Opinion
Case No. 3:13-cv-365
07-24-2014
TIMOTHY BAKER, 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 supplemental security income ("SSI"). (See Administrative Transcript ("Tr.") (Tr. 22-33) (ALJ's decision)).
I.
Plaintiff filed for SSI on March 15, 2010, alleging disability beginning March 1, 2009, due to hepatitis C, depression, anxiety, post-traumatic stress disorder, and schizophrenia. (Tr. 24). His applications were denied initially and upon reconsideration. (Tr. 143, 151).
At Plaintiff's request, the ALJ convened an administrative hearing on July 17, 2012. (Tr. 38-63). Plaintiff appeared by video conference with counsel and testified. (Tr. 42-53). A medical expert and vocational expert also testified. (Tr. 53-63). On August 3, 2012, the ALJ issued a decision accepting that Plaintiff had severe mental impairments (PTSD, major depressive disorder, anxiety disorder, schizophrenia, and alcohol dependence), but concluding that Plaintiff did not meet the criteria for any of the Commissioner's listed impairments. (Tr. 24-27). The ALJ concluded that Plaintiff was not disabled. (Tr. 32).
The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. (Tr. 21-24). Thereafter, Plaintiff properly commenced this action for judicial review pursuant to 42 U.S.C. §§ 405(g) and 1383(c).
Plaintiff is 47 years old and has an eighth grade education. (Tr. 31, 52). Plaintiff's past relevant work experience includes work as a machine operator. (226). Plaintiff claimed that he has lived with his girlfriend for the past 21 years. (Tr. 43).
Plaintiff was in learning disability classes for reading and math. (Id.) He testified that he can only read "a little bit." (Id.) Specifically, "my name and just little things." (Id.) In his psychological evaluation, he told Dr. Johnson that he dropped out of school in the seventh grade, noting that he "don't like authority." (Tr. 318).
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).
At a psychological evaluation, Plaintiff told Dr. Myers that he was homeless. (Tr. 317).
The ALJ's "Findings," which represent the rationale of his decision, were as follows:
1. The claimant has not engaged in substantial gainful activity since March 15, 2010, the application date (20 CFR 416.920(b) and 416.971 et seq).(Tr. 24-32).
2. The claimant has the following severe impairments: Post-Traumatic Stress Disorder, Major Depressive Disorder, Anxiety Disorder, Schizophrenia, Alcohol Dependence (20 CFR 416.920(c)).
3. 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 416.920(d)).
4. After careful consideration of the entire record, the undersigned finds that, based on all of the impairments, including the substance use disorder, the claimant has the residual functional capacity to lift and carry 10 pounds frequently and 35 pounds occasionally; sit for 6 to 8 hours in an 8 hour workday; stand and walk 2 to 4 hours in an 8 hour workday; frequently use controls, feel, finger, handle, reach, climb ramps and stairs, balance, stop, kneel, crouch, crawl, and bend; never climb ladders, ropes, and scaffolding; avoid all unprotected heights, hazardous machinery, and industrial vibrations; understand, remember, and carry out simple, repetitive, and unskilled tasks; occasionally interact with supervisors, coworkers, and the general public; work with things instead of people; stay on-task for 98% of the work day with a 2% loss in productivity; and frequently respond to routine changes in the work setting.
5. The claimant is unable to perform any past relevant work (20 CFR 416.965).
6. The claimant was born on February 20, 1967 and was 43 years old, which is defined as a younger individual age 18-49, on the date the application was filed (20 CFR 416.963).
7. The claimant has a limited education and is able to communicate in English (20 CFR 416.964).
8. 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).
9. 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 416.969 and 416.969(a)).
10. The claimant has not been under a disability, as defined in the Social Security Act, since March 15, 2010, the date the application was filed (20 CFR 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. (Tr. 33).
On appeal, Plaintiff argues that the ALJ: (1) erred in giving "great weight" to reviewers who did not review the most recent medical records; (2) made material errors which undermine his decision; (3) failed to properly consider Listing 12.03; (4) erred in determining Plaintiff's combination of errors; (5) erred in evaluating Plaintiff's credibility, subjective complaints, and pain; and (6) erred in relying on an improper hypothetical question posed to the vocational expert. 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 has a history of delinquent offenses including domestic violence and multiple alcohol-related offenses. (Tr. 318). He has never served prison time. (Id.) Plaintiff reported that he spent his days "staring at the wall." (Tr. 321).
On October 1, 2010, Plaintiff underwent a consultative psychological exam by Dr. Andrea Johnson. (Tr. 317-322). She found that Plaintiff was cooperative but a marginal historian. (Tr. 317). He noted declining social functioning and fatigue. (Tr. 318). He had a disheveled appearance with depressed mood and described appetite and sleep problems. (Tr. 319). He did not put forth much effort on interview. (Id.) Plaintiff complained of panic attacks several times a week and poor concentration and attention. (Tr. 320). Dr. Johnson diagnosed depression disorder and anxiety (Tr. 320-321), assigned a GAF score of 41 (Tr. 321), and concluded that Plaintiff was "markedly impaired" in dealing with stress (Tr. 322).
The Global Assessment of Functioning ("GAF") is a numeric scale (1 through 100) used by mental health clinicians and physicians to rate subjectively the social, occupational, and psychological functioning of adults, e.g., how well or adaptively one is meeting various problems-in-living. A score of 41-50 indicates serious symptoms or any serious impairment in social, occupational, or school functioning.
In October 2010 and January 2011, reviewing psychologists for the Ohio Bureau of Disability Determination found "moderate limitations" in Plaintiff's attention for periods of time, completing activities within a schedule, maintaining attendance at work, and completing a normal work day and week without interruption from the psychological symptoms. (Tr. 120-121). The reviewing psychologists assigned a residual functional capacity ("RFC") for simple and routine tasks without fast pace or strict production standards. (Tr. 122). The ALJ gave these limitations "great weight." (Tr. 30).
"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).
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After January 2011, the impairments worsened. Plaintiff was hospitalized from May 1-2, 2011 because he was afraid of his neighbors. (Tr, 326-330). He was also hospitalized from June 13-16, 2011 with paranoid ideas and auditory hallucinations. (Tr. 347-351).
On June 23, 2011, Plaintiff began treatment at South Community Behavioral Health Center (Tr. 550-558), and he continued treatment there through the date of the ALJ's denial decision in August 2012 and thereafter. In June 2011 they noted a mood disorder and alcohol dependence. (Tr. 557-558). They also noted that the hallucinations had begun a couple of years earlier, would go away for 1-2 weeks and then return. (Tr. 554). They also noted anxiety and difficulty focusing. (Tr. 555). They reported similar symptoms in July and August 2011. (Tr. 534-548).
On September 23, 2011, the doctor stated that he/she suspected that the diagnosis was schizoaffective disorder rather than MDD (moderate depressive disorder). (Tr. 529). This diagnosis continued through the date of the ALJ decision in August 2012. (Tr. 582-654). Plaintiff started Invega injections for schizoaffective disorder in late 2011, approximately every four weeks. The injections began to wear off after two or three weeks. (Tr. 590, 598, 638). Plaintiff was afraid to go out to group therapy or to leave his apartment due to his anxiety (Tr. 505) and would not answer the door (Tr. 518).
Plaintiff continued to hear voices into 2012. (Tr. 628, 638). Additionally, he remained depressed, had problems sleeping, and was anxious around others. (Tr. 585, 616). Plaintiff was assigned a GAF score of 48. (Tr. 624).
B.
First, Plaintiff maintains that the ALJ erred in giving "great weight" to reviewers who did not review all of the medical records.
Reviewing psychologists reviewed the records in October 2010 and January 2011 and found moderate limitations in social contacts and concentration. (Tr. 114-117). The ALJ gave these opinions great weight. However, after these reviews were performed, Plaintiff was hospitalized twice from May 1-2, 2011 and June 13-16, 2011 for paranoia and hallucinations. (Tr. 326-330, 347-351). In fact, on June 13, 2011, Dr. Collares filed an affidavit in Montgomery County Probate Court attesting that Plaintiff:
[r]epresents a substantial and immediate risk of physical impairment or injury to self as manifested by evidence that he/she is unable to provide for an is not providing for his/her basic physical needs because of his/her mental illness and that appropriate provisions for such needs cannot be made immediately available in the community; or would benefit from treatment in a hospital for his/her mental illness and is in need of such treatment as manifested by evidence of behavior that creates a grave and imminent risk to substantial rights of other or self.(Id.) A medical record from Kettering Health Network indicates that Plaintiff was brought to the hospital by police after reporting that "a guy in the apartments where he is living is harassing him, calling him names and threatening him, but when police try to find the guy he is always gone ... [Plaintiff] is hearing voices through vents and walls but [girlfriend] has not heard any threats and indicates [Plaintiff] is afraid to sleep and has had knives out at night." (Tr. 336). Subsequent medical records include a number of treatment records from South Community Mental Health Center, indicating that Plaintiff heard voices and was afraid to leave his apartment. (Tr. 495-654).
The Commissioner argues that while the state agency medical consultants reviewed the records before Plaintiff began treatment for schizoaffective disorder, the ALJ did not err by relying on their assessments because he considered schizophrenia and its related symptoms in his decision. (PageID 42-52). The Court disagrees as explained infra at Section II.D.
C.
Next, Plaintiff argues that the ALJ made material errors which undermine his decision.
In his analysis, the ALJ noted that Plaintiff was able to complete an application for food stamps. (Tr. 27). However, the record shows that Plaintiff often had trouble completing forms. (See Tr. 208; Tr. 510 (with help on HEAP assistance); Tr. 515 (encouraged him to complete application); Tr. 587 (will finish paperwork later); Tr. 592, Tr. 598 (assist Plaintiff with food stamps); Tr. 610 (same)). These records are further supported by the fact that Plaintiff cannot read, only completed the seventh or eighth grade, and was in special education classes for reading. (Tr. 52).
The ALJ also found that medication was generally successful in controlling Plaintiff's mental impairments. However, the record indicates that the "medications were wearing off" (Tr. 498), "the medicines were not working effectively" (Tr. 502), "he was worse at the end of the month" (Tr. 507), and Buspar was not helping him (Tr. 646-648). Accordingly, the record does not support a finding that medication was successful in controlling Plaintiff's mental impairments. It is improper to cherry-pick the record to support a decision: the ALJ must consider the record as a whole in determining whether Plaintiff can sustain work for 40 hours a week. Howard v. Comm'r, 276 F.3d 235, 240 (6th Cir. 2002).
The ALJ also erred in stating that Plaintiff had not hallucinated since April 2011. (Tr. 29). The record indicates that Plaintiff was hospitalized in May and June 2011 with hallucinations. In fact, Plaintiff described taking Invega to treat his schizophrenia in 2012, but still heard voices 5-6 times a month. (Tr. 44-45).
Accordingly, these factual errors undermine the ALJ's decision.
D.
Next, Plaintiff claims that the ALJ failed to properly consider Listing 12.03.
Plaintiff bears the burden of proving that he meets or medically equals a Listing. Sullivan v. Zebley, 493 U.S. 521, 534 (1990). Listing 12.03 states:
12.03 Schizophrenic, paranoid and other psychotic disorders: Characterized by the onset of psychotic features with deterioration from a previous level of functioning. The required level of severity for these disorders is met when the requirements in both A and B are satisfied, or when the requirements in C are satisfied.A. Medically documented persistence, either continuous or intermittent, of one or more of the following:
1. Delusions or hallucinations; or
2. Catatonic or other grossly disorganized behavior; or
3. Incoherence, loosening of associations, illogical thinking, or poverty of content of speech if associated with one of the following:
a. Blunt affect; or4. Emotional withdrawal and/or isolation;
b. Flat affect; or
c. Inappropriate affect; OR
AND
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration;
The record is devoid of any evidence that the ALJ or reviewing psychologists considered Listing 12.03. Given the significant record evidencing psychological impairments, there is a substantial question regarding whether Plaintiff meets Listing 12.03. Courts have repeatedly remanded cases when an ALJ fails to articulate a meaningful discussion of the Listings or related criteria. See, e.g., Davis v. Comm'r of Soc. Sec., 5:12cv2577, 2013 U.S. Dist. LEXIS 104972 (N.D. Ohio July 26, 2013) (remanding where the ALJ provided no discussion of medical records regarding the plaintiff's MS and its relation to Listing 11.09(A)).
In fact, it is clear from the hearing testimony that when determining Plaintiff's limitations, the medical expert only considered Plaintiff's hepatitis C, obesity, hypertension, and alcohol abuse. (Tr. 54). The medical expert expressly stated that "[t]here's also mention of depression and schizoaffective disorder [in the record], which I'm going to defer since I'm not a psychiatrist." (Id.) Accordingly, when finding that Plaintiff's impairments did not equal a Listing collectively or individually, the medical expert did not even consider Plaintiff's psychological impairments.
Therefore, the ALJ failed to properly consider Listing 12.03.
F.
Plaintiff alleges that the ALJ also erred in evaluating his credibility, subjective complaints, and pain.
It is the ALJ's responsibility to determine the extent to which a claimant is accurately stating his functional limitations. Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997). Because an ALJ is charged with observing a witness's demeanor, his findings on credibility must be accorded great weight and deference. Id. If the medical evidence establishes the existence of a medically determinable impairment that could reasonably be expected to produce the symptoms alleged, the regulations then require the Commissioner to evaluate their intensity and persistence and their effect on the claimant's ability to work in light of the entire record. 20 C.F.R. § 416.929(c)(1)-(3).
The Commissioner argues that Plaintiff's activities of daily living undermined his disability claim. Specifically, the Commissioner alleges that while Plaintiff reported extreme limitations being around people, he shopped in stores. (PageID 226). The fact that an April 19, 2010 disability form (notably prior to Plaintiff's psychiatric hospitalizations) indicates that Plaintiff went grocery shopping, does not necessarily undermine Plaintiff's statement that he does not like crowds. The form does not indicate any specifics about when Plaintiff went grocery shopping or if he required assistance. Moreover, the fact that Plaintiff went to the grocery store is insufficient alone to undermine Plaintiff's credibility.
An ALJ's credibility assessment must be supported by substantial evidence. Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997). The ALJ's failure to specify his credibility assessment with greater detail requires remand. The ALJ's lack of explanation concerning his assessment, coupled by his misstating the record regarding issues relevant to his credibility assessment (e.g., Plaintiff's inability to complete applications for food stamps and other assistance and whether his medication was effective) precludes a finding that substantial evidence exists to support his adverse determination.
G.
Finally, Plaintiff alleges that the ALJ erred in relying on an improper hypothetical posed to the vocational expert ("VE").
Once Plaintiff established that he was unable to perform his past relevant work, the burden shifted to the agency to show there were other jobs existing in significant numbers in the economy that the claimant could perform, consistent with his RFC and vocational factors of age, education, and work experience. 20 C.F.R. § 416.960(b)(3). To meet the burden at step five, the Commissioner must make a finding "supported by substantial evidence that [Plaintiff] has the vocational qualifications to perform specific jobs." Varley v. Sec'y of Health & Human Servs., 820 F.2d 777, 779 (6th Cir. 1987). If an ALJ relies on a VE's testimony in response to a hypothetical to provide substantial evidence, that hypothetical must accurately portray the claimant's limitations. Ealy v. Comm'r of Soc. Sec., 594 F.3d 504, 516-17 (6th Cir. 2010).
Given the findings explained supra, the Court also finds that the ALJ's hypothetical was not supported by substantial evidence, and that remand is required to reassess Plaintiff's mental limitations and determine an appropriate hypothetical. See, e.g., White v. Comm'r of Soc. Sec., 312 F. App'x 779, 789 (6th Cir. 2009) (the ALJ erred in relying on the answer to a hypothetical question because it simply restated an RFC which did not accurately portray the claimant's physical and mental impairments).
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 Timothy Baker benefits is REVERSED, and this matter is REMANDED under sentence four of 42 U.S.C. § 405(g).
On remand, the ALJ shall: (1) consider Listing 12.03; (2) engage a medical expert to review all of the medical evidence and medical opinions, including Plaintiff's psychological impairments; (3) reassess Plaintiff's residual functional capacity; and (4) pose hypothetical questions to the vocational expert which accurately portray the claimant's mental impairments.
The Clerk shall enter judgment accordingly.
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Timothy S. Black
United States District Judge