Opinion
Case No. 20cv366
07-12-2021
Kimberly A. GIBSON, Plaintiff, v. Andrew SAUL, Commissioner of Social Security, Defendant.
Clifford M. Farrell, Manring & Farrell, Columbus, OH, for Plaintiff. Cara Staley Rafferty, Ruchi Vikram Asher, Office of the U.S. Attorney - Cleveland - Social Security, Cleveland, OH, Social Security Administration, for Defendant.
Clifford M. Farrell, Manring & Farrell, Columbus, OH, for Plaintiff.
Cara Staley Rafferty, Ruchi Vikram Asher, Office of the U.S. Attorney - Cleveland - Social Security, Cleveland, OH, Social Security Administration, for Defendant.
ORDER
James G. Carr, Sr. U.S. District Judge
This is an appeal from the denial of Social Security benefits. Pending is the Commissioner's Motion to Alter/Amend Judgment (Doc. 26), which is directed to my May 10, 2021 order (Doc. 24) awarding plaintiff benefits and remanding the case solely for the Commissioner to calculate their amount.
The Commissioner argues that I should have remanded the case for further proceedings rather than award benefits on the ground that the evidence does not clearly support a benefits award. He also argues that the record contains contrary evidence that raises disputed issues that should be resolved in the first instance by an ALJ.
I find the Commissioner's arguments regarding supposedly contradictory evidence to be both a repetition of his prior briefs and completely devoid of merit. Nevertheless, I find merit in the argument that the record does not fully resolve all issues in the case; particularly that of when Gibson's disability began. Accordingly, I will grant the motion and remand this matter to the Commissioner for further proceedings consistent with the substance of my prior order and this order.
Legal Standard
The Sixth Circuit has propounded the following standard for determining whether to remand an erroneous Social Security denial of benefits for further proceedings or purely for calculation of the benefits due the claimant:
If 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.... A judicial award of benefits is proper only where the proof of disability is overwhelming or where the proof of disability is strong and evidence to the contrary is lacking.
Felisky v. Bowen , 35 F.3d 1027, 1041 (6th Cir. 1994) (quoting Faucher v. Sec'y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994) ).
Discussion
The Commissioner's argument that the record contains substantial evidence to support the Administrative Law Judge's ("ALJ") denial of benefits is meritless and disingenuous. The most glaring example is his argument regarding the medical witnesses.
The Commissioner contends that consultative examiner Dr. E. Jann Offut's report "supported non-disability." (Doc. 28, pgID 743). He summarizes Dr. Offut's report as "opin[ing] in May 2017 that Plaintiff was only "mildly impaired" in various work-related activities and that Plaintiff ‘does have ... severe migraines but physically she would be able to perform any job.’ " (Id. ) (quoting Doc. 17, pgID 743) (ellipsis added by the Commissioner). That contention is incompatible with the record.
In his report, Dr. Offut discussed Gibson's back and neck impairment in detail. See (Doc. 17, pgID 501-04). He also commented generally on her migraine condition, mentioning that she had a history of chronic migraines and little success in treatment. He concluded that "[h]er physical exam was essentially negative except for the tenderness over the spinous processes in her thoracic spine. She does have the severe migraines but physically she would be able to perform any job." (Id. , pgID 437) (emphasis added).
In the next sentence, in his summary conclusion, Dr. Offut stated: "[t]he claimant's ability to perform work-related activities such as bending stooping, lifting, walking, crawling, squatting, carrying and traveling as well as pushing and pulling heavy objects is at least mildly impaired due to the stated factors" (Id. , pgID 504). As to the limiting effects of Gibson's migraines, the only thing resembling a medical opinion that he stated was that "she does have the severe migraines." (Id. , pgID 437).
It is facially obvious that Dr. Offut distinguished in his reporting between the limiting effects of Gibson's "physical" condition -her back and neck impairments - on her ability to perform the exertional activities required for work, "such as pushing pulling heavy objects ...," and whatever limitations Gibson's migraines impose. Merely taking the words "mildly impaired" from Dr. Offut's analysis of her ability to perform exertional activities and applying it to her headaches as though Dr. Offut had offered a considered opinion on how the migraines limited Gibson's ability to work is hardly a convincing form of legal argument.
It is not surprising that Dr. Offut would offer a specific evaluation of Gibson's spinal issues and only affirm generally that her records demonstrated a severe migraine condition. He is an M.D. who conducted what he titled an "internal medicine examination." (Doc 17, pgID 501). He is not a neurologist or headache specialist, and he offered no opinion regarding what limitations Gibson's migraines would impose on her ability to hold a job.
The Commissioner also attempts to rely on snippets taken from treatment records of individual treatment sessions filed with Gibson's insurer by her chiropractor, Bettie Lok. In his motion, the Commissioner cites to the record from a December 27, 2015 treatment session in which Lok stated Gibson could perform sedentary work with a 15-pound-limit. The Commissioner cites to a note written on the bottom of the first page of the report stating "15# wt restriction, 8 hours per day, no other restrictions." (Doc. 26, pgID 728) citing (Doc. 17, pgID 459).
On next page of the document, which the Commissioner did not mention, Lok stated "[p]t can work within restrictions with FMLA disability for migrane [sic]"(Id. , pgID 460). On the last page of the document, Lok responded to a question whether Gibson was motivated to return to work by stating "[y]es, if it didn't exacerbate migraines with her work." (Doc. 17, pgID 459).
In a February 17, 2018 letter to an insurance company physician seeking a consultation, Lok reported that Gibson "has had daily headaches since March 4, 2015. The headaches are worsening. She has tried all medications and specialists without success." (Id. pgID 597). She concluded that Gibson "has a desire to work, but the daily headaches and migraines have progressed to the point where she is physically unable."
The ALJ afforded this letter from Lok "no weight" on the ground that Lok had opined on the ultimate issue of disability that is reserved to the Commissioner. (Id. , pgID 218). At the same time, the ALJ accepted and relied on Lok's prior statement that Gibson could work with limitations, even though it similarly opined on the ultimate issue of disability. She also offered no basis for concluding that a chiropractor would be qualified to make such a determination or that any available FMLA leave would be sufficient to account for Gibson's more than four migraine-related absences each month.
The ALJ improperly treated Lok's chiropractic treatment records as a medical opinion that Gibson was not disabled but could "perform less than a full range of medium work." (Doc. 26, pgID 728).
First, as the ALJ pointed out (Doc. 17, pgID 218), a chiropractor is not an acceptable medical source. See (Doc. 17, pgID 218) (citing 20 CFR §§ 404.1502, 1527(a)(2), 1513 ). The ALJ relied on that rule to discount the portions of Lok's treatment records inconsistent with her decision while, at the same time, she adopted the portions of her records that could be read to suggest that Gibson's back problems did not fully disable her. (Doc. 17, pgID 218).
Whatever can be said about Lok's "opinions" reflected in those records, the Commissioner's argument that Lok offered an opinion that Gibson could work full time despite her migraines is completely unsupported.
The opinions of the state agency physicians who reviewed Gibson's files also do not provide substantial evidence to support the Commissioner's argument.
The ALJ properly gave those opinions "little weight" on the ground that "additional medical evidence submitted after these opinions were rendered demonstrates that the claimant is more limited than these opinions and that additional limitations are appropriate based on that evidence." (Id. , pgID 218). My review is limited to the reasons stated by the ALJ in the record. SEC v. Chenery Corp. , 332 U.S. 194, 196, 67 S.Ct. 1760, 91 L.Ed. 1995 (1947). At this juncture, the Commissioner's attempt to resuscitate and rely on those opinions as evidence adverse to Gibson's claim is untenable. See Mun. Resale Serv. Customers v. F.E.R.C. , 43 F.3d 1046, 1052 n.4 (6th Cir. 1995) (rejecting argument that violated "the fundamental rule of administrative law that we must judge the propriety of agency action solely by the grounds invoked by the agency").
In addition, those opinions’ substantive content does not provide substantial evidence to support the ALJ's decision.
In the initial administrative claim review, the state agency physician, Dr. Dianne Manos, noted that Gibson reported to her doctors experiencing daily headaches and that "[h]er report is consistent w/ her MDIs and prescribed medication for headaches." (Doc. 17, pgID 268). Thus, Dr. Manos did not question the accuracy of Gibson's reports regarding her migraines’ frequency or severity.
In her "Additional Explanation" of her residual functional capacity determination, Dr. Manos’ only statement regarding Gibson's migraines was: "Neuro TS: Migraines, occipital neuralgia ? "medically managed." (Id. , pgID 271). Otherwise, she essentially adopted consultative examiner, Dr. Offut's, opinion but afforded it the same twisted interpretation that the ALJ subsequently adopted.
Dr. Manos took Dr. Offut's statement that Gibson's physical ability to perform the exertional requirements of employment was mildly limited and misapplied it to her migraine condition. Dr. Offut's only stated opinion regarding Gibson's migraines was to confirm that "she does have the severe migraines." (Id. , pgID 504). Nevertheless, the Dr. Manos summarized Dr. Offut's opinion as: "[t]he CE examiner states that [Gibson] would be able to perform any job. Mild impairment in work-related functioning." (Id. , pgID 268). In the section for "Additional Explanation," she stated: "CE opines function is mildly limited." (Id. , pgID 271).
Thus, the only justification that Dr. Manos proffered for her opinion was a misstatement of Dr. Offut's opinion. She did not question the frequency or severity of the migraines Gibson reported to her treating physician. Nor did she provide any basis on which the ALJ reasonably could conclude that Gibson could hold full-time employment while suffering disabling migraine symptoms more than once a week. The vocational expert's uncontroverted testimony established that she could not. (Id. , pgID 258). Thus, Dr. Manos’ opinion cannot provide substantial evidence to support the ALJ's decision.
Another state agency physician, Dr. Mehr Saddiqui, reviewed Gibson's claim on reconsideration. (Id. , pgID 266-88). The substance of his report merely repeats Dr. Manos’ report, including reliance on her spurious interpretation of Dr. Offut's opinion.
In addition, Dr. Saddiqui provided a "Personalized Disability Explanation" to Gibson that listed her various impairments, including migraines and cluster headaches. (Id. , pgID 288). The explanation he gave for the benefits denial, however, was only that "evidence supports that you are still able to sit stand walk and lift in order to perform a variety of work duties." (Id. ). Thus, Dr. Saddiqui's opinion provides no substantial evidence to support the ALJ's decision regarding Gibson's migraines.
As the foregoing discussion demonstrates, the Commissioner's bold proclamation that "[n]early all of the medical opinions and statements in the record supported non-disability" (Doc. 26 pgID 728) is spurious. I reaffirm my determination that none of the physicians’ reports or treatment records provide substantial evidence to support the ALJ's decision.
The Commissioner also rehashes his argument that cherry-picked snippets of individual treatment sessions or examinations that occurred at times when Gibson's migraines were less frequent are convincing evidence that her condition was not disabling. First, presenting arguments the ALJ did not rely upon violates the Chenery doctrine. Second, filing a reconsideration motion does not permit a litigant to repeat arguments that I already have rejected. Wyatt v. Comm'r of Soc. Sec. , No. 3:07 CV 2870, 2009 WL 1658958, at *1 (N.D. Ohio) (Armstrong, M.J.). Finally, the frequency and severity of chronic migraine symptoms are notoriously variable. See https://www.hopkinsmedicine.org/health/conditions-and-diseases/headache/migraine-headaches; https://americanmigrainefoundation.org/resource-library/what-type-of-headache-do-you-have/. Thus, that there is evidence that there were certain treatment sessions during which Gibson's reported less disabling symptoms, does not detract from the longitudinal record of her limitations.
Nevertheless, I find merit in the Commissioner's argument that the affirmative evidence regarding the extent of Gibson's migraine impairment leaves open some unresolved factual issues; particularly regarding the onset date of disability. There is no medical opinion evidence that substantively addresses the extent, severity, or onset date of Gibson's migraine condition. I am permitted to award benefits "only if all essential factual issues have been resolved and the record adequately establishes a plaintiff's entitlement to benefits." Kalmbach v. Comm'r of Soc. Sec. , 409 F. App'x 852, 865 (6th Cir. 2011) (quoting Faucher v. Sec'y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994) ).
Regrettably, it is the ALJ's errors that have caused any evidentiary insufficiency. She did not obtain an opinion from Gibson's treating physician. She did not obtain an opinion from a neurologist or other headache specialist. She made her decision without even obtaining a medical opinion directed to, or substantively addressing, the limitations Gibson's migraines imposed. Indeed, none of the medical opinions she referenced provided any estimation of the frequency with which Gibson's migraines would require her to be absent from work.
Instead, the ALJ relied on a distorted reading of Dr. Offut's opinion to write-off longitudinal treatment records that consistently reflect Gibson had more migraines per month than the number of resulting absences an employer would tolerate.
Gibson's treatment records reflecting frequent, chronic migraines meet her burden to establish a prima facie case that she is disabled. The Commissioner failed to carry his burden to demonstrate that Gibson could perform substantial gainful employment despite her impairments. See Jones v. Comm'r of Soc. Sec. , 336 F.3d 469, 474 (6th Cir. 2003).
On remand, if the ALJ should determine once again that Gibson's migraines are not disabling, he or she must base that determination on substantial evidence. At present, the record is devoid of such evidence. Accordingly,
It is hereby
ORDERED THAT:
1. Defendant's Motion to Alter or Amend Judgment (Doc. 26) be, and the same hereby is, granted;
2. The Judgment Entry entered May 25, 2021 (Doc. 25) be, and the same hereby is, vacated;
3. The May 24, 2021 order (Doc. 24) shall be, and hereby is, modified as stated in this order;
4. The petition for review be, and the same hereby is, granted to the extent it seeks a remand of her case to the Commissioner and denied to the extent it seeks an immediate award of benefits;
5. This case is remanded to the Commissioner of Social Security for further proceedings consistent with this order; and
6. The Clerk shall mark this case closed.
So ordered.