Opinion
Case No. 3:13-cv-179
04-25-2014
ROBIN HAWTHORNE, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Judge Timothy S. Black
ORDER THAT: (1) THE ALJ'S NON-DISABILITY FINDING IS FOUND NOT
SUPPORTED BY SUBSTANTIAL EVIDENCE, AND IS REVERSED;
(2) JUDGMENT IS TO BE ENTERED IN FAVOR OF PLAINTIFF
AWARDING BENEFITS; AND (3) THIS CASE IS CLOSED
This is a Social Security disability benefits appeal. At issue is whether the administrative law judge ("ALJ") erred in finding the Plaintiff "not disabled" and therefore unentitled to disability insurance benefits ("DIB"). (See Administrative Transcript at ("Page ID") (PageID 50-60) (ALJ's decision)).
I.
Plaintiff applied for DIB on March 12, 2009, alleging disability since April 20, 2008, the date of a serious motor vehicle accident. (PageID 118, 205). Plaintiff alleges disability due to back and neck pain, stomach issues, and mental health issues. (Id.) Plaintiff's application was denied initially and upon reconsideration. (PageID 121-24, 126-28). A hearing was scheduled for April 27, 2011; however, that hearing was postponed due to a planned lumbar surgery. (PageID 71-76). A second hearing took place on December 13, 2011, with an ALJ who attended the hearing via video. (PageID 79). Plaintiff was represented by an attorney and a vocational expert also appeared and testified via telephone. (Id.)
On January 20, 2012, the ALJ issued a decision concluding that Plaintiff was not disabled within the meaning of the Social Security Act. (PageID 47-68). The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. (PageID 34-37). Plaintiff seeks judicial review under 42 U.S.C. §§ 405(g) and 1383(c)(3).
Plaintiff is 55 years old. (PageID 58). She is a high school graduate who attended two years of college. (Id.) Her past relevant work includes working as a retail sales clerk, customer service clerk, pharmacy tech, and LPN. (PageID 58).
At the time of Plaintiff's alleged onset date she was considered to be a "younger person" for social security purposes, and, in April 2009, shifted age categories to become "a person closely approaching advanced age." 20 C.F.R. §§ 404.1563(c)-(d); 416.963(c)-(d).
Social Security defines past relevant work as work done within the past fifteen years, at substantial gainful activity levels, and performed long enough for the claimant to learn to do it. 20 C.F.R. § 404.1560(b)(1). The bulk of Plaintiff's work history was as an LPN and earnings records reflect strong, consistent wages in that field from 1990 through her 2008 accident. (PageID 84, 219-27).
The ALJ's "Findings," which represent the rationale of her decision, were as follows:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2013.(PageID 52-59).
2. The claimant has not engaged in substantial gainful activity since April 29, 2008, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: degenerative changes of the lumbar spine; degenerative changes of the cervical spine, status post
discectomy and fusion in May 2008; myofascial pain syndrome (20 CFR 404.1520(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except the claimant should never climb ladders, ropes, and scaffolds. The claimant should avoid work in the presence of any exposure to hazardous conditions, including unprotected heights and dangerous moving machinery. The claimant should not operate commercial motor vehicles. The claimant can occasionally climb ramps and stairs. The claimant should no more than occasionally stoop, crouch, kneel, and crawl. The claimant is capable of frequent reaching in all directions, as well as frequent handling and fingering bilaterally. The claimant is limited to jobs which can be performed while using a handheld assistive device at all times while walking; the contralateral upper extremity can be used to lift and carry up to the exertional limits of light work. The claimant should work only in jobs that permit a sit/stand option, which means the claimant would be allowed to sit or stand alternatively at will, provided that this person is not off-task for more than 10% of the work period. The claimant should not perform work requiring repetitive extension, rotation or flexion of the neck.
6. The claimant is unable to perform any past relevant work. (20 CFR 404.1565).
7. The claimant was born on April 4, 1959 and was 49 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date. The claimant subsequently changed age category to closely approaching advanced age (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).
9. 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 claimant is "not disabled" whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from April 29, 2008, through the date of this decision. (20 CFR 404.1520(g)).
In sum, the ALJ concluded that Plaintiff was not under a disability as defined by the Social Security Regulations and was therefore not entitled to DIB. (PageID 60).
On appeal, Plaintiff argues that: (1) the ALJ's failure to grant any significant weight to the supportive opinions of three separate treating sources is unreasonable, unsupported, and contrary to the regulations; (2) the ALJ erred in selectively relying upon the opinions of various state agency consultants without sufficient justification; (3) the ALJ's reliance upon a singular function report completed by Plaintiff in 2009 is unreasonable; (4) the ALJ's characterization of and reliance upon a 2009 letter from Plaintiff's spinal surgeon is illogical and unsupported; and (5) the ALJ's adverse credibility findings is not supported by substantial evidence. The Court will address each issue in turn.
II.
The Court's inquiry on appeal is to determine whether the ALJ's non-disability finding is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). In performing this review, the Court considers the record as a whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence supports the ALJ's denial of benefits, that finding must be affirmed, even if substantial evidence also exists in the record upon which the ALJ could have found plaintiff disabled. As the Sixth Circuit has explained:
"The Commissioner's findings are not subject to reversal merely because substantial evidence exists in the record to support a different conclusion. The substantial evidence standard presupposes that there is a "zone of choice" within which the Commissioner may proceed without interference from the courts. If the Commissioner's decision is supported by substantial evidence, a reviewing court must affirm."Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994).
The claimant bears the ultimate burden to prove by sufficient evidence that she is entitled to disability benefits. 20 C.F.R. § 404.1512(a). That is, she must present sufficient evidence to show that, during the relevant time period, she suffered an impairment, or combination of impairments, expected to last at least twelve months, that left her unable to perform any job in the national economy. 42 U.S.C. § 423(d)(1)(A).
A.
The record reflects that:
1. Medical Records
A lumbar MRI performed September 11, 2007, revealed that even prior to her car accident, Plaintiff was suffering from degeneration throughout the discs of her lumbar spine. (PageID 363). An April 4, 2008 lumbar spine x-ray revealed degenerative changes at the L3 to S1 levels. (PageID 362). On April 29, 2008, Plaintiff presented to Kettering Hospital following a motor vehicle accident. (PageID 368-75). Plaintiff complained of significant pain in her neck and low back. (PageID 370-71). X-rays of Plaintiff's spine failed to demonstrate any fractures, so she was discharged. (PageID 371-75).
The MRI showed a broad based disc protrusion at L2-3 which compromised Plaintiff's left nerve passages as well as other bulges at the L3-4, L4-5, and L5-S1 levels. (Id.)
The lumbar x-ray was consistent with degenerative changes, such as disc space narrowing and facet hypertrophy, at multiple levels of Plaintiff's lumbar spine. (PageID 375).
The week after her accident, Plaintiff complained of pain in her low back, neck, and shoulder as well as headaches. (PageID 348). Her neck range of motion was limited on examination. (Id.) On May 13, 2008, Plaintiff decided to try physical therapy. (PageID 458-60). During her initial examination, Plaintiff exhibited severe tenderness in her cervical muscles, decreased mobility in her neck, and increased pain with various manipulations. (Id.) Goals for therapy included reducing Plaintiff's pain from 10/10 to 5/10, increasing neck range of motion, and expanding Plaintiff's sitting tolerance to twenty minutes. (PageID 459). By June 6, 2008, Plaintiff had experienced some small improvement in her neck pain, however, she wanted to pursue other options. (PageID 450-51).
An MRI of Plaintiff's cervical spine was performed on June 11, 2008, revealing stenosis and a moderate central disc protrusion at C4-5 indenting Plaintiff's spinal cord. (PageID 361). Plaintiff's headaches and neck pain only worsened, ultimately bringing her to the Miami Valley Hospital ("MVH") emergency room on June 18, 2008. (PageID 396-413). On July 9, 2008, Plaintiff consulted with a neurosurgeon, Cynthia Africk, M.D., to address her worsening pain. (PageID 438-40, 464-65). Plaintiff described constant, "10/10" pain to Dr. Africk, which had progressively worsened since her accident. (Id.) Dr. Africk suggested neck surgery to address Plaintiff's disc herniation at C4-5. (PageID 439-40). On July 21, 2008, Plaintiff underwent a cervical discectomy/fusion at C4-5 where Dr. Africk fused the disc space with screws and a titanium plate. (PageID 435-37).
Plaintiff described her pain as constant and debilitating, noting that it was sometimes accompanied by transient numbness in her arms. (PageID 401). The emergency room attendant believed Plaintiff's cervical spine may have been contributing to her headaches. (PageID 404). She was prescribed Percocet and discharged. (PageID 403).
Plaintiff's first follow-up with Dr. Africk was on July 30, 2008, and although Plaintiff's headaches appeared to have resolved, she was still in a neck collar. (PageID 463). In a second follow-up on September 4, 2008, Plaintiff's neck was doing well, however she was having problems with low back pain. (PageID 462). Dr. Africk reviewed Plaintiff's restrictions and directed Plaintiff not to lift "much more than 20..." (Id.) Plaintiff's final post-surgical follow-up with Dr. Africk was on September 15, 2008. (PageID 461). At that time, Plaintiff complained of increased neck pain following an attempt to lift one of her grandchildren. (Id.) Dr. Africk believed Plaintiff's incision was healing well and her x-rays looked good. (PageID 461, 466). On September 29, 2008, Dr. Africk drafted a letter explaining that because of her surgery, Plaintiff has "permanent restrictions" including an inability to push, pull, or lift much more than twenty-five pounds. (PageID 473).
In April 2010, Plaintiff began seeing John Boyle, M.D. as her primary care physician. (PageID 643-44). He immediately ordered a cervical MRI. (Id.) On July 26, 2010, Dr. Boyle recorded reduced range of motion in Plaintiff's neck and weakness in her upper extremities. (Id.) On September 29, 2010, Plaintiff complained to Dr. Boyle of increased anxiety for which he prescribed Xanax. (PageID 639). Plaintiff complained to Dr. Boyle on March 17, 2011 of increased back pain and ongoing neck pain. (PageID 633). He noted discomfort in Plaintiff's low back upon straight leg raising. (PageID 634). Plaintiff had similar complaints on June 26, 2011. (PageID 628-29). Plaintiff returned to Dr. Boyle on November 29, 2011, again complaining of chronic back/neck pain with a need to lie down frequently. (PageID 671-75).
The MRI was performed on April 20, 2010. (PageID 545). It did not capture the C2 through C5 levels of Plaintiff's spine, however, there was some evidence of possible small bulging or spurs at C2-3, C3-4, and C5-6. (Id.)
In November 2009, Plaintiff began seeing gastroenterologist Gregory Beck, M.D., secondary to problems with loose stool, abdominal cramping, and significant bloating. (PageID 607-08). Despite medications prescribed by Dr. Beck, these complaints continued into February and May of 2010. (PageID 605-06). On August 5, 2010, Plaintiff complained to Dr. Beck of "a lot of bloating and abdominal pain." (PageID 604). On March 15, 2011, Plaintiff reported abdominal discomfort and constipation. (PageID 602). An endoscope performed on March 21, 2011 indicated potential gastroparesis. (PageID 570-71). A gastric emptying scan was performed on April 1, 2011, with results consistent with delayed gastric emptying. (PageID 589). In her appointment following her scan, Plaintiff complained of chronic abdominal pain and bloating attributed to pancreatic insufficiency. (PageID 600-01). On August 16, 2011, Plaintiff was still experiencing intermittent abdominal pain and bloating. (PageID 650).
Gastroparesis, also called delayed gastric emptying, is a medical condition consisting of a paresis (partial paralysis) of the stomach, resulting in food remaining in the stomach for an abnormally long time.
Pancreatic insufficiency is the inability to properly digest food due to lack of digestive enzymes made by the pancreas.
At the direction of Dr. Boyle, Plaintiff consulted with a physical medicine specialist, Dr. Gilliotte, on August 16, 2010. (PageID 513-14). Plaintiff reported to Dr. Gilliotte that post neck surgery, she was still experiencing persistent headaches and neck pain. (PageID 513). She was also experiencing low back pain. (Id.) Dr. Gilliotte's examination noted that Plaintiff could not heel walk, had limited neck range of motion, had reduced strength in her upper extremities, and had tenderness in her low back. (PageID 514). Ultimately, Dr. Gilliotte opined that Plaintiff "has significant pain which has been quite limiting" and that she would have difficulty tolerating any work activity. (Id.)
Plaintiff consulted with pain specialist, Dr. Jacob, on October 1, 2010. (PageID 517-18). As with Dr. Gilliotte, Plaintiff described significant pain and related limitations to Dr. Jacob. (PageID 517). She also explained that she cannot turn her head to the side, she is unable to sit for greater than fifteen minutes, and "lying down feels better." (Id.) Dr. Jacob examined Plaintiff, recording trigger points in her upper extremities, reduced neck range of motion, and decreased leg raising. (PageID 517). Dr. Jacob recommended a pain rehabilitation program. (Id.)
Another lumbar MRI was performed on March 22, 2011. (PageID 511-12). It revealed degenerative changes throughout Plaintiff's lumbar spine including a bulge/protrusion at L3-4 with disc material approaching the L3 nerve root, disc bulge/protrusion at L4-5 with bilateral recess stenosis, a possible annular tear at L3-4, and a diffuse bulge at L5-S1 abutting the right L5 nerve root. (Id.) Following the MRI on April 22, 2011, Plaintiff returned to Dr. Africk to discuss surgical options for her low back. (PageID 596-97). Plaintiff graded her back pain as 10/10, explaining that she cannot sit or stand for long. (Id.) Dr. Africk's examination revealed decreased sensation in Plaintiff's left lower extremity. (Id.) Ultimately, Dr. Africk concluded that Plaintiff was a candidate for an L2-3 microlumbar hemilaminectomy/discectomy and scheduled that procedure for May 19, 2011. (Id.)
On April 28, 2011, Plaintiff underwent her pre-surgical evaluation with Dr. Africk's CNP. (PageID 590-95). Plaintiff explained to the CNP that although back pain had been a long-term problem for her, her symptoms had significantly increased since August 2010. (PageID 590). Plaintiff claimed that everything but lying down on a heating pad and taking Vicodin increased her pain and discomfort. (Id.) Plaintiff also complained of chronic neck pain and stiffness. (PageID 591). Upon examination, Plaintiff's neck range of motion was decreased and guarded. (PageID 594). The CNP ultimately found that although Plaintiff's cardiac condition and breathing problems posed additional risks, the surgery could proceed. (PageID 595).
The week before her lumbar surgery was scheduled to take place, Plaintiff underwent an echocardiogram which revealed a cardiac tumor in the right atrium of her heart. (PageID 598-99, 613-19). Plaintiff ultimately decided to delay her lumbar surgery in light of the tumor. (PageID 626).
On June 20, 2011, Plaintiff returned to Dr. Gilliotte. (PageID 626-27). Plaintiff informed him that her condition had worsened since their prior meeting and that her activities were significantly limited. (Id.) Dr. Gilliotte observed Plaintiff's gait to be stiff, tenderness in her spine, and limited range of motion in her lumbar region. (Id.) Secondary to complaints of sensory problems in her arms and legs, Dr. Gilliotte ordered EMG tests which were consistent with mild carpal tunnel syndrome. (PageID 680-83). Dr. Gilliotte referred Plaintiff back to Dr. Jacob. (PageID 684). On August 4, 2011, Dr. Jacob reviewed Plaintiff's imaging and recommended a rehabilitation program. (PageID 685).
On August 30, 2011, Plaintiff's back pain became so severe that she presented at the MVH emergency room. (PageID 652-62). The pain was radiating into her left leg. (Id.) She was discharged with a prescription for Percocet and instructions to contact her treating physicians. (PageID 662).
From July 2011 through the date of her hearing, Plaintiff received mental health treatment through Advanced Therapeutic Services ("ATS"). (PageID 686-691). Plaintiff was diagnosed with major depressive and bipolar disorders. (PageID 691). She was assigned a GAF score of 50. (Id.) Treatment notes from ATS reveal that Plaintiff cried easily and suffered from symptoms including decreased concentration, depression, mood swings, and anxiety. (PageID 686-89).
The Global Assessment of Functioning ("GAF") is a numeric scale (0 through 100) used by mental health clinicians and physicians to rate subjectively the social, occupational, and psychological functioning of adults, e.g., how well or adaptively one is meeting various problems-in-living. A score of 41-50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job, cannot work).
2. The Opinion Evidence
On May 13, 2009, Plaintiff was examined by a state agency consultant, Stephen W. Halmi, Psy.D. (PageID 474-81). No medical evidence regarding Plaintiff's mental health was available to Dr. Halmi at the time of his examination. (PageID 475). Plaintiff explained to Dr. Halmi that she was disabled as a result of her neck injury, which caused headaches and made completing household chores difficult. (PageID 475-77). She also explained that she had been psychiatrically hospitalized in the past and had a family history of mental illness. (PageID 476). Dr. Halmi's examination was largely negative, but he noted concentration deficits and that Plaintiff reported depression with a need for treatment and medication. (PageID 478-79). Ultimately, Dr. Halmi opined that although Plaintiff suffers from a depressive disorder, it only mildly affects her functioning. (PageID 479-81). Another agency consultant, Jennifer Swain, Psy.D., reviewed and affirmed Dr. Halmi's examination report on June 2, 2009. (PageID 483-95).
In November 2009, a third state agency psychological consultant, Catherine Flynn, Psy.D., affirmed Dr. Swain's assessment without much substantive comment. (PageID 505). Dr. Flynn reviewed no additional evidence.
William Bolz M.D., another state agency consultant, reviewed Plaintiff's file on June 6, 2009. (PageID 497-504). Dr. Bolz's review took place when only nine of the record's fifty-one pieces of medical evidence had been exhibited and predated Plaintiff's hearing by over two and a half years. (PageID 348-496). Dr. Bolz opined that Plaintiff was capable of performing a reduced range of light work. (PageID 497-504). His assessment was later affirmed by another consultant, but without the benefit of any additional evidence. (PageID 506).
Two of the nine exhibits Dr. Bolz reviewed consisted of the psychological opinions offered by Drs. Halmi and Swain. (PageID 474-95).
Following his consultation with and examination of Plaintiff on August 16, 2010, treating physician, Dr. Gilliotte, opined as follows:
Based on her history and physical findings, I do believe it would be very uncomfortable, if not frankly painful for her to do her own job. Likewise, I think she would have difficulty tolerating just about any job at this point in time.(PageID 514).
The ALJ referred Plaintiff for a second psychological evaluation, this time with consultant, Mary Ann Jones, Ph.D. (PageID 519-25). Dr. Jones reviewed Dr. Halmi's report. (PageID 519). Plaintiff reported to Dr. Jones that the primary reason she was not working was because of spine pain. (PageID 520). She also complained of anxiety and depression symptoms including irritability, panic attacks, mood swings, weekly crying episodes, and difficulty coping with stress. (PageID 521-22). When talking about her daily activities, Plaintiff explained that she spends most of her time watching television in bed, stating "I live in my bedroom." (PageID 523). Dr. Jones judged Plaintiff's daily functioning to be "semidependent." (Id.) During the examination, Dr. Jones observed that Plaintiff's body movements were slow and awkward while her eye contact was limited. (PageID 521-22). She described Plaintiff's presentation as "distracted." (PageID 522).
Following her examination, Dr. Jones diagnosed Plaintiff with dysthymic disorder, psychological factors affecting her physical condition, and a pain disorder. (PageID 524). She opined that Plaintiff is mildly to moderately limited in her ability to understand, remember, and carry out instructions. (Id.) Dr. Jones also opined that "[b]ecause of her depression and preoccupation with her medical limitations, it is likely that Ms. Hawthorne would have some problems responding appropriately to work pressures." (PageID 525). Dr. Jones also completed a functional assessment where she noted moderate limitations in Plaintiff's ability to interact appropriately with the public or supervisors, to respond appropriately to usual work situations, and to handle complex instructions. (PageID 527-28). She also explained: "Ms. Hawthorne is depressed and unmotivated. Her medical limitations and chronic pain impact every aspect of her life. She does very little and her medical problems exacerbate her depression and vice versa." (PageID 428).
Dysthymia is a mood disorder consisting of the same cognitive and physical problems as in depression, with less severe but longer lasting symptoms.
Following Plaintiff's return to Dr. Jacob in August 2011, he opined:
She will not be able to get back to work at this point and I think she may be permanently disabled from her job because of changes in her low back especially. She wouldn't be able to lift more than 5 pounds at a time. She should avoid frequent bending. She cannot do pushing or pulling more than 10 to 15 pounds. She also cannot lift anything above her shoulder level because of the neck problems she has.(PageID 685).
Dr. Gilliotte completed a physical capacities evaluation for Plaintiff on November 23, 2011. (PageID 692-94). In that evaluation, Dr. Gilliotte opined that Plaintiff lacked the functional capacity to sustain even sedentary work on a sustained basis. (PageID 694). Dr. Gilliotte did not believe Plaintiff has the residual functional capacity ("RFC") to stand, walk, or lift on a sustained basis as part of an eight hour workday. (PageID 692-93). Further, he opined that Plaintiff cannot sit more than two hours out of eight. (Id.)
"Residual functional capacity" is defined as the most a claimant can still do despite his or her limitations. 20 C.F.R. § 404.1545(a). "After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b) except the claimant should never climb ladders, ropes, and scaffolds. The claimant should avoid work in the presence of any exposure to hazardous conditions, including unprotected heights and dangerous moving machinery. The claimant should not operate commercial motor vehicles. The claimant can occasionally climb ramps and stairs. The claimant should no more than occasionally stoop, crouch, kneel, and crawl. The claimant is capable of frequent reaching in all directions, as well as frequent handling and fingering bilaterally. The claimant is limited to jobs which can be performed while using a handheld assistive device at all times while walking; the contralateral upper extremity can be used to lift and carry up to the exertional limits of light work. The claimant should work only in jobs that permit a sit/stand option, which means the claimant would be allowed to sit or stand alternatively at will, provided that this person is not off-task for more than 10% of the work period. The claimant should not perform work requiring repetitive extension, rotation or flexion of the neck." (PageID 54-55).
Dr. Boyle completed an evaluation on November 29, 2011. (PageID 676-78). Like Dr. Gilliotte, Dr. Boyle opined that Plaintiff lacked the functional capacity to sustain even sedentary work on a sustained basis. (PageID 678). More specifically, he opined that Plaintiff's combined sitting and standing tolerance was no more than six hours out of eight and that she was unable to lift even ten pounds on a sustained basis. (PageID 676-77).
Dr. Jacob also completed a physical capacities evaluation for Plaintiff. (PageID 695-97). Dr. Jacob joined Drs. Boyle and Gilliotte in opining that Plaintiff cannot meet the demands of light or sedentary work on a sustained basis. (PageID 697). Dr. Jacob also opined that Plaintiff's combined sitting and standing tolerance would fall between five and eight hours and that she cannot lift ten pounds as a part of an eight hour workday. (PageID 695-96). Dr Jacob explained that Plaintiff "cannot turn her head sideways" and that "any prolonged standing or walking will increase her pain..." (PageID 697).
3. The ALJ's Decision
The ALJ found that Plaintiff had not engaged in substantial, gainful activity since her alleged onset date. (PageID 52). She opined that Plaintiff suffers from the severe impairments of degenerative changes of the lumbar spine, degenerative changes of the cervical spine, status post discectomy and fusion in May 2008, and a myofascial pain syndrome. (PageID 52-53). However, the ALJ concluded that Plaintiff's carpal tunnel syndrome, pancreatic insufficiency, cardiac condition, hearing loss, pulmonary disease, and mental impairments all fail to qualify as "severe." (Id.)
Myofascial pain syndrome is a chronic pain disorder where pressure on sensitive points in your muscles (trigger points) causes pain in seemingly unrelated parts of your body.
The ALJ found that Plaintiff has an RFC for a reduced range of light work. In crafting this RFC, the ALJ relied heavily upon a function report completed by Plaintiff at the request of Social Security in March 2009. (PageID 56). She also strongly favored the opinions of the state agency's one-time consultants over those from Plaintiff's treating sources. (PageID 56-57). The only treating source opinion the ALJ credits is a singular observation from Dr. Africk that Plaintiff's neck surgery would permanently preclude her from lifting twenty-five pounds, and the only agency opinion she disfavors is Dr. Jones. (PageID 57). The ALJ concluded that Plaintiff is incapable of returning to her past relevant work. (PageID 57-58). However, the ALJ determined that there are other occupations (requiring light exertion) which Plaintiff is capable of performing. (PageID 58-59). As a result, the ALJ found that Plaintiff was not disabled under the Social Security Act from April 29, 2008 through the date of her decision. (PageID 59). Had the ALJ found Plaintiff incapable of performing sustained light exertion work, Plaintiff would have been disabled under the Commissioner's medical vocational guidelines. 20 C.F.R. Part 404, Subpart P, Appendix 2.
A claimant will "grid out" as disabled effective at age 50 if her RFC is limited to sedentary work. 20 C.F.R. pt. 404, subpt. P, app. 2, § 201.00(g).
B.
First, Plaintiff claims that the ALJ erred in failing to properly weigh the opinions of her treating physicians. As the Sixth Circuit held:
If the ALJ does not accord controlling weight to the treating physician, the ALJ must still determine how much weight is appropriate by considering a number of factors, including the length of the treatment relationship and the frequency of the examination, the nature and extent of the treatment relationship, supportability of the opinion, consistency of the opinion with the record as a whole, and any specialization of the treating physician.Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009). Opinions from treating sources must be given controlling weight if they are well supported by clinical diagnostic techniques and if they are not inconsistent with other substantial evidence in the case record. 20 C.F.R. § 404.1527(c)(2).
Plaintiff's treating physicians, Drs. Boyle, Gilliotte, and Jacob, all opined, at least once, that Plaintiff's functional capacity rests below that required for sustained, competitive work activity. (PageID 514, 685, 676-78, 692-97). The ALJ assigned little weight to each opinion and subsequently failed to incorporate the limitations in the assigned RFC. (PageID 57). In rejecting the treating physicians, the ALJ claims that the physicians relied upon Plaintiff's subjective allegations and upon a generalized characterization of the opinions as not supported by "the medical evidence as a whole." (Id.) However, these reasons do not provide an adequate or reasonable foundation for the ALJ's rejection of the treating source evidence.
The Court notes that it has never reviewed a record where three treating physicians all opined that the plaintiff was unable to sustain competitive work activity. Even without the additional supporting evidence, that fact alone is compelling.
"[S]ymptoms such as pain, are subjective and difficult to quantify." 20 C.F.R. §404.1529(c)(3). As a result, the Commissioner's regulations direct that a claimant's longitudinal complaints to her physicians and those physicians' assessments are the evidence relevant to determining pain levels and related limitations once an underlying pathology is established. Id. The record indisputably establishes that there are objectively documented pathologies which could give rise to significant pain: both Plaintiff's lumbar and cervical spine are degenerating and she has undergone a cervical spinal fusion with the implantation of hardware. (PageID 361-63, 435-37, 511-12, 545). As a result, the ALJ was required to evaluate the intensity and limiting effects of Plaintiff's pain using evidence including the opinions of her treating physicians. 20 C.F.R. §404.1529(a); 20 C.F.R. §404.1527(a)(2). The ALJ cannot simply reject those opinions because of the subjective nature of pain.
The ALJ is also incorrect in asserting that the opinions of the three treating physicians are not "supported by the medical evidence as a whole," citing no evidence to support this position. (PageID 57). The opinions are largely consistent with one another. (PageID 514, 676-78, 685, 692-97). Further, they are consistent with Plaintiff's allegations and her testimony at the administrative hearing. (PageID 90-101). The opinions are also consistent with Plaintiff's longitudinal complaints of significant spinal pain as well as the objective testing results which confirm the existence of degenerative discs throughout Plaintiff's spine. (PageID 511-18, 545, 590-97, 626-44, 652-62, 67175). Finally, the opinions are consistent with Plaintiff's course of treatment, which involved a cervical fusion with the implantation of hardware and indication that further spinal surgery is necessary. (PageID 435-37, 596-97).
The ALJ also alleges specific criticisms against certain treating opinions. (PageID 57). For instance, the ALJ rejects Dr. Gilliotte's opinion because "he only saw the claimant twice in the year prior to completing his opinion." (Id.) However, the ALJ accepts the opinion of an agency consultant, Dr. Bolz, a physician who never treated, examined, or even saw Plaintiff before rendering his opinion. (Id.) Gayheart v. Comm'r, 710 F.3d 365, 374 (6th Cir. 2013) ("[T]he regulations do not allow the application of greater scrutiny to a treating-source opinion as a means to justify giving such an opinion little weight. Indeed, they call for just the opposite.").
Similarly, the ALJ purports to reject Dr. Jacob's opinion that Plaintiff's cervical spine pathology limits her functioning by asserting that "other providers have not noted any neck problems." (PageID 57). However, Plaintiff underwent fusion surgery in 2008 where a titanium plate was grafted into her neck. (PageID 435-37). Since that surgery, Plaintiff has consistently complained of neck pain and/or symptoms to medical professionals. (PageID 461, 475-77, 513, 517, 520, 591, 628-29, 633, 671-75). Subsequent imaging reveals that a degenerative process persisted beyond Plaintiff's surgery. (PageID 545). Reduced range of motion in Plaintiff's neck was recorded by multiple physicians well after her surgery. (PageID 514, 643-44, 517, 594). In fact, the ALJ accepts that Plaintiff has neck problems which cause limitations, as do the physicians she purports to credit: Dr. Bolz and Africk. (PageID 52).
In sum, the ALJ provided no specific, supported, or reasonable justifications for rejecting the opinions of three separate treating sources. Accordingly, the ALJ's non-disability finding is not supported by substantial evidence.
C.
Next, Plaintiff maintains that the ALJ erred in selectively relying upon the opinions of various state agency consultants without sufficient justification.
The ALJ relies on the opinion of one-time state agency record reviewing consultant, Dr. Bolz. (PageID 57). The ALJ recounts that Dr. Bolz is "highly qualified' under the Commissioner's regulations and also asserts that Dr. Bolz's opinion "was rendered after a thorough review of the record, and is consistent with the record as a whole." (Id.) However, this reliance is entirely unreasonable in multiple respects. For example, Dr. Bolz's report was not rendered "after a thorough review of the record" because his report was issued when only nine of the record's fifty-one pieces of medical evidence had been exhibited. (PageID 348-496). It is also important to note that Dr. Bolz's report predated Plaintiff's hearing by over two and a half years. (PageID 79). Additionally, Dr. Bolz's opinion is not "consistent with the record as a whole." (PageID 57). Rather, it is contrary to Plaintiff's longitudinal allegations and the opinions of the three treating sources. Despite her generalized assertion of support, the ALJ cites no specific medical evidence which supports Dr. Bolz's opinion. (PageID 57). Accordingly, the ALJ's deference to Dr. Bolz's opinion is unreasonable, and his opinion cannot stand alone as substantial evidence to support the ALJ's conclusions. See, e.g., Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000) ("ALJ must consider all the record evidence and cannot 'pick and choose' only the evidence that supports his position.").
As for Plaintiff's mental limitations, the ALJ grants "significant weight" to the opinions of state agency examiner, Dr. Halmi, and reviewer, Dr. Swain. (PageID 56-57). The ALJ found that these opinions were both "consistent with the record as a whole," without actually identifying any specific consistent evidence. (Id.) In fact, it would be impossible to identify such evidence, because the only mental health record in evidence when these opinions were issued was Dr. Halmi's report itself. (PageID 747-81). All subsequent evidence, including the report of Dr. Jones, Plaintiff's testimony, and her mental health treatment records, undermines the assessments of these early consultants. (PageID 85-88, 97-98, 519-25, 686-91).
By contrast, the ALJ denies granting significant weight to the opinion of an agency examiner, Dr. Jones, explaining that the social limitation in her opinion "is not supported by objective evidence," and that Dr. Jones "apparently relied quite heavily on the subjective report provided by the claimant." (PageID 57). However, psychiatric impairments are not readily amenable to objective laboratory testing and, as a result, clinical data may consist of the observations and diagnoses of trained mental health professionals like Dr. Jones. Blankeship v. Bowen, 874 F.2d 1116, 1124 (6th Cir. 1989) (internal citations omitted). Dr. Jones made several observations to support her findings such as slow and awkward body motions, limited eye contact, and a distracted presentation. (PageID 521-22). She also diagnosed Plaintiff with dysthymic disorder, psychological factors affecting her physical condition, and a pain disorder. (PageID 524).
There are numerous factors which would cause Dr. Jones' opinion to be favored over Dr. Halmi's per the regulations. For instance, Dr. Jones reviewed Dr. Halmi's report prior to offering her opinions, while Dr. Halmi did not review any mental health evidence. (PageID 519). Dr. Jones's opinion is also more consistent with both Plaintiff's ATS treatment notes and her hearing testimony. (PageID 85-88, 97-98, 686-91). Further, Dr. Jones specifically commented upon the interplay between Plaintiff's mental condition and her pain, while Dr. Halmi did not. (PageID 428). In fact, Plaintiff specifically objected to Dr. Halmi's report, and the ALJ apparently saw enough merit in that challenge to warrant scheduling the examination with Dr. Jones. (PageID 328). Finally, Dr. Halmi examined Plaintiff over two and a half years before Plaintiff's administrative hearing, while Dr. Jones's report was prepared just three months before the hearing.
In sum, the ALJ failed to incorporate mental health limitations in the assigned RFC. Accordingly, the ALJ erred in relying on the state agency consultants without sufficient justification.
D.
Next, Plaintiff argues that the ALJ's reliance upon a singular function report she completed in 2009 is unreasonable.
The ALJ determined that Plaintiff's allegations are not supported by objective medical evidence, in part because Plaintiff "did not allege walking, standing, sitting, handling, reaching, or hearing limitations in her prehearing function report." (PageID 56). However, the evidence the ALJ cites is simply a single page in a four year old function report, where the Plaintiff failed to circle anything but "Lifting" in response to a multiple-choice question about what her impairments affect. (PageID 297). It was unreasonable for the ALJ to inflate Plaintiff's failure to circle words on this form as some kind of concession of non-disability.
Plaintiff also completed two other disability reports in March of 2009. In one, she explained that she "continue[s] to have neck pain from the metal rod and screws in [her neck]... [She] [f]eel[s] very depressed..." (PageID. 234). In the other, she indicated "after surgery, still have neck pain and occasional headaches, feel useless and always tired." (PageID 303). Similarly, in a letter to Social Security dated March 10, 2010, Plaintiff outlined that she is "a mess" and spends most of her day in bed secondary to ongoing neck pain and headaches. (PageID 314). Plaintiff's testimony, her records, and her doctors' opinions, contradict a finding that her only limitations involve lifting.
The record expressly reflects a worsening of Plaintiff's symptoms since 2009. Since that time, Plaintiff's low back problems escalated to the point that she was actually scheduled for lumbar surgery. (PageID 513, 517, 596-97, 633, 671-75). Accordingly, the ALJ's reliance upon un-circled words in Exhibit 4E to undermine Plaintiff's claim for benefits is entirely unreasonable.
E.
Plaintiff maintains that the ALJ's characterization of and reliance upon a 2009 letter from her spinal surgeon is illogical and unsupported.
In weighing the record opinion evidence, the ALJ determined:
I afford the opinion of Cyntia Africk, M.D., claimant's surgeon, significant weight (Exhibit 7F). The lifting restriction of twenty-five pounds is consistent with the medical evidence as a whole. As previously discussed, objective medical evidence does not support finding a worsening in the claimant's condition, so this opinion is the most persuasive as to claimant's physical limitations.(PageID 57).
The problem with the ALJ's reasoning, however, is that Dr. Africk was opining only to the permanent restrictions associated with Plaintiff's neck surgery, not her overall capabilities. (PageID 473). To quote the opinion upon which the ALJ relies:
Robin Hawthorne is a patient of mine who had a herniated disc at C4-5 related to a car accident. This required fusion of C4-5. The surgery was done July 21, 2008. Because of this surgery she has permanent restrictions. She should not lift, push or pull much more than twenty-five pounds on a permanent basis. This would prevent her from going back to work as a LPN, as it does require heavy lifting.(PageID 473).
Dr. Africk's lifting limitation was not meant to accommodate Plaintiff's lumbar degeneration, an impairment Dr. Africk did not begin treating until 2011. (PageID 596- 97). Further, Dr. Africk's letter does not comment on sitting or standing limitations. (PageID 473). As a result, Dr. Africk's 2008 letter does not reasonably support Dr. Bolz's assessment, nor is it inconsistent with the opinions of Drs. Gilliotte, Jacobs, and Boyle. It is also important to note that the letter was prepared just over two months after Plaintiff's neck surgery. (PageID 441-442). At that time, despite some ongoing complaints of discomfort, Dr. Africk seemed to believe that Plaintiff's neck pain and headaches would resolve because her x-rays and incision looked good. (PageID 461). As a result, her letter reasonably reflected what Plaintiff would be "permanently" unable to do even presuming a complete, ideal recovery. (PageID 473). However, subsequent records reveal that Plainiff's neck pain persisted and her cervical spine actually continued to degenerate in the years following her surgery. (PageID 513, 517, 545, 633, 671-75).
Accordingly, the ALJ's reliance upon Dr. Africk's 2009 letter is unsupported by the record.
F.
Finally, Plaintiff maintains that the ALJ erred in finding her not to be credible.
While an ALJ's credibility determinations are typically accorded deference, they must still be supported by substantial evidence. Cruse v. Comm'r, 502 F.3d 532, 542 (6th Cir. 2007). Here, the ALJ makes an adverse credibility finding asserting that "much of the claimant's testimony was inconsistent with the medical evidence of record." (PageID 55). However, the inconsistencies the ALJ cites fail to support her premise that Plaintiff is not credible. For instance, the ALJ recounts:
[T]he claimant testified her blood pressure was not controlled, and she testified that when she recently saw her doctor, it was high. However, the treatment note from Dr. Boyle, her primary care doctor, from exactly two weeks prior to [the] hearing, noted the claimant's blood pressure has been acceptable (Exhibit 45F, at 1-2).(PageID 55). In this treatment note, however, Plaintiff's blood pressure was high: measuring in at 130/92. (PageID 672). This elevated blood pressure reading is consistent with a number of others in the record. (PageID 348, 350-51, 376, 378-79, 407, 439, 538-40, 582, 629). Accordingly, Plaintiff's statements were wholly consistent with this evidence.
Normal blood pressure in adults is less than 120/80. The Merck Manual of Diagnosis and Therapy, Sec. 7, Chap. 71 (18th ed. 2006).
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Similar error rests in the ALJ's second purported inconsistency:
The claimant testified that she had limited range of motion in her neck, however in August 2011, a physical exam report notes that the claimant had normal range of motion of the neck with no tenderness (Exhibit 43F).(PageID 55). However, the "physical exam report" is simply a form notation included in an emergency room record where Plaintiff was complaining of severe low back pain. (PageID 652-62). Considering the nature of the emergency room contact which generated this record, it is unlikely that Plaintiff's neck was ever genuinely examined. (Id.) Further, this emergency room notation is contrary to records from numerous other medical professionals who recorded a reduced range of motion in Plaintiff's neck well after her surgery. (PageID 514, 643-44, 517, 594).
The final example the ALJ gives in support of her adverse credibility finding reads:
The claimant testified that she has "stomach issues" to include bouts of diarrhea despite treatment. However, she reported to her gastroenterology doctor that she stopped having diarrhea in August 2011 (Exhibit 42F).(PageID 55-56). The record establishes that the occurrence, severity, and character of Plaintiff's abdominal problems fluctuated over time. When Plaintiff first began seeing Dr. Beck in November 2009, she was experiencing loose stools on a daily basis. (PageID 607). This problem improved in early 2010, but by August of that year, Plaintiff began to have problems with constipation. (PageID 604-06). By March of 2011, Plaintiff's diarrhea appeared to be completely resolved, but her constipation continued to worsen. (PageID 602-03). On May 16, 2011, Plaintiff was "not having much diarrhea" and Dr. Beck adjusted her medications. (PageID 600).
In light of this history, the fact that Plaintiff did not have diarrhea on August 16, 2011 does not reasonably support the ALJ's proposition that Plaintiff was being dishonest in testifying about struggles with diarrhea. (PageID 88-89, 99-100, 650). Specifically, Plaintiff testified to "bouts" of diarrhea and explained that her recent diarrhea may have been due to stress related to her hearing. (PageID 88-89, 100).
Accordingly, the ALJ failed to identify a single piece of medical evidence which was genuinely and substantively inconsistent with Plaintiff's allegations of disability. Moreover, the record evidence reflects consistent complaints of disabling spinal pain over the course of nearly four years. Accordingly, the ALJ's adverse credibility finding is without support.
III.
When, as here, the non-disability determination is not supported by substantial evidence, the Court must decide whether to reverse and remand the matter for rehearing or to reverse and order benefits granted. The Court has authority to affirm, modify or reverse the Commissioner's decision "with or without remanding the cause for rehearing." 42 U.S.C. § 405(g); Melkonyan v. Sullivan, 501 U.S. 89, 100 (1991).
Generally, benefits may be awarded immediately "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); see also Abbott v. Sullivan, 905 F.2d 918, 927 (6th Cir. 1990); Varley v. Sec'y of Health & Human Servs., 820 F.2d 777, 782 (6th Cir. 1987).
The Court may award benefits where the proof of disability is strong and opposing evidence is lacking in substance, so that remand would merely involve the presentation of cumulative evidence, or where the proof of disability is overwhelming. Faucher, 17 F.3d at 176; see also Felisky, 35 F.3d at 1041; Mowery v. Heckler, 772 F.2d 966, 973 (6th Cir. 1985). Such is the case here.
Here proof of disability is overwhelming and remand will serve no purpose other than delay. As fully recited here, in view of the extensive medical record evidencing disability, and the credible and controlling findings of treating physicians Boyle, Gilliotte, and Jacob, proof of disability is overwhelming.
IT IS THEREFORE ORDERED THAT:
The decision of the Commissioner, that Robin Hawthorne was not entitled to disability insurance benefits beginning April 20, 2008, is NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, and it is REVERSED; and this matter is REMANDED to the Commissioner for an immediate award of benefits.
The Clerk shall enter judgment accordingly, and this case shall be CLOSED.
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Timothy S. Black
United States District Judge