Opinion
Case No. 1:14-cv-442
11-05-2014
PHILIP T. NESSLE, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER THAT: (1) THE ALJ'S NON-DISABILITY FINDING IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, AND IS REVERSED; (2) JUDGMENT IS ENTERED IN FAVOR OF PLAINTIFF AWARDING BENEFITS; AND (3) THIS CASE IS CLOSED
This is a Social Security disability benefits appeal. At issue is whether the administrative law judge ("ALJ") erred in finding the Plaintiff "not disabled" and therefore not entitled to disability insurance benefits ("DIB"). (See Administrative Transcript ("Tr.") (Tr. 11-18) (ALJ's decision)).
I.
Plaintiff filed for DIB on January 20, 2011, alleging disability beginning April 23, 2010, due to a combination of physical impairments. (Tr. 11, 135, 181). His applications were denied initially and upon reconsideration. (Tr. 58-75). Plaintiff appeared and testified at a hearing on October 9, 2012. The ALJ issued a decision on November 16, 2012, concluding that Plaintiff was not disabled and retained the RFC to perform a reduced range of light exertional work. (Tr. 7-23). The ALJ concluded that Plaintiff was able to perform his past work as an information resource systems manager. (Tr. 16).
The Agency defines RFC to mean "the most you can still do despite your limitations." 20 C.F.R. § 404.1545(a)(1). "Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds." 20 C.F.R. § 404.1567(a).
The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. (Tr. 1-3). The Court has jurisdiction pursuant to 42. U.S.C. §§ 405(g) and 1383(c).
Plaintiff was born on May 30, 1962 and was approximately 50 years old on the date of his hearing. (Tr. 27). Plaintiff obtained his Associate's Degree in electronic engineering technology. (Tr. 29). Plaintiff's past relevant work experience includes work as a commodity manager. (Tr. 30). Plaintiff stopped working on his alleged date of disability to do his medical issues. (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).
The ALJ's "Findings," which represent the rationale of his decision, were as follows:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2015.(Tr. 13-17).
2. The claimant has not engaged in substantial gainful activity since April 23, 2010, the alleged disability onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: residual from rectal cancer, chronic diarrhea (20 CFR 404.1520(c)).
4. 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 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) with the following limitations or restrictions: no climbing ropes, ladders, scaffolds, no repetitive bending, no repetitive twisting at the waist, and must have ready access to restroom facilities (defined as no exposure to the general public and no assembly-line work).
6. The claimant is capable of performing past relevant work as an information resource systems manager (sedentary/skilled). This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565).
7. The claimant has not been under a disability, as defined in the Social Security Act, from April 23, 2010, through the date of this decision (20 CFR 404.1520(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. (Tr. 18).
On appeal, Plaintiff argues that: (1) the ALJ failed to properly weigh the medical opinions and work-related limitations; (2) the ALJ failed to properly evaluate Plaintiff's credibility and subjective complaints; and (3) the vocational expert erred in relying on improper hypotheticals. 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 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:
On April 30, 2010, Dr. Paul Conover performed surgery on the Plaintiff for colon cancer. (Tr. 257-259, 273-276, 358-359). Since the surgery, Plaintiff has experienced problems with diarrhea and erratic bowel movements. (Tr. 362). Dr. Robert Smith, a treating family doctor, noted diarrhea multiple times a day in August 2011. (Tr. 443).
In August 2011, Plaintiff was also examined by orthopedic surgeon Aivars Vitols, D.O., at the request of the state agency. Plaintiff reported to Dr. Vitols that he was diagnosed with rectal adenocardinoma in 2010, got a colon resection, and "made a satisfactory recovery" thereafter. (Tr. 419). Since his original surgery in 2010, there had not been a recurrence of cancer. (Id.) Plaintiff told Dr. Vitols that he had "frequent bowel movements. He reports loose stools up to six to eight times a day. He states this is usually cyclic. He has a feeling of bloating. He has noticed some blight red blood in his stools on occasion. He reports no problem with urination." (Id.) Dr. Vitrols did not comment on the "chronic diarrhea." Dr. Vitols noted that Plaintiff was independent in activities of daily living, and he was able to participate in household chores, drive, and walk short distances. (Tr. 420). Upon exam, Plaintiff had full range of motion, no tenderness in the abdomen, no evidence of atrophy, or any other abnormalities. (Tr. 420-422). Dr. Vitols concluded that "the claimant has the ability to stand, walk, and change position on a regular basis." (Tr. 423). Dr. Vitols did not recommend any limitations or restrictions with respect to restroom breaks or bathroom usage. (Id.)
A colon resection is surgery that removes diseased portions of the large bowel which is also called the large intestine.
In September 2011, Plaintiff's medical records were reviewed by state agency reviewing physician Diane Manos, M.D. (Tr. 63-64). Dr. Manos discussed Plaintiff's history of colorectal cancer in detail, as well as his residual complaints of "irregular and urgent and often uncontrollable bowel movements" that occurred "6-12x a day." (Tr. 63). She noted that in April 2011, Plaintiff was "having intermittent episodes of rectal bleeding frequently, but has resolved since 1/11," but that he still had "erratic bowl habits." (Tr. 63-64). Still, Dr. Manos found that Plaintiff's physical impairments were not severe within the meaning of the Social Security Act and exertional limitations were not warranted. (Id.)
In October 2011, Plaintiff's primary care physician, Paul Conover, M.D., noted that Plaintiff had "done well" since his surgery, with good appetite, no nausea, and no vomiting. (Tr. 454). Dr. Conover noted that Plaintiff's "erratic bowel habits continue to improve and every second or third day he will have diarrhea with up to six loose bowel movements in a three hour period." (Tr. 452). However, Dr. Conover noted that Plaintiff was not using anti-diarrheal medicine despite his complaints. (Tr. 454). Later that month, Dr. Conover completed a medical assessment form stating that Plaintiff had a history of rectal cancer, with residual symptoms of chronic diarrhea, but had a good prognosis. (Tr. 445). Dr. Conover reported that there were no objective signs or clinical findings, but checked boxes noting that Plaintiff would need ready access to a bathroom, and that despite his fecal urgency, he had 5 to 10 minutes of advance warning before he needed the bathroom. (Tr. 447). Dr. Conover indicated that Plaintiff's symptoms were frequently severe enough to interfere with attention and concentration at work. (Tr. 445- 446). He noted that Plaintiff could sit and stand for long periods but needed unscheduled bathroom breaks of 15 minutes with 5-10 minutes advance notice. (Tr. 447). Finally, Dr. Conover "estimated" that Plaintiff would be absent four days a month from work. (Tr. 448).
Plaintiff claims that he has taken Imodium, but it tends to have the opposite effect which results in uncomfortable constipation. (Tr. 47).
In December 2011, Steve McKee, M.D., conducted a separate review of Plaintiff's records for the state agency. He noted that in July 2011, Plaintiff's "colon cancer [was] in remission" but he still was complaining of "frequent bowel movements as a result of colon resection, but this is improving over time." (Tr. 72). Based on otherwise normal diagnostic testing and normal clinical observations, Dr. McKee also found that Plaintiff's physical impairments were not severe within the meaning of the Social Security Act and exertional limitations were not warranted. (Tr. 71-72).
In January 2012, Dr. Conover noted that Plaintiff was doing "relatively well," with good appetite, no nausea and no vomiting. (Tr. 452). Dr. Conover noted that Plaintiff's "erratic bowel habits continue to improve." (Id.)
In May 2012, Dr. Conover noted that Plaintiff's most recent colonoscopic examination was unremarkable. (Tr. 450). He reported that Plaintiff was doing "relatively well," with good appetite, no nausea, and no vomiting. (Id.) Dr. Conover noted that Plaintiff was eating a new diet with smaller portion and that "has helped to improve his erratic bowel habits." (Id.) Dr. Conover also noted that Plaintiff had no abdominal or incisional pain. (Id.) Dr. Conover reported that "visual examination of the anal orifice and perineum is unremarkable." (Id.) He concluded that Plaintiff "is now two years out from his surgery for treatment of an early staged rectal cancer with no evidence of recurrence." (Id.) In June 2012, Dr. Conover wrote a letter stating that
[a]s a consequence of his surgery, even with medical management, Mr. Nessle [has] erratic bowel habits with tendencies toward loose, diarrheal stools. He has had no difficulties with fecal incontinence but has experienced problems with fecal urgency. Because of the need for frequent trips to the restroom and inability to delay bowel movements, I believe it is a medical necessity for Mr. Nessle to work in an environment where restroom facilities are readily available.(Tr. 477).
On March 28, 2012, Dr. Smith reported that Plaintiff was unable to participate in job-search classes from March 28, 2012 until June 28, 2012 due to diarrhea. (Tr. 15).
B.
First, Plaintiff argues that the ALJ failed to properly weigh the medical opinions and work-related limitations.
"In assessing the medical evidence supporting a claim for disability benefits, the ALJ must adhere to certain standards." Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009).
One such standard, known as the treating physician rule, requires the ALJ to generally give greater deference to the opinions of treating physicians than to the opinions of non-treating physicians because these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medial findings alone or from reports of individual examinations, such as consultative examination or brief hospitalizations.(Id.) "The ALJ 'must' give a treating source opinion controlling weight if the treating source opinion is 'well supported by medically acceptable clinical and laboratory diagnostic techniques' and is 'not inconsistent with the other substantial evidence in [the]case record.'" Id. "If the ALJ does not accord controlling weight to a treating physician, the ALJ must still determine how much weight is appropriate by considering a number of factors, including the length of the treatment relationship, supportability of the opinion, consistency of the opinion with the record as a whole, and any specialization of the treating physician." Id.
The Commissioner's regulations establish a hierarchy of acceptable medical source opinions. The hierarchy begins at the top with treating physicians or psychologists. 20 C.F.R. §§ 404.1527(d)(2) and 416.927(d)(2). Next in the hierarchy are examining physicians and psychologists, who often see and examine claimants only once. See 20 C.F.R. §§ 404.1527(d) and 416.927(d). In general, more weight is given to examining medical source opinions than is given to the opinions of non-examining medical sources. See 20 C.F.R. §§ 404.1527(d)(1) and 416.927(d)(1). Still, non-examining physicians' opinions are on the lowest rung of the hierarchy of medical source opinions.
The regulations provide progressively more rigorous tests for weighing opinions as the ties between the source of the opinion and the individual become weaker. For example, the opinions of physicians or psychologists who do not have a treatment relationship with the individual are weighed by stricter standards, based to a greater degree on medical evidence, qualifications, and explanations of the opinions, than are required to treating sources.SSR 96-6p. "The opinion of a non-examining physician is entitled to little weight if it is contrary to the opinion of the claimant's treating physician." Shelman v. Heckler, 821 F.2d 316, 321 (6th Cir. 1987).
Plaintiff argues that Dr. Conover's opinion should have been afforded the most weight because of the treatment relationship (since April 2010), specialization (colon and rectal surgeon), supportability, and consistency. Additionally, Plaintiff argues that the ALJ failed to give "good reasons" in his decision to reject the treating physician. Dr. Conover determined that it was "a medical necessity for Mr. Nessle to work in an environment where restroom facilities are readily available" and the ALJ's RFC included a limitation that Plaintiff "must have ready access to restroom facilities." (Tr. 14, 477). However, the ALJ failed to account for Dr. Conover's October 2011 finding that Plaintiff would be absent from work four days a month. (Tr. 448). While Dr. Conover did not expressly state that Plaintiff's need for bathroom breaks would be disabling, he did find that Plaintiff would be unable to work four days per month, which renders him disabled. See 1996 SSR LEXIS 5 (missing four days per month because of impairments renders the claimant unable to perform full time work).
See also Criner v. Barnhart, 208 F. Supp. 2d 937, 956 n.21 (N.D. Ill. 2002).
Defendant argues that because Plaintiff's bowel health continued to improve in the nine months between October 2011 and June 2012, it was reasonable for the ALJ to presume that Dr. Conover's June 2012 findings superseded his October 2011 findings. (Tr. 477). However, the fact that Dr. Conover did not address Plaintiff's absences in his June 2012 findings does not render it inconsistent with his October 2011 findings, nor does it signal that Plaintiff would not continue to be absent from work approximately four days each month.
The June 2012 letter did not mention anything about absences from work; it only stated that Plaintiff required ready bathroom access. (Tr. 14, 477).
While the record indicates that Plaintiff's bowel health improved and stabilized, it continues to significantly affect his ability to work. On a typical day, Plaintiff must use the restroom 6-8 times during the day. (Tr. 32). Additionally, Plaintiff often spends significant time in the bathroom overnight and is therefore fatigued and weak in the morning. (Tr. 37). Plaintiff gets approximately 2-3 hours of sleep during difficult nights and must take a nap the next day. (Tr. 43). Moreover, every 2-3 days Plaintiff's rectum becomes inflamed and bleeds and he must use prescribed ointment and rest for approximately 45 minutes to recover. (Tr. 42). Accordingly, Dr. Conover's opinion is supported by the record evidence.
See charts detailing the frequency of Plaintiff's bowel movements in 2011 and 2012. (Tr. 246-247, 466-475, 488-489).
Moreover, Dr. Conover's opinion is not inconsistent with the other physicians of record. For example, Plaintiff relies, in part, on Dr. Vitols, a one-time examining orthopedic physician. The fact that Dr. Vitols, an orthopedic specialist, did not address Plaintiff's bowel issues does not suggest that Plaintiff does not have an impairment. State agency physicians Drs. Manos and McKee did not find that Plaintiff's physical impairments were severe - but Dr. Manos did state that Plaintiff had "irregular and urgent and often uncontrollable bowel movements" (Tr. 63-64) and Dr. McKee mentioned that Plaintiff had "frequent bowel movements as a result of colon resection" (Tr. 71-72). However, neither physician spoke with the Plaintiff or had an opportunity to examine him. "The opinion of a non-examining physician is entitled to little weight if it is contrary to the opinion of the claimant's treating physician." Shelman, 821 F.2d at 321.
The fact that Dr. Vitols did not comment on Plaintiff's diarrhea is not surprising given the fact that he is an orthopedic physician, not a colon specialist.
The ALJ is required to apply a more rigorous standard of review to one-time examining doctors and to paper reviewing doctors versus a treating doctor. Gayheart v. Comm'r of Soc. Sec., 710 F.3d 365, 378-380 (6th Cir. 2013).
Accordingly, Dr. Conover was entitled to controlling weight. Therefore, the ALJ's opinion is not supported by substantial evidence.
C.
Next, Plaintiff alleges that the ALJ failed to properly evaluate his credibility and subjective complaints.
On review of substantial evidence, courts must accord great deference to the ALJ's credibility determinations. Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003). Despite this deference, "an ALJ's assessment of a claimant's credibility must be supported by substantial evidence." Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997).
Defendant argues that the record is replete with support for the ALJ's finding that Plaintiff's complaints of debilitating impairments were not entirely credible. The Court disagrees. First, Defendant argues that Plaintiff's surgery for rectal cancer was successful, there has been no recurrence of the cancer, and that Plaintiff's "treatment since the surgery has been conservative/routine in nature." (Tr. 16). However, the fact that there has been no recurrence of cancer and that Plaintiff only sees his surgeon twice a year is completely irrelevant to his alleged debilitating condition - erratic bowel movements. Plaintiff does not allege disability due to cancer, he alleges disability due to debilitating diarrhea.
Next, Defendant suggests that the fact that Plaintiff was looking for employment undermines a finding that he could work. Plaintiff participated in some job search classes because in order to obtain food stamps in Warren County, individuals must perform physical work or engage in a job search. (Tr. 45). Plaintiff was told that physical work entailed doing public works jobs like painting and raking -- tasks that he could not perform because of his medical condition. (Tr. 45-46). Accordingly, the record supports a finding that Plaintiff was not participating in a job search process, he was simply fulfilling a prerequisite to be eligible for food stamps. (Id.)
Next, the ALJ claims that Plaintiff's daily activities (walk two miles, lift 40-50 pounds, drive, cook, do the dishes, sweep, vacuum, do laundry, make the bed, grocery shop, and visit friends and family) do not support a finding of disability. (Tr. 16). However, the fact that Plaintiff was able to complete these tasks does not contradict his claim of disability. Plaintiff was able to complete these tasks when he was feeling well. Plaintiff himself admitted that but for the erratic bowel movements he could work. Plaintiff is able to structure his daily activities at home to perform these activites, but would not be able to do so in the workplace.
Moreover, the record shows that Plaintiff had a strong work ethic and work history before he was diagnosed with rectal cancer. Specifically, Plaintiff worked for Reed Elsevier from 1995-2008, earning approximately $100,000 per year when he left to take a job at Teradata where he made approximately $107,000 per year until he stopped working in 2010 because of rectal cancer. (Tr. 178-169). It is nonsensical that Plaintiff would voluntarily choose to forgo a significant salary and benefits to stay at home and live on a fraction of that income with disability insurance benefits. An ALJ is required to consider a claimant's prior work history when weighing the claimant's credibility. O'Donnell v. Barnhart, 318 F.3d 811, 816 (8th Cir. 2003). There is no indication that the ALJ considered Plaintiff's prior work history in this case.
Accordingly, the ALJ's assessment of Plaintiff's credibility is not supported by substantial evidence.
D.
Finally, the ALJ claims that the vocational expert erred in relying on improper hypotheticals.
Plaintiff also argues that the vocational expert erred in discussing composite jobs. A person whose past relevant work is a composite job is deemed capable of performing that work if she has found capable of performing the skills of each of the individual components of that work. Henson v. Colvin, No. 12-3053, 2014 U.S. Dist. LEXIS 33496, at 10-11 (E.D. La. Feb. 18, 2014). An ALJ "may not deem a claimant capable of performing past relevant work by dividing the demand of the composite job into separate jobs and finding him capable of performing the less demanding of the two jobs." Id. citing Gallant v. Astrue, No. 09-357, 2010 U.S. Dist. LEXIS 81562 (D. Me. July 20, 2010). See also Henson, 2014 U.S. Dist. LEXIS 33496 at 13-14 (the ALJ's finding at Step Four that the claimant could perform one part of a composite job is reversible error). To the extent Plaintiff argues that he could not do his past work because it was a "composite job," it is too late for Plaintiff to bring up any alleged deficiencies about the vocational expert's testimony because Plaintiff and his attorney were given ample opportunity to question the vocational expert about this subject at the hearing and failed to do so. (Tr. 54-56). Plaintiff's counsel cross-examined the vocational expert about other issues, but failed to raise any concern about whether the job the ALJ was describing was a "composite job." (Tr. 54-56).
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Plaintiff argues that the ALJ's hypothetical question to the vocational expert was improper because it did not include the full extent of his restroom-related limitations. Specifically, the ALJ's hypothetical included all of the limitations in his RFC, including the exact language regarding "ready access to restroom facilities," as well as "no assembly line work and no exposure to or working with the general public." (Tr. 50-53). Plaintiff argues that the ALJ's hypothetical was improper because it left out "the supported number of bathroom breaks Mr. Nessle would require." (PageID 512). When given a hypothetical that Plaintiff would be away from the workstation about 15 minutes, would have advanced notice of 5-10 minutes, and would miss work about 4 days a month, the vocational expert found that Plaintiff could not sustain full-time employment. (Tr. 55). The fact that Plaintiff would need to have ready access to the bathroom does not take into account how frequently Plaintiff must use the bathroom, the length of time he spends in the bathroom, the amount of sleep he gets at night due to his bowel issues, how many days of work each month he would miss, and how all of these issues effect his productivity at work. The vocational expert specifically testified that Plaintiff could not sustain work under these conditions. (Tr. 55).
Accordingly, the vocational expert erred in relying on an improper hypothetical. The fact that Plaintiff would miss approximately four days of work each month and would be required to take 15 minute bathroom breaks 6-8 times each day renders him disabled.
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 evidencing disability, and the credible and controlling findings and opinions of Dr. Conover, the ALJ failed to meet its burden of finding substantial evidence that Plaintiff is able to engage in substantial gainful activity. Instead, proof of disability is overwhelming.
IT IS THEREFORE ORDERED THAT:
The decision of the Commissioner, that Philip Nessle was not entitled to disability insurance benefits is hereby found to be NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, and it is REVERSED; and this matter is REMANDED to the Commissioner for an immediate award of benefits from April 23, 2010. The Clerk shall enter judgment accordingly, whereupon this case shall be CLOSED in this Court. Date: 11/5/14
s/ Timothy S. Black
Timothy S. Black
United States District Judge