Moretti v. Commissioner of Social Security
Filing
17
Memorandum Opinion and Order. The Commissioner's final decision is reversed and remanded for proceedings consistent with this Memorandum Opinion and Order. Magistrate Judge Nancy A. Vecchiarelli on 1/6/2014. (G,W)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
MICHELLE L. MORETTI,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
)
)
)
)
)
)
)
)
)
)
CASE NO. 4:13-CV-01344
MAGISTRATE JUDGE
VECCHIARELLI
MEMORANDUM OPINION AND
ORDER
Defendant.
Plaintiff, Michelle Moretti (“Plaintiff”), challenges the final decision of Defendant,
Carolyn W. Colvin, Acting Commissioner of Social Security (“Commissioner”), denying
her applications 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, 42 U.S.C. §§ 416(I), 423, 1381 et seq. (“Act”). This case is before the undersigned
United States Magistrate Judge pursuant to the consent of the parties entered under
the authority of 28 U.S.C. § 636(c)(2). For the reasons set forth below, the
Commissioner’s final decision is REVERSED and REMANDED for proceedings
consistent with this Memorandum Opinion and Order.
I.
PROCEDURAL HISTORY
On January 7, 2009, Plaintiff filed her application for POD and DIB. (Transcript
(“Tr.”) 12.) On September 30, 2009, she filed her application for SSI. (Id.) In both
applications, Plaintiff alleged a disability onset date of December 30, 1996. (Id.) The
application was denied initially and upon reconsideration, and Plaintiff requested a
hearing before an administrative law judge (“ALJ”). (Id.) On September 14, 2011, an
ALJ held Plaintiff’s hearing. (Id.) Plaintiff participated in the hearing, was represented
by counsel, and testified. (Id.) A vocational expert (“VE”) also participated and testified.
(Id.) On November 10, 2011, the ALJ found Plaintiff not disabled. (Tr. 9.) On April 24,
2013, the Appeals Council declined to review the ALJ’s decision, and the ALJ’s decision
became the Commissioner’s final decision. (Tr. 3.) On June 19, 2013, Plaintiff filed her
complaint to challenge the Commissioner’s final decision. (Doc. No. 1.) The parties
have completed briefing in this case. (Doc. Nos. 14, 15, 16.)
Plaintiff asserts the following assignments of error: (1) The ALJ did not
adequately account for Plaintiff’s limitations when determining her residual functional
capacity; and (2) the ALJ violated the treating physician rule as to Dr. Sullivan and Dr.
DiVito.
II.
A.
EVIDENCE
Personal and Vocational Evidence
Plaintiff was born in December 1968 and was 28-years-old on the alleged
disability onset date. (Tr. 28.) She had at least a high school education and was able
to communicate in English. (Id.) She had past relevant work as an appointment clerk.
(Tr. 27.)
B.
Medical Evidence
1.
Physical Impairments
a.
Medical Reports
Plaintiff first complained of low back pain to chiropractor Thomas DiVito, D.C., on
2
December 9, 1997. (Tr. 1060.) Her right L4-5 was sublaxated and she had spasms
over the right lateral flank and iliac crest with decreased range of motion. (Id.) Plaintiff
continued to receive routine manipulation for strain of the lumbar spine periodically from
2001 through 2003, and on a more regular basis in September and October 2004 for
lumbar strain and displacement of lumbar intervertebral disc without myelopathy. (Tr.
1050-1059.) A radiologist’s report of an MRI of Plaintiff’s cervical spine on December
27, 2002, showed a mild disc bulge with protrusion at the C6-7 level, mild degenerative
changes throughout, and no evidence of cord compression or prevertebral soft tissue
swelling. (Tr. 1048.)
On July 7, 2004, Plaintiff saw Mark Peckman, D.O., with complaints of neck pain.
(Tr. 325.) Dr. Peckman found that Plaintiff had left-sided bulging discs at the C6-7
level, left-sided cervical radiculopathy, and cervical and trapezial sprain and strain. (Tr.
325-326.) Plaintiff had good and ample range of motion of her upper extremities and
no deprivation in her hand grasp strength. (Id.) On September 2, 2004, Dr. Peckman
noted that Plaintiff had progressed with epidural steroid injections, but still complained
of discomfort. (Tr. 323.)
On September 4, 2004, Plaintiff returned to Dr. DiVito, who referred her for an
MRI of her lumbar spine. (Tr. 327.) The MRI showed small to moderate protrusion at
the L5-S1 level, causing only minimal abutment of the left S1 nerve root. (Id.) On
September 10, 2004, Plaintiff had an MRI scan of her cervical spine that showed a
moderate to large extruded disc at C5-6 with narrowing. (Tr. 328.) The mild disc bulge
and protrusion at C6-7 remained unchanged since 2002. (Id.)
A December 9, 2004, examination by John Butler, M.D., and Iain H. Kalfas, M.D.,
3
revealed no gait difficulty, 5/5 motor strength in all extremities, normal sensation,
symmetrical deep tendon reflexes, absent Babinski sign, and negative straight legraising. (Tr. 441-442.) Dr. Kalfas recommended an anterior cervical discectomy and
fusion at C5-6 with fixation for diagnosis of cervical disc displacement. (Id.) On
January 28, 2005, Plaintiff underwent an anterior cervical discectomy and fusion with
cervical plate fixation. (Tr. 439.)
Plaintiff returned to Dr. Kalfas on December 27, 2005, for a follow-up and
complained of neck pain. (Tr. 438.) Dr. Kalfas noted that Plaintiff’s films showed a
satisfactory partial fusion at C5-6. (Id.) He recommended physical therapy. (Id.) In
March 2006, Plaintiff returned to Dr. Kalfas with complaints of neck pain and a heavy
feeling in her arms as well as some tingling. (Tr. 437.) She stated that she had started
physical therapy but had no improvement in her symptoms. (Id.) Dr. Kalfas noted that
Plaintiff’s films looked good. (Id.) His diagnosis was cervical spondylosis. (Id.)
On January 3, 2008, Plaintiff saw Richard Simmons, M.D., a primary care
physician, with complaints of anxiety and low back pain after doing some lifting. (Tr.
765.) On examination, she had tenderness in the paravertebral muscles in the mid and
lower back. (Id.) Dr. Simmons diagnosed sprains and strains lumbar, sprains and
strains thoracic, and anxiety, for which Dr. Simmons prescribed Xanax. (Id.) Plaintiff
returned to Dr. Simmons on January 9, 2008, with complaints of on-going pain radiating
in the left leg and right arm. (Tr. 763.) X-rays of the cervical spine revealed postoperative fusion at C5-6, with metal plate and screws, as well as mild degenerative
changes throughout the cervical spine with marked disc space narrowing at C6-7 and
4
C7-T1. (Tr. 404.) Examinations by Dr. Simmons revealed tenderness in the lumbar
and cervical region. (Tr. 763.) Dr. Simmons prescribed Prednisone for Plaintiff’s
cervical and lumbar sprains/strains. (Tr. 763.)
On February 14, 2008, Plaintiff reported to Dr. Kalfas with complaints of
increased constant neck pain, worse on the right than left with pain and numbness
radiating down her right arm and fingers. (Tr. 435.) She also reported intermittent low
back pain that radiated into her bilateral groin area and the back of her right leg. (Id.)
Plain films revealed a good prior C5-6 fusion but degenerative changes at the C6-7
level. (Id.)
An MRI scan of Plaintiff’s cervical spine from February 21, 2008, showed left
paracentral and lateral disc protrusions at C6-7 with compression of the left lateral
aspect of the cord, left lateral recess, and left neuroforminal narrowing. (Tr. 409.) The
MRI report stated that “[f]indings have significantly worsened since the prior study.”
(Id.) Plaintiff’s postsurgical C5-6 fusion, however, showed no complicating features.
(Id.) Computerized tomography (CT) scans from March 21, 2008, revealed postsurgical changes of anterior fusion plate and screws at C5-6, with bony fusion and loss
of normal cervical lordosis. (Tr. 455.) Plaintiff also had degenerative changes with
posterior osteophyte formation to the left at C6-7 resulting in mild flattening of the left
ventral surface of the spinal cord and mild to moderate left neural foraminal narrowing
and mild right neural foraminal narrowing. (Id.) At C4-5, facet and uncinate joint
hypertrophy resulted in moderate left and mild right neural foramina narrowing. (Id.)
On May 1, 2008, Plaintiff saw Dr. Kalfas with reports of constant neck pain and
5
pain and numbness down the right arm. (Tr. 434.) Dr. Kalfas noted that a CT
myelogram had shown a ventral epidural osteophyte at C6-7. (Id.) On August 15,
2008, Plaintiff underwent a second neck surgery involving removal of anterior cervical
instrumentation at C5-6 and anterior cervical discectomy and fusion with
instrumentation at C6-7. (Id.) In October 2008, Plaintiff no longer had arm pain or
numbness, but had frequent cervical pain and occipital headaches. (Tr. 423.) X-rays
showed status post discectomy and fusion extending from C5 down to C7, with plating
at C6-7. (Tr. 444.) The appearance was unremarkable with good alignment and no
fracture identified. (Id.)
On November 25, 2008, Dr. Simmons wrote a letter on Plaintiff’s behalf, outlining
specific work limitations as follows: lifting no more than 20 pounds; standing a total of
four hours per day for no more than two hours at a time without a 15-minute break; no
excessive bending or stooping; and no lifting items above shoulder level. (Tr. 737.)
On December 15, 2008, Plaintiff told Dr. Kalfas that her neck pain radiated into
her arms and caused numbness and that her lower back was bothering her. (Tr. 711.)
Her cervical flexion was 40, extension was 30, right and left rotation was 50, and her
lateral bending was 15. (Id.) She had tenderness along the C4-6 posterior erectors
and her reflexes were sluggish for the biceps and triceps. (Id.) Pin wheel pin prick
testing was aberrant into both hands. (Id.)
On January 7, 2009, Plaintiff reported “[n]ot doing very good.” (Tr. 709.) She
had pain along the lower lumbar spine and numbness and tingling in the feet. (Id.) Her
C5-6 and L4-5 were fixated. (Id.) She had paralumbar and paracervical hypertonicity.
6
(Id.) Plaintiff’s cervical range of motion was better on January 12, 2009. (Tr. 708.) Dr.
DiVito found the tightness along Plaintiff’s paracervical lumbar erectors not as taut.
(Id.) She had less tenderness with palpation along the upper trapezial into the lateral
scapular fold. (Id.) She was more functional with activities of daily living. (Id.) On
January 14, 2009, Dr. DiVito noted that the pain along Plaintiff’s neck was not sharp
and that her numbness and tingling had also improved. (Id.)
On January 16, 2009, Plaintiff saw Joseph Cerimele, D.O., for complaints of
numbness in her shoulders, arms, and hands. (Tr. 610.) Dr. Cerimele noted that
Plaintiff’s sensory, motor, and reflexes were intact. (Id.) He performed motor nerve
and sensory nerve studies that showed no evidence of neuropathy, myopathy, or
cervical radiculopathy. (Tr. 611.)
On March 20, 2009, Dr. DiVito completed a report regarding Plaintiff’s condition.
(Tr. 522.) He reported that he had been treating Plaintiff since July 1997 for neck pain
rated as an 8 out of 10 in severity and lumbar pain rated as a 7 out of 10. (Id.) Dr.
DiVito described Plaintiff as having bilateral arm numbness and tingling into both finger
tips, as well as numbness and tingling in her legs and feet. (Id.) According to Dr.
DiVito, Plaintiff also displayed right hand weakness and decreased deep tendon
reflexes. (Id.) Plaintiff’s range of motion in the cervical spine was limited to 35-45% in
all areas, and the range of motion in her lumbar spine was limited to 30% in all areas.
(Id.) Dr. DiVito noted that Plaintiff’s symptoms had persisted despite therapy since
about 2005. (Id.) He concluded the report by noting Plaintiff’s limitations, which
included an inability to drive short distances or “wash clothes, run sweeper, mop, make
7
beds, dishes, etc.” secondary to two cervical facet surgeries at the Cleveland Clinic.
(Id.)
Plaintiff saw Raymond Boniface, M.D., on July 13, 2009, with complaints of
tingling and numbness in her left elbow, pinkie, and ring finger. (Tr. 608.) Dr. Boniface
referred Plaintiff for a nerve conduction study on July 17, 2009. (Tr. 590-591.) The
report indicated left ulnar myelar neuropathy at the elbow, mild left carpal tunnel
syndrome, and no evidence of acute cervical radiculopathy. (Tr. 591.) Dr. Boniface
performed a left ulnar nerve decompression on August 24, 2009. (Tr. 592-593.) Eight
weeks post-surgery, Dr. Boniface noted that Plaintiff was “very pleased with her
progress,” had no numbness in her fingers, and full elbow range of motion. (Tr. 627.)
On July 12, 2010, Dr. Simmons reviewed an MRI of Plaintiff’s cervical spine. (Tr.
714.) The MRI results did not show any present surgical problem, but did indicate
some minor disc bulges at several levels. (Id.) On examination, Plaintiff had some
restriction in cervical range of motion on rotation to the right, but her grip strength
remained excellent, and her reflexes remained intact for both upper extremities with no
motor or sensory loss. (Id.) On August 9, 2010, Dr. Simmons noted that Plaintiff
walked with a normal gait, her upper extremities were normal to inspection and
palpation, and her strength was normal and symmetric. (Tr. 712.)
On March 9, 2011, Plaintiff returned to Dr. Simmons with complaints of neck pain
and some tingling and numbness in her upper extremities. (Tr. 899.) On examination,
Plaintiff had tenderness of the cervical paravertebral muscles, but no motor or sensory
loss, and her deep tendon reflexes were intact. (Id.) Dr. Simmons ordered an
electromyography (EMG) of the upper extremities and cervical spine. (Tr. 899-900.)
8
On March 24, 2011, Dr. Simmons informed Plaintiff that her recent EMG was normal.
(Tr. 898.) Dr. Simmons referred Plaintiff for a cervical myelogram on March 24, 2011.
(Tr. 936.) The report indicated no abnormal contours or areas of stenosis to the
cervical spinal canal and no spinal block. (Id.) A CT scan the same day showed
minimal degenerative disc disease of the cervical spine, and no evidence of fracture of
the bones of the cervical spine. (Tr. 939.)
b.
Agency Reports
On December 31, 2009, state agency medical consultant Gary Hinzman, M.D.,
assessed Plaintiff’s exertional limitations. (Tr. 669.) Dr. Hinzman concluded that
Plaintiff could lift 20 pounds occasionally and 10 pounds frequently; stand and/or walk
(with normal breaks) for a total of about six hours in an eight-hour workday; and sit (with
normal breaks) for a total of about six hours in an eight-hour workday. (Id.) Dr.
Hinzman also opined that Plaintiff would be limited to occasional handling (gross
manipulation) with the left upper extremity, and limited (to an unspecified degree) with
regard to pushing and pulling with the upper extremities. (Tr. 671.)
On August 10, 2011, Hershel Goren, M.D., responded to specific interrogatories
posed by the ALJ. (Tr. 1010.) Dr. Goren opined that Plaintiff’s impairments of cervical
disc degenerative disease, left ulnar neuropathy, and obstructive sleep apnea did not
meet the requirements of Listings 1.04, 11.14, or 3.10, respectively. (Id.) In assessing
Plaintiff’s functional limitations, Dr. Goren opined that Plaintiff could lift/carry 20 pounds
occasionally and 10 pounds frequently, never climb ladders/ropes/scaffolds, and never
work at unprotected heights. (Tr. 1011.)
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2.
Mental Impairments
a.
Medical Reports
On February 4, 2008, Plaintiff saw Dr. Simmons with complaints of an episode of
anxiety with symptoms including racing heart and nausea. (Tr. 758.) Dr. Simmons
referred her to a psychiatrist, Nicholas A. Atanasoff, D.O., for further evaluation of her
anxiety and depressive disorder. (Id.) Dr. Atanasoff noted that Plaintiff had a history of
depression as well as what appeared to be a panic disorder with agoraphobia. (Tr.
699.) He observed that Plaintiff was well groomed, her behavior was cooperative, her
thought process was organized with no delusions or suicidal or homicidal ideations, and
her memory and concentration, insight, and judgment were not impaired. (Id.) Dr.
Atanasoff noted that Plaintiff’s mother died five months ago, which caused an
exacerbation of Plaintiff’s anxiety. (Id.) Dr. Atanasoff discontinued Celexa and Xanax,
prescribed Paxil and Klonopin, and assessed a Global Assessment of Functioning
(GAF) score of 55.1 (Id.)
Dr. Atanasoff saw Plaintiff monthly at first, and then every three months. (Tr.
683-698.) He adjusted her medication and conducted insight-oriented psychotherapy
to help Plaintiff understand that she needed to function as fully as she could despite the
stressors in her life. (Id.) On April 11, 2008, Dr. Atanastoff noted that Plaintiff was
doing very well, and that the increase in Paxil helped her significantly with anxiety,
1
The GAF scale incorporates an individual’s psychological, social, and
occupational functioning on a hypothetical continuum of mental health
illness devised by the American Psychiatric Association. A GAF score
between 51 and 60 indicates moderate symptoms or moderate difficulty in
social, occupational, or school functioning.
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including panic attacks. (Tr. 697.) On October 23, 2008, and January 21, 2009,
Plaintiff reported that her anxiety was controlled significantly with Paxil. (Tr. 693, 695.)
On April 15, 2009, Dr. Atanasoff noted that Plaintiff’s depression and anxiety were in full
remission. (Tr. 692.) On July 15, 2009, Dr. Atanasoff reported that Plaintiff was
tolerating her medication with no side effects and was not experiencing any depression
or panic attacks. (Tr. 691.) On May 25, 2010, Dr. Atanasoff noted that Plaintiff had no
panic attacks or anxiety, but had an acute adjustment disorder with regard to her father
suffering from an illness. (Tr. 685.)
Dr. Atanasoff’s treatment notes of August 23, 2010, indicate that Plaintiff wished
to see someone who provided psychotherapy and pharmacologic management. (Tr.
945.) Dr. Atanasoff referred Plaintiff to Dr. Labib. (Id.) Plaintiff returned to Dr.
Atanasoff on February 15, 2011, reporting that she had been struggling with the
separation from her husband. (Tr. 944.) On March 30, 2011, Dr. Atanasoff noted that
Plaintiff was tolerating her medication without side effects and her anxiety was in
remission, but her depression was increasing as she proceeded through her divorce.
(Tr. 943.) Dr. Atanasoff increased Plaintiff’s Paxil. (Id.)
On March 31, 2011, Plaintiff saw psychiatrist Brian Sullivan, M.D., for an initial
evaluation and met with John Allen, M.A., for counseling sessions. (Tr. 946-954.) Dr.
Sullivan diagnosed ADD and continued Plaintiff on Paxil and Ativan. (Tr. 955-960.) On
August 18, 2011, Dr. Sullivan completed an assessment of Plaintiff’s ability to do workrelated activities. (Tr. 1035.) Dr. Sullivan opined that Plaintiff was mildly2 limited in her
2
A mild limitation means the individual has a slight limitation but can
generally function well (i.e., on task 88%-100% of an eight-hour workday).
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ability to perform simple tasks. (1036.) He opined that Plaintiff was moderately3 limited
in her ability to: relate to other people; perform activities within a schedule, maintain
regular attendance, and be punctual; understand, carry out, and remember instructions;
respond appropriately to co-workers; respond appropriately to changes in the work
setting; and perform complex, repetitive, or varied tasks. (Tr. 1035-1036.) Dr. Sullivan
further concluded that Plaintiff was markedly4 limited in her ability to: attend meetings,
socialize with friends/neighbors, etc.; sustain a routine without special supervision; and
behave in an emotionally stable manner. (Id.) Dr. Sullivan also opined that Plaintiff
was extremely5 limited with regard to her personal habits, her ability to maintain
concentration and attention for extended periods, and her ability to use good judgment.
(Id.) He concluded that Plaintiff’s condition would likely deteriorate if she was placed
under stress, especially that of a job. (Tr. 1036.) Furthermore, he concluded that
Plaintiff’s impairments or treatment would cause her to be absent from work more than
three times per month. (Id.)
b.
Agency Reports
On April 23, 2009, state agency psychiatric consultant Aracelis River, Psy.D.,
(Tr. 1035.)
3
A moderate limitation means the individual is significantly limited (i.e., on
task 82%-88% in an eight-hour workday). (Id.)
4
A marked limitation means the individual has a serious limitation that
severely limits her ability to function (i.e., on task 48%-82% in an eighthour workday). (Id.)
5
An extreme limitation means a major limitation with no useful ability to
function (i.e., on task 0%-48% in an eight-hour workday). (Id.)
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concluded that there was insufficient evidence on which to make a mental residual
functional capacity determination for the period prior to June 30, 2003, Plaintiff’s date
last insured. (Tr. 554-567.) On September 24, 2009, Bruce Goldsmith, Ph.D., another
state agency psychological consultant, affirmed Dr. River’s findings. (Tr. 612.)
On October 26, 2009, Alice Chambly, Psy.D., concluded that for the period from
September 30, 2009, through the current date, Plaintiff’s mental impairments of
depression and anxiety disorder were not severe. (Tr. 613-626.)
C.
Hearing Testimony
1.
Plaintiff’s Hearing Testimony
Plaintiff testified that her constant neck pain was the most prevailing factor
preventing her from working. (Tr. 62.) She described pain with standing and holding
her head up. (Id.) “[I]t’s a constant pain.” (Id.) Plaintiff had two cervical fusions and
some other treatment for her neck. (Id.) She described her current treatment as
massotherapy and a little bit of physical therapy. (Id.) She wore a neck brace at her
hearing and testified that she wore it anytime she was active, although it was not
prescribed by a doctor. (Tr. 76, 87.) Plaintiff also had issues with depression. (Tr. 70.)
Plaintiff further testified that she had her gall bladder removed and that she suffered
from irritable bowel syndrome. (Tr. 74.)
Plaintiff performed her housework a little at a time, with sitting and relaxing in
between. (Tr. 69.) She had trouble lifting a gallon of milk. (Tr. 72.) She could walk
about a mile. (Id.) It hurt her neck and back to bend at the waist. (Id.) She could climb
five steps slowly while holding on to a rail. (Tr. 73.) Plaintiff had trouble with focus and
13
concentration. (Tr. 79.) She had given up on reading because she could not focus.
(Tr. 80.) She could watch television but often fell asleep due to her medications. (Id.)
She had mood swings constantly and crying spells about once or twice a day. (Tr. 81.)
2.
Vocational Expert’s Hearing Testimony
Barbara Burk, a vocational expert, testified at Plaintiff’s hearing. The ALJ asked
the VE to consider a hypothetical individual with the same educational level as Plaintiff.
(Tr. 93.) The hypothetical individual could lift and carry 20 pounds occasionally and 10
pounds frequently; stand or walk for six hours in an eight-hour workday; sit for six hours
in an eight-hour workday; occasionally push and pull with her upper extremities; and
occasionally climb ramps and stairs but never ladders, ropes, or scaffolds. (Tr. 93-94.)
The VE testified that the individual could perform such jobs as a cashier/checker, an
appointment clerk, and a general office clerk, both as formerly performed by Plaintiff
and as customarily performed. (Tr. 94.) The VE also testified that the hypothetical
individual could perform work as a cook at the light level, but not as customarily
performed. (Id.)
The ALJ posed a second hypothetical to the VE, which included all of the
limitations from the first hypothetical but added the restriction of only occasional gross
manipulation with both hands. (Tr. 95.) The VE testified that the additional limitation
would eliminate all of Plaintiff’s past work. (Id.) The VE was unable to identify any jobs
that the hypothetical individual could perform. (Id.)
The ALJ posed a third hypothetical to the VE. (Tr. 96.) The hypothetical
individual had the ability to lift and carry 10 pounds occasionally; stand or walk two to
14
five hours in an eight-hour day; sit six hours in an eight-hour day; limited or occasional
pushing/pulling with the upper extremities; occasional climbing of ramps and stairs;
never climbing ropes and ladders; occasional stooping, kneeling, crouching, crawling,
and reaching; and no more than frequent gross handling and gross manipulation. (Id.)
The VE opined that the hypothetical individual could be expected to perform past work
as an appointment clerk or other jobs in the national economy, such as a cashier or
telephone solicitor. (Tr. 97-99.)
The ALJ presented a fourth hypothetical, describing an individual with the same
restrictions as those described in the third hypothetical, who was also limited to
performing simple, routine, repetitive tasks, and who would be absent from work on
average three times a month due to her medical conditions. (Tr. 99-100.) The VE
testified that there would be no jobs available for the individual. (Tr. 100.)
III.
STANDARD FOR DISABILITY
A claimant is entitled to receive benefits under the Social Security Act when she
establishes disability within the meaning of the Act. 20 C.F.R. § 416.905; Kirk v. Sec’y
of Health & Human Servs., 667 F.2d 524 (6th Cir. 1981). A claimant is considered
disabled when she cannot perform “substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result
in death or which has lasted or can be expected to last for a continuous period of not
less than 12 months.” 20 C.F.R. § 416.905(a).
The Commissioner reaches a determination as to whether a claimant is disabled
by way of a five-stage process. 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4); Abbott
15
v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). First, the claimant must demonstrate
that she is not currently engaged in “substantial gainful activity” at the time she seeks
disability benefits. 20 C.F.R. §§ 404.1520(b) and 416.920(b). Second, the claimant
must show that she suffers from a “severe impairment” in order to warrant a finding of
disability. 20 C.F.R. §§ 404.1520(c) and 416.920(c). A “severe impairment” is one that
“significantly limits . . . physical or mental ability to do basic work activities.” Abbot, 905
F.2d at 923. 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 meets a listed impairment, 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). Fourth, if the claimant’s impairment does not prevent her from doing her
past relevant work, the claimant is not disabled. 20 C.F.R. §§ 404.1520(e)-(f) and
416.920(e)-(f). For the fifth and final step, even if the claimant’s impairment does
prevent her from doing her past relevant work, if other work exists in the national
economy that the claimant can perform, the claimant is not disabled. 20 C.F.R. §§
404.1520(g), 404.1560(c), and 416.920(g).
IV.
SUMMARY OF COMMISSIONER’S DECISION
The ALJ made the following findings of fact and conclusions of law:
1.
Plaintiff meets the insured status requirements of the Act through
June 30, 2003.
2.
Plaintiff engaged in substantial gainful activity in the last quarter of
1999 and early 2000. Plaintiff has not engaged in substantial gainful
activity since mid 2000.
3.
Plaintiff has the following severe impairments: cervical degenerative
16
disease with cervical discectomies and fusions, left ulnar neuropathy,
mild carpal tunnel syndrome, and low back pain.
4.
Plaintiff does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1.
5.
After careful consideration of the entire record, the undersigned finds
that Plaintiff has the residual functional capacity to perform light work
as defined in 20 CFR 404.1567(b) and 416.967(b) except that the
claimant should: only occasionally stoop, kneel, crouch, crawl, and
reach; and is limited to only frequent gross manipulation.
6.
Plaintiff is capable of performing past relevant work as an
appointment clerk. This work does not require the performance of
work-related activities precluded by Plaintiff’s residual functional
capacity.
7.
Plaintiff was born in December 1968 and was 28-years-old on the
alleged disability onset date.
8.
Plaintiff has at least a high school education and is able to
communicate in English.
9.
Considering Plaintiff’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in
the national economy that Plaintiff can perform.
10.
Plaintiff has not been under a disability, as defined in the Act, from
December 30, 1996, through the date of this decision.
(Tr. 14-19.)
V.
A.
LAW & ANALYSIS
Standard of Review
Judicial review of the Commissioner’s decision is limited to determining whether
the Commissioner's decision is supported by substantial evidence and was made
pursuant to proper legal standards. Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512
(6th Cir. 2010). Review must be based on the record as a whole. Heston v. Comm’r of
17
Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). The court may look into any evidence in
the record to determine if the ALJ’s decision is supported by substantial evidence,
regardless of whether it has actually been cited by the ALJ. Id. However, the court
does not review the evidence de novo, make credibility determinations, or weigh the
evidence. Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir.
1989).
The Commissioner’s conclusions must be affirmed absent a determination that
the ALJ failed to apply the correct legal standards or made findings of fact unsupported
by substantial evidence in the record. White v. Comm’r of Soc. Sec., 572 F.3d 272, 281
(6th Cir. 2009). Substantial evidence is more than a scintilla of evidence but less than a
preponderance and is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Brainard, 889 F.2d at 681. A decision supported by
substantial evidence will not be overturned even though substantial evidence supports
the opposite conclusion. Ealy, 594 F.3d at 512.
B.
Plaintiff’s Assignments of Error
1.
The ALJ Did Not Adequately Account for Plaintiff’s Limitations
When Determining Plaintiff’s Residual Functional Capacity.
Plaintiff argues that the ALJ erred in failing to include a restriction limiting Plaintiff
to occasional gross manipulation with the left upper extremity, contending that the ALJ
failed to include such limitation despite the fact that state agency consultant Dr.
Hinzman determined that it was appropriate. The Commissioner argues that
substantial medical evidence contradicts Dr. Hinzman’s opinion that Plaintiff was limited
to occasional gross manipulation with the left upper extremity.
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In his RFC assessment, Dr. Hinzman opined, in relevant part, that Plaintiff was
“limited” with regard to “[h]andling (gross manipulation).” (Tr. 671.) Dr. Hinzman
clarified that Plaintiff was limited to “occasional manipulation LUE [left upper extremity].”
(Id.) During her questioning of the VE, the ALJ initially proposed a hypothetical
individual who was limited to “occasional gross manipulation with both hands.” (Tr. 95.)
After the VE was unable to identify any jobs that an individual with such a limitation
could perform, the VE changed the hypothetical to allow for frequent gross
manipulation.6 (Tr. 96.) In his decision, the ALJ gave Dr. Hinzman’s report “some
weight” because it was “consistent with the medical evidence of record that existed at
the time of Dr. Hinzman’s review.” (Tr. 27.) In her determination of Plaintiff’s RFC,
however, the ALJ limited Plaintiff to “frequent gross manipulation,” without explaining
her decision not to adopt the handling limitation recommended by the consulting
physician. (Tr. 18.)
It is well established that an ALJ is not required to discuss each and every piece
of evidence in the record for her decision to stand. See, e.g., Thacker v. Comm’r of
Soc. Sec., 99 F. App’x 661, 665 (6th Cir. 2004). However, where the opinion of a
medical source contradicts her RFC finding, an ALJ must explain why she did not
include its limitations in her determination of a claimant’s RFC. See, e.g., Fleischer v.
Astrue, 774 F. Supp. 2d 875, 881 (N.D. Ohio 2011) (Lioi, J.) (“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
6
The VE did not testify as to whether or not a limitation to occasional gross
manipulation in the left upper extremity only would change her testimony.
19
that evidence, if accepted, would change his analysis.”). Social Security Ruling 96-8p
provides, “[t]he RFC assessment must always consider and address medical source
opinions. If the RFC assessment conflicts with an opinion from a medical source, the
adjudicator must explain why the opinion was not adopted.” SSR 96-8p, 1996 WL
374184, *7 (July 2, 1996).
Here, the ALJ did not discuss why she omitted the occasional gross manipulation
with the left upper extremity limitation assigned to Plaintiff by state consultant Dr.
Hinzman. Because the ALJ’s calculation of Plaintiff’s RFC was less restrictive than Dr.
Hinzman’s limitation, and, therefore, contradicted Dr. Hinzman’s opinions, S.S.R. 96-8p
required the ALJ to explain her decision not to include Dr. Hinzman’s handling limitation
in Plaintiff’s RFC. The Commissioner argues that substantial evidence supports the
ALJ’s determination of Plaintiff’s RFC, including the frequent gross manipulation
limitation. However, the requirement of S.S.R. 96-8p is clear: where an ALJ’s RFC
conflicts with a medical source opinion in the record, the ALJ must explain why that
opinion was not adopted.
The Commissioner argues that Plaintiff’s argument lacks merit because evidence
in the record supports the ALJ’s determination that Plaintiff was capable of frequent
gross manipulation in both the right and left upper extremities. For example, the
Commissioner points to treatment notes from Dr. Simmons from June and November
2008, August 2009, and February 2010, indicating that Plaintiff had full range of motion
bilaterally in her upper and lower extremities. (Tr. 727, 739, 744.) The Court agrees
that there is evidence in the record that Plaintiff had the gross manipulation capability
described in the ALJ’s RFC. That evidence makes this question in this case a close
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one. The ALJ, however, did not discuss her decision to omit the limitation suggested by
Dr. Hinzman, and relying on other information in the record to explain that omission
would require this Court to engage in the post hoc rationalization that case law clearly
prohibits. See Berryhill v. Shalala, 4 F.3d 993, *6 (6th Cir. Sept. 16, 1993) (unpublished
opinion) (“[A] simple but fundamental rule of administrative law . . . is . . . that a
reviewing court, in dealing with a determination or judgment which an administrative
agency alone is authorized to make, must judge the propriety of such action solely by
the grounds invoked by the agency. If those grounds are inadequate or improper, the
court is powerless to affirm the administrative action.”) (internal citations omitted).
Finally, there is merit to Plaintiff’s argument that she was prejudiced by the ALJ’s
decision not to adopt the handling limitation assigned by the state consultant. During
the administrative hearing in this case, the VE testified that an individual who was
limited to occasional gross manipulation with both hands would be precluded from
working in the majority of jobs. (Tr. 95.) The VE did not, however, specify whether an
individual who was limited to occasional gross manipulation in the left upper extremity
only would be unable to work. Nor did she discuss whether such an individual would be
able to work in the positions she identified as appropriate for an individual who was
limited to frequent gross handling and manipulation. Accordingly, Plaintiff is entitled to
remand on this point. On remand, the ALJ should either adopt the occasional handling
(gross manipulation) with the left upper extremity limitation assigned by Dr. Hinzman, or
explain her decision not to adopt it; and, if she does adopt the limitation, the ALJ should
conduct an additional hearing to determine whether an individual with that limitation
would be precluded from working in jobs available in the national economy.
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2.
The ALJ Violated the Treating Physician Rule.
Plaintiff argues that the ALJ erred by giving less than controlling weight to the
opinion of her “treating psychiatrist,” Dr. Sullivan, and her “treating chiropractor,“ Dr.
DiVito. (Plaintiff’s Brief (“Pl.’s Br.”) 21.) “An ALJ must give the opinion of a treating
source controlling weight if he finds the opinion ‘well-supported by medically acceptable
clinical and laboratory diagnostic techniques’ and ‘not inconsistent with the other
substantial evidence in the case record.” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541,
544 (6th Cir. 2004) (quoting 20 C.F.R. § 404.1527(d)(2)) (internal quotes omitted). If an
ALJ decides to give a treating source’s opinion less than controlling weight, she must
give “good reasons” for doing so that are sufficiently specific to make clear to any
subsequent reviewers the weight given to the treating physician’s opinion and the
reasons for that weight. See Wilson, 378 F.3d at 544 (quoting S.S.R. 96-2p, 1996 WL
374188, at *5 (S.S.A.)). This “clear elaboration requirement” is “imposed explicitly by
the regulations,” Bowie v. Comm’r of Soc. Sec., 539 F.3d 395, 400 (6th Cir. 2008), and
its purpose is to “let claimants understand the disposition of their cases” and to allow for
“meaningful review” of the ALJ’s decision, Wilson, 378 F.3d at 544 (internal quotation
marks omitted). Where an ALJ fails to explain her reasons for assigning a treating
physician’s opinion less than controlling weight, the error is not harmless and the
appropriate remedy is remand. Id.
a.
Dr. Sullivan
Plaintiff argues that the ALJ erred by giving less than controlling weight to Dr.
Sullivan. In August 2011, Dr. Sullivan, a psychiatrist, opined that Plaintiff was mildly,
22
moderately, markedly, and extremely limited in certain areas of mental functioning.7
(Tr. 1035-1036.) He also concluded that Plaintiff’s impairments or treatment would
cause her to be absent from work more than three times per month. (Tr. 1036.) The
ALJ gave “very little weight” to Dr. Sullivan’s opinion because it was “not supported by
the medical evidence of record.” (Tr. 17.) Plaintiff argues that the ALJ’s explanation for
assigning less than controlling weight to Dr. Sullivan’s opinion does not satisfy the
“good reasons” requirement of the treating source rule.
Plaintiff’s argument that the ALJ improperly evaluated Dr. Sullivan’s opinion
under the treating source rule rests on the assumption that Dr. Sullivan was one of
Plaintiff’s treating psychiatrists, or a “treating source.” A treating source is defined as
“your own physician, psychologist, or other acceptable medical source who provides
you, or has provided you, with medical treatment or evaluation and who has, or has
had, an ongoing treatment relationship with you.” 20 C.F.R. § 404.1502. Generally, an
ongoing treatment relationship exists when the patient sees or has seen the treating
source with a frequency consistent with accepted medical practice for the type of
evaluation required for the medical condition at issue. Id.
Plaintiff’s Brief on the Merits does not offer any explanation to support her
assumption that Dr. Sullivan is a treating source and therefore protected by the treating
source rule. In the “Statement of the Facts” section in her Brief, Plaintiff’s only
references to Dr. Sullivan include his intake evaluation of Plaintiff on March 31, 2011
(Tr. 958), and his completion of an “Assessment of Ability to do Work-Related Activities
7
See supra at 11-12.
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(Mental)” from August 18, 2011 (Tr. 1035-1036). (Pl.’s Br. 16, 17-18.) Furthermore,
while the Commissioner argues that the medical evidence of record does not support
Dr. Sullivan’s findings and therefore the ALJ was not obligated to give his opinion
controlling weight, the Commissioner does not challenge Plaintiff’s assumption that Dr.
Sullivan was a treating source. Like Plaintiff, however, the only references to Dr.
Sullivan’s treatment relationship with Plaintiff that the Commissioner makes in her Brief
include the March 2011 initial evaluation and the August 2011 mental RFC
determination. (Defendant’s Brief (“Def.’s Br.”) at 11.)
“Classifying a medical source requires us to interpret the definitions in [20
C.F.R.] § 404.1502, a question of law we review de novo.” Smith v. Comm’r of Soc.
Sec., 482 F.3d 873, 876 (6th Cir. 2007). This Court must accord substantial deference
to any factual finding by the ALJ bearing on the question. Id. Here, it is not entirely
clear whether the ALJ considered Dr. Sullivan to be a treating source, as the ALJ did
not make a definitive finding on the record. Furthermore, based on the little evidence
from Dr. Sullivan that the parties have provided, this Court has serious doubts that Dr.
Sullivan had an ongoing treatment relationship with Plaintiff such that he should be
considered one of Plaintiff’s treating sources. The fact that Dr. Sullivan prescribed
medications for Plaintiff’s depression and anxiety and rendered an opinion regarding
Plaintiff’s mental limitations supports an argument that Dr. Sullivan was one of Plaintiff’s
treating sources. (Tr. 958, 1035-1036.) On the other hand, it does not appear from
the record that Plaintiff had regular appointments with Dr. Sullivan. Moreover, when the
ALJ discussed Dr. Sullivan’s August 2011 opinion, she did not indicate the dates that
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Dr. Sullivan treated Plaintiff or note when he began treating her. (17.) This suggests
that the ALJ did not consider Dr. Sullivan to be a treating source.
Neither party has cited to significant evidence in the record for this Court to make
a proper determination regarding Dr. Sullivan’s relationship with Plaintiff. Because it is
unclear whether the ALJ considered Dr. Sullivan to be a treating source, this Court
cannot properly determine whether the ALJ erred by giving less than controlling weight
to Dr. Sullivan’s opinion regarding Plaintiff’s mental limitations. Because Plaintiff’s first
assignment of error has presented a basis for remanding her case to the ALJ, the ALJ
is hereby directed to explain on remand whether she considers Dr. Sullivan to be one of
Plaintiff’s treating sources, the weight accorded to Dr. Sullivan’s opinion, and the
reasons therefor.
b.
Dr. DiVito
Plaintiff argues that the ALJ erred by giving less than controlling weight to the
opinion of Dr. DiVito, Plaintiff’s chiropractor. The Commissioner responds that the ALJ
was not required to give controlling weight to Dr. DiVito under the treating source rule,
because a chiropractor is not an “acceptable medical source.”
Here, the ALJ did not err by giving little weight to Dr. DiVito’s opinion regarding
Plaintiff’s physical limitations, because a chiropractor is not a medical source entitled to
controlling weight under the treating source rule. See Walters v. Comm’r of Soc. Sec.,
127 F.3d 525, 530 (6th Cir. 1997). In Walters, the Sixth Circuit concluded that “logic
and the plain language of the regulations suggest that a treating source under 20
C.F.R. § 404.1527(d)(2) must be a medical source and that a chiropractor is not a
medical source.” Id. (emphasis in original). The Court explained:
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The controlling weight provision is found under a section heading that refers
specifically to medical opinions, and in the regulations chiropractor opinions
are not listed as one of the five types of “acceptable medical sources” but are
listed under the separate heading of “other [nonmedical] sources.” Compare
20 C.F.R. § 404.1513(a) (1997) with 20 C.F.R. § 404.1513(e) (1997). We,
therefore, must agree with the Second Circuit’s conclusion that under the
current regulations, the ALJ has the discretion to determine the appropriate
weight to accord a chiropractor’s opinion based on all evidence in the record,
since a chiropractor is not a medical source.
Id. (citing Diaz v. Shalala, 59 F.3d 307, 313-14 (2d Cir. 1995)). Thus, because the
regulations do not treat chiropractors in the same way that they treat licensed physicians,
Dr. DiVito is not an “acceptable medical source” whose opinion was entitled to controlling
weight.
In Walters, the Court held that although the plaintiff could offer his chiropractor’s
opinions to help the Commissioner assess the extent to which his impairments affected his
ability to work, “the ALJ was not required to adopt the opinions of a treating chiropractor nor
to give them controlling weight.” Id. at 530-31. Here, the ALJ acknowledged that on March
20, 2009, Dr. DiVito opined that Plaintiff could not wash clothes, run a sweeper, mop, make
beds, do dishes, or drive short distances. (Tr. 27, 522.) The ALJ gave “little weight” to that
opinion, noting that Dr. DiVito “did not provide any detailed reasoning for his conclusions”
and that “the objective findings he provide[d] [we]re vague and limited.” (Tr. 27.) Because
the ALJ was not required to give any more deference to Dr. DiVito’s opinion than she did
in her decision, and because Dr. DiVito is not a treating source, Plaintiff’s claim that the ALJ
erred by giving less than controlling weight to Dr. DiVito’s opinion is without merit.
VI.
CONCLUSION
For the foregoing reasons, the Commissioner’s final decision is REVERSED and
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REMANDED for proceedings consistent with this Memorandum Opinion and Order.
IT IS SO ORDERED.
s/ Nancy A. Vecchiarelli
U.S. Magistrate Judge
Date: January 6, 2014
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