Bragg v. Commissioner of Social Security
Filing
21
MEMORANDUM OPINION AND ORDER by Magistrate Judge H. Brent Brennenstuhl on 12/28/2016 granting 11 Plaintiff's Motion to Remand Pursuant to Sentence Six. The Commissioner is directed to conduct further proceedings that consider the new medical evidence and its impact on the outcome of Plaintiff's applications for Disability Insurance Benefits and Supplemental Security Income. cc: Counsel (CDR)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:16-CV-00086-HBB
LYDIA A. BRAGG
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 Lydia A. Bragg (APlaintiff@) seeking judicial
review of the final decision of the Commissioner pursuant to 42 U.S.C. ' 405(g). Plaintiff has
moved the Court for a remand to consider new medical evidence (DN 11), Defendant has filed a
response (DN 18), and Plaintiff has filed a reply (DN 20).
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 9). By Order entered August 4,
2016 (DN 10), 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.
1
FINDINGS OF FACT
On November 29, 2012, Plaintiff filed an application for Disability Insurance Benefits (Tr.
17, 205). On October 24, 2013, Plaintiff filed an application for Supplemental Security Income
(Tr. 17, 211). Plaintiff alleged that she became disabled on February 28, 2010, as a result of
severe neck and shoulder pain, fused vertebrae in the lumbar spine, impaired reflexes, decreased
sensation/feelings in the right leg, and bulging/possible degenerative discs (Tr. 205, 211, 223).
Prior to the administrative hearing Plaintiff amended her alleged onset date to August 31, 2012 (Tr.
41, 313). On September 11, 2014, Administrative Law Judge Mary Joan McNamara (AALJ@)
conducted a video hearing from Baltimore, Maryland (Tr. 17, 39-40). Plaintiff and her counsel,
Mary G. Burchett-Bower participated from Bowling Green, Kentucky (Id.). Additionally, Peter
A. Manzi, an impartial vocational expert participated and testified from Rochester, New York
(Id.).
In a decision dated November 24, 2014, the ALJ evaluated this adult disability claim
pursuant to the five-step sequential evaluation process promulgated by the Commissioner (Tr.
17-32). At the first step, the ALJ found Plaintiff has not engaged in substantial gainful activity
since August 31, 2012, the alleged onset date (Tr. 19). At the second step, the ALJ determined
that Plaintiff=s spine disorders/degenerative disc disease/osteoarthritis are Asevere@ impairments
within the meaning of the regulations (Id.). Notably, at the second step, the ALJ also determined
that Plaintiff=s migraine headaches, anxiety, and depression/affective disorder are Anon-severe@
impairments within the meaning of the regulations (Tr. 19-23). 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. 23).
2
At the fourth step, the ALJ found that Plaintiff has the residual functional capacity to
perform less than a full range of light work because she can never climb ladders, ropes, or
scaffolds; can occasionally stoop; can frequently kneel, crouch, and crawl; and can unlimitedly
climb stairs, climb ramps, and balance (Tr. 23). Relying on testimony from the vocational expert,
the ALJ found that Plaintiff is unable to perform any of her past relevant work (Tr. 30).
The ALJ proceeded to the fifth step where she considered Plaintiff=s residual functional
capacity, age, education, and past work experience as well as testimony from the vocational expert
(Tr. 30-32). The ALJ found that Plaintiff is capable of performing a significant number of jobs
that exist in the national economy (Tr. 32). Therefore, the ALJ concluded that Plaintiff has not
been under a Adisability,@ as defined in the Social Security Act, from August 31, 2012, through the
date of the decision, November 24, 2014 (Id.).
Plaintiff timely filed a request for the Appeals Council to review the ALJ=s decision (Tr.
11-13). The Appeals Council denied Plaintiff=s request for review of the ALJ=s decision (Tr. 1-5).
CONCLUSIONS OF LAW
Standard of Review
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. § 405(g); Cotton
v. Sullivan, 2 F.3d 692, 695 (6th Cir. 1993); Wyatt v. Sec’y of Health & Human Servs., 974 F.2d
680, 683 (6th Cir. 1992), and whether the correct legal standards were applied. Landsaw v. Sec’y
of Health & Human Servs., 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,
3
even if that evidence could support a decision the other way.@ Cotton, 2 F.3d at 695 (quoting
Casey v. Sec’y of Health & Human Servs., 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. Sec’y of Health & Human Servs., 964
F.2d 524, 528 (6th Cir. 1992) (quoting Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984)).
As previously mentioned, the Appeals Council denied Plaintiff=s request for review of the
ALJ=s decision (Tr. 1-5). 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). Thus, the Court will be reviewing the decision of the ALJ, not the
Appeals Council, and the evidence that was in the administrative record when the ALJ rendered
the decision. 42 U.S.C. § 405(g); 20 C.F.R. § 404.981; Cline v. Comm’r of Soc. Sec., 96 F.3d
146, 148 (6th Cir. 1996); Cotton v. Sullivan, 2 F.3d 692, 695-696 (6th Cir. 1993).
The Commissioner’s Sequential Evaluation Process
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.
4
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
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 fifth step. Specifically, the ALJ concluded
that the Plaintiff possessed the requisite residual functional capacity to perform certain jobs
existing in substantial numbers in the national and local economy (Tr. 30-32).
5
Plaintiff’s Motion for Remand
1
Plaintiff moves for a remand, pursuant to sentence six of 42 U.S.C. § 405(g), to consider
new medical evidence regarding her lower back condition that was not before the ALJ (DN 11-3
PageID # 482). Plaintiff understands to obtain a sentence six remand she must demonstrate the
evidence is new, material, and that good cause exists for her failure to introduce the evidence at the
administrative level (DN 11-3 PageID # 482-83).
The evidence at issue is treatment records, dated January 21 and February 5, 2015, from
Mitchell J. Campbell, M.D., with the Leatherman Spine Center in Louisville, Kentucky (DN 11-1
PageID # 454-469), and imaging-radiological reports from Norton Hospital, dated February 5,
2015, that set forth the results of a lumbar myelogram and helical CT images of the lumbar spine
after administration of intrathecal contrast (DN 11-2 PageID # 470-481). Plaintiff explains that
the evidence is new because it was not before the ALJ at the time of the decision (Id. PageID #
483).
Plaintiff contends that the evidence is material because the radiological imaging shows a
pars defect at L5 with loosening of instrumentation from a prior fusion, nonunion/pseudoarthrosis
at L5-S1 and possibly at L5 F4 region, and malpositioned screws on the left side at L4 and L5 (Id.).
Plaintiff also points out that Dr. Campbell’s treatment notes indicate the instrumentation is clearly
loose, and Plaintiff has a nonunion especially at the L5-S1 region (Id.). Plaintiff asserts that the
abnormalities depicted in the new medical records are inconsistent with the ALJ’s finding that
Plaintiff has the residual functional capacity to perform a limited range of light work (Id.).
Plaintiff points out that at age 50 a sedentary residual functional capacity would direct a finding of
6
disability in this case based on Medical-Vocational Rule 201.14 (Id.). Plaintiff argues that given
the short period of time between the ALJ’s decision and the imaging at Norton’s Hospital and in
light of the documentation of loose instrumentation and nonunion, it is unlikely that the changes
occurred after the ALJ’s decision (Id.).
Plaintiff asserts that good cause exists for her failure to present the evidence prior to when
the ALJ rendered the decision (Id.). Plaintiff explains that in September 2013, she sought
treatment with Paul McCombs, M.D., at the Howell Allen Clinic in Nashville, Tennessee (Id.
citing Tr. 382-86). However, at that time she did not have medical insurance (Id.). Plaintiff
explains that the medical insurance she received through the Affordable Care Act in 2014, would
not cover out of state treatment (DN 11-3 PageID # 483 citing Tr. 54-55). According to Plaintiff,
it took her time to find a specialist in Kentucky who was covered by her medical insurance and
would see her despite having undergone back fusion surgery with another physician (DN 11-3
PageID # 484 citing Tr. 79). Moreover, Plaintiff asserts that good cause is generally shown “if the
new evidence arises from continued medical treatment of the condition, and was not generated
merely for the purpose of attempting to prove disability” (Id. quoting Koulizos v. Secretary, No.
85-1654, 1986 WL 17488, at *2 (6th Cir. Aug. 19, 1986) (unpublished opinion)).
Defendant concedes that the evidence is new (DN 18 PageID # 634-36). Defendant
contends that the evidence is not material because Plaintiff has failed to demonstrate there is a
“reasonable probability” that the ALJ would have reached a different conclusion on the issue of
disability if she had been presented with this additional evidence (Id.). In support of this position,
Defendant points out that a diagnosis alone does not indicate the level of severity of a condition in
a particular individual (Id. citing Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988)). Defendant
7
argues that the ALJ thoughtfully considered Plaintiff’s impairments and found that the overall
record evidence did not support more functional limitations that what is set forth in the residual
functional capacity assessment (DN 18 PageID # 634-36).
Defendant asserts that Plaintiff has failed to show good cause for not obtaining this
evidence prior to the issuance of the ALJ’s decision (Id.). In support of this position, Defendant
points out that Plaintiff testified that during a time when she did not have medical insurance, she
obtained treatment and prescriptions by paying out of pocket (Id. citing Tr. 66-67, 69-70).
Further, Defendant claims that Plaintiff testified when she could not find a doctor in Bowling
Green to treat her or take her medical insurance, she did not look for or call other doctors (DN 18
PageID # 634 citing Tr. 78-80). Additionally, Defendant asserts despite having the opportunity to
do so, Plaintiff did not ask the ALJ to keep the record open so that additional evidence could be
submitted (DN 18 PageID # 634).
In her reply, Plaintiff argues the evidence from Dr. Campbell and Norton Hospital is
material because it shows that the condition of Plaintiff’s lumbar spine was far more severe than
the evidence in the record that the ALJ relied upon (DN 20 PageID # 657). Plaintiff points out
that the ALJ made her residual functional capacity determination without the benefit of evidence
showing instrumentation instability and non-union (Id. PageID # 657-58). Further, Plaintiff
asserts the new evidence supports the limitations expressed by the consultative examiner, J. Roy
Watson, M.D., that limited Plaintiff to sedentary work (Id.). Again, Plaintiff points out that she
turned 50 in 2013, and that age with a sedentary residual functional capacity would direct a finding
of disability in this case based on Rule 201.14
8
With regard to Defendant’s good cause argument, Plaintiff asserts that it is unreasonable to
expect someone with her limited financial means to continue treatment in Tennessee when her
insurance would not cover out of state treatment (Id. PageID # 659 citing Tr. 54-55, 79, 211-17).
Plaintiff contends it is more reasonable to conclude that it took her time to find a specialist in
Kentucky who would agree to evaluate her post-surgical lumbar back condition and obtain a
referral to that physician (DN 20 PageID # 659 citing Tr. 79, 529). Again, Plaintiff reminds the
Court that good cause is generally found “if the new evidence arises from continued medical
treatment of the condition, and was not generated merely for the purpose of attempting to prove
disability” (DN 20 PageID # 659 citing Koulizos, 1986 WL 17488, at *2.
2
“A district court’s authority to remand a case ... is found in 42 U.S.C. § 405(g) ...” Hollon
ex rel. Hollon v. Comm’r of Soc. Sec., 447 F.3d 477, 482-83 (6th Cir. 2006). The Social Security
Act authorizes “two types of remand: (1) a post judgment remand in conjunction with a decision
affirming, modifying, or reversing a decision of the [Commissioner] (a sentence-four remand);
and (2) a pre-judgment remand for consideration of new and material evidence that for good cause
was not previously presented to the [Commissioner] (a sentence six-remand).” Faucher v. Sec’y
of Health & Human Servs., 17 F.3d 171, 174 (6th Cir. 1994) (citing 42 U.S.C. § 405(g)).
When a party moves for a pre-judgment remand, pursuant to sentence six of 42 U.S.C.
'405(g), the Court does not address the correctness of the administrative decision. Melkonyan
v. Sullivan, 501 U.S. 89, 98 (1991). ARather, the court remands because new evidence has
9
come to light that was not available to the claimant at the time of the administrative proceeding
and the new evidence might have changed the outcome of the prior proceeding.@ Melkonyan,
501 U.S. at 98.
The party seeking the pre-judgment remand has the burden of demonstrating that the new
evidence is material and that good cause exists for not previously presenting it to the
Commissioner.
Faucher, 17 F.3d 174-175.
Evidence is “new” if it did not exist at the time of
the administrative proceeding. Ferguson v. Comm’r of Soc. Sec., 628 F.3d 269, 276 (6th Cir.
2010); Sizemore v. Sec’y of Health & Human Servs., 865 F.2d 709, 711 (6th Cir. 1988) (per
curiam).
Evidence is material if there is a “reasonable probability” that a different disposition
would have resulted if the evidence had been submitted during the original proceeding.
Ferguson, 628 F.3d at 276; Sizemore, 865 F.2d at 711.
Notably, evidence is not considered
material if it merely depicts an aggravation or deterioration in a claimant's existing condition.
Id. at 712. AGood cause@ is demonstrated by showing a reasonable justification for the failure to
acquire and present the evidence to the Administrative Law Judge. Foster v. Halter, 279 F.3d
348, 357 (6th Cir. 2001).
Here, the evidence at issue is treatment records, dated January 21 and February 5, 2015,
from Mitchell J. Campbell, M.D., with the Leatherman Spine Center in Louisville, Kentucky (DN
11-1 PageID # 454-469), and imaging-radiological reports from Norton Hospital ,dated February
5, 2015 (DN 11-2 PageID # 470-481). The reports address a lumbar myelogram and helical CT
images of the lumbar spine after administration of intrathecal contrast (Id.).
Dr. Campbell’s treatment note dated January 21, 2015, indicates that Plaintiff recently
obtained insurance coverage and was seeking an evaluation of her low back pain and right leg pain
10
(DN 11-1 PageID # 457). Plaintiff reported that she underwent a decompression fusion at L4-S1
in 2005 and initially she did “pretty good” but “over the past few years” experienced an increase in
back pain to the point where she has become fairly incapacitated (Id.). The treatment note
indicates that Dr. Campbell performed an examination and reviewed a CT myelogram from 2013
(Id. PageID # 459). Notably, Dr. Campbell is referring to a CT myelogram performed on
September 11, 2013, that was a part of the administrative record before the ALJ (Tr. 382).
Dr. Campbell indicated that the CT myelogram from 2013 revealed problems with the
instrumentation from the 2005 surgery, a nonunion, and a pars defect at L5 (DN 11-1 PageID #
459). Dr. Campbell’s assessment was pseudoarthrosis of the lumbar spine with loosening of
instrumentation and spondylolisthesis (Id.). Dr. Campbell ordered a new CT myelogram and
scheduled a follow-up office visit to discuss the results with Plaintiff (Id. PageID # 454-55, 459).
On February 5, 2015, Plaintiff underwent a lumbar myelogram and helical CT images of
the lumbar spine after administration of intrathecal contrast (DN 11-2 PageID # 470-481). The
radiologist’s impression was as follows:
1. Posterior fusion of L-4-S1 with no evidence of osseous fusion.
2. Grade 1 anterolisthesis at L5-S1 with moderate bilateral
foraminal stenosis and impingement of the L5 nerve roots.
3. Minimal degenerative spondylosis above the fusion.
(Id. PageID # 472, 487). Notably, the radiologist included the following addendum to his report:
After discussion with Dr. Mitch Campbell the left L4 and L5 screws
extend into the left psoas muscle. No obvious retroperitoneal
11
hematoma is demonstrated. Also, there is loosening of the S1
screws. No bony fusion is noted the L4-L5 or L5-S1 posterior
elements.
There are bilateral L5 pars defects.
(Id.).
Later that same day, Dr. Campbell met with Plaintiff and discussed the results of the CT
(DN 11-1 PageID # 462-69). Dr. Campbell’s report indicates the CT myelogram revealed a pars
defect at L5 with loosening of instrumentation, a nonunion/pseudoarthrosis at L5-S1, and possible
nonunion/pseudoarthrosis at L5 F4 region (Id. PageID # 467). Additionally, the report notes that
Plaintiff has malpositioned screws on the left side at L4 and at L5 (Id.). The report indicates that
Dr. Campbell discussed with Plaintiff surgical intervention (Id.). Notably, in March of 2016,
Plaintiff sought a second opinion from another specialist, Dr. William A. Schwank (Tr. 418-19)1.
After conducting an examination and reviewing a CT scan of Plaintiff’s lumbar spine, Dr.
Schwank recommended that Plaintiff return to Dr. Campbell and undergo the surgery that he
offered to perform (Id.).
Evidence is considered “‘new only if it was not in existence or available to the claimant at
the time of the administrative proceeding.’” Ferguson, 628 F.3d at 276 (quoting Foster v. Halter,
279 F.3d 348, 357 (6th Cir. 2001); citing Hollon, 447 F.3d at 483). Here, the medical evidence at
issue did not exist at the time the ALJ conducted the hearing and issued the decision. Therefore,
the medical evidence is “new.”
1 Plaintiff submitted the medical records from Dr. William A. Schwank to the Appeals Council in connection with
Plaintiff’s request for review of the ALJ’s decision (Tr. 2; DN 15-3 PageID # 509-10). Since the Appeals Council
declined to review, the Court cannot consider this evidence in deciding whether to uphold, modify, or reverse the final
decision of the Commissioner. Cline v. Comm’r of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996); Cotton v. Sullivan, 2
F.3d 692, 695-696 (6th Cir. 1993). However, the Court can consider this evidence in deciding whether Plaintiff may
be entitled to a pre-judgment remand under sentence six of 42 U.S.C. § 405(g). Cline, 96 F.3d at 148; Faucher v.
Sec’y of Health & Human Servs., 17 F.3d 171, 174-175 (6th Cir. 1994).
12
Evidence is “material” only if there is a “reasonable probability” that the Administrative
Law Judge would have reached a different disposition of the disability claim if the Administrative
Law Judge had the opportunity to consider the evidence at the time the decision was rendered.
See Ferguson, 628 F.3d at 276; Sizemore, 865 F.2d at 711. In making this assessment, the
undersigned has considered whether the new evidence relates to Plaintiff’s condition prior to or at
the time of the ALJ’s decision, instead of depicting an aggravation or deterioration in Plaintiff’s
condition. See Sizemore, 865 F.2d at 712. Notably, the administrative record before the ALJ
included a myelogram and post-myelogram CT scan of Plaintiff’s lumbar spine performed on
September 11, 2013 (Tr. 381-82) and related treatment notes of Dr. Paul R. McCombs, a spine
specialist, dated September 11 and 12, 2013 (Tr. 383-86). This medical evidence indicates that
on September 11, 2013, Plaintiff had bilateral pars defects at L5, moderate to severe bilateral
neuroforminal stenosis at L5-S1, and problems with the instrumentation screws on the left side at
L4-L5 and L5-S1 (Tr. 382-83). Thus, the February 5, 2015 CT scan and Dr. Campbell’s
diagnostic opinion corroborate the existence of the lumbar spine conditions originally identified in
the September 11, 2013 CT scan and Dr. McCombs’ diagnosis. Undoubtedly, the new evidence
depicts some deterioration in Plaintiff’s condition between the September 11, 2013 CT scan and
the February 5, 2015 CT scan. However, the majority of that deterioration would have occurred
in the two years and 74 days that separate the September 11, 2013 CT scan and the ALJ’s decision
on the November 24, 2014, rather than the 73 days that separate the ALJ’s decision and the
February 5, 2015 CT scan. Therefore, the new medical evidence relates to Plaintiff’s condition
on or before the ALJ’s decision on November 24, 2014.
13
The undersigned will now assess the extent to which this new evidence may have impacted
the disposition of Plaintiff’s disability claim. Notably, the ALJ gave the greatest weight to the
limitations expressed by Dr. Jack Reed, a non-examining State agency medical consultant2 (Tr.
29, 118-121). Certainly, under certain circumstances the opinion of a non-examining State
agency medical consultant may be entitled to greater weight than the opinions of treating or
examining sources. See Social Security Ruling 96-6p, 1996 WL 374180, at *3 (July 2, 1996).
For example, the opinion of a State agency medical consultant may be entitled to greater weight
than a treating source=s medical opinion if the State agency medical “consultant's opinion is based
on a review of a complete case record that includes a medical report from a specialist in the
individual's particular impairment which provides more detailed and comprehensive information
than what was available to the individual's treating source.@ See Social Security Ruling 96-6p,
1996 WL 374180, at *3. However, when a non-examining source has not reviewed a significant
portion of the record, and the Administrative Law Judge fails to indicate that he has “at least
considered [that] fact before giving greater weight” to the reviewing doctor’s opinion, the decision
cannot stand. Blakely v. Comm’r of Soc. Sec., 581 F.3d 399, 409 (6th Cir. 2009).
As mentioned above, the ALJ gave the greatest weight to Dr. Reed’s opinion regarding
Plaintiff’s limitations (Tr. 29, 118-121). However, Dr. Reed rendered his opinion without having
the opportunity to consider the September 2013 CT scan of Plaintiff’s lumbar spine (Tr. 381-82)
and Dr. McCombs’ diagnostic opinion (Tr. 383-86).
Notably, that CT scan was the only
radiological study of Plaintiff’s lumbar spine in the record when the ALJ rendered her decision.
2 The ALJ accepted all but one of the limitations expressed in Dr. Jack Reed’s opinion. Specifically, the ALJ did not
agree with Dr. Reed’s finding that Plaintiff can climb ladders/ropes/scaffolds frequently (compare Finding No. 5 with
Tr. 119).
14
Thus, Dr. Reed rendered his opinion without the benefit of examining any type radiological
evidence regarding Plaintiff’s lumbar spine. This fact raises the question of whether Dr. Reed’s
opinion is consistent with the medical evidence in the record. If Dr. Reed’s opinion is not
consistent with the record then it does not constitute substantial evidence to support the ALJ’s
residual functional capacity assessment. See Social Security Ruling 96-6p, 1996 WL 374180, at
*2, 3 (July 2, 1996); Atterbery v. Sec’y of Health & Human Servs., 871 F.2d 567, 570 (6th Cir.
1989). Unfortunately, the ALJ failed to indicate that she had at least considered the fact that Dr.
Reed did not review the September 2013 CT scan and Dr. McCombs diagnostic opinion regarding
Plaintiff’s lumbar spine before giving the greatest weight to Dr. Reed’s opinion.
Equally
troubling, as a lay person, the ALJ was simply not qualified to interpret the raw medical data in the
September 2013 CT scan in functioning terms when she summarily concluded that Dr. Reed’s
opinion was consistent with the medical evidence in the record. See Nguyen v. Chater, 172 F.3d
31, 35 (1st Cir. 1999) (“As a lay person, however, the ALJ was simply not qualified to interpret
raw medical data in functioning terms and no medical opinion supported the determination.”); see
also Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000) (“[A]n ALJ must not substitute his own
judgment for a physician’s opinion without relying on other medical evidence or authority in the
record.”); Rohan v. Chater, 98 F.3d 966, 968 (7th Cir. 1996) (“And, as this Court has counseled on
many occasions, ALJs must not succumb to the temptation to play doctor and make their own
independent medical findings.”); Lennon v. Apfel, 191 F.Supp.2d 968, 977 (W.D. Tenn. 2001)
(ALJ gave into the temptation to play doctor when he made functional findings based on his own
interpretation of the treating physician’s findings).3
3 While these omissions raise questions regarding whether the residual functional capacity assessment is supported by
15
As mentioned above, the February 5, 2015 CT scan and Dr. Campbell’s diagnostic opinion
corroborate the existence of the lumbar spine conditions originally identified in the September 11,
2013 CT scan and Dr. McCombs’ diagnosis. Certainly, the undersigned is not qualified to
interpret this raw medical data in functioning terms. However, the undersigned does not need a
medical opinion to conclude that when the overlooked medical evidence from September 2013 is
viewed in conjunction with this new medical evidence there is a substantial probability that the
ALJ would have determined Plaintiff has the residual functional capacity to perform less than a
full range of sedentary work.
Notably, at the fifth step, Grid Rule 201.14 in Appendix 2 of the regulations would direct a
finding of disability if Plaintiff were capable of performing a full range of sedentary work because
she is closely approaching advanced age, has at least a high school education, and her job skills are
not transferable (Tr. 83). The regulations and case law indicate if application of one of the Grid
Rules in Appendix 2 directs a finding of disabled, without considering the claimant’s additional
exertional and/or nonexertional limitations, then the Administrative Law Judge will find the
claimant disabled.
20 C.F.R. Part 404, Subpart P, Appendix 2, § 200.00(e)(2); Lounsburry v.
Barnhart, 468 F.3d 1111, 1115-16 (9th Cir. 2006); Cooper v. Sullivan, 880 F.2d 1152, 1156-57
(9th Cir. 1989); Harrison v. Comm’r, No. 1:13-CV-58, 2014 WL 1232685, at *5 (W.D. Mich.
Mar. 25, 2014).
Since there is a substantial probability that the ALJ would have determined
Plaintiff has the residual functional capacity to perform less than a full range of sedentary work the
substantial evidence in the record and comports with applicable law, they will not be addressed herein because the
focus under sentence six of 42 U.S.C. § 405(g) is whether Plaintiff is entitled to a pre-judgment remand.
16
regulations would direct a finding of disabled.
Therefore, the undersigned finds there is a
“reasonable probability” that the new evidence would have resulted in a different disposition of
Plaintiff’s disability claim. See Ferguson, 628 F.3d at 276; Sizemore, 865 F.2d at 711.
As previously mentioned, Agood cause@ is demonstrated by showing a reasonable
justification for the failure to acquire and present the evidence to the Administrative Law Judge.
Foster, 279 F.3d at 357. The Sixth Circuit has also indicated that “good cause” is “shown if the
new evidence arises from continued medical treatment of the condition, and was not generated
merely for the purpose of attempting to prove disability.” Koulizos, 1986 WL 17488, at *1
(citing Wilson v. Sec’y of Health & Human Servs., 733 F.2d 1181 (6th Cir. 1984) and Willis v.
Sec’y of Health & Human Servs., 727 F.2d 551 (6th Cir. 1984)).
Plaintiff’s unrebutted
administrative hearing testimony indicated that in the fall of 2013 she wanted to treat with Dr.
McCombs in Nashville, Tennessee, but lacked the medical insurance and financial resources
necessary to do so (Tr. 54). Further, Plaintiff’s testimony showed that through the Affordable
Care Act she obtained medical insurance in 2014, but the insurance would not pay for treatment
with Dr. McCombs because the policy only paid for treatment in Kentucky (Tr. 54-55).
Plaintiff’s testimony also showed that attempts by her primary care physician and her to locate a
nearby specialist in Kentucky had been unsuccessful because those specialists who accepted her
medical insurance were not willing to repair the work of another surgeon (Tr. 78-79).
Additionally, Plaintiff’s testimony made clear that she would continue to look for a specialist in
Kentucky that would take her case (Tr. 79). Notably, less than two months after the ALJ rendered
the decision, Plaintiff found Dr. Campbell, a specialist in Louisville, Kentucky, which is about a
two-hour drive from where Plaintiff lives. Essentially, Dr. Campbell recommended surgical
17
intervention. While Plaintiff has yet to undergo the surgery, her decision to obtain a second
opinion from another specialist, Dr. Schwank, indicates that Plaintiff is earnestly pursuing
treatment for the condition. In sum, Plaintiff has demonstrated a reasonable justification for the
failure to acquire and present the evidence to the ALJ, and that the new evidence arises from
continued medical treatment of the lumbar spine condition. Therefore, Plaintiff has demonstrated
“good cause” for failure to acquire and present the evidence to the ALJ.
For the foregoing reasons, the undersigned concludes that Plaintiff has demonstrated the
evidence at issue is new, material, and that “good cause” exists for her failure to present the
evidence to the ALJ. Therefore, a pre-judgment remand pursuant to sentence six of 42 U.S.C. §
405(g) is appropriate.
ORDER
IT IS HEREBY ORDERED that Plaintiff’s motion for remand pursuant to sentence six
of 42 U.S.C. § 405(g) (DN 11) is GRANTED.
IT IS FURTHER ORDERED that the Commissioner is directed to conduct further
proceedings that consider the new medical evidence and its impact on the outcome of Plaintiff’s
applications for Disability Insurance Benefits and Supplemental Security Income.
December 28, 2016
Copies:
Counsel
18
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?