Opinion
Case No. 3:13-cv-287
09-23-2014
TONYA G. CURRAN, 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"). (See Administrative Transcript at Doc. 6 ("PageID") (PageID 46-58) (ALJ's decision)).
I.
On November 18, 2009, Plaintiff filed an application for SSI alleging a disability onset date of June 1, 2009, due to various impairments including blindness in one eye, deteriorating vision, arthritis of the back, problems with her right shoulder, depression, anxiety, and bipolar disorder. (PageID 183-85, 205). Plaintiff's application was denied at the initial and reconsideration levels. (PageID 122-25, 131-37).
On March 8, 2012, Plaintiff (along with her attorney) attended an administrative hearing. (PageID 69-117). The ALJ issued a decision on May 30, 2012, denying Plaintiff's application for SSI. (PageID 46-58). The Appeals Council denied Plaintiff's request for review, thereby making the ALJ's decision the final decision of the Commissioner. (PageID 36-38). Plaintiff seeks judicial review of the decision under 42 U.S.C. Section 1382(c)(3).
Plaintiff is 48 years old. (PageID 56). She attended school through ninth grade, but claims she only actually completed seventh grade. (PageID 476). Plaintiff obtained her GED. (PageID 84) Her past relevant work experience includes work as a nurse's aide and plastic molder. (PageID 106).
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).
Plaintiff attributed at least some of her physical problems to lifting patients while working as a nurse's aide. (PageID 77).
The ALJ's "Findings," which represent the rationale of her decision, were as follows:
1. The claimant has not engaged in substantial gainful activity since November 2, 2009, the application date (20 CFR 416.971 et seq).(PageID 48-58).
2. The claimant has the following severe impairments: lumbar degenerateive disc disease; anxiety, depression; post-traumatic stress disorder (PTSD) (20 CFR 416.920(c)).
3. 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 416.920(d), 416.925 and 416.926).
4. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform a reduced range of
light work as defined in 20 CFR 416.967(b). She can climb ladders, ropes, or scaffolds on no more than an occasional basis. She should avoid concentrated exposure to unprotected heights. She may reach with the right upper extremity on no more than a frequent basis. She is limited to occupations that can be performed with monocular vision, with less than frequent depth perception in the left eye. She is limited to three-step to four-step tasks, with only occasional interaction with co-workers, supervisors, and the general public.
5. The claimant is unable to perform any past relevant work (20 CFR 416.965).
6. The claimant was born on January 16, 1966 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 at least a high school 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 November 2, 2009, 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. (PageID 48).
On appeal, Plaintiff argues that: (1) the ALJ failed to properly weigh the opinion evidence from her treating sources; (2) the ALJ's grant of significant weight to the opinions of the state agency's reviewing sources is unreasonable; (3) the ALJ erred in relying upon the Flexman report's activities of daily living; and (4) the ALJ's adverse credibility finding is inadequate and does not merit deference. 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 she is entitled to disability benefits. 20 C.F.R. § 404.1512(a). That is, she must present sufficient evidence to show that, during the relevant time period, she suffered an impairment, or combination of impairments, expected to last at least twelve months, that left her unable to perform any job in the national economy. 42 U.S.C. § 423(d)(1)(A).
A.
The record reflects that:
1. Claimant's testimony and background
Plaintiff testified that her back "causes [her] a lot of pain." (PageID 84). Her back range of motion is limited and she cannot consistently sleep through the night even with a sleep aid. (PageID 93-95). She has received injections for her back pain, but they were ineffective. (PageID 85). Back surgery was suggested, and at the time of her hearing, she was searching for physical therapy. (Id.) Plaintiff estimated that she can walk for only 5 to 10 minutes, can stand in one place no more than 5 minutes, and cannot execute most postures without significant pain. (PageID 95-96). Plaintiff does not think she can lift more than 5 to 10 pounds, explaining that her hands are weak and lifting 10 pounds would be painful. (PageID 97). Sitting even 15 minutes at one time is "very painful" for Plaintiff. (Id.) Plaintiff lies down or reclines throughout the day to mitigate her symptoms and generally goes no more than 45 minutes without assuming those postures for an hour or more. (PageID 98-99). Plaintiff explained that simply attending her hearing would likely occasion more lying down the following day. (PageID 103-04).
Fibromyalgia is also a problem for Plaintiff. (PageID 88). Fibromyalgia was diagnosed by emergency room physicians who told Plaintiff she had tender points consistent with that disorder. (PageID 89). Additionally, she struggles with kidney problems which cause chronic urinary tract infections and constant cramping flank pain. (PageID 99-100). At her hearing, Plaintiff was wearing a prescription boot on her left foot as part of her recovery from a bunion surgery performed in December 2011 which involved fracturing a bone in her foot. (PageID 101). Plaintiff explained that she has suffered from longstanding problems with foot pain, but things became excruciating in the two years leading up to her administrative hearing. (Id.) She had been unable to wear shoes and needed to soak her foot. (Id.)
Plaintiff also spent a great deal of the hearing discussing her mental impairments. She explained that she has severe anxiety when she leaves her home. (PageID 89). Her eyesight shakes back and forth, her heart races, she cannot swallow, and her hands get sweaty. (PageID 90-91). Crowds make her nervous and she is paranoid that others are talking about her. (Id.) Sometimes she has become so nervous that she passes out. (Id.) She does not interact well with others. (Id.) She also suffers from PTSD symptoms which include flashbacks to prior abuse accompanied by crying spells and panic attacks lasting 20 minutes or more. (PageID 102). She has other crying spells unrelated to her flashbacks multiple times each week. (Id.) Her physicians have tried to manage her mental health with medications, but their efforts are limited by Plaintiff's kidney problems. (PageID 90). Plaintiff explained to the ALJ that she has not driven since approximately 2010 due to a combination of poor vision, her foot surgery, and her mental health. (PageID 81) ("[W]hen I do get out, I get lost and very frightened. I get real nervous, so I just would prefer someone else drive.").
In terms of insurance, Plaintiff testified that she had not received insurance through the state of Ohio until approximately one year prior to her administrative hearing. (PageID 84). This made it difficult to get treatment for her medical problems prior to that time. (Id.) For example, she tried to see a rheumatologist about her fibromyalgia, but the appointment was canceled when the provider discovered Plaintiff's insurance status. (PageID 88).
When asked by the ALJ to describe a typical day, Plaintiff testified as follows:
Usually about 1:00 in the morning I wake up in a lot of pain. I struggle with pain until about 5:00 a.m., and then I will take one of my pain pills, and at that point, I've been awake the whole time, and my mind just races, and just sits there and thinks, and thinks, and thinks. So by the time that [the] sun's up, I've got more going on in my head than I know what to do with. I usually -- I will watch -- just watch some videos. I like to watch like animals and nature, and you know, things like that. I don't do a whole lot of physical activity. My boyfriend will come home. If he's working that day, he'll come home, and he'll do dishes for me and vacuum, and make the bed, because it hurts really bad to make the bed. I will, like you know, pick up and do some like dusting, or wipe off the table, or if I spill something. You know, wipe that up, and put my dirty clothes in the hamper and stuff like that. Other than that, I just watch videos, talk to my mama, talk to my sons, and by 7:00 I'm ready for the day to be over because it's been so excruciating, so I try to go ahead and go to sleep. And you know, I am usually able to get to sleep by around 10:00, but like I said, I'm usually up by 1:00, and don't go back to sleep.(PageID 92-93).
2. Medical evidence
Plaintiff went to the Miami Valley Hospital ("MVH") emergency room in December 2004 due to mounting anxiety and depression. (PageID 436-43). Mental status examination at the hospital was remarkable for tearfulness. (Id.) Shortly after this emergency room visit, Plaintiff's depression was treated for over a month through Mental Health Services of Clark County. (PageID 466-67). Her diagnoses included dysthymic disorder, panic disorder, and PTSD. (Id.) Plaintiff was assigned a GAF score of 45. (Id.)
Plaintiff had undergone similar intensive treatment through this organization in the past, including periods of treatment from 1998 through 2000. (PageID 468-83). Plaintiff's mental health treatment and medications were subsequently managed through the Ohio Department of Rehabilitations and Corrections from 2004-2009. (PageID 444-65, 484-715).
Dysthymic disorder is a mild but long-term or chronic form of depression.
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. A score of 41-50 indicates serious symptoms or any serious impairment in social, occupation, or school functioning.
In March 2009, Plaintiff began seeing Dr. Tewell as her primary care physician. (PageID 778-780). Dr. Tewell treated Plaintiff for chronic lumbar pain, anxiety, depression, PTSD, and bipolar disorder. (Id.) Plaintiff presented to the MVH emergency room on August 28, 2009 with complaints of "severe back pain" radiating into her extremities. (PageID 310-17). Plaintiff was noted to be anxious and her back examination was positive for a reduced range of motion and muscle spasm. (PageID 312). She returned with more back pain on December 28, 2009. (PageID 795-805). Examination was again positive for muscle spasm along with tenderness to palpitation. (Id.) Plaintiff went to the Kettering Hospital emergency room on April 24, 2010 with complaints of severe back pain. (PageID 361-64). Her examination was positive for lumbar muscle spasm. (Id.) Plaintiff returned to the Kettering Hospital emergency room on July 16, 2010. (PageID 806-14). Plaintiff had been experiencing significant flank pain. (Id.) Imaging was performed which revealed multiple large cystic areas above Plaintiff's left ovary. (PageID 807). On September 21, 2010, these cystic masses and Plaintiff's left ovary were ultimately excised via laparoscopy. (PageID 819-20).
Prior to starting care with Dr. Tewell, Plaintiff was incarcerated and received medical care from the Ohio Department of Rehabilitation and Corrections. (PageID 484-777).
The record evidence establishes that prior to this hospital visit, Plaintiff had a longstanding struggle with back pain. X-ray evidence reveals that as early as 2001, Plaintiff was experiencing facet hypertrophic changes in the L4-5 and L5-S1 levels of her lumbar spine. (PageID 396). An MRI completed in July 2003 revealed the onset of diskogenic and spondylotic changes throughout Plaintiff's lumbar spine. (PageID 428). The record contains documentation of numerous emergency room visits occasioned by back pain which predate Plaintiff's application for benefits. (PageID 417-27, 431-34).
In March 2010, Plaintiff began treating with Dr. Dean. (PageID 374-75). Plaintiff sought care from Dr. Dean for anxiety and back pain. (Id.) Dr. Dean prescribed Klonopin (a muscle relaxer), Requip, and Tramadol (an opioid pain medication). (PageID 375). By July 2010, Dr. Dean noted Plaintiff's back pain and anxiety were both still uncontrolled and he diagnosed her with a herniated disc syndrome. (PageID 370-71). In September 2010, Plaintiff was taking 50 mg of Tramadol three times each day. (PageID 883-84). Treatment notes into early 2011 reveal Dr. Dean was unsuccessful in bringing Plaintiff's anxiety or back pain under reasonable control. (PageID 879-86). In April 2011, Plaintiff also began complaining of worsening pain in her left foot. (PageID 885-86).
In 2010, Plaintiff also received treatment through the East Dayton Health Center. (PageID 854-57). Treatment notes from this facility reflect ongoing problems with diminished sleep and other PTSD symptoms. (Id.) An MRI of Plaintiff's lumbar spine was performed on August 10, 2010. (PageID 815-16). The test revealed moderate facet arthropathy at multiple levels of Plaintiff's spine along with multilevel disc bulging. (Id.) An x-ray was also performed demonstrating osteophyte formation and facet scoliosis. (PageID 817).
On November 13, 2010, Plaintiff once again went to the Kettering Hospital emergency room with complaints of severe back pain. (PageID 822-25). Clinical signs and findings were recorded including muscle spasm and reduced range of motion. (Id.) Plaintiff returned to the hospital on November 22, 2010, and again on January 18, 2011, with complaints of whole body pain. (PageID 826-29, 858-61). Fibromyalgia was suspected. (Id.)
Plaintiff underwent a thoracic spine MRI on February 24, 2011. (PageID 875). Some abnormal signals were recorded, likely attributable to focal fatty change. (Id.) Plaintiff was once again at the Kettering Hospital emergency room with complaints of back pain on May 4, 2011. (PageID 887-901). Plaintiff's pain was treated with morphine by the emergency room physician. (PageID 889). Examination was remarkable for tenderness to palpitation of Plaintiff's lumbar spine. (Id.) She returned to the emergency room on June 8, 2011, and was again occasioned by back pain which spread into her hip. (PageID 968-79). Tenderness was present upon examination. (PageID 970). She was provided muscle relaxers and discharged. (PageID 971).
In June 2011, Plaintiff established care with podiatrist Dr. Dotter due to increasing pain in her left foot secondary to a developing bunion. (PageID 1130). On June 13, 2011, Plaintiff's left foot was x-rayed, demonstrating significant soft tissue swelling and bone erosion above her left big toe. (PageID 929). After orthotics proved ineffective in managing Plaintiff's foot pain, Dr. Dotter tried injections, but they were only transiently helpful. (PageID 1126-29). Ultimately, Plaintiff and Dr. Dotter elected to proceed with surgery. (PageID 1124). That surgery was performed on December 23, 2011. (PageID 1123). Post-operative follow-ups with Dr. Dotter reveal the procedure led to some improvement in Plaintiff's foot pain, but she continued to experience periodic flare-ups of pain and swelling. (PageID 1121-23).
In July 2011, Dr. Dean referred Plaintiff to pain management specialist Dr. Abraham for consultation regarding her persistent back pain. (PageID 1073). Dr. Abraham's professional impression was that Plaintiff suffers from degenerative disc disease, lumbar facet arthropathy, bilateral sacrolitis, right trochanteric bursitis, and myofascial pain. (Id.) He ultimately performed sacroiliac joint injections, but they proved to worsen Plaintiff's pain. (PageID 1072).
On July 7, 2011, Plaintiff went back to the emergency room for severe pain in her back and right flank. (PageID 946-60). She was diagnosed with a non-obstructive kidney stone. (Id.) The stone was obliterated via shock wave lithotripsy on August 29, 2011; however, there were complications necessitating further surgery and a stent placement on October 20, 2011. (PageID 999-1056). Unfortunately, further complications and infection followed the stent placement resulting in stent removal surgery on October 27, 2011. (PageID 1061-62). Plaintiff followed up with her surgeon on November 30, 2011 and reported persistent flank pain as well as a urinary tract infection. (PageID 1063).
Plaintiff initially saw urologist Dr. Sanmina for treatment of the kidney stone. (PageID 980). Without checking Plaintiff's pharmacy records or her other prescriptions, Dr. Sarmina wrote Plaintiff a prescription for Percocet for kidney stone related pain. (Id.) When Plaintiff attempted to fill Dr. Sarmina's prescription, it was rejected by the pharmacy because Plaintiff was already receiving Percocet from Dr. Dean for her back pain. (Id.) Without any further investigation or contact with Plaintiff, Dr. Sarmina declared that this made it "very clear that [Plaitniff] is a drug seeker" and discharged her from his practice. (Id.)
In early 2011, Plaintiff also established psychiatric care through Focus Care. (PageID 903-26, 1083-101). Plaintiff's initial mental status examination was remarkable for auditory hallucinations and a depressed, anxious mood. (PageID 905). She was diagnosed with bipolar disorder and PTSD. (Id.) Focus Care treatment notes prepared by treating psychologist Victor Stanchina reflect Plaintiff suffering from constant worry with anxiety and mood swings. (PageID 908). Despite therapy and Xanax, Plaintiff remained unable to relax with diminished feelings of self-worth and a loss of appetite. (PageID 910-11). On February 18, 2011, Plaintiff reported that she was "severely depressed" and had stopped eating. (PageID 913).
Plaintiff continued to treat with Dr. Dean through the date of her 2012 hearing. (PageID 1108-20). Persistent back pain, anxiety, and insomnia remained the focus of Dr. Dean treatment. (Id.) Plaintiff also discussed her persistent abdominal pain with Dr. Dean, who noted tenderness in the right lower quadrant of Plaintiff's abdomen. (Id.)
3. Opinion evidence
On November 17, 2009, treating source Dr. Tewell completed an assessment of Plaintiff's physical functioning for the Ohio Department of Job and Family Services. (PageID 323-24). Dr. Tewell opined that Plaintiff can lift no more than 5 pounds, is markedly limited in reaching or bending, is extremely limited in pushing, pulling, or seeing, and has a combined sitting, standing, and walking tolerance of well less than 8 hours per day. (Id.) Dr. Tewell indicated that Plaintiff is physically "unemployable." (Id.)
That same day, Dr. Tewell also prepared an opinion regarding Plaintiff's mental health. (PageID 325-27). In that opinion, Dr. Tewell noted that Plaintiff is "markedly limited" in a number of work related functional areas. (Id.) These included but were not limited to her ability to maintain regular attendance, to get along with coworkers without exhibiting behavioral extremes, to be punctual, and to accept instructions from supervisors. (Id.) Dr. Tewell opined that Plaintiff is also "unemployable" as a result of her mental limitations. (Id.)
Plaintiff was psychologically examined by state agency consultant Dr. Flexman on March 23, 2010. (PageID 329-33). Dr. Flexman diagnosed an undifferentiated somatoform disorder and dysthymia. (PageID 332). Ultimately, Dr. Flexman concluded that Plaintiff is moderately limited in her ability to interact with the public or coworkers, to respond appropriately to work pressures in a normal work setting, and to respond to changes in a work environment. (PageID 333).
On April 8, 2010, Dr. Thomas, another agency consultant, reviewed the first five exhibits of Plaintiff's medical records, records now containing 74 separate exhibits, to appraise Plaintiff's physical limitations. (PageID 335-42). Dr. Thomas concluded that Plaintiff was capable of sustaining a reduced range of medium exertion work. (Id.)
Dr. Thomas reviewed less than 40 pages of evidence, much of which consisted of non-substantive paperwork such as cover sheets or other evidence not specifically related to Plaintiff's physical health such as Dr. Flexman's report. (PageID 297-334). The only evidence relevant to Plaintiff's allegations of physical disability were the notations from a single emergency room visit for back pain in August 2009 and Dr. Tewell's opinion that Plaintiff is disabled. (PageID 310-17, 323-24).
A similar review regarding Plaintiff's mental health was conducted by consultant Dr. Demuth on April 9, 2010. (PageID 343-60). Dr. Demuth recounted Dr. Flexman's summary of Plaintiff's daily activities. (PageID 359-60). Ultimately, Dr. Demuth rejected Dr. Tewell's opinion because the physician "did not send in any notes." (Id.) Rather, he assigned "most weight" to Dr. Flexman's report and concluded that Plaintiff can perform simple, routine, and repetitive tasks involving only superficial interaction with coworkers and little to no interaction with the public. (Id.) Dr. Demuth also opined that Plaintiff is moderately limited in her activities of daily living, in maintaining social functioning, and in maintaining concentration, persistence, or pace. (PageID 353).
Dr. Demuth's opinion was later affirmed by a subsequent reviewer, Dr. Zwissler, on August 27, 2010. (PageID 382). The only additional mental health records added to Plaintiff's file between the reviews of Drs. Demuth and Zwissler were six pages of notes from Dr. Dean reflecting that Plaintiff's anxiety was "uncontrolled" as well as "moderate and severe." (PageID 370-75).
Dr. Thomas's physical capacities evaluation was similarly affirmed by another reviewer, Dr. Holbrook, on September 4, 2010. (PageID 383). The only additional, relevant records made available to Dr. Holbrook were those from three office visits with Dr. Dean and from Plaintiff's April 2010 emergency room visit for back pain. (PageID 361-64, 370-75). The former reflected that Plaintiff's back pain was uncontrolled despite a prescription for opioid pain medication as well as a diagnosis of herniated disc syndrome. (PageID 370-75). The latter again reflected back spasms. (PageID 361-64).
On February 8, 2011, Dr. Dean completed an opinion regarding Plaintiff's functional abilities. (PageID 384). Dr. Dean opined that Plaintiff's combined sitting, standing, and walking tolerance rests well below that required for fulltime work. (Id.) This led him to conclude that her limitations precluded anything greater than part-time employment. (Id.)
Treating Psychologist Victor Stanchina completed a mental health function evaluation of Plaintiff on February 25, 2011. (PageID 876-77). Like Dr. Tewell, Psychologist Stanchina opined that Plaintiff is "markedly limited" in multiple vocationally significant domains. (Id.) These included maintaining attendance, getting along with coworkers, and avoiding exhibiting behavioral extremes. (Id.) Like Drs. Tewell and Dean, Psychologist Stanchina opined that Plaintiff is "unemployable." (Id.)
4. The vocational expert's testimony
Vocational expert James Lanier testified that Plaintiff's past relevant work for Social Security purposes includes working as a plastic molder and a nurse's aide. (PageID 106). When posed a hypothetical largely mirroring the assigned residual functional capacity, Mr. Lanier testified that such a worker could not perform Plaintiff's past relevant work, but could perform a substantial number of other jobs in the national economy. (PageID 106-09). Mr. Lanier went on to testify, however, that a worker could miss only approximately 1 to 1.5 days per month and sustain the jobs he identified. (PageID 110-11). Additionally, the worker would need to be on task 90 to 95% of the time while at work to sustain any fulltime, competitive employment. (PageID 111). There would also be no tolerance for an employee who exhibited emotional extremes at the workplace, such as a 20 minute crying spell once per week. (PageID 114). Lastly, if a hypothetical worker needed to lie down even as little as 20 minutes out of a workday, Mr. Lanier opined that they would be unable to maintain a fulltime job. (PageID 112).
5. The ALJ's decision
The ALJ determined that Plaintiff suffers from the severe impairments of lumbar degenerative disc disease, anxiety, depression, and PTSD. (PageID 48-49). However, the ALJ concluded that none of these impairments, singly or in combination, meet or equal the severity of any of the Commissioner's listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (PageID 49-50).
The ALJ's residual functional capacity ("RFC") finding reads:
After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform a reduced range of light work as defined in 20 CFR 416.967(b). She can climb ladders, ropes, or scaffolds on no more than an occasional basis. She should avoid concentrated exposure to unprotected heights. She may reach with the right upper extremity on no more than a frequent basis. She is limited to occupations that can be performed with monocular vision, with less than frequent depth perception in the left eye. She is limited to three-step to four-step tasks, with only occasional interaction with co-workers, supervisors, and the general public.(PageID 50).
"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).
Ultimately, the ALJ determined that Plaintiff is incapable of performing her past relevant work, but capable of performing a significant number of jobs in the national economy. (PageID 56-58). This results in a finding that Plaintiff has not been under a disability from November 2, 2009 through the date of her decision. (PageID 58).
B.
First, Plaintiff maintains that the ALJ failed to properly weigh the opinion evidence from her treating sources.
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).
Plaintiff argues that the ALJ improperly rejected the opinions of her three treating sources: Dr. Dean, Dr. Tewell, and Psychologist Stanchina. Both Drs. Dean and Tewell completed assessments of Plaintiff's physical functioning in which they opined that Plaintiff's combined sitting, standing, and walking tolerance amounts to less than that required for a full eight hour workday. (PageID 323-24, 384). While the ALJ claims that neither physician "cited objective clinical findings or diagnostic findings in their assessments," in addition to recounting Plaintiff's diagnoses and medications, Dr. Tewell also reflects findings including reduced range of motion in Plaintiff's spine, right shoulder, right hip, and knee. (PageID 323). Dr. Dean's opinion form does not reflect specific clinical findings, but it directs the reader to "see attached," which presumably consisted of his records and the diagnostic testing he ordered. (PageID 384).
Although the ALJ contends that the opinions of Drs. Dean and Tewell are "not supported by the myriad medical evidence," the ALJ describes several portions of the record which support, rather than undermine, the opinions of Plaintiff's treating physicians. For example, the ALJ assigns weight to Dr. Abraham's conclusion that Plaintiff is suffering from lumbar spine degenerative disc disease, his recommendation of sacroiliac joint infections, and his observation that Plaintiff's "kidney stones and deconditioning had likely worsened [her] back pain." (PageID 52, 1072-73). The ALJ also observed that the record contains many hospital visits occasioned by back pain, as well as a history of treatment and testing relevant to Plaintiff's abdominal complaints. (PageID 53-54). Further, the ALJ notes that the record contains an MRI from August 2010 confirming mild to moderate lumbar degenerative changes. (PageID 54).
Moreover, Dr. Dean had a close, long-term treatment relationship with Plaintiff marked by many examinations. (PageID 370-75, 883-86, 1108-20). He also coordinated and was consistently appraised of Plaintiff's care and testing with other providers as illustrated by the records from pain management specialist Dr. Abraham, who drafted letters to Dr. Dean about Plaintiff's medical imaging. (PageID 815, 1072-73). The ALJ argues that Dr. Dean's opinion was properly rejected secondary to normal gait related findings in the physician's examination notes. However, Dr. Dean recorded abnormal clinical signs and findings consistent with his opinions during a number of office visits. For example, on July 10, 2010, he noted palpable tenderness in Plaintiff's lumbar spine. (PageID 371). In April 2011, he recorded tenderness to palpitation of Plaintiff's lumbar spine and right shoulder as well as a reduced range of motion. (PageID 886). Those findings were also present in an examination performed on June 16, 2011. (PageID 1120). During nearly every office visit, Dr. Dean recorded, and remarked upon, Plaintiff's persistent reports of severe pain. (PageID 370-74, 883-86, 1008-20). Additionally, pain management specialist Dr. Abraham confirmed that Plaintiff was suffering from degenerative disc disease. (PageID 1072-73). The record also contains a 2010 MRI which objectively confirms the presence of degenerative process in Plaintiff's lumbar spine. (PageID 54).
Plaintiff's mental health treatment notes also reflect persistent problems with episodic anxiety and depression. (PageID 903-26, 1083-101). In fact, the record reflects at least one hospital visit due to mental issues. (PageID 436-43). Plaintiff also consistently reported problems with depression, anxiety, and insomnia to her treating sources, including Dr. Tewell. (PageID 370-71, 778-80, 854-57, 879-86, 1108-20). Although Dr. Tewell is not a mental health professional, he treated Plaintiff for depression and anxiety and prescribed Plaintiff psychotropic mediation to help with her anxiety. (PageID 780). While the ALJ relies in part on the fact that Dr. Tewell is not a mental health professional in rejecting his opinion, there is no evidence that the state agency reviewing consultants, Drs. Demuth and Zwissler, were "mental health professionals," yet the ALJ affords them controlling weight.
Additionally, there is no indication that the ALJ considered Psychologist Stanchina's relationship with Plaintiff, his longitudinal view of her symptoms, or his specialization. (PageID 46-58). In fact, the ALJ's failure to even mention Psychologist Stanchina further undermines the notion that the ALJ's decision was supported by substantial evidence.
Accordingly, the ALJ failed to properly weigh Plaintiff's treating sources.
C.
Next, Plaintiff argues that the ALJ's grant of significant weight to the opinions of the state agency's reviewing sources is unreasonable.
The physical limitations the ALJ assigned were largely the product of her reliance upon the residual functional capacity form completed by reviewer Dr. Thomas in April 2010. (PageID 335-42). However, at the time of Dr. Thomas's review, the record contained less than ten pages of evidence relevant to Plaintiff's allegations of physical disability -- notes from a single back pain related emergency room visit in 2009 and Dr. Tewell's opinion that Plaintiff was disabled. (PageID 310-17, 323-24). Dr. Holbrook reviewed approximately ten additional pages of records. (PageID 361-64, 370-75). If the Court accepted the Commissioner's argument that the ALJ did not rely upon the opinions of Drs. Thomas and Holbrook, then the ALJ would have rejected not only the opinions prepared by Plaintiff's treating sources, but all of the medical opinions relevant to her physical capabilities.
Additionally, the ALJ's appraisal of Plaintiff's mental functioning is almost entirely grounded in the mental residual functional capacity conclusions of reviewer Dr. Demuth. (PageID 56-343-60). However, Dr. Demuth reviewed only two mental health exhibits: Dr. Flexman's report and Dr. Tewell's opinion that Plaintiff is disabled by her mental symptoms. (PageID 329-33, 359-60). Dr. Demuth rejected Dr. Tewell's assessment, and instead relied exclusively upon the report of Dr. Flexman, primarily the "activities of daily living" section of that report. (PageID 343-60). The only additional mental health records made available to Dr. Zwissler were six pages of notes from Dr. Dean reflecting that Plaintiff's anxiety was "uncontrolled" as well as "moderate and severe." (PageID 370-75).
See infra Section II.D.
Accordingly, the ALJ's reliance upon these reviewers' opinions, to the exclusion of opinions from Plaintiff's treating sources, is unreasonable and unsupported.
D.
Plaintiff also claims that the ALJ erred in relying upon the Flexman report's activities of daily living.
In denying Plaintiff's claim for benefits, the ALJ relies upon a single section of Dr. Flexman's report that purports to outline Plaintiff's daily activities. (PageID 330). The ALJ's reliance upon this section is relevant to both her adverse credibility finding and the adoption of the opinions of state agency reviewing sources. However, prior to Plaintiff's administrative hearing, her attorney submitted a brief to the ALJ which addressed Dr. Flexman's report as follows
Dr. Flexman also identifies an exhaustive list of daily activities on page 2 of his report which he believes that claimant engages in. However, this report of activities is grossly inconsistent with claimant's own report and a third party function report at Exhibit 3E. It is also contradicted by an observation in an earlier portion of Flexman's report that claimant 'won't get up, bathe or do anything. This sometimes lasts for two weeks.' At best, the activities of daily living portion of Flexman's report is inaccurate boilerplate, at worst it is a fabrication. Either way, it does not reflect claimant's functioning. As Dr. Flexman's conclusions and the conclusions of subsequent reviewers (who actually parrot that portion of Flexman's report) are clearly grounded in these false daily activities, those opinions cannot reasonably be given any significant weight.(PageID 287).
The beginning of Dr. Flexman's report describes Plaintiff as significantly limited by her impairments, while a paragraph in the middle of the report describes the opposite. The record as a whole supports the earlier description. Dr. Flexman's explanation of Plaintiff's daily activities is contrary to all of her prior comprehensive function reports (PageID 226-32, 237-40, 260, 264, 266-73), it is also inconsistent with the function report completed by a third party who has known Plaintiff for 43 years (PageID 214-21), and it is also contrary to Plaintiff's sworn testimony before the ALJ (PageID 92-93). The report is also at odds with Dr. Flexman's earlier recounting that Plaintiff "won't get up, bathe or do anything. This sometimes lasts for two weeks." (PageID 329).
Accordingly, the Court finds that Dr. Flexman's "activities of daily living" section is not supported by the record evidence.
E.
Finally, Plaintiff argues that the ALJ's adverse credibility finding is inadequate and does not merit deference.
"The ALJ's assessment of credibility is entitled to great weight and deference, since he [or she] had the opportunity to observe the witness's demeanor." Infantado v. Astrue, 263 F. App'x 469, 475 (6th Cir. 2008). See also Sullenger v. Comm'r of Soc. Sec., 255 F. App'x 988, 995 (6th Cir. 2007) (declining to disturb the ALJ's credibility determination, stating that: "[w]e will not try the case anew, resolve conflicts in the evidence, or decide questions of credibility."). However, while an ALJ's credibility findings are typically accorded deference, those findings must still be supported by substantial evidence. Cruse v. Comm'r of Soc. Sec., 502 F.3d 532, 542 (6th Cir. 2007).
The ALJ discredits Plaintiff's credibility, stating that "she repeatedly told treating physicians that she had 'herniated discs,' when multiple MRI scans from different time frames indicate the opposite." (PageID 56). However, Dr. Tewell diagnosed Plaintiff with a herniated lumbar disc (PageID 778) and Dr. Dean diagnosed Plaintiff with "Herniated Disc Syndrome" in 2010 (PageID 370-71). Contrary to the ALJ's position, Plaintiff's repetition of the same medical terminology used by her own physicians is not reasonably adverse to her credibility. Moreover, Plaintiff's allegations of significant back pain are consistent throughout the medical record, both in notes provided by treating sources like Dr. Dean and in the numerous back pain related emergency room visits the record documents. The regulations direct that Social Security "will not reject [a claimant's] statements about the intensity and persistence of [her] pain or other symptoms or about the effect [her] symptoms have on [her] ability to work solely because the available objective medical evidence does not substantiate [her] statements." 20 C.F.R. § 404.1529(c)(2).
The ALJ also questions the veracity of Plaintiff's testimony noting that her medical records "disclosed several episodes of drug-seeking behavior, or of seeking specific medications against the doctor's better judgment (Exs. 28F, 31F, 59F, 70F)." (PageID 56). However, Exhibit 28F reflects an emergency room visit which occurred in May 2004, over five years prior to her alleged onset of disability and eight years prior to the ALJ's written decision. (PageID 430-33). This single record fails to substantiate that Plaintiff is a drug-seeking malingerer who cannot be trusted. The contents of Exhibit 31F actually undermine the ALJ's premise, revealing Plaintiff to be concerned about the addictive nature of mediations which had been effective for her in the past. (PageID 474). In Exhibit 59F, Plaintiff refused two muscle relaxers offered by an emergency room nurse because she had taken them in the past and they "cause[d] her anxiety." (PageID 889). The doctor at the emergency room visit did, however, administer morphine to Plaintiff without her requesting the same. (Id.) Finally, in Exhibit 70F, Plaintiff requested a prescription for pain medication "she had been on in the past" from her pain management physician, Dr. Abraham, and when he explained that said medication was not indicated for her conditions, Plaintiff simply filled the prescriptions offered. (PageID 1072). Moreover, when Plaintiff started treatment with Dr. Abraham, she specifically requested that he attempt to control her pain with "a minimum of medications, because she has been on medications for years and they don't really help." (PageID 1073).
"The patient reports that she has been on BuSpar, Xanax, Ativan, and Klonopin in the past, but has not been prescribed any of these medications for the last one to two years. The patient reports that these medications were helpful in managing her anxiety, but knows they are addictive medications and states she know these are not the solution for her problems. The patient reports she would like to find anti-depressant medications that would better help her symptoms and is motivated to see a psychiatrist and to take the medication as prescribed." (PageID 474).
--------
Accordingly, the ALJ's characterization of Plaintiff as a "drug seeker" and adverse credibility finding are not reasonably substantiated in 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 of evidence of disability, and the credible and controlling findings and opinions of Drs. Dean and Tewell and Psychologist Stanchina, 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 Tonya Curran was not entitled to supplemental security income beginning June 1, 2009, 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. The Clerk shall enter judgment accordingly, and this case shall be CLOSED. Date: 9/23/14
s/ Timothy S. Black
Timothy S. Black
United States District Judge