Opinion
Case No. 3:12-cv-409
11-18-2013
DAVID SHOVER, 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 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") and Appeals Council ("AC") erred in finding the Plaintiff was "not disabled" from December 23, 2003 - January 12, 2010, and, therefore, not entitled to supplemental security income ("SSI"). (See Administrative Transcript ("PageID") (PageID 55-108) (ALJ and AC's decisions)).
I.
Plaintiff filed earlier applications for SSI, all of which were denied. (PageID 202-205).
An ALJ decision was issued in conjunction with Plaintiff's last application on April 23, 2007. (PageID 111). The ALJ determined that Plaintiff had "pacemaker implantation due to history of atrial fibrillation; diabetes mellitus with episodes of stasis ulcer (mainly left leg); obesity; (since November 2004) residuals of fracture of the right proximal fibula (knee); and (since July 2005) osteoarthritis in the right hip..." (PageID 118). The ALJ found that Plaintiff could perform a restricted range of light work activity, even though Plaintiff had lived in a nursing home for a period of over two years prior to the decision. (PageID 122). Plaintiff was unable to perform his past relevant work, but based on vocational expert testimony the ALJ found that Plaintiff could perform a significant number of jobs in the national economy. (PageID 128-129). Thus, he concluded that Plaintiff was not disabled as defined by the Social Security Act. (PageID 130).
The application at issue here is the application for SSI filed by Plaintiff on June 8, 2007 (PageID 195-200), wherein he alleged a disability onset date of December 23, 2003, owing to diabetes and bilateral hip impairments. (PageID 195, 236). His application was denied initially and upon reconsideration. (PageID 131-132, 135-141, 142-148). Plaintiff then requested a hearing before an ALJ, and one was held on June 23, 2010. (PageID 86-108, 149-151). Plaintiff appeared with his attorney. Both Plaintiff and a vocational expert testified. (PageID 88-108). The ALJ denied the claim on August 16, 2010, finding that while Plaintiff could not return to his past work, there were a significant number of jobs in the national economy that he could perform. (PageID 78-79).
Plaintiff requested a review of the ALJ's decision on October 22, 2010. (PageID 68). The AC granted review on August 31, 2012 and issued a Revised Interim Notice of Appeals Council Action on October 12, 2012 (PageID 61-63), wherein the Appeals Council issued a partially favorable decision finding Plaintiff disabled, as of January 12, 2010, because Plaintiff had started living in a nursing home and his treating physician, Dr. Lemelle, found that his non-healing leg ulcer limited him to sedentary work activity. (PageID 55-59). Specifically, the AC found that as of January 12, 2010, Plaintiff could only do sedentary work and, therefore, was disabled pursuant to the Agency's Medical Vocational Guidelines (the "GRID"). (PageID 51-60). See 20 C.F.R. Pt. 404, Subpt. P, App. 2, Rule 201.14. Plaintiff then commenced this action in federal court pursuant to 42 U.S.C. Section 405(g) for review of the Appeals Council's final decision, arguing that his disability began substantially earlier than January 12, 2010.
Plaintiff was born on December 12, 1955. (PageID 195). He completed two years of college. (PageID 241). His past relevant work consisted of heavy equipment mechanic, medium exertion, heavy as he described it, and skilled. (PageID 103). He had no transferable skills. (PageID 103).
The AC's "Findings," which represent the rationale of its decision, were as follows:
1. The claimant has not engaged in substantial gainful activity since June 8, 2007.(PageID 58-59).
2. For the entire period of issue, the claimant has the following severe impairments: atrial fibrillation, diabetic ulcer (left leg), obesity and osteoarthritis.
3. For the entire period of issue, the severity of the claimant's impairments do not meet or equal the criteria in Listings 1.02 & 9.08 of 20 CFR Part 404, Subpart P, Appendix 1 of the Listing of Impairments.
4. From June 8, 2007 to January 11, 2010, the claimant had the residual functional capacity to perform light work except the claimant could not perform any pushing or pulling using the left lower extremity; he could never climb ladders, ropes or scaffolds and could only occasionally climb ramps and stairs. The claimant could occasionally balance, stoop, crouch, kneel and crawl. The claimant must avoid concentrated exposure to work hazards and must be able to use a cane to ambulate as needed. Beginning on January 12, 2010, the claimant has the residual functional capacity to perform work at the sedentary exertional level.
5. For the entire period of issue, the claimant was not capable of performing his past relevant work as a heavy equipment mechanic.
6. From June 8, 2007 to January 11, 2010, the claimant was not disabled using the Medical-Vocational Rule 202.20. Beginning January 12, 2010, the claimant who was born on December 12, 1955 (54 years of age) was considered "closely approaching advanced age." The claimant has two years of college education and no transferable work skills. Based on these vocational factors, and a limitation to work at the sedentary exertional level, medical-vocational Rule 201.14 directs a finding of "disabled."
7. The claimant has been disabled, as defined in the Social Security Act, since January 12, 2010 (20 CFR 416.920(g)).
On appeal, Plaintiff argues that the ALJ and the Appeals Council erred in not finding Plaintiff disabled from December 23, 2003 to January 11, 2010.
II.
The Court's inquiry on appeal is to determine whether the ALJ and AC's non-disability findings are 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 he is entitled to disability benefits. 20 C.F.R. § 404.1512(a). That is, he must present sufficient evidence to show that, during the relevant time period, he suffered impairment, or combination of impairments, expected to last at least twelve months, that left him unable to perform any job in the national economy. 42 U.S.C. § 423(d)(1)(A).
A.
The record reflects that:
On March 29, 2004, Plaintiff underwent an ICD implantation. (PageID 290-292). It was noted that he had:
An implantable cardioverter-defibrillator (ICD) is a small battery-powered electrical impulse generator that is implanted in patients who are at risk of sudden cardiac death due to ventricular fibrillation and ventricular tachycardia. The process of implantation of an ICD is similar to implantation of a pacemaker. Similar to pacemakers, these devices typically include electrode wires that pass through a vein to the right chambers of the heart, usually lodging in the apex of the right ventricle. The device is programmed to detect cardiac arrhythmia and correct it by delivering a jolt of electricity.
a history of non-sustained ventricular tachycardia and near-syncope, dilated cardiomyopathy with left ventricular ejection of 20%, morbid obesity with chronic cellulitis. He was admitted to the hospital because of near-syncope. He was noted to have non-sustained ventricular tachycardia, therefore, was referred for electrophysiology evaluation. On electrophysiology study the patient had chronic atrial fibrillation and had inducible, polymorphic ventricular tachycardia, reproducibly....(PageID 290).
Ventricular tachycardia is a type of tachycardia, or a rapid heartbeat, which starts in the bottom chambers of the heart, called the ventricles. The ventricles are the main pumping chambers of the heart. This is a potentially life-threatening arrhythmia because it may lead to ventricular fibrillation, asystole, and sudden death.
Syncope is the medical term for fainting or passing out.
Dilated cardiomyopathy is a condition in which the heart becomes weakened and enlarged and cannot pump blood efficiently. The decreased heart function can affect the lungs, liver, and other body systems.
Dr. Abdul Wase, Plaintiff's treating cardiologist, reported that he had treated Plaintiff from May 5, 2004 through April 27, 2007. (PageID 294). Plaintiff was treated for recurrent arrhythmias that had resulted in cardiac syncope or near syncope. Plaintiff had "persistent atrial fibrillation, severe dilated cardiomyopathy." (PageID 295). He had a single chamber ICD. Plaintiff was also experiencing optimal benefit from treatment. On April 27, 2007, his blood pressure was 144/86. The intensity of Plaintiff's symptoms and pain was consistent with the physical findings that Dr. Wase customarily saw in his practice. (PageID 295).
Dr. William Padamadan evaluated Plaintiff on October 10, 2007, at the request of the State agency. Plaintiff had complaints of bilateral hip pain, more on the right, diabetes, and had a heart attack. He was three hundred pounds and was five feet eight inches tall. Plaintiff had heart attacks in 1995, 1997, and 2001. He had a defibrillator inserted in 2001. He walked with a limp and used a cane. X-rays showed "loss of joint space and subchondral sclerosis." On exam, he had problems with external rotation of his hips, eversion deformity of his feet, positive Patrick test on both hips , hypergimentation of diabetes, and positive straight leg raising test. (PageID 297-300, 302). The diagnosis was Type II diabetes, coronary artery disease with status post ICD/defibrillator, bilateral osteoarthritis of the hips, and nonspecific history of chest pain four times a week, lasting one to two and a half hours at a time. Dr. Padamadan found that Plaintiff could perform work activity, owing to the fact that Plaintiff had calluses, corns and oil and dirt on his hands from working on small and large engines. (PageID 299).
Patrick test is performed to evaluate pathology of the hip joint or the sacroiliac joint.
Dr. Myung Cho, a non-examining reviewer, reviewed the record on December 4, 2007, at the request of the State agency. He opined that Plaintiff could occasionally lift/carry up to twenty pounds and frequently lift/carry up to ten pounds. He could stand/walk for six hours out of eight and sit for six hours out of eight. He could occasionally climb ramps and stairs and could never climb ladders, ropes, and scaffolds. He could occasionally stoop, kneel, crouch, and crawl. (PageID 307). Plaintiff was to avoid all exposure to all hazards such as machinery, heights, etc. (PageID 309). Dr. Cho found that Plaintiff's impairments were "consistent in nature but not in severity." (PageID 310). Dr. Esberdado Villanueva reviewed the record on March 29, 2008 and affirmed Dr. Cho's assessment. (PageID 314).
Plaintiff was admitted to Castle Knoll Nursing Home from February 17, 2005 through May 10, 2008. The admitting diagnosis was atrial fibrillation, stasis ulcer of left leg, cellulitis of left leg, congestive heart failure, diabetes mellitus II, essential hypertension, hypothyroidism, and automatic cardiac defibrillator. (PageID 355). He was seen for a left leg ulcer with sepsis. (PageID 348). A May 9, 2005 sonograph showed no evidence of deep venous thrombosis of his left lower extremity. (PageID 341). A July 18, 2005 right hip x-ray revealed degenerative osteoarthritis. (PageID 338). Plaintiff needed a cane in his left hand for ambulation and was a fall risk. (PageID 335). He was treated with physical therapy and discharged on August 22, 2005. (PageID 334). On October 14, 2005, he was seen for loss of balance and dizziness when bending over. (PageID 333). On February 22, 2006, he was seen for inappropriate shocks received by his defibrillator. (PageID 332). Plaintiff was evaluated by physical therapy on April 26, 2006 for hip pain and risk of falls. On exam, he walked with an antalgic gait. (PageID 328). Hip and knee x-rays revealed degenerative osteoarthritis. (PageID 325-327).
Sepsis is a potentially fatal whole-body inflammation caused by severe infection.
Plaintiff was also thought to have paranoia. He was talking about "killing people." (PageID 324). His medication was changed owing to his psychotic episode. (PageID 322). Plaintiff underwent a psychiatric consultation on February 10, 2007. He was "guarded, suspicious, and smile[ed] inappropriately." (PageID 320). He was disheveled, easily distracted, had retarded psychomotor, slow speech, a constricted and blunted affect, guarded and paranoid thoughts, and was preoccupied. The diagnosis was generalized anxiety disorder and rule out psychosis. Plaintiff had limited insight into his behavior and was reluctant to accept intervention. (PageID 320).
Plaintiff could ambulate a mile with use of a walker on discharge from the nursing home in April 2007. He was discharged to the home of his cousin due to the implant of a new defibrillator. (PageID 318).
Dr. Wase submitted his treatment notes, dated March 24, 2004 through April 28, 2009. Plaintiff was on anticoagulant therapy and his defibrillator was monitored. (PageID 374-380). In a March 25, 2004 exam, Plaintiff had irregular S1 and S2. (PageID 372). The impression was non-sustained ventricular tachycardia, chronic atrial fibrillation, severe dilated cardiomyopathy, and near syncope. It was recommended that he undergo an EP study for possible ICD implantation. (PageID 373). On February 22, 2006, after Plaintiff's ICD implant, he was seen for ICD shock. (PageID 369). The diagnosis was inappropriate shock secondary to sinus tachycardia, severe cardiomyopathy, and ventricular tachycardia status post ICD implant. His medication was increased. (PageID 370). Plaintiff was seen on August 2, 2006 for follow up. Although he was walking two to three miles daily, he continued to experience episodes of shocks. A check of his ICD revealed that he was receiving inappropriate shocks secondary to chronic atrial fibrillation with rapid ventricular response. (PageID 367). After his ICD replacement in April 2007, he was seen in follow up. (PageID 364-366).
S1 and S2 are the first and second heart sounds produced by the closing of the atrioventricular valves and semilunar valves, respectively.
On February 28, 2008, Dr. Wase noted that Plaintiff was working on his tree business and had right hip pain. The diagnosis was right hip osteoarthritis. (PageID 514). Plaintiff was treated for an unhealed large ulcer with cellulitis for over a year at the Springfield Regional Wound Care. Plaintiff was first seen in the emergency room on September 18, 2008. Plaintiff was treated for an ulcer with cellulitis on his left leg. (PageID 361-362). He was treated from September 30, 2008 through January 19, 2010 at Springfield Regional Wound Care Center. The ALJ related the severity of Plaintiff's left leg impairment in her decision. She found:
The claimant has diabetes mellitus and in 2008 developed a nonhealing ulcer on the left side of his leg.... Initially, the ulcer was treated with wraps on the leg. He also underwent(PageID 76). She also related:
mild debridement and compression therapy. He was advised to elevate his legs when seated.... The wound eventually became necrotic and surgical debridement was performed on September 25, 2009....
At the consultative examination of October 10, 2007 he was observed to walk with a limping gait on the right side and used a cane on the left side.... Therapy notes show that he was able to ambulate with a walker or cane for up to a mile.... The ability to walk was also affected by the ulcer of the left lower extremity....
Debridement is the medical removal of dead, damaged, or infected tissue to improve the healing potential of the remaining healthy tissue.
Id.
On October 21, 2008, it was noted that Plaintiff's wound was larger and he underwent debridement as there were no signs of healing. (PageID 492, 499). Despite the debridement, his wound was even larger on November 4, 2008. (PageID 488).
On December 12, 2008, Dr. Wase reported that Plaintiff had ventricular tachycardia. He had undergone an EP study that documented the arrhythmias. His symptoms included near syncope and palpitations. (PageID 385). Plaintiff experienced syncope several times a year. Dr. Wase opined that Plaintiff could work only two hours a day, could stand for thirty minutes at a time and sit for thirty minutes at a time, could lift/carry up to five pounds occasionally and frequently, and needed to occasionally elevate his legs during an eight hour day. (PageID 386).
On December 15, 2008, Dr. Wase found that Plaintiff had dilated congestive cardiomyopathy. (PageID 387). On October 23, 2009, Dr. Wase reported pedal edema and weeping ulcers. Dr. Wase determined that Plaintiff "will require possible ICD generator replacement within six to nine months." (PageID 267). Plaintiff had right hip pain with range of motion testing on March 4, 2009. The diagnosis was right hip osteoarthritis. (PageID 512).
Pedal edema is an abnormal accumulation of fluid in the interstitium, which are locations beneath the skin or in one or more cavities of the ankles and feet. It is clinically shown as swelling.
On October 21, 2008, it was noted that Plaintiff's left leg wound was actually larger. He did not have insurance. (PageID 499). Plaintiff underwent debridement as there were no signs of healing. He could not perform some of the recommended dressings for his wound. (PageID 492). Despite the debridement, his wound was larger on November 4, 2008. (PageID 488). On December 2 and 12, 2008, Plaintiff was treated with some debridement of the wound and compression therapy. (PageID 382-383, 468, 476). Testing in December 2008 revealed a moderate staph infection. (PageID 401-403). On December 30, 2008, Plaintiff had necrotic tissue and was again treated with debridement. (PageID 459). The wound continued to be debrided on exam. (PageID 433, 435). He was seen in the emergency room on May 28, 2009 for a left leg ulcer. (PageID 537-538). He was seen in June 23, 2009 at the Wound Care Center for venostasis ulceration on his left calf in need of debridement. (PageID 553). It was noted that he was "at risk for loss of limb, loss of life" on August 11, 2009. (PageID 629).
On August 18, 2009, it was noted that Plaintiff was unable to afford the care that he needed. (PageID 546). He also had a large ulceration of his left foot. (PageID 544). Even though he experienced improvement in January 2009, it was short-lived. (PageID 678, 680). Plaintiff also experienced some improvement in March 2009, which was also short-lived. (PageID 665-666). Plaintiff continued treatment with debridements. (PageID 541-544, 556-558, 577-578, 583-587, 604, 615, 620, 649, 652, 654, 659, 668, 674, 682, 712, 721, 753, 750, 756, 765, 867, 858-859, 870, 873, 876-877). X-rays showed soft tissue defect with swelling and degenerative changes of the left knee and ankle and a pes planus deformity. (PageID 561). In April 2009, he again had necrotic tissue. (PageID 652).
A Palliative Care Designation Form was completed on August 11, 2009:
The patient has documented (written statement by attending physician in progress note) limited personal or cognitive resources, or has no access to appropriate ongoing care providers such that it is unreasonable to expect a level of compliance with prescribed aggressive wound care treatments necessary to achieve desired healing outcomes. (Clinical Practice Guideline-Non-adherent to curative wound care plan due to economic, social and other factors).(PageID 814) (emphasis in original).
In September 2009, Plaintiff had a staph infection and was hospitalized for debridement. (PageID 608-609). On October 20, 2009, it was noted that he required a "skilled nursing facility care." (PageID 580). Plaintiff did not have insurance so he was not accepted into a nursing home. (PageID 579). On October 27, 2009, Dr. Lemelle noted that Plaintiff had been evaluated by Dr. Ismailjee who also thought that Plaintiff should be treated in a nursing home for better wound care, but Plaintiff still did not have insurance for a nursing home. (PageID 756). Dr. Ismailjee noted in his observation that Plaintiff's "psychosocial support is very weak." (PageID 580). Plaintiff had necrotic tissue again on November 10, 2009. (PageID 750). His wound was larger on November 17, 2009 and thought to be infectious. (PageID 748). Testing revealed a staph infection. (PageID 746). Plaintiff was set up for an infusion at the hospital. (PageID 746).
On January 5, 2010, Dr. Ismailjee evaluated Plaintiff and observed, on exam, "[o]bese lower extremities with significant venous insufficiency and lymphedema and some stasis dermatitis...and [l]eft lateral calf with state 3 status ulcer with periwound inflammation" and his diagnostic impression was "Chronic venous stasis ulcer, which has been repeatedly contaminated and colonized by various bacterial flora." (PageID 767, 861) He further stated:
Antibiotic therapy will not be of any significant benefit to heal this wound. I recommend an aggressive approach at this point since he has been dealing with it for more than 12 months. Perhaps we can consider surgical debridement of the wound base and application of either a graft jacket or a skin graft.Id. Plaintiff was admitted to the nursing home on January 8, 2010 for care of his left leg ulcer. He underwent physical therapy while he was there. Exams revealed decreased range of strength in his right and left lower extremities, shuffling gait, and decreased independence with transfers, decreased ability to stand. He was at risk of falls. (PageID 914, 919-920, 924, 928-929).
Plaintiff was treated with a debridement and an Integra graft to the left ulceration on January 12, 2010. (PageID 765). Plaintiff was released to the Essex House, a nursing home, for follow-up care. (PageID 761, 774, 855). The AC declared Plaintiff disabled as of January 12, 2010. (PageID 58-59).
B.
Plaintiff alleges that the ALJ and AC's RFC finding is not supported by substantial evidence because Dr. Win, the primary care physician, Dr. Wase, the treating specialist, and Drs. Lemelle and Ismailjee, the treating primary care physicians, all found that Plaintiff could not work on a sustained basis in the competitive work environment before January 12, 2010.
The records indicate Plaintiff was treated for an ulcer with cellulitis on his left leg from September 30, 2008 through January 19, 2010 at Springfield Regional Wound Care Center. (PageID 1118-1119). Drs. Wase, Ismailjee, and Lemelle all opined that Plaintiff was precluded from performing any work on a full-time sustained basis in the competitive work environment. (PageID 500-503, 642). They determined that Plaintiff could only stand two hours throughout the work day and would likely need to have his feet up over the heart level some of the time. He also would not be able to lift more than five pounds. (PageID 386). Dr. Lemelle, Plaintiff's treating physician, thought Plaintiff could "maybe" perform sedentary work activity but he could not perform light or medium exertional work activity. (PageID 884).
A claimant will "grid out" as disabled effective at age 50 if her residual functional capacity is limited to only sedentary work. 20 C.F.R. pt. 404, subpt. P, app. 2, § 201.00(g). Plaintiff is 58 years old.
Despite new evidence presented to the ALJ, she partially adopted the previous ALJ's opinion, who concluded that Plaintiff could perform a restricted range light of work activity, and additionally found that Plaintiff could perform a "full range of light work." (PageID 30). However, AR 98-4 (6) states:
"When adjudicating a subsequent disability claim with an unadjudicated period arising under the same title of the Act as the prior claim, adjudicators must adopt such a finding from the final decision by an ALJ or the Appeals Council on the prior claim in determining whether the claimant is disabled with respect to the unadjudicated period unless there is new and material evidence relating to such a finding or there has been a change in the law, regulations or rulings affecting the finding or the method for arriving at the finding."Id. This ruling reflects the decision in Drummond v. Comm. of Soc. Sec., 126 F.3d 837 (6th Cir. 1997), where the Sixth Circuit Court of Appeals found that an ALJ is not bound by a previous ALJ's decision if there is new and material evidence or there has been a change in law. Here, the ALJ violated Drummond by failing to review new material evidence that indicated Plaintiff's worsening condition.
Dr. Wase concluded that Plaintiff could work only two hours a day, could stand for thirty minutes at a time and sit for thirty minutes at a time, lift/carry up to five pounds occasionally and frequently, and needed to occasionally elevate his legs during an eight hour day. (PageID 386, 881).
Dr. Lemelle's treatment notes indicate that he saw Plaintiff for his left leg non-healing ulcer. (PageID 884). On November 10, 2009, Dr. Lemelle noted that Plaintiff was seen by other physicians and had necrotic tissue. (PageID 750). On November 17, 2009, his wound was larger and thought to be infectious. (PageID 748). Testing revealed a staph infection and Plaintiff was set up for an infusion at the hospital. (PageID 746).
Dr. Ismailjee observed "[o]bese lower extremities with significant venous insufficiency and lymphedema and some stasis dermatitis...and [l]eft lateral calf with state 3 status ulcer with periwound inflammation" and his diagnostic impression was "Chronic venous stasis ulcer, which has been repeatedly contaminated and colonized by various bacterial flora." (PageID 767, 861). He further stated:
Antibiotic therapy will not be of any significant benefit to heal this wound. I recommend an aggressive approach at this point since he has been dealing with it for more than 12 months. Perhaps we can consider surgical debridement of the wound base and application of either a graft jacket or a skin graft.Id. The treating source opinions are all supported by diagnostic studies. Additionally, all of the Plaintiff's treating physicians agree that Plaintiff is more physically limited than the ALJ's RFC.
"In assessing the medical evidence supporting a claim for disability benefits, the ALJ must adhere to certain standards." Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009).
One such standard, known as the treating physician rule, requires the ALJ to generally give greater deference to the opinions of treating physicians than to the opinions of non-treating physicians because these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone of from reports of individual examinations, such as consultative examinations or brief hospitalizations.
Accordingly, the finding that Plaintiff could perform light work activity before January 12, 2010, on a full-time sustained competitive basis, is not supported by substantial evidence.
Next, Defendant maintains that the ALJ's reliance on non-examining physicians, who opined that Plaintiff could perform light work, was proper because the treating doctor's opinion was "inconsistent with Dr. Wase's conclusion only a 'month earlier ... that [Plaintiff] was doing well.'" (Doc. 12 at 6). However, Dr. Wase's opinion was not inconsistent with the records as a whole. Moreover, the AC did not address the opinions of any other treating physicians, including Plaintiff's primary care physician, Dr. Win. In fact, Plaintiff explained that he experienced short-lived improvements in his health in 2009, so his doctor's opinion was not inconsistent with the record. (PageID 1114).
Defendant cites Driggs v. Comm'r of Soc. Sec., 2:11-CV-0229, 2011 WL 5999036 (S.D. Ohio Nov. 29, 2011) as support. However, in Driggs, the ALJ explained that the doctor's opinions "were 'inconsistent with record as a whole as well as his own treatment notes and those of the other health professionals'."
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The Commissioner's regulations establish a hierarchy of acceptable medical source opinions. The hierarchy begins at the top with treating physicians or psychologists, 20 C.F.R. 404.1527(d) (2), § 416.927(d) (2). Next in the hierarchy are examining physicians and psychologists, who often see and examine claimants only once. See 20 C.F.R. § 404.1527(d), § 416.927(d). In general, more weight is given to examining medical source opinions than is given to the opinions of non-examining medical sources. See 20 C.F.R. § 404.1527(d) (1), 416.927(d) (1). Still, non-examining physicians' opinions are on the lowest rung of the hierarchy of medical source opinions.
The regulations provide progressively more rigorous tests for weighing opinions as the ties between the source of the opinion and the individual become weaker. For example, the opinions of physicians or psychologists who do not have a treatment relationship with the individual are weighed by stricter standards, based to a greater degree on medical evidence, qualifications, and explanations for the opinions, than are required to treating sources.Social Security Ruling 96-6p.
Much of the medical evidence and treatment post-dates non-examining reviewing doctors' records. For example, Drs. Padamadan's and Cho's opinions were based only on the evidence available in 2007, while Dr. Villanueva's opinion was based on the evidence available in March 2008. (PageID 1110-1111). Therefore, the non-examining physicians' opinion cannot constitute a substantial basis for the ALJ's decision. Accordingly, Drs. Padamadan, Cho, and Villanueva's opinions should have been afforded little, if any, weight.
The opinions of Drs. Win, Wase, Lemelle, and Ismailjee offer the only examining source opinions. The only contradictory opinion is from non-examining reviewing physicians in 2007 and 2008. Accordingly, such evidence does not constitute substantial evidence. "The opinion of a nonexamining physician is entitled to little weight if it is contrary to the opinion of the claimant's treating physician." Shelman v. Heckler, 821 F.2d 316, 321 (6th Cir. 1987).
Defendant further argues that Plaintiff's primary physical complaints were related to his inability to continue with the treatment prescribed. (Doc. 12 at 5-7). However, Defendant's interpretation of the treatment record fails because the Sixth Circuit has held that where the record shows that a claimant cannot afford the prescribed treatment that would restore his ability to work, his failure to receive the treatment cannot not be used to support a finding of nondisability. McKnight v. Sullivan, 927 F.2d 241, 242 (6th Cir. 1990). Moreover, the ALJ noted in her decision that the ulcer was non-healing. (PageID 76). Plaintiff was seen and treated for his non-healing left leg ulcer several times. Despite the treatment, Drs. Lemelle and Ismailjee required Plaintiff to be treated in the emergency room. Even after Plaintiff was seen in the ER, his ulcer continued to grow in size. As a result, skilled care was prescribed. (PageID 580). Accordingly, Plaintiff was not able to reduce the size of the ulcer during his treatment. Additionally, the vocational expert testified that there are no jobs in the national economy if Plaintiff had to sit six-seven hours out of eight-hour workday and have his legs lifted above the heart level. (PageID 106). Moreover, the fact that Plaintiff had to use a cane eliminated prospective jobs such as mail clerk and 50 percent of cashier jobs. (PageID 105).
The ALJ and AC's wholesale dismissal of the treating physicians and vocational expert's opinions is the product of a failure to meaningfully apply the treating source rule in the context of the record as a whole. Here, the proof of Plaintiff's disability since September 30, 2008 is strong and the opposing evidence is lacking in substance.
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 of evidence of disability, and the credible and controlling findings and opinions of Drs. Win, Wase, Lemelle, and Ismailjee, both the ALJ and AC failed to meet their burden of finding substantial evidence that Plaintiff is able to engage in substantial gainful activity. Instead, proof of disability is overwhelming.
IT IS THEREFORE ORDERED THAT:
The decision of the Commissioner, that David Shover was not entitled to supplemental security income before January 12, 2010 is NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, and it is REVERSED; and this matter is REMANDED to the Commissioner for an immediate award of benefits from September 30, 2008 - January 11, 2010. The Clerk shall enter judgment accordingly, and this case shall be CLOSED.
IT IS SO ORDERED.
________________________
Timothy S. Black
United States District Judge
Id. "The ALJ 'must' give a treating source opinion controlling weight if the treating source opinion is 'well supported by medically acceptable clinical and laboratory diagnostic techniques' and is 'not inconsistent with the other substantial evidence in [the] case record.'" Blakley, 581 F.3d at 406. "If the ALJ does not accord controlling weight to a 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, supportability of the opinion, consistency of the opinion with the record as a whole, and any specialization of the treating physician." Id. Here, the new and material evidence that the ALJ failed to consider before adopting the previous ALJ's decision included the doctors' opinions and the opinion of the vocational expert.