Ballard v. Social Security Administration
Filing
15
REPORT AND RECOMMENDATION: For the reasons stated, the undersigned Magistrate Judge RECOMMENDS that Plaintiff's motion for judgment on the administrative record 12 be GRANTED, and that the decision of the SSA be REVERSED and the cause REMANDED for further administrative proceedings consistent with this Report. Signed by Magistrate Judge John S. Bryant on 8/2/11. (tmw)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
COOKEVILLE DIVISION
SANDRA BALLARD,
)
)
)
)
)
)
)
)
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Plaintiff,
v.
SOCIAL SECURITY ADMINISTRATION,
Defendant.
TO:
No. 2:10-0008
Judge Nixon/Bryant
The Honorable John T. Nixon, Senior Judge
REPORT AND RECOMMENDATION
This is a civil action filed pursuant to 42 U.S.C. §§ 405(g) and 1383(c), to obtain judicial
review of the final decision of the Social Security Administration (“SSA” or “the
Administration”), through its Commissioner, denying Plaintiff’s application for disability
insurance benefits (“DIB”) under Title II of the Social Security Act (“the Act”), 42 U.S.C. §§
401 through 433, and supplemental security income (“SSI”) payments under Title XVI of the
Act, 42 U.S.C. §§ 1381 through 1383f. The case is currently pending on Plaintiff’s motion for
judgment on the administrative record (Docket Entry No. 12), to which Defendant has responded
(Docket Entry No. 14). Upon consideration of these papers and the transcript of the
administrative record (Docket Entry No. 8), 1 and for the reasons given below, the undersigned
Magistrate Judge recommends that Plaintiff’s motion for judgment be GRANTED, and that the
decision of the SSA be REVERSED and the cause REMANDED for further administrative
proceedings consistent with this Report.
1
Referenced hereinafter by page number(s) following the abbreviation “Tr.”
1
I. Introduction
Plaintiff filed her DIB and SSI applications on February 21, 2006. (Tr. 13, 73-78.)
Plaintiff’s claims allege disability beginning August 19, 2003, due to a back injury and
depression. (Tr. 73-78.) Plaintiff filed prior applications for DIB and SSI on May 12, 2004,
which were denied by the Administration on initial review. (Tr. 13.) Plaintiff did not seek
reconsideration review for the prior applications. (Tr. 13.)
Plaintiff’s current claims were denied at the initial (Tr. 61-64) and reconsideration (Tr.
57-58) levels of review by the state agency, whereupon Plaintiff requested and received a
hearing before Administrative Law Judge (“ALJ”) K. Dickson Grissom (Tr. 24-28, 56). The
hearing was held on August 20, 2008, and Plaintiff appeared with counsel and gave testimony, as
did an impartial vocational expert retained by the agency. (Tr. 596-611.) At the conclusion of the
hearing, the ALJ took the matter under advisement until December 2, 2008, when he issued a
written decision finding Plaintiff not disabled. (Tr. 13-21.) The ALJ’s decision contains the
following enumerated findings:
1. The claimant meets the insured status requirements of the Social Security Act through
December 31, 2008.
2. The claimant has not engaged in substantial gainful activity since August 19, 2003, the
alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: chronic back pain and depression (20
CFR 404.1521 et seq. and 416.921 et seq.).
4. The claimant does not have an impairment or combination of impairments that meets or
medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix
1 (20 CFR 404.1525, 404.1526, 416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that the claimant
has the residual functional capacity to perform sedentary work as defined in 20 CFR
404.1567(a) and 416.967(a). The claimant is limited to occasional climbing of steps and
ramps; stooping; crouching; and crawling. She must avoid all climbing of ropes,
scaffolds, and ladders, twisting, and bending from waist to floor. The claimant requires a
2
sit/stand option at will. Due to mental difficulties, the claimant is limited to performing
simple, repetitive non-detailed tasks where coworker and public contact is casual and
infrequent, where supervision is direct and non-confrontational, and where changes in the
workplace are infrequent and gradually introduced.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and
416.965).
7. The claimant was born on November 22, 1960 and was 43 years old, which is defined as
a younger individual age 18-44, on the alleged disability onset date (20 CFR 404.1563
and 416.963).
8. The claimant has at least a high school education and is able to communicate in English
(20 CFR 404.1564 and 416.964).
9. 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 claimant has transferable job skills (See SSR 82-41 and 20 CFR Part
404, Subpart P, Appendix 2).
10. Considering the claimant’s age, education, work experience, and residual functional
capacity, there are jobs that exist in significant numbers in the national economy that the
claimant can perform (20 CFR 404.1569, 404.1569a, 416.969, and 416.969a).
11. The claimant has not been under a disability, as defined in the Social Security Act, from
August 19, 2003 through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
(Tr. 15-16, 19-20.)
On November 25, 2009, the Appeals Council denied Plaintiff’s request for review of the
ALJ’s decision (Tr. 2-4, 7), thereby rendering that decision the final decision of the
Administration. This civil action was thereafter timely filed, and the Court has jurisdiction. 42
U.S.C. §§ 405(g), 1383(c)(3). If the ALJ’s findings are supported by substantial evidence, based
on the record as a whole, then those findings are conclusive. 42 U.S.C. §§ 405(g), 1383(c)(3).
II. Review of the Record
Plaintiff was 48 years old as of the December 2, 2008, ALJ decision, which is the final
decision at issue in this case. (Tr. 73.) She attended high school until her sophomore year and
later obtained her general equivalency diploma (GED). (Tr. 469, 599.) Plaintiff previously
3
worked as a sales clerk and cashier at several retail and convenience stores. (Tr. 129.) In July
2003, Plaintiff fell at home and hurt her back. (Tr. 79.)
On August 1, 2003, Plaintiff presented to the Convenient Care Clinic complaining of
back pain. (Tr. 365.) Her examining physician observed that Plaintiff had an abnormal gait and
increased lumbar muscle spasms on the left and right. (Tr. 366.) Plaintiff also had pain to
palpation over the left sacroiliac (“SI”) joint, and range of motion of her lumbar spine elicited
pain. (Tr. 366.) Plaintiff had negative straight leg raising and side bending. (Tr. 366.) Her
examining physician diagnosed lumbar myositis, lumbar strain, SI dysfunction, lumbar disc
disease, and ilioinguinal ligament strain. (Tr. 366.) Plaintiff was advised not to bend, lift, pull, or
push. (Tr. 366.) Several days later, Plaintiff obtained an MRI scan of her lumbar spine, which
showed a Schmorl’s node involving the upper end plate of T11 and mild anterior wedging at
T11, perhaps secondary to previous trauma. (Tr. 325.)
On August 18, 2003, Plaintiff presented to the emergency department of Cookeville
Regional Medical Center complaining of radiating back pain. (Tr. 353-354.) She reported that
she had fallen several weeks prior and her pain commenced the day after she fell. (Tr. 354.) She
described burning, sharp pain, which she rated as an 8 to 9 out of 10. (Tr. 354.) Upon physical
examination, Plaintiff was non-tender and had full range of motion, but she had positive straight
leg raising on the left. (Tr. 355.)
On August 19, 2003, Plaintiff presented to Joseph A. Jestus, M.D., for evaluation of her
back and leg pain. (Tr. 324.) Plaintiff described pain in her low back that radiated to her left
anterior thigh. (Tr. 324.) She also described some paresthesias in her left anterior calf. (Tr. 324.)
Dr. Jestus noted that Plaintiff’s lumbar spine MRI scan showed a Schmorl’s node at T11 and a
far lateral left L3 disc herniation with compression on the left L3 nerve. (Tr. 324.) He also
4
observed that Plaintiff’s motor exam was significant for weakness of the left thigh, and she had
some trace weakness of the left anterior tibialis. (Tr. 324.) Dr. Jestus further observed that
Plaintiff had difficulty standing up on a step, and she had an absent left knee jerk. (Tr. 324.) He
assessed left L3 radiculopathy secondary to a far lateral left L3 disc herniation and recommended
that Plaintiff undergo left far lateral L3 diskectomy. (Tr. 324.)
On August 25, 2003, Plaintiff underwent far lateral exposure of the L3 nerve, lateral
foraminotomy over the L3 nerve, and L3 diskectomy. (Tr. 332-33.) Two days later, Plaintiff
presented to the emergency department of Cookeville Regional Medical Center complaining of
moderate pain in her left knee and leg. (Tr. 350-52.) Plaintiff reported that walking and
movement exacerbated her pain, and nothing relieved it. (Tr. 351.) On August 29, 2003, Dr.
Jestus noted that Plaintiff did well following surgery and her preoperative anterior thigh pain was
resolved. (Tr. 348.) However, he noted that Plaintiff had persistent and progressive pain in her
left anterior calf, which radiated to her left anterior thigh. (Tr. 348.) He also noted that Plaintiff’s
pain had become “quite severe.” (Tr. 348.) He diagnosed Plaintiff with sciatica and left leg pain,
which followed both an L3 and L4 nerve distribution. (Tr. 349.) He observed that Plaintiff was
neurologically intact and recommended placing her on a steroid dose pack and narcotic pain
medication. (Tr. 349.)
On September 5, 2003, Dr. Jestus noted that Plaintiff continued to have pain in her left
anterior thigh that radiated to her anterior shin. (Tr. 402.) He noted that Plaintiff’s pain seemed
more like an L4 nerve distribution, rather than an L3 distribution. (Tr. 402.) Dr. Jestus opined
that Plaintiff’s postoperative leg pain was different from her preoperative pain, and that she may
have had a new disc herniation. (Tr. 402.) He recommended observation of her pain because a
new MRI scan could have been difficult to interpret so soon after her surgery. (Tr. 402.) Two
5
weeks later, Plaintiff returned with an MRI scan of her lumbar spine that was difficult to
interpret because of her recent surgery. (Tr. 322.) Nevertheless, Dr. Jestus observed that Plaintiff
appeared to possibly have either a recurrent small disc herniation just anterior to her L3 nerve or
scar tissue formation. (Tr. 322.) He noted that although Plaintiff’s anterior thigh pain resolved,
her left anterior shin numbness had become painful. (Tr. 322.) He opined that Plaintiff’s pain
could have been caused by allodynia due to nerve injury from her disc herniation. (Tr. 322.) He
further noted that Plaintiff’s situation may have been as good as it was going to get for her, but
he also noted that it would be worthwhile to explore her wound and examine her nerve once
more. (Tr. 322.)
On September 19, 2003, Plaintiff underwent an MRI scan of her lumbosacral spine,
which showed postoperative changes on the left involving the left lateral neural foramina at L34, which may have been impinging on her exiting left L3 nerve root. (Tr. 328.) A week later, on
September 27, Plaintiff underwent re-do far lateral exposure of the left L3 nerve, left L3
diskectomy, and external neurolysis of the left L3 nerve root and L3 diskectomy utilizing an
intraoperative microscope. (Tr. 330.) Several weeks after Plaintiff’s second surgery, Dr. Jestus
observed that her pain had not improved. (Tr. 321.) He did not find this to be surprising because
he had not found a recurrent disc herniation. (Tr. 321.)
In December 2003, Dr. Jestus noted that Plaintiff was “quite miserable with pain.” (Tr.
319.) He recommended that Plaintiff undergo one more MRI scan and an EMG study, but
Plaintiff objected to the MRI scan. (Tr. 319.) He told Plaintiff that if all other alternatives failed,
he would refer her to a pain center. (Tr. 319.) Plaintiff’s EMG study showed predominantly
sensory polyneuropathy without evidence of active left L4 or L5 radiculopathy. (Tr. 326.)
Several days later, Dr. Jestus opined that Plaintiff has “quite severe” postoperative allodynia,
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which would be very hard to control. (Tr. 318.) He noted that Plaintiff would not benefit from
further surgery. (Tr. 318.)
In February 2004, Plaintiff presented to the Primary Care Pain Relief Centers (“Pain
Relief Centers”). (Tr. 314.) She complained of lower back pain that radiated to her left leg. (Tr.
314.) She described numbness and pain, which she characterized as sharp, burning, and shooting.
(Tr. 316.) She rated her pain as a 10 out of 10 at its worst and a 9 out of 10 at its best. (Tr. 316.)
She indicated that her pain was exacerbated by bending, standing, and walking, and it prevented
good sleeping, performing household chores, walking or exercising, and working. (Tr. 316.) She
indicated that lying with a pillow improved her pain. (Tr. 316.) Two months later, a progress
note from the Pain Relief Centers indicated that Plaintiff was only taking Percocet, which
provided marginal relief, because she could not afford Duragesic patches. (Tr. 307.) Overall,
Plaintiff had mildly decreased pain with increased functioning. (Tr. 307.)
In August 2004, state agency medical consultant Reeta Misra, M.D., completed a
physical residual functional capacity (“RFC”) assessment of Plaintiff. (Tr. 275-82.) Dr. Misra
opined that Plaintiff could occasionally lift and carry up to twenty pounds, and she could
frequently lift and carry up to ten pounds. (Tr. 276.) She further opined that Plaintiff could stand
at least two hours and sit about six hours in an eight-hour workday. (Tr. 276.) She also opined
that Plaintiff could occasionally climb, balance, stoop, kneel, crouch, and crawl. (Tr. 277.)
Approximately two years later, in July 2006, state agency medical consultant Robin W. Richard,
M.D., completed a physical RFC assessment and concurred with all of Dr. Misra’s medical
opinions, except that Dr. Richard opined that Plaintiff could frequently balance and she could not
ever climb ladders, ropes, or scaffolds. (Tr. 445.)
7
In October 2005, Plaintiff presented to the Baxter Medical Clinic (“Baxter”) to discuss
her depression and to commence pain management treatment at Baxter instead of Pain Relief
Centers . (Tr. 437.) Plaintiff was advised that her pain narcotics were likely aggravating her
depression. (Tr. 437.) Several weeks later, Plaintiff returned to Baxter and reported that she felt
sad, that she was experiencing low self-esteem and was overeating, that her pain was not under
control, and that she was embarrassed to go out because of a limp secondary to her pain. (Tr.
436.)
In June 2006, Plaintiff underwent an X-ray of her lumbosacral spine that showed minimal
degenerative changes in the lower lumbar spine and left SI joint. (Tr. 467.) Several days later,
Plaintiff presented to Roy Johnson, M.D., for a consultative examination. (Tr. 465.) Dr. Johnson
observed that Plaintiff had a positive toe walk, and she walked with a limp. (Tr. 466.) He also
noted that Plaintiff’s seated straight leg raise and supine straight leg raise were both positive on
the left. (Tr. 466.) Dr. Johnson opined that Plaintiff experienced low back syndrome with
radiculopathy. (Tr. 466.) He also noted that she had a history of depression. (Tr. 466.) Regarding
Plaintiff’s work-related abilities, Dr. Johnson further opined that Plaintiff could stand for two
hours in an eight-hour workday, alternating between sitting and standing as needed, but should
not lift more than five pounds occasionally. (Tr. 466.) He also opined that Plaintiff should avoid
overhead lifting and repetitive bending and twisting of the back. (Tr. 466.) He noted that Plaintiff
should not exceed any restrictions imposed by her treating physician.
On June 14, 2006, Plaintiff presented to Linda Blazina, Ph. D., a clinical psychologist, for
a consultative clinical interview and mental status examination. (Tr. 468.) Plaintiff reported
recurrent symptoms of feeling hopeless and irritable, crying spells, and lacking interest in
activities. (Tr. 469.) She also reported having difficulty concentrating and feeling depressed and
8
anxious most days. (Tr. 469.) She also described sleep and appetite problems, and stated that all
of her psychological symptoms occurred following her back injury in 2003. (Tr. 469.) She
further stated that she could care for herself independently, but needed assistance getting in and
out of the bathtub. (Tr. 471.) Dr. Blazina observed that Plaintiff walked slowly and had a
noticeable limp, that she appeared anxious and had difficulty sitting still, and that her mood
appeared dysphoric and somewhat labile. (Tr. 468-69.) Plaintiff’s reality testing did not
demonstrate any impairment, and her judgment and insight appeared intact. (Tr. 471.) Her social
behavior was appropriate throughout the evaluation, but she reported being socially isolated and
sometimes preferring to be alone. (Tr. 471.) Dr. Blazina noted that Plaintiff’s attention and
concentration skills were impaired due to her restlessness and psychological symptoms, but her
memory functioning did not appear to be impaired. (Tr. 471.) Dr. Blazina opined that Plaintiff
experienced an adjustment disorder with mixed anxiety and a depressed mood. (Tr. 472.) She
assigned Plaintiff a global assessment of functioning (“GAF”) score of 70. (Tr. 472.) She further
opined that Plaintiff’s ability to understand and remember was not limited, but her ability to
sustain concentration and persistence was mildly limited due to anxiety and depression. (Tr.
472.) She also opined that Plaintiff’s social interaction abilities were not significantly limited,
but her ability to adapt to changes in a workplace and tolerate normal workplace stress was
mildly limited due to anxiety and depression. (Tr. 472.)
On July 10, 2006, state agency medical consultant Andrew J. Phay, Ph. D., completed a
Psychiatric Review Technique Form in which he opined that Plaintiff experienced mild
restriction of daily living activities and mild difficulties maintaining concentration, persistence,
and pace. (Tr. 451-61.) He further opined that Plaintiff did not experience any difficulties in
maintaining social functioning, and she did not experience any episodes of decompensation. (Tr.
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461.) Dr. Phay determined that Plaintiff’s mental impairment was not severe, and he noted that
Plaintiff’s depression arose after her back injury. (Tr. 463.)
In November 2007, Plaintiff presented to Volunteer Behavioral Health Care System
(“Volunteer”) for treatment of her depression. (Tr. 254-57.) Plaintiff reported that she had
become impatient and more emotional with low motivation and drive. (Tr. 254.) Jerrell Killian, a
licensed professional counselor, performed a mental status examination of Plaintiff and found
that she was able to make calculations involving compound fractions. (Tr. 256.) Plaintiff had
good awareness of international and local events, and she had very good answers to judgment
questions. (Tr. 256.) She was able to recall three items after fifty minutes, and she did not
demonstrate any signs of aberrant thinking or report any experiences suggestive of hallucinations
or delusions. (Tr. 256.) Mr. Killian diagnosed dysthymic disorder, late onset, without atypical
features. (Tr. 257.) He assigned Plaintiff a GAF score of 55. (Tr. 257.) Plaintiff returned to
Volunteer one month later and Mr. Killian noted that she focused on her areas of stress, which
were primarily taking care of her grandchildren and constant pain. (Tr. 239.)
At the administrative hearing on December 12, 2008, Plaintiff testified that she was
unable to work because she could not sit or stand for long periods of time and experienced
constant pain. (Tr. 600-01.) She testified that she spends most of the day watching television,
reading, going outside, and walking “a little bit” to see her mother-in-law. (Tr. 600.) She stated
that she lost her TennCare medical assistance, and she had not taken prescribed pain medication
since 2006 because she could not afford it. (Tr. 601.) She testified that she took over-the-counter
pain medication every four hours, which provided only a small amount of relief. (Tr. 605.) She
testified that her husband was disabled, and that they helped one another to perform household
chores. (Tr. 601-02.) She also testified that she obtained treatment from Plateau Mental Health
10
Center 2 (“Plateau”) beginning in 2007, and that the treatment improved her symptoms. (Tr. 60506.) She testified that she still experienced difficulty sleeping when her pain was bad, and she
awoke about three nights each week due to pain. (Tr. 606-07.)
In response to the ALJ’s hypothetical question 3 regarding the availability of work for an
individual with Plaintiff’s RFC, age, experience, and education, an impartial vocational expert
testified that Plaintiff could not go back to any of her prior jobs, but that she could perform
repetitive, sedentary jobs, such as label cutter, cup folder, bottling line attendant, thermostat
inspector, small parts packer, and ticketing machine operator. (Tr. 608-09.) The vocation expert
testified that, of such jobs, there were 350 locally and 500,000 nationally. (Tr. 609.)
III. Conclusions of Law
A. Standard of Review
This court reviews the final decision of the SSA to determine whether than agency’s
findings of fact are supported by substantial evidence in the record and whether the correct legal
2
Volunteer is the parent organization of Plateau Mental Health Center. (Tr. 239.)
3
The ALJ presented the following hypothetical to the vocational expert:
Assume, Dr. Nadolsky, on the basis of the credible evidence that I would find this claimant[’s]
demonstrated exertional impairments would reflect residual functional capacity for a range of light work.
And I want you to also consider that I might find her with a sedentary residual functional capacity. I want
you to assume that I would find her to be limited to standing and walking no more than two hours of an
eight hour day. And, of course, in order to accomplish that she would require accommodations in the
form of a sit/stand option. And I want you to consider that option to be at will option which would allow
her to perform work either seated or standing whichever would be most comfortable at the moment.
Also assume I would find her to be precluded from no more than occasional climbing of stairs and ramps,
stooping, crouching, and crawling. She would be precluded from any climbing of ladders, ropes, and
scaffolds, or any bending, or twisting her back. I’m sorry, bending waist below or twisting her back. And
let’s consider that she would require work involving no more than simple, repetitive, non detailed tasks.
Her co-worker and public contact would be no more than casual and infrequent. Supervision would be
direct and non confrontational. And changes in the workplace infrequent and gradually introduced. Under
that hypothetical could she return to her prior job?
(Tr. 608.)
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standards were applied. Elam ex rel. Golay v. Comm’r of Soc. Sec., 348 F.3d 124, 125 (6th Cir.
2003). “Substantial evidence is defined as ‘more than a scintilla of evidence but less than a
preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)
(quoting Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)). Even if
the evidence could also support a different conclusion, the SSA’s decision must stand if
substantial evidence supports the conclusion reached. Her v. Comm’r of Soc. Sec., 203 F.3d 388,
389 (6th Cir. 1999).
B. Proceedings at the Administrative Level
The claimant has the ultimate burden to establish an entitlement to benefits by proving
his or her “inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death of which
has lasted or can be expected to last for a continuous period of not less than 12 months.” 42
U.S.C. § 423(d)(1)(A). The claimant’s “physical or mental impairment” must “result[] from
anatomical, physiological, or psychological abnormalities which are demonstrable by medically
acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3). In proceedings
before the SSA, the claimant’s case is considered under a five-step sequential evaluation process,
described by the Sixth Circuit Court of Appeals as follows:
1. A claimant who is engaging in substantial gainful activity will not be found to be
disabled regardless of medical findings.
2. A claimant who does not have a severe impairment will not be found to be disabled.
3. A finding of disability will be made without consideration of vocational factors, if a
claimant is not working and is suffering from a severe impairment which meets the
duration requirement and which meets or equals a listed impairment in Appendix 1 to
Subpart P of the Regulations. Claimants with lesser impairments proceed to step four.
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4. A claimant who can perform work that he has done in the past will not be found to be
disabled.
5. If a claimant cannot perform his past work, other factors including age, education, past
work experience and residual functional capacity must be considered to determine if
other work can be performed.
Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 539 (6th Cir. 2007) (citing, e.g., Combs v. Comm’r
of Soc. Sec., 459 F.3d 640, 642-43 (6th Cir. 2006) (en banc)); 20 C.F.R. §§ 404.1520(b)-(f),
416.920(b)-(f).
The SSA’s burden at the fifth step of the evaluation process can be carried by relying on
the medical-vocational guidelines, otherwise known as “the grids,” but only if the claimant is not
significantly limited by a nonexertional impairment, and then only when the claimant’s
characteristics identically match the characteristics of the applicable grid rule. See Wright v.
Massanari, 321 F.3d 611, 615-16 (6th Cir. 2003). Otherwise, the grids cannot be used to direct a
conclusion, but only as a guide to the disability determination. Id.; see also Moon v. Sullivan,
923 F.2d 1175, 1181 (6th Cir. 1990). In such cases where the grids do not direct a conclusion as
to the claimant’s disability, the SSA must rebut the claimant’s prima facie case by coming
forward with proof of the claimant’s individual vocational qualifications to perform specific
jobs, which is typically obtained through vocational expert testimony. See Wright, 321 F.3d at
616 (quoting Soc. Sec. Rul. 83-12, 1983 WL 31253, at *4 (S.S.A.)); see also Varley v. Sec’y of
Health & Human Servs., 820 F.2d 777, 779 (6th Cir. 1987).
In determining residual functional capacity (“RFC”) for purposes of the analysis required
at steps four and five above, the SSA is required to consider the combined effect of all the
claimant’s impairments, mental and physical, exertional and nonexertional, severe and
13
nonsevere. See 42 U.S.C. §§ 423(d)(2)(B), 423(d)(5)(B); Foster v. Bowen, 853 F.2d 483, 490
(6th Cir. 1988).
C. Plaintiff’s Statement of Errors
Plaintiff asserts two grounds for reversal of the ALJ’s decision. First, Plaintiff argues that
the ALJ failed to give adequate weight to the consultative physician, Dr. Roy Johnson, and failed
to give any reason for rejection of his assessment. Plaintiff specifically contends that the ALJ did
not properly consider Dr. Johnson’s opinion that she should be limited to lifting five pounds, that
the ALJ did not give reasons for rejecting Dr. Johnson’s opinion, and, therefore, that the ALJ’s
hypothetical question posed to the vocational expert was defective because it limited Plaintiff to
lifting ten pounds, instead of five pounds. (Docket Entry No. 13, Pl.’s Brief in Supp. at 12-13.)
As to Plaintiff’s first assignment of error, the parameters for weighing medical opinion
evidence are provided in § 404.1527 of the Administration’s regulations for DIB claims and §
416.927 for SSI claims. When the opinion of the claimant’s treating provider meets significant
opposition in the record, and a decision must be made as to which opinion(s) most accurately
describes the claimant’s condition, the regulations establish a general preference for examining
source opinions over the opinions of nonexamining sources, and among examining sources, for
those who have a treatment relationship with the claimant over those who do not. 20 C.F.R. §§
404.1527(d)(1)-(2), 416.927(d)(1)-(2). Furthermore, the regulations generally require that more
weight be given the opinion of a specialist about issues within his or her specialty than to the
opinion of a generalist. 20 C.F.R. §§ 404.1527(d)(5), 416.927(d)(5). Aside from these issues
relating to the status of the medical source, the regulations prefer those opinions that are better
explained and better supported by medical signs and laboratory findings, as well as those that are
consistent with the record as a whole. 20 C.F.R. §§ 404.1527(d)(3)-(4), 416.927(d)(3)-(4).
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Importantly, the Sixth Circuit has noted that “in all cases there remains a presumption,
albeit a rebuttable one, that the opinion of a treating physician is entitled to great deference, its
non-controlling status notwithstanding.” Rogers, 486 F.3d at 242. Accordingly, whenever the
weight of a treating source opinion is discounted, claimants are assured that they will be
provided with “good reasons” for the weight given their doctor’s opinion. 20 C.F.R. §§
404.1527(d)(2), 416.927(d)(2). The regulatory requirement of good reason-giving has been
described by the Sixth Circuit as an “important procedural safeguard” which the agency cannot
disregard in an ad hoc fashion. Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 747 (6th Cir.
2007) (quoting Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004)).
In this case, Dr. Johnson’s opinion, as the consulting physician, is not entitled to the
deference due a treating physician, but he is the only examining source in this case who provided
an opinion regarding Plaintiff’s work-related limitations. The ALJ adopted all of the restrictions
in Dr. Johnson’s opinion except the lifting restriction that would have likely eliminated sedentary
work without explaining his decision to do so. However, the Sixth Circuit has consistently held
that the requirement that an ALJ “give good reasons” for his determination of weight to be given
to an opinion only applies to the opinions of treating physicians, not examining physicians. Ealy
v. Comm’r of Soc. Sec., 594 F.3d 504, 514 (6th Cir. 2010) (citing Smith v. Comm’r of Soc. Sec.,
482 F.3d 873, 876 (6th Cir. 2007)). It was within the ALJ’s discretion to determine the weight to
be given to each opinion in determining Plaintiff’s lifting restrictions, and it appears from the
record that the ALJ gave significant weight to Dr. Johnson’s opinion while also accounting for
the less restrictive assessments of two state agency medical consultants. The undersigned finds
no error in this weighing of the objective medical proof. As such, Plaintiff’s contention that the
15
ALJ’s hypothetical question to the vocational expert was correspondingly defective is without
merit. Thus, the undersigned finds no reversible error in Plaintiff’s first claim of error.
Second, Plaintiff argues that the ALJ’s analysis of the credibility of her subjective
complaints is insufficient. Under the regulations, 20 C.F.R. §§ 404.1529(c), 416.929(c), the ALJ,
upon finding “a medically determinable impairment(s) that could reasonably be expected to
produce [the claimant’s] symptoms,” is required to then evaluate the intensity and persistence of
the symptoms by reference to the record as a whole, including both the objective medical
evidence and other evidence bearing on the severity of the claimant’s functional limitations. 20
C.F.R. §§ 404.1529(c)(1)-(3), 416.929(c)(1)-(3). There is no question that a claimant’s subjective
complaints can support a finding of disability—irrespective of the credibility of that claimant’s
statements—if they are grounded in an objectively established, underlying medical condition and
are borne out by the medical and other evidence of record. 20 C.F.R. §§ 404.1529(c)(1)-(3),
416.929(c)(1)-(3); see, e.g., Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997);
Soc. Sec. Rul. 96-7p, 1996 WL 362209, 61 Fed. Reg. 34483, at *34484-85 (describing the scope
of the analysis as including “the medical signs and laboratory findings, the individual’s own
statements about the symptoms, any statements and other information provided by treating or
examining physicians or psychologists or other persons about the symptoms and how they affect
the individual, and any other relevant evidence in the case record”; “[A] finding that an
individual’s statements are not credible, or not wholly credible, is not in itself sufficient to
establish that the individual is not disabled.”). Such “other evidence” which the ALJ is bound to
consider includes evidence of the following factors:
(i)
(ii)
(iii)
Your daily activities;
The location, duration, frequency, and intensity of your pain or other symptoms;
Precipitating and aggravating factors;
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(iv)
(v)
(vi)
(vii)
The type, dosage, effectiveness, and side effects of any medication you take or
have taken to alleviate your pain or other symptoms;
Treatment, other than medication, you receive or have received for relief of your
pain or other symptoms;
Any measures you use or have used to relieve your pain or other symptoms (e.g.,
lying flat on your back, standing for 15 to 20 minutes every hour, sleeping on a
board, etc.); and
Other factors concerning your functional limitations and restrictions due to pain
or other symptoms.
20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).
It is well established that an ALJ may properly consider the credibility of a claimant in
conjunction with his consideration of the medical and other evidence described above, and that
this credibility finding is due great weight and deference in light of the ALJ’s opportunity to
observe the claimant’s demeanor while testifying. Jones v. Comm’r of Soc. Sec., 336 F.3d 469,
476 (6th Cir. 2003). In considering the ALJ’s finding on the weight of plaintiff’s subjective
complaints, this court is “limited to evaluating whether or not the ALJ’s explanations for
partially discrediting [plaintiff] are reasonable and supported by substantial evidence in the
record.” Id.
In this case, the undersigned finds that the ALJ’s analysis of the credibility of Plaintiff’s
subjective complaints is not supported by substantial evidence. While the ALJ made brief
reference to some of the factors for consideration, he did not discuss any of them. The ALJ did
not meaningfully consider the medications that Plaintiff was taking for her “quite severe” pain.
Dr. Jestus 4 prescribed Plaintiff large doses of Neurontin and Percocet (5 mg). (Tr. 318-19.) After
Dr. Jestus determined that, despite two surgeries, there was nothing more that he could do for
Plaintiff, he sent her to the Pain Centers where her Percocet dosages were increased significantly
4
As both Plaintiff’s treating physician and a neurological specialist, Dr. Jestus’s opinion is entitled to great
deference regarding Plaintiff’s level of neurological pain. 20 C.F.R. §§ 404.1527(d)(1)-(2), 416.927(d)(1)-(2); 20
C.F.R. §§ 404.1527(d)(5), 416.927(d)(5).
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(10 mg), she continued her dosages of Neurontin, and she was additionally prescribed Duragesic
(50 mg) and Flexeril. (Tr. 313.) These large quantities of narcotic and neuropathic pain
medication tend to support Plaintiff’s subjective complaints regarding the intensity and duration
of her pain. Moreover, the record is replete with evidence of positive straight leg raise, abnormal
gait, and positive muscle spasms, which also support Plaintiff’s subjective complaints of pain.
The ALJ supported his determination that Plaintiff’s complaints were not credible based
largely on the fact that Plaintiff testified she could do light housework and that the record
contained mental health notes regarding Plaintiff’s stress over her inability to care for her
grandchildren. (Tr. 19, 184, 239, 241, 254.) However, Plaintiff gave no testimony at the hearing
regarding her activities related to being a caregiver to her grandchildren. It is not clear from the
record whether Plaintiff reported stress from being the “caregiver” for grandchildren or whether
she felt stress because she was unable to care for them, nor even whether such care giving was in
a physical or financial form. Furthermore, Plaintiff’s testimony regarding her very minimal daily
activities is hardly such relevant evidence as a reasonable mind might accept as adequate to
support the conclusion that Plaintiff’s subjective complaints were not credible. Rogers, 486 F.3d
at 248-49 (noting that such “minimal daily functions are not comparable to typical work
activities.”). Plaintiff’s abilities to manage her finances, prepare very basic meals, and walk next
door to visit her in-laws are insufficient to conclude that Plaintiff was exaggerating her claims of
pain. As such, this case should be reversed and remanded for reconsideration of Plaintiff’s role
with respect to caring for her grandchildren and for further consideration of Plaintiff’s pain
related limitations, in light of both the objective medical evidence and other evidence bearing on
the severity of her symptoms.
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In summary, the undersigned finds that Plaintiff’s first claim of error does not require
reversal. The ALJ properly considered Dr. Johnson’s opinion and was not required to give any
special deference to Dr. Johnson’s opinion. However, the undersigned finds that Plaintiff’s
second claim of error merits reversal and remand as the ALJ erred in discrediting Plaintiff’s
statements regarding the intensity and persistence of her symptoms where there was not
substantial evidence to support the ALJ’s credibility finding.
RECOMMENDATION
For the reasons stated above, the undersigned Magistrate Judge RECOMMENDS that
Plaintiff’s motion for judgment on the administrative record be GRANTED, and that the
decision of the SSA be REVERSED and the cause REMANDED for further administrative
proceedings consistent with this Report.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14)
days from service of this Report and Recommendation in which to file any written objections to
this Recommendation, with the District Court. Any party opposing said objections shall have
fourteen (14) days from receipt of any objections filed in this Report in which to file any
responses to said objections. Failure to file specific objections within fourteen (14) days of
receipt of this Report and Recommendation can constitute a waiver of further appeal of this
Recommendation. Thomas v. Arn, 474 U.S. 140 (1985); Cowherd v. Million, 380 F.3d 909, 912
(6th Cir. 2004) (en banc).
ENTERED this 2nd day of August, 2011.
s/ John S. Bryant
JOHN S. BRYANT
United States Magistrate Judge
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