Opinion
Case No. 3:16-cv-00086
03-21-2017
BRIAN EDWARDS, Plaintiff, v. NANCY A. BERRYHILL, Commissioner of the Social Security Administration, Defendant.
(By full consent of the parties)
DECISION AND ENTRY
I. Introduction
Plaintiff Brian Edwards fell off a ladder in 2011. He fell about eleven feet, landed on the ground, and sustained painful back injuries. He eventually underwent two back surgeries, one of which involved fusion of vertebrae in his cervical spine. His back injuries and other health problems ended his ability to work at jobs he had once performed, such as tree trimmer, pizza-delivery driver, pizza-restaurant manager, and auto-parts clerk.
In 2013, he applied for Disability Insurance Benefits and Supplemental Security Income. An Administrative Law Judge (ALJ), George D. McHugh, denied his applications based on the central conclusion that Plaintiff was not under a "disability" (as defined by the Social Security Act).
Plaintiff brings the present case challenging ALJ McHugh's evaluation of his (Plaintiff's) treating physician's opinions. Plaintiff further contends that ALJ McHugh's hypothetical inquiry to the vocational expert was inaccurate, and ALJ McHugh improperly evaluated Plaintiff's credibility. Plaintiff seeks a judicial award of benefits or, at the very least, a remand for further administrative consideration. The Commissioner seeks an Order affirming the ALJ's decision.
II. Background
Under social security law, Plaintiff was a "younger person" on his asserted disability onset date—August 4, 2012. He has high-school education. Immediately after high school, he joined the United States Marines and entered basic training at Parris Island. He testified in a hearing before ALJ McHugh that he loved the workouts, but he injured his knee and did not complete basic training. (Doc. #6, PageID #s 112-13). His military discharge certificate contains a narrative reason for separation: "Fraudulent entry into the Marine Corps ...." Id. at 301. This one-page form does not explain the facts or circumstances Plaintiff's "fraudulent entry." After his military discharge, he worked and attended college for two years.
Plaintiff also told ALJ McHugh about his fall off the ladder (in 2011): "[W]hen I put my foot on the roof, the ladder slid out from under me, and I went to catch—I slid down and I tried to catch on the roof and I fell on my lap—my back, literally, the lower back landed on the ladder and my head hit the driveway." Id. at 116. He sustained a concussion, id. at 117, and went to the emergency room for testing and treatment.
Plaintiff testified that his back pain involved "aching all day." Id. Some days were worse than others. On worse days, he experienced sharp pain through his neck, left shoulder, and down the left side of his left arm. Id. at 117, 124. He also felt a burning sensation in the back of his neck and always felt numbness in his left hand. Id. at 124. He also had pain in his lower back. And, he noted that there were "a lot of issues down there besides the discs that bulged and ruptured." Id. at 118. Once in a while, he has additional pain in his left leg where his sciatic nerve descends. He has a stimulator that helped the nerve "quite a bit." Id. at 119. "It's made it comfortable basically," he said. Id. But, sitting for 20 to 30 minutes or longer aggravated his back pain. It was a little easier for him to sit in a recliner because he could lean back and stretch his body.
Plaintiff estimated that on average days, his pain level was between 7 and 8 on a 10-point scale (1 being very little pain; 10 being severe enough to warrant an ER visit). On "real bad days ...," his pain level was 8 or 9. Id. His low-to-mid back pain was about 6 or 7, "seven normally." Id. at 120-21. Bending down aggravated his back pain. He could walk about ½ block. When he was alone at the grocery store, he leaned on the cart for support and did not shop for long. He did not fill the cart; he would only get a couple of items. When he needed a full cart of items, he got help from his fiancé.
Plaintiff took Vicodin for pain and Neurontin for his sciatic nerve. Id. at 125-26. He estimated the level of his neck pain at 7 or 8. When his neck pain was at its worst, it increased to level 9. Id. at 125. To try to ease his neck pain, a couple times a week he would lie back and put ice on it.
In addition to his back surgeries, Plaintiff had knee surgery 5 times, including a partial-left-knee replacement. Id. at 135. He also had 2 surgeries on his left shoulder. He explained that he has tendonitis in his shoulders and so "it's sore." Id. at 136.
Plaintiff testified that he had been depressed for a long time, but he never really worried about it until it worsened after his fall and injuries. Id. at 128. He experienced crying spells a couple of times a week. He had mood swings: For example, if he was in a lot of pain, he would get angry quicker than usual. This happened about once or twice a week. Id. at 129. He also had trouble sleeping (tosses and turns a lot) and slept about 4 hours a night or 5 hours, if he was lucky. Id. at 130. He had difficulty concentrating. He didn't like being in big crowds. He also had memory problems, both short and long term. Id. at 138-39. He takes Ativan when his anxiety got too high. He took Buspar for depression. Id. at 131, 134.
Plaintiff did not belong to any clubs or organizations. He went out to dinner but had difficulty if the restaurant was too crowded. He therefore tried to stay home most of the time ("pretty much anymore"). Id. at 131. During a typical day, he woke up at 5:45 a.m. and helped get the girls ready for school. He let the dog outside, then either sat or got cereal for his girls to eat before school. After they left for school, he sat and watched the news or other things on TV, then he stood and tried to do something, like "pick up whatever mess [he] can." Id. at 139-40. He explained, "I do cook." Id. at 140. He tried to put some dishes away but bending down repetitively to empty the dishwasher made his back sore. He did laundry "here and there" but not large loads. Id. at 140-41. He did mow his lawn using a riding mower but he would only mow for fifteen or twenty minutes before taking a break. He would rest for an hour then mow some more. Id. at 141. The summer before the ALJ's hearing, Plaintiff usually had his friends help him mow. He further explained that they "actually mow it for me." Id.
Plaintiff's medical records contain objective-test results plus information about the multiple surgeries he has needed over the years, including (but not limited to):
• right-knee arthroscopy: June 2009Id. at 973-74, 978-79; see also id. at 510-11, 572, 823-28, 933-34. Plaintiff also underwent low-back surgery—an anterior lumbar interbody fusion, L5-S1—in September 2012. Id. at 573-74. Dr. Townsend Smith administered a series of steroid injections into Plaintiff's cervical spine in March and April 2014. Id. at 787-800.
• left-shoulder rotator-cuff repair: 2009
• left-shoulder arthroscopy ("banker/labral repair..."): December 2011
• anterior cervical discectomy and fusion ("with plating 1 level"): February 2013
• anterior lumbar discectomy and fusion ("with plating 2 level"): June 2014
• spinal cord stimulator (trial): July 2014
• spinal cord stimulator (permanent): September 2014
• left-knee arthroscopy meniscal repair: October 2014
Plaintiff's treating physician Dr. Kohnen reported in September 2013 that she had first seen Plaintiff on May 28, 2004. She described his symptoms to include chronic neck pain, back pain, "disability after falling off a roof in 9/11," and depression with anxiety. Id. at 384. She noted that his pain medications were "contributing to apathy but improving his functional status." Id. at 385. She observed that Plaintiff's "depression with anxiety was currently flared. He has poor concentration, attention, and coping. His prognosis is good and disability from this psychological condition should not last more than one year...." Id.
About one year later, in September 2014, Dr. Kohnen opined that Plaintiff had been disabled for at least 1 year and that it was unclear how long his limitations would last in the future. Id. at 921. She believed that Plaintiff could lift/carry no more than 5 pounds occasionally and that he could sit, stand, and/or walk for less than 1 hour at a time, or for a total of less than 2 hours each in an 8-hour workday. Id. at 914-15. She further opined that Plaintiff could only occasionally balance and could never perform climbing, stooping, crouching, kneeling, or crawling. Id. at 915. He was limited in his ability to reach, push, and pull, and he needed to avoid exposure to heights, moving machinery, temperature extremes, and vibration. Id. at 916. Plaintiff had a "hard time in crowds due to anxiety," according to Dr. Kohnen. Id. at 917. She found that his pain and depression prevented him from performing many mental work-related activities on a sustained basis. He could not be prompt and regular in attendance; meet normal standards of work productivity; demonstrate reliability; complete a normal workday and workweek without interruptions from psychologically based symptoms; and perform at a consistent pace without unreasonable number and length of rest periods. Id. at 912-13.
Dr. Kohnen concluded that Plaintiff was unable to perform sedentary work—"not as of today"—and could not perform light work. Id. at 917.
Psychologist Dr. George O. Schulz examined Plaintiff in September 2013 at the request of the state agency. He diagnosed Plaintiff with depressive disorder NOS and anxiety disorder NOS ("not otherwise specified" in the then-current edition of the Diagnostic and Statistical Manual of Mental Disorders). Dr. Schulz found Plaintiff was cooperative and "did not purposefully under exaggerate or over exaggerate his report of symptoms." Id. at 378. He concluded that Plaintiff "is expected to be able to understand and apply instructions in the work setting with average intellectual functioning"; he "is mentally capable of completing routine or repetitive ADL [activities of daily living] both an home ... or in the job setting...."; he "is able to respond appropriately to coworkers and supervisors in a work setting"; and he is "expected to mentally respond appropriately to work pressure." Id. at 369-70.
III. ALJ McHugh's Decision
Plaintiff's eligibility to receive Disability Insurance Benefit and Supplemental Security hinged on whether he was under a "disability" as defined under social security law. See 42 U.S.C. §§ 423(d)(1)(A)-(d)(2)(A), 1381a; see also Bowen v. City of New York, 476 U.S. 467, 470 (1986). To determine if he was under such a disability, ALJ McHugh evaluated the evidence under the Social Security Administration's 5-step evaluation procedure. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). Moving through step 1, he found at steps 2 and 3 that Plaintiff's impairments—including his severe impairments of "degenerative disc disease of the lumbar and cervical spines with residuals of surgery; degenerative joint disease of the left shoulder with residuals of surgery arthritis in the left knee; depression; and anxiety"—did not automatically compel the conclusion that he was disabled. (Doc. #6, PageID #s 77-80). At step 4, ALJ McHugh found that the most Plaintiff could do despite his impairments (his "residual functional capacity," see Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 239 (6th Cir. 2002)) was light work subject to many limitations:
The remaining citations to the Regulations will identify Disability Insurance Benefits Regulations with full knowledge of the corresponding Supplement Security Income Regulations.
1. lifting and carrying up to 20 pounds occasionally and 10 pounds frequently;Id. at 80 (italics in original). With these limitations in mind, the ALJ found that Plaintiff could not perform his past relevant work. Id. at 90.
2. walking or standing with normal breaks up to 6 hours;
3. sitting up to 6 hours;
4. no climbing ropes, scaffolds or ladders;
5. occasional climbing of ramps and stairs;
6. occasional stooping, kneeling, crouching and crawling;
7. occasional reaching overhead with the non-dominant left arm only and frequent reaching in other directions (no reaching limitations with right arm);
8. no work around hazards such as unprotected heights and dangerous machinery;
9. occasional interaction with supervisors, coworkers and the public;
10. limited to performing simple, routine, repetitive tasks, but not at a strict production rate or strict production quotas;
11. can sit for 45 minutes at a time and then must stand briefly, for up to 2 minutes, before returning to the seated position.
The ALJ's findings at step 4, including Plaintiff's younger age, his high-school education (at least), and his work experience, led the ALJ to conclude (step 5) that Plaintiff could do a significant number of jobs in the national economy. Id. at 90-91. Examples of these doable jobs included, according to the ALJ, assembly machine tender and injection molding machine tender. All the ALJ's sequential findings led to his ultimate conclusions that, as indicated above, Plaintiff was not under a disability and not eligible for benefits. Id. at 92.
IV. Analysis
Judicial review of ALJ McHugh's decision is limited to determining whether he applied the correct legal standards and whether substantial evidence supports the ALJ's findings. Blakley v. Comm'r of Soc. Sec, 581 F.3d 399, 405 (6th Cir. 2009). "The substantial-evidence standard is met if a reasonable mind might accept the relevant evidence as adequate to support a conclusion." Id. at 406 (internal quotation marks omitted). Where a record contains substantial evidence in support of an ALJ's findings, those findings are accepted "even if there is substantial evidence in the record that would have supported an opposite conclusion." Id. (citations omitted).
"Yet, even if supported by substantial evidence, 'a decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right.'" Rabbers v. Comm'r Social Sec. Admin., 582 F.3d 647, 651 (6th Cir. 2009) (quoting, in part, Bowen v. Comm'r of Soc. Sec, 478 F.3d 742, 746 (6th Cir.2007)). Indeed, "[a]n ALJ's failure to follow agency rules and regulations 'denotes a lack of substantial evidence, even where the conclusion of the ALJ may be justified based upon the record.'" Gentry v. Comm'r of Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014) (quoting, in part, Cole v. Comm'r of Soc. Sec, 661 F.3d 931, 937 (6th Cir. 2011) (other citation omitted)).
A. Medical Evidence
Plaintiff contends that the ALJ's decision is not supported by substantial evidence and was based on errors of law. He points out that the record contains no treating or examining medical source opinion that conflicts with or contradicts treating physician Dr. Kohnen's opinions. He challenges as insufficient the ALJ's reasons for not adopting Dr. Kohnen's opinions, and he maintains that the ALJ's consideration of her opinions failed to comply with applicable social security regulations.
The Commissioner argues that the ALJ reasonably placed little weight on Dr. Kohnen's opinions and provided good reasons for doing so. The Commissioner relies on reasons the ALJ provided: (1) Dr. Kohnen's disability opinion concerned an issue reserved to the Commissioner; (2) there was no indication that Dr. Kohnen was qualified to offer an opinion on Plaintiff's employability; (3) Dr. Kohnen's opinions may have been limited to Plaintiff's past work and to this extent, her opinions were not inconsistent with the ALJ's finding that he could not do his past relevant work; (4) Dr. Kohnen's 2013 opinions were inconsistent with the medical record, including her own treatment notes; and (5) Dr. Kohnen's September 2014 opinions were not supported by medical evidence around that time. The Commissioner further contends that the ALJ properly relied on the opinions of psychologist Dr. Schulz.
The ALJ decided to place no controlling or deferential weight on Dr. Kohnen's opinions. Instead, he gave them "little weight." (Doc. #6, PageID #88). The Commissioner has accurately recalled the ALJ's reasoning (set forth in the previous paragraph).
Social Security regulations require ALJs to give the opinion provided by a treating physician controlling weight if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant's] case record." 20 C.F.R. § 404.1527(c)(2); see also Gayheart v. Comm'r of Soc. Sec., 710 F.3d 365, 375 (6th Cir. 2013). "Even if [a] treating physician's opinion is not given controlling weight, there remains a presumption, albeit a rebuttable one, that the opinion...is entitled to great deference." Hensley v. Astrue, 573 F.3d 263, 266 (6th Cir. 2009) (internal quotations and citations omitted). This rebuttable presumption requires ALJs to continue weighing treating source opinions under certain factors: the length of the treatment relationship, frequency of examination, specialization of the treating source, supportability of the opinion, and consistency of the opinion with the record as a whole. 20 C.F.R. §§ 404.927(c)(1)-(6); see Bowen, 478 F.3d at 747.
The Regulations also require ALJs to provide "good reasons" for the weight placed upon a treating source's opinions by stating "specific reasons for the weight placed on a treating source's medical opinions ...." Wilson v. Comm'r of Soc. Sec, 378 F.3d 541, 544 (6th Cir. 2004) (quoting Soc. Sec. R. 96-2p, 1996 WL 374188 at *5 (1996)). The ALJ's reasons must be "supported by the evidence in the case record ...." Id. The goals are to assist the claimant in understanding the disposition of his or her case and to make clear to any subsequent reviewer the weight given and the reasons for that weight. Id.
The ALJ set forth the correct legal criteria applicable to treating medical sources' opinions. See Doc. #6, PageID #88. Yet, the ALJ's evaluation is flawed in many respects.
The fact that Dr. Kohnen expressed a disability is not a valid reason by itself for wholly rejecting it, even though was not binding on the ALJ. See 20 C.F.R. § 404.1527(d). "The pertinent regulation says that 'a statement by a medical source that you are 'disabled' or 'unable to work' does not mean that we will determine that you are disabled.' That's not the same thing as saying that such a statement is improper and therefore to be ignored ...." Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012) (internal citation omitted); see also Krauser v. Astrue, 638 F.3d 1324, 1332 (10th Cir. 2011) ("If doctors could only give opinions on matters that could not affect RFC, medical opinions would be inherently useless in disability determinations.").
Next, the ALJ reasoned, "there is no indication that Dr. Kohnen is qualified to offer an opinion on the claimant's employability." (Doc. #6, PageID #89). This reason is a nullity because the ALJ does not cite to evidence supporting it. Physicians, moreover, frequently respond to requests from patients and their employers about their patients' ability to return to work (for example, work or school excuses; FMLA opinions) and their ability to work at all (ADA or Rehabilitation Act opinions). Perhaps the ALJ was recognizing that Dr. Kohnen was not trained to offer a "disability" or "employability" opinion as these terms are used in social security law. If so, he should have said so, but he didn't. And, even if he had said Dr. Kohnen lacked such training, there appears to be no evidence of this—one way or the other—in the record, leaving the ALJ's reason speculative as opposed to evidence-based. The ALJ similarly speculated that Dr. Kohnen's opinion "may have been limited to claimant's past work which is not inconsistent with this decision." Id. Neither Dr. Kohnen's opinions nor other record evidence support this. See id. at 384-85, 911-18.
Further, the ALJ discounted Dr. Kohnen's opinion on the ground she was an "internist" rather than an orthopedist or other specialist. (Doc. #6, PageID #88). Dr. Kohnen's opinion should have been evaluated in terms of more than just specialization. It should also have been evaluated in terms of the § 404.1527(c) factors that weigh in favor of crediting Dr. Kohnen. She treated Edwards on multiple occasions dating back to May 28, 2004, more than eight years before his alleged disability onset date. The ALJ observed comment that Plaintiff only saw Dr. Kohnen on an intermittent basis after his asserted disability onset date. This is not a reasonable basis for discounting her opinions without further consideration of Dr. Kohnen's treatment relationship with Plaintiff, especially the many years of treatment she provided (starting in 2004 and continuing thereafter) and her treatment of him during his recoveries from the many surgeries he had before and after his from the ladder in 2011. 20 C.F.R. §§ 404.1527(c)(2)(i)-(ii). Also, Dr. Kohnen supported her opinion with clinical signs, symptoms, and objective findings. See Doc. #6, PageID #s 911-18. And, Dr. Kohnen's opinions are largely consistent with the record as a whole, including multiple surgeries, significant post-surgical findings, physical therapy, pain injections, strong pain medications, emergency room visits, and stimulator devices. The ALJ erred by cherry-picking isolated bits of evidence to reject Dr. Kohnen's opinions and to improperly minimize or ignore evidence consistent with her findings. This occurred when the ALJ found that in September 2013, Dr. Kohnen reported "a relatively normal physical examination, other than some paraspinal neck spasms and tenderness, and she documented no significant mental status abnormalities." Id. at 88 (citing PageID #394). The records from this office visit don't reasonably support the ALJ's "relatively normal physical exam" finding in part because the physical exam she performed was limited and did not involve his lower back, where he reported "Constant ... pain despite fusion in May [2013]." Id. at 393-94. In addition, Dr. Kohnen completed a Medical History Summary at this time identifying his active diagnoses to include degenerative disc disease (lumbar), cervical spondylosis, herniated nuclear pulposus (lumbar), depression with anxiety. Id. at 386. The ALJ should have also considered the fact that in relation to Plaintiff's herniated nuclear pulposus (lumbar), Dr. Kohnen reviewed and MRI and also "reviewed the most recent consult letter and agree with the updated plan of care." Id. at 392. It was not reasonable for the ALJ to limit his assessment of Dr. Kohnen's opinions to "relatively normal physical exam," when objective medical tests not only documented his herniated lumbar disc(s) but also informed Dr. Kohnen's treatment decisions. See id. (Dr. Kohnen wrote, "I reviewed the most recent consult letter and agree with and updated the plan of care[.] MRI reviewed"). The ALJ, moreover, should have considered the multiple medications Plaintiff was taking, as Dr. Kohnen documented, to treat his pain and mental-health difficulties: Hydrocodone-Acetaminophen, Oxycodone, Lorazapem, Citalopram, and Toradol. Id. at 386, 391-93.
The ALJ also described Plaintiff's neck surgery in June 2014, finding it "relatively successful, as he was discharged from physical therapy from soon after." Id. at 89 (citing PageID #s 831-32). Again, this was not a reasonable finding because his treatment notes tell a far different story. The medical evidence the ALJ relied on—two pages from Plaintiff's physical therapy—indicate that he remained very limited upon his discharge. Although the notes state that Plaintiff was "independent with functional mobility," his instructions on discharge "[s]tressed the importance of brace compliance and risks of non- compliance. Education re: bed mobility, transfers, and spine precautions—including: 1) limiting pushing/pulling activities with arms 2) avoiding rotation, bending, and reaching overhead 3) restricting lifting to < [less than] 2-3 lbs. 4) postural control and body mechanics in sitting and standing to maximize spine alignment...." Id. at 832. These limitations were consistent, rather than, contrary to Dr. Kohnen's opinions.
The ALJ also viewed a physical exam Plaintiff underwent in February as "essentially normal." Id. at 89 (citing PageID# 1016-24). Examination notes by Dr. Grisoni (orthopedist) in February 2015, state that Plaintiff experienced "pain upon range of motion of the cervical spine. Positive Tinel sign in the left wrist." Id. at 1019. These notes must be reads in context, rather than in isolation, as the ALJ did. The context shows that Plaintiff was indeed having serious cervical spine problems including "question of pseudoarthritis and disk bulge at the C6-7 level more towards the right.... There is bilateral foraminal narrowing, severe, at the C-4-5 level." Id. The physician's recommendations indicate that he was in the process of further investigating "for surgical planning for the patient's posterior cervical fusion. He [Plaintiff] would like to proceed with posterior cervical fusion ...." Id. In light of these circumstances, the ALJ unreasonably read the notes from Plaintiff's physical exam in February 2015 as portraying "essentially normal findings." Additionally, Dr. Kohnen's notes from this time indicate February 2015 reveal that Plaintiff visited her for "Hematuria," meaning red blood cells in his urine. Id. It is not surprising that Dr. Kohnen did not report extensive findings from her examination of Plaintiff's neck. She did, however, note that Plaintiff had reduced range of motion in neck and "right paracervical spasm, finding conflicting with the ALJ's conclusion that Plaintiff had essentially normal findings.
The Commissioner contends that medical evidence from the emergency room around the time of Dr. Kohnen's September 2014 opinions indicate mostly normal findings and that Plaintiff was "pulling a mower out of the shed ...." (Doc #10, PageID #1117 (citing PageID at #s 89, 629-30, 636). Yet, review of all these emergency-room records shows that concerned a single emergency-room visit four to five months before Dr. Kohnen's September 2014 opinions. A CT cervical spine scan showed "degenerative disc space narrowing at C4-C5 ..." and "mild to moderate canal stenosis related to a left paracentral disc osteophyte complex identified at C4-C5...." (Doc, #6, PageID # 639). These objective test results and his emergency-room notes must be read in conjunction with the fact that he underwent neck surgery just two months later. Certainly, this surgery would not have occurred if Plaintiff's cervical spine was normal or if his surgeon viewed his test results as producing essentially normal findings. The Commissioner, moreover, overemphasizes the significance of the fact that Plaintiff's visit to the emergency room was precipitated by his attempt to "pull[] a mower out of the shed ...." Id. at 636. This, to the Commissioner, means that Plaintiff "was able to walk to a shed, lift a heavy lawn mower, and then mow his lawn ..." (Doc. #10, PageID # 1117). The Commissioner argues that this "is inconsistent with Dr. Kohnen's 2013 letter and the 2014 interrogatories." Id. Yet, even accepting the Commissioner inferences that Plaintiff engaged in such activities, the result shows that he was not actually able to do these activities. After all, he ended up in such serious pain that he thought he "may have ruptured my disc," and he needed EMTs to transport him to the hospital. Id. at 636. Such evidence is reasonably supportive of the physical limitations Dr. Kohnen believed Plaintiff had than the greater abilities the Commissioner finds. One final point about the emergency-room notes: Other information they contain does not conflict with Dr. Kohnen's opinions. A physician diagnosed Plaintiff with degenerative disc disease in his cervical spine, provided him with a neck collar, and prescribed Diluadid for pain, steps he would not have taken if he thought exam results and testing were essentially normal. (Doc, #6, PageID # 634).
In comparison to the little weight ALJ McHugh placed on Dr. Kohnen's opinions, she he gave "some weight" to opinions provided by record-reviewing physicians Dr. James Cacchillo and Dr. Diane Manos, both of whom concluded that Plaintiff could perform a limited range of light work. Id. at 86. The ALJ found their opinions "generally supported by objective signs and findings in the preponderance of the record...." Id. Yet, the ALJ applied greater scrutiny to Dr. Kohnen's opinions than to the opinions of these record-reviewing physicians. This constituted error. "A more rigorous scrutiny of the treating-source opinion than the nontreating and nonexamining opinions is precisely the inverse of the analysis that the regulation requires." Gayheart, 710 F.3d at 379 (citing 20 C.F.R. § 404.1527(c); see Soc. Sec. R. 96-6p, 1996 WL 374180, at *2 (July 2, 1996). This misstep is compounded by the fact that neither Dr. Cacchillo nor Dr. Manos reviewed a record that contained Dr. Kohnen's September 2014 opinions or any of the significant evidence concerning Plaintiff's anterior lumbar discectomy and fusion ("with plating 2 level") in June 2014, his trial of a spinal-cord stimulator, the permanent implant of the stimulator in September 2014, and his left-knee arthroscopy meniscal repair. Although opinions provided by state agency record-reviewers may sometimes be entitled to greater weight than a treating source's opinions, the ALJ's failure to recognize that Drs. Cacchillo and Manos did not review a complete record. See Soc. Sec. R. 96-6p, 1996 WL 374180, *3 (providing one example: a state-agency physician's opinion may be entitled to more weight than a treating physician's opinion if the state-agency physician's "opinion is based on a review of a complete case record that includes a medical report from a specialist in the individual's particular impairment which provides more detailed and comprehensive information than what was available to the individual's treating source.").
Accordingly, Plaintiff's challenges to the ALJ's assessment of the medical source opinions lack merit.
B. Hypothetical Questions
Plaintiff contends that the ALJ's hypothetical questions to the vocational expert failed to adequately account for Plaintiff's moderate limitation in concentration, persistence or pace. The Commissioner contends that the ALJ reasonably accounted for these limitations by including within his hypothetical the limitation to "simple, routine, repetitive tasks, but no strict production rate or strict production quotas," and only occasional social interaction.
"In order for a vocational expert's testimony to constitute substantial evidence that a significant number of jobs exists in the economy, the question[s] must accurately portray a claimant's physical and mental impairments." Ealy v. Comm'r of Soc. Sec., 594 F.3d 504, 516 (6th Cir. 2010). "[T]he ALJ is only required to incorporate into the hypothetical questions those limitations that have [properly] been accepted as credible," McIlroy v. Comm'r of Soc. Sec., 42 F. App'x 738, 739 (6th Cir. 2002), and "is not obligated to include unsubstantiated complaints and restrictions in his hypothetical questions," Brewer v. Social Sec. Admin., 39 F. Appx. 252, 254 (6th Cir. 2002).
The ALJ found at step 3 of his sequential analysis that Plaintiff had moderate impairment in his ability to maintain concentration, persistence or pace. (Doc. #6, PageID #s 79-80). Doing so, the ALJ gave some weight to Plaintiff's testimony "that he had difficulty with concentration and memory due to his mental impairments and side effects of medications." Id. at 79-80. The therefore ALJ incorporated into his assessment of Plaintiff's residual functional capacity his finding that Plaintiff was limited to "9) occasional interactions with supervisors, coworkers and the public; 10) limited to performing simple, routine, repetitive tasks but not at a strict production rate or strict production quotas ...." Id. at 80.
The ALJ omits the serial comma (Harvard comma) from this series even though its omission presents a possible ambiguity: Are there two limitations or three? See Garner's Modern American Usage , p. 676 (Third Ed. 2009) ("Whether to include the serial comma has sparked many arguments. But it's easily answered in favor of inclusion because omitting the final comma may cause ambiguity, whereas including it never will."); cf. O'Connor v. Oakhurst Dairy, ___F.3d ___, 2017 WL 957195, at *4-*6 (1st Cir. 2017) (discussing punctuation issues). Despite this, omission of the serial comma is adopted herein to be consistent with the ALJ's decision.
The ALJ's hypothetical questions to the vocational expert included limitations 9 and 10 of the residual functional capacity. Id. at 150-51. This, however, failed to accurately portray the ALJ's finding that Plaintiff's was moderately impaired in his ability to maintain concentration, persistence or pace. See Edwards v. Barnhart, 383 F. Supp.2d 920, 933 (E.D. Mich. 2005) (hypothetical limiting claimant to "jobs entailing nor more than simple, routine, unskilled work" not adequate to convey moderate limitation in ability to concentrate, persist, and keep pace.); see also Whack v. Astrue, No. 06-4917, 2008 WL 509210, *8 (E.D. PA 2008) (and cases cited therein).
The Commissioner contends that many courts have found limitations to simple, repetitive tasks encompass a moderate limitation in concentration, persistence or pace. The Commissioner relies on Lewicki v. Comm'r of Social Sec., 2010 WL 3905375, at *1 (E.D. Mich. 2010). Lewicki, however, does not mandate the conclusion that a hypothetical with limitations to simple, routine, unskilled work adequately accounts for a claimant's moderate limitation in "concentration, persistence, or pace." See Lewicki, 2010 WL 3905375, at *3. Instead, it allows for the possibility that "[t]here may be cases where such moderate limitations preclude the performance of even some simple, unskilled tasks." Id. The present case is more akin to Edwards than Lewicki. In Edwards, the plaintiff's moderate limitation in her ability to "concentrate, persist, and keep pace" was not adequately accounted for hypothetical that limited the worker to "simple, routine, and unskilled work." 383 F. Supp.2d at 933. The court in Edwards continued, "While close, these are not sufficient, and do not fully convey Plaintiff's limitations in concentration to the VE. Plaintiff may be unable to meet quotas, stay alert, or work at consistent pace, even at a simple, unskilled, routine job." Id. Similarly, in the present case, the ALJ's hypothetical asked about an individual limited to simple, routine, repetitive tasks. This was inadequate. See Edwards, 383 F. Supp.2d Although the ALJ further restricted the hypothetical to someone unable to meet "strict production rates or strict production quotas," this did not adequately account for the possibility that Plaintiff may not be able—given his moderate limitations—to reach any production quotas or rates (not just strict production rates or quotas) or stay alert even at a job involving simple, routine, and repetitive tasks.
The Commissioner also relies on Schooley v. Astrue, 2010 WL 5283293 (N.D. Ohio 2010). Schooley is distinguished from the present case because the hypothetical in Schooley included a limitation to "high production work and piece." Id. at 2. There is no similar limitation in ALJ McHugh's hypotheticals.
Accordingly, Plaintiff's challenges to the ALJ's hypothetical questions are well taken.
There remains the parties' disagreement over the ALJ's evaluation of Plaintiff's credibility. In light of the above problems in the ALJ's decision, there is no need to reach their credibility disagreement. It should be noted, however, that examining psychologist Dr. Schulz wrote, "[W]ithin reasonable psychological certainty [Plaintiff] presented a valid/reliable self report and psychosocial history and did not purposely under exaggerate or over exaggerate his report of symptoms. He did not show significant inconsistencies in self-report information across the interview." (Doc. #6, PageID #378). The ALJ failed to consider this when discussing Dr. Schulz's opinions or Plaintiff's credibility. Id. at 85-86, 89. --------
C. Remand Is Warranted
Remand is warranted when the ALJ's decision is unsupported by substantial evidence or when the ALJ failed to follow the Administration's own regulations and that shortcoming prejudiced the plaintiff on the merits or deprived the plaintiff of a substantial right. Bowen, 478 F.3d at 746. Remand for an ALJ's failure to follow the regulations might arise, for example, when the ALJ failed to provide "good reasons" for rejecting a treating medical source's opinions, see Wilson, 378 F.3d at 545-47; failed to consider certain evidence, such as a treating source's opinions, see Bowen, 478 F3d at 747-50; failed to consider the combined effect of the plaintiff's impairments, see Gentry, 741 F.3d at 725-26; or failed to provide specific reasons supported by substantial evidence for finding the plaintiff's credibility lacking, Rogers, 486 F.3d at 249.
Under sentence four of 42 U.S.C. §405(g), the Court has authority to affirm, modify, or reverse the Commissioner's decision "with or without remanding the cause for rehearing." Melkonyan v. Sullivan, 501 U.S. 89, 99 (1991). Consequently, a remand under sentence four may result in the need for further proceedings or an immediate award of benefits. E.g., Blakley, 581 F.3d at 410; Felisky v. Bowen, 35 F.3d 1027, 1041 (6th Cir. 1994). The latter is warranted "only where the evidence of disability is overwhelming or where the evidence of disability is strong while contrary evidence is lacking." Felisky v. Bowen, 35 F.3d 1027, 1041 (6th Cir. 1994) (quoting Faucher v. Sec'y of Health & Humans Servs., 17 F.3d 171, 176 (6th Cir. 1994)).
A remand for an award of benefits is unwarranted in the present case because the evidence of disability is not overwhelming and because the evidence of disability is not strong while contrary evidence is weak. See Faucher, 17 F.3d at 176. Yet Plaintiff is entitled to an Order remanding this matter to the Social Security Administration pursuant to sentence four of § 405(g) due to problems set forth above. On remand the ALJ shall review the evidence of record and determine anew whether Plaintiff was under a benefits-qualifying disability pursuant to the applicable 5-step sequential evaluation procedure. The ALJ's evaluation must, without limitation, re-assess Dr. Kohnen's opinions, Plaintiff's credibility, and his residual functional capacity, and must obtain additional testimony from a vocational expert to consider at step 5 of the sequential evaluation.
IT IS THEREFORE RECOMMENDED THAT:
1. The Commissioner's non-disability finding is vacated;
2. No finding is made as to whether Plaintiff Brian Edwards was under a "disability" within the meaning of the Social Security Act;
3. This case is remanded to the Commissioner and the Administrative Law Judge under sentence four of 42 U.S.C. §405(g) for further consideration consistent with this Report; and
4. The case is terminated on the docket of this Court.
March 21, 2017
s/Sharon L . Ovington
Sharon L. Ovington
United States Magistrate Judge