Opinion
Case No. 1:12-cv-190
2013-09-29
STEPHANIE BENTLEY HAWK, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Barrett, J.
Litkovitz, M.J.
ORDER
Plaintiff, proceeding pro se, brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of Social Security (Commissioner) denying plaintiff's application for supplemental security income (SSI). This matter is before the Court on plaintiff's "Memorandum Supporting of Plaintiff which the Court construes as a Statement of Errors (Doc. 17) and the Commissioner's response in opposition. (Doc. 22). To date, plaintiff has not filed a reply.
I. Procedural Background
Plaintiff filed an application for SSI in May 2009, alleging disability since May 13, 2009, due to Heptatitis C, enlarged lymph nodes, cirrhosis, heart problem, Crohn's disease, arthritis, and memory loss. (Tr. 164). Plaintiff's application was denied initially and upon reconsideration. Plaintiff, through counsel, requested and was granted a de novo hearing before administrative law judge (ALJ) Gregory G. Kenyon. Plaintiff, plaintiff's mother, and a vocational expert (VE) appeared and testified at the ALJ hearing. On September 23, 2011, the ALJ issued a decision finding that plaintiff was not disabled. Plaintiff's request for review by the Appeals Council was denied, making the decision of the ALJ the final administrative decision of the Commissioner.
II. Analysis
A. Legal Framework for Disability Determinations
To qualify for disability benefits, a claimant must suffer from a medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 1382(a)(3)(A). The impairment must render the claimant unable to engage in the work previously performed or in any other substantial gainful employment that exists in the national economy. 42 U.S.C. § 1382c(a)(3)(B).
Regulations promulgated by the Commissioner establish a five-step sequential evaluation process for disability determinations:
1) If the claimant is doing substantial gainful activity, the claimant is not disabled.Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 652 (6th Cir. 2009) (citing §§ 404.1520(a)(4)(i)-(v), 404.1520(b)-(g)). The claimant has the burden of proof at the first four steps of the sequential evaluation process. Id.; Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 548 (6th Cir. 2004). Once the claimant establishes a prima facie case by showing an inability to perform the relevant previous employment, the burden shifts to the Commissioner to show that the claimant can perform other substantial gainful employment and that such employment exists in the national economy. Rabbers, 582 F.3d at 652; Harmon v. Apfel, 168 F.3d 289, 291 (6th Cir. 1999).
2) If the claimant does not have a severe medically determinable physical or mental impairment - i.e., an impairment that significantly limits his or her physical or mental ability to do basic work activities - the claimant is not disabled.
3) If the claimant has a severe impairment(s) that meets or equals one of the listings in Appendix 1 to Subpart P of the regulations and meets the duration requirement, the claimant is disabled.
4) If the claimant's impairment does not prevent him or her from doing his or her past relevant work, the claimant is not disabled.
5) If the claimant can make an adjustment to other work, the claimant is not disabled. If the claimant cannot make an adjustment to other work, the claimant is disabled.
B. The Administrative Law Judge's Findings
The ALJ applied the sequential evaluation process and made the following findings of fact and conclusions of law:
1. The [plaintiff] has not engaged in substantial gainful activity since May 12, 2009, the application date (20 CFR 416.971 et seq).(Tr. 13-27).
2. The [plaintiff] has the following severe impairments: degenerative disc disease of the cervical spine; hepatitis C with associated cirrhosis of the liver; a history of cardiac arrhythmia with residuals of surgery to implant a pacemaker; mild chronic obstructive pulmonary disease; left knee osteoarthritis; mild right ulnar sensory mononeuropathy; peroneal mononeuropathy; generalized anxiety disorder; depression; and a history of polysubstance abuse. (20 CFR 416.920(c)).
3. The [plaintiff] does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).
4. After careful consideration of the entire record, the undersigned finds that the [plaintiff] has the residual functional capacity to perform light work as defined in 20 CFR 416.924(b) subject to the following: (1) occasional crouching, crawling, kneeling, stooping, and climbing of ramps and stairs; (2) no climbing of ladders, ropes, and scaffolds; (3) no work around hazards such as unprotected heights or dangerous machinery; (4) no driving of automotive equipment; (5) no exposure to strong magnetic fields; (6) no exposure to loud noise; (7) no concentrated exposure to respiratory irritants or temperature extremes; (8) limited to performing unskilled simple, routine repetitive tasks; (8) occasional contact with co-workers, supervisors, and the public; (9) no rapid production pace work; (10) limited to jobs which involve very little, if any, adaptation to changes in the job duties or work setting from one day to the next.
5. The [plaintiff] is unable to perform any past relevant work (20 CFR 416.965).
6. The [plaintiff] was born [in] 1961 and was 47 years old, which is defined as a younger individual age 18-49, on the date the application was filed (20 CFR 416.963).
7. The [plaintiff] has at least a high school education and is able to communicate in English (20 CFR 416.964).
8. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the [plaintiff] is 'not disabled,' whether or not the [plaintiff] has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
9. Considering the [plaintiff's] age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the [plaintiff] also can perform (20 CFR 416.969 and 416.969(a)).
12. The [plaintiff] has not been under a disability, as defined in the Social Security Act, since May 12, 2009, the date the application was filed (20 CFR 416.920(g)).
C. Judicial Standard of Review
Judicial review of the Commissioner's determination is limited in scope by 42 U.S.C. § 405(g) and involves a twofold inquiry: (1) whether the findings of the ALJ are supported by substantial evidence, and (2) whether the ALJ applied the correct legal standards. See Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see also Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir. 2007).
The Commissioner's findings must stand if they are supported by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citing Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). Substantial evidence consists of "more than a scintilla of evidence but less than a preponderance. . . ." Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). In deciding whether the Commissioner's findings are supported by substantial evidence, the Court considers the record as a whole. Hephner v. Mathews, 574 F.2d 359 (6th Cir. 1978).
The Court must also determine whether the ALJ applied the correct legal standards in the disability determination. Even if substantial evidence supports the ALJ's conclusion that the plaintiff is not disabled, "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, 582 F.3d at 651 (quoting Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)). See also Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 545-46 (6th Cir. 2004) (reversal required even though ALJ' s decision was otherwise supported by substantial evidence where ALJ failed to give good reasons for not giving weight to treating physician's opinion, thereby violating the agency's own regulations).
D. Specific Errors
Plaintiff lists six "Counts" which the Court construes as errors forming the bases for her appeal. Plaintiff's errors are as follows: (1) the ALJ erred in formulating plaintiff's residual functional capacity (RFC) when he stated that plaintiff does not use an ambulatory aid because plaintiff uses a cane and, further, plaintiff suffers from shortness of breath and fatigue; (2) the ALJ erred in describing plaintiff's activities of daily living; (3) the ALJ stated that plaintiff "dry heaves everyday due to smells and vomits approximately five times a week, which drains her" (Tr. 18), while plaintiff states she vomits several times a week which causes fatigue; and (4) the ALJ improperly discounted plaintiff's credibility as her subjective pain supports her testimony. Plaintiff has attached medical evidence to her memorandum which includes several pages from the administrative record (Tr. 498, 503, 506-13, and 523), as well as a February 2013 letter from a physician's assistant regarding plaintiff's hepatitis C treatment and a pathology report from November 12, 2012. See Doc. 17, Ex. 1. The Court will consider the evidence which is part of the record that was presented to the ALJ; however, the Court cannot consider the November 9, 2012 pathology report or the February 2013 letter in its substantial evidence review because it was not part of the record before the ALJ. Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). Whether this new evidence supports remanding this matter under Sentence Six of 42 U.S.C. § 405(g) is addressed below.
Plaintiff identifies these as two separate errors: Errors 2 and 3. See Doc. 17 at 2-3. As both relate to the ALJ's description of plaintiff's activities of daily living, these arguments are considered together.
The Court construes plaintiff's fifth and sixth enumerated arguments, Doc. 17 at 4-5, as one error since both relate to the ALJ's credibility determination. Plaintiff's fifth enumerated argument states simply that "[i]t is known facts Heptatitis C deteriorates muscles also attacks other parts, areas of a body." Id. at 5. The ALJ made no finding which contradicts plaintiff's contention about the effects of hepatitis C. Consequently, the Court finds that plaintiff's fifth enumerated argument fails to identify any purported error.
In lieu of responding to plaintiff's enumerated arguments, the Commissioner argues generally that the ALJ's decision is substantially supported and should be affirmed. The Commissioner's argument is focused on the ALJ's residual functional capacity (RFC) and credibility findings, as these appear to be the focus of plaintiff's enumerated arguments. The Commissioner also asserts that the ALJ properly weighed the various medical opinions of record in assessing plaintiff's RFC.
For the following reasons, this matter is remanded to the Commissioner for re-evaluation consistent with this Order.
1. The ALJ erred, in part, in weighing the medical opinions of record.
In formulating plaintiff's RFC, the ALJ based his finding on, among other things, the medical opinions of: (1) Norman L. Berg, Ph.D, plaintiff's one-time examining psychologist; (2) state agency reviewing psychologist Paul Tangeman, Ph.D; (3) Marianne Collins, Ph.D, the state agency reviewing psychologist who affirmed Dr. Tangeman's findings; (4) state agency reviewing physician Teresita Cruz, M.D.; (5) plaintiff's treating physician, Jamie Shulz, D.O.; and (6) plaintiff's treating therapist Dionne Rogers, PCC which was endorsed by plaintiff's treating psychiatrist, Lawrence Ostrowski, M.D. The Court will first address the medical opinion evidence relating to plaintiff's physical impairments.
The only two opinions of record regarding plaintiff's physical RFC are those of reviewing physician Dr. Cruz and treating physician Dr. Shulz. Dr. Cruz opined on September 15, 2009, that plaintiff could occasionally lift 20 pounds; frequently lift ten pounds; sit, stand, and/or walk for 6 hours in an 8-hour workday; push and pull without restriction; occasional climb ramps and stairs but never climb ladders, ropes, or scaffolds; and perform work not involving exposure to extreme heat or hazards such as heights or machinery. (Tr. 302-05). Dr. Cruz noted that her RFC assessment was an adoption of an April 20, 2009 RFC from a prior disability decision pursuant to Drummond. The ALJ discounted Dr. Cruz's assessment giving it only "some weight" because while the objective and clinical findings of record supported the doctor's limitations, the record did not reflect Dr. Cruz's specialty area. (Tr. 23-24).
Drummond v. Comm'r of Soc. Sec., 126 F.3d 837 (6th Cir. 1997) and Acquiescence Ruling 98-4(6), 1998 WL 283902, at *3 (June 1, 1998) bar Social Security plaintiffs and the Commissioner from re-litigating issues that have previously been determined at the administrative level.
Dr. Shulz's May 2010 assessment was far more restrictive as he opined that plaintiff could stand or walk for less than one hour at a time; could sit for less than 20 minutes at a time; was able to lift only five pounds occasionally and frequently; and was moderately limited in her ability to reach and handle; and had marked limitations in her ability to push, pull bend, handle, and engage in repetitive foot movements. (Tr. 379). Dr. Shulz's assessment notes that his limitations were "[a]ll per patient" and that he recommended an independent evaluation if a more detailed exam was necessary. Id. The ALJ afforded Dr. Shulz's opinion "little weight" because it was based entirely on plaintiff's subjective allegations and the objective findings did not support such extreme limitations. (Tr. 24). The Court finds that the ALJ committed no error in weighing the medical opinions of Dr. Cruz and Dr. Shulz.
"In general, the opinions of treating physicians are accorded greater weight than those of physicians who examine claimants only once." Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 529-30 (6th Cir. 1997). Likewise, a treating physician's opinion is entitled to weight substantially greater than that of a non-examining medical advisor. Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985); Lashley v. Sec'y of H.H.S., 708 F.2d 1048, 1054 (6th Cir. 1983). The weight given a treating physician's opinion on the nature and severity of impairments depends on whether it is supported by sufficient medical data and is consistent with other evidence in the record. 20 C.F.R. §§ 404.1527(c), 416.927(c); Harris, 756 F.2d at 435. If a treating physician's "opinion on the issue(s) of the nature and severity of [a claimant's] impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case," the opinion is entitled to controlling weight. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see also Walters, 127 F.3d at 530. If not contradicted by any substantial evidence, a treating physician's medical opinions and diagnoses are afforded complete deference. Harris, 756 F.2d at 435. See also Cohen v. Sec'y of H.H.S., 964 F.2d 524, 528 (6th Cir. 1992). If the ALJ rejects a treating physician's opinion, the ALJ's decision must be supported by a sufficient basis which is set forth in his decision. Walters, 127 F.3d at 529; Shelman, 821 F.2d at 321.
Regulations 20 C.F.R. §§ 404.1527 and 416.927 were amended effective March 26, 2012. The provisions governing the weight to be afforded a medical opinion were previously found at §§ 404.1527(d) and 416.927(d).
If the ALJ does not give the treating source's opinion controlling weight, then the ALJ must consider a number of factors when deciding what weight to give the treating source's opinion. 20 C.F.R. §§ 404.1527(c), 416.927(c). These factors include the length, nature and extent of the treatment relationship and the frequency of examination. 20 C.F.R. §§ 404.1527(c)(2)(i)-(ii), 416.927(c)(i)-(ii); Wilson, 378 F.3d at 544. In addition, the ALJ must consider the medical specialty of the source, how well-supported by evidence the opinion is, how consistent the opinion is with the record as a whole, and other factors which tend to support or contradict the opinion. 20 C.F.R. §§ 404.1527(c)(3)-(6), 416.927(c)(3)-(6); Wilson, 378 F.3d at 544. The ALJ must likewise apply the factors set forth in § 404.1527(c)(3)-(6) and § 416.927(c)(3)-(6) when considering the weight to give a medical opinion rendered by a non-treating source. 20 C.F.R. §§ 404.1527(c), 416.927(c). When considering the medical specialty of a source, the ALJ must generally give "more weight to the opinion of a specialist about medical issues related to his or her area of specialty than to the opinion of a source who is not a specialist." 20 C.F.R. §§ 404.1527(c)(5), 416.927(c)(5).
The ALJ's decision to give "little weight" to Dr. Shulz's opinion is substantially supported. The ALJ is not required to accept medical opinions which are based on plaintiff's subjective complaints and not supported by clinical observations. Ferguson v. Comm'r of Soc. Sec., 628 F.3d 269, 273-74 (6th Cir. 2010). Dr. Shulz stated that his RFC assessment was based entirely on plaintiff's reports, which were determined to be less than fully credible, as opposed to any of his own findings on examination. (Tr. 379). Further, the clinical evidence of record contradicts Dr. Shulz's assessment as plaintiff has consistently demonstrated full or nearly full strength and sensation in her extremities. (Tr. 323, 334, 346, 359, 734, 779, 799). The ALJ may discount the opinion of treating sources where the opinion is contradicted by substantial evidence in the record and is based on plaintiff's discredited subjective reports. Smith v. Comm'r of Soc. Sec., 482 F.3d 873, 877 (6th Cir. 2007). Dr. Shulz's opinion was based entirely upon plaintiff's reporting to him and is not supported by any objective or clinical findings; however, there is ample evidence contradicting it. Consequently, the ALJ's decision to discount Dr. Shulz's extreme limitations is substantially supported.
As discussed infra, the ALJ's decision to discount plaintiff's credibility is affirmed.
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Likewise, the ALJ's decision to give "some weight" to Dr. Cruz's opinion is supported by substantial evidence. While Dr. Cruz did not indicate her area of expertise on her RFC assessment, see Tr. 308, her opinion with regard to plaintiff's physical capabilities is supported by the above-cited examination findings. Further, while plaintiff argues that she has debilitating fatigue, shortness of breath, pain, and weakness due to her cardiac and pulmonary impairments and hepatitis C, the objective findings of record do not support her claims. As noted by the ALJ, plaintiff's cardiac condition appears to be largely resolved with the use of a pacemaker which she received in August 2008. (Tr. 549). Plaintiff was seen at the UC Heart and Vascular Center for follow up in August 2009 at which time echocardiogram results were normal and plaintiff was identified as having low cardiac risk. (Tr. 363-66). Later objective test results and examination findings are consistent. See Tr. 271 (in November 2008 plaintiff had an electrocardiogram (EKG) due to chest pain complaints and overall impression was normal); Tr. 317 (November 2009 treatment notes include notes that examining doctor did not believe plaintiff's chest pain was cardiac in nature); Tr. 320 (plaintiff had normal chest x-ray and EKG in November 2009); Tr. 312-14 (December 2009 emergency room notes show plaintiff had normal chest x-ray, EKG, and cardiac enzymes); Tr. 800 (February 2010 EKG and chest x-rays revealed normal results); Tr. 783 (a July 2010 EKG was normal); Tr. 744-45 (September 2010 chest x-ray and EKG were normal). Further, while plaintiff has sought treatment for shortness of breath on numerous occasions, the objective evidence demonstrates that her pulmonary disease appears to be well-controlled. See Tr. 260, 273 320, 323, 332, 723, 727, 744, 778 (between November 2008 and September 2008, plaintiff's oxygen saturation was consistently between 94% and 98%). Similarly, plaintiff's hepatitis C and cirrhosis appears to be well-controlled despite her ongoing complaints of fatigue and pain. See Tr. 436 (in July 2008 plaintiff was admitted to the hospital for two days with increased creatinine levels likely due to dehydration which resolved with saline treatment and her cirrhosis was noted as stable throughout her admission); Tr. 743-45 (September 2010 tests indicate normal renal panel); Tr. 816-17 (February 2011 follow up notes show that plaintiff's cirrhosis was well compensated and her hepatitis was not currently active); Tr. 818 (plaintiff's cirrhosis was noted as "[n]ot causing significantly disabling fatigue"). Notably, June 2011 treatment notes from plaintiff's liver specialist show that her medical providers reassured her that her cirrhosis was well controlled and they believed her complaints of liver pain were a result of her anxiety. (Tr. 923-24). With regard to plaintiff's knee impairment, the evidence shows that while plaintiff was diagnosed with mild osteoarthritis requiring the use of a leg brace, her condition is described as "stable" and there is no evidence that her knee pain causes any functional limitations. (Tr. 310, 691, 693). See also Tr. 778-79 (July 2010 examination findings show that plaintiff had normal gait and negative straight leg raise bilaterally).
The above objective findings contradict Dr. Shulz's opinion that plaintiff's physical impairments are disabling and the clinical examination findings are consistent with Dr. Cruz's RFC assessment. The Court therefore finds that the ALJ's decision on this score is substantially supported by the record.
However, the Court finds that the ALJ erred in weighing the opinion evidence with regard to plaintiff's mental impairments. The ALJ gave the "most weight" to the opinion of consultative examining psychologist Dr. Berg who examined plaintiff on July 9, 2009. (Tr. 275-81). Dr. Berg opined that plaintiff suffered from depression, anxiety, and substance abuse disorders and had no more than moderate limitations in her ability to engage in work-related activities. (Tr. 279-81). The ALJ gave this opinion the most weight because it was "consistent with and supported by the medical evidence of record[.]" (Tr. 22).
The ALJ gave only "little weight" to the mental health RFC assessment completed by plaintiff's treating therapist, counselor Rogers, which was endorsed by her treating psychiatrist, Dr. Ostrowski, from Centerpoint Health. (Tr. 24). Counselor Rogers and Dr. Ostrowski were plaintiff's treating mental health care providers from at least February 2011 to July 2011. See Tr. 962-80. They opined that plaintiff had moderate restrictions in her activities of daily living but marked restrictions in her abilities to maintain social functioning and concentration, persistence, or pace. (Tr. 418). Their opinion was based on their observations during plaintiff's regular therapy sessions wherein they observed, among other things, paranoid thinking, emotional withdrawal, hyperactivity, blunt affect, and impulsive behavior. (Tr. 415). The ALJ's stated reason for discounting this opinion was because it "is not consistent with the [plaintiff's] treatment records from Centerpoint which show only moderate level symptoms of depression and anxiety." (Tr. 24, citing Tr. 394-403, 404-12, 961-80). The ALJ further asserted that this opinion should be discounted because treatment records demonstrated that plaintiff had "made only minimal effort at psychological treatment, which suggests that her depression and anxiety disorder are not as severe as she alleges." (Tr. 24). For the following reasons, the Court finds that the ALJ's reasons for discounting the opinion of plaintiff's treating mental health providers are not "good reasons" pursuant to Wilson and, consequently, this matter must be remanded.
First, the ALJ failed to identify any actual inconsistency between the RFC assessment and the Centerpoint treatment notes. Upon review of this evidence, the Court finds that the treatment notes are, in fact, quite consistent with Ms. Rogers and Dr. Ostrowski's assessment. For example, throughout the treatment notes, plaintiff is consistently described as making little to no progress (Tr. 962-80); her affect ranges from hyperactive, cooperative, anxious, depressed, and angry (Tr. 964, 969, 974-80); and her mood is consistently noted as depressed, anxious, and sad, and occasionally angry or frustrated. (Tr. 962, 964, 968-69). Plaintiff often described feelings of being overwhelmed and occasionally used profanity and was loud when describing anger. (Tr. 963, 964, 967, 968, 973-74). On one occasion, plaintiff was noted as being argumentative when discussing her stressors to the extent that she apologized to Ms. Rogers for her behavior during the session. (Tr. 969). In light of the consistency of these findings of anxiety, depression, and irritability, which demonstrate plaintiff's limited abilities in social functioning, and the static improvement in treating her depression, it is entirely unclear why the ALJ deemed them inconsistent with Ms. Rogers and Dr. Ostrowski's RFC assessment. Given the above and the ALJ's failure to specify what evidence is inconsistent with this opinion, the Court finds that the ALJ's decision to discount plaintiff's treating mental health providers' opinion due to inconsistency with treatment notes is not supported by substantial evidence.
Second, the ALJ's decision to discount this opinion due to plaintiff's prior failure to seek mental health treatment is untenable. "For some mental disorders, the very failure to seek treatment is simply another symptom of the disorder itself." White v. Comm'r of Soc. Sec., 572 F.3d 272, 283 (6th Cir. 2009) (citing Pate-Fires v. Astrue, 564 F.3d 935, 945 (8th Cir. 2009)). "[F]ederal courts have recognized that a mentally ill person's noncompliance with psychiatric medications can be, and usually is, the result of [the] mental impairment [itself] and, therefore, neither willful nor without justifiable excuse." Pate-Fires, 564 F.3d at 945 (internal quotations omitted) (and numerous cases cited therein). The ALJ never questioned the plaintiff at the hearing about her lack of mental health treatment. Such questioning is crucial in cases such as this, where the plaintiff's mental impairment may, itself, be the cause of her failure to seek treatment. See Blankenship v. Bowen, 874 F.2d 1116, 1124 (6th Cir. 1989) (questioning the practice of censuring plaintiffs with mental impairments for exercising poor judgment in not seeking treatment). Without any evidence supporting his determination that the plaintiff's lack of prior treatment indicated that her mental impairments were not as debilitating as her counselor and psychiatrist opined, the ALJ's decision to discount their medical opinion is erroneous.
The ALJ's decision to discount the opinion of Ms. Rogers and Dr. Ostrowski is not substantially supported by the evidence of record. This matter is remanded with instruction to the ALJ to give appropriate weight to this opinion as required under 20 C.F.R. § 404.1527. The ALJ is also required to reassess plaintiff's RFC on remand, taking into account the limitations plaintiff's mental impairments cause, in accordance with this Order.
2. The ALJ's determination that plaintiff is not fully credible is supported by substantial evidence.
It is the province of the ALJ, and not the reviewing court, to evaluate the credibility of witnesses, including that of the claimant. Rogers, 486 F.3d at 247 (citations omitted). In light of the ALJ's opportunity to observe the individual's demeanor, the ALJ's credibility finding is entitled to deference and should not be discarded lightly. Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001); Kirk v. Sec'y of H.H.S., 667 F.2d 524, 538 (6th Cir. 1981). "If an ALJ rejects a claimant's testimony as incredible, he must clearly state his reasons for doing so." Felisky v. Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994). The ALJ's articulation of reasons for crediting or rejecting a claimant's testimony must be explicit and "is absolutely essential for meaningful appellate review." Hurst v. Sec'y of H.H.S., 753 F.2d 517, 519 (6th Cir. 1985) (citing Zblewski v. Schweiker, 732 F.2d 75, 78 (7th Cir. 1984)).
The ALJ is not free to make credibility determinations based solely upon an "intangible or intuitive notion about an individual's credibility." Rogers, 486 F.3d at 247. Rather, such determination must find support in the record. Id. Whenever a claimant's complaints regarding symptoms or their intensity and persistence are not supported by objective medical evidence, the ALJ must make a determination of the credibility of the claimant in connection with his or her complaints "based on a consideration of the entire case record." Id. Consistency between a claimant's symptom complaints and the other evidence in the record tends to support the credibility of the claimant while inconsistency, although not necessarily defeating, should have the opposite effect. Id.
Substantial evidence supports the ALJ's determination that plaintiff's subjective statements regarding the severity of her impairments are not fully credible. The ALJ noted throughout his decision the various ways in which plaintiff's statements were inconsistent and unsupported by the objective and clinical evidence of record. A review of the record supports the ALJ's determination.
First, the ALJ cited multiple inconsistencies between plaintiff's testimony, statements plaintiff made to her medical providers, and other evidence of record. For example, the ALJ noted that plaintiff made inconsistent reports regarding her prior polysubstance abuse. (Tr. 22). The record supports this conclusion. Plaintiff testified that she hadn't used drugs since 2008 (Tr. 56), but she reported to Dr. Berg in 2009 that she had not used any street drugs in 10-12 years. (Tr. 276). See also Tr. 444 (plaintiff reported regularly using marijuana in July 2008). Plaintiff also told Dr. Berg that she "has consumed no alcohol in 20 years" (Tr. 276), but several months earlier reported that she drank liquor "daily for comfort" and she reported to Ms. Rogers in April 2011 that she last consumed alcohol in September of 2010. (Tr. 252, 403).
Second, as discussed above, the ALJ noted that the objective and clinical findings demonstrated that plaintiff's physical strength and impairments were not as restrictive as she reported. While plaintiff testified that she was unable to carry more than a gallon of milk (Tr. 56), examination results consistently revealed full to almost full strength in both extremities. (Tr. 323, 334, 346, 359, 734, 779, 799).
Lastly, while plaintiff asserts that the ALJ erred in stating that she was able to ambulate without the use of a cane because she, in fact, uses a cane to ambulate (Doc. 17 at 2), the record contradicts this contention. Though plaintiff received a brace for her left knee in 2009 (Tr. 693), in January 2010, plaintiff was reported as having a safe and functional gait without aid. (Tr. 733).
An ALJ's credibility determination should be affirmed where the ALJ considers the plaintiff's subjective complaints in light of the record as a whole and adequately explains his decision to not fully credit the alleged limitations with citations to the record. See Infantado v. Astrue, 263 F. App'x 469, 476 (6th Cir. 2008). Here, the ALJ considered plaintiff's allegations in the context of the complete record. The ALJ cited to objective and clinical evidence, doctors' reports of plaintiff's physical abilities, and plaintiff's inconsistent statements in support of his finding that plaintiff's was not fully credible. Accordingly, the ALJ adequately explained his credibility determination and supported his finding with citations to record evidence such that it is substantially supported.
3. The newly presented evidence does not warrant a Sentence Six remand.
Plaintiff has submitted two pages of new evidence for consideration by the Court. See Doc. 17, Ex. 1 at 1-2. This new evidence consists of: (1) a February 8, 2013 letter from the Tri-State Gastroenterology Associates identifying that plaintiff is currently a participant in a clinical trial for chronic hepatitis C treatment which may likely affect her physical abilities and cause significant side effects, and (2) a biopsy report from November 2012 showing that plaintiff continues to suffer from hepatitis C and liver cirrhosis.
New evidence may only be considered in determining whether to remand a matter under Sentence Six of 42 U.S.C. § 405(g). Sentence Six of 42 U.S.C. § 405(g) governs whether the Court is authorized to remand the matter for consideration of new and material evidence that was not available to the plaintiff at the time of the ALJ hearing. Allen v. Comm'r of Soc. Sec., 561 F.3d 646, 653 (6th Cir. 2009) (citing Melkonyan v. Sullivan, 501 U.S. 89, 98 (1991)). To be considered "material" within the meaning of § 405(g), the new evidence 1) must be relevant and probative to plaintiff's condition prior to the Commissioner's decision, and 2) must establish a reasonable probability that the Commissioner would have reached a different decision if the evidence had been considered. Sizemore v. Sec'y of H.H.S., 865 F.2d 709, 711 (6th Cir. 1988); Oliver v. Sec'y of H.H.S., 804 F.2d 964, 966 (6th Cir. 1986).
With regard to the biopsy report, the Court finds that this evidence does not warrant a Sentence Six remand as it is cumulative of other evidence already in the record. The ALJ determined that plaintiff suffered from the severe impairments of hepatitis C and associated cirrhosis. It is improbable that more evidence of these conditions would result in the ALJ coming to a different conclusion. Consequently, the November 2012 biopsy report does not provide a basis for remand under Sentence Six.
The February 2013 letter regarding plaintiff's hepatitis C treatment shows that plaintiff's physical capabilities may have declined since the ALJ issued his decision due to side effects from the treatment. However, the pertinent issue is whether the new evidence is relevant to plaintiff's condition prior to the ALJ's decision which was, in this case, issued on September 23, 2011. The letter indicates that plaintiff began her hepatitis C treatment in November 2012, over a year after the ALJ determined that her physical impairments were not debilitating. As this evidence did not exist until nearly 14 months after the ALJ issued his findings, it is not probative of plaintiff's condition prior to the ALJ reaching his decision and, accordingly, does not warrant remanding this matter under Sentence Six.
III. Conclusion
For the reasons stated above, this matter is remanded to the Commissioner with instructions to the ALJ to reassess the weight given to plaintiff's treating mental health providers and reformulate plaintiff's RFC accordingly.
IT IS SO ORDERED.
______________________
Michael R. Barrett
United States District Court Judge