Opinion
Case Number 01-10005-BC.
July 14, 2004
The plaintiff filed the present action on January 4, 2001 seeking review of the Commissioner's decision denying the plaintiff's claim for a period of disability, disability insurance benefits, and supplemental security income benefits under Titles II and XVI of the Social Security Act. The case was referred to United States Magistrate Judge Charles E. Binder pursuant to 28 U.S.C. § 636(b)(1)(B) and E.D. Mich. LR 72.1(b)(3). Thereafter, the plaintiff filed a motion for summary judgment seeking reversal of the decision of the Commissioner and an award of benefits. The defendant filed a motion for summary judgment requesting affirmance of the decision of the Commissioner.
Magistrate Judge Binder filed a Report and Recommendation on July 23, 2001 recommending that the plaintiff's motion for summary judgment be denied, the defendant's motion for summary judgment be granted, and the findings of the Commissioner be affirmed. The plaintiff filed timely objections to the recommendation and this matter is now before the Court.
The Court has reviewed the file, the report and recommendation, and the plaintiff's objections, and has made a de novo review of the administrative record in light of the parties' submissions. The plaintiff's objections challenge the magistrate judge's conclusion that substantial evidence supports the decision of the Administrative Law Judge (ALJ) that the plaintiff is not disabled because he retains the capacity to perform some work. The plaintiff argues that the magistrate judge failed to mention that the treatment records and office notes of various physicians confirmed the plaintiff's diagnosis of chronic fatigue syndrome (CFS) and its attendant symptoms of weakness, fatigue, and dizziness. Specifically, the plaintiff contends that the magistrate judge failed to discuss the report of one of his treating physicians, Dr. Carol van der Harst, who stated that the plaintiff required complete freedom to rest frequently without restriction and was unable to perform activities involving attention, concentration, memory or reliability at least 50 percent of the working day. The plaintiff also contends that the magistrate judge failed to mention that the plaintiff was tested for Epstein Barr Virus and failed to properly assess the plaintiff's psychological impairments. Finally, the plaintiff argues that the hypothetical question posed to the vocational expert by the ALJ failed to accurately describe the plaintiff and his abilities and limitations because it failed to account for the plaintiff's inability to sustain work for a continuous eight-hour period with the usual work breaks.
The plaintiff, who is now forty-three years old, first applied for a period of disability and disability insurance benefits on May 29, 1997, when he was thirty-six years old. The plaintiff worked at a variety of jobs as an auto parts installer, carpet salesman, laborer and assembly worker, crew leader in the valve department of a sprinkler manufacturer, area supervisor at a Target department store, dry wall finisher, customer service manager at a toy store, and a mathematics tutor at Delta College. He completed high school and two years of college, earning an associate's degree. He last worked on February 1, 1997. The plaintiff states in his application for disability insurance benefits that he became unable to work on that date. He explained that he began to develop generalized muscle pain, joint stiffness, dizziness, and increased weakness in October 1996 that grew progressively worse to the point that as of mid-1998 he could stand only one hour and sit for only three hours, and he had to rest frequently throughout the day.
In his application for disability insurance benefits, the plaintiff alleged that he was unable to work as a result of chronic fatigue and affective disorders. His claim was initially denied, and the denial was upheld on reconsideration. On November 16, 1998, the plaintiff appeared before ALJ William Musseman when he was thirty-eight years old. ALJ Musseman filed a decision on February 25, 1999 in which he found that the plaintiff was not disabled. The ALJ reached that conclusion by applying the five-step sequential analysis prescribed by the Secretary in 20 C.F.R. §§ 404.1520, 416.920. The ALJ concluded that the plaintiff had not engaged in substantial gainful activity since February 1, 1997 (step one); the medical evidence in the plaintiff's case established that he has "severe" CFS and affective disorder (step two); this impairment did not, by itself or in combination, meet or equal a listing in the regulations (step three); and the plaintiff could not perform his previous work as a laborer, clerk, auto parts handler, drywall worker, assembler, and retail supervisor, which the ALJ characterized as unskilled and ranging from heavy to light exertion (step four).
In applying the fifth step, the ALJ concluded that the plaintiff retained the functional capacity to perform a limited range of light exertional jobs requiring the ability to lift from two to twenty pounds. The ALJ found that the plaintiff's limitations included the need for an alternating, at will, sit-or-stand option; no temperature extremes; only occasional dealings with the general public; and no complex tasks. Relying on the testimony of a vocational expert, the ALJ found that such jobs as inspector, assembler, and general office clerk fit within those limitations, and that these jobs existed in significant numbers in the local and regional economies. Following the decision by the ALJ, the plaintiff appealed to the Appeals Council, which denied the plaintiff's request for review on January 4, 2001.
At the administrative hearing, the ALJ posed two slightly different hypothetical questions to the vocational expert. The first one described the limitations noted above and elicited an answer that the plaintiff could perform the light-duty jobs catalogued by the ALJ in his decision. See tr. at 23. The second question included the limitation that the plaintiff suffered "an inability to sustain on task activity longer than 15 to 20 minutes at a time." Tr. at 55. The vocational expert stated that no jobs were available to accommodate that limitation. The plaintiff here contends that the second hypothetical more accurately describes his documented medical condition — specifically his CFS — and that the ALJ's decision otherwise is not supported by substantial evidence.
All parties agree with the magistrate judge that the plaintiff has the burden of proving disability in order to qualify for social security disability and supplemental security income benefits, and that "disability" is defined as the "inability to engage in any substantial gainful activity" due to a "physical or mental impairment" that could cause death or might reasonably be expected to last continuously for at least twelve months. See 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Of course, a person is not disabled merely because his or her limitation prevents the person from performing previous work, if that person can perform other "substantial gainful work which exists in the national economy." 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). The parties also accept the rule that the authority of this Court to review administrative decisions of the Commissioner is limited to deciding whether the proper legal standards were used and "whether there is substantial evidence in the record to support the findings." Wright v. Massanari, 321 F.3d 611, 614 (6th Cir. 2003) (quoting Duncan v. Sec'y of Health Human Servs., 801 F.2d 847, 851 (6th Cir. 1986)). The plaintiff takes issue with the application of this rule, however, arguing that the magistrate judge and the ALJ culled from the record only that evidence which favored a determination of no disability, violating the familiar instruction that a decision can not be based on a single piece of evidence in disregard of other pertinent evidence that exists in the record, see Hephner v. Matthews, 574 F.2d 359, 362 (6th Cir. 1978), and that "the substantiality of evidence must take into account whatever in the record fairly detracts from its weight." Garner v. Heckler, 745 F.2d 383, 388 (6th Cir. 1984).
In this case, the plaintiff treated with several different physicians in an effort to root out the cause of his overwhelming fatigue. He first complained to his family physician Daniel T. Webb, D.O.; he was referred to neurologist Gregory J. Dardas, M.D.; he saw sleep specialist and neurologist John M. Buday, M.D.; he was examined by cardiologist Edward Conley, D.O.; he treated with family practitioners David Brown, D.O., F.C. Stevens, D.O., and G.O. Arcay, M.D.; he was tested at the request of rheumatologist Penput Tangsintanopas, M.D.; and he was treated and diagnosed by physiatrist Carol van der Harst, M.D. The cause of the plaintiff's symptoms were somewhat elusive, but after a series of medical tests the plaintiff was diagnosed with chronic fatigue syndrom by Drs. Webb, Dardus, and Connolly, as noted by psychologist Robert Plummer, Ph.D., who examined the plaintiff at the request of the disability Determination Program. See tr. at 265.
Dr. van der Harst also diagnosed CFS, although she acknowledged that the plaintiff was one or two symptoms short of the "working case definition" for the disease published by the Center for Disease Control, which also noted that "all of [the symptoms] need not be present to fulfill the diagnosis or definition." Tr. at 295-97. She completed several questionnaires on July 13, 1998 relating to the plaintiff's functional limitations. She noted that the plaintiff's CFS symptomatology of pain, fatigue and irritability had existed for fourteen months, he was treated with Elavil but suffered side effects, he was unable to perform activities involving concentration or reliability at least fifty percent of the working day because of his incapacitating pain and fatigue, and his CFS was a medically determinable impairment that reasonably could be expected to produce disabling fatigue. Tr. at 289-97. She also opined that the plaintiff's endurance over a work day consisted of two hours, and that he had to lie down or rest for substantial periods of time during the day to obtain relief from pain and fatigue. Tr. at 291.
If the ALJ had accepted Dr. van der Harst's opinion, he would have had to find the plaintiff disabled since the vocational expert was not able to identify any jobs that the plaintiff could perform that fit within those limitations. The ALJ rejected Dr. van der Harst's opinion however as unreliable. The ALJ initially noted that Dr. van der Harst first examined the plaintiff on May 7, 1998. He then observed:
Approximately six days after her examination, Dr. van der Harst filled out a medical assessment of ability to do work-related activities (Exhibit 7F). The undersigned finds that this report is not objectively valid as the claimant had not had any of the Cybex testing recommended to show his response to pre and post exercise challenge, response to treatment and the observations symptomatology when Dr. van der Harst particularly stated that his symptomatology would be expected to produce a significant and disabling degree of fatigue. While other objective testing had been negative other than for an occasional intermittent hypoglycemic episode, Dr. van der Harst's finding of chronic fatigue syndrome debilitating the claimant was not given any weight by the undersigned as it was in contradiction to her diagnosis of May 7, along with her examination that showed no significant deficits that would exclude the claimant from performing basic work activities ( 20 CFR 404.1527(d) (2a) and 20 CFR 416.927(d)(2)).
Tr. at 20.
Dr. van der Harst is a treating physician. The well-established general rule is that a treating physician's opinion should be given greater weight than those opinions of consultative physicians who are hired for the purpose of litigation and who examine the claimant only once. See Farris v. Sec'y of Health Human Servs., 773 F.2d 85, 90 (6th Cir. 1985). Moreover, if a treating physician's opinion is not contradicted, complete deference must be given to it. Walker v. Sec'y of Health Human Servs., 980 F.2d 1066, 1070 (6th Cir. 1992); King v. Heckler, 742 F.2d 968, 973 (6th Cir. 1984). See also Hardaway v. Sec'y of Health Human Servs., 823 F.2d 922, 927 (6th Cir. 1987) ("The expert opinions of a treating physician as to the existence of a disability are binding on the fact-finder unless contradicted by substantial evidence to the contrary."); Laskowski, 100 F. Supp. 2d at 484.
The Rule promulgated by the Secretary states that "more weight [will be given] to opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or reports of individual examinations, such as consultative examinations or brief hospitalizations." 20 C.F.R. § 404.1527(d)(2). The Sixth Circuit has consistently applied this rule. See Jones v. Sec.'y of Health Human Servs., 945 F.2d 1365, 1370 n. 7 (6th Cir. 1991); Farris 773 F.2d at 90. If a treating physician's opinion is not contradicted, complete deference must be given to it. Walker v. Sec'y of Health Human Servs., 980 F.2d 1066, 1070 (6th Cir. 1992); King, 742 F.2d at 973. However, a treating physician's opinion may be rejected if there is good reason to do so. Hall v. Bowen, 837 F.2d 272, 276 (6th Cir. 1988). Where a treating physician renders an opinion using legal language as opposed to medical terminology, the Court may likewise reject it if it is not supported by clinical evidence in the record. See Casey v. Sec'y of Health Human Servs., 987 F.2d 1230, 1234-35 (6th Cir. 1993).
The Court finds that the ALJ's reasons for rejecting the opinion of Dr. van der Harst are not supported by the record. The ALJ appears to have been under the mistaken belief that the opinion was rendered within a few days of Dr. van der Harst's initial examination and prior to any testing. However, the record plainly shows that the opinion was rendered in July after the plaintiff had been treating with the doctor for more than two months and after he had completed a trial of physical therapy during which Cybex testing was performed. The physical therapy resulted in improved strength and endurance, but also caused the plaintiff to be "very wiped out after testing at the completion of therapy and preferred to rest the remainder of the day." Tr. at 288. The July 1998 opinion did not conflict with the May 7, 1998 diagnosis in any respect, and the disabling symptom that excluded the plaintiff from performing basic work was the fatigue itself. The basis on which the ALJ rejected Dr. van der Harst's opinion was a misreading of the record, or a misinterpretation or misrepresentation of it.
Fibromyalgia and CFS have been said to constitute a diagnosis by exclusion, see Preston v. Sec'y of Health Human Servs, 854 F.2d 815, 817-18 (6th Cir. 1988) ("As set forth in the two medical journal articles . . . fibrositis causes severe musculoskeletal pain which is accompanied by stiffness and fatigue due to sleep disturbances. . . . [I]t is a process of diagnosis by exclusion and testing of certain `focal tender points' on the body for acute tenderness which is characteristic in fibrositis patients."). However, the Secretary has noted that CFS and fibromyalgia are medically determinable and that the presence of certain symptoms, including the presence of focal trigger points, may be sufficient to establish the diagnosis. See Social Security Ruling (SSR) 99-2p ("CFS is a systemic disorder consisting of a complex of symptoms that may vary in incidence, duration, and severity. The current case criteria for CFS, developed by an international group convened by the Centers for Disease Control and Prevention (CDC) as an identification tool and research definition, include a requirement for four or more of a specified list of symptoms. These constitute a patient's complaints as reported to a provider of treatment. However . . . [d]isability may not be established on the basis of an individual's statement of symptoms alone."). According to SSR 99-2p, the manifestations of CFS are:
[T]he presence of clinically evaluated, persistent or relapsing chronic fatigue that is of new or definite onset (i.e., has not been lifelong), cannot be explained by another physical or mental disorder, is not the result of ongoing exertion, is not substantially alleviated by rest, and results in substantial reduction in previous levels of occupational, educational, social, or personal activities. Additionally, the current CDC definition of CFS requires the concurrence of 4 or more of the following symptoms, all of which must have persisted or recurred during 6 or more consecutive months of illness and must not have pre-dated the fatigue:
Self-reported impairment in short-term memory or concentration severe enough to cause substantial reduction in previous levels of occupational, educational, social, or personal activities;
Sore throat;
Tender cervical or axillary lymph nodes;
Muscle pain;
Multi-joint pain without joint swelling or redness;
Headaches of a new type, pattern, or severity;
Unrefreshing sleep; and Postexertional malaise lasting more than 24 hours.
Within these parameters, an individual with CFS can also exhibit a wide range of other manifestations, such as muscle weakness, swollen underarm (axillary) glands, sleep disturbances, visual difficulties (trouble focusing or severe photosensitivity), orthostatic intolerance (e.g., lightheadedness or increased fatigue with prolonged standing), other neurocognitive problems (e.g., difficulty comprehending and processing information), fainting, dizziness, and mental problems (e.g., depression, irritability, anxiety).
The Ruling also addresses the requirement of Sections 223(d)(3) and 1613(a)(3)(D) of the Social Security Act and 20 C.F.R. §§ 404.1508, 416.908, that evidence of an impairment must include objective clinical or laboratory manifestations.
For purposes of Social Security disability evaluation, one or more of the following medical signs clinically documented over a period of at least 6 consecutive months establishes the existence of a medically determinable impairment for individuals with CFS:
Palpably swollen or tender lymph nodes on physical examination;
Nonexudative pharyngitis;
Persistent, reproducible muscle tenderness on repeated examinations, including the presence of positive tender points; or,
Any other medical signs that are consistent with medically accepted clinical practice and are consistent with the other evidence in the case record.
SSR 99-2p (footnote omitted). The Ruling also recognizes that at the present time, there are no laboratory findings that are accepted as confirmatory of CFS. However, the following findings will be sufficient, although not required, to establish a medically determinable impairment under the Act:
An elevated antibody titer to Epstein-Barr virus (EBV) capsid antigen equal to or greater than 1:5120, or early antigen equal to or greater than 1:640;
An abnormal magnetic resonance imaging (MRI) brain scan;
Neurally mediated hypotension as shown by tilt table testing or another clinically accepted form of testing; or,
Any other laboratory findings that are consistent with medically accepted clinical practice and are consistent with the other evidence in the case record; for example, an abnormal exercise stress test or abnormal sleep studies, appropriately evaluated and consistent with the other evidence in the case record.Ibid.
The ALJ did not have the benefit of SSR 99-2p at the time he filed his decision. However, he in fact found that the plaintiff suffered from CFS and that it was "severe" within the meaning of the regulations. Tr. at 24. But the ALJ rejected the degree of the limitations described by Dr. van der Harst despite evidence in the record that fit the plaintiff nicely within the disease criteria outlined above, including the positive testing for the Epstein-Barr virus. See tr. at 304-05.
In addition, Dr. van der Harst's opinions are consistent with the clinical history and test results of the plaintiff's many other physicians who documented the onset and progression of the plaintiff's symptoms of fatigue and muscle and joint pain over an eighteen-month span. The ALJ was not justified in rejecting the opinion of this treating physician as to the plaintiff's functional limitations.
Once the determination has been made that the Commissioner's decision is not supported by substantial evidence, the Court must decide whether further fact-finding is required. "[I]f all essential factual issues have been resolved and the record adequately establishes a plaintiff's entitlement to benefits," this Court may remand for an award of benefits. Faucher v. Sec'y of Health Human Servs., 17 F.3d 171, 176 (6th Cir. 1994). See also Mowery v. Heckler, 771 F.2d 966, 973 (6th Cir. 1985) ("In cases where there is an adequate record, the Secretary's decision denying benefits can be reversed and benefits awarded if the decision is clearly erroneous, proof of disability is overwhelming, or proof of disability is strong and evidence to the contrary is lacking.").
In this case, the plaintiff's claim of disability is not based on an alleged inability to perform at a light-work functional level, since he acknowledges being able to lift the requisite weight. However, he says he can perform no work because he cannot sustain a work pace for eight hours without taking rest breaks that are not tolerated in the workplace. The Court finds that Dr. van der Harst has established that limitation and that no physician has given a contrary opinion. Moreover, the vocational expert has already opined that with that limitation, no jobs are available in the national economy. That testimony is likewise undisputed, and therefore the record conclusively establishes that the Commissioner would not be able to meet his step-five burden. See Varley v. Sec'y of Health Human Servs., 820 F.2d 777, 779 (6th Cir. 1987) (holding that if the plaintiff has satisfied his burden through the first four steps of the analytical process, the burden shifts to the Commissioner to establish that the plaintiff possesses the residual functional capacity to perform other substantial gainful activity, and that "[t]o meet this burden, there must be a finding supported by substantial evidence that plaintiff has the vocational qualifications to perform specific jobs."
After a de novo review of the entire record and the materials submitted by the parties, the Court concludes that the magistrate judge did not properly review the administrative record and apply the correct law in reaching his conclusion. Rather, the Court concludes here that on this record proof of disability is strong and contrary evidence is lacking, and it is therefore appropriate to remand this case for an award of benefits.
Accordingly, it is ORDERED that the magistrate judge's report and recommendation is REJECTED.
It is further ORDERED that the plaintiff's motion for summary judgment [dkt #9] is GRANTED.
It is further ORDERED that the defendant's motion for summary judgment [dkt #10] is DENIED. The findings of the Commissioner are REVERSED, and the matter is REMANDED for an award of benefits.