Opinion
Case No. 3:13-cv-23
11-12-2013
ANNA JOHNSON, 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") and supplemental security income ("SSI"). (See Administrative Transcript at ("Page ID") (PageID 85-97) (ALJ's decision)).
I.
Plaintiff filed her disability applications on March 25, 2009, alleging disability beginning on April 1, 2008. (PageID 250-56). Plaintiff alleged disability owing to knee problems, PTSD, and personality disorder. (PageID 250, 280). Plaintiff's insured status expired on December 31, 2009. Plaintiff's disability claims were denied initially and upon reconsideration. (PageID 179-82). Plaintiff appeared with counsel and testified at an administrative hearing on June 16, 2011. (PageID 104-44). Her claims were denied by an ALJ on July 28, 2011. (PageID 85-98). The Appeals Council denied her request for review (PageID 54-56), making the ALJ's decision the final decision of the Commissioner. Plaintiff filed this civil action on January 25, 2013, appealing the Commissioner's decision.
Plaintiff previously filed disability applications in 2005, claiming disability since November 2003. (PageID 168, 170). Following an administrative hearing, her claims were granted by an ALJ on May 29, 2008, for a closed period of disability from November 1, 2005 to January 1, 2008, with medical improvement in January 2008 to enable her to perform light, low stress work activity, and a finding of no further disability through the date of the decision. (PageID 168-174). See 20 C.F.R. § 404.955. Plaintiff's prior applications are not before this Court for judicial review. Califano v. Sanders, 430 U.S. 99, 108 (1977).
The ALJ determined that Plaintiff had severe "osteoarthritis of bilateral knees, osteoarthritis of the wrist, chronic pain and instability, obesity, bipolar disorder, panic disorder with agoraphobia and anger disorder..." (PageID 88). The ALJ determined that Plaintiff had the residual functional capacity ("RFC") to perform sedentary work that allowed her to sit or stand alternatively at will as long as she was not ten percent off task during the work period; restricted her from more than occasional climbing ramps or stairs; restricted her from balancing, stooping, crouching, kneeling, or crawling; allowed her to use a hand held devise at all times while standing; allowed her to use her contralateral upper extremity to lift and carry up to the exertional limitations; and restricted her to only one-or two-step tasks; to low stress work with only occasional decision making; to only changes in the work setting; from any interaction with the public; and from more than occasional conversation and interpersonal interactions with other employees. (PageID 90-91).
Plaintiff was born on March 3, 1976. (PageID 250). She obtained her GED in 1997 and her certification as a nurse's assistant. (PageID 286). Her past relevant work was as a certified nurse assistant. (PageID 135)
The ALJ's "Findings," which represent the rationale of her decision, were as follows:
1. The claimant meets the insured status requirements of the Social Security Act through June 30, 2007.(PageID 88-98).
2. The claimant has not engaged in substantial gainful activity since April 1, 2008, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: osteoarthritis of bilateral knees, osteoarthritis of the wrist, chronic pain and instability, obesity, bipolar disorder, panic disorder with agoraphobia and anger disorder (20 CFR 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except a sit/stand option allowing the claimant to sit or stand alternatively at will provided the claimant is not off task more than 10% of the work period; occasionally climb ramps or stairs; never balance, stoop, crouch, kneel or crawl; limited to jobs that can be performed while using a hand held assistive devise required at all times when standing and the contralateral upper extremity can be used to lift and carry up to the exertional limits; work is limited to 1- or 2-step tasks; employed in a low stress job with only occasional decision making required and only occasional changes in the work setting; no interaction with the public; and can be around other employees during the workday, but only occasional conversations and interpersonal interaction.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on March 3, 1976 and was 32 years old, which is defined as a younger individual age 18-44, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from April 1, 2008, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
In sum, the ALJ concluded that Plaintiff was not under a disability as defined by the Social Security Regulations, and was therefore not entitled to DIB or SSI. (PageID 97).
On appeal, Plaintiff argues that: (1) the ALJ erred in finding that Plaintiff's impairment did not meet or equal Listing 1.02; and (2) the ALJ erred in rejecting the opinion of Plaintiff's treating physicians. The Court will address each issue 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 ALJ's previous decision is not before this Court. Therefore, all medical evidence dated January 2008 and earlier is included for contextual and historical purposes only.
Plaintiff underwent a right anterior cruciate ligament reconstruction with bone tendon bone autograft on May 9, 2002. (PageID 456-457). The ACL surgery failed and on January 15, 2007, she underwent another reconstruction surgery "using a left bone-patella-bone graft from her left knee." (PageID 458-460). On follow up in October 7, 2007, Plaintiff still had right knee instability and positive pivot shift. (PageID 464-466). She wore a right ACL brace. She had pain in her left knee as well. (PageID 465). She was prescribed a varus-valgus brace to wear inside her ACL brace. Because of her KT- 1000 results which showed that her anterior displacement of her tibia had decreased by 1mm at the fifteen and twenty pounds and 2mm at passive thirty pounds from her previous assessment and her other multiple knee surgeries, she was not thought to be a candidate for a third surgery. (PageID 461).
Plaintiff was treated at Victor J. Cassano Health Center. On July 16, 2008, she had x-rays of her knees, bilaterally, as a result of post-surgical knee pain, more on the right. It showed the previous surgical intervention involving "some mild scterosis and spur formation at the inferior patellar pole and the patellar tendon is somewhat distorted probably from prior graft donation" on the right and some mild osteoarthritic changes in the left knee. (PageID 326-328). Plaintiff had continued instability of her right knee with pivot shift. It was noted that she "had multiple surgeries for her knee and needs primary ACL repair with subsequent removal of painful hardware and subsequent failure of the ACL graft and a revision of ACL reconstruction using bone from the contralateral knee." (PageID 324). She also had left leg weakness. She was prescribed a knee brace and physical therapy. She was to follow up with her pregnancy. (Id.)
Plaintiff was also treated at Samaritan Counseling Center beginning on November 20, 2005. On that date, she underwent an adult diagnostic assessment. She explained that she had left her boyfriend to get back with her ex-husband and that four days prior to her evaluation he had left her at a hotel to return to his girlfriend. She noted that she had a nervous breakdown in the ninth grade. (PageID 383). She was often in a children's home while growing up. Plaintiff met the criteria for major depressive disorder and panic attacks with agoraphobia. Plaintiff's GAF score was 55. (PageID 388). On the mental status exam, she depressed. (PageID 392). She underwent an Adult Diagnostic Assessment Update on November 29, 2007. The diagnoses included major depressive disorder, PTSD, and borderline personality disorder. Plaintiff's GAF score was 40. (PageID 379). Plaintiff underwent another Adult Diagnostic Assessment Update on July 9, 2008. It was noted, "[s]ince the last update, Anna has had significant relapses in anger and depression Borderline personality features fuel her axis I symptoms of agitated depression." (PageID 376). When therapists left the center, Plaintiff felt abandoned and dropped out of treatment or missed many appointments. It was noted, "[d]ue to her affective instability, her chart was left open despite her non-compliance with the attendance policy." (Id.) It was also reported, "[s]he continues to have a pattern of unstable and intense intimate relationships where she idealizes each partner. Anna then quickly leaves the relationship once she admits to their grave deficiencies." (Id.) She was unable to be on medications at the time, owing to her pregnancy. (Id.) The diagnoses remained the same with a GAF score of 40. (Id.) It was recommended that Plaintiff receive mood stabilizers and individual therapy "to teach skills to manage anger, depression, anxiety, and to increase awareness of impulsive behaviors that keep her in unhealthy intimate relationships." (PageID 377). However, she was dismissed from the center on December 1, 2008 due to her lack of attendance. (PageID 375). Plaintiff's GAF score was 55 on discharge. (PageID 374).
Agoraphobia is an anxiety disorder characterized by anxiety in situations where the sufferer perceives certain environments as dangerous or uncomfortable, often due to the environment's vast openness or crowdedness.
The Global Assessment of Functioning ("GAF") is a numeric scale (0 through 100) used by mental health clinicians and physicians to rate subjectively the social, occupational, and psychological functioning of adults, e.g., how well or adaptively one is meeting various problems-in-living. A score of 51-60 indicates some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships.
A GAF score of 31-40 indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed adult avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school).
Plaintiff underwent another initial Adult Diagnostic Assessment on December 18, 2008 when she was admitted back to the Center. On the mental status exam she was observed to be anxious, agitated, impulsive, restless, and with a loss of interests. She had an impairment in her attention/concentration. (PageID 351). Plaintiff did not know her father, and her mother was a drug addict. She had taken care of her mother until her mother's death two years previously. She was close to one sister. She had lost custody of her thirteen year old daughter years before. (PageID 340, 343). She lived with her boyfriend of six months and had given birth on November 24, 2008. She had a history of unstable relationships. The diagnosis was depressive disorder, PTSD by history, and borderline personality disorder. Plaintiff's GAF score was 60. (PageID 349). It was noted that Plaintiff's Observation Oriented Modeling ("OOM") results indicated "low self-esteem and depression - she does not have a positive attitude toward herself, not confident about decisions she makes, not able to overcome barriers, and is not optimistic about the future." (PageID 348). On January 14, 2009, she related that her boyfriend was lying to her, so she was living with her ex-boyfriend's mother and her ex-boyfriend also lived there. She had a daughter with the ex-boyfriend. (PageID 353). On April 13, 2009, Plaintiff was discharged from treatment as she had not returned after her one treatment visit. (PageID 359-360).
On August 6, 2007, Dr. Robert Kominiarek, Plaintiff's treating family physician, stated that Plaintiff needed to live in a downstairs apartment because of the internal derangement of her knees and she should not climb stairs. (PageID 399). On May 12, 2009, he reported that she was diagnosed with "internal derangement of both knees with pain, swelling and instability, tension headaches, hypothyroidism, neurotic depression, and esophageal reflux." (PageID 398). Dr. Kominiarek opined that Plaintiff was unable to work as a result of her impairments. (Id.)
Plaintiff suffered a fall on June 16, 2009 and sustained a right knee contusion. She had instability of her right knee and wore a brace. (PageID 449).
Plaintiff underwent a psychological evaluation by Dr. Christopher Ward at the request of the State agency on July 2, 2009. She was separated from her husband and lived with her fiancé, his parents, and children. She related that she was in and out of foster care since age three and then a children's home from ages thirteen to eighteen. She had a history of sexual abuse by her step-father. She had a cerebral vascular accident in 2004 that was possibly a stroke and has had problems with speech and concentration since then. She was married twice. (PageID 400). She had a tenth grade education. She had social problems in school, was involved in physical alterations, had five suspensions in the seventh grade, and was expelled multiple times. In addition to her physical impairments, she had a history of mental health problems. (PageID 401). Dr. Ward stated, "[s]he did not appear to exaggerate or minimize her difficulties." (PageID 402). Her speech was fast and she had some problems with expressive language. She was observed to be depressed, agitated, tearful, anxious, and apprehensive. (Id.) Her intelligence was thought to be in the high average range. She spent her days caring for her six month old with the help of her boyfriend. She performed limited household chores because of her knee pain. (PageID 403). Dr. Ward diagnosed bipolar disorder, pain disorder with agoraphobia, and personality disorder. Plaintiff's GAF score was 52. Dr. Ward opined that Plaintiff had a moderate limitation in her ability to relate to others, a mild limitation in her ability to understand, remember, and carry out simple instructions, a moderate limitation in her ability to maintain attention, concentration, persistence, and pace, and her ability to deal with work stress was moderately to markedly limited. (PageID 404)
Dr. Tasneem Kahn, Ed.D., reviewed the record on July 2, 2009. (PageID 407). She opined that Plaintiff had a moderate restriction in her daily activities, social functioning, and concentration, persistence, or pace. (PageID 417). She also opined that Plaintiff was moderately limited in her ability to maintain attention and concentration for extended periods; perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; interact appropriately with the general public; accept instructions and respond appropriately to criticism from supervisors; and respond appropriately to changes in the work setting. (PageID 421-422). Dr. Kahn opined that Plaintiff "retains the capacity to learn and perform simple and moderately complex tasks in a routine and predictable environment where contact w/ others is occasional and superficial." (PageID 424). Dr. Kahn's assessment was affirmed on May 19, 2010 by Dr. Bonnie Katz, another non-examining reviewer. (PageID 455).
On August 13, 2009, Dr. Aivars Vitols, an orthopedic surgeon, evaluated Plaintiff at the request of the State agency. Dr. Vitols observed that Plaintiff had an antalgic gait and favored her right leg. She had some problems with changing from a seated position to a standing position. (PageID 429). She could not perform heel-to-toe walking. She had quad weakness of the left knee. He also observed, "[t]here is a lateral pivotal shift with a +2 Lachman's. There is a genu recurvatum of both knees....The left knee reveals global tenderness with no instabilities....There is a palpable defect in the right patella from previous surgical intervention." (PageID 430). The diagnosis was early osteoarthritis bilaterally of the knees and right knee instability. He opined that Plaintiff had "limited capabilities for standing or walking for prolonged periods of time because of chronic knee pain and instability...." (Id.)
Dr. Cindi Hill, a non-examining physician, reviewed the record on October 8, 2009. She opined that Plaintiff could occasionally lift/carry up to twenty pounds and frequently lift/carry up to ten pounds. She could stand/walk for two hours out of eight and sit for six hours out of eight. (PageID 437). She could occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. She was never to climb ladders, ropes, or scaffolds. (PageID 438). Dr. Hill did not complete the RFC; she adopted a drafted RFC with one change. (PageID 444). The RFC assessment was affirmed on April 27, 2010 by Dr. Esberdado Villanueva, another non-examining State agency reviewer. (PageID 454).
Dr. Vitols saw Plaintiff on January 15, 2010 for left wrist pain at the request of Dr. Kominiarek. She had fallen on her wrist when her knees gave out. She had a history of a left wrist fracture with an open reduction internal fixation in 1990. (PageID 492). A March 26, 2010 right knee x-ray showed post-surgical changes but no fracture. (PageID 491). A left wrist MRI revealed only a small ganglion and post-surgical changes. (PageID 489-490). On April 14, 2010, she was diagnosed with a chronically strained thumb. (PageID 488). Dr. Vitols prescribed a cane as well as a hinged knee brace with medial straps for Plaintiff to protect her medial knee. On exam, she had a +1 positive Lachman's, posteromedial instability, joint effusion, and "relative medial collateral laxity associated with pain over the entire medial joint line." (PageID 487).
Plaintiff underwent an Adult Diagnostic Assessment on July 12, 2010. She was sexually abused as a child. (PageID 519). She was "adjudicated unruly, made a ward of the state, and lived in the local children's home from ages 14-18." (PageID 521). Plaintiff was diagnosed with depressive disorder, PTSD, and borderline personality disorder. (PageID 524). Plaintiff's GAF score was 55. (PageID 525). On July 14, 2010, it was noted that she had "poor insight and judgment into her emotional disorder and effective treatment regime." (PageID 517). On mental status exam she was unkempt, disheveled, anxious, restless, and demanding. (PageID 513). During treatments sessions she was described as labile, self-absorbed, guarded, irritable, unfocused, avoiding, and hostile. (PageID 500, 506, 511). Plaintiff was discharged on March 9, 2011 because she did not return for treatment after October 15, 2010. (PageID 496).
On June 13, 2011, Dr. Paula Daugherty completed interrogatories. Dr. Daugherty stated that in 2006 she was a clinical supervisor at Samaritan Behavioral Health. She had Plaintiff in an anger management group for eight sessions. She also supervised Plaintiff's mental health therapist. In May 2011, she started treating Plaintiff individually and had seen her in three sessions. (PageID 528). Plaintiff was treated for anger management, impulsivity, anxiety, depression, and possible bipolar disorder. Dr. Daugherty opined that the combination of Plaintiff's physical and mental impairments was greater than the sum of the parts. (PageID 530). Dr. Daugherty stated:
She is impulsive disinhibited, extremely anxious, & depressed. These issues prevent her from acting "stable" and having appropriate social interactions. She is easily distracted which impacts task persistence, concentration which impedes her ability to learn new tasks. In summary, her psychiatric issues impact her cognitive presentation and abilities significantly. These impairments also impact her perception of pain and her ability to cope with even minor stressors. These factors make her more impaired than her physical issues alone.(PageID 530-531).
Dr. Daughety opined that Plaintiff was unable to be prompt and regular in attendance; respond appropriately to supervision, co-workers, and customary work pressures; withstand the pressure of meeting normal standards of work productivity and work accuracy without significant risk of physical or psychological decompensation or worsening of her physical and mental impairments; sustain attention and concentration on her work to meet normal standards of work productivity and work accuracy; understand, remember, and carry out work instructions without requiring very close supervision; behave in an emotionally stable manner; relate predictably in social situations; demonstrate reliability; maintain concentration and attention for extended periods; perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; complete a normal work day and work week without interruption from psychologically and/or based symptoms and perform at a consistent pace without unreasonable numbers and length of rest periods; respond appropriately to changes in a routine work setting; get along with co-workers or peers without unduly distracting them or exhibiting behavior extremes; sustain ordinary routine without special supervision; work in coordination with, or in proximity to, others without being unduly distracted by them; and accept instructions and respond appropriately to criticism from supervisors. (PageID 532-537). She had a moderate limitation in her daily activities and an extreme restriction in maintaining social functioning. (PageID 538). She had marked deficiencies in her concentration, persistence, or pace. (PageID 537-538). Plaintiff had poor to no ability to deal with the public, deal with work stresses, behave in an emotionally stable manner, relate predictably in social situations, and demonstrate reliability. (PageID 539, 561). Dr. Daugherty also stated, "[t]he patient is fragile psychologically & is on the border of stability. Her ability to handle the stress of a normal work setting is very poor (prognosis)." (PageID 533). Plaintiff's "coping skills are poor—when pushed to produce she would eventually decompensate." (Id.)
Plaintiff's treating physician, Dr. Robert Kominiarck, completed interrogatories on June 14, 2011. He stated that he had treated Plaintiff "too long" and that her medical problems were too long to summarize. (PageID 543-544). Dr. Kominiarck opined that Plaintiff was unable to be prompt and regular in attendance, withstand the pressure of meeting normal standards of work productivity and work accuracy without significant risk of physical or psychological decompensation or worsening of her physical and mental impairments; demonstrate reliability; and complete a normal workday and work week without interruption from psychologically and/or physically based symptoms and perform at a consistent pace without unreasonable numbers and length of rest periods. (PageID 544). He opined that Plaintiff could occasionally and frequently lift/carry up to ten pounds and could stand/walk for less than one hour out of eight and uninterrupted for less than one hour. (PageID 546). She could sit for less than one hour out of eight, and was never to climb, balance, stoop, crouch, kneel, and crawl. (PageID 547). Plaintiff was limited in her ability to reach, feel, and push/pull, and was also restricted from heights, moving machinery, chemicals, temperature extremes, dust, noise, fumes, humidity, and vibration. (PageID 549-550). Dr. Kominiarck opined that Plaintiff could not perform even sedentary work. (PageID 550).
At the Appeals Council, additional evidence was submitted. Specifically, a September 7, 2010 cervical spine x-ray revealed a "straightening of the cervical spine likely due to positioning or muscle spasm." (PageID 557). It also showed some grade 1 anterolisthese of C2 on C3 and some right neuroforaminal stenosis at C3-4. (Id.) Left leg x-ray demonstrated no abnormality. (PageID 559). X-rays of Plaintiff's lumbar spine showed mild degenerative changes at L2-3 and L3-4. (PageID 560). Office notes from the Orthopedic Clinic at Cassano Health Care dated July 28, 2011 was submitted. On exam, Plaintiff had tenderness, positive anterior drawer test, positive Lachman, gross instability of her knee with buckling and giving out on maneuvers causing falls, and positive pivot test. (PageID 563).
Dr. Kominiarek's office notes, dated January 15, 2008 through December 8, 2011, were also submitted to the Appeals Council. Plaintiff was treated for joint knee pain, osteoarthritis, headaches, panic disorder, explosive personality disorder, PTSD, and generalized anxiety disorder. On exams, Plaintiff had moderate to severe soreness of her knees; tenderness of her knees; was agitated, depressed, angry, anxious, irritable, negative, and manic. She was treated with toradol injections; triple injections of decadron, kenalong, and depomedrol; injections of promethazine; pain medications; antidepressants, and counseled with coping techniques. An August 8, 2011 MRI of her right knee revealed a possible "tear involving the body of the lateral meniscus." (PageID 951-952).
(PageID 570, 575, 580, 585, 591, 596, 606, 614-615, 619, 624, 629, 635, 640, 645-646, 651, 657, 662, 663, 667-668, 672-674, 684, 692, 700, 706, 711, 716, 721, 726, 731, 736, 741, 746, 751, 756, 761, 764, 769, 774, 779, 805-806, 813-814, 818-819, 824, 829, 834, 836, 840, 845-846, 851, 854, 859, 864, 871, 877, 884, 891, 897, 905, 912, 919, 926, 931, 936, 941, 945-946).
(PageID 569, 574, 579, 585, 590, 595, 601, 605, 614, 619, 623, 628, 644, 656, 661, 666, 671,683, 691, 699, 705, 710, 716, 720, 725, 730, 735, 740, 745, 750, 755, 760, 768, 773, 778, 783, 805, 813, 818, 823, 828, 834, 839, 844-845, 850, 858, 863, 868, 870, 876-877, 883-884, 890, 896-897, 904-905, 911-912, 918-919, 925-926, 930-931, 935- 936, 940-941, 946).
(PageID 570, 575-576, 580-581, 586, 591, 596-597, 602, 607-608, 615, 624-625, 630, 635, 640, 645-646, 651-652, 657, 662, 667, 685, 693, 701, 706, 711, 716, 721-722, 726, 731, 736, 741, 746-747, 751-752, 756-757, 761-763, 769, 774, 779, 806-807, 814, 819, 824-825, 829-830, 835-836, 840-841, 846, 851-852, 854, 859, 864, 871, 877-878, 884, 891, 898, 905-906, 912-913, 919-920, 926, 931-932, 936-937, 941-942, 947-949).
B.
First, Plaintiff claims that the ALJ erred in finding that her impairment did not meet or equal Listing 1.02. Specifically, the ALJ concluded that Plaintiff's knee impairments did not meet Listing 1.02A or B because "the evidence does not contain evidence of a major dysfunction of a major peripheral weight-bearing joint, resulting in the inability to ambulate effectively." (PageID 89). The ALJ noted that while Plaintiff "began using a cane in 2010...she does not require an assistive device that limits the functioning of both upper extremities... Regarding the wrist pain, records show the claimant received a splint for her hand and never complained of further pain since then..." (Id.) The ALJ did note that "[s]omeone with obesity and arthritis affecting a weight-bearing joint may have more pain and limitation than might be expected from arthritis alone." (Id.)
Listing 1.02 states:
OR1.02 Major dysfunction of a joint(s) (due to any cause): Characterized by gross anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis, instability) and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and findings on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joint(s). With:A. Involvement of one major peripheral weight-bearing joint (i.e., hip, knee, or ankle), resulting in inability to ambulate effectively, as defined in 1.00B2b;
B. Involvement of one major peripheral joint in each upper extremity (i.e., shoulder, elbow, or wrist-hand), resulting in inability to perform fine and gross movements effectively, as defined in 1.00B2c.
1.00B2b states:
b. What We Mean by Inability To Ambulate Effectively(Id.) Here, the ALJ found that Plaintiff had not shown that she met the criteria for ineffective ambulation. (PageID 89).
(1) Definition. Inability to ambulate effectively means an extreme limitation of the ability to walk; i.e., an impairment(s) that interferes very seriously with the individual's ability to independently initiate, sustain, or complete activities. Ineffective ambulation is defined generally as having insufficient lower extremity functioning (see 1.00J) to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities. (Listing 1.05C is an exception to this general definition because the individual has the use of only one upper extremity due to amputation of a hand).
(2) To ambulate effectively, individuals must be capable of sustaining a reasonable walking pace over a sufficient distance to be able to carry out activities of daily living. They must have the ability to travel without companion assistance to and from a place of employment or school. Therefore, examples of ineffective ambulation include, but are not limited
to, the inability to walk without the use of a walker, two crutches or two canes, the inability to walk a block at a reasonable pace on rough or uneven surfaces, the inability to use standard public transportation, the inability to carry out routine ambulatory activities, such as shopping and banking, and the inability to climb a few steps at a reasonable pace with the use of a single hand rail. The ability to walk independently about one's home without the use of assistive devices does not, in and of itself, constitute effective ambulation.
Pursuant to Section 404.1526, an impairment will be found "medically equivalent to a listed impairment in appendix 1 if it is at least equal in severity and duration to the criteria of any listed impairment." To meet the equivalency requirements, the claimant does not have to meet the "specific, required list-level findings for major dysfunction of a joint" as argued by the Defendant. Accordingly, as to Section 404.1526, a claimant meets the equivalency requirements if the claimant has "findings that are at least of equal medical significance to the required criteria." Id.
Defendant contends that the length of treatment between Plaintiff's knee treatment negates a finding that her impairments equaled the Listing. (PageID 998). However, on January 15, 2010, Dr. Vitols prescribed a cane as well as a hinged knee brace with medial straps for Plaintiff to protect her medial knee. On exam, she had a +1 positive Lachman's, posteromedial instability, joint effusion, and "relative medial collateral laxity associated with pain over the entire medial joint line." (PageID 487). The overwhelming medical evidence supports a finding that Plaintiff's knee impairments, wrist impairment, and obesity at least equaled the Listing on January 15, 2010.
Moreover, the evidence submitted to the Appeals Council supports the same conclusion. (PageID 1000). On July 28, 2011, Plaintiff was seen at Cassano Health Care. On exam she had tenderness, positive anterior drawer test, positive Lachman, gross instability of her knee with buckling and giving out on maneuvers causing falls, and positive pivot test. (PageID 563). She was sent out for a MRI. (PageID 564). An August 8, 2011 MRI of her right knee revealed a possible "tear involving the body of the lateral meniscus." (PageID 951-952). This evidence is relevant because it shows that Plaintiff's knee impairment had worsened prior to the ALJ's decision. Plaintiff had just cause for not submitting the evidence to the ALJ because the ALJ's decision came out the same day Plaintiff was seen at Cassano Health Care.
Evidence first submitted to the Appeals Council may be considered only to determine whether the case should be remanded under sentence six of 42 U.S.C. Section 405(g). Cline v. Comm'r of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996). Plaintiff bears the burden of showing that all of the three requirements are met: newness, materiality, and good cause for presenting the evidence after the ALJ's decision. Allen v. Comm'r of Soc. Sec., 561 F.3d 646, 653 (6th Cir. 2009). In order to be material, the reports must relate to the claimant's condition on or before the period relevant to the ALJ's decision and be likely to result in a significant change in the ALJ's decision. Casey v. Sec'y of Health & Human Servs, 987 F.2d 1230, 1233 (6th Cir. 1993).
Accordingly, the Court finds that there was in fact substantial evidence supporting a finding that Plaintiff met Listing 1.02 as of January 15, 2010.
C.
Second, Plaintiff maintains that the ALJ erred in rejecting the opinion of her treating physicians. Specifically, Plaintiff maintains that the ALJ erred in rejecting the opinions of Dr. Kominiarek, Plaintiff's treating physician, and Dr. Daugherty, her treating psychologist, and in relying instead on the opinions of the non-examining state agency reviewers. (PageID 95-96).
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.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).
Defendant maintains that the ALJ properly gave great weight to the findings of Dr. Vitols. Dr. Vitols only treated Plaintiff once and he saw her at the request of Plaintiff's treating physician, Dr. Kominiarek. Dr. Vitols gave no opinion as to Plaintiff's RFC or her disability. However, even Dr. Vitols's findings support a determination that Plaintiff was unable to ambulate effectively. Defendant also contends that the ALJ properly gave great deference to the opinions of the non-examining state agency reviewers. However, the reviewers failed to review all of the medical evidence.
The first reviewer reviewed only seven exhibits and the second reviewer reviewed an additional three exhibits. (PageID 184, 195).
Defendant claims that the opinion of Dr. Kominiarek was not supported by the medical evidence. The ALJ considered Dr. Kominiarek's opinion that Plaintiff had extreme limits on lifting, standing, walking, and sitting, postural activities, and environmental exposures that resulted in a capacity for less than sedentary work. (PageID 94 referring to Exhibit B23F at 5-9). On each of these reports, when asked to provide reasons for the assessed restrictions, the doctor did not give specific medical findings even though space was provided to do so. (PageID 398, 544-550). Rather, the doctor either listed diagnoses (PageID 398), left the space blank, or gave only vague, unspecific responses such as "PE" (presumably standing for "physical examination") or "too long" without any explanation regarding the nature of these findings. (PageID 54450). To be given controlling weight, a treating medical source's opinion must be supported by medically acceptable clinical and laboratory diagnostic techniques. 20 C.F.R. § 404.1527. The ALJ noted that she rejected Dr. Kominiarek's conclusions because he gave very little explanation of the evidence he relied on to form those opinions and gave no objective support for his medical opinions. Ultimately, the ALJ's explanation for declining to give Dr. Kominiarek's opinion controlling weight is supported by the record evidence.
Dr. Kominiarek was Plaintiff's long term treating physician and had treated Plaintiff since at least August 6, 2007. (PageID 399, 1006-1008).
However, unlike Dr. Kominiarek, the Court finds that Dr. Daugherty's opinion was in fact supported by the overwhelming evidence in the record. The ALJ erred in rejecting Dr. Daughtery's opinion because she found it was based on Plaintiff's subjective complaints. While Dr. Daughtery's opinion was based in part on Plaintiff's subjective complaints, it was also based on clinical findings. For example, Plaintiff was observed to be anxious, agitated, impulsive, restless, with loss of interests and to have an impairment in her attention/concentration. (PageID 351). It was noted that the OOM results indicated "low self-esteem and depression-she does not have a positive attitude toward herself, not confident about decisions she makes, not able to overcome barriers, and is not optimistic about the future." (PageID 348). On July 14, 2010 it was noted that Plaintiff had "poor insight and judgment into her emotional disorder and effective treatment regime." (PageID 517). During treatment sessions she was described as labile, self-absorbed, guarded, irritable, unfocused, avoiding, and hostile. (PageID 500, 506, 511). These clinical findings support Dr. Daugherty's disability finding.
Dr. Daugherty's opinion was also supported by the opinion and findings of Dr. Ward, who evaluated Plaintiff on July 2, 2009, at the request of the state agency. Dr. Ward stated that Plaintiff "did not appear to exaggerate or minimize her difficulties." (PageID 402). Plaintiff was observed to be depressed, agitated, tearful, anxious, and apprehensive. (Id.) Dr. Ward diagnosed bipolar disorder, pain disorder with agoraphobia, and personality disorder. Dr. Ward opined that Plaintiff's ability to deal with work stress was moderately to markedly limited. (PageID 404). This is consistent with Dr. Daugherty's finding that "[t]he patient is fragile psychologically & is on the border of stability. Her ability to handle the stress of a normal work setting is very poor (prognosis)." (PageID 533). Dr. Ward found that Plaintiff's "coping skills are poor - when pushed to produce she would eventually decompensate." (Id.)
The ALJ failed to explain why she rejected Dr. Ward's opinion that Plaintiff had a marked limitation in her ability to deal with work stress.
Additionally, the ALJ erred in relying on the fact that Plaintiff failed to follow up with recommendations made by her treating physician, failed to follow-up with her therapist's instructions; and stopped going to therapy altogether to find that she was not disabled. (PageID 91). "ALJ's must be careful not to assume that a patient's failure to receive mental-health treatment evidences a tranquil mental state. For some mental disorders, the very failure to seek treatment is simply another symptom of the disorder itself." White v. Comm'r of Soc. Sec., 572 F.3d 272 (6th Cir. 2009). Treatment notes show that when therapists left the center, Plaintiff felt abandoned and dropped out of treatment or missed many appointments. It was also noted that "due to her affective instability, her chart was left open despite her non-compliance with the attendance policy." (PageID 376). Accordingly, the ALJ erred in relying on Plaintiff's lack of treatment to find that she was not disabled.
"Appellant may have failed to seek psychiatric treatment for his mental condition, but it is a questionable practice to chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation." Blankenship v. Bowen, 874 F.2d 1116, 1124 (6th Cir. 1989).
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Moreover, the ALJ erred in substituting her opinion for both the treating and reviewing psychologists. The ALJ found that Plaintiff had only a mild restriction in her daily activities, a moderate restriction in her social functioning, and a mild restriction in her concentration, persistence, or pace. (PageID 89-90). However, she cites no medical source opinion for these findings. Moreover, the ALJ stated "I give limited weight to the treatment notes of the claimant's treating facilities, such as the Kettering Medical Center, Samaritan Behavioral Health, Wayne Hospital and Grandview Hospital, and the treating physicians...I give each of these opinions limited weight to the extent they are inconsistent with the above assessed residual functional capacity." (PageID 96). However, the ALJ gives no contradictory medical opinion by any examining source to support her RFC assessment. "[A]n ALJ must not substitute his own judgment for a physician's opinion without relying on other evidence or authority in the record." Clifford v. Apfel, 227 F.2d 863, 870 (7th Cir. 2000).
Finally, the ALJ also erred in relying on Plaintiff's daily activities to find that she could perform work activity. Specifically, the ALJ found that "[t]he claimant herself testified she worked with the public and took care of her children after the doctor and social workers' assessments." (PageID 96). First, Plaintiff has not performed work activity since 2005. (PageID 258). Moreover, she only has one child that she cares for and she testified that the child's father took the child for three to four days a week or more, if she needed the help and neighbors and family members drove her where she needed to go. (PageID 116) The child's grandmother did her grocery shopping, and the baby's grandmother and neighbor mopped and vacuumed her floors. Plaintiff made a microwaved meal for her child when she had her, watched her play with her toys, and gave her a bath once a week. (PageID 126-127). The ALJ does not contend and the record does not suggest that Plaintiff could do any of these activities on a sustained basis. See SSR 96-8p.
Thus, the ALJ erred in rejecting the opinion of Dr. Daugherty, Plaintiff's treating psychologist. Accordingly, the ALJ's opinion was not supported by substantial evidence.
III.
When, as here, the non-disability determination is not supported by substantial evidence, the Court must decide whether to reverse and remand the matter for rehearing or to reverse and order benefits granted. The Court has authority to affirm, modify or reverse the Commissioner's decision "with or without remanding the cause for rehearing." 42 U.S.C. § 405(g); Melkonyan v. Sullivan, 501 U.S. 89, 100 (1991).
Generally, benefits may be awarded immediately "only if all essential factual issues have been resolved and the record adequately establishes a plaintiff's entitlement to benefits." Faucher v. Sec'y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994); see also Abbott v. Sullivan, 905 F.2d 918, 927 (6th Cir. 1990); Varley v. Sec'y of Health & Human Servs., 820 F.2d 777, 782 (6th Cir. 1987).
The Court may award benefits where the proof of disability is strong and opposing evidence is lacking in substance, so that remand would merely involve the presentation of cumulative evidence, or where the proof of disability is overwhelming. Faucher, 17 F.3d at 176; see also Felisky, 35 F.3d at 1041; Mowery v. Heckler, 772 F.2d 966, 973 (6th Cir. 1985). Such is the case here.
Here proof of disability is overwhelming and remand will serve no purpose other than delay. As fully recited here, in view of the extensive medical record evidencing disability, and the credible and controlling findings and opinion of Dr. Daugherty, 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 Anna Johnson was not entitled to disability insurance benefits and supplemental security income is hereby found to be NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, and it is REVERSED; and this matter is REMANDED to the Commissioner for an immediate award of benefits beginning January 15, 2010. The Clerk shall enter judgment accordingly, and this case shall be CLOSED.
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Timothy S. Black
United States District Judge