Opinion
Case No. 3:13-cv-295
09-22-2014
MARIA L. LOWE, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER THAT: (1) THE ALJ'S NON-DISABILITY FINDING IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, AND IS REVERSED; (2) JUDGMENT IS ENTERED IN FAVOR OF PLAINTIFF AWARDING BENEFITS; AND (3) THIS CASE IS CLOSED
This is a Social Security disability benefits appeal. At issue is whether the administrative law judge ("ALJ") erred in finding the Plaintiff "not disabled" and therefore not entitled to supplemental security income ("SSI"). (See Electronic PageID ("PageID") (PageID 170-185)).
I.
On June 26, 2008, Plaintiff filed a Title XVI application for SSI, alleging disability beginning on November 1, 2001. Plaintiff has not worked since 2001. (PageID 172). Plaintiff claims she is disabled due to obesity, insomnia, depression, and a panic disorder. (PageID 170). Plaintiff's claim was denied initially on December 30, 2008, and upon reconsideration on September 8, 2009. (PageID 244-249, 255-261). Thereafter, Plaintiff filed a written request for a hearing on November 3, 2009. Plaintiff appeared and testified at a hearing held on November 29, 2010, in Dayton, Ohio. (PageID 108). Charlotta J. Ewers, an impartial vocational expert, also appeared at the hearing and testified. Plaintiff was represented by Michael Take, an attorney. (PageID 170). At the hearing, Plaintiff amended her disability onset date to June 26, 2008, the date of her application for benefits. (Id.) After the hearing, the ALJ found that Plaintiff was not disabled and was not entitled to benefits. (PageID 170-185).
Plaintiff requested a review of the ALJ's decision. The Appeals Council denied review making the ALJ's decision the final decision of the Commissioner. (PageID 74-79). Plaintiff then commenced this action in federal court for judicial review of the Commissioner's decision pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3).
At the time of Plaintiff's alleged onset date, she was 33 years old and was considered to be a "younger person" for Social Security purposes. See 20 C.F.R. §§ 404.1562(C); 416.963(C). (PageID 183). Plaintiff only completed seventh grade. (PageID 204). She tried to get her GED, but was unsuccessful. (Id.) At the time of the hearing, Plaintiff was homeless. (PageID 202). Plaintiff does not have any past relevant work experience.
Past relevant work is work that you have done within the past 15 years, that was substantial gainful activity, and that lasted long enough for you to learn to do it. 20 C.F.R. 9416.960(b)(1).
The ALJ's "Findings," which represent the rationale of his decision, were as follows:
1. The claimant has not engaged in substantial gainful activity since June 26, 2008, the application date (20 CFR 416.971 et seq.).(PageID 172-184).
2. The claimant has the following severe impairments: obesity; insomnia; depression, not otherwise specified; a panic disorder; and polysubstance abuse with continuing cannabis use (20 CFR 416.920(c)).
3. 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 416.920(d), 416.92 and 416.926).
4. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform medium work as defined in 20 CFR 416.967(c) except that she can never climb ladders, ropes, or scaffolds and can climb ramps or stairs, stoop, kneel, crouch, or crawl no more than frequently. She must avoid all exposure to hazardous machinery and unprotected heights, and she must not drive or operate motor vehicles as part of the job duties. Her work is limited to simple, routine, and repetitive tasks; in a work environment free of fast paced production requirements; involving only simple, work-related decisions; and with few, if any, workplace changes. She can tolerate no interaction with the public and coworkers (defined as only brief and superficial contact), no tandem tasks, and only occasional "over the shoulder" supervision.
5. The claimant has no past relevant work (20 CFR 416.965).
6. The claimant was born on July 11, 1974 and was 33 years old, which is defined as a younger individual age 18-49, on the date the application was filed (20 CFR 416.963).
7. The claimant has a limited education and is able to communicate in English (20 CFR 416.964).
8. Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 416.968).
9. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 416.969 and 416.969(a)).
10. The claimant has not been under a disability, as defined in the Social Security Act, since June 26, 2008, the date the application was filed (20 CFR 416.920(g)).
In sum, the ALJ concluded that Plaintiff was not under a disability as defined by the Social Security Regulations, and, therefore, was not entitled to SSI. (PageID 185).
On appeal, Plaintiff argues that: (1) the ALJ erred in determining her RFC by failing to properly weigh the medical source opinions; and (2) the ALJ erred in determining her RFC by failing to appropriately evaluate her credibility. The Court will address each error in turn.
A claimant's residual functional capacity ("RFC") is an assessment of "the most [she] can still do despite [her] limitations." 20 C.F.R. § 416.945(a)(1).
II.
The Court's inquiry on appeal is to determine whether the ALJ's non-disability finding is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). In performing this review, the Court considers the record as a whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence supports the ALJ's denial of benefits, that finding must be affirmed, even if substantial evidence also exists in the record upon which the ALJ could have found plaintiff disabled. As the Sixth Circuit has explained:
"The Commissioner's findings are not subject to reversal merely because substantial evidence exists in the record to support a different conclusion. The substantial evidence standard presupposes that there is a "zone of choice" within which the Commissioner may proceed without interference from the courts. If the Commissioner's decision is supported by substantial evidence, a reviewing court must affirm."Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994).
The claimant bears the ultimate burden to prove by sufficient evidence that she is entitled to disability benefits. 20 C.F.R. § 404.1512(a). That is, she must present sufficient evidence to show that, during the relevant time period, she suffered an impairment, or combination of impairments, expected to last at least twelve months, that left her unable to perform any job in the national economy. 42 U.S.C. § 423(d)(1)(A).
A.
The record reflects that:
1. Physical Impairments
Plaintiff is overweight at a reported height of 68 inches and a weight of 295 pounds. With a body mass index of 44.8, Plaintiff is considered obese, which is expected to aggravate Plaintiff's other conditions. (PageID 172). The ALJ concluded that the Plaintiff's obesity causes more than minimal functional impairment, and is, in fact, a severe impairment. (PageID 173).
The body mass index ("BMI"), or Quetelet Index, is a measure of relative weight based on an individual's mass and height. A BMI over 40 is considered severely obese.
Plaintiff has complained of back and knee pain since a motor vehicle accident in November 2001. (PageID 173). A July 31, 2006 MRI of the lumbar spine showed a "small" subligametous posterior bulging disc at L4 with no significant intrusion into the thecal sac. Subsequently, a lumbar spine MRI dated June 4, 2009 showed mild spindlitic/discogenic changes. (Id.)
The lumbar spine consists of the five vertebrae between the rib cage and the pelvis.
The thecal sac is a membrane of dura mater that surrounds the spinal cord and the cauda equine. This thecal sac is filled with cerebral spinal fluid.
On November 3, 2008, consultative physician Aivars Vitols, D.O., examined Plaintiff. Dr. Vitols noted painful and restricted motions of the lumbar spine. He also reported that Plaintiff walked with a nostalgic, albeit slow, gait. (PageID 173).
Plaintiff presented to the emergency room with complaints of back pain on May 30, 2010, and a back examination showed lumbar tenderness to palpation and muscle spasm. Plaintiff returned to the emergency room for back pain on June 9, 2010. (Tr. 115).
On July 22, 2010, primary care physician John Sefton, D.O., indicated that he had been treating Plaintiff since September 13, 2002. (PageID 685). On July 27, 2010, Dr. Sefton found that the most recent lumbar spine MRI from June 2009 showed "very minimal" degenerative changes. (PageID 174). Dr. Sefton opined that Plaintiff could lift/carry no more than ten pounds occasionally or five pounds frequently; sit no more than thirty minutes at a time or for a total of eight hours in an eight hour workday, and stand/walk no more than fifteen minutes at a time or for a total of two hours in an eight hour workday. (PageID 607-614). Dr. Sefton further opined that Plaintiff is extremely limited in her ability to bend, markedly limited in her ability to push and pull, and moderately limited in her ability to reach and perform repetitive foot movement. (Id.) Dr. Sefton diagnosed Plaintiff with chronic low back pain, morbid obesity, and mild osteoarthritis. (PageID 736). Dr. Sefton concluded that although he felt Plaintiff was capable of doing sedentary work, it "is unlikely that she will be able to find a job that can accommodate her frequent absences and inability to deal with stress on an ongoing basis." (PageID 736). Consultative psychologist Dr. Christopher C. Ward also diagnosed Plaintiff with chronic back pain, arthritis, and as overweight. (PageID 467).
On July 22, 2004, Jerry Flexman, Ph.D, evaluated Plaintiff at the request of the Bureau of Disability Determination ("BDD"). Dr. Flexman noted "overt pain behavior was observed with walking." (PageID 730).
2. Psychological Impairments
Giovanni Bonds, Ph.D., evaluated Plaintiff on October 25, 2005 at the request of the BDD. (PageID 427-435). Dr. Bonds noted that Plaintiff had a rough childhood, including mental and physical abuse in the home. (PageID 427). Plaintiff's father has mental problems; her mother and extended family are alcoholics; and her aunt was mentally ill, drug addicted, and committed suicide. (Id.)
Dr. Bonds observed that Plaintiff presented with "no teeth." (PageID 429). Upon testing, Plaintiff's verbal comprehension, expression, and reasoning skills were below average, with a significant personal weakness on the comprehensive subtest, which measures social judgment. (PageID 431). Plaintiff scored in the borderline range for general memory and working memory indexes and extremely low for immediate memory. (PageID 432). Her reading comprehension score was at a fourth grade level. (Id.)
Dr. Bonds diagnosed Plaintiff with bipolar disorder, panic disorder with agoraphobia, and a GAF score of 50, indicative of serious functional restrictions. (PageID 433). Dr. Bonds concluded that because of her unstable moods, Plaintiff would have difficulty handling demands for speed, accuracy, productivity, and for getting along with others in the workplace. (Id.) Dr. Sefton also diagnosed Plaintiff with bipolar disorder and chronic anxiety. (Id.)
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
Global Assessment Functioning ("GAF"), is a tool used by health-care professionals to assess a person's psychological, social, and occupational functioning on a hypothetical continuum of mental illness. It is, in general, a snapshot of a person's "overall psychological functioning" at or near the time of the evaluation. See Martin v. Comm'r of Soc. Sec., 61 F. App'x 191, 194, 194 n.2 (6th Cir. 2003). A GAF score between 41 and 50 indicates "[s]erious symptoms" and a "serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." Diagnostic and Statistical Manual of Mental Disorders, 34 (4th ed. 2000).
Plaintiff began treating at Advanced Therapeutic Services ("ATS") in July 2005. (PageID 687). On July 28, 2010, a therapist at ATS assigned Plaintiff a GAF score of 50. (PageID 696). Ramakrishna Gollamudi, M.D., issued a Mental Functional Capacity Assessment on January 12, 2008. (PageID 585-589). Dr. Gollamudi recorded that Plaintiff is markedly impaired in several areas of functioning, including the ability to understand, remember, and carry out detailed instructions; to maintain attention and concentration for extended periods; to accept instructions and respond appropriately to criticism from supervisors; to get along with coworkers or peers without distracting them or exhibiting behavioral extremes; to travel in unfamiliar places or use public transportation; to set realistic goals or make plans independently of others; to 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. (PageID 585). Dr. Gollamudi concluded that Plaintiff is not able to sustain full-time employment. (PageID 588).
A Mental Functional Capacity Assessment is a set of tests, practices, and observations that are combined to determine the claimant's ability to function in a variety of circumstances, most often employment.
Christopher C. Ward, Ph.D., evaluated Plaintiff on October 18, 2008, at the request of the BDD. (PageID 463-468). Dr. Ward recorded that Plaintiff had a traumatic childhood and noted that she received special education services and was held back multiple times. (PageID 464). Plaintiff tried numerous times to complete her GED, but could not due to her anxiety. (Id.) Dr. Ward noted that although Plaintiff reported that she has worked approximately 20 jobs in her life, the longest she was ever able to keep a job was eight months at Waffle House. (PageID 464-465). Dr. Ward opined that Plaintiff's ability to maintain attention, concentration, persistence, and pace is markedly impaired by her mental health difficulties. (PageID 467). He also determined that her ability to withstand the stress and pressure associated with day-to-day work activity is markedly impaired by her mental health difficulties, and that it is likely that significant stress and pressure would increase her difficulties with panic and affect her ability to engage in a regular work day. (PageID 467). Dr. Ward concluded that "based on her symptoms and level of functioning, her GAF must be rated as falling between 41 and 50." (Id.) He also diagnosed Plaintiff with panic disorder with agoraphobia, and mood disorder. (Id.)
Dr. Flexman assigned Plaintiff a GAF score of 55 and concluded that her restrictions for responding appropriately to work pressure in a normal work setting are marked due to her current socialization and current emotional state. (PageID 571).
A GAF score of 51-60 indicates moderate symptoms and/or functional impairment.
B.
First, Plaintiff alleges that the ALJ failed to properly weigh the medical source opinions.
Dr. John Sefton, Plaintiff's treating physician, advised that due to the combination of her physical, psychological, and social status, it is "very unlikely that she will be able to find a job that can accommodate her frequent absences and inability to deal with stress on an ongoing basis." (PageID 685-686). Dr. Sefton concluded that although he felt Plaintiff was capable of sedentary work, it "is unlikely that she will be able to find a job that can accommodate her frequent absences and inability to deal with stress on an ongoing basis." (PageID 686). Dr. Sefton reached this conclusion after treating Plaintiff for 7 years and 10 months. (Id.)
Psychiatrist Ramakrishna Gollamudi, M.D., opined that Plaintiff is markedly impaired in several areas of functioning, including the ability to understand, remember, and carry out detailed instructions; to maintain attention and concentration for extended periods; to accept instructions and respond appropriately to criticism from supervisors; to get along with coworkers or peers without distracting them or exhibiting behavioral extremes; to travel in unfamiliar places or use public transportation; to set realistic goals or make plans independently of others; to 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. (PageID 585). Dr. Gollamudi also concluded that Plaintiff is not able to sustain full-time employment. (PageID 588).
Drs. Sefton and Gollamudi's opinions are consistent with the assessment of consultative psychologist Christopher C. Ward. Dr. Ward opined that Plaintiff's ability to maintain attention, concentration, persistence, and pace is markedly impaired by her mental health difficulties, and that it is likely that significant stress and pressure would increase her difficulties with panic attacks and affect her ability to engage in a regular work day. (PageID 467). Despite these findings, the ALJ concluded that Plaintiff had the RFC to perform medium work as defined in 20 C.F.R. 416.967(c). (PageID 175).
"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. "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.'" Id. "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.
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). Non-examining physicians' opinions are on the lowest rung of the hierarchy of medical source opinions. Social Security Ruling 96-6p.
Defendant argues that the ALJ properly discounted the treating source opinions because they were based on "subjective findings" rather than observable "signs." However, the record indicates that Plaintiff had been prescribed a significant number of medications (PageID 428), tests reflected below average functioning with significant weakness in social judgment (PageID 431), reading comprehension was at a fourth grade level (PageID 432), and her GAF score indicated serious functional restrictions (PageID 433). These are all "observable signs" consistent with the opinions of Plaintiff's treating physicians, Drs. Sefton and Gollamudi, and consultative examiner Dr. Ward.
The source opinions are also consistent with the testimony of vocational expert Charlotta Ewers, who testified that an individual with chronic pain and psychological problems who was expected to be absent from work three days per month on a repetitive basis would not be able to sustain competitive employment at any exertional level. (PageID 288). She also indicated that an individual who was unable to complete assigned tasks and was expected to be off-task one-third of the workday would have difficulty maintaining employment at any exertional level. (PageID 149).
Under applicable law, consultative psychologist Dr. Flexman is not entitled to "significant weight." (PageID 182). In fact, Dr. Flexman should have been afforded little, if any weight. Unlike Drs. Sefton and Gollamudi, Dr. Flexman does not have a treatment relationship with Plaintiff. Moreover Dr. Flexman's opinion was based only on the evidence available before July 22, 2009. It is Dr. Flexman's opinion, not the opinions of Drs. Sefton and Gollamudi, that is inconsistent with the record as a whole.
Accordingly, the ALJ failed to meaningfully apply the treating source rule in the context of the record as a whole. A finding that Plaintiff could perform medium work activity on a full-time sustained competitive basis is not supported by substantial evidence.
C.
Next, Plaintiff alleges that the ALJ failed to appropriately evaluate her credibility. On review of substantial evidence, courts must accord great deference to the ALJ's credibility determinations. Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 479 (6th Cir. 2003). Despite this deference, "an ALJ's assessment of a claimant's credibility must be supported by substantial evidence." Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997).
The ALJ concluded that Plaintiff "has not sought the type of treatment one would expect for an individual claiming to suffer from disabling physical impairments; and limited mental health treatment casts some doubt on her allegations about the severity of the symptoms experienced after the alleged onset date." (PageID 180). However, failure to seek mental health treatment is not a proper reason for the ALJ to discount Plaintiff's credibility. Blankenship v. Bowen, 874 F.2d 1116, 1124 (6th Cir. 1989) (failure to seek medical care "should not be a determinative factor in a credibility assessment" where claimant is operating under a mental impairment).
Additionally, the ALJ determined that Plaintiff was not credible because she was able to perform daily activities such as household chores, interacted with family and friends, watched television, and completed word searches. (PageID 180). The ALJ concluded that the "performance of such activities on a regular and continuing basis indicates that the claimant's level of pain and depression does not seriously interfere with her ability to maintain attention and concentration, perform routine tasks, understand and follow simple instructions, and interact with others." (Id.) However, Plaintiff's ability to perform some activities on a limited basis is not substantial evidence that her symptoms are not disabling. See, e.g., Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 248-49 (6th Cir. 2007) (the minimal daily functions of driving, cleaning an apartment, caring for pets, laundry, reading, exercising and watching the news are not comparable to typical work activities). Moreover, Plaintiff testified that she does not perform household chores, that she is afraid to leave the house, that she has not completed word searches in a long time, and that her husband takes care of their children. (PageID 212-217). In fact, Plaintiff testified that she has panic attacks almost daily. (PageID 222).
20 C.F.R. § 404.1572(c) ("Generally, we do not consider activities like taking care of yourself, household tasks, hobbies, therapy, school attendance, club activities, or social programs to be substantial gainful activity."
--------
The ALJ's failure to appropriately evaluate Plaintiffs credibility in conjunction with the record as a whole denotes a lack of 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. Sefton, Bonds, Gollamudi, and Ward, 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 Maria L. Lowe was not entitled to supplemental security income beginning June 26, 2008, is NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, and it is REVERSED; and this matter is REMANDED to the Commissioner for an immediate award of benefits. The Clerk shall enter judgment accordingly, and this case shall be CLOSED. Date: 9/22/14
s/ Timothy S. Black
Timothy S. Black
United States District Judge