Mundy v. Commissioner of Social Security
Filing
21
REPORT AND RECOMMENDATION that the decision of the Commissioner be Reversed and Remanded for further proceedings pursuant to Sentence Four of 42 USC 405(g). Objections to R&R due by 2/22/2013. Signed by Magistrate Judge Karen L. Litkovitz on 2/4/2013. (art)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
ROBYN MUNDY,
Plaintiff,
Case No. 1: 11-cv-834
Dlott, J.
Litkovitz, M.J.
vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
REPORT AND
RECOMMENDATION
Plaintiffbrings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final
decision of the Commissioner of Social Security (Commissioner) denying plaintiffs application
for disability insurance benefits (DIB). This matter is before the Court on plaintiffs Statement of
Errors (Doc. 13), the Commissioner's response in opposition (Doc. 14), and plaintiffs reply
memorandum. (Doc. 19).
I. Procedural Background
Plaintiff filed an application for DIB in March 2007, alleging disability since November
1, 2004, due to osteoarthritis in her knee, shoulder, back, hip, and neck. Plaintiffs application
was denied initially and upon reconsideration. Plaintiff, through counsel, requested and was
granted a de novo hearing before administrative law judge (ALJ) Christopher B. McNeil.
Plaintiff and a vocational expert (VE) appeared and testified at the ALJ hearing. On November
19, 2009, the ALJ issued a partially favorable decision finding that plaintiff was disabled as of
April23, 2009. Plaintiffs request for review by the Appeals Council was denied, making the
decision of the ALJ the final administrative decision of the Commissioner.
II. Analysis
A. Legal Framework for Disability Determinations
To qualify for disability benefits, a claimant must suffer from a 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 12 months. 42 U.S.C. § 423(d)(l)(A).
The impairment must render the claimant unable to engage in the work previously performed or
in any other substantial gainful employment that exists in the national economy. 42 U.S.C. §
423(d)(2).
Regulations promulgated by the Commissioner establish a five-step sequential evaluation
process for disability determinations:
1) If the claimant is doing substantial gainful activity, the claimant is not disabled.
2) If the claimant does not have a severe medically determinable physical or
mental impairment- i.e., an impairment that significantly limits his or her
physical or mental ability to do basic work activities - the claimant is not
disabled.
3) If the claimant has a severe impairment(s) that meets or equals one of the
listings in Appendix 1 to Subpart P of the regulations and meets the duration
requirement, the claimant is disabled.
4) If the claimant's impairment does not prevent him or her from doing his or her
past relevant work, the claimant is not disabled.
5) If the claimant can make an adjustment to other work, the claimant is not
disabled. If the claimant cannot make an adjustment to other work, the claimant is
disabled.
Rabbers v. Comm 'r of Soc. Sec., 582 F.3d 647, 652 (6th Cir. 2009) (citing§§ 404.1520(a) (4)(i)(v), 404.1520(b )-(g)). The claimant has the burden of proof at the first four steps ofthe
sequential evaluation process. !d.; Wilson v. Comm 'r ofSoc. Sec., 378 F.3d 541, 548 (6th Cir.
2
2004). Once the claimant establishes a prima facie case by showing an inability to perform the
relevant previous employment, the burden shifts to the Commissioner to show that the claimant
can perform other substantial gainful employment and that such employment exists in the
national economy. Rabbers, 582 F.3d at 652; Harmon v. Apfel, 168 F.3d 289, 291 (6th Cir.
1999).
B. The Administrative Law Judge's Findings
The ALJ applied the sequential evaluation process and made the following findings of
fact and conclusions of law:
1. The [plaintiff] meets the insured status requirements of the Social Security Act
through December 31, 2009.
2. The [plaintiff] has engaged in substantial gainful activity since the alleged onset
date (20 CFR 404.1571 et seq.).
3. Since the alleged onset date of disability, November 1, 2004, the [plaintiff] has
had the following severe impairments: degenerative joint disease and degenerative
disc disease. Beginning on the established onset date of disability, April23, 2009,
the [plaintiff] has had the following severe impairments: degenerative joint
disease and degenerative disc disease (20 CFR 404.1520(c)).
4. Prior to April23, 2009, the date the [plaintiff] became disabled, the [plaintiff]
did not have an impairment or combination of impairments that met or medically
equaled one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that prior
to April23, 2009, the date the [plaintiff] became disabled, the [plaintiff] had the
residual functional capacity to perform the full range of light work as defined in
20 CFR 404.1567(b ). Specifically, the [plaintiff] could perform the requirements
of work activity except as follows: she could lift or carry (or both) no more than
20 pounds occasionally and 10 pounds frequently, and she could stand, sit, or
walk for a total of 6 hours each, in an 8-hour workday. The [plaintiff] could only
occasionally balance, stoop, kneel, crouch, crawl, and climb ramps or stairs, she
could only occasionally reach overhead with her right hand, and she could not
climb ladders, ropes or scaffolds or work around heavy dust, fumes and odors.
3
6. Prior to the established disability onset date, the [plaintiff] was a younger
individual age 18-49 (20 CFR 404.1563).
7. The [plaintiff] has at least a high school education and is able to communicate
in English (20 CFR 404.1564).
8. Prior to April 23, 2009, transferability of job skills is not material to the
determination of disability because applying the Medical-Vocational Rules
directly supports a finding of"not disabled", whether or not the [plaintiff] has
transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix
2).
9. Prior to April 23, 2009, considering the [plaintiff]'s age, education, work
experience, 1 and residual functional capacity, there were jobs that existed in
significant numbers in the national economy that the [plaintiff] could have
performed (20 CFR 404.1569 and 404.1569a).
10. Beginning on April 23, 2009, the severity of the [plaintiff]'s impairments has
met the criteria of section 1.04 of 20 CFR Part 404, Subpart P, Appendix 1 (20
CFR 404.1520(d) and 404.1525).
11. The [plaintiff] was not disabled prior to April 23, 2009 (20 CFR 404.1520(g) ),
but became disabled on that date and has continued to be disabled through the
date of this decision (20 CFR 404.1520(d)).
(Tr. 16-27).
C. Judicial Standard of Review
Judicial review of the Commissioner's determination is limited in scope by 42 U.S.C. §
405(g) and involves a twofold inquiry: (1) whether the findings of the ALJ are supported by
substantial evidence, and (2) whether the ALJ applied the correct legal standards. See Blakley v.
Comm 'r of Soc. Sec., 581 F.3d 399,406 (6th Cir. 2009); see also Bowen v. Comm 'r of Soc. Sec.,
478 F.3d 742, 745-46 (6th Cir. 2007).
The Commissioner's findings must stand if they are supported by "such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales,
1
Plaintiffhas past relevant work as a cleaning person, office clerk, sales clerk, and office
assistant.
4
402 U.S. 389, 401 (1971) (citing Consolidated Edison Co. v. NL.R.B., 305 U.S. 197, 229
(1938)). Substantial evidence consists of "more than a scintilla of evidence but less than a
preponderance .... " Rogers v. Comm 'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). In
deciding whether the Commissioner's findings are supported by substantial evidence, the Court
considers the record as a whole. Hephner v. Mathews, 574 F.2d 359 (6th Cir. 1978).
The Court must also determine whether the ALJ applied the correct legal standards in the
disability determination. Even if substantial evidence supports the ALJ's conclusion that the
plaintiff is not disabled, "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." Rabbers, 582 F.3d at 651 (quoting Bowen, 478 F.3d at 746).
See also Wilson, 378 F.3d at 545-46 (reversal required even though ALJ' s decision was
otherwise supported by substantial evidence where ALJ failed to give good reasons for not giving
weight to treating physician's opinion, thereby violating the agency's own regulations).
D. Specific Errors
On appeal, plaintiff argues that: (1) the ALJ erred in finding plaintiff did not meet/equal
Listing 1.04 prior to April23, 2009; (2) the ALJ erred in determining plaintiffs RFC prior to
April23, 2009; and (3) the ALJ erred by not finding plaintiffs depression and fibromyalgia were
severe impairments.
1. The ALJ did not err in finding that plaintiff did not meet/equal Listing 1.04 prior to April
23,2009.
The ALJ determined that plaintiffs degenerative joint disease and degenerative disc
5
disease did not meet or equal Listings 1.02, 1.03, or 1.04 prior to April23, 2009. (Tr. 20-21).
Plaintiff contends the ALJ erred by finding that she did not meet or equal Listing 1.04 because
the medical record establishes that plaintiff met the Listing from 2006. 2 Plaintiff further argues
that the ALJ's explanation for finding that she met the listing as of, but not prior to, April23,
2009, is vague and cursory and is not substantially supported by the record evidence. Plaintiff's
arguments are not well-taken.
Listing 1.04 covers disorders of the spine, including degenerative disc disease. The
Listing provides that in order to meet a listing, the spinal condition "must result in compromise
of a nerve root ... or the spinal cord." 20 C.F.R. Part 404, Subpart P, Appendix 1, § 1.04.
Additionally, there must be:
A. Evidence of nerve root compression characterized by neuro-anatomic
distribution of pain, limitation of motion of the spine, motor loss (atrophy with
associated muscle weakness or muscle weakness) accompanied by sensory or
reflex loss and, if there is involvement of the lower back, positive straight-leg
raising test (sitting and supine);
or
B. Spinal arachnoiditis, confirmed by an operative note or pathology report of
tissue biopsy, or by appropriate medically acceptable imaging, manifested by
severe burning or painful dysesthesia, resulting in the need for changes in position
or posture more than once every 2 hours;
or
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings
on appropriate medically acceptable imaging, manifested by chronic nonradicular
pain and weakness, and resulting in inability to ambulate effectively, as defined in
1.00B2b.
2
In her Statement of Errors, plaintiff asserts she met Listing 1.04 "from the 2006 alleged onset date through
the date of the hearing." (Doc. 13 at 6). In her letter to the Appeals Council, plaintiff amended her alleged onset
date to September 1, 2006. (Tr. 201). Therefore, the resolution of plaintiffs first assignment of error is similarly
limited to the period of September 1, 2006 to Apri123, 2009, the date from which the ALJ determined plaintiff met
Listing 1.04.
6
!d.
A summary of the record medical evidence regarding plaintiff's degenerative disc disease
includes treatment notes from her primary care physician, Sharon Sax, M.D., who treated
plaintiff since at least 1996. (Tr. 207-33). Dr. Sax's notes show treatment for, inter alia, right
knee, right shoulder and neck pain, decreased range of motion, multiple trigger points, limited
motion ofthe right shoulder, and crepitus of the knees. (Tr. 234-305, 590-664). On May 5,
2009, Dr. Sax completed a functional capacity questionnaire in which she stated that plaintiff:
has sustained muscle weakness in the hands, fingers, and arms, accompanied by sensory loss; has
lost the ability to grasp, turn or twist objects, use her fingers for fine manipulation, and use her
arms to reach overhead; and is functionally limited due to degenerative disc disease which
prevents her from carrying any weight and only rarely turn her head up, down, to the left, or to
the right. (Tr. 733-37).
Plaintiffbegan treating with Set Shahbabian, M.D., in May 2007 for evaluation of neck
pain and bilateral arm discomfort. (Tr. 551-52). Her history reveals an anterior cervical
discectomy and fusion surgery at C4-5 in the early 1990's. (Tr. 551). Plaintiff also reported that
in September 2006, she re-injured her neck. !d. Examination showed that plaintiff's gait was
essentially limping, favoring the left leg; deep tendon reflexes are symmetrical and normal at
knee jerks bilaterally; ankle jerk on the left side is 1-2+ and the right side is 2+; and straight
raising of the leg is strongly positive in the left side in about 60 degrees. In the upper
extremities, deep tendon reflexes are symmetrical and normal and hyperextension of the neck
produces some tingling in the arms. Dr. Shahbabian ordered an MRI. (Tr. 552).
7
The May 2007 MRI of the cervical spine taken showed moderate left facet hypertrophy
and mild diffuse disc bulge with mild ventral thecal sac flattening. At the C5-6 level, there was
right greater than left facet hypertrophy and moderate diffuse disc bulge with ventral thecal sac
flattening. Mild bilateral C6 foramina! narrowing was noted. At the C6-7 level, there was mild
disc bulge and uncovertebral hypertrophy, left greater than right, with minimal narrowing of the
left C7 neural foramen. The MRI of the lumbar spine showed minimal degenerative disc changes
and facet arthropathy at L4-5. (Tr. 565-68).
On June 18, 2007, Dr. Shahbabian recommended anterior cervical discectomy and fusion
at C5-6 and C6-7. He also reviewed the MRI of the lumbar spine which demonstrated
"significant osteoarthritis and facet syndrome, especially in L4-L5. L3-L4 is starting also and
L5-S 1 is not that great either. There is no neural compartment compression but there is instability
developing there. Sooner or later, she will end up needing posterolateral fusion and internal
stabilization in the lumbar spine but this is not an emergency right now but this is progressing."
(Tr. 549-50).
Consultative physician, Jennifer Wischer Bailey, M.D., examined plaintiff for disability
purposes in June 2007. (Tr. 403-11 ). Dr. Bailey found plaintiff ambulated with a normal gait
and was comfortable both in the sitting and standing positions. While there was tenderness noted
on palpation ofboth the cervical spine and right shoulder capsule, the cervical portion of the
spine allowed about 50 degrees of flexion, 80 degrees of rotation bilaterally, and 45 degrees of
lateral flexion bilaterally, all within normal limits. (Tr. 408). Examination also showed slight
diminishment of right-side abduction; forward flexion of the extended arms and abduction of the
extended arms in a sideways arc in the coronal plane of the body were normal; muscle and grasp
8
strength were well preserved over the upper extremities, as were pinprick and light touch, along
with bilateral manipulative ability. !d. Dr. Bailey found no evidence of muscle atrophy, brisk
bicep and triceps reflexes bilaterally, normal flexion of elbows, and normal dorsal flexion of both
wrists. !d. There was no evidence of paravertebral spasm, no tenderness on percussion of the
lumbar spine and hips and no difficulty bending at the waist to 90 degrees. She found plaintiff
could stand on either leg and ambulate heel-to-toe without difficulty. Plaintiff was able to
perform straight leg raising to 90 degrees bilaterally, lateral motion of the spine was normal to 30
degrees bilaterally, there was normal range ofbilateral flexion of the hips with the knees flexed
(to 100 degrees), and there was no evidence of muscle weakness or atrophy. There was slightly
diminished flexion of the knees (to 140 degrees bi1aterally, with extension normal to 0 degrees
bilaterally). There also was mild crepitus to passive range of motion of both knees, but with no
evidence of effusion or synovial thickening. Ankle joints showed normal plantar and dorsal
flexion. (Tr. 409). Dr. Bailey also obtained an x-ray that day which showed the soft tissues
about the hip were normal; there were no articular alterations, fractures, dislocations, or
destructive lesions; and the acetabular fossa appeared normal. (Tr. 441 ). Based on the findings
of this examination, Dr. Bailey concluded that plaintiff "appears capable of performing at least a
moderate amount of sitting, ambulating, standing, bending, pushing, pulling, lifting and carrying
heavy objects. She would probably complain of pain with repetitive kneeling. In addition,
[plaintiff] has no difficulty reaching, grasping, and handling objects. There are no visual and/or
communication limitations nor are there environmental limitations." (Tr. 410).
State agency physician, Elizabeth Das, M.D., reviewed the file on July 14, 2007
9
and completed a physical residual functional capacity assessment. (Tr. 412-19). She opined that
plaintiff could lift and/or carry and push and/or pull no more than 20 pounds occasionally and 10
pounds frequently; could stand and/or walk about six hours in an eight-hour workday; and could
sit for about six hours in an eight-hour workday. (Tr. 413). Dr. Das also found that plaintiff
could only occasionally balance, stoop, kneel, crouch, crawl, and climb ramps or stairs; she could
only occasionally reach overhead with her right hand; and she could not climb ladders,
ropes or scaffolds or work around heavy dust, fumes and odors. (Tr. 414-16). Dr. Das deemed
plaintiffs allegations "partially credible." (Tr. 417). State agency physician Michael Stock,
M.D., affirmed Dr. Das' assessment in February 2008. (Tr. 526).
Dr. Shahbabian performed fusion surgery at C5-6 and C6-7 on January 4, 2008. (Tr. 52932). In September 2008, plaintiff reported her neck was "okay" but that she was still having low
back pain. Of concern to Dr. Shahbabian was that "even though she states her neck is fine, she
keeps falling because her left leg is suddenly giving out." Dr. Shahbabian found positive straight
leg raising and recommended an MRI. (Tr. 545). The MRI of the lumbar spine taken on October
13, 2008 showed disc desiccation and minimal disc bulge with a slightly more focal small central
left disc protrusion with a tiny annular tear at the L4-5 level. There was no evidence of neural
compression or foramina! narrowing. There was mild bilateral facet arthrosis with no evidence
of canal stenosis. (Tr. 563-64).
Plaintiff was seen by Todd M. Kravetz, M.D., of Dr. Sax's practice, on April23, 2009,
because plaintiff fell down the stairs and had neck pain. (Tr. 727-29). To assess her neck sprain
and strain, Dr. Kravetz ordered an MRI of plaintiffs cervical spine. Id. The MRI ofthe cervical
spine taken on April25, 2009, revealed moderate to severe narrowing of the left neural foramen,
10
multilevel facet degeneration, and left paracentral disc protrusion at C6-7, indenting the left side
ofthe thecal sac. (Tr. 561-62).
In June 2009, plaintiff reported to Dr. Shahbabian that she fell and sustained another
injury to her neck in March 2009. (Tr. 544). Dr. Shahbabian advised physical therapy, but
plaintiff was unable to attend due to transportation difficulty but noted she did have access to a
pool. ld. Dr. Shahbabian noted there was nothing surgical he should do. ld.
In determining that plaintiff did not meet Listing 1.04 until April 23, 2009, the ALJ
stated:
[r]egarding listing 1.04 (disorders of the spine), while there was a diagnosis of
multilevel degenerative disease in the cervical spine, this was treated first in 1993
with the fusion of the C4-5 spine [Tr. 549, 551], followed by a course of
conservative treatment that did not disclose evidence of nerve-root compression
and motor loss. [Tr. 341-52]. A second fusion of the cervical spine, affecting the
C5-6, was performed in January 2008, after which [plaintif:fJ's treating physician
determined the cervical spine to be very stable, with minimal neural compression,
if any [Tr. 544]. And while minimal anterior osteophyte formation in the lumbar
spine was detected in 2007 [Tr. 341], there was no acute abnormality found (id.).
Therefore, the [plaintif:fJ did not meet the listing (which is only met upon a
showing of neuron-anatomic distribution of pain, limitation of motion of the
spine, and motor loss, accompanied by sensory or reflex loss).
(Tr. 20).
Plaintiff argues that the above evidence, specifically the 2007 MRI showing degenerative
disc disease significant enough to warrant surgery a few months later (Tr. 549, 559), supports a
finding that plaintiff was disabled as of the alleged disability onset date. Plaintiff claims that she
met the criteria of Listing 1.04(A) prior to 2008 given the evidence of pain (Tr. 447, 551);
limitation of motion (549, 551); motor loss (Tr. 449, 549); and sensory/reflex loss. (Tr. 547, 549,
551). While plaintiff rightly identifies that the medical evidence supports a finding that she
exhibited the symptoms identified by Listing 1.04, her argument fails to acknowledge the
11
----------------------------
prerequisite for meeting the Listing: her degenerative disc disease "must result in compromise of
a nerve root ... or the spinal cord" as well as the above-cited symptoms. See 20 C.F .R. Part 404,
Subpart P, Appendix 1, § 1.04.
The ALJ cited to the objective findings of record and determined that plaintiffs medical
records did not evidence nerve-root compression prior to April 2009. See Tr. 20, citing Tr. 34152, 544, 549, 551. After addressing this evidence, the ALJ found that it did not support a finding
that plaintiffs degenerative disc disease met or equaled Listing 1.04 until April2009, when an
MRI found moderate to severe neural foramen narrowing which was noted as a new finding. (Tr.
561-62). Plaintiff argues that this MRI is not significantly different from the 2007 MRI (Tr. 56566), after which plaintiff required fusion surgery, and that the ALJ erred by not finding that she
met Listing 1.04 from at least that date. (Doc. 19 at 2). A review of the MRis reveals, as noted
above, that the 2009 MRI contained a "new" finding of severe neural foramen narrowing (Tr.
561-62) which was not present in the May 2007 MRI, which found only mild to minimal neural
foramen narrowing. (Tr. 565). The difference between mild or moderate and severe narrowing
is significant and supports the ALJ's determination that plaintiff did not meet Listing 1.04 until
objective evidence of record established that she had "nerve root compression characterized by
neuron-anatomic distribution of pain, limitation of motion of the spine, and muscle weakness
accompanied by sensory loss." (Tr. 19). The ALJ's decision reflects that he thoroughly
considered and discussed plaintiffs objective and subjective evidence in finding that she did not
meet Listing 1.04 until April23, 2009. Accordingly, plaintiffs first assignment of error should
be overruled.
12
2. The ALJ erred in formulating plaintiffs pre-April23, 2009 RFC by not properly
considering the scope of her treating physician's opinion.
For her second assignment of error, plaintiff argues the ALJ erred in formulating
her RFC from her alleged disability onset date to April23, 2009. Plaintiff contends that the ALJ
mischaracterized the RFC opinion of her treating physician, Dr. Sax, by stating that it applied
from May 5, 2009 onward, see Tr. 23, 26-27, while Dr. Sax opined that plaintiffs impairments
had existed and progressed for twelve months preceding the date of the RFC opinion. See Tr.
734. Plaintiff also argues that the ALJ erred by not addressing Dr. Shahbabian's comments
regarding her disability and by failing to find any limitations on plaintiffs ability to use her
hands for fine and gross manipulation despite supporting evidence. For the following reasons,
the undersigned finds that the ALJ erred in his analysis of Dr. Sax's opinion.
"In general, the opinions of treating physicians are accorded greater weight than those of
physicians who examine claimants only once." Walters v. Comm 'r of Soc. Sec., 127 F.3d 525,
529-30 (6th Cir. 1997). Likewise, a treating physician's opinion is entitled to weight
substantially greater than that of a nonexamining medical advisor. Harris v. Heckler, 756 F.2d
431, 435 (6th Cir. 1985); Lashley v. Sec yof HHS., 708 F.2d 1048, 1054 (6th Cir. 1983). The
weight given a treating physician's opinion on the nature and severity of impairments depends on
whether it is supported by sufficient medical data and is consistent with other evidence in the
record. 20 C.F.R. § 404.1527(c) 3 ; Harris, 756 F.2d 431 (6th Cir. 1985). If a treating physician's
"opinion on the issue(s) of the nature and severity of [a claimant's] impairment(s) is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not
13
inconsistent with the other substantial evidence in [the] case," the opinion is entitled to
controlling weight. 20 C.F.R. § 404.1527(c)(2); see also Walters, 127 F.3d at 530. If not
contradicted by any substantial evidence, a treating physician's medical opinions and diagnoses
are afforded complete deference. Harris, 756 F.2d at 435. See also Cohen v. Sec yof HHS.,
964 F.2d 524,528 (6th Cir. 1992). The opinion of a nonexamining physician is entitled to little
weight if it is contrary to the opinion of the claimant's treating physicians. Shelman v. Heckler,
821 F.2d 316,321 (6th Cir. 1987). Ifthe ALJ rejects a treating physician's opinion, the ALJ's
decision must be supported by a sufficient basis which is set forth in his decision. Walters, 127
F.3d at 529; Shelman, 821 F.2d at 321.
If the ALJ does not give the treating source's opinion controlling weight, then the ALJ
must consider a number of factors when deciding what weight to give the treating source's
opinion. 20 C.F.R. § 404.1527(c). These factors include the length, nature and extent ofthe
treatment relationship and the frequency of examination. 20 C.F.R. § 404.1527(c)(2)(i)(ii);
Wilson, 378 F .3d at 544. In addition, the ALJ must consider the medical specialty of the source,
how well-supported by evidence the opinion is, how consistent the opinion is with the record as a
whole, and other factors which tend to support or contradict the opinion. 20 C.F.R. §
404.1527(c)(3)-(6); Wilson, 378 F.3d at 544. The ALJ must likewise apply the factors set forth
in§ 404.1527(c)(3)-(6) when considering the weight to give a medical opinion rendered by a
non-treating source. 20 C.F.R. § 404.1527(c). When considering the medical specialty of a
source, the ALJ must generally give "more weight to the opinion of a specialist about medical
issues related to his or her area of specialty than to the opinion of a source who is not a
3
Regulation 20 C.F.R. § 404.1527 was amended effective March 26,2012. The provision governing the
weight to be afforded a medical opinion was previously found at§ 404.1527(d).
14
specialist." 20 C.P.R. §§404.1527(c)(5).
In this case, the ALJ gave great weight to Dr. Sax's opinion as it "is based on a complete
longitudinal record of medical evidence, including objective testing conducted in 2009, revealing
advanced degenerative disc disease." (Tr. 27). In formulating plaintiffs RFC for the closed
period of her alleged onset date to April23, 2009, the ALJ stated that Dr. Sax's RFC assessment
permitted less than sedentary work as of May 5, 2009, the date the report was written. (Tr. 23).
The ALJ further stated that, "[p]rior to this time, none of the [plaintiff]'s treating physicians
concluded the [plaintiff]' s ability to work was restricted in the manner claimed by the [plaintiff]."
!d. The undersigned finds that the ALI's determination that Dr. Sax's RFC opinion applied only
to the time period of May 5, 2009, onward is not substantially supported by the evidence of
record.
Dr. Sax completed an RFC assessment on May 5, 2009, in which she opined that
plaintiffs impairments, including fibromyalgia and coexistent depression, cause plaintiff to be
incapable of even "low stress" jobs as plaintiff is unable to concentrate due to her pain. (Tr.
734). Dr. Sax further opined that plaintiff was unable to walk a block without rest or severe pain;
was able to sit for only 20 minutes at a time and for about four hours in an eight-hour work day;
was able to stand for only 15 minutes at a time and for less than two hours in an eight-hour
workday and needed to walk for five minutes approximately every 15 minutes; needed to take
unscheduled breaks three times an hour during an eight-hour workday; could never lift and carry
any weight; could rarely look down, up, or turn her head left or right; could never twist, stoop,
crouch, squat, or climb ladders but could occasionally climb stairs; and had significant
limitations in reaching, handling, or fingering such that she could not grasp, turn or twist objects,
15
use her fingers for fine manipulation, or use her arms to reach overhead. (Tr. 735-37). When
asked if plaintiffs impairments lasted or can be expected to last at least twelve months, Dr. Sax
checked the "No" box and included a handwritten notation, "They have lasted and progressed."
(Tr. 734)(emphasis added).
The undersigned finds that Dr. Sax's notation that plaintiffs impairments "have lasted
and progressed" for at least twelve months indicates that Dr. Sax intended her opinion to apply
retroactively for the twelve months preceding May 5, 2009. The ALJ's statements that Dr. Sax's
opinion was limited to the time from May 5, 2009 forward and that no treating physician
suggested limitations as alleged by plaintiff prior to May 5, 2009 are contrary to the plain reading
of Dr. Sax's RFC assessment. Accordingly, to the extent that the ALJ's RFC formulation does
not account for the limitations imposed by Dr. Sax for the twelve months preceding May 5, 2009,
the RFC is not supported by substantial evidence. The undersigned recommends that this matter
be reversed and remanded with instructions to the ALJ to reconsider Dr. Sax's opinion on
plaintiffs RFC assessment and the onset date of disability.
Lastly, plaintiff argues that the ALJ erred by failing to discuss Dr. Shahbabian's opinions
regarding the effect of her spinal impairments on her capacity for employment. On June 18,
2007, plaintiff saw Dr. Shahbabian for re-examination and Dr. Shahbabian opined that due to a
"traction spur in the right side in C5-C6 and in the left side in C6-C7 with neural compression[,]"
plaintiff will need "anterior cervical discectomy and fusion in the level of C5-C6 and C6-C7 with
bone graft taken from the left iliac crest." (Tr. 549). Dr. Shahbabian further stated that plaintiff
"has a shoulder problem and a knee problem and that is not going to help her recovery. I won't
rush the lumbar spine but sooner or later, she will need surgery." !d. Plaintiff was informed that
16
"by the time she is scheduled and operated on the cervical spine and recovers from that surgery"
the lumbar spine would then be addressed. (Tr. 550). Dr. Shahbabian opined that plaintiff
should expect a recovery time of approximately one year following spinal surgery during which
plaintiff would "be unable to be involved in gainful employment." (Tr. 550). As noted above,
plaintiffunderwent fusion surgery at C5-6 and C6-7 in January 2008 (Tr. 529-32) and reported
ongoing back pain 8 months later. (Tr. 545).
In his decision, the ALJ did not address Dr. Shahbabian's June 18,2007 opinion that
plaintiff would be unable to engage in gainful employment post-back surgery as she would be in
recovery for "possibly a one year period." See Tr. 550. When an ALJ fails to mention relevant
evidence in his decision "the reviewing court cannot tell if significant probative evidence was not
credited or simply ignored." Morris v. Sec 'y of HHS., No. 86-5875, 1988 WL 34109, at
* 2 (6th
Cir. Apr. 18, 1988) (quoting Cotter v. Harris, 642 F.2d 700,705 (3d Cir. 1981)). The ALI's
opinion makes no mention of Dr. Shahbabian's opinion that plaintiff would be precluded from
work for one year while she recovered from back surgery. Given the ALI's silence, the Court
cannot discern from the instant record whether the ALJ overlooked, ignored, or rejected this
evidence. As a result of this omission, the ALJ committed an error law when he failed to comply
with his duty to weigh Dr. Shababian's opinion in accordance with 20 C.F.R. § 404.1527(c).
Because the ALJ provided no explanation for not addressing these records, which support a
finding that plaintiff was precluded from work for at least one year following her January 2008
cervical spine surgery, remand is required to allow the ALJ to fully consider these records. See
Bowen, 478 F.3d at 750.
17
3. The ALJ did not err by finding that plaintiffs depression was not a severe impairment,
but erred in failing to address the evidence of plaintiffs fibromyalgia.
For her final assignment of error, plaintiff argues that the ALJ erred by finding that her
depression and fibromyalgia were not severe impairments. In support, plaintiff notes the
longitude of history of treatment for fibromyalgia as well as her reports that she has "dealt with
depression for a long time." (Doc. 13 at 13, citing Tr. 381). For the following reasons, the
undersigned finds that the ALJ did not err in finding plaintiffs depression to be a non-severe
impairment but erred in not addressing the evidence of plaintiffs fibromyalgia.
A severe impairment or combination of impairments is one which significantly limits the
physical or mental ability to perform basic work activities. 20 C.F.R. § 404.1520(c). In the
physical context, this means a significant limitation upon a plaintiffs ability to walk, stand, sit,
lift, push, pull, reach, carry or handle. See 20 C.F .R. § 404.1521 (b)(I). Basic work activities
relate to the abilities and aptitudes necessary to perform most jobs, such as the ability to perform
physical functions, the capacity for seeing and hearing, and the ability to use judgment, respond
to supervisors, and deal with changes in the work setting. 20 C.F.R. § 404.1521(b).
Plaintiff is not required to establish total disability at this level of the sequential
evaluation. Rather, the severe impairment requirement is a threshold element which plaintiff
must prove in order to establish disability within the meaning of the Act. Gist v. Sec y of HHS.,
736 F.2d 352, 357 (6th Cir. 1984). An impairment will be considered nonsevere only if it is a
"slight abnormality which has such minimal effect on the individual that it would not be
expected to interfere with the individual's ability to work, irrespective of age, education, and
work experience." Farris v. SecyofHHS., 773 F.2d 85,90 (6th Cir. 1985) (citing Brady v.
18
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Heckler, 724 F.2d 914, 920 (11th Cir. 1984)). The severity requirement is a "de minimis hurdle"
in the sequential evaluation process. Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988). See
also Rogers, 486 F.3d at 243 n.2.
In support ofher argument that her depression is a severe impairment, plaintiff relies
exclusively on the report of consultative examining psychiatrist, Kevin W. Eggerman, M.D., and
a notation from Dr. Sax's RFC assessment that plaintiff has "co-existent depression" and
"anxiety/panic attacks." (Doc. 13 at 13, citing Tr. 381-86, 734). Specifically, plaintiff cites to
the following evidence: (1) her subjective report to Dr. Eggerman that she had "dealt with
depression for a long time" (Tr. 381); (2) Dr. Eggerman's notations that plaintiff had limited
insight and was defensive, guarded, anxious, and irritable (384-85); (3) Dr. Eggerman's diagnosis
that plaintiff had depressive disorder, not otherwise specified, and assigned a Global Assessment
of Functioning (GAF) 4 score of60, indicating symptoms of moderate severity (Tr. 385); (4) Dr.
Sax's opinion that plaintiff suffers from depression and anxiety attacks (Tr. 734); (5) the fact that
plaintiff was prescribed Prozac, Cymbalta, and Zanaflex for depression (Tr. 423, 596); and (6)
Dr. Sax's opinion that plaintiff is incapable of even a low stress job due to her inability to
concentrate. (Tr. 734). Plaintiff contends that this evidence, particularly the GAF score of 60
suggesting that she suffers from moderate limitations due to depression, supports a finding that
her depression is a severe impairment contrary to the ALJ' s finding. The undersigned disagrees.
4
GAF is a tool used by health-care professionals to assess a person's psychological, social, and
occupational functioning on a hypothetical continuum of mental illness. It is, in general, a snapshot of a person's
"overall psychological functioning" at or near the time of the evaluation. See Martin v. Comm 'r, 61 F. App'x 191,
194 n.2 (6th Cir. 2003); see also Diagnostic and Statistical Manual of Mental Disorders, 4th ed., Text Revision
("DSM-IV-TR") at 32-34. A GAF score of60 indicates moderate symptoms (e.g., flat affect and circumstantial
speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few
friends, conflicts with peers or co-workers). DSM-IV-TR at 34.
19
In determining that plaintiffs depression was nonsevere, the ALJ noted that she has not
and is not receiving therapy for any mental impairment (Tr. 20, citing Tr. 151, Report of Contact
in which plaintiff reported that she is "not currently seeing anyone for mental health treatment at
this time [and h]as no past psychiatric hospitalizations."). Further, the ALJ correctly identified
that the record does not contain any objective evidence from a mental health provider supporting
a finding of severe depression. !d. The ALJ also noted that the report from consultative
examining psychiatrist Dr. Eggerman included findings of only mild symptoms and that this
opinion was affirmed by subsequent psychiatric functional capacity evaluation. !d., citing Tr.
380-86 (Dr. Eggerman's Report); Tr. 389-402 (Psychiatric Review Technique completed by state
agency reviewing psychologist Leslie Rudy, Ph.D. finding only mild limitations resulting from
plaintiffs depression).
Here, the record evidence demonstrates that plaintiffs depression results in only mild or
minimal effects on her functional capabilities. Dr. Eggerman, the only mental health specialist of
record who examined plaintiff, found that plaintiff was not limited in her ability to understand
and remember or carry out short and simple instructions; was mildly limited in her ability to
understand and remember and carry out detailed instructions; and was minimally limited in her
ability to make judgments on simple work-related decisions. (Tr. 386). Further, the only other
opinion from a mental health specialist came from Dr. Rudy who opined that plaintiff had only
mild limitations due to her depression. (Tr. 399). Although plaintiffs primary physician, Dr.
Sax, who is not a mental health specialist, diagnosed plaintiff with depression, she did not
provide any opinion as to how plaintiffs depression limited her. See Foster v. Bowen, 853 F.2d
483, 488-89 (6th Cir. 1988) (relevant consideration in disability case is not claimant's diagnoses,
20
but functional limitations caused by impairments). This diagnosis, without more, does not
establish that plaintiffs depression results in severe limitations. Although Dr. Sax opined that
plaintiff was incapable of even low stress work due to her inability to concentrate, it is not clear
that this opinion was a result of plaintiffs depression as opposed to her pain disorder. To the
extent that plaintiff relies on Dr. Eggerman's GAF score of 60 to demonstrate that her depression
created moderate and more than mild limitations, this argument is misplaced in light of Dr.
Eggerman's clear findings that plaintiffs depression caused only mild and minimal limitations.
Plaintiffs argument also ignores Dr. Eggerman's notations that the GAF of 60 was largely
assigned because of plaintiffs pain symptoms and occupational problems as opposed to her
depression. See Tr. 386. Moreover, a GAF score of 60, taken alone, is insufficient to establish a
severe impairment. The Commissioner has "declined to endorse the [GAF] score for 'use in the
Social Security and SSI disability programs,' and has indicated that [GAF] scores have no 'direct
correlation to the severity requirements of the mental disorders listings."' DeBoard v. Comm 'r of
Soc. Sec., 211 F. App'x 411, 415 (6th Cir. 2006) (quoting Wind v. Barnhart, 133 F. App'x 684,
691-92 n.5 (11th Cir. 2005)) (quoting 65 Fed. Reg. 50746, 50764-65 (Aug. 21, 2000)). See also
Kornecky v. Comm 'r ofSoc. Sec., 167 F. App'x 496, 511 (6th Cir. 2006) ("[A]ccording to the
[Diagnostic and Statistical Manual's] explanation of the GAF scale, a score may have little or no
bearing on the subject's social and occupational functioning .... [W]e are not aware of any
statutory, regulatory, or other authority requiring the ALJ to put stock in a GAF score in the first
place.") (citing Howard v. Comm 'r ofSoc Sec., 276 F.3d 235, 241 (6th Cir. 2002)). The ALJ
reasonably gave more weight to the medical opinions of the consultative examining and nonexamining reviewing mental health specialists of record as to plaintiffs impairments and
21
limitations. The Court thus concludes that the ALJ did not err in finding that plaintiff's
depression was not a severe impairment.
Plaintiff further argues the ALJ erred by failing to find that her fibromyalgia was a severe
impairment. Plaintiff contends that her long history of fibromyalgia, documented complaints of
fibromyalgia-associated pain, objective findings of limited motion and trigger points, physical
therapy and medication-based treatment, and Dr. Sax's opinion that her fibromyalgia has been
progressively incapacitating support a finding that this condition is severe. The Court agrees.
The ALJ's decision states that plaintiff's fibromyalgia is a nonsevere impairment. (Tr.
19). However, the ALJ' s decision lacks any meaningful discussion of the evidence of plaintiff's
fibromyalgia showing this impairment had no more than a "minimal effect" on her ability to
work.
The evidence shows that plaintiff had a history of treatment for fibromyalgia with Dr.
Burtke, a rheumatologist, prior to commencing treatment at the Deaconess Arthritis Center in
August 2004. (Tr. 249, 421-38, 573-89). When initially seen, rheumatologist Hana Badreddine,
M.D., noted plaintiff's complaints of pain all over, including her hands, elbows, shoulders, hips,
knees, ankles, feet, lower back, and neck. (Tr. 431 ). Dr. Badreddine observed shoulder
discomfort on movement and palpation, crepitus in both knees, positive bulge sign in the right
knee, puffiness in the hands, and fibromyalgia tender points in the knee and greater trochanteric
area. (Tr. 432). Plaintiff was assessed with a history of fibromyalgia of six years duration,
osteoarthritis of the knees, and right shoulder pain related to a rotator cuff tear repair. (Tr. 43135). Dr. Badreddine prescribed Mobic and recommended aquatic therapy. Id.
22
In March 2007, plaintiff reported worsening symptoms in her hands, shoulders, and hip.
Examination revealed limited motion and positive trigger points in the neck, costochondral
junction, greater trochanteric area, gluteal area, and knees. (Tr. 429). Dr. Badreddine noted that
fibromyalgia was "still there" and increased Cymbalta and prescribed Daypro and Norflex. Id.
On examination in September 2007, plaintiff was still experiencing limitations in range of
motion due to pain in the mid-cervical spine area, right lateral rotation was limited to 40 degrees
with mild discomfort, and bending was limited to 20 degrees bilaterally. Examination also
showed osteoarthritis of the knees, fibromyalgia, and a mild Heberden node in the right second
distal interphalangeal joint, but motor strength was adequate in the major muscle groups of both
the upper and lower extremities. (Tr. 421-22).
In May 2008, Dr. Badreddine examined plaintiff and noted "[t]ender points for
fibromyalgia were positive and included neck, second costochondral junction, and greater
trochanteric region. Her hands were puffy. There was discomfort also on range of motion of the
neck." (Tr. 589). In September 2008, examination demonstrated "all the fibromyalgia points
were tender." (Tr. 583).
In addition, Dr. Sax opined that plaintiffs fibromyalgia has been progressively
incapacitating. (Tr. 733). See also Tr. 594 (Dr. Sax's notes showing "tender over hands" and
still treating with Dr. Badreddine); Tr. 596 (noting "100% +triggers" and fibromyalgia).
Despite this evidence, the ALJ made no determination as to how plaintiffs fibromyalgia
impacted her functional abilities. Given the ample objective and clinical evidence of plaintiffs
fibromyalgia, as well as Dr. Sax's opinion that plaintiffs fibromyalgia was incapacitating, the
ALJ erred by finding plaintiffs fibromyalgia is nonsevere without addressing this evidence. In
23
the absence of any meaningful discussion of the evidence of plaintiffs fibromyalgia and its
effects on plaintiffs RFC, the undersigned concludes the ALJ' s severity decision on plaintiffs
fibromyalgia is not substantially supported by the record. Accordingly, the ALJ's decision
should be remanded with instructions to the ALJ to consider the effect of plaintiffs fibromyalgia
onherRFC.
III. This matter should be reversed and remanded for further proceedings.
This matter should be reversed and remanded pursuant to Sentence Four of§ 405(g) for
further proceedings consistent with this Report & Recommendation. All essential factual issues
have not been resolved in this matter, nor does the current record adequately establish plaintiffs
entitlement to benefits as ofher amended onset date of September 1, 2006. Faucher, 17 F.3d at
176. On remand, the ALJ should: (1) reformulate plaintiffs RFC and re-evaluate the onset date
of plaintiffs disabling impairments in light of Dr. Sax's opinion that plaintiffs impairments
were disabling for twelve months preceding May 5, 2009; (2) weigh Dr. Shahbabian's June 2007
opinion that plaintiff would be unable to work for one year after her back surgery in accordance
with 20 C.P.R. § 404.1527; and (3) evaluate the evidence pertaining to plaintiffs fibromyalgia
and account for any limitations imposed by fibromyalgia in formulating plaintiffs RFC.
IT IS THEREFORE RECOMMENDED THAT:
The decision of the Commissioner be REVERSED and REMANDED for further
proceedings pursuant to Sentence Four of 42 U.S.C. § 405(g).
Date:
cu:_
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Karen L. Litkovitz
'
United States Magistrate Judge
24
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Case No. 1: 11-cv-834
Dlott, J.
Litkovitz, M.J.
ROBYN MUNDY,
Plaintiff
vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant
NOTICE TO THE PARTIES REGARDING THE FILING OF OBJECTIONS TO R&R
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum oflaw in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party's objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
25
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