Opinion
Case No. 1:14-cv-250
10-07-2014
BARRY L. MOORE, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER THAT: (1) THE ALJ'S NON-DISABILITY FINDING IS FOUNI SUPPORTED BY SUBSTANTIAL EVIDENCE, AND AFFIRMED; AND (2) 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 Administrative Transcript ("Tr.") (Tr. 12-22) (ALJ's decision)).
I.
On August 30, 2010, Plaintiff filed an application for SSI, alleging disability beginning October 15, 1999. (Tr. 12). On January 6, 2012, Plaintiff, through his attorney, submitted a written request to amend the alleged onset date to December 31, 2006. (Id.) Plaintiff alleged disability due to cervical pain and a right arm and hand injury. (Tr. 14). The claim was denied initially on February 16, 2011 and upon reconsideration on July 14, 2011. (Tr. 12). Thereafter, Plaintiff filed a written request for a hearing on August 11, 2011. (Id.) On August 8, 2012, the ALJ held a video hearing. (Id.) Plaintiff appeared in Dayton, Ohio and the ALJ presided over the hearing from Chicago, Illinois. (Id.) Plaintiff was represented by counsel, and a vocational expert also appeared at the hearing and testified. (Id.)
Following the hearing, the ALJ issued a decision concluding that Plaintiff was not disabled within the meaning of the Social Security Act. (Tr. 9-27, 503-30). The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. (Tr. 1-5). Thereafter, Plaintiff properly commenced this action for judicial review pursuant to 42 U.S.C. §§ 405(g) and 1383(c).
As of the date of the hearing, Plaintiff was 57 years old and had dropped out of school in the tenth grade. (Tr. 391). Plaintiff's past relevant work experience includes work as a car repossessor and bus driver. (Tr. 20). Plaintiff alleges that he has been staying with friends, relatives, and girlfriends. (Tr. 508). At the time of the hearing, Plaintiff was living with his girlfriend and infant child, but they had received an eviction notice. (Tr. 509).
Plaintiff claimed that he made C's, D's, and F's in school, was a "slow learner," and was in special education classes. (Tr. 391). Plaintiff claims that he does not write or spell very well, but that these limitations never interfered with his work. (Id.)
Past relevant work experience is defined as work that the claimant has "done within the last 15 years, [that] lasted long enough for [the claimant] to learn to do it, and was substantial gainful activity." 20 C.F.R. § 416.965(a).
Plaintiff alleged that he most recently worked at Compuview in Middletown for five years, building and repairing computers. (Tr. 392). He reported that the job ended when Compuview went out of business in 2006. (Id.) Plaintiff reported that he had not looked for work since that time due to arm and back problems and the fact that the standing and sitting was "getting to" him while at Compuview. (Id.)
The ALJ's "Findings," which represent the rationale of her decision, were as follows:
1. The claimant has not engaged in substantial gainful activity since August 30, 2010, the application date (20 CFR 416.971 et seq.).(Tr. 14-22).
2. The claimant has the following severe impairments: cervical pain, right arm and hand injury (20 CFR 416.920(c)).
3. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of 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 as defined in 20 CFR 416.967(c). The claimant can sit for about 6 hours during an 8-hour workday and can stand and walk for at least 2 hours during an 8-hour workday. He can balance, stoop, kneel, crouch and crawl. The claimant should avoid climbing ladders, ropes or scaffolds and he should avoid working at unprotected heights. The claimant can frequently reach overhead with his right upper extremity, with no limitations on the left upper extremity. He can occasionally perform fingering with his right hand, with no limitations on the left hand.
5. The claimant is capable of performing past relevant work as a car repossessor and a bus driver. This work does not require the performance of work related activities precluded by the claimant's residual functional capacity (20 CFR 416.965).
6. The claimant has not been under a disability, as defined in the Social Security Act, since August 30, 2010, the date the application was filed (20 CFR 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 SSI. (Tr. 22).
It is somewhat unclear what pro se Plaintiff argues on appeal, but the Court will consider: (1) whether the ALJ's RFC finding was supported by substantial evidence; and (2) whether a sentence six remand is appropriate.
The residual functional capacity ("RFC") is the most an individual can still do despite limitations. See 20 C.F.R. § 404.1545(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 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:
Plaintiff reported that in 1993 he had three fingers on his right hand severed while assembling a carnival ride. (Tr. 392). His fingers were reattached shortly thereafter. (Id.)
In May 1999, James A. Brenn, D.C., Plaintiff's chiropractor, summarized his treatment of Plaintiff from October 17, 1966 through March 5, 1999. (Tr. 345-56). Plaintiff had attended a number of sessions with Mr. Brenn, who reported that Plaintiff generally complained of neck and upper back pain and that "he has never taken more than two treatments to resolve any complaint." (Id.)
Dr. Phillip Swedberg performed a consultative exam on Plaintiff in March 2009 and opined that Plaintiff had chronic neck pain, chronic right arm and hand pain, and chronic right leg pain. (Tr. 372-79). Dr. Swedberg found that Plaintiff had 4/5 muscle strength and a diminished range of motion in his right arm. (Tr. 374). There was evidence of atrophy in Plaintiff's right hand and his grasp strength and manipulative ability were diminished. (Id.) The rest of Plaintiff's physical findings were normal. (Id.) Dr. Swedberg opined that Plaintiff was capable of performing a mild to moderate amount of sitting, ambulating, standing, bending, kneeling, pushing, pulling, lifting, and carrying heavy objects. (Tr. 375). He also opined that Plaintiff had difficulty reaching overhead with his right arm and difficulty grasping and handling small objects with his right hand. (Id.)
An x-ray of Plaintiff's thoraco lumbar spine and cervical spine in March 2009 showed slight narrowing of L5-S1, C5-C6, and C6-C7. (Tr. 380). There was no evidence of compression fractures and the rest of the interspaces were normal. (Id.)
Dr. Gerald Klyop reviewed the record on behalf of the agency in April 2009 and opined that Plaintiff could lift 50 pounds occasionally, 25 pounds frequently, and could sit, stand, and walk for about six hours in an eight-hour workday. (Tr. 382-89). He further opined that Plaintiff was limited to less than occasional reaching with his right arm and no fingering with his right hand. (Tr. 385). This opinion was affirmed in September 2009 by Dr. James Gahman. (Tr. 400).
Plaintiff went to the emergency room three times from July to September 2010 for treatment of a dog bite to his hand. (Tr. 403-06, 409-13, 417-23). He reported that his right hand had been weak and prone to hurting with some activities for around 17 years and that there were no recent changes to this condition. (Tr. 404). Doctors observed some chronic wasting in his right hand and that his right hand was weaker than his left. (Tr. 404, 417). July 2010 X-rays of his hands showed no significant abnormalities. (Tr. 429). In March 2011, Plaintiff had additional x-rays of his hands, which showed no changes since the July 2010 x-rays. (Tr. 434-35).
In September 2010, Chiropractor Brenn opined that Plaintiff's prognosis was poor and that Plaintiff could only walk one block, sit or stand for 30 minutes at a time for a total of two hours in an eight-hour day, and would need to take unscheduled breaks. (Tr. 427-28). He further opined that Plaintiff could lift less than ten pounds frequently and only ten pounds occasionally, could not use his right fingers and arm at all, and could only use his left fingers and arm for five percent of the workday. (Tr. 427-28). Mr. Brenn repeated this opinion in April 2011. (Tr. 438-41). In September 2011, Mr. Brenn issued a third opinion, stating that Plaintiff was unable to walk even a block, was only able to stand, walk, and sit for ten minutes at a time, and could not stand, sit, or walk for even an hour in an eight-hour day. (Tr. 453-54). He also opined that Plaintiff would need a three or four hour break after working for five minutes. (Id.) There were no treatment notes or other evidence in the record from Mr. Brenn other than these three opinions and his treatment note from 1999.
In April 2012, Plaintiff went to the ER after falling on his right hand. (Tr. 488). X-rays of his right wrist and right hand were unremarkable and showed soft tissue within normal limits, that the joint spaces were preserved, and unremarkable osseous structures. (Id.) The doctor observed that Plaintiff had some nerve damage to his right arm from a prior injury with muscle loss and atrophy in the web of the first and second digits of the right hand. (Tr. 495). The doctor further noted that Plaintiff's range of motion and strength in the fingers of his right hand was normal. (Id.)
B.
First, the Court will review whether the ALJ's opinion was supported by substantial evidence.
After reviewing all of the evidence, the ALJ determined that Plaintiff has the severe impairments of cervical pain and right arm and hand injury, but was nonetheless capable of a reduced range of medium work. (Tr. 14-20). The ALJ noted that Plaintiff had a long history of problems with his right arm and hand and pain in his cervical spine (Tr. 16-20), but that there was no indication that Plaintiff was more limited that her RFC assessment.
On April 9, 2009 a state reviewing doctor, Dr. Klyop, opined that Plaintiff was capable of lifting a moderate amount of weight, sitting, standing, and walking for six hours in an eight-hour day, and was only limited in the amount he could reach overhead with his right arm and use his right hand. (Tr. 382-89, 400). Dr. Klyop found that Plaintiff's strength was 5/5 in all areas except 4/5 in his right shoulder, elbow, wrist, and fingers. (Tr. 383). Plaintiff's range of motion was greatly reduced in his right shoulder (90 degrees active and passive flexion). (Id.) He was also unable to oppose his right fingers and thumb due to limited flexion of 120 degrees in proximal and distal interphalageal joints. (Tr. 384). Dr. Klyop found that Plaintiff was only limited in reaching and fingering (fine manipulation). (Tr. 385). The report indicates that there was no medical source statement in the file regarding Plaintiff's physical capacities. (Tr. 388). The ALJ gave Dr. Klyop's opinion great weight (as there was no other opinion to rely on).
Plaintiff was also interviewed by a state agency psychologist, Dr. Swift, on July 22, 2009. (Tr. 390). Plaintiff reported that he had been with his girlfriend for fourteen years and that they live in a house with the girlfriend's mother. (Tr. 391). He reported that his son (and three other children) had been removed from his custody because he fought with his children's mother. (Id.) Plaintiff cried at times during the interview and described his mood as depressed for the past three years. (Tr. 392). He reported some feelings of failure and worthlessness. (Id.) Plaintiff alleged that there are "putty marks" all over his walls from where he has punched holes in them. (Id.) Plaintiff reported that his girlfriend does all of the cooking, cleaning, and laundry. (Tr. 394). Plaintiff claimed that he tries to cut the grass, but is "crying after two to three stripes," and his girlfriend has to complete the task. (Id.) Plaintiff stated that he does not "care about money" from Social Security, but wants a medical card so that he can obtain medical treatment and "feel human again." (Tr. 395).
Dr. Swift assigned Plaintiff a GAF score of 50. Dr. Swift found that: (1) Plaintiff is moderately impaired in relating to others; (2) moderately impaired in his ability to maintain attention to perform routine tasks; and (3) markedly impaired in his ability to withstand the stress and pressures associated with day-to-day activity. (Tr. 395-96). Dr. Swift diagnosed Plaintiff with bipolar disorder. (Tr. 396). A subsequent report from Dr. Chiappone found Plaintiff had a GAF score of 58. (Tr. 447). Dr. Chiappone diagnosed Plaintiff with major depression and intermittent explosive disorder. (Id.)
The Global Assessment of Functioning ("GAF") is a numeric scale (1 through 100) used by mental health clinicians and physicians to rate subjectively the social, occupational, and psychological functioning of adults. A score of 41-50 indicates serious symptoms or any serious impairment in social, occupation, or school functioning.
A GAF score of 51-60 indicates moderate symptoms or moderate difficulty in social, occupational, or school functioning.
Chiropractor Brenn is the closest person Plaintiff has to a treating physician. Mr. Brenn had been seeing Plaintiff since he was sixteen years old. (Tr. 515). Mr. Brenn completed a residual functional capacity form, finding that Plaintiff could only sit for 2 hours in an 8-hour workday and stand/walk for 2 hours during a 8-hour workday. (Tr. 427). Mr. Brenn found that Plaintiff could never lift more than 20 pounds and could only occasionally lift 10 pounds. (Tr. 428). Additionally, he found that Plaintiff could never grasp, turn, twist, reach, or use fine manipulation on the right. (Id.) The ALJ found that Mr. Brenn's opinion was not entitled to weight because it was inconsistent with the medical evidence of record. (Tr. 18). For example, Mr. Brenn opined that Plaintiff was incapable of standing, sitting, or walking although there is no indication in the record that Plaintiff had any medical issues that would cause these significant restrictions. Further, objective tests showed normal findings regarding Plaintiff's legs and his gait was repeatedly observed to be normal. (Tr. 374, 379, 404). The ALJ also noted that Mr. Brenn's opinions were inconsistent with the imaging studies showing only mild abnormalities with Plaintiff's hand and neck as well as his conservative treatment history. The only evidence in the record from Mr. Brenn is a treatment note from 1999 stating that Plaintiff "has never taken more than two treatments to resolve any complaint." (Tr. 345-46). Accordingly, this Court finds that the ALJ properly discredited Mr. Brenn's opinion as inconsistent.
The form states that Mr. Brenn included a "note on the next page" but it does not appear in the record. (Id.)
Moreover, evidence from "other sources" may not be used to establish the existence of a medically determinable impairment or given controlling weight. 20 C.F.R. § 404.1513(d)(1). "Other sources" include nurse-practitioners, physicians' assistants, naturopaths, chiropractors, audiologists, and therapists. Id. When considering opinions from non-medical sources who have seen a plaintiff in a professional capacity, the ALJ should look to several factors, including the opinion's consistency with other evidence, how long the source has known the individual, and how well the source explained his opinion. Winning v. Comm'r of Soc. Sec., 661 F. Supp.2d 807, 820 (N.D. Ohio 2009). While Mr. Brenn had been seeing Plaintiff since he was 16, the record does not reflect a 40+ year treatment history, nor do Mr. Brenn's records reflect objective findings that support his opinion.
Accordingly, there is simply no indication in the record that Plaintiff was more limited than the ALJ's RFC assessment. The Court has no doubt that the lack of medical records is in part related to the fact that Plaintiff is indigent and cannot afford medical treatment. However, the Court cannot simply rely on Plaintiff's subjective complaints alone. "Discretion is vested in the ALJ to weight all the evidence," and she did not abuse that discretion in this instance. Collins v. Comm'r of Soc. Sec., 357 F. App'x 663, 668 (6th Cir. 2009).
Plaintiff repeatedly states throughout the record that he does not even want financial benefits, he just wants an insurance card. "[T]he medicine or treatment an indigent person cannot afford is no more a cure for his condition than if it had never been discovered...To a poor person, a medicine that he cannot afford to buy does not exist." Lovelace v. Bowen, 813 F.2d 55, 59 (5th Cir. 1987).
C.
In April 2014, Plaintiff submitted additional evidence, including medical records, a medical opinion, and notes from various employers to this Court. In doing so, Plaintiff implicitly requested a remand under sentence six of 42 U.S.C. Section 405(g).
Evidence that was not before the ALJ cannot be considered when determining whether the ALJ's decision is supported by substantial evidence. Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001).
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Plaintiff has the burden under sentence six to demonstrate that the evidence he now presents in support of a remand is "new" and "material," and that there was "good cause" for his failure to present this evidence in the prior proceeding. Hollon v. Comm'r of Soc. Sec., 447 F.3d 477, 483 (6th Cir. 2006).
Plaintiff has not established that good cause exists for his failure to timely submit this evidence to the ALJ. The good cause requirement is satisfied if there is a "valid reason" for the failure to submit evidence at a prior hearing. Oliver v. Sec'y of Health & Human Servs., 804 F.2d 964, 966 (6th Cir. 1986). Plaintiff failed to give any reason for why he did not offer or could not have offered this "new" evidence to the ALJ. Further, the age of this evidence alone does not equate good cause and the Sixth Circuit has rejected the circular argument that good cause exists simply by the virtue of the fact that the evidence did not exist prior to the hearing. Id. ("[T]his circuit has taken a harder line on the good cause test than simply relying on the age of the evidence."). Here, Plaintiff does not provide an explanation for why he waited until after the ALJ issued her decision to undergo this testing and to obtain the letters from the employers and Dr. Malloy. Accordingly, no good cause has been shown. See Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001) ("A claimant shows 'good cause' by demonstrating a reasonable justification for the failure to acquire and present the evidence before the ALJ."). Moreover, Plaintiff was represented by counsel during the administrative proceedings, so the Court declines to give him greater leeway when considering whether he had a good reason for failing to obtain this additional evidence before the ALJ's decision. Trandafir v. Comm'r of Soc. Sec., 58 F. App'x 113, 115 (6th Cir. 2003) ("Only under special circumstances, i.e., when a claimant is without counsel, is not capable of presenting an effective case, and is unfamiliar with hearing procedures, does an ALJ have a special, heightened duty to develop the record.").
Furthermore, this evidence is not new because it includes MRI scans of Plaintiff's neck and chest from January 2013, an EMG from November 2012, two letters from potential employers stating that Plaintiff was unable to do work, and a medical opinion from Dr. Kevin Malloy that Plaintiff had weakness in his right arm and hand and was "unable to work for the foreseeable future." (Doc. 5). All of this evidence was available prior to the ALJ's decision. Specifically, Plaintiff could have procured the MRIs and EMG as well as contacted both the employers and Dr. Malloy prior to October 2012 when the ALJ issued her decision. If this Court were to accept this evidence as "new" based on its date, every claimant who obtained post-decision evidence that was inconsistent with the ALJ's findings would be entitled to a sentence six remand. Accordingly, Plaintiff fails to meet his burden in demonstrating that a sentence six remand is required.
Plaintiff also argues that this Court should hold a hearing so that it can observe Plaintiff's hand and arm. During his video hearing with the ALJ, Plaintiff's attorney asked if the ALJ could see Plaintiff's hand, but she could not. (Tr. 521). The ALJ dismissed the inquiry, claiming that "all I have to do is look at the medical evidence." (Id.) While this Court finds that it was improper for the ALJ to dismiss an observation of Plaintiff's allegedly atrophied hand, neither the ALJ nor this Court are medical professionals and simply observing Plaintiff's hand, without objective medical evidence supporting limitations, is insufficient to support a disability finding.
The findings of an ALJ in a social security hearing are conclusive, if supported by substantial evidence. Richardson v. Perals, 402 U.S. 389, 401 (1971). "Substantial evidence means more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept [as adequate to support a conclusion]." Id. The Sixth Circuit has also held that "[t]he findings of the Commissioner are not subject to reversal merely because there exists in the record substantial evidence to support a different conclusion . . . This is because there is a 'zone of choice' within which the Commissioner can act without gear of court interference." Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). The ALJ's decision "cannot be overturned if substantial evidence, or even a preponderance of evidence also supports the claimant's position, so long as substantial evidence also supports the conclusion reached by the ALJ." Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 4777 (6th Cir. 2003). The Court will therefore "not try the case de novo, nor resolve conflicts in evidence, nor decide questions of credibility." Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997).
III.
For the foregoing reasons, Plaintiff's assignments of error are unavailing. The ALJ's decision is supported by substantial evidence and is affirmed.
IT IS THEREFORE ORDERED THAT the decision of the Commissioner, that Barry Moore was not entitled to supplemental security income is found SUPPORTED BY SUBSTANTIAL EVIDENCE, and AFFIRMED. The Clerk shall enter judgment accordingly, and, as no further matters remain pending for the Court's review, this case is CLOSED in this Court. Date: 10/7/14
s/ Timothy S. Black
Timothy S. Black
United States District Judge