Opinion
CASE NO. 5:06-CV-2465.
November 8, 2007
ORDER OPINION [Resolving Doc. 18]
In this case, the Court must determine whether to reverse the Administrative Law Judge's denial of Plaintiff Philip J. Hofacker's claims for disability and supplemental security income benefits.
The Court referred the matter to Magistrate Judge David S. Perelman for a Report and Recommendation. [Doc. 5.] On October 1, 2007, Magistrate Judge Perelman recommended that this Court grant the Plaintiff's requested relief, reverse the Defendant's final determination, and remand for further proceedings. [Doc. 18.]. On June 29, 2007, the Defendant timely objected to the Magistrate's Report and Recommendation. [Doc. 19.] For the reasons stated below, the Court AMENDS and ADOPTS Magistrate Judge Perelman's Report and Recommendation and REVERSES the decision and REMANDS to the Commission for further proceedings consistent with this opinion.
I. Background
On January 19, 2000, Plaintiff Hofacker first applied for disability insurance benefits (DIB), claiming an onset date of October 13, 1999. [Doc. 18.] On March 27, 2002, Administrative Law Judge (ALJ) Walter L. Hafer entered a decision finding Hofacker not disabled, after reviewing Hofacker's claim. Id. ALJ Hafer found that:
3. The medical evidence establishes that the claimant has "severe" impairments best described as coronary disease, status post myocardial infarctions X2 with coronary artery bypass grafting, left ventricular dysfunction, minor ischemic changes of the brain, orthostatic hypertension diagnosed in October of 2001, gastroesophageal reflux disease[,] adjustment disorder with depressed mood, and borderline intellectual functioning, but that . . . [Plaintiff Hofacker] does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4. . . .
5. The claimant has the residual functional capacity to lift 10 pounds frequently and 20 pounds occasionally. He can sit, stand, and walk for six hours each during an eight-hour work period. He can occasionally bend, stoop, kneel, crouch, crawl, and climb stairs, but never climb ladders, ropes or scaffolds. He is unable to perform work at unprotected heights or around hazardous machinery and can perform no work with concentrated exposures to extremes of temperature or humidity. . . .
6. The claimant is unable to perform any of his past relevant work.
[Doc. 12 at 42.] There is no indication in the record that Plaintiff Hofacker sought review of this decision. [Doc. 18.]
Subsequently, Plaintiff Hofacker "filed an application for Disability Insurance Benefits on October 15, 2002, and an application for Supplemental Security Income Benefits on August 21, 2003, alleging disability as of March 28, 2002, due to coronary artery disease, neuropathy, blood clots, and depression." [Doc. 16.] Plaintiff Hofacker's applications were initially denied and he requested a de novo review and hearing which ALJ John H. Metz held on August 15, 2005. [Doc. 18.] Plaintiff Hofacker and a vocational expert, Michael Klein, testified at the hearing, and Plaintiff Hofacker was represented by counsel. Id. On October 17, 2005, ALJ Metz denied Plaintiff Hofacker's claims. Id. ALJ Metz found the following:
1. The claimant met the disability insured-status requirements of the Act on March 28, 2002, his alleged disability onset date, and continued to meet them through December 2004.
2. The claimant has not been engaged in substantial gainful activity since his alleged disability onset date.
3. The claimant has the following impairments that reduce his ability to perform basic work-related functions: ischemic heart disease, diabetic neuropathy, and depression.
4. The claimant does not have an impairment or combination of impairments listed in, or medically equal to one listed in, 20 C.F.R. Part 404, Subpart P, Appendix 1.
5. The claimant's subjective complaints are disproportionate with and not supported by the objective and substantial evidence in the record to the extent they suggest that he is disabled.
6. The claimant has the residual functional capacity (RFC) to perform light exertional work, subject to the following: (1) no more than occasional bending, stooping, crouching, crawling, or stair climbing; (2) no climbing of ladders, ropes, or scaffolds; (3) no work at unprotected heights or around hazardous machinery; (4) no exposure to temperature or humidity extremes; and (5) no complex instructions, production quotas, or strict time deadlines.
7. The claimant is unable to perform his past relevant work as a truck driver (heavy exertion, semiskilled) or heavy equipment operator (medium exertion, semiskilled).
8. The claimant is now 50 years old and is classified as a person "closely approaching advanced age."
9. The claimant has an eleventh-grade or "limited" education.
10. The claimant has no transferable work skills to jobs within his residual functional capacity.
11. Based on a capacity for the full range of light work, and the claimant's age, education, and work experience, 20 C.F.R 404.1569 and 416.969, and Rule 202.11, Table No. 2, Appendix 2, Subpart P, Regulations No. 4 would direct a conclusion of "not disabled."
12. Applying the above-cited vocational rule as a framework for decisionmaking, the claimant could perform a significant number of jobs in the regional and national economies.
13. The claimant was not under a disability, as defined in the Social Security Act, at any time through the date of this decision.Id. This decision became final after the Appeals Council denied review on August 16, 2006. Id.
On October 12, 2006, Plaintiff Hofacker instituted the present action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3), which provides for judicial review of any final decision by the Commissioner of Social Security denying disability or supplemental income benefits. Plaintiff Hofacker alleges two assignments of error in his brief on the merits: 1) that substantial evidence does not support ALJ Metz's findings, and 2) that ALJ Metz improperly applied Drummond v. Commissioner of Social Security, 126 F.3rd 837 (6th Cir. 1997). [Doc. 16.] Defendant argues that ALJ Metz made findings supported by substantial evidence and appropriately applied the precedent. [Doc. 17.]
On October 1, 2007, Magistrate Perelman found that ALJ Metz's decision did not adequately and specifically explain his reasons for discounting the reports of treating and examining physicians and recommended this Court remand this case for further proceedings. [Doc. 18]. Defendant timely objected to the Magistrate's recommendation, alleging that substantial evidence supports the ALJ's decision. [Doc. 19.]
II. Legal Standard
The Federal Magistrates Act requires a district court to conduct a de novo review only of those portions of a Report and Recommendation to which the parties have made an objection. 28 U.S.C. § 636(b)(1). The Defendant has made a timely objection to the Magistrate's Report and Recommendation on the grounds that "substantial evidence supports the ALJ's decision" and ALJ Metz correctly applied precedent. [Doc. 19.] This Court, therefore, reviews de novo the portion of the Magistrate's Report and Recommendation to which the Defendant objects.
"This court's review of the Commissioner's decision is limited to determining whether it is supported by substantial evidence and was made pursuant to proper legal standards." Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (citing 42 U.S.C. § 405(g); Cutlip v. Sec'y of Health Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)). 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) (citing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Put differently, it is "more than a scintilla of evidence, but less than a preponderance." Bell v. Comm'r of Soc. Sec., 105 F.3d 244, 245 (6th Cir. 1996). A court may not reverse, even if it would arrive at a different conclusion than the ALJ, if the decision is supported by substantial evidence. Siterlet, 823 F.2d at 920. This Court may not review "the case de novo, nor resolve conflicts in the evidence, nor decide questions of credibility." Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
Nevertheless, even where "substantial evidence otherwise supports the decision of the Commissioner, . . . reversal is required [if] the agency failed to follow its own procedural regulation, and the regulation was intended to protect applicants . . ." Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).
III. Analysis
A. The ALJ Failed to Properly Evaluate the Medical Opinion Evidence
"In assessing the medical evidence supplied . . ., there are certain governing standards to which an ALJ must adhere. Key among these is that greater deference is generally given to the opinions of treating physicians than to those of non-treating physicians, commonly known as the treating physician rule." Rogers, 486 F.3d at 242 (citing Wilson, 378 F.3d at 544). If the opinions of treating physicians are uncontradicted, they are accorded complete deference. Shelman v. Sec'y of Health Human Servs., 821 F.2d 316, 320 (6th Cir. 1987) (citation omitted). Nonetheless, "the opinion of a treating physician is entitled to substantial deference only if it is supported by sufficient medical data." Id. at 320-321 (citation omitted). Section 404.1527(d)(2) of Title 20 of the Code of Federal Regulations provides:
If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight.
"If the opinion of a treating source is not accorded controlling weight, an ALJ must apply certain factors . . . in determining what weight to give the opinion." Wilson, 378 F.3d at 544 (citing § 404.1527(d)(2)). Moreover, the ALJ must "always give good reasons in [his or her] notice of determination or decision for the weight [he or she] give[s] [the] treating source's opinion." § 404.1527(d)(2).
[A] decision denying benefits `must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight.'Wilson, 378 F.3d at 544 (citation omitted).
In this case, on June 30, 2003, Dr. David Reynolds, Plaintiff Hofacker's primary physician of several years, concluded that Hofacker could not lift and/or carry anything due to his previous myocardial infarction, could not stand for more than half an hour due to a Charcot joint of his left foot, could not sit for more than an hour at a time due to his ventral abdominal wall hernia, could not climb, balance, stoop, crouch, kneel, or crawl due to ischemic cardiomyopathy, could not reach, push or pull objects, engage in fine or gross manipulation of objects due to an acute ischemic thrombosis of his right hand causing pain and weakening, and could not be exposed to various environmental extremes and hazards due to his peripheral neuropathy among other things. [Doc. 12; Ex. B-9F.] The record is full of treatment reports from Dr. Reynolds describing Hofacker's limited ability to ambulate, the severity of his neuropathy, episodes of chest pain, as well as problems with pain management. [Doc. 12.]
The Court finds Dr. Reynolds was a "treating source." "A physician qualifies as a treating source if the claimant sees her `with a frequency consistent with accepted medical practice for the type of treatment and/or evaluation required for [the] medical condition.' 20 C.F.R. § 404.1502." Smith v. Comm'r of Soc. Sec., 482 F.3d 873, 876 (6th Cir. 2007). Dr. Reynolds was Plaintiff's primary physician and had been seeing Plaintiff for several years at the time of the hearing. [Doc. 12, 16.] Furthermore, ALJ Hafer recognized his position as a treating source in his decision, and no one has challenged this assertion. [Doc. 12.]
Despite Hofacker's long history with Dr. Reynolds, the pages of treatment reports describing Hofacker's conditions and symptoms, and the nerve conduction study report confirming Dr. Reynolds' diagnosis of neuropathy, ALJ Metz dismisses Dr. Reynolds' assessment of Hofacker as "unsupportable." [Doc. 12.] The Court finds that simply stating that a treating physician's findings are unsupportable does not meet the procedural requirements described above. The regulations require an ALJ to provide specific reasons for giving a particular weight to a treating physician's opinion. Wilson, 378 F.3d at 544 (citation omitted).
Further "the opinion of a nonexamining physician is entitled to little weight if it is contrary to the opinion of the claimant's treating physician." Shelman, 821 F.2d at 321. ALJ Metz based his decision on reports made by Ohio Bureau of Disability Determination physicians who made assessments of Hofacker from reviewing the record. [Doc. 12.] None of the reports relied on by ALJ Metz were from examining or treating physicians. Id. Because the ALJ failed to provide sufficient justification for the weight given to the opinion of Hofacker's treating physician, his decision did not conform to the requirements of the regulations and cannot constitute substantial evidence. See Rogers, 486 F.3d at 246; Wilson, 378 F.3d at 544.
Here, ALJ Metz has failed to follow agency procedural regulations intended to protect Plaintiff Hofacker, thus requiring this Court to reverse the ALJ's decision. See Wilson, 486 F.3d at 544. The court does not find this procedural failure to be harmless error. "The error is not harmless when the reviewing court is hampered by the lack of explanation and the rejected evidence could very well establish disability, as here." See McLean v. Comm'r of Soc. Sec., 360 F. Supp. 2d 864, 872 (N.D. Mich. 2005) (citing Wilson, 486 F.3d at 547-548).
Further, even if this did not require reversal, the Court also finds ALJ Metz's curt dismissal of the report of examining psychologist Dr. Ickes troubling. The Court questions how ALJ Metz could discount Dr. Ickes' findings that Plaintiff Hofacker was markedly impaired in his ability to withstand workplace stress and pressures when non-examining psychologist Dr. Gaffey's report did not mention workplace stress or pressures, let alone contradict Dr. Ickes on this point. [Doc. 12.] Both of their reports otherwise address the same issues. Id. The ALJ noted he found the opinion not supportable because Plaintiff Hofacker was well-dressed. The ALJ should not discount the uncontradicted conclusions of a psychologist even after only one session with a claimant unless he has a valid reason. See Blankenship v. Bowen, 874 F.2d 1116, 1121 (6th Cir. 1989). While this may be a valid reason, the Court fails to see the connection between Hofacker's dress and his ability to cope with stress. This is an issue for the ALJ to address upon remand.
The Court does not find that the evidence available could not support ALJ Metz's decision, rather the Court requires that the procedures set forth in the regulations be followed so that it can determine whether substantial evidence supports the ALJ's decision. The Court finds the explanation of the weight given to each medical opinion and the reasons for giving that weight so vague and nonspecific that it finds it impossible to determine why ALJ Metz ruled the way he did. See, e.g., Mclean, 360 F.Supp. at 872. When, as here, there has been "a failure to follow the procedural requirement of identifying the reasons for discounting the opinions and for explaining precisely how those reasons affected the weight accorded the opinions [this] denotes a lack of substantial evidence, even where the conclusion of the ALJ may be justified based upon the record." Rogers, 486 F.3d at 243.
B. The Vocational Expert's Testimony Cannot Constitute Substantial Evidence
Finally, the Court finds there is no substantial evidence to support the ALJ's decision, and this also requires remanding the case, even if the Court had not already determined this case warranted a reversal. In determining whether an individual is "disabled" under the Social Security Act, the administrator employs a five-step sequential evaluation process. 20 C.F.R. § 404.1520. In the final step, the administrator determines the extent that a claimant can perform alternative work. 20 C.F.R. § 404.1520(a)(4)(v). The Social Security Administration has promulgated medical-vocational guidelines to assist in determining what vocations within the national economy could be performed by the claimant. 20 C.F.R. § 404.1569, App 2.
Where the medical-vocational guidelines cannot be applied, most notably where there are non-exertional limitations, testimony by a vocational expert may be used to make the determination in the fifth step. Curtis v. Sec'y of Health Human Services, 880 F.2d 414 (6th Cir. 1989). A vocational expert determines the capability of a claimant to perform alternative work by answers to hypothetical questions proffered by the ALJ. See, e.g. Hardaway v. Sec'y of Health Human Services, 823 F.2d 922 (6th Cir. 1987); Varley v. Sec'y of Health Human Services, 820 F.2d 777 (6th Cir. 1987). A hypothetical question posed to a vocational expert, therefore, must "reference all of a claimant's limitations," although it need not specifically list the claimant's medical conditions. Webb v. Comm'r of Soc. Sec., 368 F.3d 629, 633 (6th Cir. 2004).
"If the hypothetical question does not accurately portray Plaintiff's physical and mental state, the vocational expert's testimony in response to the hypothetical question may not serve as substantial evidence in support of the ALJ's finding that Plaintiff could perform other work." Lancaster v. Comm'r of Soc. Sec., 228 Fed. Appx. 563, 573 (6th Cir. 2007). Consequently, a response to a hypothetical that omits established non-exertional or extertional limitations does not satisfy the substantial evidence requirement. Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 241 (6th Cir. 2002).
In this case, ALJ Metz concluded that Plaintiff Hofacker suffered from depression. [Doc. 12.] Furthermore, he does not dispute ALJ Hafer's 2002 finding that Hofacker's depression was severe. Id. Yet, AJL Metz's hypothetical to the vocational expert does not reference Plaintiff's depression or mention any mental impairment. Thus, because ALJ Metz failed to include this non-exertional limitation in his hypothetical, the vocational expert's response to the hypothetical cannot constitute substantial evidence. The Court "cannot assume that the vocational expert would have answered in a similar manner had the ALJ instructed [him] properly." See Lancaster, 228 Fed. Appx. at 573. Therefore, the Court remands on this ground as well.
The Court notes that "`[i]f all essential factual issues have been resolved and the record adequately establishes a plaintiff's entitlement to benefits,' this Court may remand for an award of benefits." McLean, 360 F. Supp. at 873 (quoting Faucher v. Sec'y of Health Human Servs., 17 F.3d 171, 176 (6th Cir. 1994). The Court declines to award benefits because it finds the record at least partially inadequate.
Because the hypothetical posed to the vocational expert did not accurately reflect all of Plaintiff Hofacker's limitations, the testimony of the expert cannot constitute substantial evidence. See Lancaster, 228 Fed. Appx. at 573. This leaves the Court with an inadequate record for purposes of determining whether Plaintiff would be qualified for any jobs in the national economy. See Faucher, 17 F.3d at 176. The Court thus remands so that the vocational expert can determine whether, given all of the above, Plaintiff Hofacker would be suited for any jobs in the economy.
C. The Application of Drummond
Plaintiff Hofacker alleges that the ALJ improperly applied Drummond. [Doc. 16.] Drummond addressed the issue of whether the Commissioner was barred by res judicata from making new findings on subsequent applications under 42 U.S.C. 405(h). 126 F.3d at 840. The court held that "[a]bsent evidence of an improvement in a claimant's condition, a subsequent ALJ is bound by the findings of a previous ALJ." Id. at 842. The Defendant asserts that this means that Drummond is totally inapplicable to this case as "the ALJ did not find medical improvement in Plaintiff's condition and restricted Plaintiff to a slightly greater degree than the earlier decision with regard to Plaintiff's mental impairment." [Doc. 19.] Yet, Drummond also stands for the proposition that "[w]hen the Commissioner has made a final decision concerning a claimant's entitlement to benefits, the Commissioner is bound by this determination absent changed circumstances." 126 F.3d at 842. Plaintiff Hofacker argues that his circumstances have changed, and ALJ Metz's adoption of the previous findings and of the reports adopting previous assessments constitutes inappropriate and implied application of res judicata. [Doc. 16.]
This Court cannot determine from ALJ Metz's decision whether or not he applied res judicata and the principle of Drummond to Petitioner Hofacker's claim. Plaintiff Hofacker asks this Court to assume that because ALJ Metz found Plaintiff's residual functioning capacity to be substantially consistent with a previous finding of residual functioning capacity, ALJ Metz did not consider Plaintiff's changed circumstances and merely applied res judicata. The Court declines to do so. It is entirely possible that ALJ Metz considered Plaintiff's alleged changed circumstances and found Plaintiff's RFC to nevertheless be the same without applying res judicata.
Upon remand, this is an issue for ALJ Metz to address. In the absence of substantially changed circumstances, ALJ Metz is bound by the previous determination of residual functional capacity. See Drummond, 126 F.3d at 842. Even if the ALJ finds there are substantially changed circumstances, it is possible the evidence as a whole will still place Plaintiff within the same residual functional capacity. ALJ Metz need only explicitly explain his reasons for such a conclusion. See Wilson, 378 F.3d at 544.
IV. Conclusion
In conclusion, ALJ Metz did not follow the proper procedure in evaluating and weighing the expert medical opinions presented and therefore those opinions cannot constitute substantial evidence. For the aforementioned reasons, the Court AMENDS and ADOPTS Magistrate Judge Perelman's Report and Recommendation and REVERSES and REMANDS to the Administrative Law Judge for further proceedings consistent with this opinion.
IT IS SO ORDERED.