Opinion
Case No. 3:12-cv-225
03-08-2013
MARY E. FERGUSON, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Judge Timothy S. Black
ORDER THAT: (1) THE ALJ'S NON-DISABILITY FINDING IS FOUND NOT
SUPPORTED BY SUBSTANTIAL EVIDENCE, AND REVERSED;
(2) JUDGMENT SHALL BE ENTERED IN FAVOR OF PLAINTIFF AWARDING
BENEFITS; AND (3) THIS MATTER IS REMANDED TO THE ALJ UNDER
THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) TO DETERMINE
THE DATE FOR TERMINATION OF BENEFITS
This is a Social Security disability benefits appeal. At issue is whether the administrative law judge ("ALJ") erred in finding the Plaintiff "not disabled" and therefore unentitled to disability insurance benefits ("DIB"). (See Administrative Transcript ("Tr.") (Tr. 12-25) (ALJ's decision)).
I.
On April 21, 2008, Plaintiff filed an application for DIB, alleging disability since April 21, 2008. (Tr. 182-88). Plaintiff alleges disability due to residual effects of breast cancer, bilateral carpal tunnel syndrome, lumbosacral neuritis, urinary stress incontinence, and seizure-like episodes. (Tr. 15-17). Plaintiff's applications were denied initially and on reconsideration. (Tr. 118-19). Plaintiff filed a timely request for a hearing. (Tr. 122-23). Plaintiff, her attorney, and a vocational expert appeared at a hearing on October 12, 2010 before an ALJ, after which the ALJ found Plaintiff not disabled. (Tr. 85). The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. (Tr. 52-54). See also 20 C.F.R. §§ 404.955, 404.981.
At the time of Plaintiff's hearing before the ALJ she was 47 years old and considered to be a "younger person" for Social Security purposes. See 20 C.F.R. §§ 404.1563(c); 416.963(c). Plaintiff is a high school graduate. (Tr. 89). Plaintiff's past relevant work was as a commercial cleaner. (Tr. 102). She lives in a rental house with her adult son and her girlfriend. (Tr. 86-89).
The ALJ's "Findings," which represent the rationale of her decision, were as follows:
1. The claimant last met the insured status requirements of the Social Security Act on December 31, 2011.(Tr. 15-25).
2. The claimant did not perform substantial gainful activity after the alleged disability onset date of April 21, 2008 (20 CFR 404.1571, et seq).
3. The claimant has the following severe impairments: degenerative disc disease/degenerative joint disease, carpal tunnel syndrome, adjustment disorder with depressed mood (20 CFR 404.1520(c))).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.525 and 404.1526).
5. The claimant has the residual functional capacity to perform light work as defined at 20 CFR 404.1567(b) subject to the following additional limitations: no more than frequent fine and gross manipulation; low-stress duties (i.e., no assembly-line production quotas and no fast-paced duties).
6. The claimant is unable to perform past relevant work (20 CFR 404.1565).
7. The claimant was born on April 11, 1963. At age 47 the claimant is classified as a "younger individual" for Social Security purposes (20 CFR 404.1563).
8. The claimant has a high-school education (20 CFR 404.1564).
9. The claimant does not have "transferable" work skills within the meaning of the Social Security Act (20 CFR 404.1568).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).
11. The claimant has not been disabled, as defined in the Social Security Act, from April 21, 2008, through the date of this decision (20 CFR 404.1520(g)).
In sum, the ALJ concluded that Plaintiff was not under a disability as defined by the Social Security Regulations, and she was therefore not entitled to DIB. (Tr. 25).
On appeal, Plaintiff argues that: (1) the ALJ failed to properly weigh the opinion of Plaintiff's treating physician; (2) the assigned residual functional capacity is without substantial evidentiary support; (3) the ALJ's findings regarding Plaintiff's daily activities are unreasonable and unsupported; and (4) the ALJ's decision is not supported by substantial evidence and the Commissioner's position is not substantially justified. The Court will address each error in turn.
II.
The Court's inquiry on appeal is to determine whether the ALJ's non-disability finding is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). In performing this review, the Court considers the record as a whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence supports the ALJ's denial of benefits, that finding must be affirmed, even if substantial evidence also exists in the record upon which the ALJ could have found plaintiff disabled. As the Sixth Circuit has explained:
"The Commissioner's findings are not subject to reversal merely because substantial evidence exists in the record to support a different conclusion. The substantial evidence standard presupposes that there is a "zone of choice" within which the Commissioner may proceed without interference from the courts. If the Commissioner's decision is supported by substantial evidence, a reviewing court must affirm."Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994).
The claimant bears the ultimate burden to prove by sufficient evidence that she is entitled to disability benefits. 20 C.F.R. § 404.1512(a). That is, she must present sufficient evidence to show that, during the relevant time period, she suffered an impairment, or combination of impairments, expected to last at least twelve months, that left her unable to perform any job in the national economy. 42 U.S.C. § 423(d)(1)(A).
A.
The record reflects that:
1. Claimant's testimony and background
Plaintiff is a breast cancer survivor. In the Spring of 2008, she underwent bilateral mastectomies. (Tr. 91, 98). A course of chemotherapy was also administered via a surgically installed port and ended about ten months before Plaintiff's hearing. (Tr. 91-92). The chemotherapy caused Plaintiff to experience dizzy spells and neuropathy in her extremities. (Tr. 87-91). She drops things, her hands shake, and she falls four or five times each day. (Tr. 91-94, 100). Her balance is poor to the point that she needed to lean upon a friend to walk the block to get to her hearing. (Tr. 94). She can only stand or sit for about five minutes at a time because of shooting pain in her legs. (Tr.94). Six pounds of lifting is too much for Plaintiff. She continued trying to work after her surgeries, but could only do so on a part-time basis and was ultimately fired because her employer observed her symptoms. (Tr. 90, 100).
Shortly after Plaintiff's chemotherapy ended, she had right carpal tunnel release surgery. (Tr. 96). Her carpal tunnel is worse on the left, but she could not have surgery on that arm because of her chemotherapy port. (Id.) The right surgery was helpful, but did not restore feeling to Plaintiff's finger tips. (Id.) Plaintiff also described having daily panic attacks that feel like hot flashes and cause her to breathe heavily. (Tr. 92, 97).
In terms of daily activities, Plaintiff explained that when she does dishes it makes her cry. (Tr. 95). Her cooking is interrupted by the shooting pain in her legs resulting in her son microwaving the family's meals. (Id.) She spends most of her day sleeping. (Tr. 96). Plaintiff admitted that she occasionally smokes marijuana to help her appetite. (Tr. 101). She has lost about twenty pounds. (Id.)
2. Medical evidence of record
On March 26, 2008, a bilateral screening mammogram revealed calcifications in both of Plaintiff's breasts suspicious for malignancy. (Tr. 261). Biopsies were performed the next day to remove and test the calcifications. (Tr. 265-67). Testing of the excised masses came back positive for ductal carcinoma. (Tr. 267). Another biopsy was performed on April 22, 2008, and it was found that fairly extensive cancer remained in virtually all sections of Plaintiff's left breast. (Tr. 276, 288).
On April 14, 2008, Plaintiff had an initial consult with oncologist Dr. Daljeet Singh who discussed options for treating her breast cancer. (Tr. 273-75). She met Dr. Singh for a second time on May 1, 2008 and discussed the possibilities of mastectomies, lumpectomies, and/or chemotherapy in light of her testing and a strong family history of breast cancer. (Tr. 272). During this time, Plaintiff was also treated by Dr. Ronald Spier who guided the course of Plaintiff's biopsies and ultimately recommended a left mastectomy due to the extent of her cancer. (Tr. 299). On May 13, 2008, Plaintiff was admitted to Springfield Regional Medical Center for a left modified radical mastectomy performed by Dr. Spier. (Tr. 281-83).
Despite the wound healing well, Plaintiff complained to Dr. Spier of burning, stiffness, and swelling in her arm and chest following her left mastectomy. (Tr. 409). On July 7, 2008, a bilateral breast MRI was performed. (Tr. 353). The site of Plaintiff's left mastectomy was unremarkable, but there were concerning densities in her right breast. (Id.) Ultimately, a right simple mastectomy was performed on August 18, 2008 by Dr. Spier. (Tr. 361-62). On August 28, 2008, Dr. Spier turned Plaintiff's care over to the oncologists at Springfield Hematology and Oncology Associates, Inc. for chemotherapy. (Tr. 408, 421).
A left arm chemotherapy port was implanted by Dr. Spier on September 18, 2008. (Tr. 420-424). Plaintiff then underwent eight courses of chemotherapy through March of 2009. (Tr. 417-18). The administering physicians noted moderate toxicity manifested as arthralgias, myalgias, nausea, severe, fatigue, hot flashes, extremity swelling, and other symptoms. (Tr. 417-18, 489).
The hot flashes and extremity symptoms continued after her chemotherapy along with complaints of headaches, back pain, and extremity weakness. (Tr. 483-88, 503, 574). An electromyographic ("EMG") test performed in September of 2009 was consistent with lower extremity peripheral neuropathy. (Tr. 455). Neurologist Dr. Amrit Chadha diagnosed Plaintiff with moderately severe peripheral neuropathy in her upper and lower extremities on March 8, 2010. (Tr. 505-07). Plaintiff saw pain management specialist Dr. Thaiduc Nguyen in July through September of 2010 for her extremity and back pain. (Tr. 521-30). Dr. Nguyen diagnosed lumbar degeneration with radiculopathy, adjusted Plaintiff's pain medication, and administered lumbar epidural steroid injections. (Tr. 521-30, 544-49). He also referred Plaintiff to physical therapy for her back problems, however, Plaintiff did not follow through with the same. (Tr. 540-42). Plaintiff was discharged from Dr. Nguyen's care on September 29, 2010 because she failed a routine urine drug screen. (Tr. 543).
Following the completion of Plaintiff's chemotherapy, she spoke with her physicians about treating worsening problems with stress incontinence. (Tr. 484-85). A mid-urethral sling was surgically placed at Miami Valley Hospital in May of 2009. (Tr. 428-35). The surgery was ultimately successful. (Tr. 479-81).
On October 30, 2009, Plaintiff consulted with Dr. Thomas Rak regarding progressive numbness, tingling, and discomfort in both hands she had been experiencing over the past year. (Tr. 438). Dr. Rak's impression was severe left and moderate to marked right carpal tunnel syndrome. (Id.) This impression was based in part upon upper extremity EMG testing performed June 10, 2009 consistent with the same. (Tr. 456-57). Dr. Rak performed a right carpal tunnel release surgery which healed well and improved Plaintiff's symptoms. (Id.)
Plaintiff's primary care physician throughout was Dr. Sandra Turner. Dr. Turner managed the day to day of Plaintiff's physical problems, coordinated the treatment from her specialists, ordered testing, and managed Plaintiff's medications. (Tr. 553-67).
The record also contains a large number of diagnostic tests from 2008 through 2010 not otherwise mentioned above. A majority of these tests were ordered for the purpose of assuring that Plaintiff's cancer had not recurred or spread to other parts of her body. (Tr. 439-77). Several of the tests, however, revealed the presence of other impairments. For instance, a chest x-ray performed April 21, 2008 was consistent with COPD. (Tr. 384). A lumbar MRI conducted on September 26, 2009 reflected degenerative changes throughout Plaintiff's lumbar spine, most prominent at L5-S1, where a synovial cyst was observed. (Tr. 452). A full body bone scan was completed on March 31, 2010, revealing findings consistent with degenerative changes of Plaintiff's thoracolumbar spine. (Tr. 439-40).
3. Opinion evidence of record
On June 23, 2008, Plaintiff was evaluated by state agency consulting psychological examiner John S. Reece, Psy.D. (Tr. 321-24). Plaintiff reported a host of psychological symptoms to Dr. Reece including emotional labiality, poor sleep, crying spells, recurrent thoughts of death, feelings of worthlessness, and manifestations of anxiety. (Tr. 322-23). Dr. Reece ultimately diagnosed Plaintiff with an Adjustment Disorder with Depressed Mood. (Tr. 323). In light of his observations, he opined that Plaintiff is moderately impaired in her ability to withstand the stress and pressure associated with day to day work activity and at most mildly impaired in other mental functional areas. (Tr. 324).
Emotional liability refers to a neurologic disorder characterized by involuntary crying or uncontrollable episodes of crying and/or laughing, or other emotional displays.
On July 2, 2008, Robert Gibson, a state agency employee, drafted an assessment of Plaintiff's mental impairments and capabilities. (Tr. 330-48). Mr. Gibson's assessment indicated that although Plaintiff struggles with a number of moderate vocationally significant mental limitations, she is capable of performing "simple/moderately complex routine tasks, that does not include frequent changes in work assignments and is without demands for high production demands and speed. (sic)" (Tr. 331-34). Mr. Gibson recorded that Plaintiff is moderately limited in maintaining social functioning and maintaining concentration, persistence, or pace. (Tr. 345).
On August 18, 2008, state agency consultant Dr. Ali Perencevich summarily hypothesized that Plaintiff's status post left mastectomy "should not last" as a severe impairment. (Tr. 355). Another consultant, Dr. Gary Hinzman, reached the same conclusion as to Plaintiff's right mastectomy on September 26, 2008. (Tr. 415).
Dr. Sandra Turner, Plaintiff's primary care provider at all relevant times, offered her opinion of Plaintiff's impairments and functional limitations via a questionnaire dated October 7, 2010. (Tr. 569-70). Dr. Turner not only indicated that Plaintiff's pain is severe and her work capacity is "None," but also identified specific limitations in over twenty separate vocationally significant physical functions which, when combined, are work preclusive per the vocational expert's testimony. (Tr. 104-05, 569-70).
4. The ALJ's Decision
The ALJ found that Plaintiff was insured for benefits under Title II of the Social Security Act through December 31, 2011 and had not engaged in substantial gainful activity since her alleged onset date. (Tr. 66). The ALJ found that Plaintiff suffers from the severe impairments of degenerative disc disease/degenerative joint disease, carpal tunnel syndrome, and adjustment disorder with depressed mood, but that none of these impairments meet or equal any listing. (Tr. 66-71). The ALJ believed that there is "no substantial evidence of continuing effects of breast cancer that would significantly affect (Plaintiff's) ability to do basic work-related functions," and therefore found the residuals of her breast cancer to be not severe. (Tr. 66). The ALJ granted no meaningful weight to the opinion of Dr. Turner. (Tr. 68).
The ALJ's residual functional capacity finding read:
"Residual functional capacity" is defined as the most a claimant can still do despite his or her limitations. 20 C.F.R. §404.1545(a).
"The claimant retains the residual functional capacity to perform light work as defined at 20 CFR 404.1567(b) subject to the following additional limitations: no more than frequent fine and gross manipulation; low-stress duties (i.e., no assembly-line production quotas and no fast-paced duties)."(Tr. 72)
The ALJ concluded that although Plaintiff is incapable of returning to her past work, there are significant numbers of other jobs in the national economy which he can perform. (Tr. 74-76). As a result, the ALJ found that Plaintiff has not been disabled under the Social Security Act from April 21, 2008 through the date of her decision. (Tr. 76).
The ALJ rendered her decision on February 11, 2011.
B.
First, Plaintiff alleges that the ALJ failed to properly apply the treating source rule.
The Regulations clearly state that a treating doctor's opinion must be given "controlling weight" if "well-supported" by objective evidence. 20 C.F.R. § 1527(d)(2). More weight is generally given to treating sources because they can provide a detailed, longitudinal picture of one's medical impairments and may bring a unique perspective to the medical evidence that cannot be obtained from objective findings alone or from reports of individual examinations such as consultative examinations. Id. "If the opinion of a treating source is not accorded controlling weight, an ALJ must apply certain factors - namely, the length of the treatment relationship and the frequency of examination, the nature and extent of the treatment relationship, the supportability of the opinion, consistency of the opinion with the record as a whole, and the specialization of the treating source - in determining what weight to give the opinion." Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (discussing 20 C.F.R. § 1527(d)(2)).
If an ALJ rejects the opinion of a treating physician, she must articulate clearly "good reasons" for doing so. Wilson, 378 F.3d at 544. In order to be "good," those reasons must be "supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight." SSR 96-2p. In fact, the Sixth Circuit has held that the ALJ's "failure to follow the procedural requirement of identifying the reasons for discounting the opinions and for explaining precisely how those reasons affected the weight" given "denotes a lack of substantial evidence, even where the conclusion of the ALJ may be justified based upon the record." Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 243 (6th Cir. 2007).
The only medical statement of Plaintiff's physical capabilities in the record comes from treating source Dr. Sandra Turner. (Tr. 569-70). Contrary to the ALJ's generalized assertion, there is ample evidence in the case record which substantiates the limitations identified by Dr. Turner. For example Dr. Turner opines that Plaintiff has significant manipulative limitations and can lift only five pounds on even an occasional bais. (Tr. 569). This finding is substantiated not only by Plaintiff's testimony and allegations, but also by EMG testing which objectively confirmed that Plaintiff suffers from "severe" left and "moderate to marked" right carpal tunnel syndrome. (Tr. 91-94, 457). The clinical findings and observations of Dr. Rak and the results of Plaintiff's EMG test all confirm that Plaintiff is suffering from a legitimate and significant upper extremity pathology in the form of bilateral carpal tunnel syndrome. (Tr. 91-94, 438, 457).
Dr. Chadha similarly used clinical techniques to determine that Plaintiff was also struggling with neuropathy in her upper extremities. (Tr. 505-507). This medical evidence all reasonably establishes that Plaintiff would have significant difficulty using her upper extremities for things such as lifting and manipulation. Further evidence demonstrating lower extremity neuropathy, a lumbar pathology confirmed by objective imaging, and a course of pain management treatment through Dr. Nguyen, all supports a finding that Plaintiff is a person who would have significant limitations in activities such as standing, sitting, or the execution of various postures. (Tr. 452, 455, 505-07, 521-30, 544-49). Contrary to the ALJ's holding, Dr. Turner's opinion that Plaintiff has significant limitations in her upper extremities, standing, and performing other physical functions, cannot be classified as "completely unsubstantiated." (Tr. 72). Moreover, specific opinions as to lifting, standing, or manipulative restrictions from Drs. Chadha, Nguyen, and Rak are not required for the medical evidence generated by these physicians to stand as support for Dr. Turner's conclusions.
The ALJ's finding represents nothing more than the ALJ supplanting her own medical opinion for that of Dr. Turner. "While the Secretary may have expertise in respect of some matters, we do not believe he supplants the medical expert." Hall v. Celebreeze, 314 F.2d 686, 690 (6th Cir. 1963). Accordingly, the ALJ failed to properly apply the treating source rule and thus her opinion is not supported by substantial evidence.
C.
Next, Plaintiff alleges that the ALJ's RFC lacks support.
There is nothing in the record to assign Plaintiff a light work RFC. Light work involves lifting up to twenty pounds at a time with frequent lifting or carrying of weights up to ten pounds, and a good deal of walking, standing, or the pushing and pulling of controls. 20 C.F.R. § 404.1567(b). "Frequent" means for between one-third and two-thirds of a workday. The ALJ concludes that Plaintiff can sustain any work at the light level of exertion so long as it does not involve more than "frequent" fine and gross manipulation. (Tr. 72). However, no source has opined or even suggested that Plaintiff's impairments allow for the lifting of up to twenty pounds, standing or walking for a majority of an eight hour workday, or engaging in frequent bilateral fine and gross manipulation.
Social Security adopts the meaning of vocational terms as used in the Department of Labor's Dictionary of Occupational Titles ("DOT"). See DOT, Appendix C, Sec. III ("Frequently: activity or condition exists from 1/3 to 2/3 of the time").
Plaintiff testified that six pounds of lifting is too much for her. (Tr. 94). Dr. Turner opined that five pounds of lifting represented Plaintiff's limit. (Tr. 569-70). Plaintiff explained that in terms of the standing and walking required of light work, Plaintiff spends much of her days laying down, and Dr. Turner believes Plaintiff can only stand for fifteen minutes at a time. (Tr. 96, 569-70). This limitation corresponds with the observations and treatment from Drs. Nguyen and Turner as well at Plaintiff's lumbar MRI results. (Tr. 452, 521-30, 544-49).
The ALJ finds that a limitation to "low-stress duties" fully accommodates for Plaintiff's severe affective disorder. (Tr. 72). However, she makes it clear that this portion of her assessment is meant to eliminate only jobs which involve fast-paced duties and assembly line production. (Id.) This appraisal of Plaintiff's abilities is less restrictive than even that of the state agency's own reviewers, which the ALJ appears to credit. For example, the assessment signed by state agency reviewer Dr. Meyer noted that Plaintiff was not only unable to meet high production and speed demands, but also that she needed an environment with routine and not more than moderately complex tasks as well as infrequent changes in work assignments. (Tr. 330-48). These limitations have no reasonable relationship to the production and pace restrictions the ALJ adopts. It is also unclear why the ALJ equates Plaintiff's reduced ability to "withstand the stress and pressure to associate with day to day work activity" with an ability to mentally sustain any job that is not performed on an assembly line or at an otherwise fast pace. (Tr. 72, 324). Accordingly, Plaintiff's mental limitations have not been considered in the ALJ's RFC finding which leaves it without substantial evidentiary support.
Accordingly, there is no evidence in the record to sustain the premise that Plaintiff could sustain the light level of work that the ALJ describe from April 21, 2008 through at least April 21, 2009.
D.
Next, Plaintiff alleges that the ALJ's findings regarding her daily activities do not accurately reflect the evidence of record. Specifically, the ALJ found that Plaintiff "has not shown by substantial evidence that the usual activities or her ability to function in the performance of routine daily tasks is compromised to an extent inconsistent with" the RFC assigned. (Tr. 74).
Plaintiff reported that she sleeps nearly all the time and simply trying to do the dishes makes her cry. (Tr. 95-96). When Plaintiff spoke with Social Security in May 2008, she noted that she spent her days laying around and she avoided all activities with her upper extremities. (Tr. 218). In the function report filed with Social Security as part of her administrative appeal she reported that she "cannot shower, wipe her own (expletive deleted), cook, or clean" and added that she "can't do much of anything." (Tr. 227).
Defendant cites Plaintiff's attempts to continue working on a part-time basis cleaning a library as evidence of non-disability. However, Plaintiff testified that the library was complaining about her work after she shifted to part-time because "all [she] did was walk around." (Doc. 90). In fact, she was ultimately fired because her employer observed her symptoms. (Tr. 90, 100). Plaintiff's ability to work only on a part-time basis does not contradict her allegations that she is unable to work on a full-time basis. See 20 CFR § 404.1574(a)(1); Wilcox v. Sullivan, 817 F.2d 272, 277 (6th Cir. 1990).
E.
Finally, Plaintiff maintains that the ALJ's finding that her history of breast cancer has had no significant effect on her ability to work is unsupported. Plaintiff maintains that the ALJ's finding ignores Dr. Chadha's conclusion that she suffered from peripheral neuropathy in her extremities following her chemotherapy treatments. (Tr. 505-07).
Plaintiff's first mastectomy was on May 13, 2008. (Tr. 281-83). Her chemotherapy continued through March 2009, and her complaints of symptoms related to that therapy continued well into the following months. (Tr. 483-88, 503, 574). Dr. Chadha, a treating neurologist, noted a relationship between the chemotherapy and Plaintiff's neuropathy. Specifically, Dr. Chadha stated: "I think it is related to her chemotherapy." and "Ms. Ferguson does have evidence of peripheral neuropathy, most likely related to chemotherapy." (Tr. 505, 507). Both Dr. Chadha and Dr. Turner maintain that Plaintiff's struggle with breast cancer has had a lasting impact on her physical condition. (Tr. 505-07, 569-70). Nothing supports the ALJ's conclusion to the contrary.
While the Court finds that there is not sufficient evidence of ongoing disability, there is substantial evidence of a closed period of disability. Specifically, the ALJ must determine when the neuropathy caused by the chemotherapy lessoned to the point that it was not debilitating. "In order to find a closed period of disability, the [Commissioner] must find that at some point in the past, the claimant was disabled and that, at some later point in the past, he improved to the point of no longer being disabled." Long v. Sec'y of Health & Human Services, No. 93-2321, 1994 U.S. App. LEXIS 36798, at *2 (6th Cir. Dec. 27, 1994). Accordingly, Plaintiff is entitled to a closed period of DIB benefits beginning April 21, 2008.
Where the ALJ awards a closed period of benefits, an ALJ "must find a medical improvement in the claimant's condition to end his [or her] benefits, a finding that requires 'substantial evidence' of a 'medical improvement' and proof that he [or she] is 'now able to engage in substantial gainful activity.'" Niemasz v. Barnhart, 155 F. App'x 836 840 (6th Cir. 2005). Furthermore, the medical improvement must be related to the ability to work. McNeal v. Comm'r of Soc. Sec., No. 3:11-cv-161, 2012 U.S. Dist. LEXIS 29978, at *8 (S.D. Ohio Mar. 7, 2012). Despite this approach, however, "there is no presumption of continuing disability." Kennedy v. Astrue, 247 F. App'x 761, 764 (6th Cir. 2007).
III.
When, as here, the non-disability determination is not supported by substantial evidence, the Court must decide whether to reverse and remand the matter for rehearing or to reverse and order benefits granted. The Court has authority to affirm, modify or reverse the Commissioner's decision "with or without remanding the cause for rehearing." 42 U.S.C. § 405(g); Melkonyan v. Sullivan, 501 U.S. 89, 100 (1991).
Generally, benefits may be awarded immediately "only if all essential factual issues have been resolved and the record adequately establishes a plaintiff's entitlement to benefits." Faucher v. Sec'y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994); see also Abbott v. Sullivan, 905 F.2d 918, 927 (6th Cir. 1990); Varley v. Sec'y of Health & Human Servs., 820 F.2d 777, 782 (6th Cir. 1987).
The Court may award benefits where the proof of disability is strong and opposing evidence is lacking in substance, so that remand would merely involve the presentation of cumulative evidence, or where the proof of disability is overwhelming. Faucher, 17 F.3d at 176; see also Felisky, 35 F.3d at 1041; Mowery v. Heckler, 772 F.2d 966, 973 (6th Cir. 1985). Such is the case here.
Here proof of disability is overwhelming and remand will serve no purpose other than delay. As fully recited herein, in view of the extensive medical record of evidence of disability, and the credible and controlling findings and opinions of Drs. Chadha, Nguyen, Rak, and Turner, the ALJ failed to meet its burden that Plaintiff was able to engage in substantial gainful activity from at least April 21, 2008 through April 21, 2009, and therefore proof of disability is overwhelming.
The Court also concludes that remand is appropriate in this matter because there is insufficient evidence to determine the date for the termination of benefits. Accordingly, the ALJ is charged with the responsibility to determine the date for the termination of benefits in accordance with 20 C.F.R. § 404.337(b), consistent with this Court's opinion.
A sentence four remand provides the required relief in cases where there is insufficient evidence in the record to support the Commissioner's conclusions and further fact-finding is necessary. See Faucher v. Sec'y of Health & Human Servs., 17 F.3d 171, 174 (6th Cir. 1994) (citations omitted). In a sentence four remand, the Court makes a final judgment on the Commissioner's decision and "may order the Secretary to consider evidence on remand to remedy a defect in the original proceedings, a defect which caused the Secretary's misapplication of the regulations in the first place." Id. at 175. "It is well established that the party seeking remand bears the burden of showing that a remand is proper under Section 405." Culbertson v. Barnhart, 214 F. Supp. 2d 788, 795 (N.D. Ohio 2002) (quoting Willis v. Sec'y of Health & Human Servs., 727 F.2d 551 (6th Cir. 1984)).
IT IS THEREFORE ORDERED THAT:
The decision of the Commissioner, that Mary Ferguson was not entitled to disability insurance benefits beginning April 21, 2008 is NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, and is REVERSED; this matter is REMANDED to the Commissioner for an immediate award of benefits; the matter is also REMANDED under sentence four of 42 U.S.C. § 405(g) to the ALJ to determine the date for the termination of benefits.
The Commissioner shall award disability insurance benefits from April 21, 2008 through April 21, 2009, with any and all additional benefits being awarded upon the ALJ's determination of the termination of benefits date.
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Timothy S. Black
United States District Judge