Hebert v. SSA
Filing
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MEMORANDUM OPINION and ORDER: IT IS ORDERED that Hebert's 11 MOTION for Summary Judgment is GRANTED in part and DENIED in part, and the case is REMANDED to the Social Security Administration for further proceedi ngs; IT IS FURTHER ORDERED that the Commissioner's 12 Motion for Summary Judgment with Supporting Memorandum is DENIED. The Court will enter a separate judgment. Signed by Judge Jennifer B. Coffman on 12/28/2012.(DAK)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON
CIVIL ACTION NO. 12-57-JBC
MARCELLE HEBERT,
V.
PLAINTIFF,
MEMORANDUM OPINION AND ORDER
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.
*************
This matter is before the court upon cross-motions for summary judgment on
Hebert’s appeal from the Commissioner’s denial of her application for Disability
Insurance Benefits (“DIB”). The court will grant Hebert’s motion in part, R. 11, and
deny it in part, deny the Commissioner’s motion, R. 12, and remand this case to
the Social Security Administration for further consideration.
At the date of her application for DIB, Hebert was a 46-year-old woman with
a college degree as a social worker and had work experience as a nursery
coordinator, teacher assistant, and program assistant. AR 90, 104. She alleged
disability beginning June 6, 2008, due to back problems and leg pain, which
caused her to change positions frequently, as well as nausea related to pain. AR
244. She filed her application on September 22, 2008; after several administrative
denials and appeals, Administrative Law Judge (“ALJ”) Roger L. Reynolds
determined that Hebert was not disabled. AR 72-81. Under the traditional fivestep analysis at 20 C.F.R. § 404.1520, the ALJ found that Hebert had not engaged
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in substantial gainful activity since June 6, 2008, the alleged onset date; that she
had severe impairments consisting of neurocardiogenic syncope and degenerative
disc disease of the lumbar spine with mild foraminal stenosis at multiple levels; that
her impairments, whether considered singly or in combination, did not meet or
equal one of the Commissioner’s Listings of Impairment; that she retained the
residual functional capacity (“RFC”) to perform a reduced range of light-level work,
including the ability to sit six hours in an eight-hour day and stand and walk six
hours in an eight-hour day, with no prolonged standing, walking, or sitting in
excess of 45 minutes to one hour without interruption, no climbing of ladders,
ropes, or scaffolds or balancing, occasional stooping, kneeling, crouching, crawling,
and climbing of stairs and ramps, no exposure to concentrated vibration or
industrial hazards and no work at heights; and that, based on her RFC and the
testimony of a Vocational Expert (“VE”), a significant number of unskilled jobs
existed in the economy which Hebert could perform. AR 72-80, 105. The ALJ
thus denied Hebert’s claim for disability on November 3, 2010. AR 81. The
Appeals Council declined to review, AR 1-3, and this action followed.
Hebert essentially presents two issues on review. First, she argues that the
ALJ failed to consider the combined effect of her impairments. Second, she
asserts that the ALJ erred in not giving controlling weight to the restrictions
provided by her treating physician, Dr. Paul Brooks. Because the ALJ did not
correctly weigh the treating physician’s opinion in accordance with the Social
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Security Administration’s regulations and the applicable law, the court will remand
for further consideration.
First, the ALJ’s decision adequately considered the combined effect of
Hebert’s impairments. He explicitly found that they did not meet or equal a listing
at Step Three, AR 76, which is an adequate explanation of his thought process.
Gooch v. Sec’y of Health and Human Servs., 833 F.2d 589, 591-92 (6th Cir.
1987).
The ALJ’s decision, however, does not deal adequately with the treating
physician’s opinion. Dr. Brooks, a specialist in rehabilitation, began treating Hebert
in December 2008 for her complaints of low back and leg pain. AR 567. Dr.
Brooks obtained an MRI of the lumbar spine showing moderate bilateral neural
foraminal stenosis at L4-L5 and L5-S1, and mild-to-moderate stenosis at L3-L4,
along with broad-based disc bulges, mild central canal narrowing and probable
perineural root sleeve cysts in the thoracic spine. AR 503-04, 609-10. For
complaints of syncope, he obtained tilt-table testing, which was positive for a
neurocardiogenic mechanism. AR 546, 618. He referred his patient to a
neurosurgeon, Dr. Leon Ravvin, for evaluation. AR 566.
Dr. Ravvin examined Hebert on January 21, 2009, noting her history of a
left lumbar discectomy at L4-L5 in 1992, which reportedly had not relieved her leg
pain. AR 505. Multiple medications and injections had not helped, either. Dr.
Ravvin’s examination was largely normal, although there was some mild tenderness
and positive straight-leg raising on the right at 30 degrees. AR 506. His review of
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the MRI showed evidence of previous surgery at L4-L5 with collapse of the disc
space at that level, creating some bilateral foraminal stenosis but with no
significant change since 2006. Dr. Ravvin offered a decompressive laminectomy
and fusion at L4-L5, but Hebert did not wish to proceed with surgery. Id. Dr.
Ravvin then recommended continuation of “conservative” treatment.
Hebert continued treatment with Dr. Brooks, who prescribed a variety of
medications with little or no reported success. AR 550-63, 666-86.
Dr. Brooks completed a physical RFC form on June 28, 2010, which
provided lifting and non-exertional restrictions largely consistent with the ALJ’s
ultimate RFC finding. AR 665. Significantly, however, it limits Hebert to sitting a
total of two hours, standing one hour, and walking two hours in an eight-hour day.
Id.
The only other opinions from medical sources concerning physical
restrictions come from non-examining state agency physicians Darrell R. Caudill and
Amanda Lange. Caudill reviewed the evidence as of February 27, 2009, and
opined that Hebert could perform light-level exertion but was capable of sitting six
hours and standing and walking six hours in an eight-hour day. AR 590-96. He
noted her MRI and tilt-table testing results, added that there was no medical source
statement regarding her physical capacities, and stated that her allegations were
“credible.” AR 590-91, 595. Dr. Lange affirmed Dr. Caudill on August 25, 2009,
without additional comments. AR 653-59.
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The ALJ stated in his decision that he gave little weight to Dr. Brooks’s
opinion because it was inconsistent with Hebert’s “conservative treatment history
with little objective evidence of worsening of her condition since May 2006.” AR
79. The ALJ stated that his functional assessment was supported by Hebert’s
continued part-time work since her alleged onset date, her recent conservative
treatment history consisting of prescriptions which she had not dependably taken,
and, “generally,” by the state agency medical consultants’ physical assessments.
Id. Thus, the ALJ concedes that his restrictions are not directly supported by
either the treating or the reviewing sources.
The Commissioner’s regulations recognize that the opinions of treating
physicians are entitled to greater deference than other sources because of their
ability to provide a “detailed, longitudinal picture” of a claimant’s impairments and
because they “may bring a unique perspective to the medical evidence that cannot
be obtained from the objective medical findings alone or from reports of individual
examinations . . . .” 20 C.F.R. § 404.1527(d)(2). In situations where the treating
source opinion is well-supported by medically acceptable clinical and diagnostic
techniques and is not inconsistent with the other substantial evidence in the case
record, the ALJ must give it controlling weight. Id. Where the opinion is not
entitled to controlling weight, the ALJ must determine how much weight is
appropriate by considering the length of the treatment relationship and the
frequency of examination, the nature and extent of the treatment relationship, the
supportability of the opinion, the consistency of the opinion with the record as a
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whole, and any specialization of the treating physician. Id. See also Wilson v
Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).
Social Security Ruling 96-2p provides that the “good reasons” the ALJ must
state for not giving a treating physician’s opinion controlling weight “must be
sufficiently specific to make clear to any subsequent reviewers the weight the
adjudicator gave to the treating source’s medical opinion and the reasons for that
weight.” Part of the reason for the requirement is “to let claimants understand the
disposition of their cases, particularly in situations where a claimant knows that his
physician has deemed him disabled and therefore might be especially bewildered
when told by an administrative bureaucracy that [he] is not.” Wilson, 378 F.3d at
544 (citations and internal quotation marks omitted). The failure to follow the
procedural requirement in explaining precisely the weight given to the treating
physician opinion “denotes a lack of substantial evidence, even where the
conclusion of the ALJ may be justified based upon the record.” Rogers v. Comm’r
of Soc. Sec., 486 F.3d 234, 243 (6th Cir. 2007).
The ALJ’s rationale for giving Dr. Brooks’s opinion little weight was
condensed to saying, without elaboration, that it was inconsistent with Hebert’s
conservative treatment history and that there was little objective evidence of
worsening of her condition since May 2006. AR 79. Her treatment was
“conservative” in the sense that she did not have surgery, but both Dr. Ravvin and
another neurosurgeon, Dr. John Gilbert, thought that her condition could warrant
surgical intervention, albeit with no guarantee of success. AR 506, 563, 608.
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Thus, the ALJ’s implication that her condition did not warrant aggressive treatment
measures is slightly misleading. Moreover, Dr. Brooks was willing to provide strong
pain medications, including Ultram and Opana, in addition to trying other
medications. AR 552. Ultram is “indicated for the management of moderate to
moderately severe chronic pain.” Physicians’ Desk Reference, (Sabrina Borza,
Kathleen Engel, ed., 2009), p. 2429. Opana is an opioid medication “indicated for
the relief of moderate to severe acute pain.” Physicians’ Desk Reference, (Bette
Kennedy, ed., 2011), p. 1085. It is not clear from the ALJ’s opinion why
treatment consisting of the prescription of such medications, and others, would be
inconsistent with the sitting, standing, and walking restrictions given by Dr.
Brooks. As for the statement that there was little objective evidence of a
worsening of Hebert’s condition since May 2006, based on Dr. Ravvin’s
interpretations of her MRIs, it is notable that Hebert stopped her full-time job as a
nursery coordinator in January 2006 because she found it too strenuous. AR 9091, 253, 257. She had worked only part-time jobs as a substitute teacher and
teacher’s assistant since that time. AR 91, 253. While her condition may not
have objectively worsened since May 2006, the evidence shows that she had not
worked full-time since then, and the ALJ did not cite specific evidence to discredit
Dr. Brooks’s walking, standing, and sitting restrictions.
Furthermore, the ALJ did not weigh several of the factors required by §
404.1527(d)(2), such as the length of the treatment relationship, frequency of
examination, and the specialization of the treating physician. To the extent that he
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discussed the supportability of the opinion and the consistency of the opinion with
the record as a whole, his rationale is not persuasive. While the evidence does not
support an award of benefits, the court will remand for further consideration
because the ALJ did not provide “good reasons” for discounting the treating
physician’s opinion.
Additionally, the state agency reviewing opinions are inadequate to support
the ALJ’s RFC. The state agency reviewers did not have the benefit of a review of
all of the evidence. See Blakley v. Com’r of Soc. Sec., 581 F.3d 399, 409-10 (6th
Cir. 2009). Hebert consistently reported that she was unable to tolerate the
repetitive sitting, walking and standing involved in full-time work, AR 260, 262,
277, 295, 312-13, 315, 317-19, 343; however, the lead state agency reviewer,
Dr. Caudill, found her allegations “credible” while inconsistently indicating that she
could perform standing, walking, and sitting consistent with full-time work. AR
590-91. Such an internally inconsistent opinion cannot, standing alone, provide
substantial evidence to support the ALJ’s conclusion.
The court having found that the Commissioner’s decision is not supported by
substantial evidence,
IT IS ORDERED that Hebert’s motion for summary judgment, R. 11, is
GRANTED in part and DENIED in part, and the case is REMANDED to the Social
Security Administration for further proceedings consistent with this opinion.
IT IS FURTHER ORDERED that the Commissioner’s motion for summary
judgment, R. 12, is DENIED.
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The court will enter a separate judgment.
Signed on December 28, 2012
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