UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

EVELYN JENNINGS,

Plaintiff, Civil Action No. 09-CV-13364

vs. HON. BERNARD A. FRIEDMAN

MICHAEL ASTRUE,

COMMISSIONER OF

SOCIAL SECURITY,

Defendant.

____________________/

OPINION AND ORDER REJECTING MAGISTRATE JUDGE’S

REPORT AND RECOMMENDATION, DENYING CROSS-MOTIONS

FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS

This matter is presently before the court on cross motions for summary judgment.

Magistrate Judge Charles E. Binder has submitted a Report and Recommendation (“R&R”) in which

he recommends that the court grant defendant’s motion and deny plaintiff’s motion. Plaintiff has

filed timely objections to the R&R. For the reasons stated below, the court shall reject the

magistrate judge’s recommendation, deny both parties’ motions for summary judgment, and remand

the matter for further administrative proceedings.

This is a social security disability case. Plaintiff alleges that she became disabled in

June 2004 due to a variety of physical and mental conditions (Tr. 120). The Administrative Law

Judge (“ALJ”) found that plaintiff had the following severe impairments as of September 30, 2005,

when her insured status expired: “anxiety disorder, major depression; post traumatic stress disorder;

gastrointestinal reflux disease; headaches; chronic rhinitis, sinusitis and pansinusitis; fibromyalgia;

bursitis; neck, right shoulder, and knee pain; join pain; and degenerative osteoarthritis of the

cervical, thoracic and lumbar spines” (Tr. 13). The ALJ also found that while these impairments
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prevent plaintiff from performing her past work as a gas station cashier/clerk (light, unskilled), a

hospital clerk (medium, semi-skilled), and cook (light, semi-skilled) (Tr. 27), she has the residual

functional capacity for a limited range of light work. The ALJ found that plaintiff can do light-level

work “except that she is not able to do any overhead reaching with right upper extremity, unable to

work at a production rate pace, and is limited to work where the interpersonal contact between coworkers and supervisors would be superficial and minimal” (Tr. 15). Based on vocational expert

(“VE”) testimony, the ALJ found that tens of thousands of “food preparation,” “packing,” “office

clerk,” and “kitchen helper” jobs exist which would accommodate these limitations (Tr. 19). The

ALJ therefore concluded that plaintiff is not disabled.

Substantial evidence supports the ALJ’s finding that most of plaintiff’s physical

impairments do not prevent her from performing a limited range of light-level work. As noted by

both the ALJ and the magistrate judge, the medical evidence does not indicate that plaintiff’s joint

pain is of disabling severity. While plaintiff was insured, the majority of her physical complaints

stemmed from an automobile accident in September 2005. X-rays of the affected areas were

generally unremarkable, and the treatment notes show steady improvement.

However, there are two significant aspects of plaintiff’s physical condition which

have not been developed sufficiently to enable defendant to competently assess their impact on

plaintiff’s ability to work, namely, plaintiff’s headaches and the side-effects of her many

medications. As to the first, the ALJ noted plaintiff “testified that she has longstanding daily

headaches” (Tr. 17). Indeed, plaintiff testified that she gets headaches “daily” and that they last

“anywhere from two or three hours to two or three days” (Tr. 31). For relief, she takes pain

medication and lies down (Tr. 32). “I go in my room where it’s quiet and dark” (Tr. 32). There is
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evidence from shortly after the expiration of plaintiff’s insured status describing plaintiff’s

headaches as “increasing” and “incapacitating” (Tr. 214) and “chronic severe” (Tr. 235). As noted

above, the ALJ found that plaintiff’s headaches are a severe impairment.

As for the side-effects of plaintiff’s medications, the ALJ noted that plaintiff “has

been prescribed a number of medications, including: Prilosec; Reglan; Protonix; Toradol; Nasacort;

Allegra; Keflex, over the counter Sudafed; Xanax; Fiorecet, Vicodin; Premarin; Effexor; Mobic;

Ultram; and Cymbalta. . . . Her representative noted that her current medications are Vicodin, Xanax

and Protonix” (Tr. 15-16). The ALJ also acknowledged plaintiff’s testimony that “her medication[s]

make her sick to her stomach, make her sleepy and increase her anxiety” (Tr. 16). The Disability

Determination Service (“DDS”) noted plaintiff “reports that she is unable to watch an entire TV

show without falling asleep” (Tr. 312).

The ALJ made no specific findings regarding the severity of either plaintiff’s

headaches or the side-effects of her medications. He did not specifically find her testimony to lack

credibility. Nor did he develop the record adequately as to either of these issues, e.g., by questioning

plaintiff more closely at the hearing or by obtaining an opinion from a competent medical expert.

Nor, again due to the lack of evidence on these issues, did the ALJ incorporate any findings as to

these issues in his hypothetical question to the VE, thereby depriving the VE’s testimony in response

thereto of any evidentiary value. See Varley v. Secretary of Health & Human Servs., 820 F.2d 777,

779 (6th Cir. 1987) (“Substantial evidence may be produced through reliance on the testimony of a

vocational expert in response to a hypothetical question, but only if the question accurately portrays

[plaintiff’s] individual physical and mental impairments.”)

Further, the record does not contain substantial evidence to support the ALJ’s finding
1

 As noted by Magistrate Judge Pepe in Mathious v. Barnhart, 490 F. Supp.2d 833, 838

n.4 (E.D. Mich. 2007),

[t]he GAF [Global Assessment of Functioning] score is a subjective

determination that represents “the clinician's judgment of the

individual's overall level of functioning.” AMERICAN

PSYCHIATRIC ASSOC., DIAGNOSTIC AND STATISTICAL

MANUAL OF MENTAL DISORDERS, (4th ed.1994) at 30. It

ranges from 100 (superior functioning) to 1 (persistent danger of

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that plaintiff is mentally able to perform the jobs identified by the vocational expert. As noted

above, the ALJ found that plaintiff has anxiety, major depression and post traumatic stress disorder

(“PTSD”) and that these qualify as “severe impairments.” These findings, which are not challenged

by either party, clearly are supported by the record. As the ALJ noted, plaintiff

has a history of mental ailments. She sought treatment at AuSable

Valley Community Mental Health for anxiety and depression from

February 1997 to March 1998 and then again from July 2005 to June

2006. Her impairments resulted in low self esteem, fear of social

interaction, tearfulness, crying spells, and difficulties completing

tasks. She attributed part of these ailments to past family trauma and

her financial difficulties. She also noted that her depressive

complaints were related to her overall health condition. Major

depression, social anxiety disorder, generalized anxiety disorder and

post traumatic stress syndrome were diagnosed and she was to attend

a post traumatic stress disorder group. (Exhibit 6F, p. 11-13)

(Tr. 16.) Plaintiff indicates that she has “so much anxiety that I don’t want to leave the house” (Tr.

156). Plaintiff’s medical records contain several references to her anxiety, depression and PTSD

(e.g., Tr. 220-23, 227, 246, 251, 283-89, 321-25, 329). Plaintiff has characterized as “extreme” her

anxiety and its effect on her ability to work (Tr. 248-49). George Pestrue, a Ph.D. psychologist who

examined plaintiff in September 2006 at defendant’s request, found her to be “moderately to

strongly depressed” (Tr. 287) and diagnosed major depression, social anxiety disorder, generalized

anxiety disorder, and PTSD (Tr. 289). He assessed her current GAF at 48.1

 Plaintiff’s GAF was
severely hurting self or others, persistent inability to maintain

minimal personal hygiene, or serious suicidal act with clear

expectation of death). See id. at 32. A GAF score of 31-40 indicates

“some impairment in reality testing or communication (e.g., speech

is at times illogical, obscure, or irrelevant) or major impairment in

several areas such as work or school, family relations, judgment,

thinking or mood.” Id. A GAF of 41 to 50 means that the patient has

“[s]erious symptoms ... OR any serious impairment in social,

occupational, or school functioning (e.g. no friends, unable to keep

a job).” Id. A GAF rating of 51 to 60 signals the existence of

moderate difficulty in social or occupational functioning. Id.

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assessed three months early at 38 (Tr. 246).

Despite the many references in the record to plaintiff’s mental impairments, and

despite the ALJ’s finding that they are “severe,” the record as to these impairments has not been

sufficiently developed. Bruce G. Douglass, Ph.D., whom the DDS requested to review the record

and complete a Psychiatric Review Technique form, checked only one box on the entire form,

namely, “Insufficient Evidence” (Tr. 293). Dr. Douglass did not, and presumably due to insufficient

evidence could not, provide any information about the nature and extent of plaintiff’s depression and

anxiety (Tr. 296, 298). Nor, significantly, was Dr. Douglass able to indicate the nature and extent

of the functional limitations caused by these impairments (Tr. 303). In the “consultant’s notes”

section at the end of this form, Dr. Douglass could do little more than repeat Dr. Pestrue’s findings

and note that “the 3rd party [plaintiff’s friend, see Tr. 159-66) lists difficulties that could be

considered related to her psychological condition as memory problems, ability to complete tasks,

concentration problems, understanding, following instructions, and getting along with others” (Tr.

305). Dr. Douglass concluded with the unexplained comment, “the clm is only considered partially

credible” (Tr. 305).
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A Physical Residual Functional Capacity Assessment form, completed by Michael

O’Connor for the DDS, noted plaintiff’s “anxiety related complaints” and the side-effects of her

medications (Tr. 312, 314) but did not include them in assessing plaintiff’s ability to work (Tr. 307-

314). A Mental Residual Functional Capacity Assessment form is entirely blank, unsigned, and

undated (Tr. 315-18).

This scant and spotty record simply does not provide a sufficient factual basis for the

ALJ to make reasoned, supportable findings concerning plaintiff’s mental and physical residual

functional capacity. On this record, no fact-finder has any way of knowing whether plaintiff’s

headaches and/or medication side-effects interfere with her ability to work on a full-time basis. The

VE testified that plaintiff would not be able to perform any of the jobs he identified if she misses

more than one day of work per month (Tr. 35). The matter must be remanded so that the record can

be sufficiently developed, specific findings can be made, and such findings can be incorporated into

proper hypothetical questions in order to determine the extent to which these impairments are

vocationally limiting.

The record must also be further developed to determine the extent to which

plaintiff’s mental impairments limit her ability to work. The present record does not support the

ALJ’s finding that plaintiff’s anxiety, depression and PTSD (and plaintiff’s headaches) can be

accommodated by avoiding “production rate pace” and restricting plaintiff “to work where the

interpersonal contact between co-workers and supervisors would be superficial and minimal” (Tr.

15). These restrictions are not based on a sufficiently developed record or competent medical

opinion. As noted, an evaluation of plaintiff’s mental residual functional capacity was never done

in this case. The only psychological evaluation, that done by Dr. Pestrue, did not comment on
2

 As noted above, plaintiff’s insured status expired on September 30, 2005. The issue in

this case is whether plaintiff was disabled prior to this date. It will be for defendant on remand

to determine the weight to be given evidence post-dating the expiration of plaintiff’s insured

status. See Jones v. Commissioner of Social Security, 1997 WL 413641, at *1 (6th Cir. July 17,

1997) (“Evidence relating to a later time period is only minimally probative, Siterlet v. Secretary

of Health & Human Servs., 823 F.2d 918, 920 (6th Cir.1987), and is only considered to the

extent it illuminates a claimant’s health before the expiration of his or her insured status. Higgs

v. Bowen, 880 F.2d 860, 863 (6th Cir.1988).”)

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plaintiff’s ability to work notwithstanding her mental impairments, did not suggest any

accommodations which may be necessary, and did not provide a factual basis from which the ALJ

reasonably could fashion such limitations.

On remand, defendant shall:

1. Develop the record regarding plaintiff’s headaches and the side-effects of her

medications. This must include obtaining a medical expert’s opinion regarding the severity and

extent of these impairments.2

2. Obtain an opinion from a qualified mental health professional describing the

severity of plaintiff’s mental impairments and stating whether plaintiff can work notwithstanding

these impairments and, if so, with what accommodations.

3. Make findings, based on the expanded record, regarding plaintiff’s physical and

mental residual functional capacity.

4. Convene a follow-up hearing at which a vocational expert is questioned regarding

the existence of jobs for a person of plaintiff’s age, educational level, work experience, and residual

functional capacity.

Accordingly,
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IT IS ORDERED that Magistrate Judge Binder’s R&R is rejected insofar as it is

inconsistent with this opinion.

IT IS FURTHER ORDERED that both parties’ summary judgment motions are

denied.

IT IS FURTHER ORDERED that this matter is remanded for further administrative

proceedings as directed above.

S/Bernard A. Friedman________

BERNARD A. FRIEDMAN

SENIOR UNITED STATES DISTRICT JUDGE

Dated: June 2, 2010

Detroit, Michigan