Opinion
Case No. 3:13-cv-20
11-12-2013
LISA ROSS, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Judge Timothy S. Black
ORDER THAT: (1) THE ALJ'S NON-DISABILITY FINDING IS FOUND NOT
SUPPORTED BY SUBSTANTIAL EVIDENCE, AND IS REVERSED;
(2) 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 unentitled to supplemental security income ("SSI"). (See Administrative Transcript ("PageID") (PageID 18-29) (ALJ's decision)).
I.
On April 2, 2009, Plaintiff applied to the Social Security Administration for Title XVI SSI benefits, asserting that she could no longer work beginning on December 20, 2001 due to lumbardegenerative changes with spondylolisthesis, cervical degenerative disc disease, history of right ankle fracture, post-traumatic stress disorder, anxiety disorder, mood disorder, and a history of polysubstance abuse. (PageID 55, 188-190). Plaintiff's application was denied initially and on reconsideration. (PageID 117-118). Plaintiff filed a timely request for a hearing. (PageID 139-140).
Spondulolisthesis is the anterior or posterior displacement of a vertebra or the vertebral column.
On May 2, 2011, a hearing was held in Dayton, Ohio before an ALJ. (PageID 75). Plaintiff was represented at the hearing by an attorney. (Id.) A vocational expert and a psychological expert also appeared and testified. (Id.)
On September 19, 2011, the ALJ denied Plaintiff's claim for benefits. (PageID 50-72). Specifically, the ALJ found that Plaintiff had not performed substantial gainful activity since her alleged onset of disability and had severe impairments, but none of them, alone or in combination, met or equaled the criteria of the Listings. (PageID 55-59). The ALJ found that Plaintiff was limited to light work that accommodated various postural, environmental, and mental limitations. (PageID 59-62). Following a timely request for review of the hearing decision, the Appeals Council declined to review the decision, making that the final administrative disposition of Plaintiff's claim. (PageID 36-49). This civil action for review followed.
"Residual functional capacity" is defined as the most a claimant can still do despite his or her limitations. 20 C.F.R. § 404.1545(a).
At the time of Plaintiff's hearing before the ALJ, she was 44 years old and was considered to be a "younger person" for Social Security purposes. (PageID 62). See 20 C.F.R. §404.1563(c); 416.963(c). She attended school through the ninth grade and obtained her GED. (PageID 84). Her past relevant work was as a janitor, a babysitter, and a server. (PageID 101-02). Plaintiff had not worked or looked for work in the four years leading up to her hearing. (PageID 85).
Social Security defines past relevant work as work done within the past fifteen years, at substantial gainful activity levels, and performed long enough for the claimant to learn to do it. 20 C.F.R. § 404.1560(b)(1).
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 April 2, 2009, the application date (20 CFR 416.971, et seq.).(PageID 20-29).
2. The claimant has the following severe impairments: lumbar degenerative changes with spondylolisthesis, cervical degenerative disc disease, history of right ankle fracture, Post-Traumatic Stress Disorder, Anxiety disorder NOS, Mood disorder NOS, and a history of polysubstance abuse (20 CFR 416.920(c)).
3. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).
4. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 416.967(b) except she cannot reach overhead, operate foot controls, climb ladders, ropes or scaffolds, or tolerate exposure to hazardous machinery or unprotected heights. The claimant is limited to occasional balancing, stooping, kneeling, crouching, crawling, and climbing ramps or stairs, and to frequent reaching, handling, fingering and feeling with right upper extremity. She cannot perform complex tasks, tasks involving strict production quotas or fast-paced production, tasks requiring public interaction, or tasks that require more than occasional interaction with co-workers and supervisors, but with no tandem-tasks or teamwork.
5. The claimant is unable to perform any past relevant work (20 CFR 416.965).
6. The claimant was born on October 22, 1964 and was 44 years old, which is defined as a younger individual age 18-49, on the date the application was filed (20 CFR 416.963).
7. The claimant has at least a high school education and is able to communicate in English (20 CFR 416.964).
8. 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 CFR Part 404, Subpart P, Appendix 2).
9. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 416.969 and 416.969(a)).
10. The claimant has not been under a disability, as defined in the Social Security Act, since April 2, 2009, the date the application was filed (20 CFR 416.920(g)).
In sum, the ALJ concluded that Plaintiff was not under a disability as defined by the Social Security Regulations, and, therefore, was not entitled to SSI. (PageID 29).
On appeal, Plaintiff argues that: (1) the ALJ's findings regarding and based upon Plaintiff's daily activities are unsupported by the record; (2) the ALJ fails to weigh the consistent opinions of three separate treating sources in a manner consistent with the regulations and supported by the evidence; (3) the ALJ improperly substitutes her own lay assessment of medical data for competent medical opinions; (4) the ALJ improperly applies a "precludes all work activity" standard to Plaintiff's claim for benefits; and (5) the ALJ's decision is not supported by substantial evidence and the Commissioner's position is not substantially justified. The Court will address each issue 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.
Although Plaintiff suffers from several severe mental health impairments which restrict her functioning and has a history of substance abuse, the allegations center upon Plaintiff's physical limitations. Therefore, the recounting of the facts omits those portions of the record relevant to Plaintiff's mental health. The Court notes that although Plaintiff alleges disability beginning on December 20, 2001, there are no medical findings in the record prior to 2005.
Plaintiff explained that her pain with standing or sitting has interfered with her ability to do any work. (PageID 85). The pain is in her legs, the right side of her low back, her hips, and her right arm. (PageID 89). Plaintiff maintains that sitting exacerbates her back pain. At more than one point during the hearing, she complained that simply sitting through her administrative hearing was causing her pain. (PageID 90, 95). Lying down or reclining is the most comfortable position for her in terms of her leg pain, and she spends most of her day lying down. (PageID 97). Plaintiff also noted that the nerve problems in her right arm cause her to drop things. (PageID 96).
At the hearing, Plaintiff recounted her daily medications to the ALJ which include: Lisinopril, Pepcid, an Albuterol inhaler, Flexiril, Percocet, Xanax, Ibuprofen, Neurontin, and Trazadone. (PageID 86-89). Sometimes her medications help her pain tremendously and sometimes they do not. (PageID 90). Plaintiff's doctor wanted to increase her medications, but Plaintiff could not afford the change. (Id.)
Plaintiff described her problems affording treatment at multiple points during the hearing. She had been trying to get Medicaid, but had been unsuccessful as of her hearing. (PageID 85). She had only been able to have a limited number of mental health treatment sessions due to a lack of insurance. (PageID 95-96). Plaintiff also explained having difficulty juggling her need for both an affordable family doctor and medical testing. (PageID 88-89). She indicated that she could not afford to try new medications to control her pain. (PageID 90).
Plaintiff lives with her mother, who drove her to the hearing, because Plaintiff does not drive. (PageID 84). Plaintiff takes turns with her mother making meals, limiting the menu to recipes which allow her to sit down or recline during the cooking process. (PageID 91, 98). Her mother does most of the yard work. (PageID 91). Plaintiff tries to do some chores, but things like sweeping or running the vacuum are very difficult for her. (Id.) She cannot stand in line at a store or stand to do a full sink of dishes without taking a break. (PageID 86, 98). She takes frequent naps of one to two hours to compensate for her limited sleep at night. (PageID 92). She never goes out to the movies because she cannot sit long enough. (PageID 93). She tries to go to church, but sometimes she cannot go because she cannot sit through the service. (Id.) She limits her grocery shopping to very quick trips so that she can return home and lie back down. (PageID 98).
Mental health issues also affect Plaintiff. She was in a severely abusive relationship for fifteen years and still suffers frequent nightmares. (PageID 90, 99-100). She also has flashbacks to her abuse during the day accompanied by panic attacks nearly every morning. (PageID 99-100). Sometimes, she becomes so anxious during these episodes that she vomits. (PageID 100).
2. Medical evidence of record
The record contains a large number of emergency room visits related to Plaintiff's spine pain. In March 2006, Plaintiff presented to the Miami Valley Hospital emergency room for an upper respiratory infection and complained of chronic low back pain. (PageID 349-50). She went to the emergency room specifically for back pain on May 10, 2009. (PageID 527, 609-13). She was at the emergency room for back pain at least six additional times in 2009 from June through December. (PageID 656-83, 843-65, 1090-1146). She subsequently returned to the emergency room nearly twenty times in 2010 with complaints of back and sometimes neck pain. (PageID 808-19, 832-42, 916-1043, 1148-1204, 1259-77, 1289-98, 1368-78, 1380-441). Similarly, in January 2011, Plaintiff went to the emergency room two more times with complaints of back, neck, and extremity pain. (PageID 1442-67).
Plaintiff received regular treatment for her chronic back pain at the Miami Valley Hospital Medical Surgical Health Center ("MVH Clinic") from 2005 through 2007. (PageID 352-71). As early as 2005, the MVH Clinic identified Plaintiff's lumbar pathology, as confirmed by an MRI, to be the source of her symptoms. (PageID 363). In January of 2006, Plaintiff had a consultation with an orthopedist at the MVH Clinic who commented on Plaintiff's medical imaging, recorded a positive right straight leg raise test, and recommended physical therapy. (PageID 368). By February 2006, the MVH Clinic had again attributed Plaintiff's pain to her lumbar degeneration, put her on Vicodin, and contemplated the possibility of surgical intervention if Plaintiff stopped smoking. (PageID 360).
In March 2007, Plaintiff fell and fractured her right ankle requiring a surgical fixation with the implantation of hardware. (PageID 387-88). She attempted to return to weight bearing that same month even though her fracture was still visible on an x-ray. (PageID 386, 392). In August 2008, Plaintiff complained at the MVH Clinic that she was still having right ankle pain and limited range of motion resulting in a referral back to the orthopedic clinic. (PageID 469-72). On May 28 and July 2, 2009, Plaintiff reinjured her right ankle occasioning return trips to the emergency room. (PageID 542, 899-914).
In 2008 through 2010, Plaintiff continued to consistently complain of severe back and neck pain during visits to the MVH Clinic. (PageID 469-86, 551-91, 698-99, 1048-80, 1206-58). On January 9, 2009, she was referred to the Good Samaritan Hospital pain clinic for injection therapy, but she could not follow through with the referral secondary to insurance issues. (PageID 481-83). Another positive bilateral straight leg raise test was recorded in September of 2009. (PageID 565). In a visit to the clinic on May 4, 2010, it was noted that Plaintiff's upper extremity symptoms were potentially being caused by her cervical disc protrusions. (PageID 1048). In July 2010, the MVH Clinic recorded that surgery was not an option for Plaintiff due to her lack of insurance and also observed that despite multiple attempts at different pain regimens, Plaintiff had not gotten any relief. (PageID 1332).
In late July 2010, Plaintiff switched her primary care from the MVH Clinic to the office of Daniel Brumfield, M.D. who remained her primary care physician through the date of her hearing. (PageID 1494-504). During Plaintiff's first office visit on July 29, 2010, Dr. Brumfield recorded that Plaintiff's cervical and lumbar spine were both tender and her lumbar range of motion was reduced. (PageID 1504). He prescribed Percocet and Flexiril. (Id.) Dr. Brumfield continued to document lumbar tenderness and reduced range of motion in nearly all of the ten separate physical examinations of Plaintiff he performed from July of 2010 through Plaintiff's hearing in May of 2011. (PageID 1494-504). Dr. Brumfield also had the opportunity to review an abdominal CT scan performed February 25, 2011, which confirmed Plaintiff's spinal pathology at L5-S1. (PageID 1496).
The record before the ALJ also contained a great deal of medical imaging. Following an abnormal lumbar x-ray in August 2005, an MRI was scheduled. (PageID 384-85). The MRI, dated September 16, 2005, revealed a multilevel lumbar pathology, most severe at the L4-5 and L5-S1 levels of Plaintiff's spine. (PageID 380-81). The abnormalities recorded at various lumbar levels included multiple disc bulges/protrusions, facet hypertophic disease, foraminal narrowing, ligamentum flavum hypertrophy, lateral recess stenosis, and nerve root abutment and deformity at the bilateral L5 nerve root. (Id.)
Another lumbar MRI was completed on September 3, 2009. (PageID 693-94). Like the imaging in 2005, the 2009 MRI demonstrated that Plaintiff was suffering from a significant lumbar spinal impairment. (Id.) The MRI showed a moderate tiered central and rightward disc protrusion at L4-5 with lateral recess and forminal narrowing. (PageID 693). The degeneration at L5-S1 had progressed from the 2005 study, marked by a broad-based disc protrusion and severe foraminal encroachment. (Id.) Plaintiff's next lumbar imaging was a series of x-rays on May 4, 2010 which again confirmed ongoing degenerative disc disease at L5-S1 and L4-5. (PageID 1050).
On February 20, 2010, Plaintiff underwent a CT Scan of her cervical spine. (PageID 700-01). This imaging revealed that Plaintiff's cervical spine was also degenerating with posterior disc protrusions at C3-4 and C5-6, producing spinal stenosis and encroachment of the right lateral recess respectively. (Id.) A follow up MRI was scheduled for May 12, 2010 which confirmed the protrusions from the CT scan, demonstrated spinal stenosis from C3-4 through C5-6, and highlighted right-sided neural foraminal encroachment and right lateral recess narrowing at C5-6 due to a disc protrusion and uncoverebral arthrosis. (Id.)
3. Opinion evidence of record
The earliest medical assessment of Plaintiff's physical condition in the record was completed on March 16, 2007 by Dr. Rubina Hasan, one of Plaintiff's treating physicians at the MVH Clinic. (PageID 691-92). In an assessment completed for the Ohio Department of Job and Family Services, Dr. Hasan noted that Plaintiff's spinal range of motion was decreased and her chronic back pain had led to a loss of her normal functioning. (Id.) Dr. Hasan opined that Plaintiff is "unemployable" and is limited to only one hour of standing or sitting per workday, less than five pounds of lifting, and is markedly limited in her ability to push/pull, bend, and reach. (PageID 692).
On June 13, 2009, Plaintiff was examined by state agency consulting physician Aivars Vitols, D.O., C.I.M.E. (PageID 626-33). Dr. Vitols observed that Plaintiff's gait was antalgic, favoring her right lower extremity. (PageID 628). During his examination he also noted painful/restricted motion, tenderness to palpitation, and changes in muscle tone in Plaintiff's lumbar spine. (Id.) He also recorded Plaintiff's difficulty completing a heal-toes stand. (Id.) Dr. Vitols observed that the motion of Plaintiff's right ankle was painful and that the hardware from her ankle surgery was tender to palpitation. (Id.) Finally, Dr. Vitols requested and reviewed x-rays of Plaintiff's lumbar spine. (Id.)
Ultimately, Dr. Vitols opined that Plaintiff's "ability to stand and walk and change positions (is) affected by chronic low back pain and residual ankle pain from previous ORIF. (sic)" (PageID 629). He further concluded, referencing his examination report, "[b]ased on the foregoing clinical objective findings of this examination the claimant's work capabilities and tasks of daily living are affected accordingly." (Id.)
The next month, a state agency consultant reviewed Dr. Vitols' report and the other evidence of record and concluded that Plaintiff could perform any light work so long as it did not require more than occasional climbing of ramps, stairs, ladders, ropes, or scaffolds. (PageID 648-55).
On September 18, 2009, Plaintiff's treating physician at the MVH Clinic, Dr. Obiora Okafor, completed an assessment of Plaintiff's physical functioning for the Ohio Department of Job and Family Services. (PageID 686-87). Dr. Okafor noted that Plaintiff's health status was poor, her chronic low back pain was not under control, and her lumbar range of motion was decreased. (PageID 686). Subsequently, Dr. Okafor opined that Plaintiff can lift only up to five pounds, can sit or stand for only one hour each per eight hour work day, and is markedly limited in her ability to push/pull, bend, or reach. (PageID 687). Dr. Okafor ultimately concluded that Plaintiff is "unemployable" and has been for twelve months or more. (Id.)
In December 2009, another state agency consultant reviewed Plaintiff's file, rejected the opinion of Dr. Okafor as "not supported by any objective findings," and affirmed the agency's prior assessment of Plaintiff's functioning. (PageID 689).
The most contemporaneous assessment of Plaintiff's functioning comes from treating physician Dr. Brumfield. (PageID 1488-92). In an opinion dated March 2, 2011, Dr. Brumfield opined to largely the same functional restrictions identified by treating sources Drs. Hassan and Okafor: Plaintiff cannot lift greater than five pounds and can sit or stand for only one hour total each per eight hour workday. (PageID 1488-89). Further, Dr. Brumfield explained that Plaintiff can never crawl or climb and can only occasionally balance, stoop, crouch, or kneel. (PageID 1490).
4. The vocational expert's testimony
Vocational expert Mark Pinti classified Plaintiff's prior work as that of a janitor, a babysitter, and a server. (PageID 101-02). He described these positions as being medium unskilled, medium semi-skilled, and light semi-skilled respectively. (Id.) When posed a hypothetical question mirroring the assigned residual functional capacity, Mr. Pinti testified that claimant's past work would be precluded, but that there would be substantial numbers of other jobs which would be available to such a hypothetical worker. (PageID 102-03).
On questioning from Plaintiff's representative, Mr. Pinti clarified that even though the ALJ's hypothetical eliminated strict quotas and fast-paced production, all competitive jobs would have productivity standards and any failure to routinely meet those standards would result in termination. (PageID 104-05). Mr. Pinti also testified that he did not believe an employee could be productive at work while laying down or reclining. (PageID 106). He further opined that an employee would need to meet the minimum standards of a job to avoid termination and that those standards generally assume continuous work throughout the workday. (Id.) ("If you're at work, you're expected to be working.").
6. The ALJ's decision
The ALJ found that Plaintiff has not engaged in substantial gainful activity since the date of her application. (PageID 55). She further determined that Plaintiff suffers from the severe impairments of lumbar degenerative changes with spondylolisthesis, cervical degenerative disc disease, history of a right ankle fracture, PTSD, a history of polysubstance abuse, and both anxiety and mood disorders. (Id.) She then concludes that none of these conditions meet or equal a listed impairment. (PageID 57-59).
The ALJ's residual functional capacity finding reads:
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 416.967(b) except she cannot reach overhead, operate foot controls, climb ladders, ropes or scaffolds, or tolerate exposure to hazardous machinery or unprotected heights. The claimant is limited to occasional balancing, stooping, kneeling, crouching, crawling, and climbing ramps or stairs, and to frequent reaching, handling, fingering and feeling with right upper extremity. She cannot perform complex tasks, tasks involving strict production quotas or fast-paced production, tasks requiring public interaction, or tasks that require(PageID 59).
more than occasional interaction with co-workers and supervisors, but with no tandem-tasks or teamwork. (sic)
The ALJ cites Plaintiff's "wide range" of daily activities which "are consistent with at least a modified range of light work activity" and Plaintiff's history of "only conservative care" in support of the assigned residual functional capacity. (PageID 60-61). She also rejects the opinions of treating sources Drs. Brumfield, Okafor, and Hassan, concluding that the lumbar and cervical degeneration confirmed by objective testing "cannot be reasonably expected to preclude the claimant from all work activity." (PageID 60-62). Rather, the ALJ summarily grants "significant weight" to the opinions of all the state agency's one-time medical consultants, but only to the extent they do not conflict with the residual functional capacity she assigns. (PageID 60).
Ultimately, the ALJ concludes that although Plaintiff is incapable of returning to any of her past work, there are significant numbers of other jobs in the national economy which she can perform. (PageID 62-64). As a result, the ALJ finds that Plaintiff is not disabled under the Social Security Act from her April 2, 2009 application through the date of her decision. (PageID 64).
The ALJ's decision references the relevant period as beginning at Plaintiff's application rather than the alleged onset date, because Social Security benefits under Title XVI only become payable upon the filing of an application and, as a result, specific medical evidence of an exact onset date need not generally be obtained prior to the application in Title XVI cases. SSR. 83-20.
B.
First, Plaintiff alleges that the ALJ's findings regarding and based upon her daily activities are unsupported by the record.
The ALJ found that Plaintiff's daily activities "are consistent with at least a modified range of light work activity." (PageID 60). Similarly, she holds that Plaintiff attends to "a wide range of daily activities" and that Plaintiff reported "no significant changes in lifestyle caused by her reported impairments." (PageID 61). The ALJ then uses these conclusions about Plaintiff's daily activity levels to discredit her allegations of disabling pain. (PageID 60-62). The ALJ also identifies Plaintiff's daily activities as a reason to depart from the assessments of three separate treating physicians, commenting specifically that Dr. Brumfield's opinion "contradicts Plaintiff's own report of her daily activities." (PageID 62).
However, the evidence of record indicates otherwise. Plaintiff testified in May 2011 that she spends much of her days declining or laying down. (PageID 97). She cooks, but she must alternate this chore with her mother and stick to meals that allow her the opportunity to rest during the cooking process. (PageID 91, 98). Plaintiff testified that she cannot wait in line at a store or stand at the sink to wash a full load of dishes without taking a break. (PageID 86, 98). She cannot even attend church on a regular basis because of her inability to sit through a service. (PageID 90, 93, 95).
In a questionnaire from October 2009, Plaintiff explained that she cooks only "quick meals" that do not cause her to stand long. (PageID 290). As for chores, Plaintiff noted that she does "cleaning (light) laundry...a little at a time." (PageID 291). Additionally, Plaintiff stated that she "cannot walk far or stand long or lift heavy objects or sit long." (PageID 289). Plaintiff stated "I don't feel like getting out of bed some mornings to even shower." (PageID 284).
Defendant cites only two pieces of evidence in support of the ALJ's characterization of Plaintiff's activity levels - the reports of Drs. Flexman and Vitols. (PageID 620, 626). With respect to Dr. Vitols' report, there is no evidence to support a finding that the physician's use of the phrase "independent in ADLs" in and of itself substantiates the ALJ's proposition that Plaintiff's daily activities "are consistent with at least a modified range of light work activity." (PageID 60). It is important to consider the context surrounding the phrase, where Dr. Vitols records that Plaintiff "is able to carry on household chores slowly" and can only "walk about two city blocks on an average day." (PageID 626). Additionally, Dr. Vitols specifically opines at the conclusion of his report that Plaintiff's daily activities are in fact affected by her impairments. (Id.) ("Based on the foregoing clinical objective findings of this examination the claimant's work capabilities and tasks of daily living are affected accordingly.").
With respect to the evidence from Dr. Flexman, the "Activities of Daily Living" section of his report gives little to no context for the majority of activities listed and largely fails to explain how often, for how long, or with what limitations nearly all of the cited activities are performed by Plaintiff. (PageID 620). Rather, the list vaguely presents a tally of things that Plaintiff purportedly "does" or "enjoys" without indicating what context the Plaintiff provided for the same. (Id.) Other portions of Dr. Flexman's report indicate that Plaintiff did in fact describe limits in her activities consistent with her other statements. For instance, Dr. Flexman records that due to Plaintiff's chronic back pain it is "hard to sit or stand for long and hard to sleep." (PageID 619). The substantive evidence supports a finding that Plaintiff has been able to perform only intermittent and interrupted daily activities since the onset of her disabling impairments.
Moreover, an RFC is not determined in light of what a claimant might be able to unreliably or intermittently accomplish, but serves as a measure of the claimant's capability for sustained work activity. See 20 C.F.R. § 416.945(b) ("When we assess your physical abilities, we first assess the nature and extent of your physical limitations and then determine your residual functional capacity for work activity on a regular and continuing basis."). A claimant's "ability to perform intermittent and interrupted daily functions such as driving, grocery shopping, or chores, is not evidence of an ability to perform substantial gainful activity." Gabbard v. Comm'r of Soc. Sec., No. 3:11cv426, 2012 U.S. Dist. LEXIS 155290, at *28 (S.D. Ohio Oct. 30, 2012).
The ALJ's failure to properly consider Plaintiff's activities of daily living is a substantial error. The ALJ's unsupported conclusions regarding Plaintiff's daily activities reveal that she did not meaningfully consider the actual evidence of record regarding the same and a failure to consider the record as a whole undermines a non-disability finding. Hurst v. Sec'r of Health & Human Services, 753 F.2d 517, 519 (6th Cir. 1985) ("It is more than merely helpful for the ALJ to articulate reasons...for crediting or rejecting particular sources of evidence. It is absolutely essential for meaningful appellate review.").
Moreover, the ALJ's claim that Plaintiff only had "conservative treatment" is simply an inaccurate characterization which ignores the role a lack of insurance has had in Plaintiff's medical treatment. (Tr. 85, 88-90, 95-96, 481-83, 1332). While a failure to seek treatment may be considered as evidence against a finding of disability, SSR 96-7p requires the adjudicator to consider any reasons offered for that failure, including mental illness or a lack of insurance. Green v. Comm'r of Soc. Sec., No. 07-12787, 2008 U.S. Dist. LEXIS 114927, at *9 (E.D. Mich, Oct. 2, 2008); Blakeman v. Astrue, 509 F.3d 878, 888 (8th Cir. 2007).
C.
Next, Plaintiff maintains that the ALJ failed to weigh the opinions of three separate treating sources in a manner consistent with the regulations and supported by the evidence.
"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 becauseId. "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.
these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone of from reports of individual examinations, such as consultative examinations or brief hospitalizations.
The record in this case contains the opinions of three separate treating physicians: Drs. Hasan, Okafor, and Brumfield. (PageID 691-92, 686-87, 148889). These opinions represent both the earliest assessment of Plaintiff's functioning (Dr. Hasan's March of 2007 opinion) and the most recent assessment (Dr. Brumfield's opinion from two months prior to Plaintiff's administrative hearing). (PageID 691-92, 1488-92). Despite these opinions from three different sources and each subsequent opinion being nearly two years separated from the last, they all reflect consistent limitations. (PageID 691-92, 686-87, 1488-89). Each physician ultimately opines to disabling physical limitations grounded in Plaintiff's inability to do basic work activities such as sitting and standing. (PageID 691-92, 686-87, 1488-89). These physicians find that due to Plaintiff's impairments, she cannot reliably attend to the demands of fulltime, competitive work. (Id.)
While the ALJ claims that the assessments of Drs. Hasan and Okafor "do not contain any reference to objective or clinical findings" to support the limitations therein, both physicians record Plaintiff's reduced spinal range of motion on the opinion forms themselves. (PageID 62, 686, 691). Additionally, the record contains at least twenty pages of Dr. Brumfield's office notes from July 2010 through the date of Plaintiff's hearing, which document reduced range of motion and tenderness in Plaintiff's lumbar spine during nearly ten separate physician examinations. (PageID 1494-504). Each of these physicians' assessments is also consistent with Plaintiff's allegations and her longitudinal complaints of pain both during regular treatment appointments and dozens of emergency room visits. (PageID 349-50, 527, 609-13, 656-83, 808-19, 832-65, 916-1043, 1090-1204, 1259-77, 1289-98, 136-78, 1380-1467). Additionally, state agency consulting examiner Dr. Vitols, like Drs. Hasan, Okafor, and Brumfield, opined that Plaintiff's ability to stand was affected by her impairments. (PageID 629).
The fact that the state agency's reviewing physicians reached contrary conclusions is not enough to merit assigning little weight to the strong preference for opinion evidence from sources who have treated and/or examined claimant's over evidence provided by reviewing sources. 20 C.F.R. § 404.1527(c)((1)-(2).
See also Gayheart v. Comm'r of Soc. Sec., No. 12-3553, 710 F.3d 365, 377 (6th Cir. Mar. 12, 2013) ("Similarly, the ALJ does not identify substantial evidence that is purportedly inconsistent with [the treating source's] opinions. Surely the conflicting substantial evidence must consist of more than the medical opinions of nontreating and nonexamining doctors. Otherwise the treating-physician rule would have no practical force because the treating source's opinion would have controlling weight only when the other sources agreed with that opinion. Such a rule would turn on its head the regulation's presumption of giving greater weight to treating sources because the weight of such sources would hinge on their consistency with nontreating, nonexamining sources.")
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D.
Further, Plaintiff maintains that the ALJ improperly substituted her own lay assessment of medical data for competent medical opinions.
The ALJ rejects the opinions of Plaintiff's physicians and Plaintiff's own allegations of disabling pain based in part on the conclusion that they are all somehow inconsistent with the objective testing which "has not shown more than degenerative changes in the lumbar and cervical spines." (PageID 62). However, it is unclear on what basis the ALJ concludes that Plaintiff's well evidenced lumbar and cervical spinal pathologies could not reasonably occasion the pain and limitations described by Plaintiff and her doctors.
Medical imaging confirms that Plaintiff has multiple disc bulges/protrusions throughout her spine causing lateral recess stenosis, forminal narrowing, and even nerve root abutment/deformity. (PageID 380-81, 693-94, 700-01, 1050). The treating physicians' interpretation of these medical imaging results has greater evidentiary value than an interpretation of the same by the ALJ herself. Metz v. Comm'r of Soc. Sec., No. 3:11cv391, 2012 U.S. Dist. LEXIS 123398, at *18 (S.D. Ohio Aug. 30, 2012). The ALJ cannot use her training or expertise to play the role of a medical expert. Hall v. Celebreeze, 314 F.2d 686, 690 (6th Cir. 1963) ("The ALJ may have expertise in some matters, but he does not supplant the medical expert.").
The imaging is accompanied in the record by positive clinical spinal findings such as reduced range of motion, positive straight leg raise tests, altered gain, and/or spinal tenderness. (PageID 368, 565, 628, 1494-504). It was therefore unreasonable for the ALJ to treat those imaging results as inconsistent with the treating source opinions. Metz, 2012 U.S. Dist. LEXIS 123398 at 18 ("The 2009 MRI results describe injuries to the lower back which could conceivably cause the Plaintiff's alleged symptoms, and it is therefore unreasonable to hold the MRI report is inconsistent with medical testimony.").
E.
Finally, Plaintiff claims that the ALJ improperly applied a "precludes all work activity" standard to Plaintiff's claim for benefits.
In her decision, the ALJ discredits Plaintiff's allegations of disability and the evidence supporting the same by noting that the medical evidence is inconsistent with "a complete preclusion of all work activity." (PageID 60-62). Accepting the ALJ's position as true, a complete preclusion of "all work activity" is not the applicable disability standard. Social Security's regulations define disability in part as "the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment." 20 C.F.R. § 404.1505(a). The regulations go on to explain that substantial work activity, which involves doing "significant physical or mental activities," is a necessary part of the definition of substantial gainful activity. 20 C.F.R. § 404.1572(a). The relevant inquiry is not a claimant's ability to engage in limited, unpredictable, or intermittent "work activity," but rather the ability to "to perform work on a regular and consistent basis, i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule." SSR 96-9p. Therefore, the ALJ's "precludes all work activity" standard is improper.
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, the lumbar and cervical spinal pathologies, and the credible and controlling findings and opinions of Drs. Hasan, Okafor, and Brumfield, the ALJ failed to meet the 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 Lisa Ross was not entitled to supplemental security income 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 beginning April 2, 2009. The Clerk shall enter judgment accordingly, and this case shall be CLOSED.
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Timothy S. Black
United States District Judge