Opinion
Case Number 01-10027-BC.
August 5, 2004
The plaintiff filed the present action on February 12, 2001 seeking review of the Commissioner's decision denying the plaintiff's application for supplemental security income benefits under Title 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 to reverse the decision of the Commissioner and award her benefits. The defendant filed a motion for summary judgment requesting affirmance of the decision of the Commissioner, to which the plaintiff responded.
Magistrate Judge Binder filed a report and recommendation on December 4, 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 main thrust of the plaintiff's objections is that the magistrate judge virtually ignored the three main issues raised in the plaintiff's summary judgment brief and instead prepared a report filled with boiler-plate language that focused on an issue that was not advanced by the parties. Specifically, the report rejects a contention that the plaintiff's subjective complaints of pain justify a disability finding when the plaintiff never made that argument. However, the magistrate judge did not give thorough treatment to the question of whether the evidence established a mental or emotional listing-level impairment; whether the hypothetical question posed to the vocational expert included all of the plaintiff's impairments, especially the need to rest for significant portions of the work day; and whether the ALJ improperly applied the treating source rule. In fact, in the portion of the magistrate judge's report summarizing the administrative record, there is not a single mention of the records of Dr. Hector Carrion despite the fact that this family practice physician treated the plaintiff approximately thirty times during the relevant period.
In legal parlance, 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. The plaintiff argues that the report and recommendation ignores the evidence in the record "taken as a whole," including the plaintiff's subjective complaints of pain, and fails to adequately state why more weight was not given to the opinions of the plaintiff's treating physician, Dr. Carrion. The plaintiff also argues that the hypothetical question posed to the vocational expert by the ALJ failed to accurately describe the plaintiff and her abilities and limitations. Finally, the plaintiff contends that the magistrate judge and the ALJ failed to articulate a valid reason for not accepting the evaluation of Dr. Ted Stiger, a psychologist who examined the plaintiff.
The plaintiff, who is now fifty-five years old, first applied for supplemental security income benefits on September 11, 1996, when she was thirty-seven years old. The plaintiff worked for six weeks at the Holiday Inn in Houghton Lake, six weeks at the Springbrook Inn in Prudenville, one year as a waitress, and approximately three months as a short order cook at a bowling alley. She last worked on August 22, 1996, which was the date she alleged her disability began.
In her application for supplemental security income benefits, the plaintiff alleged that she was unable to work due to breathing problems. Her claim was initially denied, and the denial was upheld on reconsideration. On April 10, 1998, the plaintiff appeared before ALJ Dennis L. Runyan when she was thirty-nine years old. ALJ Runyan filed a decision on May 26, 1998 in which he found that the plaintiff was not disabled. The plaintiff filed an appeal of this determination with the Appeals Council. While her first claim was under review, the plaintiff filed a second application for supplemental security income benefits on September 13, 1998. On June 8, 1999, the Appeals Council issued an order vacating ALJ Runyan's decision and remanded the case to an ALJ in order to give the plaintiff another opportunity for a hearing.
On February 10, 2000, the plaintiff appeared for a new hearing before ALJ William J. Musseman when she was forty-one years old. This time, the plaintiff was represented by counsel. ALJ Musseman filed a decision on March 20, 2000 in which he also 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. § 416.920. The ALJ concluded that the plaintiff had not engaged in substantial gainful activity since she filed her application for benefits, which was September 5, 1996 (step one); the plaintiff suffered from several impairments that were "severe" within the meaning of the Social Security Act including chronic obstructive pulmonary disease, degenerative disc disease of the lumbar spine, sprain and strain of the cervical spine, right shoulder bursitis and tendonitis with partial rotator cuff tear, anxiety disorder, personality disorder, and depression (step two); the plaintiff did not have an impairment or combination of impairments that met or equaled a listing in the regulations (step three); and the plaintiff could not perform any of her previous relevant work (step four).
In applying the fifth step, the ALJ concluded that the plaintiff retained the residual functional capacity to perform a wide range of sedentary work activity that allowed for a sit-or-stand option, only simple one- or two-step tasks, no intense public contact, and minimal supervision. The ALJ found that the plaintiff was further limited by the need to avoid work activity that requires repetitive bending, squatting, kneeling, crawling, climbing, working above chest level, and pushing and pulling of leg or hand controls with her right upper and lower extremities, and activity that requires twisting and turning, exposure to extremes in temperature, dust, smoke, fumes, and chemicals. Relying on the testimony of a vocational expert, the ALJ found that such jobs as bench assembler, order clerk, and inspector 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, who denied the plaintiff's request for review on November 17, 2000.
The plaintiff acknowledges that she bears the burden of proving entitlement to benefits under Title XVI of the Social Security Act, which means that she must establish that she suffers from a disability, as that term is defined in the Act. See Boyse v. Sec'y of Health Human Servs., 46 F.3d 510, 512 (6th Cir. 1994); see also Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). "Disability" means:
inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.42 U.S.C. § 1382c(a)(3)(A). A claimant suffers from a disability "only if h[er] physical or mental . . . impairments are of such severity that [s]he is not only unable to do h[er] previous work but cannot, considering h[er] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 1382c(a)(3)(B). The concept of disability, then, relates to functional limitations. Although these functional limitations must, of course, be caused by a physical or mental impairment, in the end, "[i]t is an assessment of what [the claimant] can and cannot do, not what she does and does not suffer from." Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 239 (6th Cir. 2002) (referring to assessment of residual functional capacity).
As noted above, the plaintiff insists that she met her burden by establishing that she met the requirements of an emotional impairment contained in the Secretary's listings, specifically Listings 12.04 (Affective Disorders), 12.06 (Anxiety Disorders), and 12.08 (Personality Disorders). See 20 C.F.R. Part 404, Subpt. P, App. 1, §§ 12.04, 12.06, 12.08 (2000). The substantial evidence that supports that finding, the plaintiff argues, is the report of psychologist Ted. R. Stiger, Psy.D., and the Psychiatric Review Technique Form (PRTF) that he completed, in which he concluded that the plaintiff's functional limitations tracked those contained in the listings. See Tr. at 232-36. The ALJ rejected Dr. Stiger's opinions because they were not supported by medical evidence. See Tr. at 21. The plaintiff contends that the ALJ's refusal to accept Dr. Steger's conclusions violates the treating source rule.
It is well established in this Circuit that in order to qualify as "disabled" under a Listing in the Secretary's regulations, a claimant must demonstrate that he or she meets all of the criteria contained in the Listing. See Duncan v. Sec'y of Health Human Servs., 801 F.2d 847, 855 (6th Cir. 1986). Likewise, the treating source 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 rationale underlying the rule is found in its text: that treating sources have more historical facts from first-hand examinations of the claimant and thus their opinions 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 Jones v. Sec.'y of Health Human Servs., 945 F.2d 1365, 1370 n. 7 (6th Cir. 1991); Farris v. Sec'y of Health Human Servs., 773 F.2d 85, 90 (6th Cir. 1985).
The ALJ's decision to reject Dr. Stiger's conclusions stated in the PTRF he completed was not erroneous or violative of the treating source rule since Dr. Stiger never actually treated the claimant — he only performed an evaluation — and he saw her only once. To conclude that he was a treating source within the meaning of that rule does violence to the concept. Dr. Stiger saw the plaintiff on referral of her family physician, but he certainly did not provide a "longitudinal picture of [the plaintiff's] medical impairments" or "bring a unique perspective to the medical evidence" due to his very limited involvement in the evaluation and care of the plaintiff. Although Dr. Stiger considered a report from Dr. Simmons, who evaluated the plaintiff on an earlier date for reasons unrelated to her claim for disability benefits, that report did not serve to expand on Dr. Stiger's firsthand contact with the plaintiff, which was limited to a single visit.
The plaintiff also contends that the ALJ did not rely on a hypothetical question posed to the vocational expert that included all of the plaintiff's limitations. She reasons that Dr. Carrion, who actually was a treating source, found that the plaintiff could not perform a low-stress job for an eight-hour day because she was required to rest or sleep for half-hour periods or longer. See Tr. at 357. When that limitation was included in a second hypothetical question, the vocational expert testified that no jobs in the national economy were available to the plaintiff. See Tr. at 72-74. However, the ALJ's finding of no disability rejected that limitation because Dr. Carrion's opinion supporting it in turn was rejected. The plaintiff says that substantial evidence does not support the ALJ's rejection of this treating source's opinion on the ground that it is inconsistent with other medical evidence. See Tr. at 21.
As mentioned, a treating physician's opinion is entitled to greater weight than the opinions of consultative physicians. 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). 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). The Sixth Circuit has held that treating physicians' opinions "are only given such deference when supported by objective medical evidence." Warner v. Comm'r of Soc. Sec., ___ F.3d ___, ___, 2004WL1516657 (6th Cir. July 8, 2004) (citing Jones v. Comm'r of Soc. Sec., 336 F. 3d 469, 477 (6th Cir. 2003)). 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 medical evidence in the record. See Casey v. Sec'y of Health Human Servs., 987 F.2d 1230, 1234-35 (6th Cir. 1993).
The Court believes that Dr. Carrion's opinions that the plaintiff cannot work an eight-hour day consistently due to distracting pain that in turn causes the need to rest or sleep during the day are supported by the clinical evidence and the plaintiff's own testimony. The plaintiff testified that she suffers from constant pain in her neck, right shoulder, middle and low back, and right leg in all physical positions, although the pain is alleviated when she lies down. Tr. at 60-61. She said that she did not sleep well and she took two to three naps per day. Id. at 62. She denied napping on her September 1996 daily activity sheet, id. at 156, but in March 1998, October 1999, and January 2000 she stated that she napped daily and spent most of her days lying on the couch and resting. Id. at 257, 259, 260, 194-96, 199-201.
The plaintiff saw Dr. Carrion approximately thirty times between June 1997 and June 1999 and his records are replete with examinations documenting low back pain, neck pain and right shoulder pain. See id. at 280-312. Imaging studies confirm right shoulder bursitis and a partial rotator cuff tear. Id. at 305. The plaintiff took prescription narcotic and non-narcotic antiinflammatory and pain medication for these ailments, including Naprosyn, Flexeril, and Vicoden. She was treated by a pain specialist and underwent two courses of epidural steroid injections into her back and shoulder for pain by Dr. John DiBella. Id. at 381-82. She completed courses of physical therapy without much relief. Dr. Carrion notes in his records that she has trouble sleeping because of her pain. Id. at 280. These findings are not contradicted in the record, and they provide abundant support and clinical correlation for Dr. Carrion's conclusion stated on February 4, 2000 that the plaintiff's pain distracted her from giving attention to her job in two-hour blocks, prevented her from maintaining a regular work schedule, prevented her from performing even a low-stress job, and required that she take multiple rest or sleep breaks during the work day. Id. at 357.
The Court finds that the ALJ's conclusion that the medical evidence in the record does not support Dr. Carrion's opinions is itself not supported by substantial evidence on the whole record. 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); see also Lashley v. Sec'y of Health Human Servs., 708 F.2d 1048, 1053 (6th Cir. 1983). The reviewing court must affirm the Commissioner's findings if they are supported by substantial evidence and the Commissioner employed the proper legal standard. Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). However, a substantiality of evidence evaluation does not permit a selective reading of the record. "Substantiality of the evidence must be based upon the record taken as a whole. Substantial evidence is not simply some evidence, or even a great deal of evidence. Rather, 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) (internal quotes and citations omitted); see also Laskowski v. Apfel, 100 F. Supp. 2d 474, 482 (E.D. Mich. 2000). It appears to the Court that the ALJ and the magistrate judge failed to accord proper consideration to Dr. Carrion's records and findings, and the Court therefore cannot accept the conclusions that flow from that erroneous view (or review) of the administrative record.
The limitation documented by Dr. Carrion was not included in the hypothetical question on which the ALJ actually relied. It is well established that assessment of residual functional capacity for work must be made only after all of a claimant's limitations have been taken into account. 20 C.F.R. § 416.945. Further, a hypothetical question posed to a vocational expert must include a "complete assessment of [the claimant's] physical and mental state and should include an accurate portrayal of her individual physical and mental impairments." Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 239 (6th Cir. 2002) (internal quotes and alterations omitted) (quoting Varley v. Sec'y of Health Human Servs., 820 F.2d 777, 779 (6th Cir. 1987)). The second hypothetical question posed to the vocational expert — the one that yielded an answer consistent with a finding of disability — did include the limitation described by Dr. Carrion. That question and answer is the one that should control the outcome in this case.
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 sedentary-work functional level as such. However, she says she can perform no work because she cannot sustain a work pace for eight hours without taking rest breaks that are not tolerated in the workplace. The Court finds that Dr. Carrion 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, 820 F.2d at 779 (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 #15] is GRANTED.
It is further ORDERED that the defendant's motion for summary judgment [dkt #20] is DENIED. The findings of the Commissioner are REVERSED, and the matter is REMANDED for an award of benefits.