Robinson v. Commissioner of Social Security
Filing
30
ORDER REVERSING THE DECISION OF THE COMMISSIONER AND REMANDING PURSUANT TO SENTENCE FOUR OF 42 U.S.C. § 405(G). Signed by Judge S. Thomas Anderson on 8/4/2016. (Anderson, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
HILDA ROBINSON,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
Case No: 1:13-cv-01274-STA-tmp
ORDER REVERSING THE DECISION OF THE COMMISSIONER AND
REMANDING PURSUANT TO SENTENCE FOUR OF 42 U.S.C. § 405(G)
__
Plaintiff Hilda Robinson filed this action to obtain judicial review of Defendant
Commissioner’s final decision denying her application for disability insurance benefits under
Title II of the Social Security Act (“Act”). Plaintiff’s application was denied initially and upon
reconsideration by the Social Security Administration. Plaintiff then requested a hearing before
an administrative law judge (“ALJ”), which was held on May 14, 2012. On July 2, 2012, the
ALJ issued a decision, finding that Plaintiff was not entitled to benefits. The Appeals Council
denied Plaintiff’s request for review, and, thus, the decision of the ALJ became the
Commissioner’s final decision.
For the reasons set forth below, the decision of the
Commissioner is REVERSED, and the action is REMANDED for additional testimony
pursuant to sentence four of 42 U.S.C. § 405(g).
Under 42 U.S.C. § 405(g), a claimant may obtain judicial review of any final decision
made by the Commissioner after a hearing to which he was a party. “The court shall have the
power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying,
1
or reversing the decision of the Commissioner of Social Security, with or without remanding the
cause for a rehearing.”1 The court’s review is limited to determining whether there is substantial
evidence to support the Commissioner’s decision,2 and whether the correct legal standards were
applied.3
Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.”4 It is “more than a mere scintilla of evidence, but less than a
preponderance.”5 The Commissioner, not the Court, is charged with the duty to weigh the
evidence, to make credibility determinations and resolve material conflicts in the testimony, and
to decide the case accordingly.6
When substantial evidence supports the Commissioner’s
determination, it is conclusive, even if substantial evidence also supports the opposite
conclusion.7 “[W]hen there is not substantial evidence to support one of the ALJ’s factual
findings and his decision therefore must be reversed, the appropriate remedy is not to award
1
42 U.S.C. § 405(g).
2
Id.
3
Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997). See also Landsaw v. Sec’y of Health &
Human Servs, 803 F.2d 211, 213 (6th Cir. 1986).
4
Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (quoting Richardson v. Perales, 402 U.S.
389 (1971)).
5
Bell v. Comm’r of Soc. Sec., 105 F.3d 244, 245 (6th Cir. 1996) (citing Consolidated Edison Co.
v. NLRB, 305 U.S. 197, 229 (1938)).
6
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997); Crum v. Sullivan, 921 F.2d
642, 644 (6th Cir. 1990); Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
7
Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004); Foster v. Halter, 279 F.3d
348, 353 (6th Cir. 2001); Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986).
2
benefits. The case can be remanded under sentence four of 42 U.S.C. § 405(g) for further
consideration.”8
Pursuant to sentence four, a district court may “enter, upon the pleadings and transcript of
the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of
Social Security, with or without remanding the cause for a rehearing.”
The court may
immediately award Plaintiff benefits “only if all essential factual issues have been resolved and
the record adequately establishes a plaintiff’s entitlement to benefits.”9 “A judicial award of
benefits is proper only where the proof of disability is overwhelming or where the proof of
disability is strong and evidence to the contrary is lacking.”10 These factors are not present in
this case, and, therefore, an immediate award of benefits is not appropriate. However, a remand
pursuant to sentence four of § 405(g) is appropriate because all essential issues have not been
resolved.
Plaintiff was born on September 14, 1957, and she has a high school education.11 She
alleges an onset date of disability of April 24, 2007, from osteoarthritis, gout, neuropathy in her
feet, colitis, hypertension, arthritis, anxiety, diarrhea, and dizziness and drowsiness from her
medications12
The ALJ enumerated the following findings: (1) Plaintiff met the insured status
requirements through December 31, 2007; (2) Plaintiff has not engaged in substantial gainful
8
Faucher v. Secretary, 17 F.3d 171, 175 (6th Cir. 1994).
9
Id. at 176 (citations omitted).
10
Id.
11
(R. 71-72, ECF No. 8-5.)
12
(Id.; R. 111, ECF No. 8-7.)
3
activity since the alleged onset date; (3) Plaintiff has a medically determinable impairment of
status post right breast cancer, but she does not have a severe impairment; (4) Plaintiff was not
under a disability as defined in the Act at any time through the date of this decision.13
The Social Security Act defines disability as the inability to engage in substantial gainful
activity.14 The claimant bears the ultimate burden of establishing an entitlement to benefits.15
The initial burden of going forward is on the claimant to show that she is disabled from engaging
in her former employment; the burden of going forward then shifts to the Commissioner to
demonstrate the existence of available employment compatible with the claimant’s disability and
background.16
The Commissioner conducts the following, five-step analysis to determine if an
individual is disabled within the meaning of the Act:
1. An individual who is engaging in substantial gainful activity will not be found to be
disabled regardless of medical findings.
2. An individual 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 an
individual 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.
4. An individual who can perform work that she has done in the past will not be found to
be disabled.
13
(R. 17, ECF No. 8-3.)
14
42 U.S.C. § 423(d)(1).
15
Born v. Sec’y of Health & Human Servs, 923 F.2d 1168, 1173 (6th Cir. 1990).
16
Id.
4
5. If an individual cannot perform his or her 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.17
Further review is not necessary if it is determined that an individual is not disabled at
any point in this sequential analysis.18 Here, the sequential analysis proceeded to the second step
with a finding that Plaintiff does not have a severe impairment.
Plaintiff contends that
substantial evidence does not support this finding, and the court finds Plaintiff’s argument to be
well-taken.
At step two, a claimant bears the initial burden of proof to demonstrate that she has a
severe impairment which is an impairment or combination of impairments which significantly
limit a claimant’s physical or mental ability to perform basic work activities without regard to
age, education, or work experience.19 In order to meet this burden, the claimant must come
forward with
medical signs and findings, established by medically acceptable clinical or
laboratory diagnostic techniques, which show the existence of a medical
impairment that results from anatomical, physiological, or psychological
abnormalities which could reasonably be expected to produce the pain or other
symptoms alleged....20
17
Willbanks v. Sec’y of Health & Human Servs, 847 F.2d 301 (6th Cir. 1988).
18
20 C.F.R. § 404.1520(a).
19
20 C.F.R. §§ 404.1520, 404.1521, 416.920, 416.921. Basic work activities encompass the
abilities and aptitudes necessary to perform most jobs, such as walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying, or handling; capacities for seeing, hearing, and speaking;
understanding, performing, and remembering simple instructions; using judgment; responding
appropriately to supervision, coworkers, and usual work situations; and dealing with changes in a
routine work situation. 20 C.F.R. §§ 404.1521, 416.921.
20
42 U.S.C. § 423(d)(5)(A); see also Younan v. Comm’r of Soc. Sec., 2012 WL 5439286 at *8
(E.D. Mich. Aug. 14, 2012) (citing Weckbacher v. Comm’r of Soc. Sec., 2012 WL 2809697 at *9
(S.D. Ohio July 10, 2012)), adopted by 2012 WL 5439280 (E.D. Mich. Nov. 7, 2012) (“In
considering whether a claimant has a severe impairment, an ALJ must not accept unsupported
medical opinions or a claimant’s subjective complaints.”)).
5
The severity requirement is used to screen out claims that are medically groundless.21 An
impairment is not severe if it is a “‘slight abnormality which has such a 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.’”22 Accordingly, if an impairment or
combination of impairments would have no more than a minimal effect on a claimant’s ability to
work, the sequential evaluation process is terminated at step two.23 “Only those claimants with
slight abnormalities that do not significantly limit any ‘basic work activity’ can be denied
benefits without undertaking [a] vocational analysis.”24
The Sixth Circuit Court of Appeals discussed the severity requirement in Long v. Apfel.25
In Higgs v. Bowen, this court declared that ‘an impairment can be
considered not severe only if it is a slight abnormality that minimally affects work
ability regardless of age, education, and experience.’ Higgs v. Bowen, 880 F.2d
860, 862 (6th Cir. 1988). The Higgs court observed that ‘this lenient interpretation
of the severity requirement in part represents the courts’ response to the
Secretary’s questionable practice in the early 1980s of using the step two
regulation to deny meritorious claims without proper vocational analysis.’ Id. But
the court also recognized that ‘Congress has approved the threshold dismissal of
claims obviously lacking medical merit....’ Id. That is, ‘the severity requirement
may still be employed as an administrative convenience to screen out claims that
are “totally groundless” solely from a medical standpoint.’ Id. at 863. Indeed, the
Higgs court approved of that practice; it affirmed dismissal because the record
contained no objective medical evidence to support Ms. Higgs’s claims of severe
21
Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988) (“[T]his appeal presents the exceptional
‘totally groundless’ claim properly dismissed on the medical evidence alone. There is nothing in
the objective medical record credibly suggesting that Mrs. Higgs was significantly affected by
any of her impairments on or before June 30, 1979.”)
22
Farris v. Secretary, 773 F.2d 85, 90 (6th Cir. 1985) (quoting Brady v. Heckler, 724 F.2d 914,
920 (11th Cir. 1984)).
23
Id.
24
Bowen v. Yuckert, 482 U.S. 137, 158–59 (1987) (O’Connor, J., concurring).
25
1 F. App’x 326 (6th Cir. 2001).
6
impairment. Particularly relevant to the case at bar, the Higgs court observed.
‘The mere diagnosis of [an ailment], of course, says nothing about the severity of
the condition.’ Id. When doctors’ reports contain no information regarding
physical limitations or the intensity, frequency, and duration of pain associated
with a condition, this court has regularly found substantial evidence to support a
finding of no severe impairment. See, e.g., id. (citing cases).
Caselaw since Higgs confirms this circuit’s practice in that respect.
Compare Maloney v. Apfel, 211 F.3d 1269 (table), No. 99-3081, 2000 WL 420700
at (6th Cir. 2000) (per curiam) (finding substantial evidence to support denial
when record indicated claimant showed symptoms and was diagnosed with
disorder but did not contain evidence of a disabling impairment that would
prevent work); and Foster v. Secretary of Health & Human Svcs., 899 F.2d 1221
(table). No. 88-1644, 1990 WL 41835 at *2 (6th Cir. 1990) (per curiam) (finding
substantial evidence to support denial when the claimant produced no evidence
regarding the frequency, intensity, and duration of arthritic pain; the record
indicated that he was no more than slightly or minimally impaired); with Burton
v. Apfel, 208 F.3d 212 (table), No. 98-4198. 2000 WL 125853 at *3 (6th Cir.
2000) (reversing finding of no severe impairment because record contained
diagnoses and remarks from a number of treating physicians and psychologists to
the effect that claimant was ‘unable to work ... due to the complexity of her health
problems’ (quoting physician)); and Childrey v. Chater, 91 F.3d 143 (table). No.
95-1353, 1996 WL 420265 at *2 (6th Cir. 1996) (per curiam) (reversing finding
of no severe impairment because record contained an assessment by a consulting
physician reflecting a variety of mental problems that left her “not yet able to
really care for herself alone,” reports of two other physicians corroborating this,
consistent testimony from the claimant, and no medical evidence to the contrary
(quoting physician)).26
The court in Long upheld the decision of the Commissioner because the record did “not contain a
single statement by a treating physician indicating that Long’s health problems result in any
specific work-impairing limitations.”27
In the present case, at step two, the ALJ determined that Plaintiff had a medically
determinable impairment - status post right breast cancer - but no severe impairment or
combination thereof. Therefore, the ALJ found that Plaintiff was not disabled. As noted by the
26
Long, 1 F. App’x 326 at 332.
27
Id.
7
Commissioner, Plaintiff had to prove that she had a severe impairment during the relevant period
from her alleged onset date through her date last insured on December 31, 2007.
To meet her burden, Plaintiff has presented evidence of the following. Plaintiff had a
bowel resection surgery for colon cancer on November 30, 1993.28 The record documents a
history of colitis from April 1996 through August 2006 and rectal abscesses.29 Plaintiff testified
that, by December 31, 2007, she was having lower digestive tract problems severe enough to
require as many as ten trips to the bathroom; she was soiling her clothing; and she had resultant
pain.30 Sometimes she “had to stop on the side of the road.”31
The Commissioner argues that there is no evidence that Plaintiff’s “digestive tract
problems … would have affected her ability to perform basic work activities during the relevant
period, particularly for twelve consecutive months.”32
While the Court is mindful that a
diagnosis does not necessarily mean a resulting disabling impairment,33 the medical record lends
support to Plaintiff’s testimony concerning her pain and gastrointestinal issues after her bowl
resection surgery. She was assessed with non-specific colitis of the ascending colon and rectum,
diverticulosis of the Ascending colon, and s/p low anterior resection for adenocarcinoma of low
28
(R. 203, ECF No. 8-9.)
29
(Id. 216.)
30
(R. 27, ECF No. 8-3.)
31
(Id.)
32
(Comm. Br., p. 5, ECF No. 20.)
33
See Higgs, 880 F.2d at 863 (“The mere diagnosis of [an impairment], of course, says nothing
about the severity of the condition.”)
8
rectal polyp as well as severe gastritis and duodenitis on April 15, 1996.34 In 2006, the notes of
treating physician Kenneth Tozer show a diagnostic impression of prepyloric ulcer and
esophageal ulcer, diverticulosis and area of colitis of the sigmoid colon as well as small anal
fissure, peptic ulcer disease and colitis with atypia on biopsy.35
The ALJ determined that Plaintiff’s “medically determinable impairment could have been
reasonably expected to produce the alleged symptoms; however, [her] statements concerning the
intensity, persistence, and limiting effects of these symptoms are not credible to the extent they
are inconsistent with finding that [she] has not severe impairment….”36 The ALJ noted that
Plaintiff had testified that, prior to December 31, 2007, she had “severe gastrointestinal problems
causing incontinence and requiring eight to ten bathroom visits every day. She had flares three
to four times a week and her medications caused drowsiness and dizziness.”37 However, the ALJ
ignored Plaintiff’s reported need for frequent bathroom breaks in the credibility analysis even
though Plaintiff's testimony concerning this was uncontroverted.
The ALJ was concerned that there was “nothing in her medical records to suggest that
she was having the symptoms alleged in her testimony between her April 24, 2007, and her
December 31, 2007, date last insured.”38 Plaintiff was diagnosed with breast cancer and had a
mastectomy on April 24, 2007, and a permanent silicone prosthesis was implanted on October 9,
34
(R. 229, ECF 8-10.)
35
(R. 209, 212, ECF No. 8-9; R. 254-255, ECF No. 8-10.)
36
(R. 16, ECF No. 8-3.)
37
(Id.)
38
(Id.)
9
2007; on February 19, 2008, Plaintiff’s right nipple was reconstructed.39 The ALJ made no
effort to clarify whether Plaintiff’s mastectomy and follow-up treatment for breast cancer during
the eight month relevant time period impacted her reporting of other symptoms to her
physicians.40
The ALJ also commented that Plaintiff “was unclear and likely uncertain about the
timeframe during which particular symptoms were present.”41
To the contrary, Plaintiff’s
attorney specifically stated that his questions concerned Plaintiff’s conditions “prior to December
31, 2007.”42
Plaintiff’s later testimony made clear that her symptoms continued beyond
December 31, 2007. She testified that she decided to file her application for disability benefits in
May 2010 because she continued to have “accidents with her stomach.”43 On remand, the ALJ
should clarify the timeframe of Plaintiff’s symptoms.
Given the de minimus standard for judging whether a claimant’s impairments are nonsevere and in light of the evidence that Plaintiff has presented concerning her impairments, the
ALJ’s step two finding that Plaintiff’s impairments are non-severe is not supported by substantial
39
(Id.)
40
See Sims v. Apfel, 530 U.S. 103, 110–11 (2000) (pointing out that, although the claimant bears
the ultimate burden of establishing that he is entitled to disability benefits, courts have
recognized that Social Security proceedings are “inquisitorial rather than adversarial,” and it is
the ALJ’s duty to investigate the facts and develop arguments both for and against granting
benefits).
41
(R. 16, ECF No. 8-3.)
42
(Id. at p. 26.)
43
(Id. at p. 34.)
10
evidence and must be reversed.44 On remand, the ALJ should determine whether Plaintiff’s
gastrointestinal problems create the need for frequent bathroom breaks, and, if so, whether that
need would impose any limitations on her ability to work.45 As noted in a similar case involving
the need for “bathroom breaks,”
Further, this Court would be remiss in not stating that the ALJ also fails to
consider the toll that Plaintiff's condition takes on his anxiety and panic attacks.
Even if Plaintiff's condition were somewhat controlled by medication, the thought
of having an “accident” in the workplace would still provoke enormous anxiety.
And, here, the medical records do not support finding that Plaintiff's condition is
anywhere near as stable as the ALJ asserts.46
Moreover, transcription errors of the hearing render it insufficient for review. Section
405(g) mandates that the Government file a transcript of the record, including the hearing, with
its answer. Inherent in this statutory requirement is the concept that the Government file an
adequate transcript.47 As noted by Plaintiff, errors in the transcript of the hearing in this case are
concerning because they occur during Plaintiff’s description of her pain and limitations from her
bowel disorder.48
The ALJ expressly rejected Plaintiff’s testimony regarding her severe
44
See Salmi v. Secretary, 774 F 2d 685, 693 (6th Cir. 1985) (An impairment is more than nonsevere only if “regardless of a claimant’s age, education, or work experience, the impairment
would not affect the claimant’s ability to work.”)
45
See Mershad v. Comm’r of Soc. Sec., 2016 WL 659307 at *12 (S.D. Ohio Feb. 18, 2016),
report and recommendation adopted, 2016 WL 1222351 (S.D. Ohio Mar. 24, 2016) (finding as
error the ALJ’s failure to include or recognize Plaintiff’s need for “unscheduled, frequent, and
lengthy trips to the restroom” in his RFC finding).
46
(Id.)
47
See, e.g., Bryant v. Astrue, 2008 WL 2018279 (E.D. Ky. May 7, 2008) (“Finally, the plaintiff
correctly notes that the court transcript has numerous notations of inaudibility during the VE’s
testimony...It is, at best, marginally acceptable in carrying the defendant's burden of showing
jobs existing in the economy which the plaintiff can perform. The decision will be remanded for
further consideration.”)
48
(R. 27, ECF No. 8-3.)
11
gastrointestinal problems (“I do not accept claimant’s testimony as an accurate description of her
symptoms during the period after her alleged onset date and before her date last insured.”).49
The Court cannot review the ALJ’s rejection of Plaintiff’s description of her symptoms when the
description is unintelligible.
In combination, these errors lead the Court to the conclusion that substantial evidence
does not support the Commissioner’s determination that Plaintiff did not have a severe
impairment. Having determined that the decision must be reversed, the court must determine
whether it is appropriate to remand this case or to direct the payment of benefits. Because the
record does not establish that Plaintiff is entitled to benefits or that all essential facts have been
resolved, it is appropriate to remand this case for further proceedings. Therefore, the decision of
the Commissioner is REVERSED, and the action is REMANDED pursuant to sentence four of
42 U.S.C. § 405(g) for another hearing consistent with this order.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: August 4, 2016.
49
(Id. 16.)
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?