Opinion
08-26-2013
DEBORAH J. MITCHELL, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, D efendant.
Judge Timothy S. Black
ORDER THAT: (1) THE ALJ'S NON-DISABILITY FINDING IS FOUND NOT
SUPPORTED BY SUBSTANTIAL EVIDENCE, AND REVERSED;
(2) JUDGMENT SHALL BE ENTERED IN FAVOR OF PLAINTIFF
AWARDING BENEFITS
This is a Social Security disability benefits appeal. At issue is whether the administrative law judge ("ALJ") erred in finding the Plaintiff "not disabled" and therefore unentitled to disability insurance benefits ("DIB") and Supplemental Security Income ("SSI"). (See Administrative Transcript ("Tr.") (Tr. 22) (ALJ's decision)).
I.
Plaintiff first filed applications for DIB and SSI on October 20, 2005, alleging a disability beginning on August 24, 2004. (Tr. 154-161). Those applications were denied initially and Plaintiff did not request reconsideration of those determinations. (Tr. 79-87). Plaintiff filed additional applications for DIB and SSI on October 26, 2007 with the same alleged onset date of August 24, 2004. (Tr. 162-72). Those claims were denied initially and upon reconsideration. (Tr. 88-93, 96-101). In February 2009, Plaintiff filed an untimely request for hearing on her application. (Tr. 104-07). ALJ Sarah Miller dismissed the matter on the basis that Plaintiff's request for hearing was not timely and Plaintiff had not shown good cause for the delay. (Tr. 70-73). On review, the Appeals Council vacated the ALJ's order and remanded the case to her for further consideration and an opportunity for a hearing. (Tr. 74-78, 116-19). On November 23, 2009, the ALJ held a hearing on Plaintiff's claims. (Tr. 28-63). Plaintiff and a vocational expert testified, with Plaintiff's attorney in attendance. (Tr. 10-22). The ALJ rendered her decision on January 28, 2010, finding that despite severe mental and physical impairments, Plaintiff was not disabled. (Tr. 20-22). The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. 20 C.F.R. §§ 404.955, 404.981, 416.1455, 416.1481. Plaintiff now seeks judicial review in this Court pursuant to section 205(g) of the Act. See 42 U.S.C. §§ 405(g), 1383(c)(3).
Plaintiff was 43 years old on the alleged disability onset date and was 48 years old at the time of the administrative hearing and when the ALJ issued her decision. (Tr. 21, 53). Plaintiff has a GED and has had on-the-job training at a number of positions that she has held over the years, including as a hospital instrument technician. (Tr. 35). In the fifteen years prior to the alleged disability onset date, Plaintiff most recently held the following hospital jobs: Core-Tech (working as a nurse's aide and transporting patients) from 2004-2005, Instrument Technician (preparing and wrapping instruments for patient surgery) from 2003-2004, Patient Care Services Associate (setting up and cleaning surgical and operating rooms) from 2002-2003, and Housekeeper (cleaning patient rooms) from 1999-2000. (Tr. 51-53, 194-99). Prior to the hospital jobs, she also worked in assembly line and packing jobs at several different factories. (Tr. 50-51, 194-95). In 2005, after the alleged disability onset date, Plaintiff worked for a brief time at the state MRDD assisting and moving patients. (Tr. 35-36, 200, 226-31). Plaintiff stated that she was let go from that job due to her inability to physically perform the job requirements (Tr. 546).
The ALJ's "Findings," which represent the rationale of her decision, were as follows:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2010.
2. The claimant has not engaged in substantial gainful activity since August 24, 2004, the alleged onset date (20 C.F.R. §§ 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: history of cervical strain, asthma and somatoform disorders (20 C.F.R. §§ 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to lift 50 pounds occasionally and 25 pounds frequently, sit six hours total in an eight-hour workday, and stand and walk up to a total of six hours in an eight-hour workday. Due to her mental problems, she is capable of understanding, remembering, and carrying out simple one and two steps [sic] instructions
and her ability to maintain attention is only moderately limited. She is moderately limited in completing a normal workday and workweek and performing at a consistent basis, but is not precluded.(Tr. 15-22).
6. The claimant is unable to perform her past relevant work as a core technician and instrument technician, but she is still capable of performing her past relevant work as a housekeeper and hospital cleaner. This work does not require the performance of work related activities precluded by the claimant's residual functional capacity (20 C.F.R. §§ 404.1565 and 416.965).
7. The claimant was born on March 19, 1961 and was 43 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 C.F.R. §§ 404.1564 and 416.964).
8. The claimant has at least a high school education and is able to communicate in English (20 C.F.R. §§ 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled" whether or not the claimant has transferable job skills (See SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2).
10. In the alternative, considering the claimant's age, education, work experience, and residual functional capacity, there are other jobs that exist in significant numbers in the national economy that the claimant also can perform (20 C.F.R. §§ 404.1569, 404.1569(a), 416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from August 24, 2004, through the date of this decision (20 C.F.R. §§ 404.1520(f) and 416.920(f)).
In sum, the ALJ concluded that Plaintiff was not under a disability as defined by the Social Security Regulations and was therefore not entitled to DIB or SSI. (Tr. 22).
On appeal, Plaintiff argues that: (1) the ALJ erred in assigning "no weight" to the report by the psychological examining consultant, Dr. Kenford; and (2) the ALJ erred in her characterization of Plaintiff's residual functional capacity ("RFC") while questioning the vocational expert about other work the Plaintiff could perform. The Court will address these arguments in turn.
II.
The Court's inquiry on appeal is to determine whether the ALJ's non-disability finding is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). In performing this review, the Court considers the record as a whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence supports the ALJ's denial of benefits, that finding must be affirmed, even if substantial evidence also exists in the record upon which the ALJ could have found plaintiff disabled. As the Sixth Circuit has explained:
"The Commissioner's findings are not subject to reversal merely because substantial evidence exists in the record to support a different conclusion. The substantial evidence standard presupposes that there is a "zone of choice" within which the Commissioner may proceed without interference from the courts. If the Commissioner's decision is supported by substantial evidence, a reviewing court must affirm."Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994).
The claimant bears the ultimate burden to prove by sufficient evidence that she is entitled to disability benefits. 20 C.F.R. § 404.1512(a). That is, she must present sufficient evidence to show that, during the relevant time period, she suffered an impairment, or combination of impairments, expected to last at least twelve months, that left her unable to perform any job in the national economy. 42 U.S.C. § 423(d)(1)(A).
In considering an application for SSI or DIB, the Social Security Agency is guided by the following sequential benefits analysis:
Step 1: the Commissioner asks if the claimant is still performing substantial gainful activity.See Combs v. Commissioner of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006); 20 C.F.R. 404.1520, 416.920.
Step 2: the Commissioner determines if one or more of the claimant's impairments are "severe."
Step 3: the Commissioner analyzes whether the claimant's impairments, singly or in combination, meet or equal a listing in the Listing of Impairments.
Step 4: the Commissioner determines whether or not the claimant can still perform his or her past relevant work.
Step 5: if it is established that the claimant can no longer perform her past relevant work, the burden of proof shifts to the agency to determine whether a significant number of other jobs which the claimant can perform exist in the national economy.
A.
1. Relevant Physical Medical Evidence
Plaintiff alleges that she was injured on August 24, 2004, when a surgical cart fell on her. (Tr. 466, 475). On follow-up, treating doctors diagnosed Plaintiff with cervical strain and a closed head injury. (Tr. 475-76). Physical medicine and rehabilitation specialist, Dr. Tammy Musolino, M.D., treated Plaintiff for the cervical strain from September 2004 through late 2005. (Tr. 344-478). Plaintiff was treated with pain medications and physical therapy, but was not consistently compliant with either. (Tr. 439-71; 442, 460). X-rays from September 16, 2004 indicated mild to moderate degenerative disease in Plaintiff's cervical spine. (Tr. 301-03). An MRI performed on November 17, 2004 indicated a moderate-sized herniated disk in Plaintiff's cervical spine. (Tr. 298-300, 460). On December 6, 2004, Dr. Stephen Molloy, PT, OCS, examined Plaintiff and stated that, although Plaintiff was reporting pain at an 8 out of 10 on a pain scale, she was "unable to describe her symptoms in quantifiable terms" and provided "vague answers" to questions related to her symptoms. (Tr. 435).
Dr. Musolino reported in February 2005 that Plaintiff could return to work with the following restrictions that would be in effect for an eight week period: lift not more than 10 pounds, no bending, stooping, or squatting, stand not more than 10 minutes without a break, no climbing, and no overhead lifting. (Tr. 315). On September 20, 2005, Dr. Musolino reported that Plaintiff "wanted to stick with conservative management" for her neck pain, refused injections, and has been noncompliant with medications. (Tr. 308). On November 8, 2005, Dr. Musolino reported:
The only time that I had completely taken her off work was from October 18, 2004 to December 1, 2004. Since that time she has been maintained on restrictions of no lifting more than 5 to 10 pounds, bending, stooping, squatting, climbing or standing longer than 10 minutes without a break.
She is however able to do a desk job, as well as [sic] job that does involve sitting and standing with brakes [sic], twisting and turning, just no heavy pushing, pulling or lifting.(Tr. 429-30). On the same date, Dr. Musolino went on to state that Plaintiff "is otherwise is [sic] a very healthy human being, is very capable of work and certainly does not need to be on longterm disability for this." (Tr. 429-30).
On December 16, 2005, state agency reviewing physician Dr. Anton Freihofner reviewed the record and opined that Plaintiff could occasionally lift 50 pounds, frequently lift 25 pounds, stand and/or walk for a total of 6 hours in an 8-hour workday, sit for about 6 hours in an 8-hour workday, and push and/or pull without limitation. (Tr. 479-86). Dr. Freihofner further opined that Plaintiff could frequently climb ramps and stairs, balance, stoop, kneel, crouch and crawl, and occasionally climb ladders, ropes and scaffolds. (Tr. 481).
On August 30, 2006, Plaintiff visited the emergency room for treatment of her neck pain. (Tr. 510). She described an aspirin allergy and requested that pain medication be prescribed. Dr. Oliver Loyd, M.D. diagnosed her with chronic neck pain and agreed to prescribe her medication, but refused to prescribe narcotics. (Tr. 510).
On September 30, 2006, Plaintiff returned to the emergency room complaining of neck pain and requested pain medication. (Tr. 509). She reported currently taking no medication and described an allergy to codeine and ibuprofen. (Tr. 509). Dr. Michael Bain, M.D., diagnosed her with chronic back and neck pain and discharged her with a prescription for pain medication. (Tr. 509).
Diagnostic radiology reports in October 2006 and February 2007 showed degenerative disc disease of the cervical spine with mild spurring. (Tr. 504, 508).
In April 2007, Plaintiff was seen at the Good Samaritan Hospital for "follow up on back pain." (Tr. 640). Plaintiff alleged allergies to NSAIDs, aspirin and codeine. (Tr. 640).
On December 3, 2007, state agency reviewing physician, Dr. W. Jerry McCloud, M.D., reviewed the record and opined that Plaintiff could occasionally lift 50 pounds, frequently lift 25 pounds, stand and/or walk for a total of about 6 hours in an 8-hour workday, sit for a total of about 6 hours in an 8-hour workday, and do unlimited pushing and/or pulling. (Tr. 534).
On June 7, 2008, Dr. Nick Albert, M.D., a state agency physician, affirmed Dr. McCloud's opinion. (Tr. 575).
2. Relevant Mental Health Evidence
On January 9, 2006, Bill Dvorak, LISW, sent Plaintiff a letter, terminating her mental health counseling. (Tr. 619).
There are no other records of this treatment in the medical evidence.
On February 6, 2008, clinical psychologist, Dr. Susan L. Kenford, Ph.D., examined Plaintiff and diagnosed her with borderline intellect and a pain disorder associated with both psychological factors and a general medical condition and assigned a Global Assessment of Functioning (GAF) score of 25. (Tr. 545-52; 549-51). Dr. Kenford opined that:
The GAF scale is used to report a clinician's judgment of an individual's overall level of functioning. Clinicians select a specific GAF score within the ten-point range by evaluating whether the individual is functioning at the higher or lower end of the range. A GAF score between 21 and 30 indicates behavior that is considerably influenced by delusions or hallucinations OR serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) OR inability to function in almost all areas (e.g., stays in bed all day, no job, home, or friends). See American Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 33-34 (American Psychiatric Ass'n, 4th ed. text rev. 2000) (DSM-IV-TR) (emphasis supplied).
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1. Plaintiff's "ability to get along with others, including co-workers and supervisors, is considered markedly impaired at this time." (Tr. 551).
2. Plaintiff's persistence was "quite good with encouragement" and her attention and concentration showed moderate impairment. (Tr. 551).
3. Plaintiff's ability to perform a simple repetitive task is "markedly impaired by her pain condition." (Tr. 551).
4. Plaintiff's ability to handle the everyday stresses and challenges of a work environment is "markedly impaired by her pain condition." (Tr. 552).
On February 25, 2008, Plaintiff began seeing Robb Miller, PC, on an approximately weekly basis for symptoms of anxiety and depression. (Tr. 579).
On March 17, 2008, the state agency reviewing psychologist, Dr. Robelyn Marlowe, PhD, concluded that Plaintiff had mild restriction of activities of daily living, mild difficulties in maintaining social functioning, moderate difficulties in maintaining concentration, persistence, or pace, and no episodes of decompensation. (Tr. 564). She further concluded that Plaintiff could "work at a steady pace to sustain simple repetitive work." (Tr. 570). Dr. Marlowe opined that the IQ findings by Dr. Kenford are inconsistent with Plaintiff's work history, education (GED), and ability to drive. (Tr. 570). Dr. Marlowe further found that Dr. Kenford's opinion that Plaintiff has a marked impairment in her ability to get along with others is without basis. (Tr. 570). Dr. Marlowe also suspected "significant malingering" (Tr. 572) and "a possibility of narcotic seeking behavior" (Tr. 572; 570).
In June 2008, Plaintiff reported that due to the progress she had made in her mental health treatment, she only needed to attend one session per month. (Tr. 590).
B.
First, Plaintiff argues that the ALJ erred in assigning "no weight" to the report by the psychological examining consultant, Dr. Kenford, which would render Plaintiff disabled in the opinion of the vocational expert. (Tr. 61). Instead, in determining that Plaintiff was not disabled and after considering the entire record, the ALJ relied on the opinion of the state agency reviewing psychologist, Dr. Marlowe. (Tr. 16-20). Generally, "controlling" weight should be assigned to the opinions of treating physicians and greater weight should be assigned to examining physicians than non-examining consultants. Ealy v. Comm'r of Soc. Sec., 594 F.3d 504 (6th Cir. 2010). Although an ALJ is not required to accept the mental impairment opinions of a treating physician who relies solely on a claimant's subjective complaints, a psychological opinion that is established "through clinical observations" or "proper psychological techniques" can establish a "medically determinable" disability. Ferguson v. Comm'r of Soc. Sec., 628 F.3d 269, 274 (6th Cir. 2010); Crum v. Sullivan, 921 F.2d 642, 645 (6th Cir. 1990).
There is nothing in the record suggesting a deficiency in Dr. Kenford's psychological techniques or in her analysis commissioned by the SSA. Dr. Marlowe does not challenge any of Dr. Kenford's methodology or testing protocol, but instead simply provides a subjective reaction to Dr. Kenford's recorded observations. Even the ALJ herself did not claim that Dr. Kenford relied solely on Plaintiff's subjective complaints, instead using the word "mostly" and acknowledging that Dr. Kenford's analysis was based on some measure of concrete psychological evidence. (Tr. 19). Considering Dr. Kenford alone had the opportunity to examine Plaintiff's mental condition and without any explanation of the deficiencies in her professional methodology from Dr. Marlow, the ALJ's credibility determination and subsequent assignments of weight to the opinions of Dr. Kenford and Dr. Marlowe were unreasonable.
This improper assignment of weight points to a deficiency in the ALJ's determination of Plaintiff's RFC because if Dr. Kenford's evaluation is credited, the vocational expert concluded that Plaintiff could not maintain any employment. (Tr. 61). Here, the Court finds that the ALJ improperly weighed the medical evidence by failing to give sufficient weight to the examining psychologist.
C.
Second, Plaintiff argues that the ALJ erred in her characterization of Plaintiff's physical RFC while questioning the vocational expert about other work the Plaintiff could perform. The ALJ asked the vocational expert to assume an individual with the same age, education, work experience and physical impairments and limitations as Plaintiff who can sit for six out of eight hours, stand or walk for six out of eight hours, frequently lift 25 pounds, occasionally lift 50 pounds, who also has "emotional problems" resulting in moderately limited ability to maintain attention and concentration for extended periods, complete a normal work day and work week without interruptions from psychologically based symptoms, and maintain concentration, persistence or pace, but that the claimant can work at a steady pace and sustain simple repetitive work. (Tr. 56-58).
The ALJ's conclusion that Plaintiff could frequently lift 25 pounds and occasionally lift 50 pounds is based on the assessment of Dr. McCloud, which was affirmed by Dr. Albert. Dr. McCloud's assessment, however, fails to demonstrate any basis for this conclusion. (Tr. 533-40). He does not acknowledge the documented existence of a disc protrusion in Plaintiff's back, which was instead characterized as a "cervical strain" during the vocational expert's testimony. (Tr. 476; 56-57). The ALJ's determination of Plaintiff's lifting capacity is based in part on her finding that Plaintiff was "not totally credible" due to evidence of the daily activities she was able to perform, but the ALJ failed to recognize that all the listed activities were performed with the assistance of Plaintiff's daughter. (Tr. 210-17). The hypothetical offered to the vocational expert involved a characterization of Plaintiff's capabilities that was unsubstantiated in the record. (Tr. 56-57).
The ALJ's faulty assignment of weight to the physicians' assessments, and the vocational expert's testimony regarding other work Plaintiff could perform that was based on the ALJ's mischaracterization of Plaintiff's RFC, do not constitute substantial evidence on which to base a finding of non-disability. Instead, here, the proof of disability is strong and opposing evidence is lacking in substance
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 case 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, remand will serve no purpose other than delay. As fully recited supra, in view of the extensive medical record of evidence of disability, the credible and controlling findings and opinions of treating and examining physicians, and the opinion of the vocational expert that no jobs exist when Plaintiff's limitations are properly characterized, proof of disability is overwhelming.
IT IS THEREFORE ORDERED THAT:
The decision of the Commissioner, that Plaintiff was not entitled to a disability insurance benefits and supplemental security income beginning August 24, 2004, 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. The Clerk shall enter judgment accordingly.
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Timothy S. Black
United States District Judge