Richardson v. Commissioner of Social Security
Filing
17
MEMORANDUM OPINION AND ORDER by Magistrate Judge H. Brent Brennenstuhl on 3/31/2017; The undersigned concludes that the Commissioner's findings are not supported by substantial evidence, and it is ordered that judgment be granted for the Plaintiff and the case remanded pursuant to sentence four of 42 U.S.C. § 405(g). cc: Counsel (CDR)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:16-CV-00116-HBB
MICHELLE BUNCH RICHARDSON
PLAINTIFF
VS.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security
DEFENDANT
MEMORANDUM, OPINION
AND ORDER
BACKGROUND
Before the Court is the complaint (DN 1) of Plaintiff Michelle Bunch Richardson seeking
judicial review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both
the Plaintiff (DN 13) and Defendant (DN 16) 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 9). By Order entered
September 21, 2016 (DN 10), the parties were notified that this Court would not hold oral
arguments unless the parties submitted a written request, and the request were granted. No party
filed such a request.
FINDINGS OF FACT
Plaintiff filed an application for Supplement Security Income and Disability Insurance
benefits on January 7, 2013 (Tr. 230, 233). Plaintiff alleged that she became disabled on
December 1, 2011 as a result of:
1.
Osteoprosis
2.
Osteoporosis with severe, chronic pain
3.
Osteoarthritis
4.
Back disorders
5.
Migraine Headaches, hearing problems
6.
Acid Reflux
7.
Esophageal disorders
8.
Sleep problems
9.
Auto-immune disorder
10.
Depression and anxiety, emotional problems
11.
Poor concentration, focus, and memory
(Tr. 230, 233, 279). Administrative Law Judge Christopher Dillon conducted a video hearing on
September 8, 2014 from Baltimore, Maryland.
Plaintiff was present in Bowling Green,
Kentucky and represented by Charles Richard Burchett. Also present and testifying was Joey
Kilpatrick, vocational expert (Tr. 46).
In a decision dated February 27, 2015, the ALJ evaluated this adult disability claim
pursuant to the five-step sequential evaluation process promulgated by the Commissioner (Tr.
17-39). At the first step, the ALJ found Plaintiff has not engaged in substantial gainful activity
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since December 1, 2011, the alleged onset date (Tr. 23). At the second step, the ALJ determined
that Plaintiff’s low spine disorder, arthritis, osteoporosis, migraine headaches, left knee disorder,
complex regional pain syndrome (RSD), affective disorder, and anxiety-related disorder are
“severe” impairments within the meaning of the regulations (Tr. 23). Also at the second step, the
ALJ determined that Plaintiff’s bilateral hearing loss and sleep apnea are “non-severe”
impairments within the meaning of the regulations (Tr. 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. 24).
At the fourth step, the ALJ found Plaintiff has the residual functional capacity to perform
less than a full range of sedentary work (Tr. 26). More specifically, the ALJ found that Plaintiff
has the following additional non-exertional limitations:
[O]ccasional climbing of ramps and stairs, balancing, stooping,
kneeling, crouching and crawling. The claimant is precluded from
climbing ladders, ropes and scaffolds, operating foot controls and
should have no exposure to hazards such as moving machinery and
unprotected heights. The claimant should have no more than a
moderate level of noise exposure as defined in the Dictionary of
Occupational Title's Selected Characteristics of Occupations and
no more than occasional exposure to temperature extremes, such as
heat and cold. The claimant is limited to performing simple,
routine, repetitive tasks and should have no more than occasional
interaction with supervisors, coworkers and the public.
(Tr. 26). The ALJ found that Plaintiff is unable to perform any of her past relevant work (Tr.
32). Notably, this determination resulted from the ALJ's conclusion that the record did not
contain adequately developed information to make a finding regarding Plaintiff's past relevant
work, but the lack of information was irrelevant because all medical guidelines would
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nonetheless counsel a finding of not disabled given the Plaintiff's age, education, and residual
functional capacity (Id.).
The ALJ proceeded to the fifth step where he considered Plaintiff’s residual functional
capacity, age, education, and past work experience as well as testimony from the vocational
expert (Tr. 32-33). The ALJ found that Plaintiff is capable of performing a significant number of
jobs that exist in the national economy (Tr. 34). Therefore, the ALJ concluded that Plaintiff has
not been under a “disability,” as defined in the Social Security Act, from December 1, 2011
through the date of the decision (Tr. 34).
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. 13).
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 “substantial 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). “Substantial
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. Sec’y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir.
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1993)). In reviewing a case for substantial evidence, the Court “may 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. 1-3). 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 “disability” 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),
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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 “Evaluation 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. For the reasons set forth below, the
undersigned concludes that the Commissioner's decision was not supported by substantial
evidence and remands this case for additional consideration by the ALJ.
A. ASSESSMENT OF FIBROMYALGIA
Plaintiff argues the ALJ erred at step two of the sequential evaluation process by failing
to consider fibromyalgia when assessing Plaintiff's severe impairments (DN 13 pp. 2-3).
Plaintiff notes she was diagnosed with fibromyalgia by a rheumatologist on June 26, 2016 (Id.
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(citing Tr. 716)). Plaintiff maintains that the ALJ's failure to discuss fibromyalgia in his analysis
at step two must result in a decision that is not supported by substantial evidence.
Defendant responds that Plaintiff's diagnosis of fibromyalgia does not comport with the
requirements of SSR 12-2p (DN 16 at pp. 4-6). Specifically, Defendant argues the diagnosis
does not reflect that the diagnosing rheumatologist conducted a review of Plaintiff's medical
history (DN 16 at pp. 4-5). Defendant also argues that the diagnosis is not consistent with either
the 1990 American College of Rheumatology Criteria or the 2010 ACR Preliminary Diagnostic
Criteria (DN 16 at p. 5). Finally, Defendant contends Plaintiff's claim is somehow affected by
the fact that her attorney did not mention fibromyalgia at the administrative hearing. Notably,
Defendant does not develop this argument, explain how it impacts this Court's review, or offer
any legal citation to clarify the argument.
The Social Security Administration has promulgated a rule addressing how an
administrative law judge should assess a diagnosis of fibromyalgia when making a determination
of disability. SSR 12-2p. The rule sets out how fibromyalgia should be viewed in the overall
five step sequential evaluation process. It states:
As with any adult claim for disability benefits, we use a 5-step
sequential evaluation process to determine whether an adult with
an MDI of FM is disabled.
A. At step 1, we consider the person's work activity. If a person
with FM is doing substantial gainful activity, we find that he or she
is not disabled.
B. At step 2, we consider whether the person has a “severe”
MDI(s). If we find that the person has an MDI that could
reasonably be expected to produce the pain or other symptoms the
person alleges, we will consider those symptom(s) in deciding
whether the person's impairment(s) is severe. If the person's pain
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or other symptoms cause a limitation or restriction that has more
than a minimal effect on the ability to perform basic work
activities, we will find that the person has a severe
impairment(s).[20]
C. At step 3, we consider whether the person's impairment(s)
meets or medically equals the criteria of any of the listings in the
Listing of Impairments in appendix 1, subpart P of 20 CFR part
404 (appendix 1). FM cannot meet a listing in appendix 1 because
FM is not a listed impairment. At step 3, therefore, we determine
whether FM medically equals a listing (for example, listing 14.09D
in the listing for inflammatory arthritis), or whether it medically
equals a listing in combination with at least one other medically
determinable impairment.
D. Residual Functional Capacity (RFC) assessment: In our
regulations and SSR 96-8p,[21] we explain that we assess a
person's RFC when the person's impairment(s) does not meet or
equal a listed impairment. We base our RFC assessment on all
relevant evidence in the case record. We consider the effects of all
of the person's medically determinable impairments, including
impairments that are “not severe.” For a person with FM, we will
consider a longitudinal record whenever possible because the
symptoms of FM can wax and wane so that a person may have
“bad days and good days.”
E. At steps 4 and 5, we use our RFC assessment to determine
whether the person is capable of doing any past relevant work (step
4) or any other work that exists in significant numbers in the
national economy (step 5). If the person is able to do any past
relevant work, we find that he or she is not disabled. If the person
is not able to do any past relevant work or does not have such work
experience, we determine whether he or she can do any other
work. The usual vocational considerations apply.
SSR 12-2p 2012 WL 3104869, at *5-6 (July 25, 2012).
Thus, where there is a diagnosis, an ALJ should consider fibromyalgia throughout the
evaluation process. But this leaves open the question of how an ALJ should determine whether
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fibromyalgia constitutes a medically determinable impairment. Defendant ignores key aspects of
the rule in its recitation of the criteria that an ALJ should look for when assessing a diagnosis.
The rule goes on to state:
C. When There Is Insufficient Evidence for Us To Determine
Whether the Person Has an MDI of FM or Is Disabled
1. We may take one or more actions to try to resolve the
insufficiency:
a. We may recontact the person's treating or other source(s) to see
if the information we need is available;
b. We may request additional existing records;
c. We may ask the person or others for more information; or
d. If the evidence is still insufficient to determine whether the
person has an MDI of FM or is disabled despite our efforts to
obtain additional evidence, we may make a determination or
decision based on the evidence we have.
Id. at *4.
Therefore, if the ALJ was unsatisfied with the single diagnosis of fibromyalgia, he should
have conducted the additional steps set forth above. But the most glaring omission here is the
ALJ's failure to address the fibromyalgia diagnosis at all. The administrative decision does not
even contain the word fibromyalgia, let alone a discussion of the Plaintiff's diagnosis. The
Defendant has offered no defense of this omission, instead constructing an argument that
resembles the type of analysis that is conspicuously absent from the ALJ's decision. It is the
duty of the ALJ to fully develop the record. Johnson v. Sec'y of Health and Human Servs., 794
F.2d 1106, 1111 (6th Cir. 1986). The ALJ has an "inquisitorial duty" to seek clarification on
unclear factual matters. Wright-Hines v. Comm'r of Soc. Sec., 597 F.3d 392, 396 (6th Cir.
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2010). Here, the undersigned does not know whether the diagnosis of fibromyalgia was unclear
or not because the ALJ offered no discussion of the matter. This failure to develop the record
warrants remand.
On remand, the ALJ should assess the 2013 diagnosis of fibromyalgia
pursuant to SSR 12-2p, meaning that if the single diagnosis is insufficient to make a
determination, the ALJ should request additional evidence to better develop the record.
B. PLAINTIFF'S REMAINING ARGUMENTS
Because the undersigned has remanded this case for the reasons stated above, there is no
need to analyze Plaintiff's remaining arguments.
C. SENTENCE FOUR REMAND
Sentence four of 42 U.S.C. § 405(g) authorizes a post judgment remand. Under sentence
four, the court makes a final judgment (e.g., affirming, reversing, or modifying the final decision
of the Commissioner) and remands the case to the Commissioner with instructions to consider
additional evidence and/or conduct additional proceedings to remedy a defect in the original
proceedings. Faucher v. Sec’y of Health & Human Servs., 17 F.3d 171, 175 (6th Cir. 1994).
Here, for the reasons expressed above, such remand is appropriate.
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ORDER
For the foregoing reasons, the undersigned concludes that the Commissioner’s findings
are not supported by substantial evidence, and it is ordered that judgment be granted for the
Plaintiff and the case remanded pursuant to sentence four of 42 U.S.C. § 405(g).
March 31, 2017
Copies:
Counsel
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