Bishop v. SSA
Filing
14
MEMORANDUM OPINION AND ORDER: (1) 12 Motion for Summary Judgment is GRANTED. (2) 13 Motion for Summary Judgment is DENIED. (3) Decision of SSA is REVERSED and this matter is REMANDED to Commissioner for further proceedings consistent w this Opinion and ORder. Signed by Judge Joseph M. Hood on 1/9/2014. (SCD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
MICHAEL BISHOP,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
Civil Case No.
5:13-cv-200-JMH
MEMORANDUM OPINION
AND ORDER
***
This
matter
is
before
the
Court
upon
cross-motions
for
Summary Judgment [D.E. 12, 13] on Plaintiff’s appeal of the
Commissioner’s
denial
of
his
application
for
a
period
of
disability and disability insurance benefits under Title II and
an
application
for
Supplemental
Security
Income
(SSI)
under
Title XVI. [Tr. 44-55].1 The Court, having reviewed the record
and being otherwise sufficiently advised, will grant Plaintiff’s
motion, deny the Commissioner’s motion, and remand this matter
for reconsideration consistent with this Opinion.
I. Overview of the Process and the Instant Matter
The
Administrative
Law
Judge
("ALJ"),
in
determining
disability, conducts a five-step analysis:
1
These are not traditional Rule 56 motions for summary
judgment. Rather, it is a procedural device by which the parties
bring the administrative record before the Court.
1.
An individual who is working and engaging in
substantial
gainful
activity
is
not
disabled,
regardless of the claimant's medical condition.
2.
An individual who is working but does not have a
"severe" impairment which significantly limits his
physical or mental ability to do basic work activities
is not disabled.
3.
If an individual is not working and has a severe
impairment which "meets the duration requirement and
is listed in appendix 1 or is equal to a listed
impairment(s)", then he is disabled regardless of
other factors.
4.
If a decision cannot be reached based on current
work activity and medical facts alone, and the
claimant has a severe impairment, then the Secretary
reviews the claimant's residual functional capacity
and the physical and mental demands of the claimant's
previous work. If the claimant is able to continue to
do this previous work, then he is not disabled.
5.
If the claimant cannot do any work he did in the
past because of a severe impairment, then the
Secretary considers his residual functional capacity,
age, education, and past work experience to see if he
can do other work.
If he cannot, the claimant is
disabled.
Preslar v. Sec'y of Health & Human Servs., 14 F.3d 1107, 1110
(6th Cir. 1994) (citing 20 C.F.R. § 404.1520 (1982)).
"The
burden of proof is on the claimant throughout the first four
steps of this process to prove that he is disabled." Id.
"If
the analysis reaches the fifth step without a finding that the
claimant
is
Secretary."
not
disabled,
the
burden
transfers
to
the
Id.
In the instant matter, the ALJ determined that Plaintiff
did
not
engage
in
substantial
2
gainful
activity
during
the
relevant time period under step one. [Tr. 46]. Under step two,
the
ALJ
found
that
Plaintiff’s
medically
determinable
impairments of neck pain secondary to bulging disks, back pain
secondary
to
lumbar
cognitive
disorder,
depressive
disc
disorder,
defined
by
404.1520(c),
the
bulges,
personality
and
agency’s
416.920(c)
impingement
disorder,
anxiety
disorder
regulations.
(2012).
The
pain
were
[Tr.
ALJ
syndrome,
mild
disorder,
“severe”
47];
further
20
as
CFR
found
§§
that
Plaintiff’s impairments of diverticulosis and hearing loss were
“non-severe” impairments. [Tr. 47].
During step three of the analysis, the ALJ considered all
of Plaintiff’s impairments and determined that none of them met
the criteria listed in 20 CFR pt. 404, subpt. P, app. 1. [Tr.4748].
After
further
review
of
the
entire
record,
the
ALJ
concluded at step four that Plaintiff had a residual functional
capacity (RFC) to perform less than the full range of light
work.
[Tr.
48].
The
ALJ
found
Plaintiff
had
the
following
exertional and non-exertional limitations: he is limited to no
lifting/carrying more than 20 pounds occasionally, ten pounds
frequently, no standing/walking more than six hours out of an
eight hour day, and no sitting for more than six hours out of an
eight
hour
day.
The
ALJ
determined
that
Plaintiff
could
occasionally push/pull or reach with the left upper extremity,
frequently push/pull or reach with the right upper extremity,
3
occasionally push or pull with the right lower extremity and
must have no requirement for operation of foot pedal controls
with the right lower extremity. Plaintiff may occasionally climb
ramps
or
stairs,
never
climb
ladders,
ropes,
or
scaffolds,
occasionally balance, stoop, kneel, and crouch, may never crawl,
and
should
unprotected
avoid
full-body
heights
or
vibration
dangerous
and
hazards
machinery.
The
such
ALJ
as
further
limited Plaintiff by finding that he required an object focused
work environment in which contact with coworkers and supervisors
is
casual
and
occasional
in
a
non-public
work
setting,
and
simple repetitive work tasks. The ALJ determined that Plaintiff
can maintain attention and concentration for two-hour segments
during
changes
an
in
environment
eight-hour
a
routine
where
workday,
work
there
is
is
able
environment,
no
to
adapt
and
requirement
to
gradual
must
be
in
an
for
fast-paced
production quotas or goals. [Tr. 48-49].
The ALJ found that Plaintiff was unable to perform any of
his past relevant work. [Tr. 53]. The ALJ further found that
there were jobs in the national economy that Plaintiff could
perform. [Tr. 54]. Thus, the ALJ determined that Plaintiff is
not disabled under the Social Security Act. [Tr. 55].
In this appeal, Plaintiff argues that the ALJ erred by
failing
to
give
appropriate
weight
to
the
opinion
of
the
treating physician, the ALJ erred by failing to consider all of
4
Plaintiff’s impairments, and that the ALJ’s decision was not
supported by substantial evidence.
II. Standard of Review
In
reviewing
the
ALJ's
decision
to
deny
disability
benefits, the Court may “not try the case de novo, nor resolve
conflicts in the evidence, nor decide questions of credibility.”
Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th
Cir. 1994) (citations omitted).
Instead, judicial review of the
ALJ's decision is limited to an inquiry into whether the ALJ's
findings were supported by substantial evidence, 42 U.S.C. §
405(g); Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001)
(citations omitted), and whether the ALJ employed the proper
legal standards in reaching her conclusion. See Landsaw v. Sec'y
of Health & Human Servs., 803 F.2d 211, 213 (6th Cir. 1986).
“Substantial evidence is more than a scintilla of evidence but
less than a preponderance; it is such relevant evidence as a
reasonable
mind
conclusion.”
might
accept
as
adequate
to
support
a
Cutlip, 25 F.3d at 286 (citations omitted).
III. Factual and Procedural Background
Plaintiff
was
37
years
old
at
the
time
of
alleged
disability [D.E. 54], and has a high school education. [D.E.
54]. Plaintiff entered the military after high school and was
discharged due to a personality disorder. [Tr. 841]. Plaintiff
has past relevant work as a machine repairer, billboard hanger,
5
gluer, gas pump repairer, garage door installer, and inventory
clerk. [D.E. 53]. Plaintiff filed a Title II application for
disability benefits and a Title XVI application for Supplemental
Security Income (SSI), alleging disability beginning on May 31,
2007. [Tr. 44]. The claims were denied both initially and upon
reconsideration. [Tr. 44]. Plaintiff requested a hearing with
the ALJ, which took place on June 14, 2012. [Tr. 44]. The ALJ
issued
an
unfavorable
decision
denying
disability
insurance
benefits and SSI on July 27, 2012. [Tr. 55].
According to Plaintiff, he has lower back pain, pain in
both
shoulders,
right
leg
pain,
and
stomach
problems.
[D.E.
194]. Plaintiff claims that the pain is constant. [D.E. 195].
Plaintiff treats his pain with stretching and pain medications.
[D.E. 195]. Plaintiff testified at the hearing that he takes
oxycodone, Neurontin, and Para Forte for his pain. [Tr. 853].
Dr. Bennett Asher treated Plaintiff from June 1998 to June
2010. Dr. Asher treated Plaintiff for shoulder pain, [Tr. 524],
severe back pain, [Tr. 522], depression, anxiety, [Tr. 516], and
diverticulitis. [Tr. 508].
An
MRI
degenerative
of
disc
the
lumbar
disease
spine
in
led
January
to
of
a
diagnosis
2004.
[Tr.
of
476].
Plaintiff was evaluated at Central Kentucky Pain Management on
February 20, 2004. [Tr. 301-302]. He had difficulty walking on
his heels and toes, as well as an antalgic gait to the right
6
side. [Tr. 302] At that time, an MRI revealed an annular tear in
the L5-S1, and broad based disc protrusion. [Tr. 302].
On March 13, 2008, Plaintiff was seen at Saint Joseph Mount
Sterling Hospital. The radiology report indicates that Plaintiff
was diagnosed with acute sigmoid diverticulitis. [Tr. 326; 336].
On July 16, 2008, Plaintiff was examined by Dr. Kip Beard, who
found evidence of a left clavicle fracture, with moderate pain
in the left shoulder and mild pain in the right shoulder. [Tr.
350].
Plaintiff underwent a psychological evaluation performed by
Dr.
Geraldo
determined
Lima
that
instructions,
but
on
July
19,
Plaintiff
has
2008.
was
[Tr.
able
difficulty
to
recalling
351-54].
Dr.
understand
that
Lima
simple
information.
[Tr. 354]. Additionally, Dr. Lima found that Plaintiff could
concentrate, perform tasks in a normal amount of time, and his
ability to cope with the pressures of a work environment were
minimally reduced. [Tr. 354]. Plaintiff was again examined by
Dr. Lima on June 15, 2009. [Tr. 397-400]. At this time, Dr. Lima
deviated from his previous evaluation by determining, due to
being irritable, Plaintiff was unlikely to do well in social
contexts. [Tr. 400].
An
August
degenerative
447].
disc
2007
report
disease
Additionally,
in
indicates
the
Plaintiff
lower
had
7
a
that
Plaintiff
cervical
displaced
spine.
had
[Tr.
clavicular
fracture in the left shoulder. [Tr. 448]. On September 4, 2008,
an MRI of Plaintiff’s lumbar spine revealed a bulge at the L4-5,
with no significant central canal stenosis, and no direct nerve
root impingement. [Tr. 371]. At L5-S1, there was central disc
bulge
with
no
central
canal
stenosis
or
neural
foraminal
narrowing. [Tr. 371]. In December 2008, Plaintiff went to the
St. Claire Regional Medical Center for abdomen pain. The pain
was
determined
to
be
caused
by
sigmoid
diverticulosis.
[Tr.
379].
Plaintiff
southeastern
Respectable
September
also
visited
United
States.
Medical
2010
to
multiple
Group
January
[Tr.
in
clinics
850-51].
Rock
2011.
pain
Hill,
[Tr.
across
Plaintiff
South
visited
Carolina
554-614].
At
the
his
from
last
visit, January 25, 2011, Plaintiff was described as doing well
on medications, oxycodone, and, as a result, his quality of life
and pain relief had improved. [Tr. 555]. Plaintiff was also a
patient at Prime Health Group in Norcross, Georgia from June
2011 to January 2012. [Tr. 664-87]. At this facility, Plaintiff
was prescribed oxycodone, Xanax, Neurontin, and Paxil to help
with back, neck, and shoulder pain. [Tr. 684].
Plaintiff was referred to Dr. Mary Allen Genthner for a
psychological evaluation on March 25, 2011. [Tr. 616-24]. Dr.
Genthner
determined
that
Plaintiff
could
follow
simple
instructions, but could not follow detailed instructions. [Tr.
8
622]. Plaintiff was mildly to moderately limited in his ability
to carry out simple repetitive tasks, his attention skills were
mildly to moderately limited, his ability to relate to employers
and coworkers was mildly to moderately limited, his capacity to
deal
with
the
public
was
mildly
to
moderately
limited,
and
simple changes in routine were likely to be overwhelming to
Plaintiff. [Tr. 622].
Dr. Samuel Welch, who began seeing Plaintiff in January
2012, completed a mental impairment questionnaire on May 15,
2012. [Tr. 695-98]. Dr. Welch opined that Plaintiff had moderate
limitations in activities of daily living, marked difficulties
in
maintaining
concentrating,
social
and
unknown
functions,
episodes
frequent
of
difficulties
decompensation.
[Tr.
698].
The New Hope Clinic treated Plaintiff from January 2012 to
May 2012 [Tr. 699], where he was diagnosed with disk disease of
the lumbar spine and diverticulosis. [Tr. 709]. Additionally,
Plaintiff was treated at Pathways for mental health impairments.
[Tr. 728-748]. Plaintiff was diagnosed with depressive disorder
and
anxiety
disorder.
[Tr.
735].
Consequently,
Plaintiff
was
prescribed Cymbalta. [Tr. 739].
Vocational
expert
Martha
Goss
testified
at
the
hearing
before the ALJ. [Tr. 870]. Ms. Goss testified that a person with
an RFC equivalent to the ALJ’s RFC finding for Plaintiff would
9
not be able to return to Plaintiff’s past relevant work. [Tr.
875]. However, Ms. Goss found that there would be jobs in the
national economy that someone with that RFC assessment could
perform.
[Tr.
875].
Ms.
Goss
testified
that
a
hypothetical
person could perform no jobs in the national economy if that
person were limited to sedentary exertional level and had to
miss work twice a month. [Tr. 876-77].
Plaintiff is able to walk 10 minutes at a time, with the
assistance of a cane, [Tr. 856], can stand for anywhere from 5
to 30 minutes, [Tr. 857], can sit for up to an hour, [Tr. 857],
and cannot lift over 10 pounds. [Tr. 857]. Plaintiff spends most
of his time watching television, [Tr. 863], and occasionally
uses a laptop to communicate with friends and check the news.
[Tr. 868]. Plaintiff claims he needs help with personal hygiene,
[Tr. 196], help with getting dressed, [Tr. 196], he does not
cook,
[Tr.
197],
sometimes
is
able
to
help
with
household
chores, [Tr. 197], and has a driver’s license, but does not
drive, unless it is absolutely necessary. [Tr. 840, 855].
IV. Analysis
The
weight
ALJ
to
failed
the
to
give
treating
good
reasons
physician’s
for
giving
opinions;
little
thus,
the
Commissioner’s decision must be reversed and remanded. Plaintiff
argues the treating physician rule was not followed because the
opinion of the treating physician was completely ignored. “[A]n
10
opinion from a medical source who has examined a claimant is
given more weight than that from a source who has not performed
an examination (a nonexamining source), and an opinion from a
medical source who regularly treats the claimant (a treating
source) is afforded more weight than that from a source who has
examined the claimant but does not have an ongoing treatment
relationship
Social
(a
Sec.,
nontreating
710
F.3d
365,
source).”
375
Gayheart
(6th
Cir.
v.
2013)
Comm’r
of
(citations
omitted). “Treating-source opinions must be given ‘controlling
weight’ if two conditions are met: (1) the opinion ‘is wellsupported
by
medically
acceptable
clinical
and
laboratory
diagnostic techniques’; and (2) the opinion ‘is not inconsistent
with the other substantial evidence in the case record.’” Id. at
376 (quoting 20 CFR § 404.1527(c)(2)).
“The Commissioner is required to provide ‘good reasons’ for
discounting the weight to a treating-source opinion.” Id. at 376
(citing
20
‘supported
CFR
by
§
the
404.1527(c)(2)).
evidence
in
the
“These
case
reasons
record,
and
must
be
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.’” Id. (quoting Soc.
Sec. Rul. No. 96-2p, 1996 WL 374188, at *5 (Soc. Sec. Admin.
July 2, 1996)). “[The Court] will reverse and remand a denial of
benefits, even though ‘substantial evidence otherwise supports
11
the decision of the Commissioner,’ when the ALJ fails to give
good
reasons
for
discounting
the
opinion
of
the
claimant’s
treating physician.” Friend v. Comm’r of Soc. Sec., 374 F. App’x
543, 551 (6th Cir. 2010) (quoting Wilson v. Comm’r of Soc. Sec.,
378 F.3d 541, 543-46 (6th Cir. 2004)).
The ALJ failed to provide good reasons for affording the
opinion of the treating physician, Dr. Bennett Asher, little
weight. The only opinion discussed by the ALJ when providing an
explanation for the weight given to the opinion was Dr. Asher’s
opinion that the claimant was unable to work. See [Tr. 52]. This
opinion is not subject to the treating physician rule. See Soc.
Sec. Rul. No. 96-5p, 1996 WL 374183, at *2 (Soc. Sec. Admin.
July 2, 1996) (declaring that the determination of whether an
individual is disabled is “reserved to the Commissioner”).
However, this was not the only opinion expressed by Dr.
Asher.
The
ALJ
explicitly
noted
Dr.
Asher’s
opinions
that
Plaintiff’s pain would interfere with Plaintiff’s attention and
concentration and that due to the pain and anxiety, Plaintiff
would be unable to deal with others on the job. [Tr. 52]. The
ALJ did not even attempt to explain why these opinions should be
afforded
little
weight.
The
ALJ’s
only
reason
for
giving
Plaintiff’s treating physician little weight was that Plaintiff
had “not generally received the type of medical treatment one
would expect for a totally disabled individual.” [Tr. 52]. The
12
ALJ did not even attempt to explain why Dr. Asher’s opinions on
the severity of Plaintiff’s inability to concentrate and deal
with others were not given great weight. See Friend, 375 F.
App’x
at
552
(“[T]here
must
be
some
effort
to
identify
the
specific discrepancies and to explain why it is the treating
physician’s conclusion that gets the short end of the stick.”);
Sharp
v.
Barnhart,
(citations
specific
omitted)
diagnoses
152
F.
(“In
App’x
the
503,
face
introduced
of
by
510
(6th
extensive
Cir.
2005)
records
[plaintiff],
the
and
ALJ’s
generalized comment that the treating physicians’ opinions were
not ‘based on a solid clinical and diagnostic foundation,’ with
no
elaboration
or
detail,
does
not
satisfy
the
procedural
requirements for rejecting a treating physician’s opinion laid
out in § 404.1527(d)(2).”).
The explanation given by the ALJ in this case, that the
treatment is not consistent with a person that is disabled, is
similar to a “good reason” rejected by the Sixth Circuit. The
Sixth Circuit found that the notice requirement was not met when
the ALJ simply stated that “the record does not support the
limitations
of
severity
suggested
by
Dr.
Stein.”
Rogers
v.
Comm’r of Soc. Sec., 486 F.3d 234, 245-46 (6th Cir. 2007). The
statement by the ALJ in this case, that “the claimant has not
generally
received
the
type
of
medical
treatment
one
would
expect for a totally disabled individual” [Tr. 52], is no less
13
deficient.
This
statement
fails
to
fulfill
the
reasons
for
having a notice giving requirement. See Wilson v. Comm’r of Soc.
Sec., 378 F.3d 541, 544 (quoting Snell v. Apfel, 177 F.3d 128,
134 (2d Cir. 1999)) (internal quotation marks omitted) (citing
Halloran v. Barnhart, 362 F.3d 28, 32-33 (2d Cir. 2004)) (“The
requirement of reason-giving exists, in part, to let claimants
understand the disposition of their cases . . . [,] ensures that
the
ALJ
applies
the
treating
physician
rule[,]
and
permits
meaningful review of the ALJ’s application of the rule.”).
Furthermore, when great weight is not given to the opinion
of
a
treating
physician
the
ALJ
is
required
to
“apply
the
factors listed in paragraphs (c)(2)(i) and (c)(2)(ii) of [20 CFR
§ 404.1527], as well as the factors in paragraphs (c)(3) through
(c)(6) of [20 CFR § 404.1527] in determining the weight to give
the opinion.” 20 CFR § 404.1527(c)(2).
Even if the ALJ does not give controlling weight to a
treating physician’s opinion, he must still consider
how much weight to give it; in doing so, the ALJ must
take into account the length of the treatment
relationship, frequency of examination, the extent of
the physician’s knowledge of the impairment(s), the
amount of relevant evidence supporting the physician’s
opinion, the extent to which the opinion is consistent
with the record as a whole, whether or not the
physician is a specialist, and any other relevant
factors tending to support or contradict the opinion.
Friend, 375 F. App’x at 550 (citing 20 CFR § 404.1527(d)(2)(6)). The ALJ did not assess any of the factors listed in 20 CFR
§ 404.1527; thus, this matter must be remanded to the ALJ.
14
The ALJ’s failure to provide good reasons for giving little
weight
to
Plaintiff’s
treating
physician
does
not
amount
to
harmless error.
[A] violation of the [treating physician] rule might
be ‘harmless error’ if (1) ‘a treating source’s
opinion is so patently deficient that the Commissioner
could
not
possibly
credit
it’;
(2)
‘if
the
Commissioner adopts the opinion of the treating source
or makes findings consistent with the opinion’; or (3)
‘where the Commissioner has met the goal of §
1527(d)(2) . . . even though she has not complied with
the terms of the regulation.
Friend, 375 F. App’x at 551 (quoting Wilson, 378 F.3d at 547).
The
treating
Commissioner
physician
has
not
adopted
the
because
the
Commissioner
opinion
denied
of
the
Plaintiff
disability benefits and the treating physician opined that the
physical impairments were so severe that Plaintiff was unable to
work. Additionally, the ALJ’s RFC assessment did not include the
functional limitations included in Dr. Asher’s RFC assessment.
The treating physician’s opinion is also not “so patently
deficient that the Commissioner could not possibly credit it.”
Wilson,
378
F.3d
at
547.
Dr.
Asher’s
opinion
is
based
upon
treatment of Plaintiff that spans almost 12 years. [Tr. 505-37].
Dr. Asher completed a physical capacities evaluation in June
2010 [Tr. 506] and an RFC evaluation in May 2012. [Tr. 690-94].
Both of these evaluations provided the ALJ with opinions on
Plaintiff’s
functional
capabilities
based
upon
Dr.
Asher’s
diagnoses and treatment of Plaintiff’s medical conditions. Under
15
these
circumstances,
the
opinion
of
the
treating
physician
cannot be considered “patently deficient.”
The ALJ’s decision also does not fulfill the goals of the
treating physician rule. In determining whether the goals of the
reasons giving requirement are met, the Court will review the
decision “to see if it implicitly provides sufficient reasons
for the rejection of the treating physician’s opinion not merely
whether it indicates that the ALJ did reject that opinion.”
Friend, 375 F. App’x at 552 (quoting Hall v. Comm’r of Soc.
Sec.,
148
F.
App’x
456,
464
(6th
Cir.
2006)).
The
ALJ
did
discuss other record evidence, but merely described the medical
findings
and
opinions
of
non-treating
physicians.
A
mere
recitation of the findings of other medical professionals does
not allow Plaintiff to understand why he was denied benefits.
Additionally,
this
recitation
does
not
allow
the
Court
to
conduct a meaningful review of the ALJ’s application of the
treating physician rule. Therefore, the ALJ’s failure to comply
with the treating physician rule is not harmless error and the
matter must be reversed and remanded.
The Court will not address Plaintiff’s argument that the
Commissioner’s
decision
was
not
supported
by
substantial
evidence and, therefore, makes no finding as to whether the
Commissioner’s decision was supported by substantial evidence.
“[T]o
recognize
substantial
evidence
16
as
a
defense
to
non-
compliance with § 1527(d)(2), would afford the Commissioner the
ability
the
[sic]
violate
the
regulation
with
impunity
and
render the protections promised therein illusory.” Wilson, 378
F.3d at 546. Thus, as the ALJ violated the treating physician
rule,
whether
substantial
Commissioner’s
the
Commissioner’s
evidence
decision
has
should
be
was
supported
bearing
no
decision
by
on
whether
the
reversed
and
remanded.
See
Blakely v. Comm’r of Soc. Sec., 581 F.3d 399, 410 (6th Cir.
2009) (citing Wilson, 378 F.3d at 546) (“[E]ven if we were to
agree that substantial evidence supports the ALJ’s weighing of
each of these doctors’ opinions, substantial evidence alone does
not excuse non-compliance with 20 C.F.R. § 404.1527(d)(2) as
harmless error.”).
Plaintiff’s other argument, that the ALJ failed to consider
all of Plaintiff’s impairments in issuing the decision, does not
require
reversal.
Plaintiff
argues
that
the
ALJ
failed
to
consider all of Plaintiff’s impairments and the combined effects
of those impairments. According to Plaintiff, he became disabled
due to “severe chronic back, neck and shoulder pain along with
anxiety and depression.” [D.E. 12-1 at 2]. In determining that
Plaintiff did not have a combination of impairments that equaled
the severity of one of the listed impairments in 20 CFR Part
404,
Subpart
P,
Appendix
1,
the
ALJ
expressly
Plaintiff’s pain and mental impairments. [Tr. 47-48].
17
discussed
The ALJ did not find Plaintiff’s degenerative disc disease
severe because there was “no evidence of nerve root compression
or neurological defect.” [Tr. 47]. The ALJ found that the left
shoulder pain was not severe because there was “no evidence of
extreme
loss
of
function
of
both
upper
extremities
and
the
claimant’s upper extremity impairment does not meet or equal
section 1.02(B).” [Tr. 47]. The ALJ further stated that the
complaint of constant pain had been considered, but the details
provided by Plaintiff were not convincing. [Tr. 47].
The ALJ considered Plaintiff’s allegations of disability
due
to
mental
impairments,
impairments
“singly
and
and
in
determined
combination,
that
do
the
not
mental
meet
or
medically equal the criteria of listings 12.02 and 12.08.” [Tr.
47]. The ALJ then went through each category of the paragraph B
criteria and determined that the mental impairments did not meet
two of the paragraph B criteria; thus, the mental impairments
did not result in a disability due to Paragraph B. [Tr. 47-48].
The ALJ also considered whether the mental disability resulted
in a severe impairment under the Paragraph C criteria. [Tr. 48].
Plaintiff’s argument that the ALJ did not consider the combined
effects
of
the
impairments
is
unavailing
because
the
ALJ
explicitly discussed the effects of Plaintiff’s impairments. See
Gooch v. Sec. of Health & Human Servs., 833 F.2d 589, 592 (6th
Cir. 1987) (“[T]he fact that each element of the record was
18
discussed individually hardly suggests that the totality of the
record was not considered, particularly in view of the fact that
the ALJ specifically referred to a ‘combination of impairments’
in deciding that [plaintiff] did not meet the ‘listings.’”).
V. Conclusion
Accordingly, based on the foregoing, IT IS ORDERED:
(1)
that Plaintiff’s Motion for Summary Judgment [D.E. 12]
be, and the same hereby is, GRANTED;
(2)
that Defendant’s Motion for Summary Judgment [D.E. 13]
be, and the same hereby is, DENIED;
(3)
the decision of the Commissioner is REVERSED, and this
matter is REMANDED to the Commissioner for further proceedings
consistent with this Opinion and Order.
This the 9th day of January, 2014.
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