Opinion
CASE NO. 1:11CV1076
02-13-2012
CYNTHIA SHEA, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.
JUDGE JOHN R. ADAMS REPORT AND RECOMMENDATION
Plaintiff Cynthia Shea ("Shea") seeks judicial review of the final decision of Defendant Commissioner of Social Security ("Commissioner") denying her application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act (the "Act), 42 U.S.C. §§ 416(i) and 423. Doc. 1. This matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation pursuant to Local Rule 72.2(b)(1).
Under Local Rule 7.1(f), memoranda filed in administrative track matters are limited to 20 pages. The font size of Shea's brief on the merits is less than twelve points in size, as evidenced by the small typeface throughout the brief. In the future, counsel shall use twelve point font when complying with Local Rule 7.1(f).
The Administrative Law Judge ("ALJ") erred under Step Three of the sequential analysis because he failed to evaluate the medical evidence concerning Shea's physical impairments and compare that evidence to the requirements for the Listed Impairments. For that and the other reasons set forth below, the final decision of the Commissioner should be REVERSED and REMANDED.
I. Procedural History
On August 2, 2006, Shea filed an application for DIB, alleging a disability onset date of June 23, 2003. Tr. 108. Shea claimed that she was disabled due to the effects of Charcot deformity (which involves chronic pain and breaking of bones in the feet) and bilateral nerve impingement. Tr. 97, 241. The state agency denied Shea's claim initially on December 11, 2006 (Tr. 91), and on reconsideration on May 8, 2007. Tr. 92. On May 16, 2007, Shea filed a written request for a hearing (Tr. 104) and, on April 20, 2009, a hearing was held before ALJ Stephen M. Hanekamp (the "ALJ"). Tr. 51-90. In a decision dated September 16, 2009, the ALJ determined that Shea was not disabled or entitled to benefits. Tr. 11-22. On September 25, 2009, Shea requested review of the ALJ's decision by the Appeals Council. Tr. 6. On March 22, 2011, the Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. Tr. 1-3.
In her reply brief, Shea states that she was awarded DIB benefits based on a subsequent application she filed with the Social Security Administration. Doc. 21, p. 1. Shea states that she was found to be disabled as of September 17, 2009, which was the day after the ALJ issued his decision denying Shea's applications for benefits on her original application. Id.
II. Evidence
A. Personal Evidence
Shea was born on February 3, 1958, and was 45 years old on the alleged disability onset date. Tr. 20. She graduated from high school and is able to communicate in English. Tr. 56. At the time of the administrative hearing, Shea lived with her husband and two daughters, ages 16 and 18. Tr. 63.
B. Medical Evidence
1. Overview of Treatment History
Shea's brief focuses primarily on her physical impairments. Therefore, this Report & Recommendation focuses on Shea's medical history as it relates to her physical impairments.
Since her alleged onset dated of June 23, 2003, Shea has sought treatment from numerous sources for problems with her feet. From 2003 to 2005, Shea was treated by E.J. Nemet, D.P.M. In July, 2003, Dr. Nemet diagnosed Shea with tarsal tunnel syndrome of her left foot. Tr. 469. On July 1, 2003, she underwent left foot tarsal tunnel release surgery with Dr. Nemet. Tr. 469-71. On October 1, 2003, Dr. Nemet performed a second surgery on Shea's left foot. Tr. 483. Over a year later, on November 8, 2004, Shea saw Dr. Nemet after she sustained two fractures in the metatarsals of her right foot. Tr. 177. Dr. Nemet instructed Shea to stay off her right foot as much as possible and use a walker or surgical shoe when walking. Tr. 177-78. Shea had four follow-up appointments with Dr. Nemet from December 2004 to March 2005 and, at each visit, she admitted to being non-compliant with Dr. Nemet's instructions. Tr. 179-182. For example, on December 8, 2004, Dr. Nemet noted that Shea had walked around a shopping mall just before her appointment. Tr. 179.
Shea also treated with Lawrence DiDomenico, D.P.M., F.A.C.F.A.S. in 2005. On April 15, 2005, Dr. DiDomenico performed a tarsal nerve release surgery on Shea's left foot. Tr. 188-190. He also diagnosed Shea with tarsal tunnel syndrome of the left lower extremity, compression of the posterior tibial nerve of the left lower extremity, and compression neuropathy of the medial calcaneal nerve, medial plantar nerve, lateral plantar nerve, common peroneal nerve, and deep peroneal nerve of the left foot. Tr. 188. On June 27, 2005, Dr. DiDomenico performed a second tarsal nerve release surgery on Shea's left foot. Tr. 185-87. He also reaffirmed his prior diagnosis. Tr. 185.
Dr. DiDomenico referred Shea to a pain management specialist, Sami E. Moufawad, M.D., and Shea treated with Dr. Moufawad from 2005 to 2008. On April 6, 2005, Dr. Moufawad diagnosed Shea with neuropathic pain and tarsal tunnel bilaterally. Tr. 526-27. He prescribed Kadian, a long-acting medication, to assist with the pain. Tr. 526-27. On May 11, 2005, Dr. Moufawad saw Shea for a follow up evaluation. Tr. 510. He noted that Shea had surgery three weeks prior to the appointment and that she was 50% better. Tr. 510. He also noted that Shea's activities were improving and that the Kadian was helping her sleep. Tr. 510.
On July 15, 2005, Shea was seen by Dr. Moufawad. Tr. 512. Shea reported that her symptoms had been getting progressively better on her right foot, but that she continued to have pain in her left foot. Tr. 512. Shea stated that Kadian was helping with the pain, but not completely "cutting it," and that she was taking up to six tablets of Vicodin per day. Tr. 512. At a follow up visit on July 14, 2005, Shea reported to Dr. Moufawad that her pain interfered with her activities of daily living, ambulation, and enjoyment of live, but when she took her pain medications she was able to ambulate. Tr. 514. Shea also stated that she was starting to feel better but pain was not completely gone. Tr. 514.
Shea was seen by Dr. Moufawad on November 9, 2005. Tr. 518. She told Dr. Moufawad that her pain was progressively getting better but that she was far from being back to normal. Tr. 518. She also described having pain in her back. Tr. 518. Dr. Moufawad recommended that Shea have an MRI of her back, that she continue with Kadian and Vicodin, and that she start taking Lyrica. Tr. 518. On January 11, 2006, Shea reported to Dr. Moufawad for a follow up visit. Tr. 503. She reported to Dr. Moufawad that her symptoms were getting better and that she was having some good days. Tr. 503. She stated that the Lyrica was helping take the burning out of the pain. Tr. 503. In a treatment note dated May 30, 2006, Dr. Moufawad noted that Shea's pain was superficial in the skin and deep in the tissues. Tr. 293. Dr. Moufawad reported that, in the year since Shea's surgery, her pain had been getting better. Tr. 293. He recommended a home exercise program for desensitization of the skin of the feet and started Shea on a TENS unit. Tr. 294.
On July 11, 2006, Dr. Moufawad completed a medical source statement and noted that Shea suffered from foot pain with collapsed arches, and that she had had pain in her feet for years, resistant to surgeries and medications. Tr. 199-200. He also noted that Shea's medications were Vicodin and Kadian, and that there were no issues of compliance that interfered with her treatment. Tr. 200. In response to a question about any limitations Shea's impairments imposed on her ability to perform sustained work activity, Dr. Moufawad stated that Shea had difficulty standing more than 15 minutes, walking was also affected, and that she could not drive more than 20 minutes. Tr. 200.
On July 21, 2006, Shea began attending physical therapy sessions with Kim Ellman, P.T. She attended sessions for two months, from July 2006 to August 2006, and began to show improvement very quickly at these sessions. Tr. 205-218, 224-240. In a therapy note dated July 21, 2006, Shea reported to Ms. Ellman that the only thing that helps her pain is pain medication. Tr. 230. Shea noted, during several sessions, that she had improvements in her balance and in activities of daily living. Tr. 234-35. In a therapy treatment note dated August 15, 2006, Ms. Ellman noted that Shea's range of motion and strength in both ankles were within normal limits. Tr. 237. Ms. Ellman also noted that Shea could now stand on her tip-toes to reach into a cupboard and that her balance was better. Tr. 237.
On August 24, 2006, Ms. Ellman completed a medical source statement and noted that Shea's range of motion and her strength in her both ankles were within normal limits. Tr. 205. Ms. Ellman noted that Shea's balance on one leg had increased from 5 seconds to 7 seconds on her right leg and from 2 seconds to 12 seconds on her left leg. Tr. 206. In response to a question about any limitations Shea's impairments imposed on her ability to perform sustained work activity, Ms. Ellman noted that Shea reported being able to sit or stand for only 30 minutes, and that the goal of physical therapy was to get Shea to be able to comfortably sit or stand for approximately 2 hours. Tr. 206.
Shea saw Dr. Moufawad on September 1, 2006 and reported that the pain in her feet was getting worse again, that she was having difficulties with ambulation and with walking or standing. Tr. 295. Dr. Moufawad noted that Shea's ability to drive was limited to 20 minutes because using the foot pedals irritated the pain in her feet. Tr. 295. He recommended that she continue using the TENS unit, stopped the prescription for Vicodin, and instead prescribed Percocet for pain. Tr. 295. On October 3, 2006, Shea saw Dr. Moufawad and reported that she did not notice much difference between using Percocet versus Vicodin. Tr. 296. At an office visit on January 5, 2007, Shea reported the pain in her feet was starting to affect her sleep. Tr. 298. Shea also reported having difficulties with walking, standing, and driving, and that her symptoms were making her depression worse. Tr. 298. Dr. Moufawad prescribed Sonata to help Shea sleep. Tr. 298.
On July 10, 2007, Shea saw Dr. Moufawad after having had transforaminal epidural steroid injections on both sides of her lower back. Tr. 426. Dr. Moufawad noted that the injections did not help with the pain in her feet. Tr. 426. An MRI of Shea's lumbar spine showed disc bulges bilaterally. Tr. 426. Shea also reported that she was using six tablets of Percocet per day. Tr. 426. On August 21, 2007, Shea was seen by Dr. Moufawad and he prescribed OxyContin in addition to her other pain medications. Tr. 427. In a treatment note dated September 20, 2007, Dr. Moufawad noted that Shea had some improvement of pain with OxyContin. Tr. 428. He reported that Lyrica helped markedly with the pain but that Shea's insurance denied approving Lyrica. Tr. 428.
Shea saw Dr. Moufawad on October 19, 2007 and reported that she was getting relief with her current regimen. Tr. 429. Shea stated that her pain was not completely under control but that she was happy with the results. Tr. 429. On January 11, 2008, Shea presented to Dr. Moufawad and reported that her current pain regimen was working but not completely relieving her symptoms. Tr. 433. Shea stated that she was reluctant to increase the dosage of her medications and had some concerns about addiction. Tr. 433. Dr. Moufawad discussed these concerns with Shea and explained the difference between dependence on medication versus addiction. Tr. 433.
After treating with Dr. Moufawad for three years, on April 18, 2008, Shea sought a second opinion from Emad Mikhail, M.D., who is also a pain management specialist. Tr. 392-94. Shea reported bilateral foot pain that was exacerbated by daily activities. Tr. 392. Dr. Mikhail recommended Shea have another MRI on her sacral spine. Tr. 394. On April 25, 2008, Shea saw Dr. Mikhail and reported that everything was about the same. Tr. 398. Dr. Mikhail noted that exacerbating factors for Shea's pain were standing/walking/sitting, and that Shea was not sleeping well. Tr. 397. He gave Shea a prescription for OxyContin. Tr. 399. On May 9, 2008, Dr. Mikhail administered a left lumbar sympathetic nerve block to Shea. Tr. 396.
On May 19, 2008, Shea saw Dr. Mikhail and stated that she did not have any relief from the nerve block. Tr. 400-02. Dr. Mikhail noted that Shea had a mild antalgic gait. Tr. 401. On June 5, 2008, Shea reported to Dr. Mikhail for a follow up. Tr. 403-05. Shea noted that her pain had been the same since her last appointment. Tr. 403. On July 31, 2008, Shea saw Dr. Mikhail and reported that she had seen a rheumatologist, Dr. Mandel, and that he had given her a prescription for Elavil, which was helping immensely. Tr. 409. Shea's last appointment with Dr. Mikhail was in December 2008. Tr. 446-48.
Shea did not see another pain management specialist until April 1, 2009, when she reported to Timothy Ko, M.D. Tr. 537-38. Dr. Ko diagnosed Shea with complex regional pain syndrome type 1 and severe peripheral polyneuropathy. Tr. 537. Dr. Ko discussed the use of medications to treat pain, noted that Shea had been on chronic narcotics for some time, and expressed that his preference is to use non-narcotics to manage pain. Tr. 537. On April 22, Shea saw Dr. Ko for a follow-up appointment. Tr. 539-40. Dr. Ko stated that Shea exhibited some signs of withdrawal and that Shea had been without any oral pain medications for the past 7 days. Tr. 539. He gave Shea a prescription for OxyContin. Tr. 539.
2. State Agency Physician
On April 30, 2007, state agency physician Teresita Cruz, M.D., reviewed Shea's medical records and completed a Physical Residual Functional Capacity Assessment. Tr. 313-20. Dr. Cruz opined that Shea could lift or carry up to 20 pounds occasionally; lift or carry up to 10 pounds frequently; and stand, sit, or walk for about six hours in an eight hour workday. Tr. 314. Dr. Cruz also opined that Shea's ability to push or pull was not limited. Tr. 314. As for non-exertional limitations, Dr. Cruz opined that Shea could occasionally climb ramps and stairs and could never climb ladders, ropes or scaffolds. Tr. 315. She also concluded that Shea could balance and stoop occasionally. Tr. 315. Dr. Cruz further opined that Shea should avoid all exposure to unprotected heights. Tr. 317.
C. Testimonial Evidence
1. Shea's Testimony
On April 20, 2009, Shea appeared with counsel and testified at the administrative hearing. Tr. 53-77. Shea stated her impairments are bilateral nerve impingements in both feet and Charcot's deformity, which causes the weakening of bones and tendons in the foot so much so that they become rounded in the opposite direction of the foot's natural arch. Tr. 65. Shea stated that she had surgeries in 2002 and 2004 to correct this condition. Tr. 65. The symptoms she experiences in her feet are numbness, tingling, weakness, loss of sensation, and shooting pains. Tr. 74. Shea explained that the loss of sensation in her feet causes her to have poor balance and sometimes fall into objects like furniture, the refrigerator, and the counter. Tr. 76. Shea also testified that she suffers from depression and anxiety. Tr. 70. Shea explained that she has a walker, but that she does not use it unless it is absolutely necessary because she is "very stubborn." Tr. 67. Shea testified that she takes a variety of medications for her health condition, including Percocet, Lyrica, Trazodone, Paxil, and Lamictal. Tr. 69-72. She stated that she had also been taking OxyContin but stopped because she felt that she was taking too many medications. Tr. 65.
Shea also testified about her work history. She stated that she worked at OfficeMax as a customer service representative and, at that job, she stood and walked three to four hours in an eight hour day and the heaviest weight she lifted was three pounds. Tr. 57. Shea testified that she had also worked at Progressive Insurance in customer service, where she did no lifting. Tr. 57. Shea explained that she would alternate between sitting and standing while she was doing her work. Tr. 57-58. She testified that she was eventually fired from Progressive because she went on medical leave for her foot bones to heal but Progressive felt she was able to work. Tr. 58. Shea testified that she performed data entry at Charter One in 2005 and, at that job, she also alternated between sitting and standing. Tr. 59. Shea stated that Charter One would not allow her to alternate between sitting and standing and that, as a result, she was fired from that job. Tr. 59. Shea stated that she was then employed as a driving instructor at Mentor Driving School from July 2007 to September 2007. Tr. 63. Shea explained that she was fired from this position because she was not allowed to stop the car during a driving session with a student to walk around and because she was not working enough hours. Tr. 63. Finally, Shea testified that, at the time of the hearing, she was employed as a driving instructor at Flexy Supply. Tr. 60. She stated that she was working between 8 to 16 hours per week and not more than 4 hours in a given day. Tr. 62. Shea stated that she could not do this work full-time because she needed medication for her foot condition, and she could not be medicated while working with the students. Tr. 62.
Shea testified about her activities of daily living and stated that she typically sleeps ten to twelve hours straight and helps her husband with the laundry by folding the clothes. Tr. 68-69. Shea explained that one of her hobbies is doing simple crossword puzzles. Tr. 68. Shea stated that she runs errands such as grocery shopping but that she pre-medicates before going. Tr. 74.
2. Vocational Expert's Testimony
Mark Anderson, a vocational expert ("VE"), also testified at the hearing. Tr. 77-89. He testified that Shea had worked as a customer service representative at OfficeMax, which was performed at a high exertional level and was a semi-skilled position. Tr. 79. The VE reported that Shea worked in customer service at Progressive, which was performed at a sedentary level of exertion and was a skilled position. Tr. 79. He also testified that Shea worked in data entry, which was performed at a sedentary level of exertion and was a semi-skilled position. Tr. 79. The VE stated that Shea's work as a driving instructor was performed at the light exertional level and was a semi-skilled position. Tr. 79.
In a hypothetical, the ALJ asked the VE whether a person could perform any of Shea's past relevant work if the individual had the same vocational factors as Shea and the following limitations: could lift and carry 20 pounds occasional and 10 pounds frequently; could stand and walk a total of two hours in an eight hour day, but with the walking distance limited to 200 feet at one time; could sit for a total of six hours in an eight hour day, and the person would need to stand up for a minute or two after sitting for about 15 minutes; could occasionally use ramps or stairs; could not climb ladders, ropes or scaffolds; could occasionally balance and stoop; could not be exposed to hazards; could not walk on uneven or slippery surfaces; was limited to tasks that are simple to moderately complex; could not have a rigorous production pace or strict production quotas. Tr. 80. The VE testified that this individual could perform Shea's past relevant work doing data entry. Tr. 81. The VE also testified that the individual could perform the following other light and unskilled jobs: an assembler of small products (light exertional level and unskilled) (25,000 jobs in Ohio and 165,000 jobs nationally); an assembler of electrical accessories (light exertional level and unskilled) (9,000 jobs in Ohio and 244,000 jobs nationally); and an electronic worker (light exertional level and unskilled) (35,000 jobs in Ohio and 860,000 jobs nationally). Tr. 82.
III. Standard for Disability
Under the Act, 42 U.S.C § 423(a), eligibility for benefit payments depends on the existence of a disability. "Disability" is defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). Furthermore:
[A]n individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy . . . .42 U.S.C. § 423(d)(2). In making a determination as to disability under this definition, an ALJ is required to follow a five-step sequential analysis set out in agency regulations. The five steps can be summarized as follows:
1. If the claimant is doing substantial gainful activity, he is not disabled.
2. If claimant is not doing substantial gainful activity, his impairment must be severe before he can be found to be disabled.20 C.F.R. §§ 404.1520, 416.920 (b)-(g); see also Bowen v. Yuckert, 482 U.S. 137, 140-42, 96 L. Ed. 2d 119, 107 S. Ct. 2287 (1987). Under this analysis, the claimant has the burden of proof at Steps One through Four. Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). The burden shifts to the Commissioner at Step Five to establish whether the claimant has the residual functional capacity ("RFC") and vocational factors to perform work available in the national economy. Id.
3. If claimant is not doing substantial gainful activity, is suffering from a severe impairment that has lasted or is expected to last for a continuous period of at least twelve months, and his impairment meets or equals a listed impairment, claimant is presumed disabled without further inquiry.
4. If the impairment does not meet or equal a listed impairment, the ALJ must assess the claimant's residual functional capacity and use it to determine if claimant's impairment prevents him from doing past relevant work. If claimant's impairment does not prevent him from doing his past relevant work, he is not disabled.
5. If claimant is unable to perform past relevant work, he is not disabled if, based on his vocational factors and residual functional capacity, he is capable of performing other work that exists in significant numbers in the national economy.
IV. The ALJ's Decision
In his September 2009 decision, under Step One of the sequential analysis, the ALJ found that Shea engaged in substantial gainful activity ("SGA") in the years of 2003 and 2005, which was after her alleged onset date of June 23, 2003. T. 13. As a result, the ALJ determined that Shea was not disabled during 2003 and 2005. However, the ALJ continued the sequential analysis to address the periods of time during which Shea had not engaged in SGA.
Under Step Two, the ALJ found that Shea had the following severe impairments: bilateral tarsal tunnel syndrome, neuropathic arthropathy ("Charcot foot"), degenerative disc disease of the cervical spine, diabetes mellitus, depression and anxiety. Tr. 14. Under Step Three, the ALJ determined that Shea did not have an impairment or combination of impairments that met or medically equaled an impairment described in the Listing of Impairments (20 C.F.R. pt. 404, Subpt. P , App. 1). Tr. 14-15. The ALJ next determined that Shea retained the RFC to perform light work, except she could only stand/walk a total of 2 hours in an 8 hour workday, but could walk no more than 200 feet at one time; could sit for a total of about 5 hours in an 8 hour workday, but she must be able to stand every 15 minutes for a few minutes at a time; she could use ramps and stairs occasionally; could balance and stoop occasionally; could not climb ladders, ropes or scaffolds; could not work around hazards such as unprotected heights or walk on uneven or slippery surfaces; and was limited to simple to moderately complex tasks not involving a rigorous production pace or strict production quotas. Tr. 15-19. Under Step Four, the ALJ determined that Shea was unable to perform her past relevant work, even though the ALJ noted in his decision that the VE opined that Shea could perform her past relevant work in data entry. Tr. 20. Finally, under Step Five, considering her vocational factors, RFC, and the testimony of the VE, the ALJ found that Shea was capable of performing work that existed in significant numbers in the national economy. Tr. 20-21. Thus, the ALJ concluded that Shea was not disabled. Tr. 22.
V. Arguments of the Parties
Shea challenges the Commissioner's decision on three grounds: (1) the ALJ improperly determined that her impairments did not meet or equal a Listed Impairment; (2) the ALJ improperly evaluated the opinions of Dr. Moufawad and physical therapist Kim Ellman; and (3) the ALJ improperly evaluated Plaintiff's allegations of disabling pain.
In response, the Commissioner argues that the ALJ properly evaluated whether Shea's impairments met or equaled a Listed Impairment and reasonably concluded that the medical evidence did not establish that she met the severity requirements for any Listed Impairment. The Commissioner also asserts that the ALJ reasonably evaluated the opinion of Dr. Moufawad and incorporated his findings into the RFC determination and also reasonably evaluated the opinion of Shea's physical therapist in concluding that Shea's impairments did not prevent her from performing a limited range of light work. The Commissioner finally contends that the ALJ properly evaluated Shea's complaints of debilitating pain.
VI. Law & Analysis
A reviewing court must affirm the Commissioner's conclusions absent a determination that the Commissioner has failed to apply the correct legal standards or has made findings of fact unsupported by substantial evidence in the record. 42 U.S.C. § 405(g); Wright v. Massanari, 321 F.3d 611, 614 (6th Cir. 2003). "Substantial evidence is more than a scintilla of evidence but less than a preponderance and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Besaw v. Sec'y of Health & Human Servs., 966 F.2d 1028, 1030 (6th Cir. 1992). The Commissioner's findings "as to any fact if supported by substantial evidence shall be conclusive." McClanahan v. Comm'r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (citing 42 U.S.C. § 405(g)). Even if substantial evidence or indeed a preponderance of the evidence supports a claimant's position, a reviewing court cannot overturn "so long as substantial evidence also supports the conclusion reached by the ALJ." Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003). Accordingly, a court "may not try the case de novo, nor resolve conflicts in evidence, nor decide questions of credibility." Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
A. The ALJ's Step Three Decision is Not Supported by Substantial Evidence
At Step Three of the disability evaluation process, a claimant will be found disabled if the claimant's impairment meets or equals one of the Listings in the Listing of Impairments. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); Turner v. Comm'r of Soc. Sec., 381 Fed. Appx. 488, 491 (6th Cir.2010). Each Listing specifies the objective medical and other findings needed to satisfy the criteria of that Listing. 20 C.F.R. § 404.1525(c)(3). A claimant must satisfy all of the criteria to "meet" the Listing. Id.; Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 652 (6th Cir. 2009). However, a claimant also will be found disabled if her impairment is determined to "medically equal" a Listing, 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); Turner, 381 Fed. Appx. at 488, which means it is "at least equal in severity and duration to the criteria of any listed impairment." 20 C.F.R. § 416.926(a); 20 C.F.R. § 404.1526(a).
The Listing of Impairments, located at Appendix 1 to Subpart P of the regulations, describes impairments the Social Security Administration ("SSA") considers to be "severe enough to prevent an individual from doing any gainful activity, regardless of his or her age, education, or work experience." 20 C.F.R. § 404.1525(a). In other words, a claimant who meets the requirements of a Listed Impairment will be deemed conclusively disabled, and entitled to benefits. Id.
Shea argues that the ALJ did not properly evaluate whether she met or equaled a Listed Impairment under Step Three of the sequential analysis. Doc. 16, pp. 13-15. Specifically, Shea argues that the ALJ's analysis was deficient with regard to both her physical and mental impairments. In the alternative, Shea argues that substantial evidence supports a finding that her impairments met or equaled Listing 11.14 - the Listing for peripheral neuropathies. The undersigned agrees that the ALJ committed error in his Step Three determination.
In this case, the ALJ found both physical and mental severe impairments at Step Two: bilateral tarsal tunnel syndrome, neuropathic arthropathy ("Charcot foot"), degenerative disc disease of the cervical spine, diabetes mellitus, depression and anxiety. He then went on to find, at Step Three, that neither Shea's physical nor mental impairments met or medically equaled one of the Listings.
The entirety of the ALJ's consideration of Shea's physical impairments at Step Three is contained in a single opening paragraph:
No treating or examining physician has indicated findings that would satisfy the severity requirements of any listed impairment. I have specifically considered the claimant's bilateral tarsal tunnel syndrome under listing 1.06, her neuropathic arthropathy and diabetes under listing 9.08 and her degenerative disc disease of the cervical spine under listing 1.04. In reaching the conclusion that the claimant does not have an impairment or combination of impairments that meet or medically equal a listed impairment, I also considered the opinion of the State Agency medical consultants who evaluated this issue at the initial and reconsideration levels of the administrative review process and reached the same conclusion.Tr. 14.
While the ALJ thus conclusorily stated that he had considered Listings 1.06, 9.08, and 1.04, he did not discuss the requirements a claimant must meet or medically equal to satisfy those Listings nor did he compare those requirements with the medical evidence of record. He made only a passing reference to the medical evidence when he mentioned, without describing, the findings and opinions of "treating or examining physician[s]" and "State Agency medical consultants."
The record reflects that only one state agency physician, reviewing physician Dr. Teresita Cruz, assessed Shea's physical impairments. Accordingly, the ALJ apparently erred when he indicated that more than one state agency medical consultant evaluated Shea's physical impairments. In this regard, it should be noted that, on October 12, 2006, state agency physician Paul G. Josell, Psy.D., performed a consultative examination and assessed Shea's mental impairments (Tr. 241-43), and that, on October 27, 2006, Douglas Pawlarczyk, Ph.D., reviewed the file and assessed Shea's mental impairments. Tr. 245-47. Further, on April 20, 2007, Karla Voyten, Ph.D., affirmed Dr. Pawlarczyk's opinions as written. Tr. 312.
Immediately following the paragraph quoted above, the ALJ concluded that Shea's "mental impairments, considered singly and in combination, do not meet or medically equal the criteria of listings 12.04 or 12.06." The ALJ's Step Three analysis of Shea's mental impairments is very sparse, although it does provide slightly more discussion than the ALJ's Step Three conclusion as to her physical impairments. With respect to her mental impairments, the ALJ set forth the requirements of the Listings 12.04 and cited three Exhibits that contained medical opinions as to the degree of Shea's restrictions. Tr. 14-15.
The ALJ's Step Three conclusion as to Shea's physical impairments clearly does not satisfy the substantial evidence standard. The ALJ's Step Three analysis of Shea's mental impairments does satisfy that standard, although barely. With respect to the physical impairments, this case is very similar to Reynolds v. Comm'r of Soc. Sec., 424 Fed. App'x 411 (6th Cir. 2011), in which the Sixth Circuit held that the ALJ erred in "failing to analyze Reynolds' physical condition in relation to the Listed Impairments." Id. at 416. In Reynolds, as in this case, the ALJ found, at Step Two, that the claimant had both physical and mental severe impairments. He began his Step Three determination with a conclusory statement concerning the applicant's back impairment. Although the ALJ followed that with a "thorough analysis" and a "full-page assessment of Reynolds' mental impairment," which the Sixth Circuit found to meet the substantial evidence standard (id. at 415), he did "[n]o analysis whatsoever as to whether Reynolds' physical impairments met or equaled a Listing despite his introduction concluding that they did not." Id. The Sixth Circuit reversed and remanded for the ALJ "to revisit the case and explain his findings at Step 3." Id. at 413.
The Reynolds Court set forth the requirements for an ALJ's Step Three analysis as follows:
In short, the ALJ needed to actually evaluate the evidence, compare it to . . . the Listing, and give an explained conclusion, in order to facilitate meaningful judicial review. Without it, it is impossible to say that the ALJ's decision at Step Three was supported by substantial evidence.424 Fed. App'x at 415. This Court recently applied and followed Reynolds in another case similar on its facts to the instant case. May v. Astrue, No. 4:10CV1533, 2011 WL 3490186, *9 (N.D. Ohio June 1, 2011), adopted, 2011 WL 3490229 (N.D. Ohio Aug. 10, 2011) (Adams, J.) (remanding where ALJ, at Step Three, provided conclusion but no analysis as to claimant's physical impairment while providing satisfactory analysis as to claimant's mental impairment).
The Sixth Circuit indicated that these requirements follow from an ALJ's statutory duty, under 5 U.S.C. § 557(C)(3)(A), to "include a discussion of 'findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record.'" Reynolds, 424 Fed. App'x at 414 (quoting 5 U.S.C. § 557(C)(3)(A)). This "reasons requirement is both a procedural and substantive requirement, necessary in order to facilitate effective and meaningful judicial review." Id.
The ALJ's analysis under Step Three in the present case is similar to the analysis conducted by the ALJ in Marok v. Astrue, No. 5:08CV1832, 2010 WL 2294056 (N.D. Ohio June 3, 2010). The ALJ in Marok, in his Step Three determination, summarily stated that a medical expert testified that the claimant did not meet a Listing and that he concurred with the medical expert, instead of describing the reasons for his determination. Id. at * 4. The ALJ stated that he also considered "all symptoms" and "opinion evidence" but did not describe that evidence or his findings relative to it. Id. at *5. The Court noted that, to decipher what the medical expert said, the reader must travel back to the transcript of the hearing, which is something not immediately accessible to the typical reader. Id. The Court determined that the ALJ had not clearly articulated the reasons for his decision and reversed and remanded the case for further administrative proceedings. Id. at *4-5.
In this case, the ALJ offered no analysis at Step Three to support his conclusion that Shea's physical impairments did not meet a Listing Impairment. Without more than a conclusory statement regarding Shea's physical impairments, the Court is deprived of the opportunity to provide meaningful judicial review and cannot determine whether the ALJ's conclusion is supported by substantial evidence.
The Commissioner contends that the evidence does not establish that Shea's physical impairments satisfied the criteria for any Listed Impairment. The Commissioner refers to evidence in the record in support of his position. Doc. 19, pp. 6-7. Unfortunately, the ALJ included no such analysis and the Court cannot engage in post hoc rationalizations. S.E.C. v. Chenery, 332 U.S. 194, 196 (1947) (a reviewing court must judge propriety of agency action "solely by the grounds invoked by the agency"). "[A]rguments [crafted by defense counsel] are of no consequence, as it is the opinion given by an administrative agency rather than counsel's 'post hoc rationale' that is under the Court's consideration." See, e.g., May v. Astrue, 2011 WL 3490186, *9; Bable v. Astrue, 2007 U.S. Dist. LEXIS 83635, 27-28 (N.D. Ohio Oct. 31, 2007) (citing NLRB v. Ky. River Cmty. Care, Inc., 532 U.S. 706, 715, n. 1, 121 S.Ct. 1861 (2001)).
Moreover, the ALJ's failure to explain how he reached his conclusion that Shea's physical impairments do not meet or medically equal a Listing is not harmless error because, if a claimant is found to meet a Listed Impairment, the claimant is disabled within the meaning of the regulations and is entitled to benefits; no additional analysis is necessary. 20 C.F.R. § 404.1520(a)(4)(iii); see also Reynolds, 424 Fed. App'x at 416 (holding that the ALJ's error in failing to evaluate evidence of the applicant's back impairment was not harmless).
Application of harmless error may be appropriate where the review of a decision as a whole leads to the conclusion that no reasonable fact finder, following the correct procedure, could have resolved the factual matter in another manner. See Hufstetler v. Comm'r of Soc. Sec., 2011 U.S. Dist. LEXIS 64298, *26-27 (N.D. Ohio June 17, 2011); Malone v. Comm'r of Soc. Sec., 2011 U.S. Dist. LEXIS 130537, *4-6 (N.D. Ohio November 10, 2011). For example, in Hufstetler, the Court found that the ALJ's lack of a full discussion at Step Three was harmless error because the ALJ's findings at Step Four provided sufficient information for the Court to determine that no reasonable administrative fact finder would have resolved the matter differently. Hufstetler, 2011 U.S. Dist. LEXIS at *26-27; Malone, 2011 U.S. Dist. LEXIS 130537 at *4-6 (finding that, based on a review of the ALJ's decision as a whole, remand was not necessary even though the ALJ's decision contained only a conclusory statement regarding Step Three).
Here, the ALJ found, at Step Two, that Shea has several severe physical impairments but did not discuss specifically any of the impairments or the medical evidence relating to the impairments. Tr. 14. In his RFC discussion, the ALJ did address medical evidence as to Shea's physical impairments but not with sufficient detail or specificity to support a determination as to whether any of those impairments met or equaled a Listing. Tr. 15-19. For example, the ALJ discussed the results of X-Rays, MRIs and CT scans of Shea's feet (Tr. 17-18), but did not tie this evidence to any discussion as to the severity of Shea's specific impairments. Finally, the ALJ did not discuss Shea's physical impairments at either Step Four or Step Five of the analysis. Tr. 20-21. Based on a review of decision as a whole, it cannot be said that no reasonable administrative fact finder would have resolved the Step Three finding differently.
In sum, the record reflects that the ALJ failed to evaluate the medical evidence and compare it to the requirements for the Listed Impairments. Accordingly, the undersigned recommends that the case be remanded for a more thorough Step Three determination.
A full review and analysis after remand may not result in a disability finding at Step Three but, without a meaningful explanation, such a possibility cannot be ruled out definitively.
Because remand is appropriate, on remand, the ALJ should consider whether Shea's physical impairments met or equaled Listing 11.14 - the Listing for peripheral neuropathies. In addition, the ALJ should consider supplementing his analysis of Shea's mental impairments under the standard set forth in Reynolds.
B. Evaluation of the Medical Source Opinions and Shea's Allegations of Disabling Pain
Shea asserts that the ALJ did not properly evaluate the opinion of her pain management consultant, Dr. Moufawad. The undersigned will not reach this issue because, on remand, the ALJ's evaluation of the evidence under Step Three might impact his findings under the remaining Steps of the sequential analysis. See Reynolds, 424 Fed. App'x at 417. As the Commissioner is aware, however, if the ALJ assigns less than controlling weight to the opinion of Shea's treating physician, his reasons "must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight." Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 407 (6th Cir. 2009) (emphasis added).
For the same reason, the undersigned also will not address Shea's arguments that the ALJ did not properly evaluate the opinions of her physical therapist, Kim Ellman, and that the ALJ erred in evaluating her subjective complaints of chronic foot pain. See Trent v. Astrue, Case No. 1:09CV2680, 2011 U.S. Dist. LEXIS 23331, at *19 (declining to address the plaintiff's remaining assertion of error because remand was already required and, on remand, the ALJ's application of the treating physician rule might impact his findings under the sequential disability evaluation).
VII. Conclusion and Recommendation
For the foregoing reasons, the final decision of the Commissioner denying Plaintiff Cynthia Shea's application for DIB should be REVERSED and REMANDED. Dated: February 13, 2012
This report and recommendation should in no way be construed as an advisory opinion in favor of a finding of disability on remand. --------
/s/_________
Kathleen B. Burke
United States Magistrate Judge
OBJECTIONS
Any objections to this Report and Recommendation must be filed with the Clerk of Courts within fourteen (14) days after the party objecting has been served with a copy of this Report and Recommendation. Failure to file objections within the specified time may waive the right to appeal the District Court's order. See United States v. Walters, 638 F.2d 947 (6th Cir. 1981); see also Thomas v. Arn, 474 U.S. 140 (1985), reh'g denied, 474 U.S. 1111 (1986).