Bryant v. Commissioner of Social Security
Filing
19
MEMORANDUM OPINION AND ORDER by Magistrate Judge H. Brent Brennenstuhl on 03/28/2014. IT IS HEREBY ORDERED that the final decision of the Commissioner is reversed. IT IS FURTHER ORDERED that the case is remanded to the Commissioner, pursuant to sentence four of 42 U.S.C. § 405(g), with instructions to conduct further proceedings consistent with this memorandum opinion. cc: Counsel (TJD)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:13CV-00086-JHM
CHARLOTTE BRYANT
PLAINTIFF
VS.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security
DEFENDANT
MEMORANDUM OPINION
AND ORDER
BACKGROUND
Before the Court is the complaint (DN 1) of Charlotte Bryant (APlaintiff@) seeking judicial
review of the final decision of the Commissioner pursuant to 42 U.S.C. ' 405(g). Both the
Plaintiff (DN 15) and Defendant (DN 18) have filed a Fact and Law Summary.
Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties have consented to the
undersigned United States Magistrate Judge conducting all further proceedings in this case,
including issuance of a memorandum opinion and entry of judgment, with direct review by the
Sixth Circuit Court of Appeals in the event an appeal is filed (DN 11). By Order entered
September 12, 2013 (DN 12), the parties were notified that oral arguments would not be held
unless a written request therefor was filed and granted. No such request was filed.
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FINDINGS OF FACT
Plaintiff filed an application for Disability Insurance Benefits on March 27, 2010 (Tr. 47).
Plaintiff alleged that she became disabled on November 19, 2009, as a result of osteoporosis,
arthritis, a back fracture, and depression (Tr. 47, 218-219). Administrative Law Judge Robin
Palenske (AALJ@) conducted a video hearing from Atlanta, Georgia, on June 7, 2011 (Tr. 47, 77).
Plaintiff appeared in Campbellsville, Kentucky, and represented by attorney M. Gail Wilson (Tr.
47,77). Also present and testifying was Christopher Rymond as a vocational expert (Tr. 47, 75).
In a decision dated November 22, 2011, the ALJ found Plaintiff met the insured status
requirements of the Social Security Act through December 31, 2014 (Tr. 49). The ALJ evaluated
this adult disability claim pursuant to the five-step sequential evaluation process promulgated by
the Commissioner (Tr. 49-56). At the first step, the ALJ found Plaintiff has not engaged in
substantial gainful activity since November 19, 2009, the alleged onset date (Tr. 49). At the
second step, the ALJ determined that Plaintiff=s lumbar spine disorder, cervical spine disorder, and
osteopenia are Asevere@ impairments within the meaning of the regulations (Tr. 49). Notably, at
the second step, the ALJ also determined that Plaintiff=s hyperthyroidism is a Anon-severe@
impairment within the meaning of the regulations because the condition is treated with medication
and is stable (Tr. 49). At the third step, the ALJ concluded that Plaintiff does not have an
impairment or combination of impairments that meets or medically equals one of the listed
impairments in Appendix 1 (Tr. 49).
At the fourth step, the ALJ found Plaintiff has the residual functional capacity to perform
less than a full range of light work because she is able to lift and/or carry 20 pounds occasionally
and 10 pounds frequently; walk and stand for 6 hours in an 8 hour workday; sit for 2 hours total out
of an 8 hour workday; but she can only occasionally stoop, crouch, and crawl; she is limited to
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occasionally climbing stairs and ramps; she cannot climb ladders, ropes or scaffolds; she must
avoid concentrated exposure to cold temperature extremes and work place hazards such as
dangerous machinery and unprotected heights; additionally, she requires the option to sit or stand
as needed and the option to change positions every 30 minutes; and, finally, she is limited to
occasionally reaching overhead with the non-dominant upper extremity (Tr. 49-50).
After
considering the vocational expert’s testimony, the ALJ concluded Plaintiff is capable of
performing her past relevant work as a general office clerk (light, unskilled) because this work
does not require the performance of work-related activities precluded by the Plaintiff’s residual
functional capacity (Tr. 54).
Alternatively, the ALJ considered whether there are other jobs that exist in the national
economy that Plaintiff can perform in light of her residual functional capacity, age, education, and
past work experience (Tr. 54-56). Relying on testimony from the vocational expert, the ALJ
found Plaintiff is capable of performing a significant number of jobs that exist in the national
economy (Tr. 54-56).
Therefore, the ALJ concluded that Plaintiff has not been under a
Adisability,@ as defined in the Social Security Act, from November 19, 2009 through the date of the
decision, November 22, 2011 (Tr. 56).
Plaintiff timely filed a request for the Appeals Council to review the ALJ=s decision (Tr.
38-41). In support of her request, Plaintiff submitted medical records dated January 16, 2012 to
February 27, 2012, from El-Nagger O. Amr, M.D., and medical records dated December 6, 2011 to
February 8, 2012 from the Taylor Regional Hospital (Tr. 2, 5, 18-34). The Appeals Council
denied Plaintiff’=s request for review of the ALJ=s decision (Tr. 1-4). Notably, the Appeals
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Council looked at the additional medical records but concluded they are not material to Plaintiff’s
claim of disability through November 22, 2011, because the information is about a later time (Tr.
2).
CONCLUSIONS OF LAW
The Social Security Act authorizes payment of Disability Insurance Benefits and
Supplemental Security Income to persons with disabilities. 42 U.S.C. '' 401 et seq. (Title II
Disability Insurance Benefits), 1381 et seq. (Title XVI Supplemental Security Income). The term
Adisability@ is defined as an
[i]nability to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than twelve (12)
months.
42 U.S.C. '' 423(d)(1)(A) (Title II), 1382c(a)(3)(A) (Title XVI); 20 C.F.R. '' 404.1505(a),
416.905(a); Barnhart v. Walton, 535 U.S. 212, 214 (2002); Abbott v. Sullivan, 905 F.2d 918, 923
(6th Cir. 1990).
The Commissioner has promulgated regulations setting forth a five-step sequential
evaluation process for evaluating a disability claim. See AEvaluation of disability in general,@ 20
C.F.R. '' 404.1520, 416.920. In summary, the evaluation proceeds as follows:
1)
Is the claimant engaged in substantial gainful activity?
2)
Does the claimant have a medically determinable
impairment or combination of impairments that satisfies the
duration requirement and significantly limits his or her
ability to do basic work activities?
3)
Does the claimant have an impairment that meets or
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medically equals the criteria of a listed impairment within
Appendix 1?
4)
Does the claimant have the residual functional capacity to
return to his or her past relevant work?
5)
Does the claimant's residual functional capacity, age,
education, and past work experience allow him or her to
perform a significant number of jobs in the national
economy?
Here, the ALJ denied Plaintiff=s claim at the fourth step.
As previously mentioned, the Appeals Council denied Plaintiff=s request for review of the
ALJ=s decision (Tr. 1-4). At that point, the ALJ=s decision became the final decision of the
Commissioner. 20 C.F.R. '' 404.955(b), 404.981, 422.210(a); see 42 U.S.C. ' 405(h) (finality of
the Commissioner's decision).
Review by the Court is limited to determining whether the findings set forth in the final
decision of the Commissioner are supported by Asubstantial evidence,@ 42 U.S.C. Section 405(g);
Cotton v. Sullivan, 2 F.3d 692, 695 (6th Cir. 1993); Wyatt v. Secretary of Health and Human
Services, 974 F.2d 680, 683 (6th Cir. 1992), and whether the correct legal standards were applied.
Landsaw v. Secretary of Health and Human Services, 803 F.2d 211, 213 (6th Cir. 1986).
ASubstantial evidence exists when a reasonable mind could accept the evidence as adequate to
support the challenged conclusion, even if that evidence could support a decision the other way.@
Cotton, 2 F.3d at 695 (quoting Casey v. Secretary of Health and Human Serverices, 987 F.2d 1230,
1233 (6th Cir. 1993)). In reviewing a case for substantial evidence, the Court Amay not try the
case de novo, nor resolve conflicts in evidence, nor decide questions of credibility.@ Cohen v.
Secretary of Health and Human Services, 964 F.2d 524, 528 (6th Cir. 1992) (quoting Garner v.
Heckler, 745 F.2d 383, 387 (6th Cir. 1984)).
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Plaintiff disagrees with Finding Nos. 5, 6, and 7 (DN 15, Fact and Law Summary at Pages
4-10). Finding No. 5 sets forth the ALJ’s residual functional capacity assessment (Tr. 49-50).
Finding No. 6 sets forth the ALJ’s determination that Plaintiff has the residual functional capacity
to return to her past relevant work as a general office clerk, as the job is actually and generally
performed (Tr. 54). Thus, Finding Nos. 5 and 6 pertain to the fourth step in the sequential
evaluation process. Finding No. 7 sets forth the ALJ’s conclusion that Plaintiff has not been
under a disability, as defined in the Social Security Act, from November 19, 2009, through the date
of the decision (Tr. 56).
At the fourth step in the sequential evaluation process, the Administrative Law Judge
makes findings regarding the claimant=s residual functional capacity, the physical and mental
demands of the claimant=s past relevant work, and the claimant=s ability to return to her past
relevant work. See 20 C.F.R. ' 404.1520(e). The residual functional capacity finding is the
Administrative Law Judge=s ultimate determination of what a claimant can still do despite his or
her physical and mental limitations. 20 C.F.R. '' 404.1545(a), 404.1546. This finding is based
on a consideration of medical source statements and all other evidence in the case record. 20
C.F.R. '' 404.1529, 404.1545(a), 404.1546. Thus, in making the residual functional capacity
finding the Administrative Law Judge must necessarily assign weight to the medical source
statements in the record and consider the subjective allegations of the claimant and make
credibility findings. 20 C.F.R. '' 404.1527(c), 404.1529; Social Security Ruling 96-7p.
Plaintiff argues Finding No. 5 is not supported by substantial evidence in the record
because the ALJ did not (1) follow the treating physician rule in assigning weight to the January
20, 2011 opinion of her treating neurosurgeon, Dr. El-Naggar; and (2) failed to give reasons for
discrediting her testimony about pain (DN 15, Fact and Law Summary at Pages 4-10). Defendant
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points out the ALJ specifically discounted Dr. El-Naggar’s May 2011 conclusion that Plaintiff was
totally disabled, noting it was inconsistent with the doctor’s own treatment notes and other
evidence in the record (DN 18, Fact and Law Summary at Pages 3-10). Defendant asserts the
ALJ’s findings regarding Dr. El-Naggar’s opinion are supported by substantial evidence in the
record and comport with the treating physician rule (DN 18, Fact and Law Summary at Pages
3-10).
While the regulations require Administrative Law Judges to evaluate every medical
opinion in the record, the process of assigning weight to medical opinions in the record begins with
a determination whether to assign controlling weight to the medical opinion of the treating source.
20 C.F.R. ' 404.1527(c).
The regulations indicate that medical opinions from a treating
physician must receive Acontrolling weight@ when two conditions are met: (1) the medical opinion
Ais well-supported by medically acceptable clinical and laboratory diagnostic techniques@; and (2)
the medical opinion Ais not inconsistent with other substantial evidence in ... [the] case record.@
20 C.F.R. '' 404.1527(c)(2), 416.927(c)(2); Gayheart v. Commissioner, 710 F.3d 365, 376 (6th
Cir. 2013). Notably, the Administrative Law Judge must provide “good reasons” for not giving
controlling weight to a treating physician’s medical opinion. Gayheart, 710 F.3d at 376-377.
If the Administrative Law Judge does not give the treating physician=s medical opinion
controlling weight, Athen the opinion is weighed based on the length, frequency, nature, and extent
of the treating relationship, ... as well as the treating source=s area of specialty and the degree to
which the opinion is consistent with the record as a whole and is supported by relevant evidence.
Id. (citing 20 C.F.R. ' 404. 1527(c)(2)-(6)). Again, the Administrative Law Judge must provide
Agood reasons@ for the weight given to the treating physician=s opinion.
20 C.F.R. '
404.1527(c)(2); Social Security Ruling 96-2p; Gayheart, 710 F.3d at 376; Wilson v.
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Commissioner of Social Security, 378 F.3d 541, 545-546 (6th Cir. 2004). Notably, A[t]hese
reasons must be >supported by the evidence in the case record, and 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.=@ Gayheart, 710 F.3d at 376 (citing Social
Security Ruling 96-2p, 1996 WL 374188, at *5 (Soc. Sec. Admin. July 2, 1996)).
AThis
procedural requirement >ensures that the ALJ applies the treating physician rule and permits
meaningful review of the ALJ=s application of the rule.=@ Gayheart, 710 F.3d at 376 (quoting
Wilson, 378 F.3d 544).
Included in the administrative record is a medical source statement prepared by Dr.
El-Naggar that is dated January 20, 2011 (Tr. 421-425). This medical source statement sets forth
diagnoses of lumbar multilevel degenerative disc disease with discogenic chronic back pain and
radiculopathy in her lower extremities bilaterally; and cervical multilevel degenerative disc
disease with chronic neck pain and radiculopathy in her upper extremities bilaterally (Tr. 421).
Further, this medical source statement sets forth Dr. El-Naggar’s opinion that Plaintiff can sit up to
30 minutes continuously and for a total of 2 hours in an 8 hour workday; she can stand up to 15
minutes continuously and for a total of 2 hours in an 8 hour workday; she can walk up to 15
minutes continuously and for a total of 2 hours in an 8 hour workday (Tr. 423). Dr. El-Naggar
also indicated that in an entire 8 hour workday Plaintiff can occasionally (1% to 33%) lift and carry
6 to 10 pounds but can never lift 11 to 20 pounds; and can occasionally (1% to 33%) bend, squat,
climb, and reach (Tr. 423). Additionally, Dr. El-Naggar opined that Plaintiff cannot use her
hands for repetitive action such as simple grasping, pushing and pulling of arm controls, and fine
manipulation (Tr. 424). Further, Dr. El-Naggar indicated that Plaintiff cannot use her legs and
feet for repetitive movements, as in pushing and pulling leg or foot controls (Tr. 424). With
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regard to environmental limitations, Dr. El-Naggar reported mild restrictions for unprotected
heights, being around moving machinery, exposure to marked changes in temperature and
humidity and exposure to dust, fumes and gases; and moderate restrictions for driving a motor
vehicle and stress (Tr. 424). Further, Dr. El-Naggar commented that Plaintiff:
[S]hould not lift, push or pull greater than 10 lbs & alternate sitting,
standing & walking every 15 minutes. These are permanent
restrictions.
(Tr. 424). Thus, the medical source statement sets forth the treating neurosurgeon’s
medical opinion regarding limitations imposed by the multilevel degenerative disc disease in
Plaintiff’s lumbar and cervical spine.
Additionally, on the last page of the medical source statement, Dr. El-Naggar expressed his
belief that Plaintiff “should be considered totally & permanently disabled” (Tr. 425). This is a
vocational opinion1 because it goes beyond a medical judgment regarding what Plaintiff can still
do and is a finding that may be dispositive of the issue of disability. Social Security Ruling 96-5p,
1996 WL 374183, *2-5 (July 2, 1996). While vocational opinions by medical sources must not be
disregarded they are not entitled to controlling weight or given special significance. Id. at *5. In
sum, the medical source statement prepared by Dr. El-Naggar and dated January 20, 2011, sets
forth medical and vocational opinions regarding Plaintiff.
In a report dated May 26, 2011, Dr. El-Naggar expressed another opinion regarding
Plaintiff (Tr. 465). Specifically, Dr. El-Nagger commented as follows:
Due to the multiple levels of involvement with degenerative disk
disease and degenerative joint disease and significant cervical
spondylosis I believe the patient should be considered totally and
permanently disabled. I do not believe that she can be gained [sic]
1 Examples of vocational opinions would be the claimant is unable to perform her past work, is limited to sedentary
work, or is unable to work. Social Security Ruling 96-5p, 1996 WL 374183, *2-5 (July 2, 1996).
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fully employed. I support her application for disability. At this
time the patient needs cervical epidural steroid injections and would
also probably need C4-5, C5-6 and C6-7 anterior discectomy and
fusion…
(Tr. 465). This is also a vocational opinion because it goes beyond a medical judgment regarding
what Plaintiff can still do and is a finding that may be dispositive of the issue of disability. Social
Security Ruling 96-5p, 1996 WL 374183, *2-5 (July 2, 1996).
The ALJ’s decision completely overlooked the January 20, 2011, medical source statement
prepared by Dr. El-Naggar (Tr. 51-54). Clearly, the ALJ’s failure to assign specific weight to the
treating physician’s medical opinion “constitutes error.” Cole v. Astrue, 661 F.3d 931, 938 (6th
Cir. 2011). The procedural requirements to assign weight to the opinion of a treating source and
provide “good reasons” for that weight serves both to ensure adequacy of review and to give the
claimant a better understanding of the disposition of his case. Id. at 939 (citing Rogers v.
Commissioner, 486 F.3d 234, 242 (6th Cir. 2007)). “These procedural requirements are ‘not
simply a formality’ and are intended ‘to safeguard the claimant's procedural rights.’ ” Cole, 661
F.3d at 937.
The Sixth Circuit has indicated it will not hesitate to remand when it encounters decisions
from Administrative Law Judges that do not comprehensively set forth the reasons for the weight
assigned to a treating physician's opinion. Id. at 939 (citations omitted). However, a violation of
these procedural requirements can be deemed “harmless error” if one of the following
requirements is satisfied:
(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
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the goal of § 1527(d)(2) ... even though she has not complied with
the terms of the regulation.
Cole, 661 F.3d at 940.
Here, the undersigned does not find Dr. El-Naggard’s opinions patently deficient, because
the ALJ found them sufficient as to Plaintiff’s diagnoses. Id. Further, the ALJ did not adopt Dr.
El-Naggard’s medical opinion or make residual functional capacity findings consistent with the
opinion. Id. However, resolving the question of whether the ALJ has met the goal of § 404.1527
is substantially more complicated because the ALJ’s decision does explain why the ALJ
discredited Dr. El-Naggar’s vocational opinion dated May 26, 2011 (Tr. 54).
The ALJ treated Dr. El-Naggar’s vocational opinion as though it was a medical opinion
(Tr. 53, 54). In pertinent part the ALJ’s decision reads as follows:
Dr. Naggar, the treating physician, concluded that the claimant was
totally and permanently disabled. However, he noted in his
records, that the claimant’s pain was helped with medication and he
even released her to return to work last year in February 2010 with
restrictions (Exhibit 6F, pp.3-4). The undersigned finds that Dr.
Naggar’s medical opinion, while that of a treating source, is not
supported by his own treatment notes and further is inconsistent
with other substantial evidence.
(Tr. 54). Clearly, the ALJ did not make findings that specifically addressed both prongs of the
controlling weight test (Tr. 54).
20 C.F.R. ' 404.1527(c)(2); Gayheart, 710 F.3d at 376.
However, the ALJ did make a general finding that is applicable to the second prong of the
controlling weight test.
The undersigned is referring to the ALJ’s finding that Dr. Naggar’s opinion was
inconsistent with his own treatment notes and other substantial evidence in the record. But
Plaintiff asserts the ALJ erred in relying on Dr. Naggar’s February 2010 treatment records to show
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an inconsistency. Plaintiff argues Dr. Naggar’s subsequent treatment records show deterioration
or worsening of her cervical and lumbar conditions that supports the doctor’s 2011 medical
opinion. The undersigned observes that Dr. Naggar’s treatment records from March 2010
through January 20, 2011, include findings and information that may substantiate his changed
opinion regarding the severity of Plaintiff’s condition (Tr. 435-442). However, the ALJ’s very
brief assessment of Dr. Naggar’s opinion fails to address this issue.
The undersigned is also referring to the ALJ’s finding that Dr. Naggar’s opinion is
inconsistent with “other substantial evidence” (Tr. 54). However, the ALJ does not identify the
other substantial evidence that is purportedly inconsistent with Dr. Naggar’s opinion (Tr. 54).
Moreover, a review of the medical record and the administrative decision is no help in solving this
mystery (Tr. 51-54). In sum, the undersigned concludes the ALJ failed to meet the goal of §
404.1527(c)(2). Cole, 661 F.3d at 940.
The undersigned’s finding that the ALJ's decision is not supported by substantial evidence
is based on the ALJ's violation of the agency's procedural rules. It may be true that, on remand,
the ALJ reaches the same conclusion as to Plaintiff’'s disability while complying with the treating
physician rule and the good reasons requirement. Nevertheless, Plaintiff will then be able to
understand the ALJ's rationale and the procedure through which the decision was reached. Cole,
661 F.3d at 940. Therefore, the final decision of the Commissioner must be reversed and the case
remanded, pursuant to sentence four of 42 U.S.C. § 405(g), with instructions to remedy this defect
in the original proceedings. Faucher v. Secretary of Health and Human Services, 17 F.3d 171,
175 (6th Cir. 1994).
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In light of the above conclusions, the undersigned deems it unnecessary to address
Plaintiff’s argument regarding the ALJ’s credibility assessment. Additionally, the undersigned
deems it unnecessary to address Plaintiff’s claims regarding Finding Nos. 6 and 7.
ORDER
IT IS HEREBY ORDERED that the final decision of the Commissioner is reversed.
IT IS FURTHER ORDERED that the case is remanded to the Commissioner, pursuant to
sentence four of 42 U.S.C. § 405(g), with instructions to conduct further proceedings consistent
with this memorandum opinion.
March 28, 2014
Copies:
Counsel
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