Opinion
Civil Action No. 02 CV 73133 DT
July 24, 2003
OPINION AND ORDER TO REMAND AND DENYING MOTIONS FOR SUMMARY JUDGMENT
I. INTRODUCTION
In January 2001, Yvette Bentley (the "Plaintiff') applied for Social Security benefits under sub-chapter II of the Social Security Act. See 42 U.S.C. § 423(a). The application was denied and a hearing was held in February 2002 before Administrative Law Judge ("ALJ") Gerard Rickert, who held Plaintiff was not entitled to disability benefits. The Appeals Council rejected Plaintiffs request to review the ALJ's ruling, making the ALJ's decision final. Cohen v. Secretary of Health Human Servs., 964 F.2d 524, 528 (6th Cir. 1992).
The ALJ found that Plaintiff met the requirements for disability insured status under the Social Security Act. She became unable to work on April 27, 2000, and had not engaged in substantial gainful activity since that date.
Plaintiff has these medically determinable impairments: degenerative disease of the lumbar spine, chronic pain syndrome, possible connective and depression. The impairment or combination of impairments is severe within the meaning of the Social Security Act and Regulations. However, Plaintiff does not have an impairment or combination of impairments that meets or is medically equal to the criteria specified in the Listing of Impairments (Appendix 1, Subpart P, Regulations No. 4). Plaintiff has residual functional capacity to work except lifting or carrying more than ten pounds frequently or twenty pounds occasionally. While Plaintiff is unable to perform past relevant work, based on her capacity for light work, her age, education, and work experience, she is not disabled and there are significant numbers of jobs in the national economy that she can perform.
Plaintiff appeals to this court for reversal of the ALJ ruling. See 42 U.S.C. § 405(g). Each party filed a Motion for Summary Judgment. In her Motion for Summary Judgment, Plaintiff raises the issues of whether the ALJ erroneously discounted the opinion of Plaintiff's treating neurologist, H. Policherla, M.D.; and whether the ALJ's finding that Plaintiff has residual functional capacity to perform light work is supported by substantial evidence of record. Defense also filed a Motion for Summary Judgment, asserting that because the Commissioner's decision was supported by substantial evidence, it should be upheld.
The case was referred to Magistrate Judge Morgan for a Report and Recommendation which was issued on April 8, 2003. Magistrate Judge Morgan recommends that Plaintiff's Motion for Summary Judgment be denied and Defendant's Motion for Summary Judgment be granted because the record adequately supports the ALJ's conclusion that Plaintiff was capable of performing light work.
Plaintiff first objects that the ALJ gave "little weight" to treating neurologist Dr. Policherla's opinions. Plaintiff also asserts that the Commissioner's Social Security Ruling 96-5p is inconsistent on its face with Regulation 20 C.F.R. § 404.1527. Social Security Ruling 96-5p specifies that opinions from treating sources can never be entitled to controlling weight or given special significance.
Plaintiff next objects to the ALJ's ruling because there is no regulation or case law requirement that requires a treating physician to list specific functional limitations before the physician's opinion is given more weight.
II. FACTS
Plaintiff was born on September 9, 1966, has a high school education, and has been employed as a secretary, receptionist and bank teller. Plaintiff became disabled on April 27, 2000, after a number of boxes containing dishes fell on her at a Meijer store in November of 1999. In her claim, she complains of chronic pain syndrome, connective tissue disease, bulging disc, pinched nerve, joint pain, depression, fatigue, inability to sit for long periods, inability to drive due to the effects of medication, memory loss, and lack of concentration. (pg. 90). As of February 2002, she was taking Vicodin, Paxil, Valium, Norfiex and Ibuprofen. (pg. 37-8). On January 17, 2002, Bon Secours' Pain Management Service Physician Assessment also indicated an impression of fibromyalgia and herniated lumbar disc with probable cervical radiculopathy. (pg. 280). On April 28, 2000, her treating neurologist, Dr. Haranath Policheria, recommended that she stop working due to pain and difficulty ambulating. (pg. 228, 250, 258). She has been treated for pain at the Pain Management Center at Bon Secours Hospital since August 2000.
Plaintiff is able to perform some light household chores such as laundry and dish washing, make meals, sew, and shop. She also decorates wreathes and T-shirts. While she only drives short distances, she is able to drive her daughter to school, drive herself to medical appointments when necessary, visit with a friend who takes her out to lunch once or twice monthly, and attend P.T.A. meetings.
Plaintiffs mother indicates Plaintiff "lives from pain pill to pain pill" and sleeps 3-5 hours after driving her daughter to school each morning. (pg. 118). Her mother wishes Plaintiff wouldn't sleep so much. (pg. 122). An emergency room report dated March 14, 2000 indicates Plaintiff had increased pain on straight leg raising of the right lower extremity and on range of motion of the lower spine, but could ambulate without difficulty. (pg. 195). On April 14, 2000, Dr. Joseph Femminineo, M.D. found negative straight leg raising, saying it was a "self-limited problem" and should not result in any significant permanent disability. (pg. 198). Dr. Femminineo had also examined Plaintiff on February 23, 2000, and found "an alert, oriented and very pleasant female who appears in no obvious distress." (pg. 201). However, he noted significant discomfort at the lumbosacral junction. (pg. 201).
A psychiatric review performed by Dr. Ronald Marshall, Ph.D., L.P., on April 2, 2001, found depression and pain disorder. (pgs. 140, 143). However, he noted only a mild restriction of daily living activities and social functions, and moderate difficulty in maintaining concentration, persistence or pace. (pg. 147). A physical residual functional capacity assessment performed on April 16, 2001, indicated chronic pain syndrome and depression. (pg. 155).
Plaintiff was examined on at least five different occasions between April 2000 and June 2001, by neurologist Haranath Policherla who reported his findings and made recommendations to Dr. Lyla Leipzig, Plaintiff's primary care physician. (pgs. 230, 250-7). On November 15, 2000, Dr. Policherla wrote a note on a prescription pad stating that Plaintiff was under his professional care and unable to work until further notice. (pg. 228). In a letter to Dr. Leipzig on April 28, 2000, Dr. Policherla indicates Plaintiff was unable to work a full eight hours. (pg. 250).
Vocational Expert Lawrence S. Zatkin (the "VE") testified that Plaintiff's past work was a secretary, which is a semi-skilled to skilled, sedentary job. She also formerly worked as a bank teller, a light to medium, semi-skilled job; and in retail, a light, semiskilled job. (pg. 56). The VE indicated that one such as the Plaintiff would not be able to perform her past relevant work, but could perform an unskilled job such as a machine tender, assembler, gatehouse guard, information clerk, inspector, and cashier. (pg. 56). There are more than 40,000 such jobs statewide. (pg. 57). When asked if one could engage in any employment if they had to be absent from work outside of normal break periods to lie down and rest, the VE indicated they would not be able to engage in any employment. (pg. 57).
III. DISCUSSION
The court reviews a magistrate judge's report and recommendation de novo when objections are made. Bankston v. Commissioner of Social Sec., 127 F. Supp.2d 820, 823 (E.D. Mich. 2000). See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); E.D. Mich. LR 72.1(d)(2). The court can accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions. Bankston, 127 F. Supp.2d at 823.
However, judicial review is limited to whether there is substantial evidence in the record to support the ALJ's factual findings. Id. at 823. See 42 U.S.C. § 405(g). "Substantial evidence" is more than a mere scintilla; it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994). If the ALJ's findings are supported by substantial evidence, they are conclusive. 42 U.S.C. § 405(g). This is true even if the record also contains substantial evidence to support a different conclusion. Felisky, 35 F.3d at 1053.
A disability is defined under the Social Security Act as:
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).
A five-step process is used to evaluate claims for disability benefits. 20 C.F.R. § 404.1520. In evaluating disability claims for benefits, the claimant must show: 1) They are not engaged in substantial gainful activity; 2) They have a severe impairment; 3) The impairment meets the duration requirement, and meets or equals a listed impairment; 4) or proof that they are incapable of performing past work; and 5) No other work can be performed, given age, education, past work experience and residual functional capacity. See 20 C.F.R. § 404.1520(b-f).
Plaintiff asserts two issues in his Motion for Summary Judgment and in Objections to Magistrate's Report and Recommendation:
1. Whether the ALJ erroneously discounted the opinion of Plaintiff's treating board certified neurologist, Dr. Policherla. Within this issue, Plaintiff raises the question as to whether the Magistrate Judge addressed Plaintiffs argument that Social Security Ruling 96-5p was misplaced" because the Ruling is contrary to both case law and the Commissioner's own regulations.
2. Whether the ALJ's finding of residual functional capacity ("RFC") for light work is supported by substantial evidence of record.
IV. TREATING PHYSICIAN DOCTRINE
Plaintiff complains that the ALJ gave "little weight" to neurologist Dr. Policherla's opinions. Plaintiff contends that the opinions of the treating neurologist should be given deference. Also, Plaintiff asserts error because the Magistrate Judge did not directly address the rationale that there is no regulation or case law requirement that requires a treating physician to list specific functional limitations before the physician's opinion is given more weight.The Sixth Circuit has held, pursuant to the "treating physician doctrine", that the medical opinion of the treating physician is to be given substantial deference. Bankston, 127 F. Supp.2d at 824 (referencingWalker v. Secretary of Health and Human Servs., 980 F.2d 1066 (6th Cir. 1992)). In Cohen v. Secretary of Department of Health and Human Servs., 964 F.2d 524 (6th Cir. 1992), the court said, "In determining whether a claimant is entitled to disability insurance payments, medical opinions and diagnoses of treating physicians are entitled to great weight, and if uncontradicted, are entitled to complete deference." 964 F.2d 524, 528 (6th Cir. 1992).
The treating physician doctrine is based on the assumption that a medical professional who has dealt with a claimant and his maladies over a long period of time will have a deeper insight into the medical condition of the claimant than will a person who has examined a claimant but once, or who has only seen the claimant's medical records.Bankston v. Commissioner of Social Sec., 127 F. Supp.2d 820, 824.
The record contains some contradictory opinions of Plaintiff's condition and capabilities. However, nearly all physician reports in the record recognized the Plaintiff's chronic pain period. (See pgs. 118, 147, 155, 195, 201). According to the "treating physician doctrine, " those medical professionals dealing with the claimant over a long period are given deference. Here, Plaintiff was under the primary care of Dr. Leipzig and neurologist Dr. Policherla.
Plaintiff was examined on at least five different occasions between April 2000 and June 2001 by Dr. Policherla. (pgs.230, 250-7). Dr. Policherla stated Plaintiff was unable to work until further notice. (pg. 228). Dr. Policherla's findings are documented in the record. (pg. 250-7). However, the ALJ determined that this note was entitled to little weight since the doctor did not list specific functional limits or explain why the claimant was unable to work. Under the treating physician's doctrine, Dr. Policherla's opinion should have been given deference by the ALJ when evaluating Plaintiff's ability to work. While this was error on the part of the ALJ, we note that the ALJ is not bound by conclusory statements of doctors. Cohen v. Secretary of Department of Health and Human Servs., 964 F.2d 524, 529 (6th Cir. 1992). The ALJ authority to make a determination based on substantial evidence will be addressed as part of Plaintiffs second challenge below.
V. SUBSTANTIAL EVIDENCE
Plaintiff challenges whether the ALJ's finding of RFC for light work is supported by substantial evidence in the record. The ALJ posed a three-part hypothetical question to the VE during the hearing. When asked if one could engage in any employment if they had to be absent from work outside of normal break periods to lie down and rest, the VE indicated they would not be able to engage in any employment if they were required to take breaks outside of the normal periods during the workday. (pgs. 56-7). Dr. Policherla, a specialist who treated Plaintiff for over a year, indicated Plaintiff was unable to work an eight hour period. (pg. 250). Plaintiff testified that she was taking Vicodin, Paxil, Valium, Norfiex and Ibuprofen. (pgs. 37-8). "The medication helps, but it doesn't alleviate all the pain and it can make me extremely fatigued. I sleep a lot during the day because of the pain and the medicine." (pg. 40). Her mother indicates that she wishes Plaintiff would not sleep so much. (pgs. 250, 122). In her claim, Plaintiff indicates that "People at work were becoming intolerate. Pain was severe and I was unable to sit, medications caused inability to concentrate and memory loss. Unable to function adequately." (pg. 90).
In his findings, ALJ stated:
5. The claimant's statements regarding her subjective symptoms and functional limitations are found to be generally credible, except to the extent that they may be inconsistent with the limitations listed in Finding No. 6.
6. The claimant has the residual functional capacity to perform the exertional and non-exertional requirements of work except for lifting or carrying more than 10 pounds frequently or 20 pounds occasionally (exertional); and performing work requiring frequent bending or involving more than simple repetitive tasks (non-exertional) ( 20 C.F.R. § 404.1545).
(pg. 22).
Residual functional capacity is defined as the "maximum degree to which the individual retains the capacity for sustained performance of the physical-mental requirements of jobs." See 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(c) (1989).(emphasis added). In determining a claimant's physical abilities, we must "assess the severity of [claimant's] impairment(s) and determine [claimant's] residual functional capacity for work activity on a regular and continuing basis." 20 C.F.R. § 404.1545(b) (1989) (emphasis added).Cohen, 964 F.2d at 530.
The ALJ's credibility determinations are entitled to deference. Cohen, 964 F.2d at 531. However, the VE has stated that those who require greater than normal breaks during the workday cannot find any jobs in the national economy. The treating physician's opinion, which should be given great weight, indicates Plaintiff cannot work. This is supported by Plaintiff's statements and her mother's statements that she becomes fatigued from the medicine and sleeps during the day. The ALJ indicates that Plaintiff has met the first four steps of the five-part test to determine whether Plaintiff has a disability. "After Plaintiff has satisfied the first four steps, the burden shifts to the Commissioner to show whether Plaintiff has the residual functional capacity to perform any other substantial gainful activity or sedentary work. See 20 C.F.R. § 404.1520(f)." Bankston, 127 F. Supp.2d at 824. The Court finds that the Commissioner has not met the burden of showing that Plaintiff has the residual functional capacity to perform substantial gainful activity or sedentary work of sustained performance on a continuing basis.
For the reasons stated above, the court finds that Dr. Policherla's opinion that Plaintiff could not work was not given appropriate deference. Further, there was not substantial evidence to support the ALJ's finding that Plaintiff could work an eight-hour day.
Accordingly,
IT IS ORDERED that this case be REMANDED to Magistrate Judge Morgan to determine whether Plaintiff can sustain an eight-hour day on a continuing basis.
IT IS FURTHER ORDERED that Plaintiff's Motion for Summary Judgment is denied.
IT IS FURTHER ORDERED that Defendant's Motion for Summary Judgment is denied.