Opinion
08-26-2013
GLORIA MOORE, 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; AND
(2) JUDGMENT 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. 13-23) (ALJ's decision)).
I.
On November 13, 2007, Plaintiff Gloria Moore filed a Title II application for a period of disability and disability insurance benefits and a Title XVI application for supplemental security income, alleging disability beginning January 17, 2007. (Tr. 126-136). The claims were denied initially and upon reconsideration. (Tr. 61-67, 72-85).
Pursuant to a timely filed written request, a hearing was held on August 3, 2010, in Dayton, Ohio, at which Plaintiff appeared and testified. (Tr. 27). Eric Pruitt, an impartial vocational expert, also appeared and testified. Administrative Law Judge Amelia G. Lombardo ("the ALJ") issued her decision on October 19, 2010, finding that Plaintiff was not disabled as defined by the Social Security Act and, thus, is not entitled to benefits. (Tr. 22).
The Appeals Council denied review, making the ALJ's decision the final decision of Commissioner of Social Security Michael Astrue ("the Commissioner"). (Tr. 1). Plaintiff then commenced this action in federal court for judicial review of the Commissioner's decision pursuant to 42 U.S.C. § 405(g).
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 March 31, 2012.
2. The claimant has not engaged in substantial gainful activity since January 17, 2007, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairment: the residuals of a remote stent placement (20 CFR 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 CFR Part 404, Subpart P, Appendix 1 (20 CFR 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 perform the full range of medium work as defined in 20 CFR 404.1567(c) and 416.967(c).
6. The claimant is capable of performing past relevant work as a nurse's aide, classified as semiskilled work at the medium exertion level, stock clerk, classified as semiskilled work at the heavy exertion level, plastic injection molding machine operator, classified as unskilled work at the light exertion level, and production solderer, classified as unskilled work at the light exertion level.(Tr. 15-22).
In sum, the ALJ concluded that Plaintiff was not under a disability as defined by the Social Security Regulations, and, therefore, was not entitled to DIB or SSI. (Tr. 22).
On appeal, Plaintiff argues that: (1) the ALJ failed to properly consider or address the record as a whole by failing to even address Plaintiff's pain, symptoms, and side effects; by improperly mischaracterizing and exaggerating Plaintiff's activities of daily living; and by ignoring the consensus of medical RFC opinions and the vocational expert's testimony; and (2) the ALJ failed to grant proper weight and deference to the opinions of Plaintiff's treating specialists. The Court will address each error in turn.
II.
The Court's inquiry on appeal is to determine whether the ALJ's non-disability finding is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). In performing this review, the Court considers the record as a whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence supports the ALJ's denial of benefits, that finding must be affirmed, even if substantial evidence also exists in the record upon which the ALJ could have found plaintiff disabled. As the Sixth Circuit has explained:
"The Commissioner's findings are not subject to reversal merely because substantial evidence exists in the record to support a different conclusion. The substantial evidence standard presupposes that there is a "zone of choice" within which the Commissioner may proceed without interference from the courts. If the Commissioner's decision is supported by substantial evidence, a reviewing court must affirm."Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994).
The claimant bears the ultimate burden to prove by sufficient evidence that 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. Background
Plaintiff was 60 years old when she filed for disability. She has a limited education and did not go past 11th grade in school. (Tr. 31). She lived alone in Biltmore Senior Citizen Home, an income-based living complex (Tr. 229), and then another apartment, and has been divorced since 1992. (Tr. 31, 546). She had two children but they both died in an automobile accident with her ex-husband in 1969. (Tr. 546).
As a full-time plastic injection molding machine operator and as a full-time production solderer, she did a lot of grinding, soldering, pushing, pulling, and lifting. (Tr. 40). She was required to lift 50 pounds, and she was required to stand "75% to 80% of the time." (Id.)
Plaintiff testified that she stopped working as a certified nurse because she hit her knee hard against a bedrail and fell down while taking care of a patient. (Tr. 35). Six months later, it started "throwing" her, and x-rays and MRIs revealed that the muscle tissues around her kneecap were weak, and it was not holding her like it should. (Id.) She did not, however, pursue a workers' compensation claim, because she originally thought that her knee was merely bruised. (Id.) She did not return to work after that because "the doctors said, with the weakening in my tissues around my kneecap, I could not turn or hold a patient, or help them up, because it would endanger them falling as well as me, and I'd rather not done that." (Id.) The job required her to lift patients, turn them, make their beds, get them out of bed, and change them. (Tr. 40). She tried to seek other employment, and she entered rehab services where tests were conducted, but "they said, there's nothing we can do for you right now." (Tr. 35). Plaintiff testified that these tests showed that she was not ready for work, that her knee would not hold up, and that the concussions she had from falling were affecting her thought process. (Tr. 36). She did not receive unemployment compensation. (Id.)
2. Hearing Testimony
Plaintiff testified that she rode the bus to court because she does not have a driver's license. (Tr. 30-31). She has never had a driver's license. (Tr. 31). She testified she is "a very brittle diabetic, which means that I'm uncontrollable." (Tr. 32). She takes two insulin shots per day, but this does not yet control her blood sugars. (Id.) Before the shots, she took pills. (Id.)
Plaintiff testified that her knee has a tendency to "throw" her, which she described as a "twist, and - because of, they said, weak muscles." (Tr. 33). She does exercises for this, "but it's not strengthening it like they had liked to have seen." (Id.) She alleges that she falls often, and has been to the hospital as a result. (Tr. 41-42). According to Plaintiff, her knee hurts on rainy days and when walking far distances, and she has trouble standing and sitting, too. (Tr. 36). She testified that her legs start swelling, and then she is not able to even walk. (Tr. 36-37). She testified that her arms both have carpal tunnel, and her elbows have tendonitis. (Tr. 37). The most she alleges she is allowed to lift is 20 pounds. (Id.)
Plaintiff testified she also has heart disease. (Tr. 32). She was prescribed nitroglycerine for chest pains. (Tr. 40-41). Plaintiff testified had an angioplasty in 2000, she gets short of breath, and she experiences chest pains when she attempts to lift something. (Tr. 33). Sometimes her legs swell to the size of "elephants," which "they say that it's my heart." (Tr. 32). As a result, her doctors have ordered a lift chair that she is required to sit in most of the time. (Id.) Plaintiff testified that her lift chair "lifts you up so you don't have to try to get up out of the chair. It also lays back so you can put your feet, and elevate them." (Id.) She elevates her feet "most of the time." (Id.)
Plaintiff was in mental health treatment at East Dayton Health Center, but "they stopped the program there." (Tr. 34). However, she still experiences symptoms, including getting very anxious, uptight, and stressed. (Id.) She gets really shaky and nervous and can't think straight. (Id.) She also sometimes starts "thinking about things that should be in the past, and, and how it affects me now, and it just gets to me." (Tr. 34-35). Her primary care physician prescribed fluoxetine and trazodone, which help with the symptoms. (Tr. 34).
Plaintiff testified she is able to take care of her apartment, but she does have an aide who comes in and helps with running the vacuum, lifting, laundry, taking down curtains, and anything else she can't do. (Tr. 37). She is on the special diabetic Meals on Wheels program, but she does fix breakfast, which usually consists of a bowl of cereal or a hard-boiled egg. (Tr. 38). She leaves her house maybe once or twice a week, mostly to go to the little grocery store about a half block away. (Id.) She used to walk six blocks to her sister's house to help with housework, but she twisted her ankle, which had swelled and caused her to lose her footing. (Id.) She was forced to go to the emergency room, where they wrapped up her foot for two weeks. (Id.) Her sister now drives and picks her up, as Plaintiff can no longer walk the six blocks. (Id.)
Plaintiff alleges she has trouble getting in and out of the bath tub. (Tr. 39). She testified that her leg isn't strong enough to hold her, so her aide helps with that. (Id.) She testified that grooming is sometimes painful due to the tendinitis and arthritis in her elbows and wrists. (Id.)
Vocational expert Eric Pruitt testified that if an individual's ability to lift was only 20 pounds, and their ability to stand was less than one hour per eight-hour workday, that would eliminate all medium level jobs. (Tr. 47).
3. Physical and Mental Impairments
Plaintiff has a history of physical problems and surgical intervention, including a surgery to partially remove her lung due to a car accident in 1972 and a left breast mastectomy in 1990 due to breast cancer. (Tr. 796). She has been treated for a myriad of physical ailments over the years, most notably for breast cancer, heart problems, diabetes, and knee and ankle issues.
Plaintiff was seen in the emergency room in December 2008 because she was unable to control her blood sugars. (Tr. 673). She was also seen from February to May 2010 because she injured her knee, ankle, back, and foot. (Tr. 727). She was in a wheelchair and unable to walk. (Id.) At one point, she fell and landed on her back. (Tr. 762). She has also been treated for significant ankle swelling. (See, e.g., Tr. 663-64). She has a history of falling and has used a walker due to these concerns. (Tr. 536, 547). Plaintiff's sister reported that Plaintiff cannot go out alone because she falls and cannot drive because she is afraid. (Tr. 268). She generally uses a walker or a cane to walk in her apartment. (Tr. 255, 271). She relies on a nursing assistant to help her out. (Tr. 283).
State Agency consultant Damien Danopulos, M.D., examined Plaintiff on February 1, 2008. (Tr. 536). He determined that Plaintiff gave a reliable history. (Id.) His findings were 1) mature onset, non-insulin dependent, poorly controlled diabetes without diabetic complications so far; history of coronary heart disease with a stent and angioplasty in the past with normal coronary arteries after a catheterization which was done on March 2007; 3) left hip anthralgias; 4) left knee anthralgias; and 5) anxiety, depression and being under stress. (Tr. 540). Dr. Danopulos concluded that due to her impairments, Plaintiff's ability to do any work-related activities is affected in a negative way. (Id.).
Sharp, severe pains, extending along a nerve or group of nerves, experienced in a joint and/or joints. http://medical-dictionary.thefreedictionary.com/Arthralgias.
Denise Griffith, M.D., was one of Plaintiff's treating sources at East Dayton Health Center. Dr. Griffith diagnosed Plaintiff with a myriad of mental problems, including chronic anxiety and depression. (Tr. 639). Dr. Griffith also opined that Plaintiff's physical functional capacity is impaired, including Plaintiff's ability to stand/walk and her ability to lift/carry. (Tr. 640). She limited Plaintiff to lifting/carrying no more than five pounds frequently and six to ten pounds occasionally. (Id.) Dr. Griffith also listed a multitude of medications that had been prescribed to Plaintiff. (Tr. 641). Dr. Griffith concluded that Plaintiff is unemployable for at least twelve months after taking the appropriate history and performing the relevant physical examination, and based on a combination of Plaintiff's mental and physical impairments. (Tr. 640).
Plaintiff has been repeatedly diagnosed with anxiety, depression, and stress. She rushed to the emergency room for suicidal ideation in June 2008. (Tr. 642). Notes from the incident indicate that Plaintiff was "very sick of living" and "didn't trust herself anymore." (Tr. 646). She has been treated at both the East Dayton Health Center and Eastway Behavioral Healthcare in Dayton. (See, e.g., Tr. 537, 646). She has also been prescribed medications by her primary care physician. (Tr. 641).
The record indicates that psychology specialist Jacqueline Armstrong also treated Plaintiff at East Dayton Health Center. Dr. Armstrong assessed Plaintiff's mental functional capacity on April 24, 2008. (Tr. 636). She determined that Plaintiff is extremely limited in the following areas:
• The ability to understand and remember detailed instructions;(Id.) She also determined that Plaintiff is markedly limited in the following areas:
• The ability to carry out detailed instructions;
• The ability 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; and
• The ability to respond appropriately to changes in the work setting.
• The ability to maintain attention and concentration for extended periods;
• The ability to work in coordination with or proximity to others without being distracted by them;
• The ability to make simple work-related decisions;
• The ability to accept instructions and respond appropriately to criticism from supervisors;(Id.) Dr. Armstrong concluded that Plaintiff's Generalized Anxiety Disorder and Major Depressive Disorder are chronic and thus unlikely to remediate, and that continued or increased stressors will likely result in even further deterioration of functioning. (Tr. 637).
• The ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes; and
• The ability to set realistic goals or make plans independently of others.
State Agency consultant Vickie Casterline, PhD, assessed Plaintiff's mental residual functional capacity and determined that Plaintiff struggles with social interaction and handling stressful situations and is restricted to simple repetitive tasks in a low stress work environment with limited social contact and few quota/production expectations. (Tr. 554).
B.
First, Plaintiff alleges that the ALJ failed to properly consider or address the record as a whole by failing to even address Plaintiff's pain, symptoms, and side effects; by improperly mischaracterizing and exaggerating Plaintiff's activities of daily living; and by ignoring the consensus of medical RFC opinions and the vocational expert's testimony.
1. Plaintiff's Pain, Symptoms, and Side Effects
According to Social Security Regulation ("SSR") 96-7p, any medically determinable impairment resulting in symptom-related functional limitations and restrictions reported by Plaintiff or treating sources should be taken into account as long as it can reasonably be accepted as consistent with the objective medical evidence. See also 20 CFR § 416.929. 20 CFR § 404.1529 reads, "[i]n determining whether or not you are disabled, we consider all your symptoms, including pain, and the extent to which your symptoms can reasonably be accepted as consistent with the objective medical and other evidence."
SSR 96-7p reads:
In general, a longitudinal medical record demonstrating an individual's attempts to seek medical treatment for pain or other symptoms and to follow that treatment once it is prescribed lends support to an individual's allegations of intense and persistent pain or other symptoms for the purposes of judging the credibility of the individual's statements. Persistent attempts by the individual to obtain relief of pain or other symptoms, such as by increasing medications, trials of a variety of treatment modalities in an attempt to find one that works or that does not have side effects, referrals to specialists, or changing treatment sources may be a strong indication that the symptoms are a source of distress to the individual and generally lend support to an individual's allegations of intense and persistent symptoms.
Pain alone, if the result of an objectively documented medical impairment, may be severe enough to constitute disability. Kirk v. Secretary of Health & Human Services., 667 F.2d 524, 538 (6th Cir. 1981). Plaintiff alleges that the ALJ failed to adequately address several causes of Plaintiff's pain, fatigue, and other symptoms: namely diabetes, heart problems, anxiety, depression, and knee, foot, and ankle pain. The ALJ found none of these to be severe impairments. Pursuant to SSR 96-7p, the record indicates that Plaintiff has a longitudinal medical record demonstrating her attempts to seek medical treatment for pain and other symptoms. Moreover, the record shows persistent attempts by Plaintiff to obtain relief of pain and other symptoms, such as increasing and changing medications due to ineffectiveness, trials of a variety of treatments modalities in an attempt to find one that works or does not have side effects, and referrals to specialists such as Dr. Griffith and Dr. Armstrong.
In determining the credibility of the individual's statements, the adjudicator must consider the entire case record, including the individual's own statements about symptoms. SSR 96-7. Furthermore, an individual's statements about the intensity and persistence of pain or other symptoms or about the effect the symptoms have on his or her ability to work may not be disregarded solely because they are not substantiated by objective medical evidence. Id. It is not sufficient for the adjudicator to make a single, conclusory statement that "the individual's allegations have been considered" or that "the allegations are (or are not) credible." Id. It is also not enough for the adjudicator simply to recite the factors that are described in the regulations for evaluating symptoms. Id. The determination or decision must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight. Id.
In this case, the ALJ ignored virtually all of Plaintiff's extensive testimony at the hearing. The ALJ only briefly mentioned a few generalized statements by Plaintiff. (Tr. 19). The ALJ did not discuss Plaintiff's material testimony and then explain why the testimony was found not credible; rather, she simply failed to mention or analyze Plaintiff's material testimony at all. This constitutes reversible error. When the administrative law judge failed to follow the Commissioner's "own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right," this may result in reversal even if the record contains substantial evidence supporting the ALJ's factual findings. Bowen, 478 F.3d at 746 (citing in part Wilson v. Commissioner, 378 F.3d 541, 546-47 (6th Cir. 2004).
Nowhere in her decision does the ALJ indicate that Plaintiff is now dependent on insulin for her diabetes. In fact, the ALJ actually found that Plaintiff's "diabetes is controlled without insulin." (Tr. 21). Not only did Plaintiff testify that she takes two insulin shots a day, but the record also indicates that Plaintiff has been reliant on insulin. (Tr. 32, 732, 746). The ALJ also failed to recognize Plaintiff's testimony that she is "a very brittle diabetic, which means that I'm uncontrollable." (Tr. 32). Even State Agency consultant Dr. Danopulos found that Plaintiff's diabetes is "poorly controlled." (Tr. 540). The ALJ must consider limitations and restrictions imposed by all of an individual's residual functioning capacity. Maziarz v. Sec'y of HHS, 837 F.2d 240, 244 (6th Cir. 1987). The ALJ's failure to recognize Plaintiff's diabetes, anxiety and depression, and knee, foot, and ankle problems as severe impairments also hampered her ability to consider Plaintiff's impairments in combination. Failure to consider the record as a whole undermines the Commissioner's conclusions. Hurst v. Secretary of Health and Human Services, 753 F.2d 517, 519, (6th Cir. 1985), citing Allen v. Claifano, 613 F.2d 139, 145 (6th Cir. 1973). The standards applied by the ALJ prevent the finding that the Commissioner's decision is supported by substantial evidence. Chief among them is the requirement that all determinations be made based upon the record in its entirety. Houston v. Sec'y of Health & Human Servs., 736 F.2d 365, 366 (6th Cir.1984).
2. Plaintiff's Activities of Daily Living
In her decision, the ALJ opines that Plaintiff "described daily activities including cooking meals, and household chores and laundry." (Tr. 19). However, Plaintiff's actual testimony reflects that she requires the assistance of an aide who comes in and helps with running the vacuum, lifting, laundry, taking down curtains, and anything else she can't do. (Tr. 37). Plaintiff is on the special diabetic Meals on Wheels program and only fixes breakfast, which usually consists of a bowl of cereal or a hardboiled egg. (Tr. 38). She leaves her house maybe once or twice a week, mostly to go to the little grocery store about a half block away. (Id.) Plaintiff has trouble getting in and out of the bath tub. (Tr. 39). Her leg is not strong enough to hold her, so her aide helps with that. (Id.) Grooming is sometimes painful due to the tendinitis and arthritis in her elbows and wrists. (Id.) She requires a cane and/or a walker to move around her apartment, and she requires the assistance of a nurse's aide with chores and to get in and out of her bath tub. (Id.) Her doctors have ordered a lift chair that she is required to sit in most of the time. (Tr. 42). All of this testimony is completely absent from the ALJ 's decision. The ALJ must consider all the record evidence and cannot "pick and choose" only the evidence that supports her position. Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000).
3. Consensus of Medical RFC Opinions and Vocational Expert's Testimony
The ALJ also ignored virtually all of the medical RFC opinions in the record and issued her own RFC that is contradicted by the record. SSR 96-8p provides:
Ordinarily, RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis, and the RFC assessment must include a discussion of the individual's abilities on that basis. A "regular and continuing basis" means 8 hours a day, for five days a week, or an equivalent work schedule.Side effects of any medications, precipitating and aggravating factors, and other factors concerning functional limitations and restrictions should also be considered. Id.
State Agency consultant Dr. Danopulos concluded that due to her impairments, Plaintiff's ability to do any work-related activities is affected in a negative way. (Tr. 540). Likewise, State Agency consultant Vickie Casterline, PhD, determined that Plaintiff struggles with social interaction and handling stressful situations and is restricted to simple repetitive tasks in a low stress work environment with limited social contact and few quota/production expectations. (Tr. 554). Treating specialist Dr. Armstrong concluded that Plaintiff's Generalized Anxiety Disorder and Major Depressive Order are chronic and thus unlikely to remediate, and that continued or increased stressors will likely result in even further deterioration of functioning. (Tr. 637). Treating specialist Dr. Griffith diagnosed Plaintiff with a myriad of mental problems, including chronic anxiety and depression. (Tr. 639). Dr. Griffith also opined that Plaintiff's physical functional capacity is impaired, including Plaintiff's ability to stand/walk and her ability to lift/carry. (Tr. 640). She limited Plaintiff to lifting/carrying no more than five pounds frequently and six to ten pounds occasionally. (Id.) Dr. Griffith also listed a multitude of medications that had been prescribed to Plaintiff. (Tr. 641). Significantly, Dr. Griffith concluded that Plaintiff is unemployable for at least twelve months after taking the appropriate history and performing the relevant physical examination, and based on a combination of Plaintiff's mental and physical impairments. (Tr. 640).
Vocational expert Eric Pruitt testified that if an individual's ability to lift was only 20 pounds, and her ability to stand was less than one hour per eight-hour workday, that would eliminate all medium level jobs. (Tr. 47). He also testified that if an individual, due to fatigue or psychological symptoms, was unable to maintain attention and concentration, and could be off task as often as one-third of the workday, they would not be able to perform full-time work at any exertional level. (Id.) Significantly, the ALJ herself ruled out Plaintiff's past relevant work as a production solderer and injection molding machine operator with Mr. Pruitt's testimony, although the ALJ still included these jobs in her RFC assessment. (Tr. 22, 46). Since the ALJ's RFC restricted Plaintiff to medium exertion, the only remaining job contained in her RFC is that of nurse's aide. Plaintiff testified that she herself now requires her own personal aide to help around the apartment and help her get in and out of the bath tub. It is not clear how Plaintiff could perform the duties of a nurse's aide when she herself needs one. A denial based on a restriction to medium exertion is unreasonable as that would require Plaintiff to lift 50 pounds and stand for a significant amount of time, which is not consistent with her impairments or the medical opinions of record.
The substantial evidence of record indicates that Plaintiff cannot maintain gainful employment on a regular and continuing basis as defined by SSR 96-8p. Under the Commissioner's own regulations, an impairment is not severe only "if it does not significantly limit your physical or mental ability to do basic work activities." 20 C.F.R. §§ 404.l521 (a), 416.921(a). Basic work activities include physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling. 20 C.F.R. §§ 404.l52l (b)(1), 4l6.92l (b)(1). The record as a whole indicates that Plaintiff has problems with many basic work activities. This was all ignored in the ALJ's decision and RFC. Given Plaintiff's age, limited education, and work experience, a limitation to less than medium exertion work is consistent with disability under the Medical-Vocational Guidelines "Grids." Grid Rule 201.14, Appendix 2 to Subpart P, Part 404. The consensus of RFC opinions in the record also establishes that Plaintiff is not suitable for full-time employment. Thus, the ALJ's decision, and specifically her RFC, is not supported by substantial evidence.
C.
Secondly, Plaintiff alleges that the ALJ failed to grant proper weight and deference to the opinions of Plaintiff's treating specialists. Greater deference is generally given to the opinions of treating physicians than to those of non-treating physicians, which is commonly known as the treating physician rule. See SSR 96-2p, 1996 WL 374188 (July 2, 1996); Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). This doctrine is based on the assumption that a medical professional who has dealt with a claimant and her maladies over a long period of time will have a deeper insight into the medical condition of the claimant than will a person who has examined a claimant but once, or who has only seen the claimant's medical records. Bowman v. Heckler, 706 F.2d 564, 568 (5th Cir. 1983). An ALJ must give more weight to opinions from treating sources since:
[T]hese 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 or brief hospitalizations.20 C.F.R. § 404.1527(d)(2).
Therefore, if the opinion of the treating physician as to the nature and severity of a claimant's conditions is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in [the] case record," then it will be accorded controlling weight. Wilson, 378 F.3d at 544. In considering treating source opinions, the ALJ must consider examining relationship, treatment in terms of frequency, duration, supportability, consistency, specialization, familiarity with other evidence, consistency with other evidence, and qualification. SSR 96-2p; see also 20 C.F.R. § 404.1527 (d) and (f). However, in all cases there remains a presumption, albeit a rebuttable one, that the opinion of a treating physician is entitled to great deference, its non-controlling status notwithstanding. SSR 96-2p, 1996 WL 374188, at *4 ("In many cases, a treating physician's medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight.").
In this case, the ALJ failed to follow proper procedure in determining the weight of the medical opinions. The ALJ's analysis was conducted in violation of the Commissioner's own rules and regulations; in granting Dr. Flexman's sole opinion more weight than the other sources, she weighed the treating source opinions by stricter standards than that of one-time examiner Dr. Flexman's opinion.
In terms of frequency, duration, supportability, consistency, specialization, familiarity with other evidence, consistency with other evidence, and qualification, Dr. Armstrong and Dr. Griffith are specialists who have treated Plaintiff on multiple occasions, reviewed her medical record and history, and whose opinions are consistent with each other and with the evidence as a whole. SSR 96-2p; see also 20 C.F.R. § 404.1527 (d) and (f). Dr. Flexman saw Plaintiff on one occasion, and he did not have a chance to review substantial evidence of record.
On April 24, 2008, Dr. Armstrong determined that Plaintiff is extremely or markedly limited in several essential work functioning areas. (Tr. 636). Dr. Armstrong concluded that Plaintiff's Generalized Anxiety Disorder and Major Depressive Disorder are chronic and thus unlikely to remediate, and that continued or increased stressors will likely result in even further deterioration of functioning. (Tr. 637).
The ALJ, however, completely discounted Dr. Armstrong's mental functional capacity opinion partly because "her relationship to the claimant remains unclear." (Tr. 21). The ALJ also opined that there is no record of mental health treatment. (Id.) However, not only did Plaintiff testify that she treated at East Dayton Health Center, but the record includes evidence from East Dayton, including correspondence dated July 2, 2008, that, indeed, Plaintiff "continues to see her mental health source, Dr. Armstrong." (See, e.g., Tr. 34, 584-608, 625). The ALJ also overlooked State Agency consultant Dr. Danopulos' February 1, 2008, report that Plaintiff suffers from anxiety and depression and is seen at East Dayton Health Center, which had sent a report to her physician to prescribe anti-depressants. (Tr. 537). Dr. Danopulos' report was issued nearly three months prior to Dr. Armstrong's mental functional capacity opinion, indicating that Plaintiff had been receiving ongoing treatment there. He also determined that Plaintiff gave a reliable history. (Tr. 536).
The ALJ also granted "little weight" to treating specialist Dr. Griffith's assessment that Plaintiff is unemployable for at least twelve months after taking the appropriate history and performing the relevant physical examination, and based on a combination of Plaintiff's mental and physical impairments. (Tr. 640). Instead, the ALJ relied almost exclusively on State Agency consultant Dr. Jerry Flexman's sole opinion. (Tr. 16-18). This was error because Dr. Flexman did not have a chance to review a majority of the evidence of record. For instance, both treating specialist opinions were issued after Dr. Flexman's opinion. This lone non-treating opinion does not constitute substantial evidence upon which to reject the treating opinions, as it is contradicted by the substantial weight of not only the treating sources, but the substantial weight of the other State agency doctors as well, all of which are fairly consistent with each other and with the objective record as a whole.
Even Dr. Flexman noted that Plaintiff might have trouble socially due to her physical problems and current financial situation. (Tr. 17).
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The ALJ also erred in attributing "little weight" to Dr. Armstrong's opinion because there is "virtually no support" for her mental functional capacity findings. (Tr. 21). Contrary to the ALJ's findings, this does not provide an adequate basis to reject Dr. Armstrong's findings. See Blankenship v. Bowen, 874 F.2d 1116, 1121, (6th Cir. 1989) (finding that no cause existed to question the diagnosis of a psychiatrist made after only one interview where no psychological testing had been conducted and holding that doctors can rely solely upon the subjective complaints elicited during treatment sessions with a patient in formulating a plaintiff's functional restrictions); Warford v. Astrue, No. 09-52, WL 3190756, at *6 (E.D. Ky. Aug. 11, 2010) (finding interviews are an acceptable diagnostic technique in the area of mental impairments). Here, the ALJ herself even noted that Dr. Armstrong is a doctor with a "specialty in psychology." (Id.) There is no indication from the ALJ that she has reason to question the diagnostic techniques employed by Dr. Armstrong, and the ALJ therefore cannot reject her findings for lack of objective support.
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. Armstrong and Griffith, the ALJ failed to meet her 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 Gloria Moore was not entitled to disability insurance benefits and supplemental security income beginning January 17, 2007 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