Lambert v. Commissioner of Social Security Administration
Filing
18
REPORT AND RECOMMENDATION1 THAT: (1) THE ALJS NON-DISABILITY FINDING BE FOUND UNSUPPORTED BY SUBSTANTIAL EVIDENCE, AND REVERSED; (2) THIS MATTER BE REMANDED FOR AN IMMEDIATE AWARD OF WIDOWS INSURANCE BENEFITS FOR THE PRESCRIBED PERIOD BEGINNING ON OC TOBER 15, 1999 AND ENDING MAY 31, 2000; AND (3) THIS CASE BECLOSED re 2 Complaint filed by Portia Lambert.IT IS THEREFORE RECOMMENDED THAT: 1. The decision of the Commissioner be found UNSUPPORTED BY SUBSTANTIAL EVIDENCE, and REVERSED; 2. This ca se should be REMANDED FOR AN IMMEDIATE AWARD OF DISABILITY WIDOWS INSURANCE BENEFITS FOR THE PRESCRIBED PERIOD BEGINNING ON OCTOBER 15, 1999 AND ENDING MAY 31, 2000; and 3. This case be TERMINATED upon the docket of the Court. Objections to R&R due by 1/26/2012. Signed by Magistrate Judge Michael J Newman on 01/09/2012. (kf)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
PORTIA LAMBERT,
o/b/o LINDA LAMBERT,
Plaintiff,
:
Case No. 3:10-cv-435
:
:
District Judge Walter H. Rice
Magistrate Judge Michael J. Newman
vs.
:
MICHAEL J. ASTRUE,
Commissioner of the Social
Security Administration,
:
:
Defendant.
REPORT AND RECOMMENDATION1 THAT: (1) THE ALJ’S NON-DISABILITY
FINDING BE FOUND UNSUPPORTED BY SUBSTANTIAL EVIDENCE, AND
REVERSED; (2) THIS MATTER BE REMANDED FOR AN IMMEDIATE AWARD OF
WIDOW’S INSURANCE BENEFITS FOR THE PRESCRIBED PERIOD BEGINNING
ON OCTOBER 15, 1999 AND ENDING MAY 31, 2000; AND (3) THIS CASE BE
CLOSED.
This is a Social Security appeal brought pursuant to 42 U.S.C. § 405(g). At issue is whether
the Administrative Law Judge (“ALJ”) erred in finding that Linda Lambert (hereinafter “Claimant”
or “Widow”) was not disabled, and therefore unentitled to Widow’s Insurance Benefits.
This case is before the Court upon Plaintiff’s Statement of Errors (Doc. #8), the
Commissioner’s Memorandum in Opposition (Doc. #12), Plaintiff’s Reply (Doc. # 13), and the
record as a whole.
1
Attached hereto is NOTICE to the parties regarding objections to this Report and Recommendation.
I. BACKGROUND
A. Procedural History
Claimant filed her application for Widow’s Insurance Benefits in June 1999, alleging that
she was disabled due to a leaky heart valve, congestive heart failure, lung disease, asthma, a hernia,
and arthritis. Tr. 61-63, 90. Claimant’s alleged onset date of disability was October 15, 1999 -- the
date of her fiftieth birthday.2 Tr. 74, 1039. The prescribed period for benefits ended on May 31,
2000.
Following initial administrative denials of Claimant’s application, a hearing was held before
ALJ Daniel Shell (tr. 33-57), who determined in November 2001 that Claimant was not disabled.
Tr. 10-24. Thereafter, the Appeals Council denied Claimant’s request for review. Tr. 7-8.
On March 3, 2003, Claimant filed an action in this Court seeking judicial review of the
Commissioner’s decision. Lambert v. Comm’r of Soc. Sec., No. 3:03-cv-065. Subsequently, the
Court remanded the matter to the Commissioner for further administrative proceedings consistent
with its opinion entered on March 6, 2006. Id. at docs. 31, 33, 35, 36; see also tr. 522-42.
Claimant died on October 10, 2005. In order to continue pursuing this claim, Claimant’s
daughter, Portia Lambert (hereinafter “Plaintiff” or “Portia”), was substituted as Plaintiff in this
action on April 16, 2006. Tr. 558-59, 585-585A.
On remand, the Appeals Council vacated ALJ Shell’s decision and remanded the matter to
him for further proceedings consistent with the Court’s Order. Tr. 543-45. The ALJ held two
hearings: the first, on March 21, 2007, involved no testimony; the second, on April 22, 2008,
2
When she initially filed her application for Widow’s Insurance Benefits, Claimant alleged
that she had been under a “disability” since January 1, 1990. Tr. 61-63. On October 16, 2001,
Claimant amended her alleged onset of disability to October 15, 1999. Tr. 74, 1039.
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included testimony given by Portia, a medical expert, and a vocational expert. Tr. 1022-70. On
August 29, 2008, the ALJ issued an unfavorable decision. Tr. 490-99. The Appeals Council denied
Plaintiff’s request for review, tr. 482-84, thereby making the ALJ’s non-disability finding the
Commissioner’s final decision.
The ALJ’s “Findings,” which represent the rationale of the decision, were as follows:
1.
The applicant was the unmarried widow of the deceased insured
worker and attained the age of 50 as of the amended onset date. The
widow met the non-disability requirements for disabled widow's
benefits set forth in section 202(e) of the Social Security Act.
2.
The prescribed period ended on May 31, 2000.
3.
The widow did not engage in substantial gainful activity since her
amended alleged onset date (20 CFR 404.1520(b) and 404.1571
et seq.).
4.
Through May 31, 2000, the end of the proscribed period, the widow
had the severe impairments of restrictive lung disease, morbid
obesity, lumbar spine spondylolisthesis, left knee arthritis, a history
of congestive heart failure under good control, and a history of
sarcoidosis in remission (20 CFR 404.1520(c)).
5.
The widow 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).
6.
After careful consideration of the entire record, I find that during the
prescribed period the widow had the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) except for
climbing of ladders, ropes, and scaffolds, or work in high humidity
or temperature extremes, defined as less than 20 degrees or more than
75 degrees. She could have stood and/or walked for 30 minutes at a
time for a total of four hours during an eight hour day. She needed to
avoid more than occasional climbing of tamps and stairs, balancing,
stooping, and kneeling. She needed to avoid work around toxic
fumes and environmental pollutants, such as those found in paper
manufacturing or in an automotive or plastics factory.
3
7.
The widow has no past relevant work (20 CFR 404.1565).
8.
The widow was born on October 15, 1949 and was 50 years old,
which is defined as an individual closely approaching advanced age,
on the amended disability onset date (20 CFR 404.1563).
9.
The widow had a limited education and was able to communicate in
English (20 CFR 404.1564).
10.
Transferability of job skills is not an issue because the widow did not
have past relevant work (20 CFR 404.1568).
11.
Considering the widow’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that she could have performed (20
CFR 404.1560(c) and 404.1566).
12.
The widow was not under a disability, as defined in the Social
Security Act, through May 31, 2000 (20 CFR 404.1520(g)).
Tr. 493-99.
Plaintiff filed an appeal on two grounds: 1) the ALJ’s decision is unsupported by substantial
evidence, in that the ALJ erroneously rejected the opinion of Claimant’s treating physician; and 2)
the ALJ erred in his evaluation of Claimant’s pain and credibility by ignoring the effects of her
morbid obesity and her subjective symptoms such as shortness of breath.
The issue before the Court is whether the ALJ erred in finding that Claimant was not
disabled between October 15, 1999 and May 31, 2000, and therefore unentitled to Widow’s
Insurance Benefits for that period of time.
B. Claimant’s Vocational Profile and Testimony
Claimant was 50 years old on her amended disability onset date, and was therefore
considered “closely approaching advanced age.” See 20 C.F.R. § 404.1563. Claimant only
4
completed the eighth grade. Tr. 36-37. She never worked outside the home, and had no past
relevant work. Tr. 36, 91, 497.
At the administrative hearing in October 2001, Claimant testified that she suffered from
sarcoidosis, asthma, congestive heart failure, chest pain, gout, and dizziness. Tr. 37-50.
She
testified that she had been hospitalized over 100 times for her breathing problems. Tr. 40. She
claimed that she was experiencing chest pain two or three times per week, and noted that her chest
pain was more frequent than it had been in the past. Tr. 37. She also testified that using her arms
too much caused her to cough, which in turn caused her chest to hurt. Id.
Claimant testified that her scardosis and asthma “interact” with one another, stating “[i]f one
attacks, then the other one flares up.” Tr. 41. In the week prior to the hearing, Claimant was
hospitalized with bronchial asthma and arrhythmia. Tr. 38-39. Claimant testified that too much
exertion from activities such as brushing her hair, showering, and walking caused fatigue and
shortness of breath. Tr. 37, 43-46. Claimant noted that she was winded from simply walking from
the elevator to the hearing room. Tr. 43. She also claimed that she had spells of dizziness two or
three times per week because of a lack of oxygen, and that the dizziness caused her to fall on several
occasions. Tr. 48-49. Because of constant pain and swelling in her legs, Claimant testified that she
had to elevate her feet two or three times per day. Tr. 46-47. She also regularly experienced
swelling in her hands and fluid in her lungs. Tr. 43-46.
Claimant testified that she was extremely limited in her ability to do household chores.
When she washed dishes, she had to sit on a stool. Tr. 45. She was dependant upon her children
to help brush her hair, do her laundry, shop for her groceries, and maintain her property. Tr. 44-45.
5
By the time of the administrative hearing on April 22, 2008, Claimant had passed away.
Consequently, Portia testified in her mother’s place and substituted as Plaintiff in the case. See tr.
1034. Portia told the ALJ that from the late-1990’s until the time of her mother’s death -- and
particularly around the time of her fiftieth birthday -- her mother was morbidly obese, regularly short
of breath, unable to walk long distances, unable to sit for long periods of time, and often in constant
and considerable pain. Tr. 1042. Portia also testified that her mother often experienced shortness
of breath from walking, using her arms, and standing for more than a few minutes. Tr. 1043-44.
Portia testified that she or her sisters washed her mother’s hair. Id. While her mother could
do small things such as washing a few dishes, Portia or her sisters generally did the household
chores. Id. Her mother did no laundry, sweeping, mopping, or cleaning of the house, and she never
went to the grocery store. Id.
Portia further testified that she visited with her mother several hours a day during the time
period in question. Tr. 1044-45. During that time, her mother would sit, usually with her feet
elevated, and would typically only get up to go to the restroom. Tr. 1044-45. Whenever Portia or
her sister took their mother outside of the house, Claimant had to be in a wheelchair. Tr. 1045.
Portia also testified that her mother moved in with her in 2002 because “she just eventually got to
the point where she just couldn’t be alone.” Tr. 1046.
C. Medical Source Opinions
As the ALJ noted, the voluminous medical record contains 115 medical exhibits and spans
many years before (beginning in 1981) and after the pertinent time period. Claimant’s medical
history includes emergency room visits and hospitalizations for a number of ailments, including
breathing difficulties and heart-related complaints. See tr. 493.
6
In their respective briefs, the parties have sufficiently provided informative and detailed
descriptions of Claimant’s medical history, as well as the opinions of treating, reviewing, and
consultative medical sources. See doc. 8 at 4-9; doc. 12 at 2-5. Consequently, additional detailed
discussion of the record here would be unnecessarily duplicative. Rather, a general identification
of the medical sources at issue will help frame further review.
1.
Imtiaz Ahmed, M.D. (“Dr. Ahmed”) -- Primary Care Physician
Dr. Ahmed was Claimant’s primary care physician from January 1998 through February
2002. Tr. 392-414, 461-66, 634-41. In addition to handling Claimant’s general care, Dr. Ahmed
treated her for complaints of back pain, shortness of breath, and fatigue. Id. He diagnosed various
ailments including coronary artery disease (“CAD”), chronic obstructive pulmonary disease
(“COPD”), obesity, gastritis, arthritis, back pain, pedal edema, and anxiety. Id. The record further
shows that Dr. Ahmed prescribed a number of medications throughout his treatment. Id.
In October 2001, Dr. Ahmed completed a medical assessment at the request of the Social
Security Administration (“SSA”) where he reported that Claimant suffered from dyspnea (shortness
of breath), COPD, CAD, chest pain, pedal edema, and obesity. Tr. 477-81. He opined that Claimant
could lift and carry no more than ten pounds; stand and/or walk less than two hours in an eight hour
day; and be on her feet for only fifteen to twenty minutes at a time. Id. Dr. Ahmed indicated that
Claimant’s ability to sit was limited to three to four hours per day, and only one to two hours of
sitting at a time. Tr. 478. He concluded that Claimant was incapable of performing even sedentary
work on a sustained basis due to her impairments. Tr. 477-81. Dr. Ahmed further concluded that
Claimant was “totally & permanently disabled secondary to her multiple medical problems.” Tr.
481.
7
2.
Paul Boyce, M.D. (“Dr. Boyce”) -- Medical Expert
Dr. Boyce testified at the April 22, 2008 administrative hearing as SSA’s non-examining
medical expert. Tr. 1046-66. Dr. Boyce engaged in a lengthy description of the record. Tr.
1047-52. He opined that Claimant’s primary issues were problems with her heart and obesity. Tr.
1047. He noted that Claimant’s weight ranged from 250-270 pounds, which fell into the category
of “morbid obesity.” Id. Dr. Boyce noted that Claimant’s echocardiograms varied greatly regarding
the severity of her cardiac valvular disease. Tr. 1048.
Dr. Boyce testified that he did not believe Claimant to have CAD. Tr. 1053. He found no
evidence of significant COPD, and found no objective reason for Claimant’s chest pain. Id. Dr.
Boyce opined that Claimant could lift 20 pounds occasionally and 10 pounds frequently; stand/walk
30 minutes at a time for a total of 4 hours; sit an unlimited amount; avoid climbing ladders, ropes
or scaffolds; occasionally climb rams or stairs, balance, stoop, crouch and kneel; avoid temperature
extremes and humidity; and avoid toxic fumes and particulates. Tr. 1065.
II. APPLICABLE LAW
A.
Substantial Evidence Standard
The Court’s inquiry on appeal is to determine whether the ALJ’s non-disability finding is
supported by substantial evidence and if the correct legal criteria were employed by the ALJ. 42
U.S.C. § 405(g); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742,745-46 (6th Cir. 2007). Substantial
evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).
In deciding whether the
Commissioner’s findings are supported by substantial evidence, the Court must consider the record
as a whole. Hephner v. Mathews, 574 F.2d 359 (6th Cir. 1978).
8
As noted by the Sixth Circuit, “[e]ven if supported by substantial evidence, however, a
decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations
and where that error prejudices a claimant on the merits or deprives the claimant of a substantial
right.” Bowen, 478 F.3d at 746. Failure to do so will typically require reversal, notwithstanding that
the ALJ’s opinion is supported by substantial evidence. Id.
If the Commissioner’s decision is unsupported by substantial evidence, the Court must
decide whether to reverse and remand the matter for rehearing or to reverse and order benefits
granted. 42 U.S.C. § 405(g); Melkonyan v. Sullivan, 501 U.S. 89, 98 (1991).
B. Establishing the Existence of a Disability
To qualify for disabled widow’s insurance benefits, a claimant must be unmarried; between
the ages of fifty and sixty; be the spouse of a wage earner who dies fully insured; file an application
for such benefits; and be under a disability as defined in the Social Security Act. 42 U.S.C. § 402(e).
To establish disability, a claimant for disabled widow’s insurance benefits must prove that he or she
suffers from a physical or mental impairment of such severity as to prevent the claimant from
engaging in his or her previous work and, considering the claimant’s age, education, and work
experience, any other kind of substantial gainful work that exists in the national economy. 42 U.S.C.
§ 423(d)(2)(A).
Regulations promulgated by the Commissioner establish a sequential evaluation process for
disability determinations. 20 C.F.R. § 404.1520. First, the Commissioner determines whether the
individual is currently engaging in substantial gainful activity; if so, a finding of non-disability is
made and the inquiry ends. Id. Second, if the individual is not currently engaged in substantial
gainful activity, the Commissioner must determine whether the individual has a severe impairment
9
or combination of impairments; if not, then a finding of non-disability is made and the inquiry ends.
Id. Third, if the individual has a severe impairment, the Commissioner must compare it to those in
the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. If the impairment meets
or equals any within the Listings, disability is presumed and benefits are awarded. 20 C.F.R. §
404.1520(d). If a claimant suffers from an impairment which meets or equals one set forth in the
Listings, the Commissioner is to render a finding of disability without consideration of the
claimant’s age, education, and work experience. 20 C.F.R. § 404.1520(d); Kirk v. Sec’y of H.H.S.,
667 F.2d 524, 528 (6th Cir. 1981). Fourth, if the individual’s impairments do not meet or equal
those in the Listing, the Commissioner must determine whether the impairments prevent the
performance of the individual’s regular previous employment. Id. If the individual is unable to
perform the relevant past work, then a prima facie case of disability is established and the burden
of going forward with the evidence shifts to the Commissioner to show that there is work in the
national economy which the individual can perform. Lashley v. Sec’y of H.H.S., 708 F.2d 1048 (6th
Cir. 1983).
A claimant has the burden of establishing disability by a preponderance of the evidence.
Born v. Sec’y of H.H.S., 923 F.2d 1168, 1173 (6th Cir. 1990). Once a 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. Harmon v. Apfel, 168 F.3d 289, 291 (6th
Cir. 1999). To rebut a prima facie case, the Commissioner must come forward with particularized
proof of the claimant’s individual capacity to perform alternate work considering the claimant’s age,
10
education, and background, as well as the job requirements. O’Banner v. Sec’y of H.E.W., 587 F.2d
321, 323 (6th Cir. 1978).
C. Deference Accorded to Treating Physicians
It is well-established that the findings and opinions of treating physicians are entitled to
substantial deference. “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); see also Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985)
(noting “[t]he medical opinions and diagnoses of treating physicians are generally accorded
substantial deference, and if the opinions are uncontradicted, complete deference.”). Likewise, a
treating physician’s opinion is entitled to substantially greater weight than the contrary opinion of
a non-examining medical advisor. Shelman v. Heckler, 821 F.2d 316, 321 (6th Cir. 1987).
If a treating physician’s “opinion on the issue(s) of the nature and severity of [a claimant’s]
impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in [the] case,” the opinion is
entitled to controlling weight. 20 C.F.R. § 404.1527(d)(2); see also Blakley v. Comm’r of Soc. Sec.,
581 F.3d 399, 406 (6th Cir. 2009). Furthermore, “[i]f the ALJ does not accord controlling weight
to a treating physician, the ALJ must still determine how much weight is appropriate by considering
a number of factors, including the length of the treatment relationship, supportability of the opinion,
consistency of the opinion with the record as a whole, and any specialization of the treating
physician.” Blakley, 582 F.3d at 406 (citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th
Cir. 2004); 20 C.F.R. § 404.1527(d)(2)).
As noted by the Sixth Circuit, “[t]he treating physician doctrine is based on the assumption
11
that a medical professional who has dealt with a claimant and his maladies over a long period of
time will have a deeper insight into the medical condition of the claimant than will a person who has
examined a claimant but once, or who has only seen the claimant’s medical records.” Barker v.
Shalala, 40 F.3d 789, 794 (6th Cir. 1994). The Social Security regulations likewise recognize the
importance of longevity of treatment, providing that treating physicians “are likely to be the medical
professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and
may bring a unique perspective to the medical evidence that cannot be obtained from the objective
medical findings alone or from reports of individual examinations, such as consultative examinations
or brief hospitalizations.” 20 C.F.R. § 404.1527(d)(2).
Closely associated with the treating physician rule, “the regulations require the ALJ to
‘always give good reasons in [the] notice of determination or decision for the weight’ given to the
claimant’s treating source’s opinion.” Blakley, 581 F.3d at 406 (citing 20 C.F.R. § 404.1527(d)(2)).
Moreover, “[t]hose good reasons must be ‘supported by the evidence in the case record, and must
be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave
to the treating source’s medical opinion and the reasons for that weight.’” Blakley, 581 F.3d at 40607 (citing Soc.Sec.Rule 96-2p). As reasoned by the Sixth Circuit, there are several purposes
underlying the “good reasons” rule:
The requirement of reason-giving exists, in part, to let claimants understand the
disposition of their cases, particularly in situations where a claimant knows that his
physician has deemed him disabled and therefore might be especially bewildered
when told by an administrative bureaucracy that she is not, unless some reason for
the agency’s decision is supplied. The requirement also ensures that the ALJ applies
the treating physician rule and permits meaningful review of the ALJ’s application
of the rule.
Wilson, 378 F.3d at 544.
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III. OPINION AND ANALYSIS
A.
The Commissioner Has Not Complied With the Court’s March 6, 2006
Remand Order
This is the second time Claimant has filed an action with this Court based upon this same
claim for Widow’s Disability Benefits; as noted supra, the first action resulted in a remand to SSA
because of deficiencies in the ALJ’s rejection of the opinion of Claimant’s treating physician, Dr.
Ahmed, in his November 19, 2001 decision.
In the Report and Recommendation issued by Magistrate Judge Sharon L. Ovington on
January 26, 2006, the Court detailed the reasons necessitating reversal of the Commissioner’s initial
non-disability determination. Lambert v. Comm’r of Soc. Sec., No. 3:03-cv-065, doc. 31, PAGEID
116-22. The Court found that the ALJ erred as a matter of law by: (1) failing to address the level
of deference he ultimately accorded Dr. Ahmed’s opinion; (2) failing to properly weigh that opinion
according to Social Security regulations; and (3) failing to explain the reasons underlying his
decision to accord less than controlling weight to that opinion. Id. The Court reasoned:
Dr. Ahmed’s opinion was critical to Lambert’s application for Widow’s Insurance
Benefits because his opinion, if fully credited, established that Lambert was under
a disability. This is so because the Medical-Vocational Guidelines mandate the
conclusion that Lambert is under a disability due to her age (52) at the time of the
ALJ’s decision and in light of Dr. Ahmed’s opinion that she was unable to perform
sedentary work. See 20 C.F.R. Subpart P, Appendix 2, § 201.09.
Id. at PAGEID 116.
The Remand Order, signed by District Judge Walter H. Rice on March 6, 2006, fully adopted
the Report and Recommendation of Magistrate Judge Ovington:
The Report and Recommendations filed on January 26, 2006 (Doc. #31) is
ADOPTED as modified by the Supplemental Report and Recommendations filed on
February 10, 2006 (Doc. #33);
13
* * *
This matter is REMANDED to the Commissioner of the Social Security
Administration under sentence four of 42 U.S.C §405(g) for further consideration
consistent with the Report and Recommendations;
Lambert, doc. 35, PAGEID 155.
The Court’s Order unequivocally directed the Commissioner to weigh the opinion of Dr.
Ahmed in accordance with SSA’s own regulations. However, this case is now before the Court
because, in his August 29, 2008 opinion, the ALJ once again failed to properly weigh Dr. Ahmed’s
opinion under SSA regulations.
In finding that the opinion of the non-examining medical expert was entitled to greater
weight than that of Dr. Ahmed, the ALJ stated: “Using the factors mandated by 20 C.F.R. [§]
404.1527, I must give very substantial weight to the opinions of the medical expert, since he is
familiar with the disability program and has had the opportunity to review and evaluate the entire
documentary record.” Tr. 497. While the ALJ documented the level of deference he gave to the
medical expert -- and cited the appropriate regulation ALJs are to employ when evaluating opinions
of treating physicians -- no mention is made whatsoever of the amount of weight he accorded to Dr.
Ahmed’s opinion. Given the outcome of his decision, it is safe to assume that the ALJ accorded
little or no deference to Dr. Ahmed’s opinion. However, the ALJ’s decision gives no indication
whether any weight was given at all, and provides no explanation as to why less weight was given
to Dr. Ahmed’s opinion than to that of the medical expert.
In addition, the ALJ provided no analysis weighing Dr. Ahmed’s opinion under the factors
mandated by 20 C.F.R. § 404.1527 -- such as the length of the treatment relationship, supportability
of the opinion, consistency of the opinion with the record as a whole, and any specialization of the
treating physician -- before rejecting it. See 20 C.F.R. § 404.1527(d)(2); Blakley, 582 F.3d at 406.
14
Thus, any reader of his opinion would be left wondering whether the ALJ accorded some weight,
little weight, or no weight to Dr. Ahmed’s opinion, and would be clueless as the reasons underlying
the accorded level of weight. Cf. Blakley, 581 F.3d at 406-07 (citing Soc. Sec. Rule 96-2p).
Moreover, the ALJ’s handling of the Court’s Remand Order is perplexing. At the April 22,
2008 hearing, the ALJ told Plaintiff’s counsel, on the record:
The only issue that I see is the treating physician and that seems to be a theme that
we’re seeing quite a bit from the Federal Court, and quite honestly I see this as a very
interesting way of doing business that we have to get back. We’re over 1,000 cases
behind. If I deny case it takes me at least seven, eight months to get a Decision
written and out of here. I don’t see this as being anything more than an academic
exercise and that’s what we’re going to go through today.
Tr. 1041 (emphasis added). The Court did not remand this case in 2006 for an “academic exercise.”
The case was remanded because the ALJ failed to follow the Social Security regulations in analyzing
the opinion of Claimant’s treating physician. The Court’s March 6, 2006 Order clearly laid out the
errors of the Commissioner’s initial determination, as well as the steps SSA needed to take to
comply with its own regulations. However, the Court’s Order was ignored.
Furthermore, and more troubling in the Court’s view, after the ALJ’s August 2008 decision
was issued, SSA had the opportunity to remand the matter to the ALJ a third time with an explicit
instruction to follow the regulations -- and to comply with the Court’s March 6, 2006 Order -- but
chose not to do so. Therefore, the Appeals Council’s adoption of the ALJ’s August 29, 2008
opinion -- which yet again failed to properly weigh the opinion of Claimant’s treating physician -evidences SSA’s failure to comply with the Court’s March 6, 2006 Order.
15
B.
The ALJ’s Decision to Give “Very Substantial Weight” to the Medical Expert
and a Lesser, Undeterminable Amount of Weight To Claimant’s Treating
Physician is Unsupported by Substantial Evidence
The Court finds the opinion of Claimant’s treating physician, Dr. Ahmed -- regarding the
nature, severity, and resulting limitations of her impairments -- to be well-supported by medicallyacceptable clinical and laboratory diagnostic techniques, and not inconsistent with the other
substantial evidence in the record. See Blakley, 581 F.3d at 406. Based upon several grounds, the
Court finds that the decision of the ALJ to reject the opinion of Dr. Ahmed is unsupported by
substantial evidence, and further finds that the ALJ erred by not according controlling weight to the
opinion of Claimant’s treating physician. See 20 C.F.R. § 404.1527(d)(2).
First, the ALJ has deprived Claimant of her right to a fair process for more than a decade by
repeatedly ignoring the requirements of 20 C.F.R. § 404.1527 by failing to and to properly consider
the factors mandated by the regulations, and adequately explain the weight given to Dr. Ahmed’s
opinion as well as the reasons underlying the accorded weight. The Sixth Circuit has long held that
“an ALJ’s failure to follow the procedural requirement of identifying the reasons for discounting the
opinions and for explaining precisely how those reasons affected the weight given denotes a lack
of substantial evidence, even where the conclusion of the ALJ may be justified based upon the
record.” Blakley, 581 F.3d at 407 (internal citations omitted)(emphasis in original); see also Wilson,
378 F.3d at 546. Such is the case here.
Second, the ALJ’s favoring of the medical expert’s opinion -- and determination that it was
entitled to “very substantial weight” -- is tenuous at best. As noted above, the ALJ failed to comply
with the Commissioner’s regulations, which required him to evaluate the opinions of non-treating
medical experts under the same regulatory factors -- such as the supportability, consistency, and
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specialization of the medical source -- that apply to treating medical source opinions. See Soc. Sec.
Ruling (“SSR”) 96-6p, 1996 WL 374180 at *2-3 (interpreting, in part, 20 C.F.R. § 404.1527(f)).
The ALJ discussed the medical expert’s opinions, but did not analyze his opinion under the factors
mandated by the regulations. Furthermore, the ALJ’s stated reason for favoring the medical expert
over the treating physician -- i.e. that the medical expert is “familiar with the disability program,”
tr. 497 -- is hardly an acceptable basis for favoring the opinion of a non-examining physician over
a treating physician who has actively serviced a claimant’s medical needs over a number of years
and whose opinion is supported by the record.
Third, as discussed supra, although the ALJ did not analyze the nature of Dr. Ahmed’s
treatment relationship with Claimant, the supportability of his opinion, or the consistency of the
opinion with the record as a whole, the record makes clear that Dr. Ahmed was responsible for
coordinating Claimant’s care with the other specialists of record, and that he was well-aware of
Claimant’s diagnoses and treatments provided by her other health care providers. See 20 C.F.R.
§ 404.1527(d)(2); Blakley, 582 F.3d at 406. Based on his long-term treatment relationship with
Claimant, Dr. Ahmed reasonably opined that Claimant was unable perform the exertional
requirements of even sedentary work on a sustained basis. Tr. 481. This opinion was wrongly
accorded minimal or no deference by the ALJ. Dr. Ahmed’s opinion is supported by objective
medical data and is consistent with the other evidence of record.
The record shows that Claimant suffered from a number of serious medical problems for
more than a decade prior to the relevant time period in this case. Claimant was first diagnosed with
sarcoidosis in 1981. Tr. 121. In 1986, a chest x-ray showed an enlarged heart. Tr. 128. In 1992,
an echocardiogram documented a dilated left ventricle with a moderately diminished left ventricular
17
function. Tr. 133. In 1994 and 1995, Claimant was hospitalized at least three times for cellulitis.
Tr. 138-45, 146-47, 148-53, 156-57, 158-62. In August 1995, Claimant was diagnosed with CAD
and unstable angina, status post bronchial asthma and COPD, and proptosis of the left eye possibly
related to her sarcoidosis. Tr. 169-76. She was hospitalized in 1997 due to acute congestive heart
failure, primary cardiomyopathy, exogenous obesity and bronchial asthma. Tr. 134-36. An
echocardiogram at that time documented severely diminished left ventricular function. Tr. 137.
Claimant’s condition was no better during the time period immediately preceding and
following her prescribed period. For example, Dr. Ahmed’s treatment notes show elevated blood
pressure on July 13 and August 12, 1998, with bruits and lower extremity edema as well as a few
rhonchi in the lungs. Dr. Ahmed noted lower extremity edema in his records on October 6, 1998
and November 13, 2000; wheezing and rhonchi were noted in listening to her lungs on August 25
and 30, 2000. See generally tr. 392-414 , 461-66. Claimant’s obesity was well-documented
throughout Dr. Ahmed’s treatment. Id.
Other medical evidence in the record paints a similar picture. For instance, Claimant treated
with cardiologist Akber Mohammed, M.D. from 1999 through at least 2001. Tr. 415-19, 457-60.
In May 1999, an echocardiogram was abnormal, revealing a dilated left ventricle with preserved LV
systolic function; mild enlargement of the right atrium; mild aortic stenosis; trace to mild mitral
regurgitation, mild to moderate aortic insufficiency, and moderate to severe tricuspid regurgitation;
and mild pulmonary hypertension. Tr. 284.
In November, 1999, Claimant was examined by Damian M. Danopulos, M.D. (“Dr.
Danopulos”) at the request of SSA. Tr. 300-16. Examination revealed Claimant’s lungs were clear
with some diminishment in chest excursion. There was a brawny discoloration in both of Claimant’s
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lower legs. Both knees revealed painful motion with some limitation of active range of motion. Tr.
303, 309. An x-ray of the left knee showed osteoarthritis. There was marked thickening and
spurring of the patella. The lumbar spine was painful to pressure and there was some limitation in
lumbar spine motion. Dr. Danopulos performed pulmonary function studies that showed a mild
degree of restrictive lung disease without an obstructive component. He described Claimant’s
complaints of effort-related shortness of breath as “due to Pickwickian Syndrome” which was
“triggered from her morbid obesity.” Tr. 304. Dr. Danopulos concluded that Claimant’ ability to
do work related activities was restricted from all of the “objective findings” of restrictive lung
disease, first degree lumbar spine spondylolisthesis, left knee arthritis, morbid obesity, and her
history of previous sarcoidosis in remission. Tr. 305.
The medical record, as corroborated by the testimony of Portia and Claimant at the hearings,
supports Dr. Ahmed’s opinion regarding Claimant’s true functional limitations. As discussed supra,
substantial evidence is determined from the record as a whole. See Garner, 745 F.2d at 388. An
“ALJ may not select and discuss only that evidence that favors his ultimate conclusion, but must
articulate, at some minimum level, his analysis of the evidence to allow the appellate court to trace
the path of his reasoning.” Lowery v. Comm’r of Soc. Sec., 55 F. App'x 333, 339 (6th Cir. 2003)
(quoting Diaz v. Chater, 55 F.3d 300, 306 (7th Cir. 1995)). However, the ALJ’s favoring of the
medical expert’s opinion is based upon a selective review of the evidence, as well as an unsupported
rejection of Dr. Ahmed’s opinion and neglect of Claimant’s obesity.
Claimant correctly argues that the ALJ never specifically addressed the limitations caused
by her shortness of breath and obesity. SSR 02-01p, 2002 WL 34686281 (Sept. 12, 2002), explains
the Administration’s policy and protocol on the evaluation of obesity. “Obesity is a complex,
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chronic disease characterized by excessive accumulation of body fat.” Id. The Ruling recognizes
Body Mass Index (BMI) as one of the indicia of an individual’s degree of obesity. Id. BMIs of
30.0-34.9 (Level I), 35.0-39.9 (Level II), and 35.0-39.9 (Level III) represent the classification of the
degree of obesity. Id. Level III also includes BMIs above 40, and it is considered extreme obesity
because of the potential for developing obesity-related problems. Id. Under this system of
classification, Claimant was morbidly obese. When examined by Dr. Danopulos for the SSA in
November 1999, Claimant was 5’1” and weighed 251 pounds. Tr. 302.
SSR 02-01p also provides that at step two of the five step evaluation, obesity may be
considered “severe” alone or in combination with another medically determinable impairment. It
further provides that the Administration will do “an individualized assessment of the impact of
obesity on an individual’s functioning when deciding whether the impairment is severe.” SSR 0201p[6]. SSR 02-01p explains that a claimant’s obesity must be considered not only at step two of
the Commissioner’s five step evaluation process, but also at the subsequent steps. The Ruling states:
The effects of obesity may not be obvious. For example, some people with obesity
also have sleep apnea. . . . An assessment should also be made of the effect of obesity
has upon the individual’s ability to perform routine movement and necessary
physical activity within the work environment. Individuals with obesity may have
problems with the ability to sustain a function over time. . . . [O]ur RFC assessments
must consider an individual’s maximum remaining ability to do sustained work
activities in an ordinary work setting on a regular continuing basis . . . . In cases
involving obesity, fatigue may affect the individual’s physical and mental ability to
sustain work activity. This may be particularly true in cases involving sleep apnea.
The combined effects of obesity with other impairments may be greater than might
be expected without obesity. For example, someone with obesity and arthritis
affecting a weight-bearing joint may have more pain and limitation than might be
expected from arthritis alone.
SSR 02-01p. See also 20 C.F.R. § 404.1523 (explaining that if the SSA finds “a medically severe
combination of impairments, the combined impact of the impairments will be considered throughout
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the disability determination process”). In addition, SSR 02-01p is binding on all components of the
Administration. See 20 C.F.R. §402.35(b)(1); Blea v. Barnhart, 466 F.3d 903, 911 (10th Cir. 2006).
Moreover, an adjudicator must consider the impact of a claimant’s obesity on her residual functional
capacity (“RFC”). SSR 02-01p.
However, the ALJ did not assess Claimant’s obesity in the manner contemplated by SSR 0201p in his decision. Likewise, there is no indication that Claimant’s obesity received the attention
contemplated by SSR 02-01p, especially with respect to other illnesses. For example, Claimant’s
pulmonary function studies showed a “very severe” combined impairment in lung function and
obesity was suggested as the likely source of the restrictive component. Tr. 222, 231. In addition,
Dr. Danopulos, the SSA’s consulting evaluator, found Claimant’s effort-related shortness of breath
credible. Tr. 300-05. He attributed this shortness of breath to Pickwickian Syndrome “triggered
from her morbid obesity.” Tr. 304. Dr. Boyce also noted that Claimant was morbidly obese
throughout the period in question. Tr. 1047.
As her primary care physician, Dr. Ahmed treated Claimant for a number of ailments over
a period spanning four years and interacted with other physicians who provided treatment. He was
also well-aware of Plaintiff’s limitations based upon the combination of her ailments. Substantial
evidence supports Dr. Ahmed’s opinion that Plaintiff was unable to do even sedentary work over
a sustained period of time. That opinion was reasonable; supportable, given the factors mandated
by SSA regulations; corroborated by the evidence in the record and testimony at the hearings; and
entitled to greater deference than the ALJ accorded. See 20 C.F.R. § 404.1527(d)(2). Substantial
evidence simply does not support the ALJ’s rejection of Dr. Ahmed’s opinion. Nor does it support
according “very substantial weight” to the non-treating medical expert.
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Plaintiff’s arguments -- that the ALJ erroneously failed to accord appropriate deference to
Claimant’s treating physician and that the ALJ’s decision is unsupported by substantial evidence -are both well taken. In addition, given the history of this case, the ALJ’s repeated failure to accord
proper weight to Claimant’s treating physician is more than a de minimis procedural violation or
“harmless error.” See Blakley, 581 F.3d at 409; Wilson, 378 F.3d at 547. Accordingly, the Court
recommends reversal of the ALJ’s opinion.
C.
The Court Recommends An Order Of Benefits Granted
When, as here, the non-disability determination is unsupported by substantial evidence, the
Court must decide whether to reverse and remand the matter for rehearing or to reverse and order
benefits granted. The Court has authority to affirm, modify or reverse the Commissioner’s decision
“with or without remanding the cause for rehearing.” 42 U.S.C. § 405(g); Melkonyan, 501 U.S. at
100.
Generally, benefits may be awarded immediately “only if all essential factual issues have
been resolved and the record adequately establishes a plaintiff’s entitlement to benefits.” Faucher
v. Sec’y of Heath & Human Servs., 17 F.3d 171, 176 (6th Cir 1994); see also Abbott v. Sullivan, 905
F.2d 918, 927 (6th Cir. 1990). The Court may award benefits where the proof of disability is strong
and opposing evidence is lacking in substance, so that remand would merely involve the presentation
of cumulative evidence, or where the proof of disability is overwhelming. Faucher, 17 F.3d at 176;
see also Felisky, 35 F.3d at 1041. Such is the case here.
As recounted herein, the proof of disability in this case is great and yet another remand will
serve no purpose other than delay. This case has been delayed for ten years due to the ALJ’s failure
to follow SSA regulations. The Court is troubled by this delay. Pursuant to this Court’s 2006
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Remand Order, the Commissioner already had one opportunity to correct the errors that occurred
in connection with the first hearing, and has failed to do so; in fact, the ALJ committed the exact
same errors a second time. Furthermore, the medical evidence, including the opinions of Claimant’s
treating physician (which are consistent with the findings of other medical sources), compels the
conclusion that Claimant was, in fact, disabled as of the alleged onset date through May 31, 2000.
It is the Court’s view, therefore, that the record needs no further development, and more
administrative proceedings would serve no useful purpose. The opinion of Dr. Ahmed is entitled
to controlling weight as Plaintiff’s treating physician in light of the evidence discussed supra.
Given that all substantial factual issues have been resolved and the opposing evidence is severely
lacking in substance, substantial evidence supports Claimant’s claim of disability for the period
beginning October 15, 1999 and ending on May 31, 2000. See Faucher, 17 F.3d at 176.
IV. RECOMMENDATIONS
For the foregoing reasons, Plaintiff’s assignments of error are well taken. The Court finds
the ALJ’s decision is unsupported by substantial evidence, and recommends that it be reversed. The
Court also recommends that this case be remanded for an immediate award of benefits, as the record
overwhelmingly establishes Claimant’s entitlement to Widow’s Insurance Benefits for the
prescribed period beginning October 15, 1999 and ending on May 31, 2000.
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IT IS THEREFORE RECOMMENDED THAT:
1.
The decision of the Commissioner be found UNSUPPORTED BY
SUBSTANTIAL EVIDENCE, and REVERSED;
2.
This case should be REMANDED FOR AN IMMEDIATE AWARD OF
DISABILITY WIDOW’S INSURANCE BENEFITS FOR THE
PRESCRIBED PERIOD BEGINNING ON OCTOBER 15, 1999 AND
ENDING MAY 31, 2000; and
3.
This case be TERMINATED upon the docket of the Court.
s/Michael J. Newman
United States Magistrate Judge
January 9, 2012
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections
to the proposed findings and recommendations within fourteen days after being served with this
Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(e), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ. P.
5(b)(2)(B)(C), or (D) and 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 of law in support of the objections. If the Report and Recommendations are based in
whole or in part upon matters occurring of 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 fourteen days after being served with a
copy thereof. Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See United States v. Walters, 638 F. 2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140
(1985).
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