 was deemed severe, and a “small right lower pole renal calculus” 

was noted. [Id., Tr. 527]. After Jose Mari G. Jurado, M.D., conducted an 

EMG examination and assessment in January 2013, he opined that Klump 

also had mild axonal demyelinating neuropathy with bilateral S1 

radiculopathy (mild with denervation) and bilateral carpal tunnel syndrome 

(mild with superimposing median neuropathy). [Id., Tr. 571]. According to 

Dr. Jurado, Klump suffers pain that “is rather complex” and that requires 

further electrodiagnostic study in order to develop an appropriate treatment 

plan. [Id., Tr. 571-72]. 

This Court lacks the expertise to determine whether this evidence 

may meet or be equivalent to the criteria for a Listing, and thus remand with 

instruction to obtain a medical opinion is warranted. Harris, 2013 WL 

1192301 at *8. 

B.

The lack of a medical opinion also renders the ALJ’s RFC 

assessment unsupported by substantial evidence. 

Unless substantial evidence supports a determination of a 

claimant’s RFC based solely on the non-medical evidence, an 

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ALJ’s RFC finding must be supported by at least one medical 

opinion. When determining a claimant’s RFC, ‘ALJs must not 

succumb to the temptation to play doctor and make their own 

independent medical findings.’ Simpson v. Commissioner, 2009 

WL 2628355 (6th Cir.) (quoting Rohan v. Secretary, 98 F.3d 

966, 970 (7th Cir.1996)). As lay individuals, ALJs are simply not 

qualified to ‘interpret raw medical data in functional terms.’

Deskin v. Commissioner, 60 F .Supp.2d 908, 912 (N.D.Ohio 

2008)

Brown v. Colvin, No. 5:12-CV-00145-LLK, 2013 WL 1703885, at *1 (W.D. 

Ky. Apr. 19, 2013). The ALJ was not qualified to interpret Klump’s imaging 

and clinical examinations and, compounding the error, the ALJ 

mischaracterized that evidence.

Contrary to the evidence cited above indicating that Klump suffered 

from muscle spasms and slow ambulation, [R. 6-7, Tr. 529-32, 538-43, 

551, 562], the ALJ stated that Klump’s musculoskeletal examinations were 

“unremarkable, with findings limited to subjective allegations of 

tenderness,” and that his gait was normal. [R. 6-2, Tr. 24]. She diminished 

the significance of the 2012 finding that Klump suffered from severe 

degenerative disc disease by stating that that finding was limited to one 

location of the spine, and she claimed that he was treated successfully with 

medication, but Dr. Jurado opined that Klump also had neurological 

disorders and that further testing was necessary to determine how to treat 

Klump’s “rather complex” back pain. [Id., Tr. 24-25; R. 6-7, Tr. 571-72]. 

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Moreover, the ALJ alleged that there was no medical explanation for 

Klump’s alleged worsening symptoms since December 2011, despite 

imaging showing severe degenerative disc disease in November 2012 and 

Dr. Jurado’s opinion describing Klump’s complex pain issues. [R. 6-2, Tr. 

25]. 

Notably, the ALJ who rendered the 2007 decision described Klump 

as having severe impairments that included degenerative arthritis in his 

acromioclavicular joint (shoulder), but not severe degenerative disc disease 

in S1-L5 (the low back) or the neurological disorders, so these latter 

conditions appear to have arisen after the 2007 decision. [R. 6-3, Tr. 78]. 

Yet, the instant ALJ assessed an RFC with postural restrictions that were 

unchanged from the 2007 RFC assessment. [R. 6-2, Tr. 22; R. 6-3, Tr. 79]. 

She imposed the same postural RFC without the assistance of a medical 

opinion, interpreting raw medical data in a manner that was indisputably

outside of her expertise. Given that, and given the ALJ’s 

mischaracterization of the record, her decision should be reversed and 

remanded for further consideration.

C.

In the motion for summary judgment that was filed on Klump’s behalf, 

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he argued that the ALJ erred when she found him less than credible. 

Although this Court is recommending remand on other grounds, the ALJ 

should be instructed to reconsider her evaluation of Klump’s credibility in 

light of any additional medical evidence used to determine whether Klump’s 

physical impairments meet or equal a Listing, and to assess his RFC.

III. CONCLUSION

For the reasons stated above, the Court RECOMMENDS that 

Klump’s motion for summary judgment [R. 9] be GRANTED in part, the 

Commissioner’s motion [R. 11] be DENIED, and the Commissioner’s 

decision be REMANDED for further proceedings pursuant to sentence four 

of 42 U.S.C. § 405(g).

s/Elizabeth A. Stafford

ELIZABETH A. STAFFORD

United States Magistrate Judge

Dated: April 26, 2016

NOTICE TO THE PARTIES REGARDING OBJECTIONS

Either party to this action may object to and seek review of this 

Report and Recommendation, but must act within fourteen 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. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. 

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Secretary of HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 

638 F.2d 947 (6th Cir. 1981). Filing objections which raise some issues but 

fail to raise others with specificity will not preserve all objections that party 

might have to this Report and Recommendation. Willis v. Secretary 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). A copy of any objection 

must be served upon this Magistrate Judge. E.D. Mich. LR 72.1(d)(2).

Each objection must be labeled as “Objection #1,” “Objection #2,” 

etc., and must specify precisely the provision of this Report and 

Recommendation to which it pertains. Not later than fourteen days after 

service of objections, the non-objecting party must file a response to 

the objections, specifically addressing each issue raised in the objections in 

the same order and labeled as “Response to Objection #1,” “Response to 

Objection #2,” etc. The response must be concise and proportionate in 

length and complexity to the objections, but there is otherwise no page 

limitation. If the Court determines that any objections are without merit, it 

may rule without awaiting the response.

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CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s ECF 

System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on April 26, 2016.

s/Marlena Williams

MARLENA WILLIAMS

Case Manager

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