Opinion
Case No. 3:13-cv-346
07-21-2014
DARREN ORR, 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; AND
(2) THIS MATTER IS REMANDED TO THE ALJ
UNDER THE FOURTH SENTENCE OF 42 U.S.C. § 405(g)
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 not entitled to disability insurance benefits ("DIB"). (See Administrative Transcript at Doc. 7, Ex. 2 ("PageID") (PageID 57-72) (ALJ's decision)).
I.
Plaintiff filed an application for DIB on April 21, 2012. (PageID 166-172). Plaintiff alleged a disability onset date of June 15, 2011, owing to coronary artery disease, degenerative disc disease, and degenerative changes in the cervical spine. (PageID 166, 203). His application was denied initially and upon reconsideration. (PageID 109-120, 122-125). Plaintiff requested a hearing which was held before and ALJ on March 11, 2013. (PageID 80, 108, 128-129). The ALJ issued her decision on May 23, 2013, finding that Plaintiff was not disabled as defined by the Social Security Act. (PageID 74). Specifically, the ALJ found that Plaintiff had the RFC to perform sedentary work with the following limitations: occasional climbing, balancing, stooping, kneeling, crouching, or crawling. (PageID 66).
Plaintiff worked after the alleged onset date. However, Plaintiff is considered a wounded warrior and received special accommodations. SSR. 84-24 specifically addresses the nature of the work activity performed by active duty military personnel and indicates that under specific circumstances such activity does not constitute substantial gainful activity for purposes of disability applications under the Act. The ALJ found that Plaintiff's work activity did not rise to the level of substantial gainful activity.
A claimant's residual functional capacity ("RFC") is an assessment of "the most [he] can still do despite [his] limitations." 20 C.F.R. Section 416.945(a)(1).
The Appeals Council denied review, making the ALJ's decision the final determination of the Commissioner. (PageID 47-49). Plaintiff then properly commenced this action in this Court for judicial review of the Commissioner's decision pursuant to 42 U.S.C. Sections 405(g) and 1383(c)(3).
Plaintiff is 43 years old and has a twelfth grade education. (PageID 204). Plaintiff's past relevant work consisted of infantryman. (PageID 71).
Past relevant work experience is defined as work that the claimant has "done within the last 15 years, [that] lasted long enough for [the claimant] to learn to do it, and was substantial gainful activity." 20 C.F.R. § 416.965(a).
The ALJ's "Findings," which represent the rationale of her decision, were as follows:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2016.(PageID 61-73).
2. The claimant has not engaged in substantial gainful activity since June 15, 2011, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: coronary artery disease, degenerative changes in the cervical spine (20 CFR 404.1520(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity (RFC) to perform sedentary work as defined in 20 CFR 404.1567(a) with occasional climbing, balancing, stooping, kneeling, crouching or crawling.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on February 13, 1971 and was 40 years old, which is defined as a younger individual age 18-44, on the alleged disability onset date (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
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 under a disability, as defined in the Social Security Act, from June 15, 2011, 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 was therefore not entitled to DIB. (PageID 74).
On appeal, Plaintiff argues that: (1) the ALJ erred in relying on the opinion of the non-examining state agency reviewer to find that he was not disabled and could perform a restricted range of sedentary work activity; (2) the ALJ erred in failing to mention the findings of an examining physician; and (3) the ALJ erred in failing to accept the Veteran Administration's finding that he was disabled. The Court will consider 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 he is entitled to disability benefits. 20 C.F.R. § 404.1512(a). That is, he must present sufficient evidence to show that, during the relevant time period, he suffered an impairment, or combination of impairments, expected to last at least twelve months, that left him unable to perform any job in the national economy. 42 U.S.C. § 423(d)(1)(A).
A.
Prior to his onset date, Plaintiff underwent reconstruction of his right anterior cruciate ligament (ACL) on June 28, 2002. (PageID 352-353). On February 25, 2003, he underwent left ACL surgery. (PageID 346-347). He also had an acute inferior wall myocardial infraction on September 15, 2003. (PageID 331-340). He had a mid-right coronary artery stent placement on that date. (PageID 337).
Prior to his onset date, Plaintiff was also treated for chronic lower back pain. (PageID 366 368, 423, 425, 436, 440, 997, 999). On April 3, 2009, it was noted that he had positive crepitus. (PageID 467). On December 15, 2009, he was seen for neck pain after putting up Christmas lights. On exam, he had muscle spasms. (PageID 963). On March 2, 2010, he had acute lower back pain from shoveling snow. (PageID 958). Lumbar spine xrays revealed "[d]egenerative disc disease with vacuum disc phenomenon at L4-L5 and L5-S1 as well as spondylosis lumbar spine." (PageID 959). He was diagnosed with osteoarthritis knee and was told to "limit provoking activities." (PageID 947-948). On December 14, 2010, Plaintiff was restricted from deployment based on his cardiac condition because he would not be close to medical help if he needed it for his heart. (PageID 901). It was noted that he was "certain to have repeat cardiac events given prematurity of his ASCAD." (PageID 899). He had a stress echo and reached 13 METS, but it had to be stopped for fatigue. (PageID 888, 896). ECG showed normal sinus rhythm, but with left artrial enlargement. (PageID 890). A dopper revealed abnormal left ventricular relaxation. (PageID 885).
After his onset date, Plaintiff was seen for neck and bilateral arm pain. (PageID 840). August 10, 2011, cervical x-rays revealed degenerative changes at C5-C6. (PageID 841). Plaintiff was seen on August 19, 2011 for daily knee pain and he started having left hand numbness from performing push-ups. (PageID 839). The diagnosis was thoracic outlet syndrome. (PageID 826). Plaintiff underwent a cervical CT scan on September 16, 2011, which revealed:
Severe degenerative disc disease of the lower cervical spine worse at the C4-C5 level with large right paracentral disc extrusion causing moderate mass effect on the spinal cord and moderate spinal canal stenosis and likely right neural foramen stenosis and possible nerve root impingement.(PageID 791). On September 22, 2011, it was noted that Plaintiff had lumbar degenerative disc disease and severe cervical degenerative disc disease with impingement. (PageID 806-807). Examination revealed some left wrist weakness, thoracic muscle spasms, painful range of motion of cervical spine, and abnormal bilateral wrist stability. (PageID 803-804). On September 28, 2011, Plaintiff was seen for bilateral knee pain. On exam, he had crepitus and tenderness. (PageID 784). Left knee x-rays showed "subtle lucency surrounding graft anchor." (Id.) He had a stress echo on September 28, 2011, which was stopped at 13 METS for fatigue. (PageID 778).
On October 11, 2011, Plaintiff had a reduced range of motion of his cervical spine and a positive foraminal compression test. (PageID 770). An EMG of his upper extremities revealed "[a]cute cervical radiculopathy left C5 and C6" as well as carpal tunnel syndrome. (PageID 771). Cervical MRI demonstrated "multilevel moderate disc height loss and spondyloarthropathy of the cervical spine with lordotic curvature loss." (PageID 772). There was a "large right paracentral disc protrusion at C4-C5 causing moderate mass effect on the spinal cord, which extends caudally to the C5-C6 level and causes moderate to severe spinal canal stenosis and moderate C4-C5 right neural foramen stenosis." (PageID 773). A right knee MRI showed right ACL repair postoperative changes. The left knee MRI showed "[p]ostoperative scarring and fibrotic change is noted within Hoffa's fat pad and at the anterior joint margin adjacent to the root of the anterior horn of the lateral meniscus." (Id.)
Plaintiff had weakness in his upper extremities, decreased sensation from C4 down to T2 during an exam on November 1, 2011. He was unable to perform heel to toe walking. Plaintiff was scheduled for cervical fusion on January 4, 2012. (PageID 753).
Plaintiff was seen for a cardiac evaluation on February 2, 2012, before he had cervical surgery. He did not have chest pain or shortness of breath after climbing a flight of stairs which equaled greater than 4 METS. (PageID 721). He was cleared for surgery. (PageID 720). He had a C4-C5 and C5-C6 anterior cervical discectomy and fusion in February 2012. On March 20, 2012, Plaintiff stated that he experienced an improvement in symptoms after surgery. (PageID 707). He was seen in follow-up to his cervical fusion surgery on July 3, 2012 and reported that his symptoms were markedly improved. (Id.)
Plaintiff was seen for low back pain on April 24, 2012. He had pain on range of motion testing and positive Fabers test. (PageID 685-686). On May 3, 2012, x-rays showed mild to moderate degenerative disc disease and spondylosis of L5-S1. (PageID 678). Plaintiff had tenderness and restricted range of motion with pain. (PageID 677). He was observed to have plantar warts on both feet and calluses caused by his hammertoe. (PageID 650, 670). On May 21, 2012, he had fifty percent flexion of lumbar spine, tenderness, and pain with range of motion testing. (PageID 656). Plaintiff underwent a MRI of his lumbar spine on June 4, 2012. It revealed lumbar spondylosis and a significant degenerative disc disease at L3-L4 through L5-S1 with spinal stenosis and moderate to severe foraminal narrowing and disc desiccation at L4-5 with broad based bulging with central protrusion and a L5-S1 broad based bulging disc at L5-S1. (PageID 640-641). His lumbar examination findings were consistent with earlier examinations. (PageID 638).
On June 19, 2012, it was noted that Plaintiff had seven months of symptoms for class three angina. (PageID 619, 625). Plaintiff had a heart catheterization on June 21, 2012, which revealed minimal CAD. (PageID 474). On July 23, 2012, cardiac testing was performed and he was considered Class II NYHA. (PageID 613).
Class three angina results in moderate limitations with everyday living.
Class II heart failure results in slight limitations in physical activity.
The record was reviewed on September 26, 2012 by Dr. Hollis Rogers, a non-examining physician, at the request of the state agency. Dr. Rogers relied on two treating source statements made prior to Plaintiff's onset date to find that he could perform restricted sedentary work activity. (PageID 116). He also gave great weight to a treating source statement that concerned only Plaintiff's cervical spine condition in November 2011. (PageID 117). Dr. Rogers found that Plaintiff could occasionally climb ramps, stairs, ladders, ropes, and scaffolds, and he could occasionally balance, stoop, kneel, crouch, and crawl. (PageID 118).
After the review, Plaintiff's attorney submitted additional medical evidence, including medical records concerning his medical retirement from the military based on his inability to pass retention standards owing to his coronary artery disease, bilateral degenerative arthritis of the knees status post ACL/MCL reconstructive surgery, degenerative cervical disc syndrome and degenerative arthritis affecting the left side of his body, and intervertebral lumbar disc syndrome and degenerative arthritis with probable L3-S nerve involvement that affected the left side of his body. (PageID 241).
Those records show that Plaintiff was evaluated by Dr. Charles Humphries on August 12, 2012. (PageID 247). Dr. Humphries found that Plaintiff had painful plantar warts that led to painful ambulation. (PageID 252). Plaintiff had a significant decreased range of motion of his left shoulder that decreased further with repetition. (PageID 254-255). He had popping of the both knees and decreased range of motion of his bilateral knees. (PageID 256-57). Repetitive range of motion was not possible because it exacerbated his back pain. (Id.) Plaintiff had significant reduced range of motion of his cervical spine with an additional degree of limitation on repetition. (PageID 262). He had a significant reduction of the range of motion of his thoracolumbar spine and repetitive motion was not possible. (PageID 263). Plaintiff had decreased sensation of his cervical spine on the left for the C6-C8 nerve, positive Phalen's test on the left hand, and decreased sensation and weakness of his left hip and leg. (PageID 264). He also had signs of lumbar intervertebral disc syndrome. (PageID 265). Dr. Humphries did not review any medical records, so he had no access to the MRI showing lumbar disc bulging. Right and left knee x-rays demonstrated arthritic changes, cervical spine x-ray revealed degenerative joint disease, thoracic spine x-ray showed thoracic scoliosis, and lumbar x-ray revealed degenerative arthritis. (PageID 266). A cardiac stress test could not be performed because of Plaintiff's back and knee impairments and his previous hear catheterization. Plaintiff's EKG showed normal sinus rhythm with non-specific ST and T wave changes. Based on the exam, Plaintiff's METS level was 1-3. (Id.)
The Department of Veterans Affairs ("VA") determined that Plaintiff was one hundred percent disabled on January 15, 2013. The VA gave him a hundred percent disability based on his cardiac condition because of his METS of 3. Specifically, Plaintiff was: (1) assigned a disability of rating of forty percent because of his thoracolumbar lumbar spine impairment because of forward flexion of thirty degrees or less (PageID 314); (2) assigned a disability rating of twenty percent for his cervical spine impairment because of forward flexion of more than fifteen degrees but less than thirty degrees; (3) assigned a disability rating of ten percent for each knee impairment because of degenerative arthritis as shown by x-ray (PageID 315-316); (4) assigned a disability rating of twenty percent for his C4-C6 paralysis; (5) assigned a ten percent disability rating because of his L3-S1 paralysis of the sciatic nerve on the left; and (6) assigned a disability rating of thirty percent because of his anxiety disorder (PageID 317). Plaintiff was forced to retire on May 20, 2013. (PageID 326).
B.
First, Plaintiff claims that the ALJ erred in relying on the opinion of the non-examining state agency reviewer to find that he was not disabled and in failing to mention the findings of an examining physician.
Plaintiff argues that the ALJ erred by giving great weight to the opinion of the state agency non-examining physician, Dr. Rogers, because he did not review all of the medical evidence in the record when he gave his opinion. "Substantial evidence is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007). In this case, Dr. Rogers only reviewed Exhibit 7F and the DOD Centralized Location Report and he did not examine or observe Plaintiff. (PageID 122). Given the lack of any additional medical opinions, this Court cannot find that the ALJ's decision was supported by substantial evidence where she relied on a physician who failed to review all of the relevant medical evidence.
Moreover, there is no indication that the ALJ reviewed Dr. Humphries's August 12, 2012 evaluation. (PageID 252, 254-257, 262-265). The ALJ cannot simply "pick and choose" evidence in the record "relying on some and ignoring others, without offering some rationale for his decision." Younger v. Comm'r of Soc. Sec., 351 F. Supp. 2d 644, 649 (E.D. Mich. 2004). The ALJ's omission of Dr. Humphries's report constitutes a rejection of the evidence. "[A]n ALJ must not substitute his own judgment for a physician's opinion without relying on other evidence or authority in the record." Clifford v. Apfel, 227 F.2d 863, 870 (7th Cir. 2000). Thus, the ALJ's omission of Dr. Humphries' report is not simply a "harmless" error.
Dr. Humphries was an examining physician. "Generally, we give more weight to the opinion of a source who has examined you than to the opinion of a source who has not examined you." SSR 96-6p.
C.
Next, Plaintiff argues that the ALJ erred in failing to accept the VA's finding that he was disabled.
Although the VA's ruling is not binding on the ALJ, several circuits have ruled that the VA's decision is entitled to some weight. Morrison v. Apfel, 146 F.3d 625, 628 (8th Cir. 1998) ("We agree with other courts that findings of disability by other federal agencies, even though they are not binding on the ALJ, are entitled to some weight and must be considered in the ALJ's decision."). While the ALJ briefly addressed the VA decision, given the fact that the VA found Plaintiff 100% disabled, the Court finds that the ALJ did not properly weigh the finding of disability. Proctor v. Comm'r of Soc. Sec., No. 1:09cv127, 2010 U.S. Dist. LEXIS 108463, at *9 (S.D. Ohio Sept. 17, 2010) ("The Sixth Circuit, by implication, requires the ALJ to consider the decision of the Veteran[s] Administration and to articulate reasons for the amount of weight it assigns to the decision.").
20 C.F.R. § 404.1504 ("a decision by any nongovernmental agency or any other governmental agency about whether you are disabled or blind is based upon its rules and is not our decision about whether you rare disabled or blind. We must make a disability of blindness determination based on social security law. Therefore, a determination made by another agency that you are disabled or blind is not binding on us.).
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III.
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." Faucher, 17 F.3d 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)).
IV.
The Court concludes that remand is appropriate in this matter because there is insufficient evidence to support the ALJ's decision.
IT IS THEREFORE ORDERED that the decision of the Commissioner to deny benefits to Darren Orr is REVERSED, and this matter is REMANDED under sentence four of 42 U.S.C. § 405(g).
On remand, the ALJ shall: (1) properly consider and weigh Dr. Humphries's opinion; (2) properly consider and weigh the VA's decision; (3) engage a medical expert to review all of the medical evidence and medical opinions; and (4) reassess Plaintiff's residual functional capacity.
The Clerk shall enter judgment accordingly.
__________
Timothy S. Black
United States District Judge