Dick v. SSA
Filing
13
MEMORANDUM OPINION & ORDER: (1) that Plaintiff's Motion for Summary Judgment [D.E. 11 ] be, and the same hereby is, GRANTED; (2) that Defendant's Motion for Summary Judgment [D.E. 12 ] be, and the same hereby is, DENIED. Signed by Judge Joseph M. Hood on Joseph M. Hood.(RBB)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at LONDON
RONALD LEE DICK,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
Civil Case No.
6:13-cv-258-JMH
MEMORANDUM OPINION
AND ORDER
***
This
matter
is
before
cross-motions
for
Summary Judgment [D.E.
11, 12] on Plaintiff’s appeal of
the
Commissioner’s
of
denial
the
his
Court
upon
application
for
supplemental
security income. [Tr. 20-26].1 The Court, having reviewed the
record
and
being
otherwise
sufficiently
advised,
will
grant
Plaintiff’s motion and deny Defendant’s motion.
I. Overview of the Process and the Instant Matter
The
Administrative
Law
Judge
("ALJ"),
in
determining
disability, conducts a five-step analysis:
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
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.
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 & Hum. 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
gainful
activity
during
the
relevant time period under step one. [Tr. 22]. Under step two,
the
ALJ
found
that
Plaintiff’s
medically
determinable
impairments of peripheral artery disease, right leg ischemia,
2
degenerative disc disease, and diverticulitis were “severe” as
defined
by
the
agency’s
regulations.
[Tr.
22];
20
CFR
§§
404.1420(c), 416.920(c).
During step three of the analysis, the ALJ considered all
of Plaintiff’s impairments and decided that none of them met the
criteria in 20 C.F.R. pt. 404, subpt. P, app. 1. [Tr. 22]. After
further review of the record, the ALJ concluded at step four
that Plaintiff had a residual functional capacity (“RFC”) to
perform light work except that Plaintiff was limited to sitting
four hours of an eight hour workday, standing two hours of an
eight
hour
workday,
walking
for
two
hours
of
an
eight
hour
workday, and should have a sit/stand option with alternating
intervals of one hour. Further, Plaintiff is unable to climb
ladders,
ropes,
or
scaffolds,
is
unable
to
crawl,
can
only
occasionally climb ramps and stairs, can occasionally balance,
and can frequently stoop, kneel, and crouch. [Tr. 22-24].
The ALJ found that Plaintiff had no past relevant work.
[Tr. 24]. However, there were jobs in the national economy that
Plaintiff could perform. [Tr. 25]. Thus, the ALJ determined that
Plaintiff is not disabled under the Social Security Act. [Tr.
25-26].
In this appeal, Plaintiff argues that the ALJ erred when
assessing weight to the medical opinion evidence of record, that
the ALJ failed to account for all of Plaintiff’s limitations in
3
his RFC assessment, and that the Court should remand to the
Appeals Council because Plaintiff was determined to be disabled
when he filed his second application for benefits.
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 & Hum. 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 & Hum. 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
conclusion."
mind
might
accept
as
adequate
to
support
a
Cutlip, 25 F.3d at 286 (citations omitted).
III. Factual and Procedural Background
Plaintiff was 48 years of age at the time he filed his
application for supplemental security income (SSI) and has a
limited education. [Tr. 24]. Plaintiff has no past relevant work
experience. [Tr. 24]. Plaintiff filed a Title XVI application
4
for SSI, alleging disability on June 28, 2010. [Tr. 20]. The
claims were denied initially and upon reconsideration. [Tr. 20].
Plaintiff requested a hearing with the ALJ, which took place on
September
8,
2011.
[Tr.
20].
The
ALJ
issued
an
unfavorable
decision denying SSI benefits on December 28, 2011. [Tr. 26].
According to Plaintiff, he has daily pain in his back,
stomach, legs, and hips, which he describes as sharp, throbbing,
and numbing. [Tr. 163-64]. Plaintiff treats his pain with pain
medication
and
rest.
[Tr.
164].
Plaintiff
takes
Pravachol,
Temazepam, Lortab, Plavix, and Bayer. [Tr. 183].
Plaintiff
regularly
visited the Lake Cumberland Regional
Hospital for treatment of his impairments. On September 3, 2009,
Plaintiff
presented
complaining
of
fever,
chills,
and
sore
throat. [Tr. 207]. On July 7, 2010, Plaintiff was discharged
from the hospital after being treated for diverticulitis. [Tr.
215]. On June 28, 2010, Plaintiff underwent a procedure for left
basilica vein PICC line placement. [Tr. 216]. Shortly after the
PICC
line
surgery
abscess.
placement,
to
repair
[Tr.
supragenicular
bypass
with
Plaintiff
a
underwent
ruptured
239].
Plaintiff
popliteal
artery
reverse
saphenous
segmental
diverticulum
also
to
vein
with
underwent
posterior
and
an
resection
pericolic
a
right
tibial
artery
intraoperative
angiogram to treat his right lower extremity ischemia. [Tr. 26162]. On October 29, 2010, Plaintiff underwent “bilateral lower
5
extremity
angiograms,
AngioJet,
right
right
anterior
anterior
tib
tib
peroneal
and
and
posterior
posterior
tib
tib,
percutaneous transluminal angioplasty, right popliteal artery,
and covered stent placement, right anterior tib proximal stent
placement, left lower extremity angiogram.” [Tr. 263-65]. These
procedures were performed to treat Plaintiff’s post bilateral
iliac
thrombosis
and
stenting,
bilateral
lower
extremity
residual clot, and post thrombolytic therapy. [Tr. 263].
A CT of the abdomen and pelvis on June 26, 2010 revealed a
marked thickening of the sigmoid colon and multiple diverticula
consistent with diverticulitis. [Tr. 235]. A CT of the abdomen
and
pelvis
lateral
on
to
July
the
nephrolithiasis,
17,
2011
rectus
revealed
muscle,
bilateral
common
a
fat
containing
hernia
nonobstructing
right
iliac
stents,
surgical
anastomosis in the sigmoid region, scattered diverticulosis with
diverticulitis, an enlarged prostate, and degenerative spurring
and disc disease of the thoracolumbar spine. [Tr. 458]. On April
18, 2011, a bilateral lower extremity arterial Doppler study
indicated
severe
atherosclerotic
obstructive
disease
on
the
right and mild to moderate trifurcation disease on the left.
[Tr. 482].
Plaintiff visited Dr. Gregory Sherry for medical care. Dr.
Sherry assessed Plaintiff with diverticulitis, cigarette abuse,
peripheral
vascular
disease,
and
6
acute
right
lower
extremity
ischemia. [Tr. 434]. Dr. Sherry completed an RFC assessment of
Plaintiff
on
diagnosed
Plaintiff
disease,
and
November
26,
with
ischemia.
2010.
[Tr.
427-29].
diverticulitis,
[Tr.
428].
Dr.
Dr.
peripheral
Sherry
Sherry
vascular
opined
that
Plaintiff was capable of walking and standing less than one hour
in a workday, could sit two hours in a workday, and needed to be
able to alternate among positions. [Tr. 428]. Dr. Sherry further
stated
that
Plaintiff
was
advised
to
keep
his
right
lower
extremity elevated when he was in a seated position. [Tr. 429].
Dr. Richard J. Heuer, a treating physician who performed
several of Plaintiff’s surgeries, e.g., [Tr. 261], completed an
RFC
questionnaire
for
Plaintiff
on
December
31,
2010.
Dr.
Heuer’s assessment was based upon his diagnosis of Plaintiff’s
peripheral
artery
disease.
[Tr.
461].
Dr.
Heuer
opined
that
Plaintiff could walk and stand less than one hour in a workday
and needed the ability to alternate between positions at will.
[Tr. 461]. Dr. Heuer stated that Plaintiff was medically advised
to keep his right lower extremity elevated while in the seated
position. [Tr. 462].
Dr. Tommy Shelton, a treating physician, completed an RFC
assessment
of
Plaintiff
on
December
21,
2010.
[Tr.
490-92].
Based upon Dr. Shelton’s diagnosis of arterial thrombosis in the
lower extremities, he opined that Plaintiff could walk and stand
two hours in a workday and sit three hours in a workday. [Tr.
7
491]. Dr. Shelton further opined that Plaintiff would need to be
able
to
alternate
among
positions
at
will.
[Tr.
491].
Dr.
Shelton declined to express an opinion on whether Plaintiff was
required
to
sit
with
his
right
lower
extremity
elevated,
indicating that Dr. Heuer should make that decision. [Tr. 492].
Plaintiff
underwent
a
consultative
examination
with
Dr.
Omar Chavez. [Tr. 243-48]. Dr. Chavez found that Plaintiff had
normal muscle strength, had a normal gait, could walk on his
heels and toes, could squat, and could get up from a chair. [Tr.
245]. Testing performed by Dr. Chavez revealed that there was a
mild
decrease
in
the
range
of
motion
in
Plaintiff’s
lumbar
region. [Tr. 245]. Dr. Chavez diagnosed Plaintiff with chronic
lumbar
pain,
diverticular
disease
of
the
colon,
status-post
temporary colostomy, and dyslipidemia. [Tr. 245].
Vocational
expert
Mr.
William
Ellis
testified
at
the
hearing before the ALJ. [Tr. 43-47]. Mr. Ellis testified that a
person with an RFC equivalent to the ALJ’s finding for Plaintiff
would be able to perform jobs in the national economy. [Tr. 4445]. Mr. Ellis also testified that a sit/stand option would
preclude all jobs at the medium exertional level, but would
allow for jobs at the light or sedentary level. [Tr. 45].
Plaintiff claims that he is unable to take care of his
personal needs and requires help from his girlfriend. [Tr. 165].
Plaintiff is unable to perform household chores and does not do
8
any shopping. [Tr. 166]. Plaintiff alleges that he stays tired
and does not have energy to go places. [Tr. 166].
IV. Analysis
Plaintiff claims five different grounds support remand of
the Commissioner’s decision. First, Plaintiff alleges that the
ALJ
improperly
gave
controlling
weight
to
the
opinion
of
consultative examiner, Dr. Omar Chavez. Second, Plaintiff argues
that the ALJ erred by failing to provide good reasons for not
giving controlling weight to Plaintiff’s treating physicians.
Next, Plaintiff argues that the ALJ improperly failed to include
in his RFC assessment that Plaintiff was required to elevate his
right leg while seated. Similarly, Plaintiff argues that the ALJ
failed
to
include
all
of
Plaintiff’s
limitations
in
the
hypothetical questions posed to the vocational expert. Finally,
Plaintiff argues that the Court should remand to the Appeals
Council so that the Appeals Council can consider the effect of
Plaintiff’s
subsequent
grant
of
disability
benefits
by
the
Commissioner.
Defendant responds by arguing that the ALJ was entitled to
rely on the opinion of Dr. Omar Chavez because Dr. Chavez’s
opinion
was
Defendant
reasons
supported
also
for
physicians
by
contends
giving
because
the
that
less
the
ALJ
medical
the
ALJ
weight
noted
9
evidence
properly
to
how
of
provided
Plaintiff’s
the
record.
good
treating
opinions
were
inconsistent
with
the
medical
evidence
of
record.
Next,
Defendant argues that the ALJ’s RFC assessment of Plaintiff is
supported by substantial evidence. Defendant argues that the ALJ
properly included all the limitations the ALJ found credible in
the
hypothetical
questions
posed
to
the
vocational
expert.
Finally, Defendant argues that Plaintiff has failed to show why
the new evidence submitted supports a remand to the Appeals
Council. Each of the issues will be discussed in turn.
I. The ALJ properly weighed the medical opinion of the
consultative examiner, Dr. Omar Chavez.
Plaintiff argues that the ALJ erred by giving great weight
to the opinion of consultative examiner, Dr. Omar Chavez.
[A]n 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 (a nontreating source).
Gayheart v. Comm’r of Social Sec., 710 F.3d 365, 375 (6th Cir.
2013)
(citations
nonexamining
omitted).
sources
are
“Opinions
never
from
assessed
nontreating
for
and
‘controlling
weight.’ The Commissioner instead weighs these opinions based on
the examining relationship (or lack thereof), specialization,
consistency, and supportability, but only if a treating-source
opinion is not deemed controlling.” Id. at 376 (citing 20 C.F.R.
§ 404.1527(c)).
10
The ALJ did not err by giving great weight to the opinion
of
Dr.
Omar
considering
Chavez.
Dr.
The
Chavez’s
ALJ
expressly
findings
stated
controlling
that
only
he
as
was
they
related to Plaintiff’s allegations of back pain. [Tr. 24] (“The
undersigned
regarding
gives
the
great
weight
claimant’s
to
back.”).
Dr.
None
Chavez’s
findings
of
treating
the
physicians opined that they had treated Plaintiff for back pain.
Thus, the ALJ found that the only opinion and objective medical
testing as to Plaintiff’s allegations of back pain was from Dr.
Chavez. Dr. Chavez noted a mild decrease in range of motion of
the lumbar spine based. [Tr. 245]. Furthermore, the ALJ noted a
lack of treatment notes from Plaintiff’s medical records as to
his
alleged
back
problems.
[Tr.
24].
Therefore,
the
ALJ’s
decision to give great weight to the opinion of Dr. Chavez as to
Plaintiff’s allegations of back pain is supported by substantial
evidence because Dr. Chavez’s report on Plaintiff’s back pain is
the only evidence of record.
II. The ALJ did not provide good reasons for giving
little weight to the opinions of Plaintiff’s treating
physicians, Drs. Shelton and Sherry.
Plaintiff argues that the ALJ failed to properly apply the
treating physician rule in giving little weight to the opinions
of Plaintiff’s treating physicians, Drs. Shelton, Sherry, and
Heuer.
11
[A]n 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 (a nontreating source).
Gayheart v. Comm’r of Social Sec., 710 F.3d 365, 375 (6th Cir.
2013)
(citations
omitted).
“Treating-source
opinions
must
be
given ‘controlling weight’ if two conditions are met: (1) the
opinion ‘is well-supported 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 C.F.R. § 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
C.F.R.
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 SSR 962p, 1996 WL 374188, at *5 (July 2, 1996)). “[The Court] will
reverse
and
‘substantial
remand
a
evidence
Commissioner,’
when
denial
otherwise
the
ALJ
of
benefits,
supports
fails
to
the
give
even
decision
good
though
of
the
reasons
for
discounting the opinion of the claimant’s treating physician.”
12
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, 54346 (6th Cir. 2004)).
The Court cannot find that the reason provided by the ALJ
for giving little weight to the opinion of Dr. Tommy Shelton was
a “good” reason. The only reason provided by the ALJ for giving
little weight to the opinion of Dr. Shelton is that Dr. Shelton
indicated Plaintiff’s impairment of diverticulitis was “stable.”
[Tr. 23]. The ALJ found that the treatment notes indicating
“stable” were inconsistent with the RFC questionnaire completed.
However, the term “stable” does not in any way conflict with Dr.
Shelton’s RFC questionnaire. The term “stable” is defined as
“not
changing
Dictionary,
(last
or
fluctuating.”
Merriam-Webster
Online
http://www.merriam-webster.com/dictionary/stable
visited
June
10,
2014)
(defining
“stable”).
A
doctor
indicating that a patient’s condition is not changing does not
in any way express an opinion on the severity of that patient’s
condition
or
Therefore,
a
any
note
limitations
stating
that
that
a
condition
condition
has
may
not
create.
changed
cannot conflict with an earlier opinion on the severity of the
condition. Thus, the ALJ failed to provide a good reason for
giving little weight to the opinion of Dr. Shelton, and the ALJ
erred
by
violating
the
treating
Shelton.
13
physician
rule
as
to
Dr.
Likewise, the reasons provided by the ALJ for giving little
weight to the opinion of Dr. Sherry are inadequate. The reasons
provided by the ALJ were that Dr. Sherry described Plaintiff has
stable,
doing
well,
and
Dr.
Sherry
did
not
change
his
medication. Again, this is not inconsistent with Dr. Sherry’s
assessment of the severity of Plaintiff’s impairments in the RFC
assessment completed by Dr. Sherry. An indication that Plaintiff
is stable means he is not spiraling downward or improving. A
lack of change in no way reflects whether Plaintiff has the
ability
to
perform
work-related
functions.
Therefore,
these
treatment notes cannot be inconsistent with Dr. Sherry’s RFC
questionnaire.
Thus,
the
ALJ
also
violated
the
treating
physician rule when he gave little weight to the opinion of Dr.
Sherry because he did not provide good reasons for the weight
given.
The ALJ provided good reasons for giving little weight to
the opinion of Dr. Heuer. The ALJ stated that he gave little
weight to the opinion of Dr. Heuer because Dr. Heuer’s latest
treatment notes indicated that Plaintiff had no symptoms, no
claudication, and was doing quite well. [Tr. 23-24]. The ALJ’s
reasons
are
supported
by
substantial
evidence.
Dr.
Heuer
completed his RFC assessment on December 31, 2010, [Tr. 460-62],
and the last treatment note relied upon by the ALJ was written
in April 2011. [Tr. 431]. The notes indicating “no symptoms” and
14
“no
claudication”
indicates
an
improvement
in
Plaintiff’s
condition from the Plaintiff’s previous follow-up appointment.
On December 29, 2010, which was the last visit prior to Dr.
Heuer completing the RFC questionnaire, Dr. Heuer noted that
Plaintiff’s foot was warm and pink, and it was still swelling.
[Tr. 295]. Thus, the ALJ put more emphasis on the later opinion
of Dr. Heuer, found in the letter to Dr. Sherry, than the RFC
questionnaire
completed
when
Plaintiff
was
recovering
from
surgery. Because the good reasons provided for giving little
weight to Dr. Heuer were supported by substantial evidence, the
ALJ did not violate the treating physician rule as to Dr. Heuer.
Due to the ALJ’s lack of good reasons for giving little weight
to Drs. Shelton and Sherry, this matter must be remanded to the
Commissioner for further consideration.
III. The ALJ failed to include all of Plaintiff’s
credible limitations in Plaintiff’s RFC assessment.
Plaintiff argues that the ALJ erred by not including the
limitation that Plaintiff had to keep his right leg elevated
while sitting in Plaintiff’s RFC assessment. An RFC is the most
a claimant can still do despite her limitations. 20 C.F.R. §
404.1545(a)(1).
The
RFC
assessment
is
based
upon
all
the
relevant evidence in the case record. Id. “Although [the Social
Security
sources
Administration]
on
issues
such
consider[s]
as
.
15
.
.
opinions
[a
from
claimant’s]
medical
residual
functional capacity . . . the final responsibility for deciding
these
issues
is
reserved
to
the
Commissioner.”
20
C.F.R.
§
416.927(d)(2). An ALJ’s RFC assessment will be upheld as long as
it is supported by substantial evidence. See Collins v. Comm’r
of Soc. Sec., 357 F. App’x 663, 670 (6th Cir. 2009) (“[W]e
therefore hold that the ALJ’s RFC determination is supported by
substantial evidence.”).
The ALJ’s RFC assessment was not supported by substantial
evidence. Plaintiff alleges that the ALJ erred by not including
a limitation that Plaintiff needed to sit with his right leg
elevated.
Two
treating
physicians
included
in
their
RFC
assessment that Plaintiff needed to have the ability to sit with
his leg elevated. [Tr. 429; 462].
diagnoses
of
treating
“The medical opinions and
physicians
are
generally
accorded
substantial deference, and if the opinions are uncontradicted,
complete deference.” Harris v. Heckler, 756 F.2d 431, 435 (6th
Cir. 1985) (citing King v. Heckler, 742 F.2d 968, 973 (6th Cir.
1984)). The ALJ did not cite to any evidence that contradicts
the limitation included by Plaintiff’s treating physicians.
The
ALJ’s
failure
to
discuss
or
include
the
limitation
imposed by Plaintiff’s treating physicians is similar to a case
previously decided by our sister court.
Even assuming the ALJ’s rejection of the treating
physician’s functional assessment is supported by
substantial evidence, the Court nevertheless concludes
16
that the ALJ’s RFC finding is not supported by
substantial
evidence.
The
RFC
decision
is
not
supported by any physician opinion in the record. The
record is devoid of any other physician opinions on
plaintiff’s
physical
functional
capacity
or
limitations. Unlike the typical Social Security case
this Court encounters, there are no RFC assessments
from the state agency reviewing physicians in this
matter. Nor are there any reports from consultative
physicians assessing plaintiff’s functional capacity
or limitations. . . . Thus, the ALJ’s RFC decision is
without any support from the opinions of any physician
of record.
Perkins
v.
Comm’r
of
Soc.
Sec.,
No.
1:10-cv-233,
2011
WL
2457817, at *6 (S.D. Ohio May 23, 2011), adopted by Perkins v.
2011 WL 2443950, at *1 (S.D. Ohio June 16, 2011).
Without
exclusion
of
medical
the
evidence
limitation
to
at
the
issue
contrary,
is
not
the
ALJ’s
supported
by
substantial evidence. “[W]hile an ALJ is free to resolve issues
of
credibility
as
to
lay
testimony,
or
to
choose
between
properly submitted medical opinions, the ALJ cannot substitute
his [or her] own lay medical opinion for that of a treating or
examining doctor.” Allen v. Comm’r of Soc. Sec., No. 12-15097,
2013 WL 5676254, at *15 (E.D. Mich. Sept. 13, 2013), adopted by
No. 12-15097-DT, 2013 WL 5676251, at *1 (E.D. Mich. Oct. 18,
2013) (citations omitted) (internal quotation marks omitted);
see also
Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999)
(“[T]he ALJ was simply not qualified to interpret raw medical
data in functional terms and no medical opinion supported the
determination.”).
Here,
the
only
17
physician
opinions
on
Plaintiff’s legs include the functional limitation of sitting
with
the
performed
right
lower
medical
leg
testing
elevated.
on
While
Plaintiff’s
Dr.
Omar
legs,
Chavez
the
ALJ
explicitly stated he was considering Dr. Chavez’s opinion only
as it related to Plaintiff’s allegations of back pain. [Tr. 24].
And
while
there
is
a
state
agency
physician
opinion
in
the
record, [Tr. 64-66], the ALJ did not cite this opinion in his
determination decision. Thus, the only physician opinions the
ALJ discussed in making his decision states that Plaintiff must
sit with his right leg elevated.
Accordingly, the ALJ’s RFC
determination, which fails to account for this limitation or
adequately explain why the limitation is not included in the
RFC, is not supported by substantial evidence. Therefore, this
matter must be remanded for further consideration.
IV. The ALJ did not include all of Plaintiff’s
credible limitations in the hypothetical questions
posed to the vocational expert.
Plaintiff argues
that the ALJ failed to include all of
Plaintiff’s credible limitations when asking the hypothetical
question to the vocational expert because it did not include the
limitation of sitting with the right leg elevated. When asking a
hypothetical question, the ALJ “is required to incorporate only
those limitations accepted as credible by the finder of fact.”
Casey v. Health & Hum. Servs., 987 F.2d 1230, 1235 (6th Cir.
1993)
(citations
omitted).
The
18
limitations
the
ALJ
finds
credible must be supported by substantial evidence. See Cooper
v. Comm’r of Soc. Sec., 217 F. App’x 450, 453 (6th Cir. 2007)
(“There
is
substantial
hypothetical
questions
[plaintiff’s]
vocational
evidence
posed
credible
expert’s
by
in
the
the
ALJ
record
accurately
limitations.”).
testimony
in
that
“In
response
to
the
portrayed
order
a
two
for
a
hypothetical
question to serve as substantial evidence in support of the
conclusion that a claimant can perform other work, the question
must
accurately
portray
a
claimant’s
physical
and
mental
impairments.” Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 516
(6th Cir. 2010) (citations omitted).
The ALJ relied on the hypothetical question that included
the ALJ’s RFC assessment in making his determination decision.
[Tr. 44-45]. “Because the hypothetical question simply restates
the
RFC,
and
because,
as
discussed
above,
the
RFC
does
not
accurately portray [Plaintiff’s] limitations, the hypothetical
question suffers from the same problems as the RFC, and thus the
ALJ erred in relying on the answer to this question.” White v.
Comm’r of Soc. Sec., 312 F. App’x 779, 789 (6th Cir. 2009).
Accordingly, this matter must be remanded to the ALJ for further
consideration.
V.
The
Commissioner’s
subsequent
decision
that
Plaintiff was entitled to benefits does not provide a
reason for remand.
19
Plaintiff argues that the case should be remanded pursuant
to 42 U.S.C. § 405(g) in light of the Commissioner’s decision,
on Plaintiff’s second application for benefits, that Plaintiff
was disabled. Effectively, Plaintiff requests a remand “because
new evidence has come to light that was not available to the
claimant at the time of the administrative proceeding and that
evidence
might
proceeding.”
Based
upon
have
Melkonyan
its
changed
v.
location
the
Sullivan,
within
42
outcome
501
of
89,
U.S.
U.S.C.
§
the
98
405(g),
prior
(1991).
this
is
referred to as a sentence six remand. For the Court to remand
under sentence six of 42 U.S.C. § 405(g), “it must be shown (i)
that the evidence at issue is both ‘new’ and ‘material,’ and
(ii) that there is ‘good cause for the failure to incorporate
such evidence into the record in a prior proceeding.’” Hollon ex
rel. Hollon v. Comm’r of Soc. Sec., 447 F.3d 477, 483 (6th Cir.
2006) (citations omitted). “[E]vidence is new only if it was not
in existence or available to the claimant at the time of the
administrative proceeding.”
(internal
quotation
marks
Id.
at 483-84 (citations omitted)
omitted).
Evidence
is
material
“if
there is a reasonable probability that the [Commissioner] would
have reached a different disposition of the disability claim if
presented with the new evidence.”
original)
(citations
omitted)
omitted).
20
Id.
at 484
(internal
(alteration in
quotation
marks
The Sixth Circuit has rejected an argument almost identical
to Plaintiff’s, and, thus, the Court finds that a sentence six
remand is not warranted.
[A] subsequent favorable decision itself, as opposed
to the evidence supporting the subsequent decision,
does not constitute new and material evidence under §
405(g). . . . [R]emand under sentence six is not meant
to address the correctness of the administrative
determination made on the evidence already before the
initial ALJ. In addition, it is overly broad to read
the words ‘new evidence’ in sentence six to include a
subsequent decision based on the same evidence. . . .
A sentence six remand would be appropriate based on
[plaintiff’s] subsequent favorable decision only if
the subsequent decision was supported by new and
material evidence that [plaintiff] had good cause for
not
raising
in
the
prior
proceeding.
It
is
[plaintiff’s] burden to make this showing under §
405(g), . . . but he has failed to meet this burden.
Allen v. Comm’r of Soc. Sec., 561 F.3d 646, 653 (6th Cir. 2009)
(citations
omitted)
(internal
quotation
marks
omitted).
Plaintiff has similarly failed to meet his burden in showing the
subsequent decision was based upon new and material evidence
that
he
had
Therefore,
good
cause
remand
based
for
upon
not
raising
new
and
in
this
material
proceeding.
evidence
is
inappropriate.
V. Conclusion
Accordingly, based on the foregoing, IT IS ORDERED:
(1)
that Plaintiff’s Motion for Summary Judgment [D.E. 11]
be, and the same hereby is, GRANTED;
21
(2)
that Defendant’s Motion for Summary Judgment [D.E. 12]
be, and the same hereby is, DENIED.
This the 11th day of June, 2014.
22
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