Opinion
Civil Action 2:14-cv-460
01-30-2015
ERNEST TAYLOR, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
OPINION AND ORDER
I. Background
This is an action instituted under the provisions of 42 U.S.C. § 405(g) for review of a final decision of the Commissioner of Social Security denying plaintiff's applications for a period of disability, disability insurance benefits, and supplemental security income. This matter is before the Court, with the consent of the parties pursuant to 28 U.S.C. § 636(c), for consideration of Plaintiff's Statement of Specific Errors ("Statement of Errors"), Doc. No. 16, and Defendant's Memorandum in Opposition, Doc. No. 21. Plaintiff has not filed a reply.
Plaintiff Ernest Taylor filed his first applications for benefits on January 25, 2005, alleging that he has been disabled since October 1, 2004. TR 124-28. The claims were denied initially and upon reconsideration, and plaintiff requested a de novo hearing before an administrative law judge.
An administrative hearing was held on July 11, 2008, at which plaintiff, represented by counsel, appeared and testified, as did Jean Burkhammer, who testified as a vocational expert. TR 895-926. In a decision dated August 11, 2008, administrative law judge Mark M. Carissimi concluded that plaintiff was not disabled. TR 62-75. However, on September 24, 2008, the Appeals Council vacated that decision and remanded the matter to the administrative law judge for further consideration. TR 76-80.
A second administrative hearing was held on July 30, 2009, at which plaintiff, represented by counsel, appeared and testified, as did Phillip Balk, M.D., who testified as a medical expert, and Larry Ostrowski, Ph.D., who testified as a vocational expert. TR 539. In a decision dated October 5, 2009, administrative law judge George A. Mills, III, concluded that plaintiff was disabled for the period February 10, 2005 through October 1, 2006. TR 534-52. On April 1, 2011, the Appeals Council affirmed that portion of the decision finding a closed period of disability but vacated the remainder of the decision and remanded the matter to the administrative law judge for further consideration of whether plaintiff was disabled after October 1, 2006. TR 568-72.
Plaintiff filed a second application for benefits on April 20, 2010, again alleging that he has been disabled since October 1, 2004. TR 619-20. The Appeals Council associated plaintiff's claims and directed the administrative law judge to issue a new decision on the associated claims. TR 572.
A third administrative hearing was held on January 13, 2012, at which plaintiff, represented by counsel, appeared and testified, as did Lynn Smith, who testified as a vocational expert. TR 927-60. In a decision dated January 27, 2012, administrative law judge Jeffrey Raeber (the "administrative law judge") concluded that plaintiff was disabled from October 1, 2004 through October 1, 2006, and that plaintiff's disability ended on October 2, 2006. TR 36, 44-45. That decision became the final decision of the Commissioner of Social Security when the Appeals Council declined review on August 15, 2013. TR 10-14.
Plaintiff was 50 years of age on the date of the administrative law judge's January 27, 2012 decision. See TR 124, 45. He has at least a high school education, is able to communicate in English, and has past relevant work as a machine operator. TR 35, 44. Plaintiff was last insured for disability insurance purposes on March 31, 2012. TR 30. He has not engaged in substantial gainful activity since October 1, 2004. Id.
II. Administrative Decision
The administrative law judge found that, from October 1, 2004 through October 1, 2006, plaintiff's severe impairments consisted of Hepatitis C, diabetes, cirrhosis, depression, anxiety, chronic back pain, bilateral carpal tunnel syndrome, degenerative disc disease, and esophagus varices. TR 30. The administrative law judge also found that plaintiff's impairments neither met nor equaled a listed impairment during this time period and left plaintiff with the residual functional capacity ("RFC") to
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except he could stand/walk for up to six hours out of an 8-hour day with normal breaks and he can sit for up to six hours out of an 8-hour day. The claimant can do no work that requires climbing ladders, ropes, or scaffolds. He can do no work that requires more than occasional balancing, stooping, kneeling, crouching, or crawling. The claimant must avoid concentrated exposure to temperature extremes of hot or cold, or areas of excessive vibration. He can do no work that is more than unskilled in nature, or requires more than occasional contact with supervisors, co-workers, or the public. The claimant can do no task that requires completion of rapid production quotas. The claimant would be off-task for more than 10 percent of the workday because of his interferon treatment and other medical regimen for his Hepatitis C infection.TR 31-32. This RFC precludes the performance of plaintiff's past relevant work as a machine operator. TR 35. Moreover, the administrative law judge relied on the testimony of the vocational expert to find that plaintiff was unable to perform any job that existed in significant numbers in the national economy during the period October 1, 2004 through October 1, 2006. Id. Accordingly, the administrative law judge concluded that plaintiff was disabled for the closed period of October 1, 2004 through October 1, 2006, but that his disability ended on October 2, 2006. TR 36.
The administrative law judge found that plaintiff had not developed a new impairment since October 2, 2006, and that the severe impairments that were present during plaintiff's closed period of disability continued. Id. The administrative law judge also found that plaintiff's post-October 1, 2006 impairments neither meet nor equal a listed impairment and leave plaintiff with the RFC to
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except he can stand/walk for about 6 hours and sit for up to 6 hours in an 8-hour workday. He can never
climb ladders, ropes, or scaffolds. The claimant can occasionally balance, stoop, kneel, crouch, and crawl. He can frequently handle and finger objects bilaterally. The claimant can have frequent exposure to extreme cold and heat and excessive vibration. He can never be exposed to unprotected heights. He can have no exposure to food or sharp objects. The claimant is limited to work that is simple, routine, and repetitive performed in a work environment free of fast-paced production requirements involving only simple work related decisions and routine work place changes. He can have only occasional interaction with the public and co-workers.TR 36-38. Although this RFC precludes the performance of plaintiff's past relevant work, the administrative law judge relied on the testimony of the vocational expert to find that, beginning October 2, 2006, plaintiff was nevertheless able to perform a significant number of jobs in the national economy, including such representative occupations as office cleaner, mail clerk, and laundry worker. TR 4344. Accordingly, the administrative law judge concluded that plaintiff's disability ended on October 2, 2006. TR 44-45.
III. Discussion
Pursuant to 42 U.S.C. § 405(g), judicial review of the Commissioner's decision is limited to determining whether the findings of the administrative law judge are supported by substantial evidence and employed the proper legal standards. Richardson v. Perales, 402 U.S. 389 (1971); Longworth v. Comm'r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005). Substantial evidence is more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See Buxton v. Haler, 246 F.3d 762, 772 (6th Cir. 2001); Kirk v. Sec'y of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981). This Court does not try the case de novo, nor does it resolve conflicts in the evidence or questions of credibility. See Brainard v. Sec'y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
In determining the existence of substantial evidence, this Court must examine the administrative record as a whole. Kirk, 667 F.2d at 536. If the Commissioner's decision is supported by substantial evidence, it must be affirmed even if this Court would decide the matter differently, see Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983), and even if substantial evidence also supports the opposite conclusion. Longworth, 402 F.3d at 595.
In his Statement of Errors, plaintiff first challenges the administrative law judge's RFC determination. Plaintiff specifically argues that the administrative law judge "incorrectly held that [plaintiff] could perform a diminished form of light work, requiring gross use of the hands to grasp, hold, and turn objects, after October 2, 2006." Statement of Errors, p. 13. Plaintiff argues that his testimony, the medical evidence, and the opinion of treating physician Dr. Kontrak all support a finding that plaintiff is limited to only occasional use of his hands. Id. at pp. 13-15.
The report of "Kontak M.D." appears at TR 501-02.
An RFC determination is an indication of an individual's work-related abilities despite their limitations. See 20 C.F.R. §§ 404.1545(a); 416.945(a). The RFC is an administrative finding of fact reserved to the Commissioner. 20 C.F.R. §§ 404.1527(d)(2), (3), 416.927(d)(2), (3); Edwards v. Comm'r of Soc. Sec., 97 F. App'x 567, 569 (6th Cir. 2004). A claimant's RFC represents the most, not the least, that a claimant can do despite his impairments. 20 C.F.R. §§ 404.1545(a); 416.945(a); Griffeth v. Comm'r of Soc Sec., 217 F. App'x 425, 429 (6th Cir. 2007). In assessing a claimant's RFC, an administrative law judge must consider all relevant record evidence, including medical source opinions, on the severity of a claimant's impairments. See 20 C.F.R. §§ 404.1527(d), 404.1545(a); 416.927(d), 416.945(a). Furthermore, courts have stressed the importance of medical opinions to support a claimant's RFC, and have cautioned administrative law judges against relying on their own claimed expertise in drawing RFC conclusions from raw medical data. See Isaacs v. Astrue, No. 1:08-CV-828, 2009 WL 3672060, at *10 (S.D. Ohio Nov. 4, 2009) (quoting Deskin v. Comm'r of Soc Sec., 605 F. Supp. 2d 908, 912 (N.D. Ohio 2008)).
In the case presently before the Court, the administrative law judge found that, beginning October 2, 2006, plaintiff had the RFC to
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except he can stand/walk for about 6 hours and sit for up to 6 hours in an 8-hour workday. He can never climb ladders, ropes, or scaffolds. The claimant can occasionally balance, stoop, kneel, crouch, and crawl. He can frequently handle and finger objects bilaterally. The claimant can have frequent exposure to extreme cold and heat and excessive vibration. He can never be exposed to unprotected heights. He can have no exposure to food or sharp objects. The claimant is limited to work that is simple, routine, and repetitive performed in a work environment free of fast-paced production requirements involving only simple work related decisions and routine work place changes. He can have only occasional interaction with the public and co-workers.TR 38. In making this RFC assessment, the administrative law judge evaluated the medical evidence and considered the medical source opinions. As that evidence relates to plaintiff's hand pain, the administrative law judge found as follows:
In early 2007, the claimant began to report left hand pain and numbness to Dr. Cullen. The claimant reported on January 9, 2007 that he was using his hand repetitively at work. Dr. Cullen gave the claimant's [sic] a splint for his left hand and ordered a nerve conduction study (Exhibit B9F/10). A January 17, 2007 nerve conduction study revealed severe left median neuropathy at the left wrist, moderate right median neuropathy, and left ulnar neuropathy (Exhibit B9F/5). The claimant visited the emergency room twice in July 2007 for carpal tunnel pain. Upon examination, the claimant did have good range of motion in his wrists. Both times the emergency room doctors discharged the claimant the same day and provided him with pain medications (Exhibit B11F/13, 15).TR 39. The administrative law judge's evaluation of the medical evidence related to plaintiff's hand pain is supported by substantial evidence.
In August 2007, the claimant continued to report bilateral hand pain, despite the brace. Dr. Cullen noted that the claimant needed bilateral carpal tunnel surgery (Exhibit B10F/5). The claimant did eventually have carpel tunnel surgery on his left hand, but not his right (Exhibit B21F/5). By his January 18, 2011 consultative examination, his pincer movements and fine coordination were within normal limits (Exhibit B21F/8). Beyond his emergency room visits in July 2007, there have been no additional emergency room visits for bilateral hand pain, no additional nerve conductions studies, and no office visits regarding his carpal tunnel pain.
In formulating plaintiff's RFC, the administrative law judge als considered plaintiff's testimony, TR 38 ("The claimant testified that he has problems with his hands, and while he can lift 15-20 pounds, his hands do get stiff and lock up."), and the medical source opinions. The administrative law judge considered the opinion of treating source Dr. Kontrak that plaintiff could "occasionally reach and handle" and "rarely perform fine and gross manipulation," but afforded the opinion "little weight." TR 41. The administrative law judge discounted Dr. Kontrak's opinion because his "treatment notes are not in the record, so it is impossible to determine if the opinion is consistent with his own treatment." Id. The administrative law judge also found that Dr. Kontrak's opinion was inconsistent with the medical evidence. Id. This conclusion is supported by substantial evidence, which the administrative law judge cited in his opinion. Moreover, the Court finds that the administrative law judge provided good reasons for discounting Dr. Kontrak's opinion. See Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007) ("[T]he ALJ must provide 'good reasons' for discounting treating physicians' opinions, reasons that are '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.'") (quoting SSR 96-2p, 1996 WL 374188, at *5 (July 2, 1996)).
The record demonstrates that plaintiff was diagnosed with carpel tunnel syndrome and that, at times, he reported and suffered from related symptoms. See TR 410-11, 464, 468, 485-86. The record does not, however, demonstrate that plaintiff suffered greater limitations than those found in the administrative law judge's RFC assessment. Plaintiff disagrees with the administrative law judge's evaluation of the evidence, but this Court is not permitted to reweigh that evidence where, as here, the administrative law judge followed the proper procedures and applied the proper standards and where his analysis is supported by substantial evidence. Accordingly, the Court concludes that the administrative law judge did not err in finding an RFC that did not limit plaintiff to only occasional use of his hands.
In a related argument, plaintiff contends that, assuming the merit of his objection to the RFC determination, he is disabled under Medical-Vocational Guideline 201.04 or 201.06. See Statement of Errors, pp. 15-16. Medical-Vocational Guideline 201.04 and 201.06 apply only when a claimant is limited to sedentary work. See 20 C.F.R. Pt. 404, Subpt. P, App. 2. In this case, however, the administrative law judge limited plaintiff to a reduced range of light work. The administrative law judge therefore did not err in failing to apply Medical-Vocational Guideline 201.04 and 201.06.
Finally, plaintiff argues that the Appeals Council erred by failing to review nearly 100 pages of evidence submitted after the administrative law judge's most recent decision. Statement of Errors, pp. 16-19 (referring to TR 961-1050). Plaintiff also seeks a remand under Sentence 6 of 42 U.S.C. § 405(g) for further administrative proceedings in light of this evidence.
As noted supra, the Appeals Council declined to review the decision of the administrative law judge on August 15, 2013. TR 1014. When the Appeals Council denies a claimant's request for review, the decision of the administrative law judge becomes the final decision of the Commissioner. Casey v. Secy. of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993) (citing 20 C.F.R. § 404.955). Under such circumstances, a court called upon to review the final decision of the Commissioner of Social Security is limited to review of the administrative law judge's decision and the evidence presented to the administrative law judge. See Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003) (citing Wyatt v. Sec'y of Health & Human Servs., 974 F.2d 680, 685 (6th Cir. 1992)). This Court has no authority to review the decision of the Appeals Council. See Cline v. Comm'r of Soc Sec., 96 F.3d 146, 148 (6th Cir. 1996) ("[T]he district court cannot consider that new evidence in deciding whether to uphold, modify, or reverse the ALJ's decision."). Moreover, it is evident from a review of its decision that the Appeals Council reviewed the new evidence submitted by plaintiff. See TR 11 (finding that the new evidence "is about a later time" and "does not affect the decision about whether [plaintiff] w[as] disabled on or before January 27, 2012").
A district court may, under certain circumstances, remand a case under Sentence 6 of 42 U.S.C. § 405(g) for further administrative proceedings in light of new and material evidence. Id.
The court . . . may at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding[.]42 U.S.C. § 405(g). A plaintiff bears the burden under this portion of the statute to demonstrate that the additional evidence presented is both "new" and "material" and that there is "good cause" for the failure to present this evidence to the administrative law judge. See Hollon ex rel. Hollon v. Comm'r of Soc. Sec., 447 F.3d 477, 483 (6th Cir. 2006).
Evidence is "new," for purposes of this provision, only if it was "not in existence or available to the claimant at the time of the administrative proceeding." Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990). Evidence is "material" only if there is "a reasonable probability that the [Commissioner] would have reached a different disposition of the disability claim if presented with the new evidence." Sizemore v. Sec'y of Health & Human Servs., 865 F.2d 709, 711 (6th Cir. 1988). See also Faucher v. Sec'y of Health & Human Servs., 17 F.3d 171, 174 (6th Cir. 1994). A plaintiff may establish "good cause" by demonstrating a reasonable justification for the failure to acquire and present the evidence at the administrative hearing. Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). This standard applies to evidence submitted for the first time to the Appeals Council. Id.; Cline, 96 F.3d at 148.
Plaintiff submitted to the Appeals Council for the first time nearly 100 pages of medical records from the Barberton Citizens Hospital dated July 26, 2012 through February 16, 2013, and from the Medina General Hospital dated September 26, 2012 through January 25, 2013. TR 961-1050. Plaintiff reported to Barberton Citizens Hospital on July 26, 2012 with painful, discolored left third and fifth metacarpals. TR 992. Plaintiff underwent several cardiovascular tests in July and August 2012. TR 983, 991-96. On July 26, 2012, plaintiff was diagnosed with severe stenosis of the proximal subclavian artery, just proximal to the origin of the left vertebral artery with irregular plaque. TR 983. Plaintiff underwent a left subclavian artery angioplasty with stenting on September 11, 2012. TR 982.
Plaintiff reported to the emergency room on September 20 and 26 and October 7, 2012 with reports of chest pain. TR 971-75, 976, 1028-34. Plaintiff underwent a CTA of the chest on July 28, September 20, and October 8, 2012. TR 980. The October 8, 2012 CTA revealed suboptimal enhancement of the aorta, coronary artery calcifications, and moderate artherosclerotic vascular disease. TR 980. Plaintiff was diagnosed with angina pectoris, arteriosclerotic cardiovascular disease, positive smoking history, diabetes type II, history of hypertension, and peripheral arterial disease. TR 966. On October 10, 2012, plaintiff was diagnosed with coronary artery disease. TR 985-86. Plaintiff continued to report chest pain in January and February 2013. TR 1035-42.
Plaintiff argues that these records are new and that good cause exists for their late production because the records post-date the January 13, 2012 administrative hearing. Statement of Errors, p. 17. Plaintiff argues that the records are material to the determination of disability because plaintiff was treated for chest pain and shortness of breath prior to the administrative decision, but the administrative law judge did not include a cardiac impairment in plaintiff's severe impairments. Statement of Errors, p. 17.
The Commissioner "concedes that the additional evidence submitted to the Appeals Council in this case was 'new' [because] it was not available as of the date of the ALJ's decision and is not duplicative, cumulative, or repetitive of evidence already in the Agency's possession." Commissioner's Response, pp. 9-10. The Commissioner argues, however, that the new evidence is not "material" because it "does not relate to the relevant time period;" the evidence post-dates the administrative law judge's decision and plaintiff's date last insured. Id. at pp. 10-11.
The records produced by plaintiff concern medical treatment extending from July 26, 2012, through February 16, 2013. TR 961-1050. These records were generated some months after the administrative decision was issued, i.e., January 27, 2012, TR 26-45, and just three (3) months after plaintiff's insured status expired, i.e., March 31, 2012. TR 30. However, plaintiff had complained of chest pain prior to the administrative law judge's decision and prior to the lapse of his insured status. TR 810-11. The records now proffered by plaintiff may in fact relate to a condition that existed, but was undiagnosed, during the period of plaintiff's insured status and prior to the administrative law judge's decision. Under these circumstances, the Court concludes that plaintiff has established that the records are both new and material. Remand is therefore warranted under Sentence 6 of 42 U.S.C. § 405(g).
This action is hereby REMANDED to the Commissioner of Social Security, pursuant to Sentence 6 of 42 U.S.C. § 405(g), for consideration of new and material evidence. January 30, 2015
s/Norah McCann King
Norah McCann King
United States Magistrate Judge