Opinion
Case No. 3:13-cv-218
07-24-2014
TED LIETTE, Plaintiff, v. CAROLYN COLVIN, ACTING 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 not entitled to disability insurance benefits ("DIB"). (See Administrative Transcript ("PageID") (PageID 45-63) (ALJ's decision)).
I.
Mr. Liette filed for DIB on October 5, 2006, alleging disability as of July 6, 2006 due to lumbar degenerative disc disease and depression. (PageID 227). This application was denied initially and upon reconsideration. (PageID 166, 170). Pursuant to a timely request, a hearing was held in Dayton, Ohio on September 21, 2009. (PageID 105-132). ALJ Amelia Lombardo denied Mr. Liette's claim for benefits in a decision dated November 10, 2009. (PageID 137-161). The Appeals Council remanded the case back to the ALJ on March 14, 2011. (PageID 162-163). Another hearing was held on August 18, 2011. (PageID 71-104). In a decision dated October 19, 2011, the ALJ denied Mr. Liette's claim for benefits again. (PageID 42-70). The Appeals Council issued an order on May 10, 2013 declining to review the decision. (PageID 32).
At the time of Plaintiff's alleged onset date, he was 48 years old and was considered to be a "younger person" for Social Security purposes. See 20 C.F.R. §§ 404.1563(c); 416.963(c). On January 1, 2008, Plaintiff turned 50 and became a person "closely approaching advanced age." See 20 C.F.R. § 404.1563(d). Plaintiff subsequently changed age category when, on January 1, 2013, he turned 55 and became a person "of advanced age." See id. § 404.1563(e). Plaintiff has an associate degree from Edison Community College. (PageID 822). His past relevant work included work as a stock clerk. (PageID 62).
Past relevant work is defined as "jobs performed within the 15 years just preceding the date of the claimant's disability." 20 C.F.R. §§ 404.1574(b), 416.974(b)(4).
The ALJ's "Findings," which represent the rationale of her decision, were as follows:
1. Mr. Liette meets the insured status requirements of the Social Security Act through December 31, 2011.(PageID 47-63).
2. Mr. Liette has not engaged in substantial gainful activity since July 6, 2006, the alleged onset date (20 C.F.R. § 404.1571, et seq.).
3. Mr. Liette has the following severe impairments: lumbar degenerative disc disease, some osteoarthritis of the thoracic spine, and obesity (20 C.F.R. § 404.1520(c)).
4. Mr. Liette does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526).
5. After careful consideration of the entire record, the undersigned finds that Mr. Liette has the residual functional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b) except he must be permitted the opportunity to change positions between sitting and standing at thirty-minute intervals and is limited to occasional stooping and crouching.
6. Mr. Liette is unable to perform any past relevant work (20 C.F.R. § 404. 1565).
7. Mr. Liette was born on January 1, 1958 and was 48 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date. Mr. Liette subsequently changed age category to closely approaching advanced age (20 C.F.R. § 404.1563).
8. Mr. Liette has at least a high school education and is able to communicate in English (20 C.F.R. § 404.1564).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that Mr. Liette is "not disabled," whether or not Mr. Liette has transferable job skills (See Social Security Ruling 82-41; 20 C.F.R. Part 404, Subpart P, Appendix 2).
10. Considering Mr. Liette's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that Mr. Liette can perform (20 C.F.R. §§ 404.1569, 404.1569(a)).
11. Mr. Liette has not been under a disability, as defined in the Social Security Act, from July 6, 2006, through the date of this decision (20 C.F.R. § 404.1520(g)).
In sum, the ALJ concluded that Plaintiff was not under a disability as defined by the Social Security Regulations, and, therefore, was not entitled to DIB. (PageID 63).
On appeal, Plaintiff argues that: (1) the ALJ erred in failing to give proper weight and deference to the opinions of his treating physicians, (2) the ALJ erred in failing to properly consider all of his physical and psychological impairments and the combined impact thereof, and (3) the ALJ erred in failing to properly consider his credibility. The Court will address each error in turn.
II.
The Court's inquiry on appeal is to determine whether the ALJ's non-disability finding is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). In performing this review, the Court considers the record as a whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence supports the ALJ's denial of benefits, that finding must be affirmed, even if substantial evidence also exists in the record upon which the ALJ could have found plaintiff disabled. As the Sixth Circuit has explained:
The Commissioner's findings are not subject to reversal merely because substantial evidence exists in the record to support a different conclusion. The substantial evidence standard presupposes that there is a "zone of choice" within which the Commissioner may proceed without interference from the courts. If the Commissioner's decision is supported by substantial evidence, a reviewing court must affirm.Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994).
The claimant bears the ultimate burden to prove by sufficient evidence that he is entitled to disability benefits. 20 C.F.R. § 404.1512(a). That is, he must present sufficient evidence to show that, during the relevant time period, he suffered impairment, or combination of impairments, expected to last at least twelve months, that left him unable to perform any job in the national economy. 42 U.S.C. § 423(d)(1)(A).
A.
The record reflects that:
1. Mr. Liette's Testimony and Background
Plaintiff worked at Kroger from 1978 until 2006. (PageID 227, 312). His duties included stocking shelves and unloading semi-trucks. (Id.) Mr. Liette had a herniated disc in 1998, participated in physical therapy, and was able to return to work. (PageID 111). Around 2004, he started having back problems again, but did not receive any further treatment until 2006, when he began receiving treatment at a pain clinic. (PageID 111-112). He had epidurals that helped with his legs, but not with his back pain. (PageID 112). In his last couple of years working at Kroger, Plaintiff had to take frequent breaks, co-workers would cover for him, and the standing and lifting just became too much for him to continue working, so he resigned. (PageID 115). He stopped working due to a combination of depression and back problems. (PageID 117).
Plaintiff testified that his depression has been improving, but he still has "meltdowns" twice a month, lasting two to three days. (PageID 118-119). During these periods he does not get dressed, does not care about his hygiene, and does not get out of bed. (PageID 118-119).
Plaintiff experiences back pain when doing anything physical, such as taking out a bag of trash. (PageID 119). Even completing light household chores such as loading the dishwasher or sweeping, is too difficult. (PageID 120). He can walk approximately 50-60 yards, stand 10-15 minutes, and sit 10-15 minutes, at one time. (Id.) He also testified that he could not lift more than 10 pounds. (Id.) Plaintiff leaves his house once or twice a week, spends 1-2 hours on the computer, does 1-2 hours of chores, rarely speaks with neighbors, and must lie down frequently. (PageID 123-124).
Plaintiff experiences side-effects from his medications. (PageID 124-125). He also has a low energy level, crying spells a couple of times a week, and lies down 5-6 times during the afternoon for 30-45 minutes each time. (PageID 125-126). Plaintiff stood two times during his 42 minute hearing. (PageID 127).
A vocational expert ("VE"), Eric Pruitt, testified at Plaintiff's first hearing. (PageID 127). Mr. Pruitt testified that an individual could miss work 6-12 times a year. (PageID 130). He further testified that if an individual was absent more than 3 times a month, there would be no available jobs. Moreover, if an individual were limited to working a total of 4-6 hours per day, there would be no available jobs. (PageID 130-131).
Plaintiff and VE Suman Srinivasan testified at his second hearing on August 18, 2011. (PageID 73). Plaintiff testified about his depression and the "up and down days." (PageID 76). Plaintiff's medication helped some days, but he still had periods of bad days that last for several days. (PageID 77). He described a "blue day" as not wanting to do anything, feeling depressed, isolated, and withdrawn. (Id.) Plaintiff testified that these episodes occur 2-3 times per month. (Id.)
Plaintiff also testified about his back. (PageID 77). He has pain from his low back down his calves, sometimes to his feet. For the pain, he was taking Naproxen, Aleve, and Skelaxin. (Id.) Plaintiff takes three-to-six Aleve a day, but if it is a really bad day, he will take a Skelaxin and go to sleep. (PageID 78). He testified that he needs to take the Skelaxin, which causes drowsiness, three-to-four days a week. (PageID 83). He rated his pain level on a 1-10 pain scale, as an 8. (Id.)
Counsel asked the VE what jobs would be available if an individual was limited to lifting 10 pounds occasionally; sitting a total of eight hours a day; occasional climbing and balancing; never stooping, crouching, kneeling, or crawling; occasional reaching; occasional handling of objects; and occasional pushing and pulling. This hypothetical ruled out all light jobs, and it only allowed for approximately 200 sedentary jobs. (PageID 99). The VE testified that if an individual were absent 4-9 days out of the month, there would not be any competitive work available. (PageID 101).
"Other courts have refused to find that small numbers of jobs identified by a VE represent a 'significant number' of jobs in the economy." See West v. Chater, No. C-1-95-739, 1997 WL 764507, at *2-3 (S.D. Ohio Aug. 21, 1997) (as a matter of law, 100 jobs in the local economy is not significant).
2. Medical Evidence of Record
a. Physical Impairments
Mr. Liette underwent an MRI of the lumbar spine on September 7, 2006. (PageID 351). The diagnosis was multi-level degenerative changes involving L3-L4 through L5-S1; grade 1 anterior spondylosisthesis of L5 on S1; left paracentral disc herniation at L4-L5; right paracentral disc herniation at L3-L4; and severe facet degenerative changes at L5-S1. (Id.) The combination of these changes results in narrowing of the central spinal canal at L5-S1. (Id.)
Mr. Liette participated in fifteen physical therapy sessions from September 25, 2006 through November 16, 2006. (PageID 378-402). He reported having increased pain for the last year and a half, and experienced increased tingling, numbness, and pain down his left leg to the back of his calf. (PageID 399). He demonstrated an increased lordosis in the lumbar spine, and appeared rotated to the left. Plaintiff had marked muscle tone in the lumbar paraspinal bilaterally with significant muscle tone noted, and exhibited increased tenderness at L4-L5, L5-S1 facet joints bilaterally. (Id.)
Lordosis is an excessive curvature of the lower spine that results in a swayback appearance. http://www.nlm.nih.gov/medlineplus/ency/article/003278.htm (last visited July 24, 2014).
At discharge, three of Plaintiff's four goals were not met. These goals were to decrease his pain, increase straight leg raising, and tolerate standing 1-2 hours. The only partially met goal was to increase hip extension strength. (PageID 378).
Mr. Liette consulted with a neurosurgeon, Dr. Cynthia Africk, in October and November 2006. (PageID 355-358). Plaintiff told Dr. Africk that his back had been bothering him for the last year, and in the last four months it had begun traveling down his back into the side of his calf. Upon physical exam, he had hypalgesia in the left lateral calf and thigh, and low back pain with Patrick's maneuver, which is often consistent with sacroiliitis. (PageID 357).
Hypalgesia is diminished sensitivity to pain. http://www.merriam-webster.com/medical/hypalgesia (last visited July 24, 2014).
Sacroiliitis is inflammation of the joints connecting the lower spine with the pelvis. http://www.merriam-webster.com/medlineplus/Sacroiliitis (last visited July 24, 2014).
Dr. Africk determined that Plaintiff had a disc herniation at L3-L4 and L4-L5, with fluid in the disc herniation. He also had spondylosisthesis at L5-S1. (PageID 356). Dr. Africk felt the case was very complicated and that Mr. Liette needed a fusion at the L5-S1 level. (PageID 355). However, she determined that if she performed a fusion at that level, it would cause worsening of the disc herniation of the two levels above. Moreover, she felt that he would need a fusion from L3 to the sacrum, removing all the discs and putting in a bone graph. She felt the surgery was extensive and Plaintiff could just trade one type of pain for another type of pain. Therefore, she referred him to Dr. Lehner, a neurosurgeon, for evaluation and treatment.
Spondylosisthesis occurs when a vertebra slips forward, is most common in the lower spine, causes compression of the nerve roots, and is another term for spinal listhesis. http://www.merriam-webster.com/medlineplus/Spondylolisthesis (last visited July 24, 2014).
Mr. Liette treated with Dr. Lehner from November 20, 2006 through July 7, 2011. (PageID 780-788). Dr. Lehner diagnosed Mr. Liette with spondylosisthesis. He found that Mr. Liette had problems in three areas, which made his situation complicated, but could require a fusion of all areas in the future. (PageID 413).
Mr. Liette presented to the Miami Valley Hospital Pain Center on December 11, 2006 for an initial assessment. (PageID 484-486). Also in December 2006, Dr. Townsend Smith administered left L4-L5, left L5-S1 transforaminal steroid injections. (PageID 469, 471). Plaintiff's pain improved with the epidural steroid injections and they proceeded with bilateral lumbar facet joint injections. (PageID 468).
On November 19, 2007, Mr. Liette underwent another lumbar MRI, which revealed problems at several levels. (PageID 533-534). Most significantly, at L3-L4, there was a prominent well circumscribed lesion posterior to the disc space impressing and displacing the nerve roots leftward, which demonstrated low T1 and bright T2 signal and likely reflects a prominent sequestered herniated disc.
A bilateral lower extremity EMG dated November 21, 2007, showed a right S1 radiculopathy. There was evidence of a mild, less diffuse, involvement at the left lower limb in the S1 distribution. (PageID 654-657).
Thoracic x-rays dated March 11, 2010, showed early thoracic spine degenerative changes. (PageID 661). Lumbar x-rays dated February 10, 2011, showed anterior subluxation at L5 on S1, measured at about 7 mm. (PageID 662).
Mr. Liette underwent a thoracic MRI on June 30, 2011. (PageID 775-776). Final impression was a 7.8 x 5.9 mm extruded disc fragment in the right ventral spinal canal at T6-T7 resulting in ventral thecal sac abutment without focal cord compression. There was also mild right posterior paracentral disc osteophyte complex formation at T6-T7 and T7-T8. (PageID 776).
b. Psychological Impairments
The record contains treatment notes with a psychiatrist, Dr. Keith Ashbaugh, from April 21, 2005 through September 27, 2006. (PageID 419). Mr. Liette reported difficulty with depression on and off for the last 4-5 years. He described feelings of dysphoria as well as anhedonia. (PageID 440). Plaintiff was irritable and even hateful at times. (Id.) His motivation was poor, he had difficulty sleeping, and his energy and concentration were both decreased. (Id.) He missed a number of days from work due to depression, and had feelings of worthlessness and hopelessness. (PageID 440-441). On September 27, 2006, Dr. Ashbaugh gave Mr. Liette a sixty-day medical leave from work. (PageID 424).
Mr. Liette treated with psychologist Dr. Gordon Harris, from August 8, 2006 to June 21, 2011. (PageID 361-377, 494-507, 613-635, 668-699). Plaintiff presented with the following problems: nervousness; sleep; low energy; depression; sexual problems; stress; headaches; insomnia; nightmares; tiredness; lack of ambition; and problems with concentration. (PageID 376).
Dr. Pan, board certified psychiatrist, treated Mr. Liette from February 28, 2007 through April 11, 2011. (PageID 545-549, 560-564, 637-638, 664-667). On August 2, 2007, Mr. Liette reported to Dr. Pan that he had a two week period of depression in July. (PageID 546). On January 17, 2008, he was having difficulty sleeping at night and coming to grips with the reality that he will have to deal with depression most of his life. (PageID 545). On April 24, 2008, Mr. Liette's depression had increased. He was feeling moody, irritable, grouchy, wanted to be left alone, and had no interest in interacting or socializing with others. (PageID 564).
3. Opinion Evidence of Record
Esberdado Villanueva, M.D., evaluated the medical evidence of record on November 20, 2006. (PageID 403-411). He limited Mr. Liette to a reduced, light residual functional capacity ("RFC"). (PageID 404-407). Dr. Villanueva opined that Mr. Liette was credible. (PageID 408). On May 13, 2007, Dr. Anton Freihofner affirmed this opinion. (PageID 532).
RFC measures an individual's "ability to do physical and mental work activities on a sustained basis despite limitations from his impairments." 20 C.F.R. § 404.1545(a)(1).
On December 20, 2006, Alan Boerger, PhD., evaluated Mr. Liette for the Bureau of Disability Determination. (PageID 414). Mr. Liette informed Dr. Boerger that he has crying spells, trouble falling asleep, and has days he does not want to do anything. At times he will go 3-4 days where he will not shave or shower. He has feelings of hopelessness, no energy, and no interests in activities that he previously enjoyed doing. He does not have any sexual interest and he has anger problems. (PageID 416). He has trouble trusting people, primarily people he has worked with. (Id.) The examiner felt that Mr. Liette appeared rigid in his thinking. (PageID 417). Dr. Boerger diagnosed Major Depressive Disorder, single episode; severe without psychotic features; and assigned a Global Assessment of Functioning ("GAF") score of 49. (PageID 418). Dr. Boerger opined that Mr. Liette's ability to relate to others, including fellow co-workers and supervisors, is moderately to markedly impaired as a result of depression and reflected in a pattern of social withdrawal. He opined that Mr. Liette's ability to understand and follow directions is moderately impaired and his ability to perform simple repetitive tasks is mildly impaired. (Id.) Finally, he opined that Mr. Liette's ability to withstand the stress and pressures associated with day to day work activity is moderately to markedly impaired as a result of the depression and he has an extremely limited range of recreational and social activities. (Id.)
GAF is a system to subjectively evaluate the social, occupational, and psychological functioning of adults on a scale of 0 through 100. A score of 49 indicates severe dysfunction or impairment. Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. 2000) ("DSM-IV-TR").
Caroline Lewin, PhD., reviewed the medical evidence of record on December 27, 2006 and issued a psychiatric review technique form ("PRTF") and an "RFC." (PageID 450-466). Dr. Lewin opined that Mr. Liette was moderately limited. She concluded that Mr. Liette should be able to cope with simple instructions in a low stress work setting without a rapid production pace. (PageID 466).
Dr. Cheng Pan completed a teledictation report for the state agency on March 25, 2007. (PageID 477-489). Dr. Pan opined that Mr. Liette's depression was in remission and that his ability to tolerate stress and to include routine daily stressors and work stressors was fair. (PageID 489).
Gordon Harris, PsyD., completed a teledictation report for the state agency on April 6, 2007. He opined that Mr. Liette displayed depressed mood, anger, low energy level, and periodic hopelessness. (PageID 489). He stated that Mr. Liette had decreased persistence and decreased frustration tolerance. (Id.) Dr. Harris agreed with Dr. Pan that Plaintiff's symptoms responded to treatment. However, Dr. Harris felt that Mr. Liette's stress tolerance was still limited, both in general and in the workplace. (PageID 493).
Dr. William Trevino completed a telediction report for the state agency on March 23, 2007. (PageID 509-511). Dr. Trevino noted that Mr. Liette has a decreased range of motion and decreased strength of the back and lower extremities. He did not feel that Mr. Liette should do any heavy lifting, bending, twisting, or stand on concrete for prolonged periods. (PageID 511).
Dr. Cheng Pan completed interrogatories on January 20, 2008. (PageID 535-544). He opined that Mr. Liette:
could not be prompt in regular attendance; could not respond appropriately to supervision, co-workers, and customary work pressures; could not withstand the pressure of meeting normal standards of work productivity and work accuracy without significant risk of physical or psychological decompensation or worsening of his physical and mental impairments; could not sustain attention and concentration on his work to meet normal standards of work productivity and work accuracy; could not understand,(PageID 544).
remember, or carry out simple work instructions without requiring very close supervision; could not demonstrate reliability; could not maintain attention and concentration for extended periods; could not perform activities within a schedule; maintain regular attendance and be punctual within customary tolerances; could not complete a normal workday or workweek without interruption from psychologically and/or physically based symptoms and perform at a consistent pace without unreasonable numbers and length of rests; could not respond appropriately to changes in the work setting; could not get along with co-workers without unduly distracting them or exhibiting behavior extremes; could not sustain ordinary routine without special supervision; and could not accept instructions and respond appropriately to criticism from supervisors. (PageID 535-544). Finally, he opined Mr. Liette could probably work on a part-time basis, 4-6 hours total per day, since his symptoms of depression are in some control.
Gordon Harris, Ph.D., completed a mental impairment questionnaire on September 16, 2009. Dr. Harris opined that Mr. Liette would be absent more than three times a month due to psychological based symptoms. (PageID 652).
Dr. Townsend Smith completed a report on September 16, 2009. (PageID 659). Dr. Smith did not feel that Mr. Liette could perform full-time work activity.
Dr. Lehner completed a medical assessment of ability to do work-related work activities (physical) on July 24, 2011. (PageID 794). Dr. Lehner did not think Mr. Liette could perform full time work activity. (PageID 797-799).
B.
First, Plaintiff alleges that the ALJ failed to give full weight and deference to the opinions of his treating physicians.
"In assessing the medical evidence supporting a claim for disability benefits, the ALJ must adhere to certain standards." Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009).
One such standard, known as 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 of from reports of individual examinations, such as consultative examinations or brief hospitalizations.Id. "[A] finding that a treating source medical opinion . . . is inconsistent with the other substantial evidence in the case record means only that the opinion is not entitled to 'controlling weight,' not that the opinion should be rejected." Soc. Sec. Rul. 96-2p, 1996 SSR LEXIS 9, at *9. "Treating source medical opinions are still entitled to deference and must be weighed using all of the factors provided in 20 C.F.R. § 404.1527 and 416.927." Id.
"The ALJ 'must' give a treating source opinion controlling weight if the treating source opinion is 'well supported by medically acceptable clinical and laboratory diagnostic techniques' and is 'not inconsistent with the other substantial evidence in [the] case record.'" Blakley, 581 F.3d at 406. "If the ALJ does not accord controlling weight to a treating physician, the ALJ must still determine how much weight is appropriate by considering a number of factors, including the length of the treatment relationship, supportability of the opinion, consistency of the opinion with the record as a whole, and any specialization of the treating physician." Id.
Drs. Lehner and Smith, Plaintiff's treating physicians, both opined that Plaintiff was precluded from performing any work on a full-time sustained basis in the competitive work environment. (PageID 799, 659). Dr. Smith determined that Plaintiff would likely be unable to perform the physical activities required for his previous employment. (PageID 48). Dr. Lehner found that Mr. Liette would be limited to sedentary work at best, and only if he was allowed to alternate positions between 30 minutes of sitting and 15 minutes of standing. (PageID 61). Despite these findings, the ALJ adopted the opinion of the State Agency medical consultant, Dr. Villanueva, who reviewed the evidence on November 20, 2006, and concluded that Plaintiff could perform light work. (PageID 48, 403-11). Dr. Villanueva did not examine Plaintiff and noted in his report that there were no treating or examining source statements available at the time of his review. (PageID 409).
The ALJ discredits the treating physicians, alleging that they provided conclusory determinations that are not supported by substantial evidence. Instead, the ALJ gave controlling weight to Dr. Villanueva, the State Agency medical consultant, who simply checked boxes on a standardized form without any explanation or documentation to support his conclusions.
The ALJ dismissed the treating source opinions due to inconsistencies in the level of activities reported, as well as for a lack of medical support. (PageID 56-62). However, the treating source opinions are all supported by thorough diagnostic studies. (PageID 351, 357, 533-34, 654-57, 661, 662, 775-76). Additionally, all of the treating sources agree that Plaintiff is more physically limited than found by the ALJ. A finding that Plaintiff can perform light work activity on a full-time sustained competitive basis is not supported by substantial evidence.
The Commissioner's regulations establish a hierarchy of acceptable medical source opinions. The hierarchy begins at the top with treating physicians or psychologists. 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). Next in the hierarchy are examining physicians and psychologists, who often see and examine claimants only once. See 20 C.F.R. §§ 404.1527(d), 416.927(d). In general, more weight is given to examining medical source opinions than is given to the opinions of non-examining medical sources. See 20 C.F.R. §§ 404.1527(d)(1), 416.927(d)(1). Still, non-examining physicians' opinions are on the lowest rung of the hierarchy of medical source opinions.
The regulations provide progressively more rigorous tests for weighing opinions as the ties between the source of the opinion and the individual become weaker. For example, the opinions of physicians or psychologists who do not have a treatment relationship with the individual are weighed by stricter standards, based to a greater degree on medical evidence, qualifications, and explanation for the opinions, than are required to treating sources.Social Security Ruling 96-6p.
Contradictory opinions from non-examining, reviewing physicians do not constitute substantial evidence. "The opinion of a non-examining physician is entitled to little weight if it is contrary to the opinion of the claimant's treating physician." Shelman v. Heckler, 821 F.2d 316, 321 (6th Cir. 1987). Here, the ALJ erred by disregarding the opinions of Mr. Liette's treating physicians, Drs. Smith and Lehner, and holding that the contradictory opinion of a reviewing physician, who did not treat or examine Mr. Liette, was entitled to controlling weight. "If the ALJ decides not to give a treating physician's opinion controlling weight, the ALJ may not reject the opinion." Gentry v. Comm'r of Soc. Sec., 741 F.3d 708, 727, (6th Cir. 2014).
When the opinions of the treating sources are given controlling weight, the evidence supports a finding that at the most, Mr. Liette could perform sedentary work, if he were able to alternate positions between sitting and standing. (PageID 61). However, Plaintiff's treating physicians maintain that he would be unable to sit or stand without alternating positions at least every half hour, which would interfere with his ability to even perform sedentary work. (PageID 61). Accordingly, the evidence supports a finding that Mr. Liette is unable to perform any competitive work and is therefore disabled.
See, e.g., Parks v. Comm'r of SSA, 2014 U.S. Dist. LEXIS 51310, at *13-14 (N.D. Ohio Apr. 14, 2014) (Limitations to sit and stand at alternating intervals may have a negative effect on an individual's ability to perform substantially gainful activities, depending on whether the limitations would unduly burden the employer if it prevented the employee from performing his work.).
Even if Mr. Liette were able to perform sedentary work, as of January 1, 2008, he is classified as a person approaching advanced age. See 20 C.F.R § 404.1563(e). Persons approaching advanced age are said to "grid out" of the social security Medical Vocational Guidelines:
Individuals approaching advanced age (age 50-54) may be significantly limited in vocational adaptability if they are restricted to sedentary work. When such individuals have no past work experience or can no longer perform vocationally relevant past work and have no transferable skills, a finding of disabled ordinarily obtains. However, recently completed education which provides for direct entry into sedentary work will preclude such a finding. For this age group, even a high school education or more (ordinarily completed in the remote past) would have little impact for effecting a vocational adjustment unless relevant work experience reflects use of such education. 20 C.F.R. Part 404 App'x 2 § 201.00(g).
Accordingly, Mr. Liette "gridded out" of the social security Medical Vocational Guidelines on January 1, 2008. See 20 C.F.R. Part 404 App'x 2.
The ALJ's wholesale dismissal of the treating physicians' opinions is the product of a failure to meaningfully apply the treating source rule in the context of the record as a whole. The ALJ should have given greater, if not controlling weight, to Mr. Liette's treating sources. Here, the proof of disability is strong and the opposing evidence is lacking in substance.
C.
Next, Plaintiff alleges that the ALJ failed to properly consider all of his physical and psychological impairments and the combined impact.
The Social Security Regulations specifically note that the Commission uses the evidence from other medical sources "to show the severity of the individual's impairment(s) and how it affects the individual's ability to function." Social Security Ruling 06-3p (citing 20 C.F.R. § 404.1513(d)). The ruling goes on to note that evidence from these sources is important and should be evaluated on key issues such as impairment severity and functional effects, along with the other relevant evidence in the file. Id.
When considering the effect of mental health on a disability claim, the Court must recognize that the methods used for diagnosing and treating psychological conditions are different from the more objective laboratory tests that can be used to determine other types of illnesses and injuries. Blankenship v. Bowen, 874 F.2d 1116, 1121 (6th Cir. 1989).
[W]hen mental illness is the basis of a disability claim, clinical and laboratory data may consist of the diagnosis and observations of professionals trained in the field of psychopathology. The report of a psychiatrist should not be rejected simply because of the relative imprecision of the psychiatric methodology or the absence of substantial documentation, unless there are other reasons to question the diagnostic techniques.Id. The ALJ found that the treatment notes of Plaintiff's mental health physicians (Drs. Pan and Harris) were inconsistent with Mr. Liette's alleged degree of limitation. (PageID 54). Specifically, the ALJ found that Plaintiff's statements regarding painting his house with his son and completing other household tasks were inconsistent with Plaintiff's alleged inability to work. However, the treatment notes provided by Drs. Pan and Harris do not detail how Plaintiff completed these tasks: for example, how much assistance was actually provided by his son in completing the painting of the house. The ALJ should not have rejected the observations of Mr. Liette's psychological professionals, since those types of observations and treatment notes are common within the psychological profession and do not document the details needed to determine the patient's actual participation in alleged activities.
An ALJ may not draw an adverse conclusion when a patient does not return to an individual specialist for follow-up while seeing other specialists for different conditions. See, Gentry, 741 F.3d at 726 (reversing the ALJ's decision awarding benefits where a plaintiff saw multiple specialists for treatment of other symptoms and conditions, although plaintiff did not always return to each individual specialist regularly). Mr. Liette waited to follow-up with some of his treating physicians when he was seeing other specialists. (PageID 361-77, 413, 419, 484-86). While Mr. Liette did not frequently visit Dr. Lehner, he continued to see his primary care physician, and he sought treatment for his psychological issues from other specialists. (PageID 361-77, 413, 419, 484-86). Although Mr. Liette saw many different specialists, he continuously sought treatment for both his depression and his back pain since his alleged onset date.
The ALJ's wholesale dismissal of the opinions of the treating mental health professionals is the product of a failure to meaningfully consider the combined effect of Mr. Liette's conditions in the context of the record as a whole. Gentry, 741 F.3d at 726. Here, the proof of severe physical impairment is strong, and when combined with Mr. Liette's mental health impairment, supports a finding of disability.
D.
Finally, Plaintiff alleges that the ALJ failed to properly consider his credibility. The Sixth Circuit accords "great weight and deference to an ALJ's credibility findings, but such findings must be supported by substantial evidence." Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997).
The ALJ discredited Mr. Liette because he performs some housework, babysits his grandchildren, can walk half of a mile on a treadmill, and is not restricted in his driving ability. (PageID 57). The Social Security Regulations state that even if a person is able to perform "a wide range of activities of daily living," a finding of marked limitation is appropriate if the person has "serious difficulty performing [daily activities] without direct supervision, or in a suitable manner, or on a consistent, useful, routine basis, or without undue interruptions or distractions." 20 C.F.R. § 404 App. 1. Here, Plaintiff maintains that he is unable to complete most tasks without stopping to lie down to reduce his back pain. (PageID 120-26). In finding that Plaintiff could perform "a wide range of activities of daily living," the ALJ failed to consider whether Plaintiff could perform such tasks on a consistent or routine basis. See Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 248-49 (6th Cir. Ohio 2007) (reversing the ALJ's credibility determination where the ALJ over-emphasized the objective medical evidence, the plaintiff's ability to conduct daily activities, and the influence of plaintiff's doctors' non-invasive treatment recommendations).
Credibility determinations must be based on reasonable interpretations of the record. See, e.g., Rogers, 486 F.3d at 248. "Explanations as to credibility which are not consistent with the entire record and the weight of the relevant evidence" are not sufficient. Id. For example, discrediting a plaintiff due to a lack of objective medical evidence alone is not sufficient when the subjective nature of pain, the scope and length of treatment, side effects of treatment, and medications prescribed and the reason for their prescription must also be considered. Id. Here, Mr. Liette experienced debilitating pain on a regular basis, for which he regularly sought steroid injection treatments. (PageID 469, 471). He also reports experiencing increased drowsiness as a side effect of his pain medication. (PageID 78, 83, 124-25).
Finally, a plaintiff may not be discredited because of an improper emphasis on the doctors' recommendations for non-invasive or non-aggressive treatments. Id. Defendant argues that it was proper to discredit Plaintiff because his treatment was largely conservative, with no recommendations for surgery. However, Mr. Liette chose not to undergo surgery, because his doctors opined that surgery was not likely to result in significant improvement in his pain level or ability to work. (PageID 56). Therefore, Mr. Liette's choice to forgo the surgery should not have played a role in the ALJ's credibility determination.
Even Dr. Villanueva, the state agency physician, noted that Mr. Liette was credible. (PageID 408).
--------
Accordingly, the ALJ's adverse credibility determination is 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 of evidence of disability, and the credible and controlling findings and opinions of Drs. Africk, Lehner, Smith, Pan, and Harris, 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 Ted Liette was not entitled to disability insurance benefits, is hereby found to be NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, and it is REVERSED; and this matter is REMANDED to the ALJ for an immediate award of benefits as of July 6, 2006. The Clerk shall enter judgment accordingly, whereupon this case is CLOSED in this Court.
__________
Timothy S. Black
United States District Judge