Opinion
Case No. 1:14-cv-90
09-23-2014
DAVID SWEET, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER THAT: (1) THE ALJ'S NON-DISABILITY FINDING IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, AND IS REVERSED; (2) JUDGMENT IS ENTERED IN FAVOR OF PLAINTIFF AWARDING BENEFITS; AND (3) THIS CASE IS CLOSED
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 supplemental security income ("SSI") and disability insurance benefits ("DIB"). (See Administrative Transcript ("Tr.") (Tr. 10-19) (ALJ's decision)).
I.
Plaintiff filed his applications for DIB and SSI on February 3, 2011. (Tr. 193, 199). He alleged disability since November 13, 2007, due to lumbar spine degenerative disc disease and numbness and weakness in his left leg. (Tr. 12-13, 193, 199). The state agency denied Plaintiff's applications at the initial stage of review (Tr. 129, 132) and upon reconsideration (Tr. 138, 145).
At Plaintiff's request, the ALJ convened an administrative hearing on August 16, 2012. (Tr. 27-82). Plaintiff appeared with his counsel and testified. (Tr. 32-76). An independent vocational expert also testified. (Tr. 76-81).
On September 5, 2012, the ALJ issued a decision finding that Plaintiff had the severe impairments of degenerative disc disease of the lumbar and obesity, but determined that neither of these impairments, alone or in combination, met or medically equaled a Listing. The ALJ concluded that Plaintiff was not disabled at any time through the date of his decision. (Tr. 18-19). The Appeals Council denied Plaintiff's request for review and this appeal followed. (Tr. 1-3).
Plaintiff is 44 years old. (Tr. 33). He completed eleventh grade. (Tr. 37). Plaintiff's past relevant work experience includes saw operator, delivery driver, shipping clerk, and welder. (Tr. 39- 42). Plaintiff has not worked since November 2007, when he was injured at work lifting a heavy piece of iron. (Tr. 38-39). Plaintiff lives with his parents. (Tr. 34).
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, 2012.(Tr. 12-19).
2. The claimant has not engaged in substantial gainful activity since November 13, 2007, the alleged onset date (20 CFR 404.1571-1576 and 416.971-976).
3. The claimant has the following severe impairments: lumbar spine degenerative disc disease and obesity (20 CFR 404.1520(c) and 416.920(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, 404.1525, 404.1526, 416.920(d), 416.925, and 416.926).
5. The claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b), with these additional limitations: The claimant is able to stand or walk continuously for 30 minutes per hour, for a total of 4 hours in an 8 hour workday; he is able to sit for 6 hours in an 8 hour workday; the claimant is able to occasionally balance, stoop, kneel, crouch, crawl, and climb ramps or stairs; he can never climb ladders, ropes, or scaffolds; the claimant will occasionally use a cane for ambulating outside of his home; he should avoid concentrated exposure to extreme cold and vibration; and, the claimant should avoid all exposure to hazards, including heights and machinery.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on April 30, 1970 and was 37 years old (defined as a younger individual age 18-49) on the alleged disability onset date (20 CFR 404.1563 and 416.963).
8. The claimant has a limited education and is able to communicate in English (20 CFR 404.1564 and 416.964).
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, 404.1569(a), 416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from November 13, 2007, through the date of this decision (20 CFR 404.1520(g) and 416.920(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 SSI or DIB. (Tr. 19).
On appeal, Plaintiff argues that: (1) the ALJ failed to accord proper weight to Plaintiff's treating physician; (2) the ALJ impermissibly substituted her own opinion for that of the examining physicians; and (3) the ALJ erred in selectively picking portions of the record to support her non-disability finding. 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 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.
The record reflects that:
Plaintiff suffered a work-related low back injury on February 16, 2007, while working in a factory. Plaintiff tried to keep working despite his injury and did work for several months, but ultimately stopped working beginning November 13, 2007, which is his alleged onset date. Imaging studies of the lumbar spine demonstrated an anular tear at the L4-5 level and advanced degenerative disc disease at the L5-S1 level. (Tr. 13).
Plaintiff had Workman's Compensation consulting physicians. In May 2008, Judith Wachendorf, M.D., recommended that Plaintiff be limited to a range of sedentary work activity for a limited period of two months. In March 2009, orthopedic specialist Alan Kohlhaas concluded that Plaintiff was limited to sedentary type work "at the present time" but recommended reexamination in 60 days, after Plaintiff completed a course of steroid injunctions. (Tr. 16). In October 2010, Nancy McDonough, M.D., suggested that Plaintiff should avoid lifting more than 10 to 15 pounds occasionally and recommended that he alternate between sitting, standing, and walking every 20 minutes.
Plaintiff initially treated with two chiropractic physicians, Drs. Robert Pruitt and Dr. Robert Spees. These physicians arranged for Plaintiff to have a surgical consultation. This consultation was conducted by Dr. John Roberts on November 8, 2007 shortly before Plaintiff stopped working. (Tr. 336-349). Dr. Roberts, having reviewed the MRI of record (Tr. 432), advised Dr. Spees that he believed Plaintiff's pain was "arising from the highly collapsed disc at the L5-S1 level in addition to the annular tear evidence at the L4-L5 level" (Tr. 338). Dr. Roberts opined that this would continue to be very bothersome (i.e., painful) for Plaintiff and that he may "require a spine fusion of the involved levels." Dr. Roberts recommended strengthening exercises, restriction to light duty work, and analgesics. (Tr. 13).
Prior to seeing Dr. Roberts, Plaintiff had undergone an EMG performed on August 24, 2007 by Dr. Robinson. (Tr. 333-335). Dr. Robinson's testing demonstrated predominately left sided radiculopathy. (Id.) Dr. Robinson's findings prompted Dr. Spees to refer Plaintiff to the surgical consultation with Dr. Roberts.
Plaintiff was reluctant to undergo a significant surgical procedure and elected more conservative care, including extensive chiropractic care. (Tr. 421-620, 621-637). Plaintiff also sought treatment with Dr. Mitchell Simons, a pain management physician. Plaintiff saw Dr. Simons extensively. (Tr. 638-643, 657-667, 668-670, 671-674).
Dr. Simons provided a treating source opinion and RFC assessment dated August 7, 2012. (Tr. 686-689). In his report, Dr. Simons indicated that Plaintiff was suffering from lumbar radiculopathy confirmed by both MRI and EMG. Dr. Simons reported that Plaintiff suffered from symptoms like severe shooting pain, throbbing pain, sharp and crampy aching pain, poor walking ability, and an antalgic gait. Dr. Simons described Plaintiff's treatment as including diagnostic facet nerve blocks, radiofrequency denervation procedures, epidural steroid injections, narcotics, and muscle relaxers designed to alleviate some of the nerve pain.
RFC measures an individual's "ability to do physical and mental work activities on a sustained basis despite limitations from his impairments." 20 C.F.R. § 404.1545(a)(1).
In terms of his RFC assessment, Dr. Simons stated that Plaintiff was capable of sitting for about four hours in a normal eight-hour working day (with normal breaks) and standing and walking about two hours in the same span of time. Dr. Simons further indicated that Plaintiff would need to take unscheduled breaks during an eight hour workday about every 30 minutes. He further opined that Plaintiff's impairments would likely produce good days and bad days, estimating that Plaintiff would likely be absent from work as a result of his back problems more than four days a month.
Plaintiff did undergo a one-time consultative examination with Dr. Phillip Swedburg, a physician appointed to examine him at the request of the state agency. (Tr. 675-685). Dr. Swedberg, like Dr. Simons, limited Plaintiff to no more than four hours sitting in an eight hour day (although otherwise suggesting greater functional abilities). Dr. Swedberg found that Plaintiff demonstrated no paravertebral muscle spasm, no muscle weakness or atrophy, no tenderness, negative straight leg raise test, normal sensation, brisk deep tendon reflexes, and no evidence of radiculopathy. (Tr. 13).
An examination performed in May 2008 for Plaintiff's Workman's Compensation claim demonstrated tenderness at the lumbosacral junction and decreased sensation over the left lower leg, no muscle spasm, 5/5 strength, normal reflexes, and good range of motion. The examining physician noted that Plaintiff walked with an antalgic gait and appeared to be uncomfortable sitting. Another consultative exam in March 2009 demonstrated no neurologic abnormalities but a somewhat painful range of motion. Orthopedist Alan Kohlhass, M.D., noted that Plaintiff was able to ambulate well without his cane during that visit. An exam in October 2010 demonstrated slightly reduced leg strength on the left side and decreased sensation over the left foot, but no other significant abnormalities. Dr. Kohlhass noted that Plaintiff ambulated without an assistive device, but had a stiff-legged gain; was independent with a home exercise program; his care and medications were "stable;" and, an MRI showed a broad left paracentral non-compressive disc involving L5-S1 with mild to moderate discogenic spondylosis, a small disc deformity at L4-5, and mild facet arthropathy.
The ALJ found that Plaintiff had the RFC to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b), with these additional limitations: claimant is able to stand or walk continuously for 30 minutes per hour, for a total of 4 hours in an 8 hour workday; he is able to sit for 6 hours in an 8 hour workday; the claimant is able to occasionally balance, stoop, kneel, crouch, crawl, and climb ramps or stairs; he can never climb ladders, ropes, or scaffolds; the claimant will occasionally use a cane for ambulating outside of his home; he should avoid concentrated exposure to extreme cold and vibration; and, the claimant should avoid all exposure to hazards, including heights and machinery.
B.
First, Plaintiff maintains that the ALJ failed to accord proper weight to his treating physician, Dr. Simons.
Generally, the medical opinions of treating physicians are afforded greater deference than those of non-treating physicians. Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007). "Because treating physicians are 'the medical professionals most able to provide a detailed, longitudinal picture of [a claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone,' their opinions are generally accorded more weight than those of non-treating physicians." Id. at 242 (quoting 20 C.F.R. § 416.927(d)(2)). A treating physician's opinion is given "controlling weight" if it is supported by "medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the case record." Id.
When a treating source opinion is not entitled to controlling weight, the regulations provide that the ALJ must consider several factors when determining what weight to give the opinion. 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2). The factors include: the examining relationship, the treating relationship (its length, frequency of examination, and its nature and extent), the supportability by clinical and laboratory signs, consistency, specialization, and other enumerated criteria. 20 C.F.R. § 404.1527(d), 416.927(d).
A violation of the "good reasons rule" is considered harmless error if: (1) the treating source's opinion is so patently deficient that the commissioner could not possibly credit it; (2) if the Commissioner adopts the opinion of the treating source or makes findings consistent with the opinion; or (3) where the Commissioner has met the goals of Section 1527(d)(2).. .even though he or she has not complied with the terms of the regulation. Cole v. Astrue, 661 F.3d 931, 940 (6th Cir. 2011). In the last of these circumstances, the procedural protections at the heart of the rule may be met when the "supportability" of the doctor's opinion, or its consistency with other evidence in the record, is indirectly attacked via an ALJ's analysis of a physician's other opinions or his analysis of the claimant's ailments. Nelson v. Comm'r of Soc. Sec., 195 F. App'x 462, 470-71 (6th Cir. 2006). In other words, "[i]f the ALJ's opinion permits the claimant and a reviewing court a clear understanding of the reasons for the weight given a treating physician's opinion, strict compliance with the rule may sometimes be excused." Friend v. Comm'r of Soc. Sec., 375 F. App'x 543, 551 (6th Cir. 2010).
The ALJ offered two "reasons" for rejecting Dr. Simons' opinion: (1) Dr. Simons clearly wishes to help Plaintiff in his Social Security and Workers' Compensation claims; and (2) Plaintiff often reported good pain control with ongoing use of medications, therapies, and injections. First, the ALJ's "reason" is nothing more than speculation. The ALJ fails to cite any support for his allegation that Dr. Simons overstated Plaintiff's limitations to help him obtain benefits. Second, the ALJ explained that Dr. Simons's opinion was not supported by his own treatment notes, which indicated that Plaintiff had been stable in pain management. (Tr. 17). For example, progress notes show that Plaintiff routinely reported pain in the 2-3 and 3-4 range (out of 10). (Tr. 363-66, 368-71, 376-81, 383-87, 389-91, 397, 400-05, 408-411, 413-15, 417, 639-43, 657-58, 664, 66667, 669). In September 2009, Plaintiff told Dr. Simons that his average pain legal was a 3 (on a scale of 1-10) with medications and the TENS unit; that he was able to decrease his use of pain medications; and, he was able to do some household chores such as laundry. (Tr. 15). Dr. Simons's progress notes also suggested improvement. For example, in May 2010, Dr. Simons noted that "leg pain has definitely improved since the epidurals." (Tr. 373). By September 2010, Dr. Simons stated that Plaintiff's medications helped him "80% to 90%." (Tr. 369). Plaintiff told a physical therapist in April 2011 that he was able to help out around the house, do laundry daily, vacuum, and mow the lawn with a riding mower. (Tr. 15). By July 2012, Plaintiff reported that his medication relieved 90% of his pain. (Tr. 672). Still, the fact that Plaintiff obtained intermittent relief from his pain with medication does not render him capable of sustained employment.
See also 20 C.F.R. § 404.1527(c)(4), 416.927(c)(4) ("Generally, the more consistent an opinion is with the record as a whole, the more weight we will give to that opinion.").
Moreover, all of the factors in 20 C.F.R. 404.1527 support giving Dr. Simons' opinion great weight. First, Dr. Simons is a "specialist," with special training and expertise in the area of pain management. Second, the "frequency of examination" reflects that Dr. Simons saw Plaintiff at least 72 times (one visit each month for 5 years) by the time he offered his opinion, and, therefore, Dr. Simons had a significant "longitudinal picture" of Plaintiff's limitations. 20 C.F.R. § 404.1527(c)(2)(i). Additionally, Dr. Simons treated Plaintiff aggressively, administering at least 14 epidural injections along with facet joint injections and medial branch blocks. Dr. Simons' opinion is also "supportable," given the fact that it was based in part upon objective diagnostic testing such as an MRI and EMG.
Accordingly, rejecting Dr. Simons's opinion is not supported by substantial evidence.
C.
Next, Plaintiff argues that the ALJ impermissibly substituted her own RFC opinion for that of the examining physicians.
The RFC is an administrative finding of fact of the most that a claimant can perform despite his medical impairments. 20 C.F.R. § 404.1545(a), 416.945(a). It is solely the province of the ALJ to formulate the RFC. Edwards v. Comm'r of Soc. Sec., 97 F. App'x 567, 569 (6th Cir. 2004). The assessment must be based upon all of the relevant evidence, not just medical source opinions. 20 C.F.R. §§ 404.1546(c), 416.946(c). Here, the ALJ did not rely on the record in determining Plaintiff's RFC.
The ALJ gave consultative physician, Dr. Swedberg, great weight. (Tr. 16). However, Dr. Swedberg, like Dr. Simons, limited Plaintiff to no more than four hours sitting in an eight hour day. The ALJ rejected this limitation because "it was not supported by the objective evidence." However, the ALJ offered no explanation for her reasoning. Instead, without any support in the record, the ALJ found that Plaintiff could sit up to six hours in a day. In determining that Plaintiff could sustain full time employment, the ALJ relied on the vocational expert's finding that Plaintiff could perform some sedentary jobs, like inspecting or testing, since Plaintiff could sit for six hours a day. (Tr. 79-80). Without record evidence which supports a finding that Plaintiff can sit for six hours a day, the Court finds that the ALJ improperly substituted her own opinion for that of the examining physicians. Bond v. Comm'r of Soc. Sec., No. 1:13cv101, 2014 U.S. Dist. LEXIS 14902, at *17 (S.D. Ohio Feb. 6, 2014) ("[t]he ALJ must not substitute his own judgment for a doctor's conclusion without relying on other medical evidence or authority in the record."). Accordingly, the ALJ's decision is not supported by substantial evidence.
In dismissing the opinion of Dr. McDonough, the ALJ relied on the fact that the Workers' Compensation physicians did not treat Plaintiff on a regular basis. However, the same is true of Dr. Sweedberg, who examined Plaintiff just once for the Social Security Administration.
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 here, in view of the extensive medical record evidencing disability, and the credible and controlling findings and opinions of the vocational expert, Dr. Simons, and even Dr. Swedberg, the ALJ failed to meet its burden of finding substantial evidence that Plaintiff is able to engage in substantial gainful activity. Instead, proof of disability is overwhelming.
IT IS THEREFORE ORDERED THAT:
The decision of the Commissioner, that David Sweet was not entitled to supplemental security income, is hereby found to be NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, and it is REVERSED; and this matter is REMANDED to the Commissioner for an immediate award of benefits from November 13, 2007.
The Clerk shall enter judgment accordingly, and this case shall be CLOSED.
IT IS SO ORDERED. Date: 9/23/14
s/ Timothy S. Black
Timothy S. Black
United States District Judge