Summary
finding factual issues unresolved where ALJ failed to consider whether there was substantial evidence to support a finding of a closed period of disability.
Summary of this case from Blevins v. Comm'r of Soc. Sec.Opinion
Case No. 1:06cv805.
August 4, 2008
ORDER
This matter is before the court upon Magistrate Judge's Report and Recommendations ("R R") that (1) the ALJ's Nondisability Finding Be Found Not Supported by Substantial Evidence, and Reversed; (2) Judgment Be Entered in Favor of Plaintiff Awarding Benefits for a Closed Period; and (3) this Case Be Closed. (Doc. 9)
The parties were given proper notice, pursuant to 28 U.S.C. § 636(b)(1)(C), including notice that the parties would waive further appeal if they failed to file objections to the R R in a timely manner. See United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Defendant filed timely Objections to the R R. (Doc. 10) Plaintiff filed a Response to Defendant's Objections. (Doc. 11)
A notice was attached to the Magistrate's Report and Recommendation regarding objections.
I. FACTUAL BACKGROUND
Plaintiff was injured at work in March 2000. (Tr. 245, 601) Dr. Donnini treated Plaintiff for her injuries. (Tr. 215-67, 279-96, 449-94) Dr. Pledger then evaluated Plaintiff in October 2001. (Tr. 301-03) Dr. Pledger diagnosed spondylolisthesis with degenerative disc disease at L5-S1, left S1 radiculitis, spondylolysis at L5, and spondylolysis and spondylolisthesis Grade 1. (Tr. 303). Dr. Pledger recommended surgery, which he performed in February of 2002. (Tr. 307) At a follow-up visit approximately two weeks later, Dr. Pledger recommended physical therapy twice a week for six weeks. (Tr. 298)
On February 25, 2002, Dr. Donnini opined that Plaintiff was disabled for the next twelve months based on her back condition and subsequent surgery. (Tr. 296) Dr. Donnini also opined that, depending on the period of rehabilitation, it could be twelve to twenty-four months before Plaintiff was fully capable of sustaining remunerative activity, if at all. (Tr. 296)
In May of 2002, Dr. Pledger reported that it was too early to tell if the surgery was successful. (Tr. 351) Dr. Donnini's treatment notes from February 2002 through March 2004 show that Plaintiff continued to report low back and leg pain, muscle weakness, numbness, and muscle spasms. (Tr. 449-494)
In May 2004, Dr. Pledger recommended surgery to remove the spinal hardware in Plaintiff's low back. (Tr. 565) The surgery was performed on June 14, 2004. (Tr. 561) Dr. Pledger noted that Plaintiff's symptoms decreased following the surgery, but that she was still experiencing low back pain.
II. PROCEDURAL BACKGROUND
On May 16, 2001, Plaintiff filed an application for disability insurance benefits ("DIB"). (Tr. 102) Plaintiff alleged an onset of disability on May 18, 2000, due to pain and weakness in her right arm, neck and back pain, right chest pain and muscle spasm, and pain in her right rib cage. (Id.) Plaintiff's application was denied initially, upon reconsideration, and after a hearing before an Administrative Law Judge ("ALJ"). (Tr. 26-67, 68-73, 75-77) On June 20, 2002, the ALJ entered his decision denying Plaintiff's claim. (Tr. 9-22) The Appeals Council then denied Plaintiff's request for review. On appeal, this Court remanded Plaintiff's case for further consideration of whether she was disabled beginning in September of 2001. (Tr. 392-414)
On remand, an evidentiary hearing was held, at which a medical expert and a vocational expert were present and testified. (Tr. 592-635) On March 23, 2005, the ALJ entered his decision denying Plaintiff's claim. (Tr. 376-391) The Appeals Council denied Plaintiff's request for review, and that decision stands as Defendant's final determination.
II. MAGISTRATE JUDGE'S R R
The Magistrate Judge found that the ALJ erred in finding Plaintiff not disabled during a closed period of disability from September 1, 2001 through June 15, 2004. The Magistrate Judge explained that the ALJ should have given controlling weight to the opinion of Plaintiff's treating physician, Dr. Donnini, who opined that Plaintiff would be disabled 12 to 24 months following her initial surgery.
The Magistrate Judge noted that Dr. Donnini treated Plaintiff for two years after surgery, and his treatment notes consistently indicated that Plaintiff continued to suffer low back and leg pain, muscle weakness, numbness, and muscle spasms. The Magistrate Judge rejected the ALJ's finding that Dr. Donnini's opinion was inconsistent with other evidence. The Magistrate Judge noted that the majority of the medical findings cited by the ALJ in support of his decision to give little weight to the findings of Dr. Donnini did not relate to Plaintiff's low back impairment. Finally, the Magistrate Judge found that it was error for the ALJ to rely upon the findings of Dr. Hutson, the medical expert who testified at the hearing. The Magistrate Judge explained that Dr. Hutson only considered Plaintiff's improvements following her back surgery in June of 2004.
Based upon evidence in the record, the Magistrate Judge concluded that Plaintiff was entitled to an award of benefits.
Defendant argues that the ALJ's determination was correct because: (1) Dr. Donnini merely opined that Plaintiff was unable to work for a period of time, and that determination is one expressly reserved for the Commissioner; (2) Dr. Donnini's treatment notes indicate that Plaintiff could perform limited sedentary work; (3) an April 2004 MRI of Plaintiff's thoracic spine was unremarkable; (4) Dr. Hutson's opinion clearly applied to the entire relevant period; and (5) evidence in the record of Plaintiff's daily activities are consistent with the ability to perform a limited range of sedentary work. Defendant also argues that even if the Court were to conclude that the ALJ's decision was not supported by substantial evidence, the appropriate remedy is remand, not an award of benefits.
III. ANALYSIS
A. Standard of Review
The Court's review of the Social Security Commissioner's decision is limited to determining whether the findings are 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). The substantial evidence standard presupposes that "there is a zone of choice within which the [Commissioner] may proceed without interference from the court." Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994). This "zone of choice" includes resolving conflicts in the evidence and deciding questions of credibility. Gaffney v. Bowen, 825 F.2d 98, 100 (6th Cir. 1987). Consequently, this Court should defer heavily to such findings by the Commissioner. See Barker v. Shalala, 40 F.3d 789, 795 (6th Cir. 1994). If substantial evidence supports the ALJ's finding of non-disability, that finding must be affirmed, even if substantial evidence also exists in the record to support a finding of disability. Felisky, 35 F.3d at 1035, citing Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986).
B. Weighing Medical Opinions
In making disability determinations, an ALJ must give more weight to treating sources because of their ability to give a detailed, longitudinal picture of the impairment. 20 C.F.R. § 404.1527(d)(2). However, to receive controlling weight, the treating source's opinion must be supported by medically acceptable clinical and laboratory diagnostic techniques, and must not be inconsistent with the other substantial evidence in the record. 20 C.F.R. § 404.1527(d)(2).
The ALJ acknowledged that it was Dr. Donnini's opinion that "[d]epending on the period of rehabilitation, it could be 12 to 24 months before [Plaintiff] is fully capable of sustaining remunerative activity." (Tr. 381) However, the ALJ did not accord Dr. Donnini's opinion controlling weight because it was "at best, speculative," and not consistent with other substantial evidence in the case record. (Tr. 381) The ALJ determined that while Plaintiff experienced some functional limitations associated with her impairments, "the weight of the evidence of record does not establish that such impairments rendered the claimant totally disabled from all work activity for any continuos period of at least 12 months since the alleged disability onset date of May 18, 2000 (or for any continuos period of at least 12 months since September 1, 2001)." (Tr. 381) The ALJ explained that the following substantial evidence was inconsistent with Dr. Donnini's opinion: (1) Plaintiff's condition remained relatively stable with the use of pain medication; (2) an x-ray of the right knee was negative; (3) an echocardiogram was negative; (4) testing for deep vein thrombosis was negative; (5) an MRI of the thoracic spine was unremarkable; (6) an x-ray of the left hip was negative; (7) an EMG in January of 2005 showed no evidence of acute lumbosacral radiculopathy; and (8) an MRI of the lumbar spine from October 15, 2001 showed "mild anterior spondylolisthesis of L5 relative to S1, due to par defects."
However, this evidence is only minimally related to Plaintiff's low back condition, which was the focus of Dr. Donnini's opinion. The one relevant record-the 2001 MRI-was performed before Plaintiff's low back surgeries. Moreover, treatment notes from the period between February 21, 2002 to March 30, 2004 show that while Plaintiff's pain medications reduced her pain, she was still experiencing pain. Plaintiff consistently rated her pain with medication as being a "6" or higher (Tr. 449, 455, 456, 458, 460, 463, 464, 468, 472, 481, 483) and reported that the pain medication does not last long enough (Tr. 452, 460).
The ALJ also relied upon the testimony of Dr. Hutson, who testified at the January 25, 2005 hearing before the ALJ. (Tr. 381) Dr. Hutson did acknowledge that Plaintiff "did a lot better" after her second low back surgery. (Tr. 624) However, in describing Plaintiff's limitations, Dr. Hutson made no distinction between Plaintiff's limitations before and after her surgery. (Tr. 625) Instead, Dr. Hutson speaks of Plaintiff's impairments and limitations in the present tense. (Tr. 625) The Court finds that Dr. Hutson's testimony is devoid of any evidence regarding Plaintiff's condition during the period between September 1, 2001 and June 15, 2004. Therefore, Dr. Hutson's testimony cannot serve as substantial evidence which is inconsistent with the opinion of Dr. Doninni.
Based on the foregoing, the Court agrees with the Magistrate Judge's conclusion that the ALJ's nondisability finding is not supported by substantial evidence. As the Magistrate Judge noted: "[i]f a court determines that substantial evidence does not support the Secretary's decision, the court can reverse the decision and immediately award benefits 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). However, the Court does not find that an immediate award of benefits is proper.
The Court notes that on September 26, 2001, Dr. Caldwell, a nonexamining physician, found Plaintiff capable of performing medium work. (Tr. 269) However, the ALJ noted that this opinion was "somewhat optimistic given the claimant's subsequent spinal surgery." (Tr. 269) The ALJ went on to state that this evidence does "support a conclusion that the claimant is not rendered totally disabled from all (less strenuous) work activity." (Tr. 380)
On November 29, 2001, Dr. Pledger noted that claimant could manage light to medium weights and walk as much as one mile. (Tr. 275) Dr. Pledger also noted that Plaintiff could sit for one hour and stand for ten minutes. (Tr. 275)
However, on February 1, 2002, upon discharge from surgery, Plaintiff was instructed that she was "able to shower, ride in car, but no lifting and no driving." (Tr. 307) On May 6, 2002, Dr. Pledger stated it was too early to tell if Plaintiff's surgery successful. (Tr. 351) That same month, however, at the hearing before the ALJ Plaintiff testified that she was able to drive two to three times per week, cook, wash a few dishes, sweep, vacuum, and do some laundry. (Tr. 31, 48-49) Plaintiff also testified that she went to the grocery store, the mall and church, and was able to take a four-hour trip in April of 2002. (Tr. 49, 51) The conflicts in the foregoing evidence demonstrates that all essential factual issues have not been resolved. Accord Lang v. Secretary of Health and Human Services, 1989 WL 40188, *2 (6th Cir. April 12, 1989) (unpublished) (remand proper where ALJ did not specifically make a finding regarding whether plaintiff's impairments entitled him to a closed period of disability benefits and instead focused on plaintiff's physical and mental condition at the time of the hearing).
Because the Court finds that the record does not adequately establish Plaintiff's entitlement to benefits, this matter must be remanded to the Secretary pursuant to sentence four of 42 U.S.C. § 405(g). Faucher, 17 F.3d at 176. On remand, the Commissioner shall consider further whether there is substantial evidence to support a finding of Plaintiff's disability from September 1, 2002 to June 14, 2004.
IV. CONCLUSION
Upon de novo review of this matter, pursuant to 28 U.S.C. § 636, the Court ADOPTS IN PART and REJECTS IN PART the Magistrate Judge's R R (Doc. 9). The Court adopts the finding that the ALJ's decision was not supported by substantial evidence, and rejects the finding that this matter be remanded to the ALJ for an immediate award of benefits. Instead, this matter shall be REMANDED for consideration of whether Plaintiff is entitled to a closed period of disability benefits during the period of September 1, 2002 to June 14, 2004.