Opinion
Case No. 3:13-cv-67
11-25-2013
ALLAN BARBE, 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 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 unentitled to disability insurance benefits ("DIB"). (See Administrative Transcript at ("Page ID") (PageID 46-60) (ALJ's decision)).
I.
Plaintiff filed an application for DIB on May 19, 2008, alleging that he became unable to work beginning January 1, 2005 because of chronic lower back pain, pelvic and right leg pain, erectile dysfunction, sleep problems, constipation, anxiety, and depression. (PageID 202-204, 240). Plaintiff resumed working in April 2010 and alleges disability only until that point. (PageID 69). The Agency denied his application initially and on reconsideration. (PageID 120-21).
January 1, 2005 was the last day Plaintiff worked because his employer put him on medical leave. (PageID 72).
Plaintiff began working again on April 26, 2010. Plaintiff works part time at LA Tan. (PageID 74).
Plaintiff requested a hearing and on January 10, 2011, the ALJ held a hearing on his claim. (PageID 65-118). Plaintiff and a vocational expert testified with Plaintiff's attorney in attendance. (PageID 65-118). The ALJ rendered his decision in February 2011, finding that Plaintiff, despite several severe impairments, could perform a limited range of light work. (PageID 43-60). The decision became final and appealable in January 2013, when the Appeals Council denied Plaintiff's request for review. (PageID 35-37). Plaintiff now seeks judicial review pursuant to section 205(g) of the Act. 42 U.S.C. §§ 405(g), 1383(c)(3).
Plaintiff was thirty-three years old at the time of the administrative hearing. (PageID 43, 65, 202). He graduated from high school and earned an associate's degree in criminal justice. (PageID 241, 247). His past relevant work includes working as a security guard, an under-coater, a tractor trailer truck driver, and as the manager of a tire service and automotive retail store. (Id.)
Social Security defines past relevant work as work done within the past fifteen years, at substantial gainful activity levels, and performed long enough for the claimant to learn to do it. 20 C.F.R. § 404.1560(b)(1).
The ALJ's "Findings," which represent the rationale of his decision, were as follows:
1. The claimant last met the insured status requirements of the Social Security Act on March 31, 2010.(PageID 48-59).
2. The claimant did not engage in substantial gainful activity during the closed period from his alleged onset date of January 1, 2005, through his date last insured, March 31, 2010 (20 C.F.R. 404.1571 et seq.)
3. Through the date last insured, the claimant had the following severe impairments: (1) chronic low back pain; (2) anxiety disorder; and (3) alcohol-related disorder (20 C.F.R. 404.1520(c)).
4. Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled 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, through the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except: 1) no climbing of ropes, ladders, or scaffolds; 2) no exposure to hazards, such as dangerous machinery or unprotected heights, 3) no direct dealing with the public; 4) the opportunity to alternate between sitting and standing at one-hour intervals; 5) no repetitive use of foot controls on the right; and 6) low stress jobs involving no production quotas.
6. Through the date last insured, the claimant was unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on May 21, 1977, and was 32 years old, which is defined as a "younger individual age 18-49," on the date last insured (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 he has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Through the dated last insured, considering his age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569 and 404.1569(a)).
11. The claimant was not under a disability, as defined in the Social Security Act, at any time from January 1, 2005, the alleged onset date, through March 31, 2010, the date last insured (20 CFR 404.1520(g)).
The pertinent period of time at issue concerns Plaintiff's work abilities and limitations between January 1, 2005 through March 31, 2010. To establish his claim for DIB, Plaintiff is required to establish that he was disabled on or before March 31, 2010, the date his insured status expired for purposes of DIB. Garner v. Heckler, 745 F.2d 383, 390 (6th Cir. 1984).
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 60).
On appeal, Plaintiff argues that: (1) the ALJ erred by failing to properly weigh the opinion of Plaintiff's treating source; (2) the ALJ erred by failing to properly consider the symptom of pain in appraising Plaintiff's RFC; (3) the ALJ erred in his credibility finding; and (4) the ALJ's conclusions regarding Plaintiff's daily activity levels are unsupported. The Court will address each issue in turn.
Residual functional capacity ("RFC") is an assessment of the most a claimant can still do despite his or her limitations. 20 C.F.R. § 404.1545(a). A claimant's RFC is used to assess whether that claimant can perform past relevant work and whether the claimant can adjust to other work. 20 C.F.R. § 404.1520(a)(4). In assessing a claimant's RFC, the ALJ must consider "all relevant evidence and findings regarding an individual's work related limitations." Cooper v. Comm'r of Soc. Sec., 217 F. App'x 450, 452 (6th Cir. 2007).
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.
Plaintiff's arguments relate to the ALJ's failure to properly appraise the limitations occasioned by his physical impairments and the side effects of his medication, and therefore the facts omit discussion of his mental impairments and the related evidence.
1. Claimant's testimony
Plaintiff's last job before becoming disabled was as the manager of a Firestone tire service center. (PageID 72). On January 1, 2005, Firestone put Plaintiff on medical leave because he was no longer able to physically perform his job functions due to back pain, groin pain, and the side effects of his medications. (PageID 72-73). Although back pain had been a problem for him since a motorcycle accident on March 5, 2004, it had continually worsened leading up to his medical leave at the beginning of 2005. (PageID 73, 75, 77). By that time, he was using back braces, walking with a cane, and was absent due to his back pain. (PageID 73). He was missing up to two days of work per week. (PageID 108). Plaintiff attempted to return to work at Firestone in the summer of 2005, but he could not pass the company's physical assessment. (PageID 74).
Plaintiff also suffers from deep groin pain occasioned by a long laceration incurred during a motorcycle accident. (PageID 77). The laceration ran from about three inches above Plaintiff's naval all the way to his rectum. (Id.) The pain from Plaintiff's back and groin radiates down his right leg and collects behind his right knee. (PageID 78). The pain would flare up several times per week, particularly in his leg. (PageID 99-100).
At the hearing, Plaintiff discussed his activity levels during the period at issue. He would only occasionally cook, do dishes, or vacuum, and would wash clothes only if someone else carried the baskets for him. (PageID 90-91). These chores could only be performed in thirty minute increments followed by an hour of rest. (PageID 103). He would also occasionally care for his children. (PageID 95). He would sometimes brush his daughter's hair, prepare lunch, or watch cartoons. (PageID 96). He would also drive his daughter to school, which was only about a mile from his home. (PageID 97). Other days, his pain was too much and he would rely on a neighbor to take care of his daughter and bring her to the bus stop. (PageID 100). He had difficulty putting on his own shoes. (PageID 97). If he tried to mow his lawn, he would be in bed the next day unable to move. (PageID 93). In general, a day of any significant activity would be followed by a day in bed. (Id.) From 2005 through 2009, Plaintiff was spending two or three days every week just lying in bed because of his pain. (PageID 85, 100).
Plaintiff also described his course of treatment. At first he was given different pain medications such as Vicodin and Oxycontin. (PageID 77). These medications were not very effective and occasioned significant side effects, particularly in terms of his ability to concentrate and complete tasks. (PageID 77-79). By 2007, after medication failed to prove effective, Plaintiff received steroid injections, but they were also not helpful in controlling his pain. (PageID 76, 84). This led to trials of a spinal stimulator in 2008, but the device caused muscle spasms. (PageID 76). Plaintiff then underwent a morphine pump trial in 2009. (Id.) The trial was promising and Plaintiff ultimately had a morphine pump permanently surgically installed.
In Plaintiff's words, the pump has been working "fantastically." (Id.) On April 26, 2010, due to the improvement in his condition occasioned by pump, Plaintiff was finally able to return to work, accepting a position as a part-time employee at LA Tan. (PageID 74-75).
2. Medical evidence of record
On March 5, 2004, Plaintiff was involved in a serious motorcycle accident. (PageID 281-336). He suffered soft tissue injuries down the right side of his body, right hand fractures, and most seriously, an extensive perineal wound which involved lacerations to his scrotum, urethra, and bladder. (PageID 283, 306, 314). The laceration required surgical repair and the placement of a catheter. (PageID 298). He remained in Miami Valley Hospital ("MVH") for over ten days and was discharged into home healthcare and rehabilitation programs. (PageID 286, 297). Shortly after his discharge, Plaintiff began experiencing painful bladder spasms, and returned to MVH multiple times. (PageID 337-45, 350-56). The month following his accident, Plaintiff began complaining of fairly severe right groin pain with weight bearing. (PageID 357-58). He underwent a follow-up surgical procedure in May 2004. (PageID 369-70).
The perineum is a region of the body. In males, it constitutes the area between the scrotum and the anus.
In June 2004, Plaintiff saw Dr. Charles Lee, a chiropractor, for help with the significant low back, right leg, and groin pain he had been having since his accident. (PageID 452-453). Upon examination, Dr. Lee noted that Plaintiff's lumbar range of motion was restricted, there was palpable tenderness in his spine, and straight leg raise testing was positive. (Id.) Dr. Lee also reviewed an x-ray of Plaintiff's lumbar spine which reflected mild rotation and lateral flexion at the L4 level. (Id.) Subsequently, Plaintiff underwent nearly weekly manipulations with Dr. Lee throughout the remainder of 2004, all of 2005, all of 2006, and much of 2007. (PageID 440-451). The effect of these sessions on Plaintiff's low back and right lower extremity pain was generally positive, but variable and largely dependent upon Plaintiff's activity levels. (Id.)
During this time, Plaintiff's back pain medication was being managed by his primary care physician, Dr. Gary Leroy. (PageID 465-76). Mirroring his visits with Dr. Lee, Plaintiff complained to Dr. Leroy of significant back pain, often requesting adjustments to his medications in an attempt to better control breakthrough pain. (Id.) Plaintiff explained to Dr. Lee that the pain was compromising his ability to work at Firestone and was having a significant impact on his daily activities. (Id.) By May 2007, after medication had proven ineffective in controlling Plaintiff's symptoms, Dr. Leroy referred Plaintiff to a pain management specialist. (PageID 467-68).
Plaintiff consulted with chiropractor Dr. Chad Combs on May 23, 2007. (PageID 627-33). Dr. Combs examined Plaintiff and recorded postural distortion, palpable tenderness in Plaintiff's cervical spine, muscle spasm, and reduced spinal range of motion. (PageID 627). Due to complaints of neck pain, Dr. Combs also performed x-rays of Plaintiff's cervical spine which revealed right atlas subluxation and minimal degeneration. (Id.) Plaintiff underwent seven adjustments with Dr. Combs in 2007. (Id.)
On June 22, 2007, Plaintiff began treatment with pain management specialist, Dr. Richard Donnini. (PageID 404-08). Plaintiff explained to Dr. Donnini that he was experiencing severe, constant low back pain radiating to his right leg. (Id.) During their initial meeting, Dr. Donnini recorded that Plaintiff's spinal range of motion was limited, modified his pain medication, and planned a course of injections and physical therapy. (PageID 406-07). Dr. Donnini also ordered an MRI of Plaintiff's lumbar spine which revealed bulging of the annulus at Plaintiff's L4-5 disc space. (PageID 458). Plaintiff continued to see Dr. Donnini on a monthly basis, complaining of uncontrolled, radiating low back pain which was interfering with his daily activities. (PageID 408-438). On July 7, 2008, Dr. Donnini ordered a needle Electomyography test and nerve conduction study for Plaintiff. (PageID 534-35). The test results were of doubtful clinical significance. (Id.)
While he remained with Dr. Donnini for pain management through the date of his hearing, in October of 2007, Plaintiff switched to Dr. Deanna Allgeyer for primary care. (PageID 502-503). As with the treatment notes from Plaintiff's other providers, Dr. Allgeyer's records reflect Plaintiff's consistent complaints of chronic back and right leg pain. (PageID 494-99, 537-43).
Throughout 2008, Dr. Donnini had little success controlling Plaintiff's pain with medication and epidural injections. (PageID 588-605). By December 2008, Dr. Donnini was prepared to try implanting a spinal cord stimulator to help better control Plaintiff's pain. (PageID 599). Plaintiff was psychologically cleared for a trial of the stimulator on December 15, 2008, following an examination performed by Thomas W. Heitkemper, Ph.D. (PageID 554-50). The stimulator was placed on February 16, 2009 with leads extending to the L3-4 level of Plaintiff's spine. (PageID 553). Unfortunately, the stimulator irritated rather than mitigated Plaintiff's low back pain and was discontinued. (PageID 583).
After the spinal stimulator trial proved ineffective, Dr. Donnini planned to advance Plaintiff's treatment to the implantation of a permanent morphine pump. (PageID 583-86). Dr. Donnini conducted a trial of the pump on March 31, 2009. (PageID 582). The trial was successful and on August 17, 2009, Plaintiff consulted with surgeon Dr. Jamal Taha regarding permanent surgical implantation of a morphine pump. (PageID 567). The implantation was performed on October 18, 2009. (PageID 554-65). Following the implantation, Dr. Donnini managed Plaintiff's morphine doses and refills, making adjustments based upon Plaintiff's pain levels and his examination findings. (PageID 571-79, 607-15). On November 17, 2009, Plaintiff turned in all of his remaining pain medication to Dr. Donnini for destruction. (PageID 573). By spring 2010, Plaintiff's morphine doses had stabilized and he was reporting significant reduction in his pain levels. (PageID 607-29).
3. Opinion evidence of record
On July 15, 2008, Dr. Allgeyer completed a brief questionnaire for Social Security regarding Plaintiff's impairments. (PageID 491-92). In the questionnaire, Dr. Allgeyer explained that because Dr. Donnini was responsible for managing Plaintiff's pain, she did not have reports or diagnostic testing upon which to base her responses. (PageID 491). She did, however, opine that Plaintiff was still having intermittent problems controlling his pain. (Id.) Even on his good days, she opined that Plaintiff needs to reposition himself and alternate periods of standing or walking with periods of sitting. (PageID 492).
On September 11, 2009, state agency consultant Dr. Geral Klyop reviewed the evidence then available in Plaintiff's Social Security file and opined that Plaintiff could perform medium work without further restriction. (PageID 518-525). On January 1, 2009, without the benefit of any additional evidence, another state agency consultant, Dr. Esberdado Villanueva, affirmed Dr. Klyop's conclusions. (PageID 527).
The evidence of record also contains an undated and unsigned state agency residual functional capacity evaluation restricting Plaintiff to a significantly reduced range of light work. (PageID 528-533). While the form is clearly designed to be completed by a state agency medical consultant, neither the state agency nor Social Security appears to have made appreciable effort to determine when this assessment was completed or by whom it was completed. (Id.)
On January 8, 2010, Dr. Donnini completed a narrative report outlining his history treating the Plaintiff, his observations over time, and his appraisal of Plaintiff's ability to function. (PageID 568-69). In the report, Dr. Donnini walked through the progression of Plaintiff's treatment since 2007, as well as the results of the diagnostic testing he had ordered over the years. (PageID 568). Ultimately, Dr. Donnini appraised Plaintiff's functioning as follows:
He has severe pain with increased activity. He is not able to stand for more than [an] hour, walk for more than one to two hours, and can sit intermittently for up to three hours. He could probably function in an eight-hour day, but he is not capable of sustained remunerative employment because he cannot do so on consecutive days in any activity including sedentary. Additionally, medications that he takes interfere with his ability to cognitively function and would also interfere with his work activity. He would miss substantial amounts of work based on flare-ups of pain and discomfort.(PageID 568).
Dr. Donnini also explained how he reached these conclusions even in light of rather innocuous EMG test results:
It is my opinion that the patient suffers from a severe pain condition. There is not substantial subjective evidence to document his pain. In this sense, this is somewhat of an unusual case, but what needs to be considered is the severity of trauma that occurred to his pelvis at the time of the motor vehicle accident. In essence, he was riding a motorcycle and was hit with such impact that he separated his scrotum, perineum tissues, splitting his spine, opening his body from his scrotum up through and into his bladder. This has resulted in severe persistent pain, most likely of a neurological origin. Unfortunately,(Tr. 569) (emphasis added).
proximal pain origins, such as these, are not very sensitive or easily detected on EMG study. It is most difficult to subjectively document his pain condition. There has been no evidence, however, of malingering or somatization effect. He is very straightforward and seems to be a reliable historian with no significant exaggeration of symptoms, inappropriate emotional acting out, or Waddell's findings.
4. The vocational expert's testimony
A vocational evaluator, William Bride, appeared and testified at Plaintiff's hearing before the ALJ. (PageID 109). Mr. Bride classified Plaintiff's past work as that of a security guard, an under-coater, a tractor trailer truck driver, and a manager of a tire service and retail store. (PageID 113). Mr. Bride opined that the Plaintiff could not perform any of these positions under the assigned RFC in light of the hazards, climbing, and exposure to the public involved. (PageID 115). He was, however, able to identify other jobs existing in substantial numbers which could be performed with the limitations identified by the ALJ. (Id.) He also opined that Plaintiff would be unable to maintain any of the jobs identified if he were to be absent from work two or three times per week. (PageID 115-16).
5. ALJ's decision
The ALJ determined that Plaintiff had not engaged in substantial, gainful activity during the period of disability alleged. (PageID 48). He further found that Plaintiff suffers from the severe impairments of chronic low back pain, an anxiety disorder, and an alcohol related disorder. (PageID 48-52).
The ALJ's RFC finding reads:
After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except: 1) no climbing of ropes, ladders, or scaffolds; 2) no exposure to hazards, such as dangerous machinery or unprotected heights; 3) no direct dealing with the public; 4) the opportunity to alternate between sitting and standing at one hour intervals; 5) no repetitive use of foot controls on the right; and 6) low stress jobs involving no production quotas.(PageID 53).
The ALJ ultimately concluded that Plaintiff was incapable of returning to his past work, but that there are a significant numbers of other jobs in the national economy which he can perform. (Tr. 58-59). As a result, he found Plaintiff was not disabled under the Social Security Act from January 1, 2005 through March 31, 2010. (Tr. 59-60).
B.
First, Plaintiff claims that the ALJ erred in failing to properly weigh the opinion of his treating physician and longtime pain management specialist, Dr. Donnini. (PageID 568-69). Dr. Donnini began treating Plaintiff in June 2007. The ALJ assigns "little weight" to Dr. Donnini's conclusions because:
The treating physician rule requires the ALJ to generally give greater deference to the opinions of treating physicians than to the opinions of non-treating physicians because:
These sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the 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 or from reports of individual examinations, such as consultative examinations or brief hospitalizations.
Notably, Dr. Donnini's opinions are not adequately supported by medical evidence and clinical findings. His opinion that the claimant could not work consistently is not supported by the evidence that shows, to the contrary, an ability to perform a full range of activities, including caring for his children, on a consistent daily basis. Such consistency is also supported by the fact that he claimant has never been fired for excessive absenteeism or any other reason and that he is(PageID 57-58).
not missing work now. Clearly, without the support of requisite medical findings or clinical evidence and given the full range of activities that the claimant has performed during the period at issue, Dr. Donnini's opinions with respect to the claimant's work capabilities are speculative at best and are not, as a result, entitled to controlling, or even deferential weight.
Even if the ALJ thought that Dr. Donnini's opinions were not well supported by the clinical diagnostic techniques and were inconsistent with other substantial evidence, he still needed to proceed to the deferential weight analysis. As the Sixth Circuit has held:
If the ALJ does not accord controlling weight to the treating physician, the ALJ must still determine how much weight is appropriate by considering a number of factors, including the length of the treatment relationship and the frequency of the examination, the nature and extent of the treatment relationship, supportability of the opinion, consistency of the opinion with the record as a whole, and any specialization of the treating physician.Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009).
Here, as for the length of treatment, Dr. Donnini was responsible for Plaintiff's care from June 2007 through the date of the hearing before the ALJ in 2011. (PageID 404-38, 570-626). Similarly, Dr. Donnini's treatment notes reveal that he examined Plaintiff approximately once a month. (Id.) As for the nature and extent of the treatment relationship, Dr. Donnini provided treatment specifically for the pain which Plaintiff has alleged to be disabling and guided Plaintiff's treatment over the years to such an extent that Plaintiff's primary care physician, Dr. Allgeyer, deferred to his opinions and assessments. (PageID 491). As a pain management specialist, Dr. Donnini is well qualified to appraise Plaintiff's pain. Dr. Donnini's opinion also merits weight under the supportability factor, because his narrative report provides significant explanation as to the history and nature of Plaintiff's injury, his own clinical observations, and the consistency of Plaintiff's self-reports. (PageID 568-69).
"Supportability. The more a medical source presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, the more weight we will give that opinion. The better an explanation a source provides for that opinion, the more weight we will give that opinion." 20 C.F.R. § 404.1527(c)(3).
The consistency factor also favors Dr. Donnini's opinion. Nearly one hundred pages of treatment notes from Dr. Donnini's office repeatedly reflect complaints of pain and clinical findings consistent with his conclusion that prior to the stabilization of his morphine pump, Plaintiff would have difficulty sustaining work activity from one day to the next. (PageID 404-38, 570-626). Similar complaints of pain and clinical findings are also reflected throughout the records from Plaintiff's other treatment providers such as Drs. Leroy and Allgeyer. (PageID 465-76, 494-99, 537-43). Plaintiff's course of treatment is also consistent with Dr. Donnini's opinion, representing a progression of treatment modalities which carried Plaintiff from pain medications, to epidural injections, to a spinal stimulator trial, and all the way to the permanent implantation of a morphine pump. (PageID 467-68, 588-605, 553, 554-65). Additionally, the limitations Dr. Donnini identifies are consistent with the trauma which caused Plaintiff's pain. (PageID 569). Accordingly, in considering each of the factors identified by the regulations, the overwhelming weight of the evidence supports Dr. Donnini's opinions.
With respect to Plaintiff's work history, the ALJ's observation that Plaintiff "has never been fired for absenteeism or any other reason" is irrelevant to the analysis. (PageID 57-58). Plaintiff testified that his last employer placed him on indefinite and involuntary medical leave effective January 2005 because of his deteriorating physical condition and mounting absenteeism. (PageID 73). He further testified that his employer never allowed him to return to work because he was never healthy enough to perform his job. (PageID 74). Firestone's election to place Plaintiff on involuntary medical leave rather than outright firing him because of his disabilities is not probative as to the severity of his conditions.
Moreover, the fact that Plaintiff was employed at the time of his hearing in January 2011 has no relevance to the ALJ's January 2010 opinion. (PageID 57-58). There is no dispute that Plaintiff's physical condition significantly improved following the stabilization of his morphine pump implantation and that he was ultimately able to return to competitive work. The record evidence does not support a finding that the morphine pump should have or did immediately negate Plaintiff's symptoms. Dr. Donnini had to continually adjust Plaintiff's morphine doses throughout the end of 2009 to achieve pain relief. (PageID 571-79, 607-15). The question before the ALJ at the time of the hearing was Plaintiff's ability to maintain a fulltime work schedule during the time period from January 1, 2005 through April 25, 2010, not his ability to maintain fulltime employment in 2011. (PageID 69).
Accordingly, the Court finds that the ALJ erred in failing to properly weight the opinion of Dr. Donnini.
C.
Second, Plaintiff maintains that the ALJ erred in failing to consider his pain.
"In determining whether you are disabled, we consider all your symptoms, including pain, and the extent to which your symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence." 20 C.F.R. § 404.1529(a). There is no dispute that pain alone may be sufficient to constitute a disability. Kirk v. Sec'y of Health & Human Servs., 667 F.2d 524, 538 (6th Cir. 1981). When a claimant complains of disabling pain, an ALJ must apply the two-step test set forth in Duncan v. Sec'y of Health & Human Servs., 801 F.2d 847, 853 (6th Cir. 1986), to determine the credibility of such complaints. The Duncan test requires an ALJ to first examine whether the objective medical evidence supports a finding of an underlying medical condition that could cause the alleged pain; and second, if there is such an underlying condition, examine whether the objective medical evidence confirms the alleged severity of the pain or, alternatively, whether the objectively established medical condition is of such a severity that it can be reasonably expected to produce the alleged severity of pain. Felisky v. Bowen, 35 F.3d 1027, 1038-39 (6th Cir. 1994).
A consideration of symptoms requires an analysis of factors such as "the claimant's daily activities; the location, duration, frequency, and intensity of the symptoms; factors that precipitate or aggravate symptoms; the type, dosage, effectiveness, and side effects of any medication taken to alleviate the symptoms; [and] other treatment undertaken to relieve symptoms." Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007).
Plaintiff suffered a catastrophic motorcycle accident which resulted in horrific injuries. (PageID 281-336). Even after recovering from the initial trauma of the accident, which was a matter of months, Plaintiff's employer placed him on involuntary and indefinite medical leave because of ongoing symptoms. (PageID 73). The record consistently reflects that Plaintiff experienced back pain which radiated into his right leg of such severity as to preclude him from engaging in the physical exertion required to do light work on a sustained basis. (PageID 72-73, 99-100, 240, 265, 465-76, 408-38, 494-99, 537-43, 588-605). Plaintiff's course of treatment, which culminated in the permanent surgical implantation of a morphine pump, evidences that his pain was severe. (PageID 467-68, 588-605, 553, 554-65).
The regulations explain that evidence relevant to a determination of pain includes Plaintiff's longitudinal complaints to his doctors, the assessment of his physician, and his course of treatment. 20 C.F.R. § 404.1529(a)&(c)(3). The Court finds that the record evidence supports a finding that Plaintiff could not reliably sustain activity levels from one day to the next. Therefore, the ALJ's conclusion that Plaintiff could sustain light work during the period at issue despite his pain is contrary to the evidence.
D.
Next, Plaintiff maintains that the ALJ erred in finding him not to be credible.
An "ALJ is not required to accept a claimant's subjective complaints" and may "consider the credibility of a claimant when making a determination of disability." Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003). An ALJ's credibility determinations about the claimant are to be accorded "great weight, 'particularly since the ALJ is charged with observing the claimant's demeanor and credibility.' However, they must also be supported by substantial evidence." Cruse v. Comm'r of Soc. Sec., 502 F.3d 532, 542 (6th Cir. 2007).
See also Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 392 (6th Cir. 2004) ("we accord great deference to [the ALJ's] credibility determination").
--------
Where the ALJ provides reasons for discrediting Plaintiff, they are either unreasonable or unsupported. For example, the ALJ found that "[t]he claimant was observed to have no difficulty sitting or rising at the hearing. He did not use an ambulation aid. He did not demonstrate any pain or other distress." (PageID 57). Furthermore, "he is not missing work now." (Id.) However, Plaintiff's disability ended nearly one year prior to his hearing before the ALJ due to the effect his surgically implanted morphine pump had on his pain levels. (PageID 69). The ALJ ignores the fact that Plaintiff's pain levels and functioning in January 2011 were dramatically improved from those he was experiencing between January 2005 and March 2010, his alleged period of disability. Additionally, it was unreasonable for the ALJ to find that because Plaintiff could work after his morphine pump began controlling his pain, that his allegations of pain prior to that procedure are somehow not credible. (PageID 57). This is particularly true considering that Plaintiff was placed on indefinite medical leave on his alleged onset date in part because he was missing too much work due to his pain. (PageID 73).
Plaintiff's allegations of disabling pain from January 2005 through March 2010 are consistent with his longitudinal complaints to multiple physicians, his escalating course of treatment, and the opinion of his longtime pain specialist. Moreover, the ALJ's adverse credibility finding and the reasons given therefore are without support in the record.
E.
Finally, Plaintiff claims that the ALJ erred in determining that his daily activities were inconsistent with a finding of disability
The ALJ found that "[d]uring the period at issue, the claimant accomplished a full range of activities on a consistent, daily basis. His responsibilities for the care for his children required such consistency." (PageID 57). However, this statement is without any meaningful support in the record. Nearly every treatment note prepared by Dr. Donnini reflects that Plaintiff's severe back and right leg pain were limiting his daily activities. (PageID 404-38, 570-626). Plaintiff testified that he was able to perform only a reduced range of daily activities, mixed with periods of rest and subject to fluctuations in his back pain levels. (PageID 90-91, 93, 97, 103). On June 29, 2008, Plaintiff proffered that he has "trouble getting around now, due to pain." (PageID 240). On October 31, 2008, Plaintiff explained that "some days it's next to impossible to get out of bed." (PageID 265).
The ALJ's presumption that Plaintiff's role as a parent precludes an award of disability is unreasonable. Plaintiff's ability to drive his daughter one mile to her school or his ability to brush her hair have no reasonable relation to the conclusion that he can lift twenty pounds and sustain a forty hour competitive work schedule. Moreover Plaintiff testified that he sometimes had to rely on a neighbor to take his daughter to her bus stop because of his pain levels. (Tr. 100).
The ALJ offers no meaningful explanation for his characterization of Plaintiff's daily activities as "full" or "consistent." (Doc. 11 at PageID 663-65, 667-68). The fact that Plaintiff "never complained to Dr. Donnini that he was unable to help raise his two children, run errands, shop, cook, clean, and take care of himself" (Doc. 11 at PageID 665) does not therefore establish that Plaintiff could in fact perform these activities on a "full" or "sustained" basis. Additionally, the fact that Dr. Schulz observed that Plaintiff "does some chores," "helps wash the dishes," "does some shopping," and "may get dressed" does not establish that he can perform full time employment. (See Doc. 11 at PageID 667-668).
Accordingly, the Court finds that the ALJ's assumptions about Plaintiff's daily activity levels are unsupported by the record.
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, the facts of Plaintiff's accident, and the credible and controlling findings and opinion of Dr. Donnini, 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 Allan Barbe was not entitled to disability insurance benefits from January 1, 2005 to March 31, 2010, 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 January 1, 2005 to March 31, 2010. The Clerk shall enter judgment accordingly, and this case shall be CLOSED.
__________________
Timothy S. Black
United States District Judge
Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009). The regulations state:
Generally, the longer a treating source has treated you and the more times you have been seen by a treating source, the more weight we will give to the source's medical opinion. When the treating source has seen you a number of times and long enough to have obtained a longitudinal picture of your impairment, we will give the source's opinion more weight than we would give it if it were from a nontreating source.20 C.F.R. § 404.1527(d)(2)(i).