Williams v. Commissioner of Social Security
Filing
12
Memorandum Opinion and Order finding that the decision of the Commissioner is not supported by substantial evidence and the Court VACATES the Commissioner's decision and REMANDS the case back to the Social Security Administration. Signed by Magistrate Judge Kenneth S. McHargh on 8/10/16. (M,De)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JILL D. WILLIAMS,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
CASE NO. 1:15CV891
MAGISTRATE JUDGE
KENNETH S. McHARGH
OPINION & ORDER
This case is before the Magistrate Judge pursuant to Local Rule 72.2(b). The issue before
the undersigned is whether the final decision of the Commissioner of Social Security
(“Commissioner”) denying Plaintiff Jill Williams’ (“Plaintiff” or “Williams”) application for a
Period of Disability and Disability Insurance benefits under Title II of the Social Security Act, 42
U.S.C. 416(i) and 423, is supported by substantial evidence and, therefore, conclusive.
For the reasons set forth below, the Court VACATES the Commissioner’s decision and
REMANDS the case back to the Social Security Administration.
I. PROCEDURAL HISTORY
Plaintiff filed an application for Disability Insurance benefits on June 18, 2012, alleging
disability due to diabetes, kidney disease, neuropathy, retinopathy, and heart disease, with an
alleged onset date of November 20, 2007. (Tr. 139). The Social Security Administration denied
Plaintiff’s application on initial review and upon reconsideration. (Tr. 139-45, 147-53).
Plaintiff requested a hearing before an administrative law judge, and on November 20,
2013, an administrative hearing was convened before Administrative Law Judge Penny Loucas
1
(“ALJ”). (Tr. 96-131). Plaintiff appeared, represented by counsel, and testified before the ALJ.
(Id.). A vocational expert (“VE”), Tom Nimburger, also appeared and testified. (Id.). On
December 27, 2013, the ALJ issued a decision finding Plaintiff was not disabled. (Tr. 85-91).
After applying the five-step sequential analysis,1 the ALJ determined Plaintiff retained the ability
to perform work existing in significant numbers in the national economy through her date of last
insured. (Id.). Subsequently, Plaintiff requested review of the ALJ’s decision from the Appeals
Council. (Tr. 78-80). The Appeals Council denied her request for review, making the ALJ’s
December 27, 2013, determination the final decision of the Commissioner. (Tr. 1-3). Plaintiff
now seeks judicial review of the ALJ’s final decision pursuant to 42 U.S.C. §§ 405(g) and
1383(c).
1
The Social Security Administration regulations require an ALJ to follow a five-step sequential analysis
in making a determination as to “disability.” See 20 C.F.R. §§ 404.1520(a), 416.920(a). The Sixth Circuit
has summarized the five steps as follows:
(1)
If a claimant is doing substantial gainful activity–i.e., working for profit–she is not
disabled.
(2)
If a claimant is not doing substantial gainful activity, her impairment must be severe
before she can be found to be disabled.
(3)
If a claimant is not doing substantial gainful activity and is suffering from a severe
impairment that has lasted or is expected to last for a continuous period of at least twelve
months, and her impairment meets or equals a listed impairment, claimant is presumed
disabled without further inquiry.
(4)
If a claimant’s impairment does not prevent her from doing her past relevant work, she is
not disabled.
(5)
Even if a claimant’s impairment does prevent her from doing her past relevant work, if
other work exists in the national economy that accommodates her residual functional
capacity and vocational factors (age, education, skills, etc.), she is not disabled.
Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990); Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534
(6th Cir. 2001).
2
II. EVIDENCE
A. Personal Background Information
Plaintiff was born on March 20, 1966, and was 41 years old on the alleged onset date, and
47 years old on the hearing date. (Tr. 99, 139). Plaintiff has an eleventh grade education and is
able to read, write, and communicate in English. (Tr. 99). Plaintiff has past work experience as
a photographer, money collector/vending machine operator, babysitter, and in telephone sales.
(Tr. 104-08, 144). Plaintiff is married and has children. (Tr. 112-14).
B. Medical Evidence2
Dr. Waters
Plaintiff presented to Judith K. Waters, M.D., on November 19, 2007, complaining of
terrible swelling in her lower extremities, extraordinary tiredness, and out of control blood sugar
readings. (Tr. 376). Plaintiff reported generalized tiredness and lack of energy with presyncope
(but no actualized syncope), but that she is fine with rest. (Id.). On physical examination, Dr.
Waters noted nondistended abdomen, and no edema, cyanosis, or clubbing of her extremities, but
minimal edema and swelling (but no tenderness) in her calves. (Id.). Neurological examination
revealed generally normal findings, and Plaintiff exhibited symmetrical, 5/5 strength, as well as a
straight and steady gait. (Id.). Dr. Waters’ impression was generalized fatigue and weakness,
edema, and diabetes mellitus 1, poorly controlled, and ordered laboratory testing, as well as an
insulin increase. (Id.). Notes indicated Plaintiff “still works regularly.” (Id.).
An undated follow-up with Dr. Waters from November 19, 2007, noted previous
markedly elevated liver enzymes that had since gone down, elevated BUN and creatinine which
had since started to normalize, and minimal improvement in swelling with Lasix. (Tr. 373).
The following recital of Plaintiff’s medical record is an overview of the medical evidence pertinent to
Plaintiff’s appeal. It is not intended to reflect all of the medical evidence of record.
2
3
Further, Plaintiff informed Dr. Waters she is a type I diabetic, and has not been using her insulin
properly for 18 years because it causes weight gain. (Id.). Dr. Waters described Plaintiff’s
comments that she enjoys losing weight while eating whatever she wants when not taking her
prescribed insulin, that she feels tired, achy, and occasionally swollen, and that she is leaving
another doctor due, in part, to differences of opinion. (Id.). Dr. Waters noted she and Plaintiff
discussed depression and body image issues, and that Plaintiff reported she feels better if she eats
more protein and less carbohydrates, but nonetheless eats whatever she wants, including “lots of
junk and pastry.” (Id.). Plaintiff again reported some near syncope symptoms, bloating, and
swelling.
(Id.).
On examination, Dr. Waters again found normal neurological results,
symmetrical 5/5 strength, and straight and steady gait, as well as very minimal pedal edema, and
no calf tenderness or swelling. (Id.).
Plaintiff underwent a kidney echo on December 6, 2007, on order from Dr. Waters. (Tr.
396). The report noted Plaintiff’s history of new onset edema in her lower extremities. (Id.).
From the results, Dr. Waters concluded Plaintiff had bilateral renal enlargement, as well as
vascular calcifications of the right kidney with mild prominence, and requested Plaintiff contact
her office for a follow-up appointment. (Id.).
On January 16, 2008, Plaintiff underwent a biliary echo due to renal insufficiency, with
elevated liver enzymes indicated. (Tr. 395). Findings suggested supersaturated bile with mild
gallbladder distention, but no evidence for stones or obstruction. (Id.).
On February 5, 2008, Plaintiff was again evaluated by Dr. Waters at a follow-up visit,
after presenting at the ER with chest pain. (Tr. 371). A cardiac work-up was conducted, with
negative findings, and Dr. Waters opined the pain was likely due to GERD, although she ordered
a rule-out echocardiogram. (Id.). Plaintiff reported noncompliance with her insulin, although
4
she stated she was “using it more regularly now.” (Id.). Physical examination revealed generally
normal findings, including no edema and normal neurologic exam. (Id.).
Dr. Waters ordered a rule-out echocardiogram due to Plaintiff’s chest pain, performed on
February 7, 2008, which concluded with a finding of negative stress echo. (Tr. 302, 371).
During the test, Plaintiff exercised for five minutes before the test was terminated, secondary to
Plaintiff’s request and leg fatigue. (Tr. 302).
Dr. Waters continued to treat Plaintiff for issues relating to her diabetes (as well as other
complaints) from April 9, 2008 through August 3, 2009. (Tr. 339-45 349-50, 353-56, 360-61,
364-65, 368). Examination consistently showed normal neurological exam, no or minimal
edema, no cyanosis or clubbing, normal deep tendon reflexes bilaterally, full and symmetrical
strength, a straight and steady gait, and often denied weakness in her arms and legs. (Tr. 339-45
349-50, 355-56, 360-61, 364-65, 368). Dr. Waters had described her type I diabetes as “very
labile,” “very brittle,” and “poorly controlled,” and noted on multiple occasions that Plaintiff
does not always take her insulin as directed, although she reported her sugars are good and she
feels well when taking the insulin. (Tr. 339, 349, 353-56, 360).
During visits in January and February of 2009, Plaintiff reported fatigue, stated she was
not doing well and felt her diabetes was not under good control, and complained of no energy
and swelling in her lower extremities and ankles. (Tr. 354-56, 361-62). On January 26, 2009,
Dr. Waters again observed normal neurological findings, strength, and gait, but noted Plaintiff’s
diabetes mellitus was getting out of control. (Tr. 361-62). On February 3, 2009, Dr. Waters
noted she strongly encouraged Plaintiff to see an endocrinologist for a second opinion.
(Tr.
356). Treatment notes dated April 6, 2009, stated Plaintiff was diagnosed by Dr. Neki, an
endocrinologist, with kidney disease, and that she would be getting an insulin pump to better
5
manage her diabetes, and that she was feeling fine. (Tr. 344). However, on May 6, 2009, Dr.
Waters noted Plaintiff’s diabetes mellitus and hypertension has been well controlled on Avapro,
and would continue her on that medication. (Id.). Dr. Waters again noted Plaintiff’s diabetes
had been under good control on August 3, 2009, and her related renal insufficiency was
“relatively well controlled.” (Tr. 339). Dr. Waters further noted Plaintiff had some numbness in
her lower extremities, “but she does have baseline neuropathy.” (Id.).
Plaintiff returned to Dr. Waters on July 15, 2010, for pain, injury and infection of her
right foot after injuring herself with a water bottle. (Tr. 297, 299). Dr. Waters noted Plaintiff’s
history of type 1 diabetes mellitus and diabetic neuropathy, and diagnosed cellulitis of her
second and third toes. (Tr. 299). Seven months later, on February 23, 2011, Dr. Waters’
treatment notes indicated Plaintiff was miserable, tired, and suffered from body aches and “total
body swelling,” but that she had no hospitalizations or emergency room visits. (Tr. 298).
Examination showed no edema of the extremities, no neurological localizing signs, but
subjective tingling and decreased monofilament of the feet.
(Id.).
Dr. Waters noted her
impression of poorly controlled diabetes, hypertension uncontrolled, and hyperlipidemia, noting
considerable anasarca (edema/swelling), and a nephrology consultation for possible dialysis.
(Id.).
On July 7, 2011, Plaintiff presented to Dr. Waters with complaints of persistent edema,
including her bilateral lower extremities, hands, and face. (Tr. 293). Examination showed trace
edema in her bilateral lower extremities, and exam notes indicated Plaintiff’s statements that the
edema is “usually a lot worse.” (Tr. 294). Examination notes dated December 12, 2011, showed
Plaintiff presented with a chief complaint of fatigue, continuing for two to three months,
accompanied by weight gain, swelling, muscle weakness, depression, and diarrhea, although not
6
requiring hospitalization or visits to the emergency room. (Tr. 292). Dr. Waters described
Plaintiff as a “brittle diabetic,” with a history of poorly controlled diabetes (“some of which is
due to noncompliance”), hypertension, hypercholesterolemia, and borderline renal failure. (Id.).
Dr. Waters noted Plaintiff works outside the home, but that she stated overwhelming fatigue
makes it very difficult for her to function and interferes with her ability to work.
(Id.).
Examination showed no pretibial myxedema or neurological localizing signs, and Dr. Waters
noted an impression of thyromegaly and fatigue. (Id.).
Plaintiff presented to Dr. Waters on April 16, 2012, complaining of nerve pain, swelling,
and a history of renal issues. (Tr. 289). Dr. Waters described Plaintiff as a noncompliant
diabetic complaining of severe disabling neuropathy that was “starting to interfere with her
quality of life.” (Id.). Notes indicated Plaintiff worked outside the home, that she was on a
variety of medication and under the care of a endocrinologist and had been doing well on a strict
insulin program. (Id.). Dr. Waters again noted Plaintiff was noncompliant with treatment for her
diabetes on November 14, 2012, when Plaintiff complained of “feeling poorly,” tired, and
experiencing swelling. (Tr. 324). Notes at this time indicated Plaintiff was retired, and “unable
to work secondary to fatigue.”
(Id.).
Examination findings were generally negative with
subjective numbness and tingling in her lower extremities, and Dr. Waters noted an impression
of uncontrolled diabetes, fatigue, malaise, chest pain, multiple medical issues including diabetic
neuropathy, and renal failure. (Id.). Dr. Waters ordered an immediate endocrinology consult,
and stressed the importance of proper insulin usage, noting potential consequences of severe
cardiovascular disease and death. (Id.).
Plaintiff returned to Dr. Waters with similar complaints on May 20, 2013, reporting
numbness, tingling, and swelling in her feet, markedly elevated blood sugars, and terrible
7
problems with swelling, although examination showed minimal edema in her lower extremities.
(Tr. 320). An impression of probable diabetic neuropathy, diabetic retinopathy, and diabetic
nephropathy was noted. (Id.)
Specialists and Consultations
On March 20, 2008, Plaintiff attended a consultation with Haritha Boppana, M.D., on
referral from Vladimir Dubchuk, M.D., for preoperative medical risk assessment for a
laparoscopic cholecystectomy with cholanglogram and possible open cholecystectomy,
scheduled for March 28, 2008. (Tr. 459). Treatment notes indicate a chief complaint of right
upper quadrant pain for six months, on and off, as well as chronic diarrhea for three months.
(Id.). Her past medical history included type 1 diabetes mellitus insulin dependent, and diabetic
retinopathy and neuropathy, and Plaintiff complained of nausea as well as a tingling sensation in
the toes of both of her feet. (Id.). The report further noted a previous normal ultrasound, as well
as hepatobiliary scan performed on February 13, 2008, showing delayed visualization of the
gallbladder at two hours.
(Id.).
After physical examination, Dr. Dubchuk found Plaintiff
exhibited chronic cholecystitis and symptomatic chronic cholelithlasis, observed her ultrasound
was consistent with either supersaturated bile or with sludge, and opined gallstones could not be
ruled out because of Plaintiff’s history of elevated alkaline phosphatase. (Tr. 460).
Kenneth E. Neki, M.D., an endocrinologist, examined Plaintiff on March 30, 2009, and
assessed type I diabetes mellitus with poor glycemic control. (Tr. 502). Dr. Neki expressed that
even with diligent efforts with insulin she would continue to have problems with high fasting
blood sugars, and recommended an insulin pump. (Id.). A letter addressed to Dr. Waters
indicated elevated liver tests, proteinuria, hematuria, and Dr. Neki prescribed Cymbalta for
Plaintiff’s neuropathic pain. (Id.). Dr. Neki opined that her complaints of edema and low
8
albumin levels could be due to early nephrotic syndrome. (Id.). Further, he expressed that
Plaintiff complained of ultra-sensitivity in her feet, with shooting pains that come and go, and
admitted she skips insulin in order to keep her weight down. (Tr. 501).
Plaintiff returned to Dr. Neki on June 1, 2009, at which time he increased her Cymbalta
due to complaints of continuing severe diabetic neuropathic foot pains. (Tr. 454). Plaintiff
reported she believed her blood sugar levels were much better, although she experienced some
late afternoon hypoglycemia. (Id.). 1+ lower extremity edema was noted at a follow-up on
February 8, 2010, likely due to nephrosis. (Tr. 474). On April 26, 2010, treatment notes
indicated “trace to 1+” lower extremity edema, and Plaintiff complaints of swelling, not doing
well, and that she was not taking care of herself. (Tr. 473).
On April 30, 2012, Plaintiff underwent an evaluation at North Shore Gastroenterology
due to abnormal liver function test and fluid around the liver consistent with mild ascites. (Tr.
308). Plaintiff reported swelling in her ankles, and examination showed no edema but chronic
stasis changes, normal gait, and no neurological focal signs. (Tr. 308-09).
Plaintiff was referred to neurologist Daniel Koontz, M.D., on August 6, 2012, for
evaluation of her neuropathy symptoms. (Tr. 467-68). Dr. Koontz noted peripheral neuropathy,
with symptoms starting five years prior, beginning with a crawling sensation in her lower legs,
and developing into pain in her feet, as well as tingling and numbness in her hands. (Tr. 467).
Plaintiff reported not much relief from Cymbalta, that Lyrica helped but she discontinued it
when it caused weight gain, and that gabapentin helped but left her off-balance. (Id.). She
described her pain as “stabbing,” that any touching of her feet is painful and that she has
difficulty putting on her shoes and applying lotion due to pain. (Id.). Examination revealed 5/5
strength in her upper and lower extremities, with markedly decreased vibration sensation at her
9
toes, and significantly decreased pinprick in her feet bilaterally. (Tr. 468). Plaintiff exhibited
normal gait, and Dr. Koontz suggested an increase in gabapentin, noting he believed her
imbalance was actually due to the decreased sensation in her feet that is accentuated when she
closed her eyes. (Id.).
On a form dated August 11, 2012, Fernando Zegarra, M.D., reported he treated Plaintiff
from November 2, 2009 through July 30, 2012. (Tr. 312). Dr. Zegarra reported a diagnoses of
proliferative diabetic retinopathy, and indicated a history of five laser surgeries and five avastin
injections in Plaintiff’s right eye, and four laser surgeries and three avastin injections in her left
eye. (Tr. 313). Plaintiff was determined to have 20/40 vision in her right eye, and 20/25 vision
in her left eye. (Id.).
Plaintiff was referred by Dr. Waters for a functional capacity evaluation, performed on
October 22, 2013, by Michelle Myers at Lifeworks of Southwest General Health Center. (Tr.
506-07). Ms. Meyers found Plaintiff was able to walk a total time of 32 minutes with occasional
loss of balance, noting Plaintiff lost her balance twice during a five minute walk test, but
regained her balance holding onto a railing. (Tr. 507). Plaintiff complained of weakness and
fatigue in both her upper and lower extremities during functional activities, requested to stop
above-shoulder work due to pain and fatigue in her upper extremities, and stated she had not
been doing much exercise because of her neuropathy. (Id.). Ms. Meyers reported high scores in
each category. (Tr. 507). Near full levels of physical effort by Plaintiff were noted, but Ms.
Meyers found “minor inconsistency” to the reliability and accuracy of Plaintiff’s reports of pain
and disability, based on overall test findings and clinical observations. (Tr. 506).
State Agency Reviewing Consultants
10
On September 4, 2012, state agency consultant Leslie Green, M.D., reviewed Plaintiff’s
file and the medical evidence of record, including the treatment notes of Dr. Waters and Dr.
Zagarra. (Tr. 140-41). In her analysis, Dr. Green made specific reference to medical evidence
dated up through December of 2011, and noted her history of renal failure and uncontrolled
diabetes mellitus. (Tr. 141). Dr. Green opined Plaintiff was able to perform at a medium level
of work, including standing or walking about six hours in an eight hour workday. (Tr. 141-43).
Another state agency consultant, Diane Manos, M.D., affirmed these findings on December 27,
2012. (Tr. 151).
C. Hearing Testimony
Plaintiff testified that she was diagnosed as a brittle diabetic a few years prior to the
hearing because her condition was getting harder to control, and that she gives herself insulin
about five times per day, but it’s “on a sliding scale.” (Tr. 101-02). Plaintiff admitted she was
not monitoring her blood glucose levels for a period of a month or two , claiming she became
suicidal and “gave up,” but that she currently monitored them. (Tr. 115). Plaintiff stated she had
never been hospitalized due to uncontrolled blood sugar, and her doctor suggested she use an
insulin pump, but that she could not deal with learning how to use it. (Id.). At the time of the
hearing, Plaintiff testified she was back on Lyrica, which was helping her condition, but her
biggest impediments to working were imbalance and pain. (Tr. 103-04). She further alleged she
experiences fatigue, is often exhausted and tires very easily. (Tr. 126-27).
She stated she had not worked since her job as a newborn photographer, which she
decided to quit because she felt unsure carrying babies due to problems with her legs, and she
struggled with bending and walking because of her neuropathy. (Tr. 109-10). She further
articulated that her doctors never explained neuropathy to her until just recently, and that her
11
primary care physician told her the problems she had with her knees was because she was
“getting older.”
(Tr. 110-12). Plaintiff testified she falls over when walking or standing, and
that she recently started using a cane because her family forced her to, but that she can walk for
exercise for about 20 minutes at a time, holding onto her husband or using her cane. (Tr. 113,
123). Additionally, Plaintiff indicated her knee problems caused her to have difficulty with
steps, beginning about three years prior to the hearing, and that she experiences swelling in her
legs every day, requiring elevation after a half-hour to an hour. (Tr. 115, 119-20, 124). Plaintiff
described her pain as “shooting stabbing pain” that comes on suddenly, ruins her life and makes
her unable to do anything, and stated she experiences it about half the day after starting Lyrica.
(Tr. 117).
III. SUMMARY OF THE ALJ’S DECISION
The ALJ made the following findings of fact and conclusions of law:
1. The claimant last met the insured status requirements of the Social Security Act on
March 31, 2012.
2. The claimant did not engage in substantial gainful activity during the period from her
alleged onset date of November 20, 2007 through her date last insured of March 31,
2012.
3. Through the date last insured, the claimant had the following severe impairment:
diabetes mellitus.
4. Through the date last insured, the claimant did not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed impairments
in 20 C.F.R. Part 404, Subpart P, Appendix 1.
5. After careful consideration of the entire record, I find that, through the date last insured,
the claimant had the residual functional capacity to perform the full range of light work
as defined in 20 CFR 404.1567(b).
6. Through the date last insured, the claimant was capable of performing past relevant work
as a telemarketer, vending machine assistant, and photographer. These jobs did not
require the performance of work-related activities precluded by the claimant’s residual
functional capacity.
12
7. The claimant was not under a disability, as defined in the Social Security Act, at any
time from November 20, 2007, the alleged onset date, through March 31, 2012, the date
last insured.
(Tr. 87-91) (internal citations omitted).
IV. DISABILITY STANDARD
A claimant is entitled to receive Disability Insurance and/or Supplemental Security
Income benefits only when he establishes disability within the meaning of the Social Security
Act. See 42 U.S.C. §§ 423, 1381. A claimant is considered disabled when he cannot perform
“substantial gainful employment by reason of any medically determinable physical or mental
impairment that can be expected to result in death or that has lasted or can be expected to last for
a continuous period of not less than twelve (12) months.” See 20 C.F.R. §§ 404.1505, 416.905.
V. STANDARD OF REVIEW
Judicial review of the Commissioner’s benefits decision is limited to a determination of
whether, based on the record as a whole, the Commissioner’s decision is supported by substantial
evidence, and whether, in making that decision, the Commissioner employed the proper legal
standards. See Cunningham v. Apfel, 12 F. App’x 361, 362 (6th Cir. 2001); Garner v. Heckler,
745 F.2d 383, 387 (6th Cir. 1984); Richardson v. Perales, 402 U.S. 389, 401 (1971).
“Substantial evidence” has been defined as more than a scintilla of evidence but less than a
preponderance of the evidence. See Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 535
(6th Cir. 1981). Thus, if the record evidence is of such a nature that a reasonable mind might
accept it as adequate support for the Commissioner’s final benefits determination, then that
determination must be affirmed. Id.
The Commissioner’s determination must stand if supported by substantial evidence,
regardless of whether this Court would resolve the issues of fact in dispute differently or
substantial evidence also supports the opposite conclusion. See Mullen v. Bowen, 800 F.2d 535,
13
545 (6th Cir. 1986); Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983). This Court may
not try the case de novo, resolve conflicts in the evidence, or decide questions of credibility. See
Garner, 745 F.2d at 387. However, it may examine all the evidence in the record in making its
decision, regardless of whether such evidence was cited in the Commissioner’s final decision.
See Walker v. Sec’y of Health & Human Servs., 884 F.2d 241, 245 (6th Cir. 1989).
VI. ANALYSIS
A. RFC - Credibility Analysis
Plaintiff argues that the ALJ improperly discredited Plaintiff’s subjective complaints and
thus did not fully account for Plaintiff’s limitations in her RFC. Generally, “[a]n ALJ’s findings
based on the credibility of the applicant are to be accorded great weight and deference,
particularly since [the] ALJ is charged with the duty of observing a witness’s demeanor and
credibility.” Vance v. Comm’r of Soc. Sec., 260 F. App’x 801, 806 (6th Cir. 2008) (citing
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997)). Notwithstanding, the ALJ’s
credibility finding must be supported by substantial evidence, Walters, 127 F.3d at 531, as the
ALJ is “not free to make credibility determinations based solely upon an ‘intangible or intuitive
notion about an individual’s credibility.’” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th
Cir. 2007) (quoting S.S.R. 96-7p, 1996 WL 374186, at *4).
The Sixth Circuit follows a two-step process in the evaluation of a claimant’s subjective
complaints of disabling pain. 20 C.F.R. §§ 404.1529, 416.929; Felisky v. Bowen, 35 F.3d 1027,
1039-40 (6th Cir. 1994). First, the ALJ must determine whether the claimant has an underlying
medically determinable impairment which could reasonably be expected to produce the
claimant’s symptoms. Rogers, 486 F.3d at 247. Second, if such an impairment exists, then the
ALJ must evaluate the intensity, persistence, and limiting effects of the symptoms on the
claimant’s ability to work. Id. The ALJ should consider the following factors in evaluating the
14
claimant’s symptoms: the claimant’s daily activities; the location, duration, frequency and
intensity of the claimant’s symptoms; any precipitating or aggravating factors; the type, dosage,
effectiveness and side effects of any medication taken to alleviate the symptoms; treatment, other
than medication, the claimant receives to relieve the pain; measures used by the claimant to
relieve the symptoms; and statements from the claimant and the claimant’s treating and
examining physicians. Id.; see Felisky, 35 F.3d at 1039-40; S.S.R. 96-7p.
In the present case, Plaintiff argues that the ALJ’s credibility analysis is flawed because
some of her stated reasons are either inappropriately considered to discredit the severity of her
findings, or based on an inaccurate interpretation of the evidence. First, Plaintiff takes issue with
the ALJ’s decision to discredit Plaintiff because her primary care physician, Dr. Waters, noted
she was working outside the home in December 2011 and April 2012, despite Plaintiff’s
testimony that she has not worked since her newborn photography job, and there was no
evidence of any earnings after 2007. (Pl. Brief p. 12). Second, Plaintiff challenges the ALJ’s
reference to Plaintiff’s non-compliance with insulin because Plaintiff “admitted her noncompliance to Dr. Waters and stated that she would take her medication as prescribed,” and
because, despite medication, her diabetes was difficult to control. (Id.). Third, Plaintiff asserts
the ALJ should not have discredited her because she testified she did not know what the term
“brittle diabetic” meant, arguing it had no relation to her credibility. (Pl. Brief p. 13). Fourth,
reasoning that diabetic neuropathy, fatigue, and edema are not conditions generally requiring
hospitalization, Plaintiff asserts the ALJ’s finding that she had never required hospitalization or
emergency room treatment for her diabetes was not a proper reason to discredit her complaints.
(Id.). Finally, Plaintiff argues the ALJ inaccurately assessed Plaintiff’s treatment notes relating
to the severity of her edema, as well as to the onset of neuropathy-related nerve pain. (Id.).
15
Although this Court does not accept every assignment of error articulated by Plaintiff in
her credibility argument, the undersigned finds there are blatant misstatements in the ALJ’s
analysis that demonstrate her failure to accurately assess the evidence presented, undermining
her credibility analysis.
See generally Walters, 127 F.3d at 531 (a court will “defer to the
Commissioner’s [credibility] assessment when it is supported by an adequate basis.”); see
generally Hernandez v. Comm’r of Soc. Sec., No. 15-1875, 2016 WL 1055828, *7 (6th Cir. Mar.
17, 2016) (An ALJ’s credibility finding will not be disturbed where “nothing in the record
contradicts [the ALJ’s] observation,” and his “determination is reasonable and reflects the
substantial evidence in the record.”). First, the ALJ found as “strong and convincing evidence
that…claimant’s symptoms were not as disabling as alleged” because there was no record of
“nerve pain” until April 16, 2012, at which time Dr. Waters found only subjective numbness,
tingling, or decreased sensation on the bottom of her feet. (Tr. 90). However, as Plaintiff points
out, review of the record show ongoing documentation of Plaintiff’s complaints of, and ongoing
treatment for, neuropathic pain, as far back as March of 2009. (Tr. 454, 497, 501-02). Indeed,
treatment notes indicated her doctor continually increased or otherwise adjusted her medication
to address her ongoing pain. (Tr. 454, 497).
Plaintiff also sufficiently shows the ALJ, in justifying her discrediting of Plaintiff’s
complaints of persistent swelling, incorrectly stated examination notes of Dr. Waters and Dr.
Koontz showed only “no edema” or “trace edema” of her lower extremities, while failing to
acknowledge treatment notes reflecting more heightened levels of edema.
(Tr. 89).
It is
generally recognized that an ALJ “may not cherry-pick facts to support a finding of nondisability while ignoring evidence that points to a disability finding.” Smith v. Comm’r of Soc.
Sec., 2013 WL 943874, *6 (N.D. Ohio Mar. 11, 2013) (citing Goble v. Astrue, 385 F. App’x 588,
16
593 (7th Cir. 2010)) (citation omitted); see Fleischer v. Astrue, 774 F. Supp. 2d 875, 881 (“In
rendering his RFC decision, the ALJ must give some indication of the evidence upon which he is
relying, and he may not ignore evidence that does not support his decision, especially when that
evidence, if accepted, would change his analysis.”). Notwithstanding, an “‘ALJ does not “cherry
pick” the evidence merely by resolving some inconsistencies unfavorably to a claimant’s
position.’” Id. Here, the ALJ cited to reports dated July and December 2011, as well as May and
July of 2013, showing either no or trace edema of the lower extremities. (Tr. 292, 294, 320, 470).
However, the ALJ did not reference Plaintiff’s other treatment notes showing ongoing and
persistent edema that was more than “trace,” described as “minimal” or “mild,” often of her feet
and/or extremities.
(Tr. 294, 356, 373).
Although these records do not demonstrate that
Plaintiff’s doctors observed a tremendous increase in Plaintiff’s edema over the course of
treatment, it is not clear from her opinion that the ALJ fully considered these records of
continuing edema that was, while mild, more severe and potentially more limiting than merely
“trace” findings. See Smith, 2013 WL 943874, at *6; see Orick v. Astrue, No. 1:10-cv-871, 2012
WL 511324, at *5 (S.D. Ohio Feb. 15, 2012) (“When an ALJ fails to mention relevant evidence
in his or her decision, ‘the reviewing court cannot tell if significant probative evidence was not
credited or simply ignored.’”) (quoting Morris v. Sec. of Health & Human Servs., No. 86-5875,
1988 WL 34109, at *2 (6th Cir. Apr. 18, 1988)).
Further, the undersigned agrees that the ALJ erred when she gave less credit to Plaintiff
because she “testified that she had never been told she is a brittle diabetic and that she does not
know what that term means,” despite Dr. Waters referring to Plaintiff as a “brittle diabetic” in
her treatment notes dated December 6, 2011. (Tr. 89, 292). Plaintiff fails to provide any
persuasive reason or case law in support of her assertion that this point, if accurate, could not be
17
appropriately considered to discredit her subjective complaints.
However, the undersigned
nonetheless finds the ALJ’s rationale undermines her analysis of the evidence, as review of the
hearing testimony shows this statement is an undeniable misrepresentation of Plaintiff’s
testimony. At the hearing, Plaintiff affirmed she was diagnosed as a brittle diabetic “a few years
ago,” and review of the hearing transcript does not reveal the statements on which the ALJ
relied.3 (Tr. 102). As this statement of the evidence is an error, it cannot provide support for the
ALJ’s credibility finding. See generally Simpson v. Comm’r of Soc. Sec., 344 Fed. App’x 181,
191 (6th Cir. 2009) (finding a lack of substantial evidence to support an ALJ’s decision to
discount a claimant’s mental impairments because “the ALJ did not ‘accurately state the
evidence used to support his finding.’”) (citing White v. Comm’r of Soc. Sec., 312 Fed. App’x
779, 787-88 (6th Cir. 2009)).
Despite the ALJ’s articulation of a scattering of other reasons for not giving full credit to
Plaintiff’s subjective complaints, the Court finds the substantial errors stated above demonstrate
a failure on the part of the ALJ to fully consider the evidence of record and provide compelling
reasons for her credibility determination. This deficient evaluation of the evidence cannot
provide substantial evidence in support of the ALJ’s RFC assessment. See generally Simpson,
344 Fed. App’x at 191. Accordingly, remand is required for the ALJ to assess the evidence of
record and formulate an RFC from which to make an ultimate finding of disability. See id. at
192 (Remanding a case is not a mere formality where failure to do so would “propel [our Court]
into the domain which Congress has set aside exclusively for the administrative agency,” namely
“to determine the jobs available to [a claimant] based upon her limitations.”).
B. Listing Analysis
3
The undersigned notes that, at the hearing, Plaintiff stated no one ever explained neuropathy to her, and
that she “didn’t know what neuropathy was,” but that the ALJ makes no reference to this in her opinion.
(Tr. 110-11).
18
Although remand is necessary based on Plaintiff’s challenge to the ALJ’s credibility
analysis, for purposes of thoroughness, the undersigned will address Plaintiff’s additional
assertions of error. Plaintiff claims the ALJ erred at step three of the sequential analysis by
failing to consider whether her severe physical impairments met or medically equaled listing
9.00B, the listing for Endocrine Disorders, evaluated under 11.04B. Specifically, Plaintiff argues
that evidence in the record demonstrates that she satisfies the requirements of this listing, and the
ALJ erred in failing to specifically analyze the listing and relevant medical evidence in denying
her application.
The third step of the disability evaluation process asks the ALJ to compare the claimant’s
impairments with an enumerated list of medical conditions found in the Listing of Impairments
set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1. See 20 C.F.R. § 404.1520(a)(4)(iii);
Turner v. Comm’r of Soc. Sec., 381 F. App’x 488, 491 (6th Cir. 2010). Each listing describes
“the objective medical and other findings needed to satisfy the criteria of that listing.” 20 C.F.R.
§ 404.1525(c)(3). A claimant will be deemed disabled if his impairments meet or equal one of
these listings.
In order to “meet” a listing, the claimant must satisfy all of the listing’s
requirements. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 653 (6th Cir. 2009). However, if
the claimant does not meet all of the listing’s requirements, he may still be deemed disabled if
his impairments “medically equal” the listing in question. 20 C.F.R. § 404.1526(b)(3). To do
so, the claimant must show that his impairments are “at least equal in severity and duration to the
criteria of any listed impairment.” 20 C.F.R. § 404.1526(a). At this step, it is the claimant’s
burden to provide evidence showing that she equals or meets the listing. Retka v. Comm’r of
Soc. Sec., No. 94-2013, 1995 WL 697215, at *2 (6th Cir. Nov. 22, 1995) (citing Evans v. Sec’y
of Health & Human Servs., 820 F.2d 161, 164 (6th Cir. 1987)).
19
Here, Plaintiff argues a proper analysis of the evidence would have led the ALJ to find
her diabetes mellitus and related polyneuropathy met a listing. Plaintiff asserts her diabetic
polyneuropathy meets listing 11.04B, which requires:
Significant and persistent disorganization of motor function in two
extremities, resulting in sustained disturbance of gross and dexterous
movements, or gait and station. (see 11.00C).
11.00C: Persistent disorganization of motor function. In the form of
paresis or paralysis, tremor or other involuntary movements, ataxia and
sensory disturbances (any or all of which may be due to cerebral,
cerebellar, brain stem, spinal cord, or peripheral nerve dysfunction) which
occur singly or in various combinations, frequently provides the sole or
partial basis for decision in cases of neurological impairment. The
assessment of impairment depends on the degree of interference with
locomotion and/or interference with the use of fingers, hands, and arms.
20 C.F.R. Pt. 404, Subpt. P, App. I, 11.00.
Although the ALJ does not specifically refer to listing 11.04B, this Court notes that a
heightened articulation standard is not required at step three, and remand may not be required
where the ALJ makes sufficiently clear the reasons for his listing determination so that the court
can conduct a meaningful review. Marok v. Astrue, No. 5:08-CV-1832, 2010 WL 2294056, *3
(N.D. Ohio June 3, 2010) (citing Bledsoe v. Barnhart, No. 04-4531, 2006 WL 229795, *411 (6th
Cir. Jan. 31, 2006) (citing Dorton v. Heckler, 789 F.2d 363, 367 (6th Cir. 1986))). At step three,
the ALJ stated she considered Listing 9.08A, and specifically found that “claimant does not have
significant and persistent disorganization of motor function in two extremities resulting in
sustained disturbance of gross and dexterous movements.) (Tr. 87). Although, admittedly, the
ALJ could have explained more specifically her reasons for her findings at step three, courts
have consistently held remand is not necessary where an ALJ’s RFC analysis at the next step
provides a detailed and thorough discussion of the evidence of record that sufficiently supports
her listing determination. See Grohoske v. Comm’r of Soc. Sec., 2012 WL 2931400, *3, n.53
20
(N.D. Ohio July 18, 2012) (failure to articulate specific findings at step three may be harmless
error not requiring remand where the step four analysis provides sufficient evidence of a
claimant’s impairments “in light of the listing as to permit a court to conclude from other parts of
the ALJ’s opinion that the listings were not met.”).
Here, however, as described more
thoroughly above, the ALJ did not adequately assess the evidence presented in her RFC analysis,
specifically misinterpreting and failing to acknowledged evidence that could support Plaintiff’s
assertion that her condition is more limiting than as provided for by the RFC. Accordingly, the
ALJ’s findings at step four are insufficient and cannot overcome the ALJ’s meager and
unsupported finding that Plaintiff does not meet or medically equal any of the listings. See
Grohoske, 2012 WL 2931400 at *3, n.53. Therefore, on remand the ALJ is instructed fully
consider the evidence of record in relation to the applicable listings, and specifically articulate
her findings.
C. Past Relevant Work
The government concedes Plaintiff’s argument that the ALJ’s characterization of
Plaintiff’s former work as a telemarketer as “past relevant work” was erroneous because it fell
outside the 15-year limitation period. See 20 C.F.R. 404.1565(a); SSR 82-62 (15-year period
runs from the date that a claimant’s insured status expired). However, on remand, the ALJ may
appropriately consider other past relevant work as determined by a thorough and appropriate
review of the evidence of record.
VII. DECISION
For the foregoing reasons, the magistrate Judge finds that the decision of the
Commissioner is not supported by substantial evidence. Accordingly, the Court VACATES the
Commissioner’s decision and REMANDS the case back to the Social Security Administration.
21
s/ Kenneth S. McHargh
Kenneth S. McHargh
United States Magistrate Judge
Date: August 10, 2016.
22
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?