Selman v. Commissioner of Social Security Administration
Filing
18
Memorandum Opinion and Order that the Court finds the decision of the Commissioner not supported by substantial evidence. Accordingly, the decision is VACATED and the case is REMANDED, pursuant to 42 U.S.C. § 405(g) sentence four for further proceedings consistent with this opinion. Related document 1 Complaint. Signed by Magistrate Judge Greg White on 11/17/2014. (R,Sh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
DEBORAH SELMAN,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security
Defendant.
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CASE NO. 1:13CV2556
MAGISTRATE JUDGE GREG WHITE
MEMORANDUM OPINION & ORDER
Plaintiff Deborah Selman (“Selman”) challenges the final decision of the Acting
Commissioner of Social Security, Carolyn W. Colvin (“Commissioner”), denying her claim for a
Period of Disability (“POD”), Disability Insurance Benefits (“DIB”), and Supplemental Security
Income (“SSI”) under Titles II and XVI of the Social Security Act (“Act”), 42 U.S.C. §§ 416(i),
423, 1381 et seq. This matter is before the Court pursuant to 42 U.S.C. § 405(g) and the consent
of the parties entered under the authority of 28 U.S.C. § 636(c)(2).
For the reasons set forth below, the final decision of the Commissioner is VACATED
and the case REMANDED for further proceedings consistent with this Opinion.
I. Procedural History
On February 3, 2010, Selman filed an application for POD, DIB, and SSI alleging a
disability onset date of May 20, 2009 and claiming she was disabled due to fibromyalgia, spinal
stenosis, sciatica, depression, and, chronic obstructive pulmonary disease (“COPD”). (Tr. 79,
99, 104.) She later claimed she was also disabled due to brachial neuritis and tendonitis. (Tr.
158.) Her application was denied both initially and upon reconsideration. (Tr. 49-54, 57- 61.)
Selman timely requested an administrative hearing. (Tr. 65.)
On August 3, 2012, an Administrative Law Judge (“ALJ”) held a hearing during which
Selman, represented by counsel; a medical expert (“ME”); and, an impartial vocational expert
(“VE”) testified. (Tr. 26-44.) On August 24, 2012, the ALJ found Selman was able to perform
her past relevant work and, therefore, was not disabled. (Tr. 8-20.) The ALJ’s decision became
final when the Appeals Council denied further review. (Tr. 1-3.)
II. Evidence
Personal and Vocational Evidence
Age fifty-five (55) at the time of her administrative hearing, Selman is a “person of
advanced age” under social security regulations. (Tr. 31.) See 20 C.F.R. § 404.1563(e) &
416.963(e). Selman completed the eighth grade and later received a GED. (Tr. 32, 105.) She
has past relevant work as a customer service representative and collections agent. (Tr. 30, 106,
116-123.)
Medical Evidence
On March 2, 2009, Selman presented to her primary care physician Jaya Unnithan, M.D.,
with complaints of neck, shoulder, wrist, and elbow pain. (Tr. 243-245.) A cervical x-ray taken
2
that day showed (1) diffuse osteopenia with severe disc space narrowing at C5-6; (2) mild disc
space narrowing at C6-7; (3) mild degenerative endplate changes; (4) diffuse degenerative facet
changes; and, (5) mild smooth reversal of the normal cervical lordosis within the lower cervical
spine. (Tr. 251.) Dr. Unnithan diagnosed cervicalgia, and recommended physical therapy. (Tr.
244.)
Selman began physical therapy in March 2009. (Tr. 828-832.) At her first visit, she
reported constant neck pain that radiated into her arm and elbow. (Tr. 828.) She also reported
numbness in her right forearm, hand cramping, and difficulty raising her left arm. Id. The
physical therapist, Maighdlin Bauman, P.T., noted decreased cervical left rotation range of
motion; positive dural signs on the left; and, hyperreflexia on the left indicating possible upper
motor neural involvement. (Tr. 831.) She also noted decreased left shoulder range of motion.
Id.
Selman returned to Dr. Unnithan in April and June 2009 with continued complaints of
neck and shoulder pain, as well as pain in her right knee and hip. (Tr. 232-233, 220-222.) Dr.
Unnithan noted tenderness to palpation and painful restriction in both shoulders. (Tr. 215, 222.)
She continued Selman on her pain medications (including Percocet); added Tramadol; and,
recommended continued physical therapy. (Tr. 215-216.) Selman completed twelve physical
therapy sessions in April, July, and August 2009. (Tr. 787-827.)
Selman presented to pain management specialist Marc Soloman, M.D., on December 17,
2009. (Tr. 195-199.) She reported experiencing lower back, neck and shoulder pain for ten
years and “describe[d] the location of the pain as all over joint pain.” (Tr. 196.) She stated her
pain was “chronic, aching and rated as 6 on a scale of 1-10, with radiation.” (Tr. 196.) On
3
examination, Dr. Soloman noted Selman was hyperreflexic in her lower extremities and
exhibited ten tender points as well as sleep disturbance. (Tr. 199.) He diagnosed fibromyalgia;
prescribed Cymbalta; and, ordered a cervical MRI. Id. The MRI, conducted on December 29,
2009, showed “moderate cervical spondylosis . . . most significant at C5-6 where diffuse disk
osteophyte complex causes moderate central canal narrowing and has mass effect on the ventral
cord.” (Tr. 202-203.)
Selman returned to Dr. Soloman in January 2010 with continued complaints of neck,
shoulder, back and joint pain. (Tr. 191-193.) Dr. Soloman diagnosed fibromyalgia and
cervicalgia. (Tr. 193.) He prescribed Lyrica, and referred Selman to neurosurgeon Samuel R.
Borsellino for consultation regarding her lower extremity hyperreflexia. (Tr. 192.) The
following month, Selman presented to Dr. Borsellino and reported that “her pain has been there
for 10 years and is constant whether she is moving or not.” (Tr. 175-177.) Dr. Borsellino noted
the above MRI findings and recommended continued conservative therapy. (Tr. 176.)
Selman presented to Dr. Soloman in March 2010 with complaints of daily, worsening
right hand pain. (Tr. 189-190.) Dr. Soloman assessed arthritic pain; ordered a wrist band;
prescribed Voltaren; and, referred her for an orthopedic consultation. (Tr. 190.) Selman
thereafter presented to orthopedist Paul Treuhaft, M.D., on April 19, 2010. (Tr. 349-351.) She
reported that she “has extensive fibromyalgia that bothers her all over” and “pain virtually
everywhere in her body.” (Tr. 350.) Dr. Treuhaft determined she had full range of motion in all
of her fingers and normal strength. Id. He assessed diffuse hand pain related to her
4
fibromyalgia.1 Id.
On April 16, 2010, Selman presented to Dr. Soloman for a follow-up regarding her
fibromyalgia pain. (Tr. 352-354.) She reported daily pain “all over [her] body,” which she rated
a 10 on a scale of 10 and described as “sharp, stabbing, and shooting all over the body from head
to toe.” (Tr. 353.) Dr. Soloman increased her Lyrica dosage and recommended sacro-iliac
(“SI”) injections. (Tr. 353.) Selman thereafter underwent SI injections in April and May 2010.
(Tr. 344, 346.) She returned to Dr. Soloman on May 27, 2010 and reported only temporary relief
(1-2 days) from the injections. (Tr. 341-342.) She complained of daily, aching pain in her neck,
back and left shoulder. (Tr. 341.) Dr. Soloman diagnosed fibromyalgia; cervicalgia; sacro-iliac
pain; and facet arthropathy. (Tr. 342.) He advised Selman to continue with her pain medication
and recommended a dorsal sacral nerve root radiofrequency ablation (“RFA”). Id.
Selman underwent the RFA on June 21, 2010. (Tr. 338-339.) In a subsequent visit with
Dr. Soloman in August 2010, she reported 20% relief from the RFA, but continued to complain
of neck and lower back pain as well as tremors and spasms. (Tr. 327-329.) At this visit, Selman
apparently complained she was not happy with the care she had received from Dr. Soloman. (Tr.
328.) Dr. Soloman’s notes indicate he explained to Selman that he would not prescribe narcotics
for her fibromyalgia, as studies had shown them to be not effective for that condition. Id.
Instead, Dr. Soloman ordered a cervical MRI, which Selman underwent on August 19, 2010.
1
On April 1, 2010, state agency physician Myung Cho, M.D., reviewed Selman’s records and
completed a Physical RFC assessment. (Tr. 280-287.) She concluded that Selman was capable
of lifting 50 pounds occasionally and 25 frequently; standing and/or walking for a total of 6
hours in an 8 hour work day; and, sitting for about 6 hours in an 8 hour work day. (Tr. 281.)
Dr. Cho further opined that Selman had unlimited push/pull capacity and had no manipulative
limitations. (Tr. 281-283.) She did find, however, that Selman could never climb ladders,
ropes, or scaffolds. (Tr. 282.)
5
(Tr. 465.) This MRI revealed spondylosis resulting in moderate right foraminal encroachment at
C5-6 and mild ventral cord deformity. Id.
Meanwhile, Selman presented to Dr. Unnithan in July and August 2010 with complaints
of nighttime muscle spasms during which “her whole body jerks, including legs, trunk and
arms.” (Tr. 334.) Dr. Unnithan increased her dosage of Baclofen; prescribed Clonazepam; and,
referred Selman for a neurology consult. (Tr. 336.) On August 3, 2010, Selman presented to
neurologist C. Daniel Ansevin, M.D. (Tr. 309-313.) She reported repetitive left arm spasm;
weakness in her left hand; chronic neck pain and “shock like pains in the neck region with neck
flexion or extension;” and, a “vague sense of clumsiness for the past few months but no falls.”
(Tr. 309.) On examination, Dr. Ansevin found some reduced grip strength and “diffuse
hyperreflexi[a] in the upper extremities and lower extremities bilaterally with crossed adduction
at the knees bilaterally but downgoing toes bilaterally and 1-2 beats of clonus at the ankles
bilaterally.” (Tr. 311.) He also found positive Hoffman sign bilaterally, and positive Romberg
testing “but she catches herself.”2 Id. Dr. Ansevin advised Selman to continue with Baclofen
and referred her to a spinal neurosurgeon. (Tr. 312.)
On August 31, 2010, Selman presented to neurosurgeon William E. Bingaman, M.D.
(Tr. 513-517.) She complained of neck, left shoulder, and lower back pain; tremors in her arms
and legs; difficulty with hand writing; and, problems with balance. (Tr. 513.) Dr. Bingaman
observed normal muscle tone and strength, but noted two point sensory discrimination (right
2
The Hoffman sign is defined as “increased excitability to electrical stimulation in the sensory
nerves; the ulnar nerve is usually tested.” Dorland’s Illustrated Medical Dictionary, 32nd ed.
(2012), at 1430. Romberg’s sign is “swaying of the body or falling when standing with the feet
close together and the eyes closed; the result of loss of joint position sense, seen in tabes
dorsalis and other diseases affecting the posterior columns.” Id. at 1715.
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greater than left); hyperreflexic lower extremity responses; “mild sway to the right on
Romberg;” and “difficulty with tandem walk; drifts to the left.” (Tr. 514.) He recommended
Selman undergo an anterior cervical diskectomy, although he noted that it might not correct all
of her symptoms as “she may have an underlying sleep disorder.” (Tr. 515.)
On September 3, 2010, Selman returned to Dr. Ansevin with complaints of exacerbation
of spasms and worsening neck pain. (Tr. 470.) On examination, Dr. Ansevin observed diffuse
hyperreflexia in both the upper and lower bilateral extremities; positive bilateral Hoffman signs;
and “Romberg testing positive but she catches herself.” (Tr. 471.) His notes indicate that he
“doubt[ed] that the spasm will resolve with surgical decompression of the spine and I did explain
this clearly to” Selman. (Tr. 472.) However, he noted that Selman “complains of intolerable
neck pain and wants to proceed with the surgery despite my clear explanation that it may not
improve this symptom either, and could even make the pain worse.” Id. On September 13,
2010, Dr. Bingaman performed a C5-C6 anterior cervical diskectomy, allograft fusion, and
anterior cervical plating. (Tr. 489-490.)
Selman thereafter completed a course of physical therapy from November 16, 2010
through December 23, 2010. (Tr. 616-664.) At her initial evaluation, Selman reported
continued neck pain despite the surgery. (Tr. 657.) She also complained of left shoulder and
back pain, as well as tremors in her upper body, and stated her pain interfered with her sleep and
daily functioning. (Tr. 657, 661.) The physical therapist noted decreased left shoulder range of
motion; decreased shoulder and cervical strength; joint hypomobility; and decreased positional
tolerance. (Tr. 661.) The record reflects Selman generally reported temporary improvement
with therapy, but a return of symptoms the day following a therapy session. (Tr. 633, 616.) At
7
her final session, the physical therapist noted that Selman’s shoulder range of motion and
strength was “much improved,” but stated “she continues to have some cervical pain and pain
with prolonged sitting for which she continues to see pain management.” (Tr. 617.)
Selman also returned to Dr. Soloman in November and December 2010. (Tr. 592-593,
597-598.) She continued to report pain in her hip, knee, lower back, and left shoulder. Id.
Selman stated that her pain medications (Vicodin and Lyrica) had helped, but that she had
experienced little relief from physical therapy. (Tr. 593, 598.) Dr. Soloman recommended an
MRI of her left shoulder, which Selman underwent on January 3, 2011. (Tr. 833-834.) This
MRI revealed rotator cuff tendinosis; mild degenerative arthritis in the acromioclavicular joint;
and, degenerative changes in the superior labrum. (Tr. 833.)
Dr. Soloman then referred Selman to orthopedic specialist Frank M. Sabo, M.D., for
evaluation of her left shoulder pain. (Tr. 611-612.) On January 18, 2011, Dr. Sabo noted that
Selman “complains of diffuse shoulder pain. She has pain just sitting still. She has pain touching
the shoulder. She has pain reaching up as well as in certain directions. She describes it as a
sharp pain as well as an aching pain and burning pain.” (Tr. 611.) Examination of Selman’s
shoulder revealed tenderness along the trapezius, rhomboid and parascapular musculature and
anterolateral shoulder. (Tr. 612.) Dr. Sabo assessed “left shoulder pain likely multifactorial in
origin,” and left rotator cuff tendonitis. Id. He recommended against surgery, and opined that
Selman’s fibromyalgia and possible radicular symptoms “may be contributing to the majority of
her pain.” Id. Dr. Sabo gave Selman a cortisone injection, and suggested she follow up with a
8
neurosurgeon “since her symptomatology is worse than before surgery.”3 Id.
Selman returned to Dr. Sabo on March 1, 2011 and indicated the cortisone injection had
helped “about 10%.” (Tr. 693.) Dr. Sabo did not believe that all of Selman’s symptoms were
originating from her shoulder and felt that surgery was not advisable. (Tr. 693-694.) He
acknowledged that Selman had “seen multiple physicians and nobody seems to have a good
answer.” (Tr. 693.) Since nothing else had seemed to work, Dr. Sabo recommended Selman try
acupuncture, massage and “some alternative type modalities.” (Tr. 694.)
Selman then presented to Leo Simoson, D.C., for four chiropractic treatments in March
2011. (Tr. 676-692.) Dr. Simoson repeatedly noted that Selman’s “active and passive range of
motion measurements in the cervical and lumbar spines were restricted to a marked degree, with
pain and spasm.” (Tr. 676, 684, 689.) In addition, he observed that palpatory inspections of
Selman’s cervical, thoracic and lumbar spines revealed fixations, hypertonic musculature, pain,
and trigger points. (Tr. 676, 680, 684, 689.)
On March 3, 2011, Selman presented to Dr. Soloman for follow up regarding her ongoing
complaints of hip, neck and back pain, and fibromyalgia. (Tr. 915-917.) She rated her pain a 7
on a scale of 10, and described it as “aching and tenderness, stabbing-drilling type pain, duration
to the present time occurring daily.” (Tr. 915.) Dr. Soloman recommended a trochanteric bursa
3
On January 23, 2011, state agency physician Leon Hughes, M.D. reviewed Selman’s records
and completed a Physical RFC Assessment. (Tr. 668-675.) He opined Selman could lift 20
pounds occasionally and 10 pounds frequently; stand and/or walk for about 6 hours in an 8
hour workday; and, sit for about 6 hours in an 8 hour workday. (Tr. 669.) Dr. Hughes further
offered that Selman had limited push/pull capacity in her upper extremities and could only
occasionally stoop, kneel, crouch, crawl or climb ladders, ropes, and scaffolds. (Tr. 669-670.)
He also concluded Selman was limited to occasional bilateral overhead reaching, and should
avoid concentrated exposure to unprotected heights and hazards. (Tr. 671-672.)
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block procedure, which Selman underwent on March 14, 2011. (Tr. 909.) The following month,
Selman returned to Dr. Soloman and reported that the bursa block had provided 60% relief on
the right side and 50% relief on the left side. (Tr. 935.)
In July 2011, however, Selman complained that the pain had come back. (Tr. 961.) She
rated her pain a 9 on a scale of 10 and described it as sharp, deep, and occurring daily. (Tr. 959.)
Selman received a left upper trapezius trigger point injection that day, and underwent a second
bilateral trochanteric bursa block procedure later that month. (Tr. 961, 947, 953.)
On August 19, 2011, Selman presented to pain management specialist Benjamin
Abraham, M.D. (Tr. 977-979.) Although she reported 80% relief from second bursa block
procedure, she also complained of constant pain in her neck and shoulder which she rated a 5 on
a scale of 10. (Tr. 977.) On examination, Dr. Abraham noted restricted range of motion of
Selman’s neck; pain to palpation over the cervical paraspinal muscles; tenderness to palpation
over the left trapezius; and, antalgic gait. (Tr. 979.) He concluded that Selman’s “worsening
restriction of neck motion likely due to worsening facet arthropathy.” Id. He diagnosed facet
arthropathy and fibromyalgia and scheduled Selman for a left C-3,4,5 cervical facet medial
branch nerve block. Id. Selman subsequently underwent nerve blocks on August 29, 2011 and
October 3, 2011. (Tr. 969-971, 995-997.) In addition, Dr. Abraham administered a left C-3,4,5
cervical facet medial branch nerve RFA on October 24, 2011. (Tr. 873-877.)
In December 2011, Selman presented to rheumatologist Feyrouz Al Ashkar, M.D., for
evaluation of her knee pain. (Tr. 845-859.) On examination, Dr. Al Ashkar assessed full range
of motion in Selman’s shoulders; negative straight leg raising; no instability in any upper or
lower extremity joints; and, normal gait. (Tr. 851.) However, he also noted 12 tender points and
10
diffuse soft tissue tenderness. Id. Dr. Al Ashkar diagnosed fibromyalgia; bilateral knee pain;
cervicalgia; muscle spasm; and, vitamin D deficiency. Id. He found no evidence of systemic
inflammatory rheumatic disease, and recommended Selman continue to follow up with pain
management regarding her fibromyalgia symptoms. (Tr. 852.)
Also in December 2011, Selman returned to Dr. Abraham with complaints of pain in her
knees, left shoulder, neck, and lower back. (Tr. 1005-1007.) Selman reported 40% relief from
the October 2011 RFA but indicated that she was still experiencing pain, particularly when she
was on her feet for more than an hour. (Tr. 1005.) Dr. Abraham assessed pain to palpation over
Selman’s cervical and lumbar paraspinal muscles; antalgic gait; and, “tenderness in trigger
areas.” (Tr. 1007.) He recommended she continue her medications (Baclofen, Vicodin, Lyrica,
and Cymbalta) and participate in yoga twice per week. Id.
In February 2012, Selman presented to Dr. Abraham with complaints of increased pain in
her back and hip, which she rated a 6 on a scale of 10 and described as “worse when walking.”
(Tr. 1035.) Dr. Abraham observed pain to palpation in Selman’s lumbar paraspinal muscles;
positive facet loading bilaterally; and, antalgic gait. (Tr. 1037.) He administered a right greater
trochanter bursal steroid injection and then, three days later, another lumbar medial branch nerve
RFA. (Tr. 1037, 1027.) The following month, Selman reported 90% relief from the RFA for
one week and “then the pain started to come back.” (Tr. 1047.) She rated it a 9 on a scale of 10
and described it as worse with any type of activity that requires bending or lifting. Id.
Examination findings again included pain to palpation in Selman’s lumbar paraspinal muscles;
positive facet loading bilaterally; and, antalgic gait. (Tr. 1049.) Selman was advised to
continue her medications and to try aquatherapy with deep-tissue massage. Id.
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In May 2012, Selman returned to Dr. Abraham with complaints of aching, burning,
stabbing pain in her right lower extremity, foot, lumbar parapinal muscles, and right hip. (Tr.
1087.) Dr. Abraham again found pain to palpation in Selman’s lumbar paraspinal muscles;
positive facet loading bilaterally; and, antalgic gait. (Tr. 1087-1088.) He noted that Selman’s
pain “was only somewhat improved after medial branch RFA” and administered a right greater
trochanteric bursa injection. (Tr. 1088.)
Finally, Selman returned to the pain clinic in June 2012 with complaints of constant,
aching neck and shoulder pain, as well as left arm tingling and weakness. (Tr. 1092.)
Examination revealed pain to palpation over the cervical and lumbar paraspinal muscles; positive
bilateral Spurling test; positive straight leg raising in the right lower extremity; positive facet
loading bilaterally; and, antalgic gait. (Tr. 1093.) Selman was advised to continue her
medications and home exercise program/aquatherapy; and was scheduled for another left C-3,4,5
cervical facet medical branch nerve RFA. Id.
Hearing Testimony
At the August 3, 2012 hearing, Selman testified to the following:
•
She left high school after the eighth grade. She earned a GED and has taken some
college classes. She is divorced with two grown children. She lives in an
apartment with a roommate. (Tr. 31-32.)
•
She last worked in June 2009. Her employer let her go because she was not able
to do her job due to her pain. She was unable to sit at her desk for more than 15
to 20 minutes and was calling off work too often because of pain. (Tr. 32.)
•
She cannot work anymore “because of all the pain [she] endure[s].” (Tr. 33.) She
experiences daily pain in her neck, lower back, shoulders, hips, and knees. (Tr.
33, 36-37.) Her hands hurt and tingle. She drops things easily and “loses
control” of her fingers. (Tr. 33-34.) Her condition has remained the same over
the past year. (Tr. 34.)
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•
She has difficulty sitting for long periods of time because of her neck, shoulder,
lower back, and hip pain. She can sit for approximately 15 to 20 minutes before
needing to change positions. She can stand for 20 to 25 minutes before needing
to sit down and rest. She can walk for “maybe a block.” She can lift a gallon of
milk but it hurts her hands. (Tr. 33, 35-37.)
•
Reaching above her head is “extremely difficult” for her and causes “pain
shooting down the side of my face, my neck, all the way down my arm, my lower
back.” (Tr. 36.) She can open a door with a doorknob and use buttons and
zippers. However, it is a challenge for her to twist off a jar lid. She uses the
computer on occasion to pay bills. She cannot really type because she loses
control of her fingers. (Tr. 34.)
•
She can do “very little housework.” (Tr. 35.) She vacuums and does laundry, but
it is difficult for her. She can take a shower and get dressed independently. She
goes grocery shopping every two weeks, but someone generally comes with her to
help carry the bags. She can get around the grocery store “as long as [she]
walk[s] at [her] own pace.” (Tr. 35.)
•
She has a drivers license. She can drive but it is difficult to hold on to the
steering wheel because her hands tingle and “they just release things.” (Tr. 32.)
In addition, it is painful for her to drive for more than 20 minutes. (Tr. 32.)
•
She takes Vicodin, Lyrica and Cymbalta. (Tr. 33-34.)
The VE testified that Selman has past relevant work as a customer service representative
(light, semi-skilled, SVP 4) and collections agent (sedentary, semi-skilled, SVP 4). (Tr. 30.)
The ALJ then posed the following hypothetical:
Assume an individual of Claimant’s age, education and work experience and
assume further I were to find from the medical evidence that the Claimant could
do the entire universe of exertional and non-exertional work with the exception
that she could lift 20 pounds occasionally, ten pounds frequently, stand and walk
six out of eight hours and sit six out of eight hours, perform no ladders, ropes, or
scaffolds, perform the postural occasionally, occasional reaching bilaterally above
the shoulder level and, what else, no unprotected heights and dangerous moving
machinery. Would she be able to return to her past relevant work?
(Tr. 39.) The VE testified such a hypothetical individual would be able to perform Selman’s past
relevant work. Id.
13
The ALJ then posed a second hypothetical that was the same as the first but limited the
individual to occasional handling. (Tr. 39.) The VE testified such an individual would not be
able to perform Selman’s past relevant work, but could perform the jobs of usher and
hostess/greeter. (Tr. 39-40.) The ALJ then asked whether the usher and hostess/greeter jobs
would be available if the individual were limited to bilateral handling and fingering at the
occasional level. (Tr. 40.) The VE testified that the usher and hostess/greeter jobs would be
available with this limitation. Id.
The ALJ then posed a third hypothetical that was the same as the first but at the sedentary
level. (Tr. 40.) The VE testified such an individual could perform Selman’s past work as a
collections agent, but not her customer service representative work. (Tr. 40-41.) The VE further
indicated, however, that adding the limitation of occasional handling at the sedentary level
would eliminate all jobs.4 (Tr. 41.)
III. Standard for Disability
In order to establish entitlement to DIB under the Act, a claimant must be insured at the
time of disability and must prove an inability to engage “in substantial gainful activity by reason
of any medically determinable physical or mental impairment,” or combination of impairments,
that 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 12 months.” 20 C.F.R. §§ 404.130, 404.315 and 404.1505(a).5
4
The ME, Mark Oberlander, Ph.D., testified regarding Selman’s psychiatric impairments and
concluded that “from a psychiatric standpoint, certainly, the level of [Selman’s] impairment is
not severe.” (Tr. 38.)
5
The entire process entails a five-step analysis as follows: First, the claimant must not be
engaged in “substantial gainful activity.” Second, the claimant must suffer from a “severe
impairment.” A “severe impairment” is one which “significantly limits ... physical or mental
14
A claimant is entitled to a POD only if: (1) she had a disability; (2) she was insured when
she became disabled; and, (3) she filed while she was disabled or within twelve months of the
date the disability ended. 42 U.S.C. § 416(i)(2)(E); 20 C.F.R. § 404.320.
Selman was insured on her alleged disability onset date, May 20, 2009, and remained
insured through September 30, 2011. (Tr. 8.) Therefore, in order to be entitled to POD and DIB,
Selman must establish a continuous twelve month period of disability commencing between
those dates. Any discontinuity in the twelve month period precludes an entitlement to benefits.
See Mullis v. Bowen, 861 F.2d 991, 994 (6th Cir. 1988); Henry v. Gardner, 381 F.2d 191, 195 (6th
Cir. 1967).
A disabled claimant may also be entitled to receive SSI benefits. 20 C.F.R. § 416.905;
Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524 (6th Cir. 1981). To receive SSI benefits, a
claimant must meet certain income and resource limitations. 20 C.F.R. §§ 416.1100 and
416.1201.
IV. Summary of Commissioner’s Decision
The ALJ found Selman established medically determinable, severe impairments, due to
ability to do basic work activities.” Third, if the claimant is not performing substantial gainful
activity, has a severe impairment that is expected to last for at least twelve months, and the
impairment, or combination of impairments, meets a required listing under 20 C.F.R. § 404,
Subpt. P, App. 1, the claimant is presumed to be disabled regardless of age, education or work
experience. 20 C.F.R. §§ 404.1520(d) and 416.920(d)(2000). Fourth, if the claimant’s
impairment does not prevent the performance of past relevant work, the claimant is not
disabled. For the fifth and final step, even though the claimant’s impairment does prevent
performance of past relevant work, if other work exists in the national economy that can be
performed, the claimant is not disabled. Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990).
15
cervical degenerative disc disease, left shoulder tendonitis, and fibromyalgia;6 however, her
impairments, either singularly or in combination, did not meet or equal one listed in 20 C.F.R.
Pt. 404, Subpt. P, App. 1. (Tr. 10-14.) Selman was determined to have a Residual Functional
Capacity (“RFC”) for a limited range of light work. (Tr. 14-19.) The ALJ then used the Medical
Vocational Guidelines (“the grid”) as a framework and VE testimony to determine that Selman
was capable of performing her past relevant work and, therefore, not disabled. (Tr. 19-20.)
V. Standard of Review
This Court’s review is limited to determining whether there is substantial evidence in the
record to support the ALJ’s findings of fact and whether the correct legal standards were applied.
See Elam v. Comm’r of Soc. Sec., 348 F.3d 124, 125 (6th Cir. 2003) (“decision must be affirmed
if the administrative law judge’s findings and inferences are reasonably drawn from the record or
supported by substantial evidence, even if that evidence could support a contrary decision.”);
Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983). Substantial evidence has been
defined as “‘more than a scintilla of evidence but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’” Rogers v.
Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quoting Cutlip v. Sec’y of Health and
Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)).
The findings of the Commissioner are not subject to reversal merely because there exists
in the record substantial evidence to support a different conclusion. Buxton v. Halter, 246 F.3d
762, 772-3 (6th Cir. 2001) (citing Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)); see also
6
The ALJ also found that Selman had the following non-severe impairments: asthma, bladder
spasms, a vitamin D deficiency, a sensitive stomach, a calcium deficiency, hand pain, and
depression. (Tr. 11-13.)
16
Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999) (“Even if the evidence could
also support another conclusion, the decision of the Administrative Law Judge must stand if the
evidence could reasonably support the conclusion reached. See Key v. Callahan, 109 F.3d 270,
273 (6th Cir. 1997).”) This is so because there is a “zone of choice” within which the
Commissioner can act, without the fear of court interference. Mullen, 800 F.2d at 545 (citing
Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984)).
In addition to considering whether the Commissioner’s decision was supported by
substantial evidence, the Court must determine whether proper legal standards were applied.
Failure of the Commissioner to apply the correct legal standards as promulgated by the
regulations is grounds for reversal. See, e.g.,White v. Comm’r of Soc. Sec., 572 F.3d 272, 281
(6th Cir. 2009); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2006) (“Even if
supported by substantial evidence, however, a decision of the Commissioner will not be upheld
where the SSA fails to follow its own regulations and where that error prejudices a claimant on
the merits or deprives the claimant of a substantial right.”)
Finally, a district court cannot uphold an ALJ’s decision, even if there “is enough evidence
in the record to support the decision, [where] the reasons given by the trier of fact do not build an
accurate and logical bridge between the evidence and the result.” Fleischer v. Astrue, 774 F.
Supp. 2d 875, 877 (N.D. Ohio 2011) (quoting Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir.1996);
accord Shrader v. Astrue, 2012 WL 5383120 (E.D. Mich. Nov. 1, 2012) (“If relevant evidence is
not mentioned, the Court cannot determine if it was discounted or merely overlooked.”);
McHugh v. Astrue, 2011 WL 6130824 (S.D. Ohio Nov. 15, 2011); Gilliam v. Astrue, 2010 WL
2837260 (E.D. Tenn. July 19, 2010); Hook v. Astrue, 2010 WL 2929562 (N.D. Ohio July 9,
17
2010).
VI. Analysis
Credibility
Selman first argues the ALJ failed to properly evaluate her fibromyalgia pain and
credibility. Specifically, Selman maintains the ALJ’s emphasis on the alleged lack of objective
medical evidence “demonstrates a misunderstanding of the fibromyalgia diagnosis, which
inherently does not produce objective findings or require surgical intervention.” (Doc. No. 15 at
18.) Selman also asserts the ALJ “improperly dissected the record” in order to support his
conclusion she was not credible, noting in particular that the ALJ cited her reports of obtaining
relief from injections but failed to mention that none of those injections provided any long-term
relief. Finally, Selman argues that her unsuccessful attempt to return to work and limited daily
living activities are also improper reasons for finding her allegations of pain to be less than
credible.
The Commissioner argues the ALJ provided numerous reasons to support his credibility
finding and, further, that these reasons are supported by the substantial evidence. In particular,
the Commissioner notes the ALJ properly relied on examination findings of normal muscle
strength, normal gait, and “generally normal ranges of motion,” in evaluating her fibromyalgia
pain. She also maintains that “Plaintiff’s ability to do yoga, ride an exercise bicycle, and
perform the exercises required in physical therapy and aquatic therapy, although prescribed by
her treating physicians, also suggest that the claimant is not as limited as she alleged.” (Doc. No.
17 at 11.)
It is well settled that pain alone, if caused by a medical impairment, may be severe enough
18
to constitute a disability. See Kirk, 667 F.2d at 538. When a claimant alleges symptoms of
disabling severity, the ALJ must follow a two-step process for evaluating these symptoms. First,
the ALJ must determine if there is an underlying medically determinable physical or mental
impairment. Second, the ALJ “must evaluate the intensity, persistence, and limiting effects of
the symptoms.” SSR 96-7p. Essentially, the same test applies where the alleged symptom is
pain, as the Commissioner must (1) examine whether the objective medical evidence supports a
finding of an underlying medical condition, and (2) whether the objective medical evidence
confirms the alleged severity of pain or whether the objectively established medical condition is
of such a severity that it can reasonably be expected to produce the alleged disabling pain. See
Felisky v. Bowen, 35 F.3d 1027, 1038-39 (6th Cir. 1994).
If these claims are not substantiated by the medical record, the ALJ must make a
credibility determination of the individual’s statements based on the entire case record. Id.
Credibility determinations regarding a claimant’s subjective complaints rest with the ALJ. See
Siterlet v. Sec’y of Health & Human Servs., 823 F.2d 918, 920 (6th Cir. 1987). The ALJ’s
credibility findings are entitled to considerable deference and should not be discarded lightly.
See Villareal v. Sec’y of Health & Human Servs., 818 F.2d 461, 463 (6th Cir. 1987).
Nonetheless, “[t]he determination or decision must contain specific reasons for the finding on
credibility, supported by evidence in the case record, and must be sufficiently specific to make
clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the
individuals statements and the reason for the weight.” SSR 96-7p, Purpose section; see also
Felisky, 35 F.2d at 1036 (“If an ALJ rejects a claimant’s testimony as incredible, he must clearly
state his reason for doing so”).
19
To determine credibility, the ALJ must look to medical evidence, statements by the
claimant, other information provided by medical sources, and any other relevant evidence on the
record. See SSR 96–7p, Purpose. Beyond medical evidence, there are seven factors that the ALJ
should consider.7 The ALJ need not analyze all seven factors, but should show that he
considered the relevant evidence. See Cross v. Comm’r of Soc. Sec., 373 F.Supp.2d 724, 733
(N.D. Ohio 2005); Masch v. Barnhart, 406 F.Supp.2d 1038, 1046 (E.D. Wis. 2005).
Here, the ALJ accepted that Selman suffered from the severe impairments of cervical
degenerative disc disease, left shoulder tendonitis, and fibromyalgia. (Tr. 10-11.) He found that
these impairments “more than minimally affect[ed] [Selman’s] functional abilities in the
workplace.” (Tr. 11.) However, the ALJ dismissed Selman’s statements concerning the
intensity, persistence, and limiting effects of her pain as not credible to the extent they were
inconsistent with the RFC.8 (Tr. 15,18.)
In support of this finding, the ALJ determined as follows:
[T]he objective medical evidence does not provide a basis for finding limitations
greater than those determined in this decision. In addition, consideration of the
7
The seven factors are: (1) the individual's daily activities; (2) the location, duration,
frequency, and intensity of the individual's pain; (3) factors that precipitate and aggravate the
symptoms; (4) the type, dosage, effectiveness, and side effects of any medication the individual
takes or has taken to alleviate pain or other symptoms; (5) treatment, other than medication, the
individual receives or has received for relief of pain or other symptoms; (6) any measures other
than treatment the individual uses or has used to relieve pain or other symptoms; and (7) any
other factors concerning the individual's functional limitations and restrictions due to pain or
other symptoms. See SSR 96–7p, Introduction.
8
The ALJ formulated the RFC as follows: “After careful consideration of the entire record, the
undersigned finds that the claimant has the residual functional capacity to perform light work
as defined in 20 CFR 404.1567(b) and 416.967(b) except she is able to reach above shoulder
level bilaterally no more than occasionally, and she is unable to work around dangerous
moving machinery or unprotected heights.” (Tr. 14.)
20
factors described in 20 CFR 404.1529(c)(3) and 416.929(c)(3) and Social
Security Ruling 96-7p also leads to a conclusion that the claimant’s allegations of
disabling symptoms and limitations cannot be accepted, and that the residual
functional capacity finding in this case is justified.
The claimant’s subjective complaints of disabling pain and symptoms are not
entirely credible and not fully supported by objective medical evidence and other
subjective factors. A look at the claimant’s history shows that she did treat with
many orthopedic, neurological, and pain management specialists for many years.
She also underwent cervical surgery in the fall of 2010 and had many injections.
Still, most of the claimant’s clinical findings were relatively benign, she
reportedly had a good response to injections, and her treatment was mostly
conservative in nature. In almost all examinations, she had a normal gait, a
negative straight-leg raise test bilaterally, full intact reflexes, sensation, pulses,
and motor strength, and no atrophy or spasms. The claimant also reported nearly
eighty percent relief from injections administered in the summer of 2011.
Following her surgery, she required no hospitalizations and no more operations.
Moreover, none of the claimant’s treating or examining physicians offered any
restrictions on her functional abilities. The aforementioned factors detract from
the credibility of the claimant’s allegations that she is unable to perform all work.
Furthermore, the claimant stated that she was a student as recently as May 2010
(1F, 5F). The claimant was also able to work for about one month after her
alleged onset date as a customer service representative (17E). Additionally, the
claimant was able to do yoga on a regular basis as recently as March 2011 (25F).
Performing work, taking classes, and doing yoga all presumably require a certain
amount of physical abilities including walking, standing, and bending. The
claimant’s ability to perform these activities, after her alleged onset date, also
make her subjective complaints of disabling impairments and an inability to
perform work at any exertional or skill level less persuasive.
Another factor influencing the undersigned’s decision is the claimant’s
description of her daily activities, which are not limited to the extent one would
expect, given her complaints of disabling symptoms and limitations. For
instance, the claimant is able to drive short distances, do housework, vacuum, and
do laundry. Although she stated that she has pain from standing for prolonged
periods, she is also able to do her own grocery shopping and take care of her
personal needs independently. The claimant’s ability to carry out these activities
also makes her allegations of disabling impairments less credible.
(Tr. 18.)
The Court finds the ALJ’s credibility analysis is not supported by substantial evidence.
21
The ALJ’s primary reasons for discounting Selman’s credibility were the lack of objective
medical evidence supporting her allegations of disabling pain; “normal” physical examination
results; and, the lack of more aggressive treatment. However, the Sixth Circuit has held that “the
absence of objective medical evidence to substantiate the diagnosis of fibromyalgia or its
severity is basically irrelevant,” in light of the nature of that condition. Kalmbach v. Comm’r of
Soc. Sec, 409 Fed. Appx. 852, 864 (6th Cir. 2011). See also Rogers v. Comm’r of Soc. Sec., 486
F.3d 234, 243 (6th Cir. 2007); Preston v. Sec’y of Health & Human Servs., 854 F.2d 815, 820 (6th
Cir. 1988). As that court has explained, fibromyalgia “is a medical condition marked by
‘chronic diffuse widespread aching and stiffness of muscles and soft tissues.’” Rogers, 486 F.3d
at 244, n. 3 (quoting Stedman's Medical Dictionary for the Health Professions and Nursing at
541 (5th ed. 2005)). Diagnosing fibromyalgia involves “observation of the characteristic
tenderness in certain focal points, recognition of hallmark symptoms, and ‘systematic’
elimination of other diagnoses.” Id. (quoting Preston, 854 F.2d at 820). CT scans, x-rays, and
minor abnormalities “are not highly relevant in diagnosing [fibromyalgia] or its severity.” Id.;
see also Preston, 854 F.2d at 820. “[P]hysical examinations will usually yield normal results—a
full range of motion, no joint swelling, as well as normal muscle strength and neurological
reactions. There are no objective tests which can conclusively confirm the disease; rather it is a
process of diagnosis by exclusion.” Preston, 854 F.2d at 818. See also Rogers, 486 F.3d at 244.
As one court explained:
Its cause or causes are unknown, there is no cure, and, of greatest importance to
disability law, its symptoms are entirely subjective. There are no laboratory tests for
the presence or severity of fibromyalgia. The principal symptoms are “pain all
over,” fatigue, disturbed sleep, stiffness, and--the only symptom that discriminates
between it and other diseases of a rheumatic character--multiple tender spots, more
precisely 18 fixed locations on the body (and the rule of thumb is that the patient
22
must have at least 11 of them to be diagnosed as having fibromyalgia) that when
pressed firmly cause the patient to flinch. All these symptoms are easy to fake,
although few applicants for disability benefits may yet be aware of the specific
locations that if palpated will cause the patient who really has fibromyalgia to flinch.
There is no serious doubt that [the claimant] is afflicted with the disease but it is
difficult to determine the severity of her condition because of the unavailability of
objective clinical tests. Some people may have such a severe case of fibromyalgia
as to be totally disabled from working, Michael Doherty & Adrian Jones,
“Fibromyalgia Syndrome (ABC of Rheumatology),” 310 British Med. J. 386 (1995);
Preston v. Secretary of Health & Human Services, 854 F.2d 815, 818 (6th Cir. 1988)
(per curiam), but most do not and the question is whether [claimant] is one of the
minority.
Sarchet v. Chater, 78 F.3d 305, 306-07 (7th Cir. 1996).
Here, Selman was diagnosed with fibromyalgia by Drs. Soloman, Abraham, and Al
Ashkar. (Tr. 193, 199, 342, 851, 979.) Treatment notes throughout the medical record reference
Selman’s “extensive fibromyalgia” and indicate she consistently exhibited “tenderness in trigger
areas” and, specifically, 12 tender points during an examination in December 2011. (Tr. 851,
350, 612, 676, 680, 684, 689, 1007.) Despite this evidence, the ALJ relied heavily on the lack of
objective medical evidence and “normal” examination results (i.e., normal gait, sensation,
pulses, and motor strength) to discredit Selman’s allegations of disabling pain. As noted above,
however, it is clear that the lack of “objective” medical evidence is not unusual, but rather the
norm in fibromyalgia cases. See Preston, 854 F.2d at 817-818 (stating that “[t]here are no
objective tests which can conclusively confirm” fibromyalgia); Keating v. Comm’r of Soc. Sec.,
2014 WL 1238611 at * 6 (N.D. Ohio March 25, 2014) (“This circuit has recognized that
symptoms of fibromyalgia are often not supportable by objective medical evidence”); Schlote v.
Astrue, 2012 WL 1965765 at * 6 (N.D. Ohio May 31, 2012). Similarly, the fact that physical
examinations of Selman’s extremities and neurological systems “yielded normal findings” is not
necessarily inconsistent with fibromyalgia. Indeed, the Sixth Circuit has consistently recognized
23
that fibromyalgia patients typically “manifest normal muscle strength and neurological reactions
and have a full range of motion.” Kalmbach, 409 Fed. Appx. at 861-862 (citing Preston, 854
F.2d at 820). See also Minor v. Comm’r of Soc. Sec., 513 Fed. Appx. 417, 434 (6th Cir. 2013)
(noting fibromyalgia claimants “demonstrate normal muscle strength and neurological reactions
and can have a full range of motion”); Keating, 2014 WL 1238611 at * 6.
Moreover, the ALJ’s determination that Selman lacked credibility because her treatment
was “mostly conservative in nature” is also irrelevant in the context of fibromyalgia. Indeed, as
the Sixth Circuit has noted, “more ‘aggressive’ treatment is not recommended for fibromyalgia
patients.” Kalmbach, 409 Fed. Appx. 864. Thus, the fact that Selman “required no
hospitalizations and no more operations” after her cervical diskectomy surgery in September
2010 is simply not a relevant consideration in evaluating the credibility of her allegations of
disabling pain due to fibromyalgia. As this Court has noted on previous occasions, “[it] is
incumbent upon the ALJ to apply the correct standard under existing Sixth Circuit precedent”
when evaluating fibromyalgia claims. Schlote, 2012 WL 1965765 at * 6. By focusing on the
lack of objective medical evidence, neurological examinations showing full strength and range
of motion, and the lack of more aggressive treatment, the ALJ failed to properly evaluate
Selman’s fibromyalgia.
The Court further notes that fibromyalgia was not Selman’s only severe impairment. To
the contrary, the ALJ also recognized that Selman’s cervical degenerative disc disease and left
shoulder tendonitis constituted severe impairments. (Tr. 10.) Notwithstanding the ALJ’s
suggestion to the contrary, the record does contain objective medical evidence substantiating the
severity of these particular conditions, including (1) a cervical x-ray taken on March 2, 2009
24
showing severe disc space narrowing at C5-6; (2) a cervical MRI dated December 29, 2009
showing moderate cervical spondylosis most significant at C5-6 where diffuse disk osteophyte
complex causes central canal narrowing; (3) a cervical MRI dated August 19, 2010 showing
moderate right foraminal encroachment at C5-6; and, (4) a left shoulder MRI dated January 3,
2011 showing rotator cuff tendinosis. (Tr. 415-416, 202-203, 315, 833.) Moreover, while the
record indicates some normal clinical examination findings, there are also numerous references
to hyperreflexia; decreased range of motion; positive bilateral Hoffman sign; positive Romberg
testing; two point sensory discrimination; tenderness to palpation over the cervical and lumbar
paraspinal muscles; positive facet loading bilaterally; positive bilateral Spurling test; positive
straight leg raising in the right lower extremity; and, antalgic gait. (Tr. 831, 215-222, 199,
311,514, 471, 661, 676, 684, 689, 979, 1007, 1037, 1049, 1087-1088, 1093.)
Moreover, the Court finds the ALJ’s reliance on Selman’s “reportedly . . . good response
to injections,” to be misplaced. While Selman often reported temporary improvement after
(some but not all of) her many injections and block procedures, this improvement was invariably
temporary in nature. After these procedures, Selman reported to her doctors that the pain had
returned within (at most) a few months, necessitating additional rounds of injections, blocks,
and/or RFAs. (Tr. 341-342, 327-328, 935, 961, 977, 1005, 1047.) Indeed, in the two year time
period between April 2010 and May 2012, Selman underwent at least twelve such procedures.
In light of the frequency, Selman’s September 2010 cervical diskectomy, and her numerous
prescription pain medications, the Court can hardly agree with the ALJ’s characterization of
Selman’s treatment as “mostly conservative in nature.”9 (Tr. 18.)
9
In conducting his credibility analysis, the ALJ also mentioned that “none of the claimant’s
treating or examining physicians offered any restrictions on her functional abilities.” (Tr. 18.)
25
Finally, the Court disagrees with the ALJ’s conclusion that Selman’s occasional and
infrequent daily activities undermine her allegations of disabling pain. Selman testified she was
able to drive short distances, do some limited vacuuming and laundry, dress independently, and
go grocery shopping once every two weeks with assistance. (Tr. 32, 35.) The record also
contains some evidence that, at her doctor’s suggestion, she engaged in yoga twice per week.
However, the mere fact that Selman is able to perform these activities in spite of her alleged pain
is not necessarily indicative of an ability to perform substantial gainful activity for eight hours a
day. See e.g. Kalmbach, 409 Fed. Appx. at 864 (finding the claimant’s ability to prepare her
own meals, dress herself independently, drive short distances and go to the grocery store,
pharmacy and church constituted “minimal activities [that] are hardly consistent with eight
hours’ worth of typical work activities”); Walston v. Gardner, 381 F.2d 580, 586 (6th Cir. 1967)
(“[t]he fact that [a claimant] can still perform simple functions, such as driving, grocery
shopping, dish washing, and floor sweeping does not necessarily indicate that this [claimant]
possesses an ability to engage in substantial gainful activity. Such activity is intermittent and not
continuous, and is done in spite of pain suffered by [claimant].”); Hall v. Celebrezze, 314 F.2d
686, 690 (6th Cir. 1963) (“It was not necessary that [the claimant] be bedridden or wholly
helpless in order to establish his claim for benefits.”) Moreover, the ALJ’s reference to the fact
Selman notes, however, that all of her physicians were Cleveland Clinic doctors and that “it is
the experience of [Selman’s counsel] that [Cleveland Clinic Foundation] physicians
traditionally will not complete assessments regarding a patient’s ability to perform workelated activities.” (Doc. No. 22 at fn 4.) While the Court has no way of verifying whether the
Cleveland Clinic has a policy against its doctors completing functional ability assessments for
social security claimants, the Commissioner does not challenge the existence of such a policy.
Nor does it direct this Court’s attention to any legal authority suggesting it is appropriate for an
ALJ to draw a negative inference regarding a claimant’s credibility based on the absence of a
treating physician opinion.
26
Selman worked for one month after her alleged onset date is misleading in light of her hearing
testimony that she was fired from that job because she was unable to sit at her desk for more than
15 to 20 minutes and was calling off work too often due to her pain. (Tr. 32.)
As the Sixth Circuit has noted, “while credibility determinations regarding subjective
complaints rest with the ALJ, those determinations must be reasonable and supported by
substantial evidence.” Kalmbach, 409 Fed. Appx. at 865. Here, the ALJ’s reasons for
discrediting Selman’s allegations of disabling pain are not supported by substantial evidence.
Accordingly, the Court finds a remand is necessary to allow the ALJ an opportunity to conduct a
proper credibility analysis.10
VII. Decision
For the foregoing reasons, the Court finds the decision of the Commissioner not supported
by substantial evidence. Accordingly, the decision is VACATED and the case is REMANDED,
pursuant to 42 U.S.C. § 405(g) sentence four for further proceedings consistent with this opinion.
IT IS SO ORDERED.
/s/ Greg White
U.S. Magistrate Judge
Date: November 17, 2014
10
In the interest of judicial economy, the Court will not address Selman’s remaining
assignment of error.
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