Opinion
Case No. 3:12-cv-320
11-20-2013
WILLIAM MCGHEE, 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) THIS
MATTER IS REMANDED TO THE ALJ UNDER THE FOURTH SENTENCE OF
42 U.S.C. § 405(g); 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 receive Supplemental Security Income ("SSI"). (See Administrative Transcript ("PageID") (PageID 62-69) (ALJ's decision)).
I.
On September 23, 2008, Plaintiff applied for SSI, asserting that he was disabled and could no longer work beginning July 7, 2002, because of depression, anxiety, hepatitis B, hepatitis C, and chronic headaches. (PageID 174). Plaintiff's applications were denied initially and upon reconsideration. (PageID 93-95, 102-107, 110-116). Plaintiff timely requested a hearing before an ALJ. (PageID 58).
A hearing was held on September 27, 2010, where Plaintiff appeared with his attorney and testified. (PageID 77-86). An impartial vocational expert also appeared and testified. (PageID 86-91). The ALJ denied Plaintiff's claim via written decision on October 27, 2010. (PageID 69). Following a timely filed request for review, the Appeals Council declined to review the ALJ's decision. (PageID 53). This civil action for judicial review followed, pursuant to 42 U.S.C. §§405(g) and 1383.
At the time of Plaintiff's hearing, he was age 45 and considered a "younger person" for Social Security purposes. See 20 C.F.R. §§ 404.1563(c); 416.963(c). Plaintiff attained his GED while in prison, although he admits to having someone else take the test for him. (PageID 238). School records show Plaintiff's long-term goals on his IEP included "to develop a degree of self-respect and to increase respect for other people's property, to provide alternative for physical force, to control aggressive behavior, to enroll in drug and or alcohol abuse counseling, to increase a feeling of respect for other people." (PageID 320). Plaintiff's prior relevant employment history encompasses a limited number of unskilled positions such as cleaner and industrial cleaner. (PageID 87). Plaintiff held jobs for a short period of time, generally ending with him being fired. (PageID 350-351).
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 September 23, 2008 the application date (20 CFR 416.971 et seq.).(PageID 64-69).
2. The claimant has the following severe impairments: (1) Sciatic neuropathy; (2) Hepatitis B; (3) Hepatitis C; (4) Carpal Tunnel Syndrome; (5) Depression, and; (6) Anxiety (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), 416.925 and 416.926).
4. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform medium work lifting and carrying fifty pounds occasionally and twenty-five pounds frequently. He is able to stand/walk for six of eight hours and sit for six of eight hours. The claimant is able to push/pull to the weights given. From a mental standpoint, the claimant is able to perform simple, routine work and respond appropriately to supervisors and coworkers in jobs that do not require independent decision-making. Furthermore, the claimant has the capacity to perform work where interpersonal contact is only incidental to work performance and public contact is not required.
5. The claimant is unable to perform any past relevant work (20 CFR 416.965).
6. The claimant was born on May 26, 1972, and was 45 years old, which is defined as a younger individual age 18-49, on the date the ALJ issued the decision (20 CFR 416.963).
7. The claimant has a limited education and is able to communicate in English (20 CFR 416.964).
9. Transferability of job skills is not an issue in this case because the claimant's past relevant work is unskilled (20 CFR 404.1568).
10. Considering his 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)).
11. The claimant has not been under a disability, as defined in the Social Security Act, since September 23, 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 was therefore not entitled to SSI. (PageID 69).
On appeal, Plaintiff argues that the ALJ erred in finding that he was not disabled by his mental impairments. Specifically, Plaintiff maintains that the ALJ relied only on the "good findings" of his treating psychiatrist, Dr. Gollamudi.
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 an 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. Plaintiff's testimony
Plaintiff testified to experiencing issues with depression, panic attacks, and anger issues. (PageID 82). He described having panic attacks regularly and experiencing depressive episodes that "drain all [his] energy." (PageID 83). He testified to seeing a counselor twice a month and a psychiatrist once a month for depression. (Id.)
Plaintiff also suffers from anxiety, hepatitis B, hepatitis C, and chronic headaches. (PageID 234). He stated that he was "tired all the time and ha[d] bad migraine headache[s], can't stay focused." (Id.) He further testified that he stop[ped] working because he "was in pain and sick all the time and [he] missed a lot of work and was fired." (Id.) Plaintiff further testified to suffering from pain in his back and kidneys, along with sharp pains and burning and numbing sensations in his hands. (PageID 80).
Plaintiff testified that he occasionally cooks TV dinners and makes sandwiches. (PageID 80). He also does laundry and helps with grocery shopping. (PageID 80, 221). Plaintiff does not have issues with normal daily activities such as bathing, feeding, etc. (PageID 221).
2. Medical evidence of record
Treating Physician
On August 12, 2010, Plaintiff's treating psychiatrist, Dr. Rama Krishna Gollamudi, completed interrogatories. (PageID 591). Dr. Gollamudi explained that he had treated Plaintiff since February 15, 2010, and had last seen him on August 3, 2010. (PageID 591). He treated Plaintiff for depression and anxiety with mixed emotional features. (PageID 593). Dr. Gollamudi opined that Plaintiff would be unable to respond appropriately to supervision, co-workers, and customary work pressures; withstand the pressure of meeting normal standards of work productivity and work accurately without significant risk of physical or psychological decompensation or worsening of his physical and mental impairments; sustain attention and concentration on his work to meet normal standards of work productivity and work accuracy; behave in an emotionally stable manner; maintain concentration and attention for extended periods; perform activities within a schedule, maintain regular attendance and be punctual within customary tolerances; get along with co-workers or peers without unduly distracting them or exhibiting behavior extremes; and work in coordination with, or in proximity to, others without being unduly distracted by them. (PageID 594-599). Dr. Gollamundi opined that Plaintiff had a moderate impairment in his daily activities and social functioning and a moderate impairment in his concentration, persistence, and pace, resulting in failure to complete tasks in a timely manner. (PageID 599- 600).
Examining Physician
On December 12, 2002, Plaintiff was evaluated by Dr. Mary Ann Jones, a psychologist, who diagnosed Plaintiff with major depression, recurrent, intermittent explosive disorder, borderline intelligence, alcohol dependency in one year of remission, and cocaine dependency in one year of remission. (PageID 355). Dr. Jones found that Plaintiff had a mental retardation to borderline IQ with a WAIS (Wechsler Adult Intelligence Scale) of 70 on the full scale IQ. (PageID 353-354). Dr. Jones observed that Plaintiff was only "semi-coherent" and his stream of thought was retarded to appropriate. (PageID 351).
On March 29, 2005, Plaintiff was evaluated by Dr. James Tanley, a psychologist, who diagnosed him with chronic adjustment disorder with depressed mood . (PageID 347). Dr. Tanley concluded that Plaintiff was only mildly impaired in his ability to relate to others; moderately impaired in his ability to understand and follow simple instructions; severely impaired in his ability to perform simple, repetitive tasks; and mildly impaired in his ability to deal with work stress and pressure. (Id.) However, he observed that Plaintiff seemed hopeless and helplessness, his memory was poor, and his "[c]ognitive efforts ranged from Borderline to MR, with most in the Borderline range." (PageID 345). The Woodcock-Johnson Passage Comprehension Test (WJPCT) score placed Plaintiff at a third grade equivalent. (PageID 346).
Adjustment disorder is a condition in which within three months of a stressor and in direct response to it, the patient develops emotional or behavioral symptoms such as depression. An adjustment disorder is a temporary condition of varying severity that occurs as an acute reaction to an event.
On March 26, 2008, Plaintiff was evaluated by Dr. Ty Payne, a psychologist, who diagnosed Plaintiff with depressive disorder and antisocial characteristics. (PageID 400). Dr. Payne concluded that Plaintiff's intellectual functioning was borderline to mildly impaired, but he was markedly impaired in his ability to relate to others; moderately impaired in his ability to concentrate; and markedly impaired in his ability to deal with work stress. (Id.) Dr. Payne assigned a GAF score of 41-50. (PageID 399-400).
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. A GAF score of 41-50 indicates serious impairments in social or occupational functioning such as an inability to keep a job. See, Kornecky v. Comm'r of Soc. Sec., 167 Fed. Appx. 496, 503 (6th Cir. 2006).
On February 24, 2009, Plaintiff was evaluated by Dr. Giovanni Bonds. (PageID 463). The relevant diagnosis was depressive disorder, borderline intellectual functioning, antisocial personality disorder, hepatitis B and C, and carpal tunnel. (PageID 468). Dr. Bonds further stated that Plaintiff was moderately impaired in his ability to relate to peers, supervisors, and the public. (PageID 469). Specifically, Plaintiff has problems with taking and responding to directions or criticism due to his temper. (Id.) Dr. Bonds found that Plaintiff's ability to understand, remember, follow directions, and maintain attention, concentration, persistence, and pace was mildly limited. (Id.) Plaintiff's cognitive ability was found to be in the borderline range. (Id.) Dr. Bonds further opined that Plaintiff's ability to deal with work stress was moderately limited. (Id.) Dr. Bond assigned a GAF score of 50. (PageID 468).
Record Reviewers
On May 5, 2008, the record was reviewed by Dr. Todd Flinnerty. He opined that in regard to understanding, memory, sustained concentration, and persistence, Plaintiff was not significantly limited in his ability to remember work-like procedures or very short and simple instructions. Plaintiff could carry out very simple instructions, perform activities within a schedule, maintain regular attendance, and make simple work-related decisions. (PageID 412-413).
However, Plaintiff was moderately impaired in his ability to remember, understand, carry out detailed instructions, and concentrate for extended periods; complete a normal work week without interruptions from psychological symptoms and; perform at a consistent pace without an unreasonable number and length of rest periods. (PageID 412-413). Dr. Flinnerty concluded that Plaintiff retained the capacity to perform simple routine tasks without fast paced production. (PageID 414).
Dr. Flinnerty further opined that in regard to social interaction, Plaintiff was not significantly impaired in his ability to ask simple questions, request assistance, and maintain socially appropriate behavior. (PageID 413). Plaintiff was moderately impaired in his ability to interact with the general public, respond appropriately to criticism from supervisors, or get along with peers without distracting them. (PageID 413). Dr. Flinnerty concluded that Plaintiff should only be in settings with superficial contact with others. (PageID 414). Additionally, Plaintiff's ability to respond appropriately to work changes is moderately impaired. (Id.) As a result, Dr. Flinnerty concluded that Plaintiff would be best suited where duties are relatively static and any changes can be explained. (Id.)
On March 2, 2009, Plaintiff's records were reviewed by Dr. Steven Meyer, a psychologist. (PageID 473). He found that Plaintiff had moderate impairments in his social function, concentration, persistence, and pace. (PageID 487). Dr. Meyer found Plaintiff was not significantly limited in his understanding, memory, sustained concentration, persistence, and ability to remember work-like procedures or very short and simple instructions. (Id.) Plaintiff was not significantly impaired in his ability to carry out very simple instructions, perform activities within a schedule, maintain regular attendance and make simple work-related decisions, or work in close coordination with others without being distracted. (PageID 487). Dr. Meyer further opined that Plaintiff was not significantly impaired in his ability to complete a normal work week without interruptions from psychological symptoms and; perform at a consistent pace without an unreasonable number and length of rest periods. (Id.) However, Plaintiff was moderately impaired in his ability to concentrate for extended periods, remember, understand and carry out detailed instructions. (PageID 487).
Dr. Meyer further opined that in regard to social interaction, Plaintiff was not significantly impaired in his ability to ask simple questions, request assistance, maintain socially appropriate behavior, respond appropriately to criticism from supervisors, or get along with peers without distracting them. (PageID 489). Plaintiff was, however, moderately impaired in his ability to interact appropriately with the general public. (PageID 488). Dr. Meyer concluded that Plaintiff should only be in settings with regular expectations and occasional intermittent interaction with others. (PageID 489). Additionally, Plaintiff's ability to respond appropriately to work changes and set realistic goals or plans independently was also moderately impaired. (PageID 488). As a result, Dr. Meyer concluded that Plaintiff would be best suited where there are few changes in the work routine. (PageID 489).
On March 9, 2009, a non-examining physician, Dr. Jerry McCloud, reviewed the record to determine Plaintiff's physical exertion abilities. (PageID 506). He opined that Plaintiff can occasionally lift fifty pounds, frequently lift twenty-five pounds, stand and walk for about six hours within an eight hour workday, sit for about six hours within an eight hour workday, and push and pull an within the limited weight. (PageID 506). McCloud concluded that Plaintiff's physical attributes do not significantly limit his work ability. (Id.)
B.
Plaintiff alleges the ALJ erred in finding that he was not disabled by his mental impairments. (PageID 616). Specifically, Plaintiff alleges that the ALJ erred in relying only on the "good findings" of his treating psychiatrist, Dr. Gollamudi; and thereby "improperly drawing conclusions about Dr. Gollamudi's opinion and creating findings and an opinion that does not exist." (Id.)
Plaintiff's assertion that the ALJ only relied on the "good findings" of Dr. Gollamudi is inaccurate, but not without merit. It would have been more apt for Plaintiff to assert that the ALJ subjectively selected the good and bad findings to support his position. For example, the ALJ indicates that Plaintiff needs to be in an environment with "minimal social interaction" and that Plaintiff has moderate restrictions in his "activities of daily living, ... in maintaining social functioning, ... in concentration, persistence, or pace resulting in failure to complete tasks in a timely manner." (PageID 67). These are clearly not good findings.
Although the ALJ does not rely solely on "good findings," he does reject key findings where he should have addressed the findings as a whole. (PageID 64- 69). See, e.g., Howard v. Comm'r of Soc. Sec., 278 F. 3d 235, 240-41 (6th Cir. 2002) (the ALJ's selective inclusion of only those portions of the report that cast Plaintiff in a capable light suggest he only considered part of the report in formulating his conclusions and therefore the RFC does not accurately describe Plaintiff's abilities and the ALJ's decision which is based upon it, is not supported by substantial evidence).
Next, Plaintiff asserts that the ALJ impermissibly interpreted the treating physician's opinion. (PageID 616). The ALJ may not cherry pick from the record by "relying on some [evidence] and ignoring others, without offering some rationale for his decision." Younger v. Comm'r of Soc. Sec., 351 F. Supp. 2d 644, 649 (E.D. Mich. 2004). Such action "suggests that he only considered part of the report in formulating his conclusion." Howard v. Comm'r of Soc. Sec., 276 F. 3d 235 (6th Cir. 2002). Therefore, "[i]n the absence of an explicit and reasoned rejection of an entire line of evidence, the remaining evidence is substantial only" if considered within the fictitious constraints created by the ALJ. Zblewski v. Schweiker, 732 F.2d 75, 78 (7th Cir. 1984).
Specifically, the ALJ concluded that Plaintiff could handle "reasonable expectations of work productivity." (PageID 67). However, Dr. Gollamudi determined that Plaintiff cannot "respond appropriately to...customary work pressure." (PageID 594) (emphasis added). Additionally, Plaintiff cannot "sustain attention and concentration on his work to meet normal standards of work productivity and work accuracy." (PageID 595) (emphasis added). Dr. Gollamudi further opined that Plaintiff could not hold his "concentration and attention for extended periods," specifically two hours. (PageID 597). Finally, Dr. Gollamudi noted that Plaintiff cannot "perform activities within a schedule, maintain regular attendance and be punctual within customary tolerance." (Id.). Dr. Gollamudi's findings indicate that Plaintiff cannot handle "reasonable expectations of work productivity." (PageID 594-597). Contrary to the ALJ's finding, Dr. Gollamudi never found that Plaintiff could sustain an ordinary routine. Thus, the ALJ's interpretation of the treating physician's opinion is inaccurate and is not supported by substantial evidence.
C.
Next, Plaintiff alleges that the ALJ provides no justification for rejecting the treating physician's limitations. (PageID 617). Specifically, Dr. Gollamudi opined that Plaintiff is unable to 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 his physical and mental impairments; sustain attention and concentration on his work to meet normal standards of work productivity and work accuracy; behave in an emotionally stable manner; maintain concentration and attention for extended periods; perform activities within a schedule, maintain regular attendance and be punctual within customary tolerances; get along with co-workers or peers without unduly distracting them or exhibiting behavior extremes; and work in coordination with, or in proximity to, others without being unduly distracted by them. (PageID 617). Defendant argues that the ALJ "reasonably rejected that portion of Dr. Gollamudi's opinion," for a variety of reasons, including internal inconsistency, vagueness, and judicial discretion. (PageID 635-638).
The ALJ may reject the treating physician's opinion. However, the ALJ must provide good reasons for such rejection.
ALJ's generally give more weight to opinions from [the] treating source, since 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 of brief hospitalizations.20 C.F.R. § 404.1527(d) (2) (emphasis added). Moreover, the rule mandates that the treating physician be given controlling weight if his opinion on:
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.
In rejecting the treating physician's opinion, the Defendant argues that parts of Dr. Gollamudi's interrogatories were inconsistent with the case record. Specifically, Defendant alleges that Dr. Gollamudi's interrogatory response was a "fragmented" "no[n] rational" response, which was interpreted within reason. (PageID 635-636). However, the record reflects that Dr. Gollamudi's opinion provides simple direct answers to the questions presented. In fact, the first page of the interrogatories states "[t]he purpose of the questions is to obtain clarification of how the claimant's medical impairments affect his ability to perform certain work-related functions." (PageID 591). Thus, the interrogatories are merely a supplement to the previous diagnosis and record evidence. (PageID 579-589). Dr. Gollamudi's opinion also indicates the medical conditions upon which the interrogatories are based, and contains readings of claimant's blood pressure, diagnoses, respiratory levels, etc. (PageID 585-588). Contrary to Plaintiff's assertions otherwise, the evaluations and opinions of Dr. Tanley and Dr. Payne are consistent with the opinion of Dr. Gollamudi. The only contrary evidence is that of the non-examining reviewers.
However, even non-examining reviewer Dr. Bonds found Plaintiff's "depression and lack of drive and energy seem to contribute to a lack of persistence in completing even simple routine repetitive tasks." (PageID 469).
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Accordingly, the Court finds that the rejection of Dr. Gollamudi's opinions, as the treating physician, is not supported by substantial evidence. Specifically, the ALJ fails to cite, as required, good reasons for rejecting his opinion.
III.
This 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).
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. A sentence of remand provides the required relief in cases where further fact-finding is necessary. See Faucher v. Sec'y of Health & Human Servs., 17 F.3d 171, 174 (6th Cir. 1994) (citation omitted). In a sentence four remand, this Court makes a final judgment on the Commissioner's decision and "may order the secretary to consider evidence on remand to remedy a defect in the original proceedings, a defect which caused the secretary's misapplication of the regulations in the first place." Id. at 175.
Here, the ALJ's RFC was not supported by substantial evidence. Specifically, the ALJ improperly drew his own conclusions from the record evidence, and created findings that did not exist. Furthermore, the ALJ failed to give good reasons for rejecting Dr. Gollamudi's limitations.
IV.
Based upon the foregoing, the Court concludes that remand is appropriate in this matter because there is insufficient evidence to support the ALJ's decision.
IT IS THEREFORE ORDERED that the decision of the Commissioner to deny William McGhee benefits is REVERSED, and this matter is REMANDED under sentence four of 42 U.S.C. § 405(g).
On remand, the Commissioner shall: (1) consider the totality of the evidence without drawing improper conclusions based on portions of the record; (2) reconsider Dr. Gollamudi's findings as a treating physician and address the requirements of 20 C.F.R. § 404.1527(d)(2) if rejecting his findings; (3) reassess Plaintiff's RFC in accordance thereto; and (4) present an accurate RFC to the vocational expert.
IT IS SO ORDERED.
______________________
Timothy S. Black
United States District Judge