Opinion
Case Number 01-10184-BC.
January 6, 2005
The plaintiff filed the present action on April 30, 2001 seeking review of the Commissioner's decision denying the plaintiff's claims for a period of disability and disability insurance benefits under Title II of the Social Security Act. The case was referred to United States Magistrate Judge Charles E. Binder pursuant to 28 U.S.C. § 636(b)(1)(B) and E.D. Mich. LR 72.1(b)(3). Thereafter, the plaintiff filed a motion for summary judgment to reverse the decision of the Commissioner and award him benefits. The defendant filed a motion for summary judgment requesting affirmance of the Commissioner's decision. Magistrate Judge Binder filed a report and recommendation on November 30, 2003 recommending that the plaintiff's motion for summary judgment be denied, the defendant's motion for summary judgment be granted, and the findings of the Commissioner be affirmed. The plaintiff filed timely objections to the recommendation to which the defendant responded, and this matter is now before the Court.
The Court has reviewed the file, the report and recommendation, the plaintiff's objections, that the defendant's response and has made a de novo review of the administrative record in light of the parties' submissions. The plaintiff's objections challenge the magistrate judge's conclusion that substantial evidence supports the decision of the Administrative Law Judge (ALJ) that the plaintiff is not disabled. The plaintiff presented claims of disability based on both physical and mental impairments. The ALJ determined that the plaintiff retained the capacity to perform a range of sedentary and unskilled work and that his mental impairment would not prevent gainful activity. The plaintiff argued in his motion for summary judgment that the ALJ's decision concerning the severity of his mental impairments was not supported by substantial evidence because the ALJ stated at the administrative hearing that he would order further evaluation by a qualified psychologist, never followed through with such an evaluation, and nonetheless rendered a decision denying benefits. The plaintiff argued that substantial evidence did not support the ALJ's decision concerning his physical impairments because the ALJ failed to give controlling weight to the opinion of the plaintiff's treating physician, Dr. Dennis C. O'Connor, who completed several forms stating that the plaintiff was totally disabled.
The plaintiff objects to the magistrate judge's report because the magistrate judge failed to address the plaintiff's main arguments; he did not consider evidence in the record as a whole, including evidence establishing a considerable worsening of the plaintiff's condition after two positive reports from Dr. Jeffrey Levin, which the magistrate judge misidentified as having come from Dr. O'Connor; the magistrate judge did not consider the complete reports of the plaintiff's daily activities; and the magistrate judge cited to and relied upon unpublished cases and dicta to support his legal conclusions when that authority had little bearing on the issues actually presented for review.
The Court agrees with many of the plaintiff's criticisms of the report and recommendation. The ALJ did state on the record that he might be aided by an additional psychological evaluation before he could properly assess the plaintiff's disability claim, see tr. at 319-20, but he did not order an examination, nor did he discuss or explain in his decision the reason why he apparently changed his mind. The plaintiff's treating physician, Dr. O'Connor, a family practitioner, stated in forms on three different occasions that he believed that the plaintiff could not perform sedentary work because of his impairments: the effects of his Crohn's disease, and the after-effects of the stroke. Tr. at 243, 261-63, 265. The ALJ mentioned Dr. O'Connor's opinions but did not discuss them further, nor did he mention any rationale for rejecting them. Both of these issues were plainly raised by the plaintiff in his motion for summary judgment and they were thoroughly discussed by the defendant in his opposing brief. Yet the magistrate judge failed to discuss or even mention the issues raised, essentially ignoring the plaintiff's arguments that were referred to the magistrate judge for a recommendation. The defendant has acknowledged in his response to the objections the magistrate judge's failure to address the issues. The deficiencies in the magistrate judge's report do not compel a judgment for the plaintiff. However, the Court has thoroughly reviewed the administrative record and concludes that substantial evidence does not support the ALJ's decision that the plaintiff was able to perform work at a competitive level.
The plaintiff, presently fifty-one years old, applied for a period of disability and disability insurance benefits on November 26, 1996 when he was forty-three years old. He had worked for the past twenty years in two different capacities for General Motors as a forklift driver and a machine operator. In his original application, the plaintiff stated that he became disabled on January 13, 1996. On February 5, 1996, however, the plaintiff amended his application to allege a disability onset date of March 14, 1996.
The evidence indicates that the plaintiff was involved in an accident at work when he struck a pole while driving a forklift in March 1996. The injuries sustained in the accident caused neck and shoulder pain. He attempted to return to work the next day and was allowed to work by the shop doctor. However, the plaintiff's pain was bad enough to send him to Dr. O'Connor, who found him disabled on April 11, 1996. Tr. at 243. In June 1996, the plaintiff suffered a lacunar stroke and spent ten days in the hospital, four in intensive care. The stroke affected the right side of his body, particularly his face, arm and leg, although the neurologic deficits were considered "reversible." Tr. at 170. His symptoms improved after physical and occupational therapy sessions, but he continued to complain of neck and shoulder pain, weakness, and memory loss. The plaintiff never returned to work and now receives a disability pension from General Motors. He also was diagnosed with Crohn's disease for which he has had several surgeries, the first when he was eighteen years old; he presently requires the use of a colostomy bag. His Crohn's disease was stable, but apparently the plaintiff suffered a flare-up in 1996. Doctors have also diagnosed an adjustment disorder and borderline intellectual functioning.
In his application for benefits, the plaintiff alleged that he was unable to work due to neck and shoulder pain, weakness, and memory loss. On April 27, 1999, the plaintiff appeared before ALJ John A. Ransom when he was forty-six years old. ALJ Ransom filed a decision on June 24, 1999 in which he found that the plaintiff was not disabled. The ALJ reached that conclusion by applying the five-step sequential analysis prescribed by the Secretary in 20 C.F.R. § 404.1520. The ALJ concluded that the plaintiff had not engaged in substantial gainful activity since March 14, 1996 (step one); the plaintiff suffered from substantial impairments of status post stroke with mild dementia, Crohn's disease, cervical and lumbar radiculopathy, an adjustment disorder, and borderline intellectual functioning, which were "severe" within the meaning of the Social Security Act (step two); none of these impairments alone or in combination met or equaled a listing in the regulations (step three); and the plaintiff could not perform his previous work as a forklift driver and machine operator, which was described as unskilled an requiring light exertion (step four).
In applying the fifth step, the ALJ concluded that the plaintiff had the residual functional capacity to perform a restricted range of sedentary and unskilled work limited to occasionally lifting up to ten pounds; allowing the option to sit and stand at will; performing only simple repetitive tasks requiring no fine dexterity and in a low stress working environment; and avoiding the production line use of his upper extremities. Relying on the testimony of a vocational expert, the ALJ found that there were a significant number of jobs in the regional economy suitable for the plaintiff because he could perform a range of sedentary and unskilled work, and that jobs such as visual inspector, security monitor, order clerk, sorter, information clerk, cashier, and telephone answerer fit within those limitations. Based on that finding and using the Medical-Vocational Guidelines found at 20 C.F.R. Pt. 404, Subpt. P, App. 2 as a framework, the ALJ concluded that the plaintiff was not disabled within the meaning of the Social Security Act. Following the decision by the ALJ, the plaintiff appealed to the Appeals Council, which denied the plaintiff's request for review on February 23, 2001.
The parties agree with the magistrate judge that the plaintiff has the burden of proving disability in order to qualify for social security disability benefits, and that "disability" is defined as the "inability to engage in any substantial gainful activity" due to a "physical or mental impairment" that could cause death or might reasonably be expected to last continuously for at least twelve months. See 42 U.S.C. § 423(d)(1)(A). Of course, a person is not disabled merely because his limitation prevents the person from performing previous work, if that person can perform other "substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A). The parties also accept the rule that the authority of this Court to review administrative decisions of the Commissioner is limited to deciding whether the proper legal standards were used and "whether there is substantial evidence in the record to support the findings." Wright v. Massanari, 321 F.3d 611, 614 (6th Cir. 2003) (quoting Duncan v. Sec'y of Health Human Servs., 801 F.2d 847, 851 (6th Cir. 1986)). The plaintiff takes issue with the application of this rule, however, arguing that the magistrate judge and the ALJ culled from the record only that evidence which favored a determination of no disability, violating the familiar instruction that a decision can not be based on a single piece of evidence in disregard of other pertinent evidence that exists in the record, see Hephner v. Matthews, 574 F.2d 359, 362 (6th Cir. 1978), and that "the substantiality of evidence must take into account whatever in the record fairly detracts from its weight." Garner v. Heckler, 745 F.2d 383, 388 (6th Cir. 1984).
To determine disability, the Commissioner has prescribed the five-step sequential process noted above and set forth in 20 C.F.R. § 404.1520. However, if the plaintiff has satisfied his burden through the first four steps in the analytical process, the burden shifts to the Commissioner to establish that the plaintiff possesses the residual functional capacity to perform other substantial gainful activity. Varley v. Sec'y of Health Human Servs., 820 F.2d 777, 779 (6th Cir. 1987). See also Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980). "To meet this burden, there must be a finding supported by substantial evidence that plaintiff has the vocational qualifications to perform specific jobs." Varley, 820 F.2d at 779 (internal quotes and citations omitted).
Among the medical evidence in the administrative record was a psychological evaluation performed on April 1, 1997 by Margaret K. Cappone, Ph.D. Dr. Cappone concluded that the plaintiff was in contact with reality but his self-esteem was "somewhat shaky." Tr. at 268. She also observed "severe tremors in both his hands" and he could not sign his name, he was angry at being disabled at his age, and he did not appear to be exaggerating his symptoms. Ibid. Dr. Cappone remarked that the plaintiff's wife believed that his remote memory was "good," but Dr. Cappone "did not find this to be the case. Many times this gentleman does not remember his past and needs cues in order to remind him." Ibid. He had trouble sleeping, his patience was limited, and he easily got angry. She found the plaintiff to be paranoid and diagnosed an adjustment disorder. He was still suffering from the effects of his stroke.
A report by Dr. Levin, the neurologist, dated February 24, 1999 stated that the plaintiff was "doing fairly well" in the wake of his stroke. Tr. at 288. His right arm weakness was minimal and there was no weakness noted in his leg. He continued to have pain in his neck and leg due to cervical and lumbar radiculopathy, but Dr. Levin characterized his condition as "stable." Ibid.
The plaintiff did not seek or obtain mental health treatment and there was no assessment of his condition since Dr. Cappone's report. Apparently this lack of information prompted the ALJ to wonder aloud at the conclusion of the administrative hearing whether more information was required to address this issue. The plaintiff construed these statements as an acknowledgment that the record was insufficient. The ALJ engaged in the following colloquy:
ALJ: Now, I'm just wondering, counsel, if, since that psychological report was dated April 1, 1997, if we should have an update.
ATTY:I would tend to go along with that. I certainly wouldn't object. I asked him about treatment, as you heard in my examination, and he's not treating with anyone. Yet the wife and himself, they both confirmed for me that he just can't remember one thing from one day to the next.
ALJ: I don't think we have a neuropsychologist under contract, but we can check. The next best thing would be to send him back to Dr. Cappone.
ATTY: To have an update, I would have no problem with that.
ALJ: Okay. Let's do that. Sir, we'll go ahead and order another evaluation for you, from a psychologist. And I'll, I'd like to see that report before making a decision.
Tr. at 319-20.
The plaintiff cites 20 C.F.R. § 404.1519a(b) for the proposition that the ALJ's failure to obtain an updated psychological report was error. However, the ALJ's ruminations do not constitute an admission that the record was deficient. Moreover, as the defendant points out, "the regulations do not require an ALJ to refer a claimant to a consultative specialist, but simply grant his the authority to do so if the existing medical sources do not contain sufficient evidence to make a determination." Moon v. Sullivan, 923 F.2d 1176, 1183 (6th Cir. 1990). On the other hand, the ALJ never even mentioned the suggested follow-up examination in his decision or offered a reason for abandoning the idea. He merely commented that although Dr. Cappone found stroke-related memory deficits, the plaintiff was able to answer all of the questions at the hearing.
The Court believes that the ALJ's first instinct was the correct one. The plaintiff described a continuing inability to remember things and this complaint was documented by the medical professionals. Dr. Andrew A. Swihart, a neuropsychologist who performed a neuropsychological assessment of the plaintiff shortly after his stroke, also documented the plaintiff's memory failures concerning an event in 1995 when he lost consciousness. Tr. at 161-62. Dr. Swihart determined that the plaintiff had a full-scale intelligence quotient of 77, which placed him in low-average range consistent with his functioning before the stroke. However, Dr. Swihart also diagnosed a mild closed-head injury, a learning disorder, "difficulties with visual search and exploration abilities, limited visuoperceptual disorders with more complex tasks, difficulties with visual attention and concentration, memory impairment affecting his ability to learn more complex material, visual memory defect, stigmata of learning disability (including arithmetic deficits and constructional dysfunction), and mild-moderate depression." Tr. at 165. Dr. Swihart recommended follow-up therapy and also stated that the plaintiff "should strongly consider not returning to work until further recovery of his visual attention and visuoperceptual skills is obtained." Ibid. There is evidence in the record of completion of occupational therapy and a return to rear normal of his right arm strength, but there is no evidence that the deficits addressed by Dr. Swihart were ever treated, and the plaintiff's fine motor coordination remained below the tenth percentile. Tr. at 218-19.
As noted above, the only evidence in the administrative record and identified by the ALJ that remotely contradicts the medical evidence of the plaintiff's memory loss is the ALJ's own observation of the plaintiff at the hearing. The ALJ's reliance on his personal observation in this case is analogous to the so-called "sit and squirm" test, a procedure that has been thoroughly discredited and that cannot serve as a basis for the rejection of a claimant's allegations of disability. See King v. Heckler, 742 F.2d 968, 975, n. 2 (6th Cir. 1984) ("[W]here all the medical evidence consistently supports the applicant's complaint of severe back pain, as here, the ALJ's observation of the applicant at the hearing will not provide the underpinning for denial of Social Security benefits."). See also Martin v. Sec'y of Health Human Servs., 735 F.2d 1008, 1010 (6th Cir. 1984); Weaver v. Sec'y of Health Human Servs., 722 F.2d 310, 312, (6th Cir. 1983). Moreover, other anecdotal evidence contradicts the ALJ's cursory observations. The plaintiff's mother-in-law, who lived with the plaintiff and his family and has known him for twenty years, commented that the plaintiff needed reminders to finish tasks like paying bills, and that he often became frustrated and when "under pressure loses temper[,] throws things[,] won't talk to anybody[, and] shuts himself in bedroom with door closed sometimes 2 or 3 hours." Tr. at 146.
The ALJ included in his residual functional capacity finding the limitation of performing only simple repetitive tasks, but it is not clear from the record that this accommodation fully accounts for the plaintiff's memory deficit and the attendant frustration described in the record. The record needs further development to address these points.
In addition, Dr. O'Connor completed medical evaluation forms stating that the plaintiff could not perform even sedentary work and was disabled. The reasons stated for this conclusion were diminished memory and judgment as a result of the stroke and Crohn's disease. The forms likely were submitted as part of the application process for the plaintiff's disability pension from General Motors. One was completed on August 13, 1996, tr. at 265, one on October 7, 1996, tr. at 263, and one on October 8, 1996, tr. at 261-62. Dr. O'Connor treated the plaintiff from January 1996 and the administrative record included several office notes through July 1997.
The Rule promulgated by the Secretary states that: "more weight [will be given] to opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or reports of individual examinations, such as consultative examinations or brief hospitalizations." 20 C.F.R. § 404.1527(d)(2). The Sixth Circuit has consistently applied this rule. A treating physician's opinion should be given greater weight than those opinions of consultative physicians who are hired for the purpose of litigation and who examine the claimant only once. See Jones v. Sec.'y of Health Human Servs., 945 F.2d 1365, 1370 n. 7 (6th Cir. 1991); Farris v. Sec'y of Health Human Servs., 773 F.2d 85, 90 (6th Cir. 1985). If a treating physician's opinion is not contradicted, complete deference must be given to it. Walker v. Sec'y of Health Human Servs., 980 F.2d 1066, 1070 (6th Cir. 1992); King v. Heckler, 742 F.2d 968, 973 (6th Cir. 1984). However, a treating physician's opinion may be rejected if there is good reason to do so. Hall v. Bowen, 837 F.2d 272, 276 (6th Cir. 1988). The Sixth Circuit has held that treating physicians' opinions "are only given such deference when supported by objective clinical evidence." Warner v. Comm'r of Soc. Sec., 375 F.3d 378, 390 (6th Cir. 2004) (citing Jones v. Comm'r of Soc. Sec., 336 F. 3d 469, 477 (6th Cir. 2003). Where a treating physician renders an opinion using legal language as opposed to medical terminology, the Court may likewise reject it if it is not supported by clinical evidence in the record. See Casey v. Sec'y of Health Human Servs., 987 F.2d 1230, 1234-35 (6th Cir. 1993).
The ALJ merely mentioned Dr. O'Connor's opinions regarding disability, see tr. at 18, but did not discuss them thereafter. The defendant argues that the ALJ "implicitly" rejected Dr. O'Connor's opinions and offers several reasons that might justify such action. One such reason is that the opinions contradict the descriptions of the plaintiff's daily activity, which the defendant characterized as including "walking to the mailbox, burning papers, putting together model cars, attending ball games and other sporting events with his son, fishing, visiting relatives, bowling, mowing the yard with a riding mower, reading, fixing things, grooming, playing cards, talking to neighbors, paying bills, feeding chickens and gathering eggs." Def.'s Br. at 3. A review of the administrative record, however, reveals that this portrayal of a bucolic and peaceful life is inordinately overstated. Most of the information comes from a daily activities report by the plaintiff's mother-in-law. In that report, she states that the plaintiff formerly bowled, played basketball, and did things with his children, but that he no longer could do these things. Tr. at 146. Fishing activities with his son actually consisted of "just go[ing to] sit down on the riverbank." Tr. at 267-68. The actual record also states that the plaintiff "mows lawn with a rider lawn mower once in a while but it takes him a week as he can only tolerate it about 10 minutes at a time." Tr. at 144. The activity report also states that "he doesn't drive . . . he doesn't cook . . . he doesn't clean . . . [he] tries [to fix things] but gets discouraged because his right hand gives him trouble." Ibid. The report concludes with the observation that the plaintiff "tires easily, has lots of pain and headaches, has slowed down. [He] tries to go for walk but can only go a short way." Tr. at 147.
The failure to comply with 20 C.F.R. § 404.1527(d)(2) does not necessarily require a remand. See Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 535-36 (6th Cir. 2001). However, given the state of the record, it is not clear why the ALJ did not give Dr. O'Connor's opinions more weight, since the doctor's observations concerning the plaintiff's memory and judgment deficits were supported by the examinations of Drs. Cappone and Swihart, which also were consistent with the testimony and reports of daily activities. A reviewing court "should not be left to guess as to the . . . reasons for granting or denying relief." Ivy v. Sec'y of Health Human Servs., 976 F.2d 288, 289 (6th Cir. 1992) (internal quotes and additions omitted). Since the matter must remanded, the Commissioner should explain his treatment of Dr. O'Connor's opinions and fully comply with 20 C.F.R. § 404.1527(d)(2).
Finally, the plaintiff testified at the administrative hearing that he needed to take naps during the day for up to two hours. The vocational expert witness testified that if the plaintiff were encumbered by that limitation, there was no work available in the regional economy that he could perform. The ALJ rejected the plaintiff's testimony as not fully credible, although he did not discuss the plaintiff's need to sleep during the day. However, Dr. Cappone noted that "[i]t takes [the plaintiff] up to three hours to fall asleep and then he will only sleep for three to four hours." Tr. at 269. Dr. Levin reported on an abnormal sleep study and diagnosed pathological snoring causing nineteen spontaneous arousals over 274 minutes of sleep. Tr. at 232. This evidence supports a claim of daytime drowsiness and explains the plaintiff's testimony that he needs to take naps during the day. The ALJ did not explain his rationale for rejecting the plaintiff's testimony and the corresponding response from the vocational expert that would have compelled a finding of disability.
For these reasons, and after a de novo review of the entire record and the materials submitted by the parties, the Court finds that the magistrate judge erred in concluding that substantial evidence supports the ALJ's decision. The plaintiff's objections to the recommendation and report, therefore, will be sustained.
That leaves the question whether further fact-finding is required, for "[i]f a court determines that substantial evidence does not support the Secretary's decision, the court can reverse the decision and immediately award benefits 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). In Faucher, the district court found that the Commissioner's decision was not supported by substantial evidence because the hypothetical question posed by the ALJ to a vocational expert did not incorporate all of the claimant's impairments. The district court also concluded that it was unable to remand for taking new and additional evidence because of the limitation contained in sentence six of 42 U.S.C. § 405(g), which conditions a remand on a showing of good cause. Rather, the district court remanded for an award of benefits. On appeal, the Court of Appeals agreed that sentence six of Section 405(g) requires the Secretary to establish good cause as a prerequisite to a remand. However, a post-judgment remand for further proceedings is authorized under sentence four of Section 405(g). See Melkonyan v. Sullivan, 501 U.S. 89, 97-98 (1991).
The Court of Appeals in Faucher agreed that the Commissioner's decision was not supported by substantial evidence, but concluded that a remand for benefits was inappropriate in that case. The court reasoned that the record was incomplete because the correct hypothetical question was never posed to the vocational expert. The witness was never given an opportunity to respond to a question that incorporated not only plaintiff's physical impairments but also the severity of his emotional impairments, and the record contained conflicting evidence on the severity of plaintiff's emotional impairments. The court observed that the district court had acknowledged that "it was not known whether plaintiff might be capable of performing a significant number of jobs in the national economy that would accommodate his combined limitations." Faucher, 17 F.3d at 176. The court concluded, therefore, that "the case must be remanded to the ALJ for further consideration of this issue." Ibid.
Such is the case here. There is a need for an updated psychological evaluation, and there is a need to explain the rejection of the treating physician's opinion and the evaluation of the plaintiff's credibility in light of the evidence on the whole record.
Accordingly, it is ORDERED that the magistrate judge's report and recommendation [dkt # 14] is REJECTED.
It is further ORDERED that the plaintiff's motion for summary judgment [dkt # 11] is GRANTED IN PART AND DENIED IN PART.
It is further ORDERED that the defendant's motion for summary judgment [dkt # 13] is DENIED.
It is further ORDERED that the findings of the Commissioner are REVERSED, and the case is REMANDED to the Commission for further proceedings.