Opinion
Case No. 3:12-cv-307
11-20-2013
DORIS F. LINTON, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Judge Timothy S. Black
ORDER THAT: (1) THE ALJ'S NON-DISABILITY FINDING IS NOT
SUPPORTED BY SUBSTANTIAL EVIDENCE, AND IS REVERSED;
(2) JUDGMENT IS ENTERED IN FAVOR OF PLAINTIFF AWARDING
BENEFITS; AND (3) THIS CASE IS CLOSED
This is a Social Security disability benefits appeal. At issue is whether the administrative law judge ("ALJ") erred in finding the Plaintiff not disabled within the meaning of the Social Security Act and, therefore, unentitled to Disability Income benefits and Social Security Insurance. (See Administrative Transcript ("Tr") 842-46 (ALJ's decision)).
I.
Plaintiff Doris F. Linton protectively filed applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") on October 30, 2003, alleging disability since August 16, 2002, due to serious physical conditions including back injuries, knee injuries, and obesity, and psychological issues including depression, anxiety, and hallucinations. (Tr. 74-76, 710-12). The claims were denied initially and on reconsideration. (Tr. 44-52, 713-21). Plaintiff timely requested a hearing, and ALJ Thomas R. McNichols II held an initial hearing on August 3, 2006, and a supplemental hearing on February 23, 2007. (Tr. 53, 737A-770, 771-811). The ALJ denied the claims on June 26, 2007, finding Plaintiff could perform other work. (Tr. 20-35).
Plaintiff requested review of the ALJ's denial and filed a supporting memorandum. (Tr. 12- 15, 18-19, 723-37). The Appeals Council denied review in a decision dated October 26, 2007, making the ALJ's decision the final decision of the Commissioner. (Tr. 7-10). Plaintiff commenced this action in federal court pursuant to 42 U.S.C. §§ 405(g) and 1383 for judicial review. See Linton v. Astrue, Case No. 3:07-cv-00469 (S.D. Ohio 2007). Magistrate Judge Sharon L. Ovington filed a Report and Recommendations ("R&R") on February 9, 2009, recommending the Commissioner's decision be vacated and remanded for further proceedings. (Tr. 855-74). Judge Thomas M. Rose adopted Magistrate Judge Ovington's R&R in a decision dated March 2, 2009. (Tr. 875-76).
Specifically, Magistrate Judge Ovington recommended that the ALJ should: (1) re-evaluate the combined impact Plaintiff's severe and non-severe impairments have on her work abilities; (2) weigh the medical source opinions under the legal criteria required under the Regulations; and (3) determine anew, through the sequential evaluation procedure, whether Plaintiff was under a disability and thus eligible for DIB and SSI.
On remand, an additional hearing was held on October 14, 2009. (Tr. 1076-1122). ALJ McNichols issued a partially favorable decision on November 30, 2009. (Tr. 832-50). He found Plaintiff was disabled as of November 2, 2009, the date she turned 55. (Tr. 847-48). Plaintiff's counsel filed objections with the Appeals Council, and on August 7, 2012, the Appeals Council issued a "Partially Favorable" finding that Plaintiff has been disabled as of November 1, 2009, not November 2, 2009. (Tr. 812-31). The Appeals Council's decision was the final decision of the Commissioner. Plaintiff commenced this action in federal court pursuant to 42 U.S.C. § 405(g) and §1383 for judicial review of the Commissioner's final decision.
Plaintiff was born on November 2, 1954, and is 59 years old. (Tr. 60). She completed the tenth grade before obtaining her GED. (Tr. 840). Plaintiff last worked in August 2002. (Tr. 840). Prior to that time, Plaintiff worked a number of different jobs, including assembly worker, cashier, stock person, cook, driver, painter, and babysitter. (Tr. 95).
The ALJ's "Findings," which represent the rationale of his decision, were as follows: 1. The claimant meets the insured status requirements of the Social Security Act through March 31, 2008. 2. The claimant has not engaged in substantial gainful activity since the alleged disability onset date (20 C.F.R. 404.1571 et seq., and 416.971 et seq.). 3. Since the alleged onset date of disability, August 1, 2002, the claimant has had the following severe impairments: 1) chronic low back pain; 2) intermittent bilateral knee pain; 3) depression with anxiety; 4) obesity (20 C.F.R. 404.1520(c) and 416.920(c)). 4. Since the alleged date of disability, August 1, 2002, the claimant has not had an impairment or combination of impairments that met or medically equaled one of the listed impairments of 20 C.F.R. 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525, 404. 1526, 416.920(d), 416.925, 416.926). 5. After careful consideration of the entire record, the undersigned finds that, since August 1, 2002, the claimant has the residual functional capacity (RFC) to perform light work as defined in 20 C.F.R. 404.1537(b) and 416.967(b) subject to: 1) the opportunity to alternate between sitting and standing at 30-minute intervals; 2) no repetitive use of foot controls; 3) no work on uneven surfaces; 4) no kneeling, balancing, or climbing of ropes, ladders, or scaffolds; 5) occasional bending; 6) no exposure to irritants; 7) no exposure to hazards; 8) low stress jobs with no production quotas; 9) no requirement to maintain concentration on a single task for longer 15 minutes at a time; and 10) limited contact with co-workers and supervisors and no exposure to the general public. By definition, light work ordinarily requires the capacity to lift 10 pounds frequently and 20 pounds occasionally and to engage in a good deal of sitting, standing, or walking. 6. Since August 1, 2002, the claimant has been unable to perform any past relevant work (20 C.F.R. 404.1565 and 416.965). 7. Prior to the established disability onset date, the claimant was 47 years old and defined as a "younger individual." As of her attainment of age 50, she was classified as an individual "closely approaching advanced age." On November 2, 2009, the claimant's age category changed to an individual of "advanced age" with her attainment of age 55 (20 C.F.R. 404.1563 and 416.963). 8. The claimant has at least a high school education and is able to communicate in English, but there is no evidence that her education provides for direct entry into skilled work (20 C.F.R. 404.1564 and 416.964). 9. Prior to November 2, 2009, transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled", whether or not she has transferable job skills. Beginning on November 2, 2009, the claimant has not been able to transfer job skills to other occupations (See SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2). 10. Prior to November 2, 2009, the date the claimant's age category changed, considering her age, education, work experience, and residual functional capacity, here were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 C.F.R. 404.1569, 404.1569a, 416.969, and 416.969a). 11. Beginning on November 2, 2009, the date the claimant's age category changed, considering her age, education, work experience, and residual functional capacity, there are no jobs that exist in significant numbers in the national economy that the claimant could perform (20 CRF 416.960(c) and 416.966). 12. The claimant was not disabled prior to November 2, 2009 (20 CFR 404.1520(g) and 416.920(g)), but became disabled on that date and has continued to be disabled through the date of this decision (20 CFR 404.1520(g) and 416.920(g)). (Tr. 842-849).
In sum, the ALJ concluded that Plaintiff was not under a disability as defined by the Social Security Regulations, and therefore was not entitled to DIB. (Tr. 850).
Plaintiff's disability insurance status expired on March 31, 2008, before the established disability onset date of November 1, 2009. (Tr. 812-18).
On appeal, Plaintiff argues that: (1) the ALJ failed to give her long-time treating psychiatrist's opinion either "controlling" or "deferential" weight; (2) the treating psychiatrist's opinion is supported by objective medical evidence and is consistent with the remainder of the record; (3) the ALJ failed to give Plaintiff's long-time treating pain specialist's opinion either "controlling" or "deferential" weight; (4) the treating pain specialist's opinion is supported by objective medical evidence and is consistent with the record; and (5) the ALJ violated Social Security's Regulations and Rulings, as well as Sixth Circuit case law, regarding the evaluation of medical source opinions. The Court will address each error in turn.
II.
The Court's inquiry on appeal is to determine whether the ALJ's non-disability finding is supported by substantial evidence. 42 U.S.C. § 405(g). 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 conducting this review, the court should consider the record as a whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence supports the ALJ's denial of benefits, then that finding must be affirmed, even if substantial evidence also exists in the record to support a finding of disability. The Sixth Circuit has explains:
The Secretary's findings are not subject to reversal merely because substantial evidence exists in the record to support a different conclusion.... The substantial evidence standard presupposes that there is a 'zone of choice' within which the Secretary may proceed without interference from the courts. If the Secretary's decision is supported by substantial evidence, a reviewing court must affirm.Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994).
Plaintiff bears the ultimate burden to prove by sufficient evidence that she is entitled to disability benefits. 20 C.F.R. § 404.1512(a). That is, she must present sufficient evidence to show that, during the relevant period, she suffered an impairment, or combination of impairments, expected to last at least twelve months, that left her unable to perform any job in the national economy. 42 U.S.C. § 423(d)(1)(A).
A.
The record reflects that:
PSYCHOLOGICAL IMPAIRMENTS
Since January 2003, Plaintiff has had pain-related depression. (Tr. 422). In July 2003, Plaintiff was referred to psychologist Bill Smith, Ph.D., by her Bureau of Vocational Rehabilitation ("BVR") counselor. In his report, psychologist Smith stated that Plaintiff manifested severe psychopathology suggesting significant depression, panic attacks with agoraphobia, and psychotic symptomology, rendering her highly compromised in her ability to function on a daily basis. (Tr. 224-229). He went on to recommend that Plaintiff be seen by a psychiatrist who could further evaluate her and possibly prescribe her with medications to treat her emotional health problems. Furthermore, psychologist Smith recommended that Plaintiff not be provided with a vocational assessment and/or training in spite of her desire and willingness to return to work. (Tr. 229).
Plaintiff contacted the BVR for training, so that she could return to the workforce with occupational skills that were not beyond her physical capabilities. Psychologist Smith recommended against this course of action due to Plaintiff's mental condition. (Tr. 225 -228).
In September 2003, Plaintiff was evaluated at the Miami County Mental Health Center ("MCMHC"). (Tr. 569-573). Her GAF was measured at 45 and her reported symptoms were depression with crying spells, auditory hallucinations, shaking, difficulty participating in public activities, and difficulty breathing. (Tr. 569). Plaintiff's affect was constricted, her memory was impaired, her attitude guarded, and motor activity slowed. (Tr. 573).
A Global Assessment of Functioning ("GAF") score of 50 (41-50 inclusive) indicates "Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." Diagnostic and Statistical Manual of Mental Disorders, 34 (4th ed. 2000) ("DSM-IV").
In November 2003, Plaintiff began seeing psychotherapist Jim Moore, MS, LSW, NCC, LPC, at MCMHC. (Tr. 568). Plaintiff then saw psychiatrist Peter E. Nims, M.D., on November 18, 2003. (Tr. 571-72). In his first assessment of her condition, her symptoms were crying spells, pressure in the chest, difficult breathing, depression, anxiety, auditory hallucinations, and impaired immediate, recent, and remote memory. (Tr. 564, 571). Plaintiff continued treatment with therapist Moore, psychiatrist Nims, and began case management services in January 2004. (Tr. 554-63).
In January 2004, Plaintiff's file was reviewed by state agency psychologist, Karen S. Steiger, Ph.D. (Tr. 237-52). Dr. Steiger thought Plaintiff had a marked impairment in her ability to maintain concentration, persistence, or pace, but it was not expected to last for more than 12 months with treatment. (Tr. 247, 249).
On February 20, 2004, Plaintiff was admitted for a week to the inpatient psychiatric unit at Upper Valley Medical Center ("UVMC") with auditory hallucinations and suicidal thoughts. (Tr. 253-60). After discharge and throughout 2004, Plaintiff continued to see Dr. Nims, Mr. Moore, and a case manager. (See generally, Tr. 505-20, 524-49). In October 2004, Plaintiff's GAF was 50 and therapist Moore noted her symptoms of anxiety and depression continued "to significantly impair her ability to function." (Tr. 517).
On September 24, 2004, treating psychiatrist Dr. Nims and treating therapist Mr. Moore completed a mental functional capacity assessment. (Tr. 521-23). Plaintiff's diagnoses included: major depression with psychotic features, a panic disorder, and her highest level of adaptive functioning (GAF) in the past year was 45-50. (Tr. 521). She was extremely impaired in her ability to deal with daily work stress and demonstrate reliability; markedly impaired in her ability to follow work rules, function outside her home or function independently; she was "unable to concentrate" due to depression and hallucinations; and her prognosis was poor. (Tr. 522-23).
Throughout 2005, Plaintiff continued to see Mr. Moore and Dr. Nims at MCMHC. On March 3, 2005, Mr. Moore noted Plaintiff was extremely upset and crying. (Tr. 489). In April 2005, Plaintiff started attending a depression group, and in September she started attending a self-esteem group. (Tr. 471-85, 591-97, 655-57, 693). During 2006, Plaintiff continued to frequently attend MCMHC for mental health care. Therapist Moore regularly noted Plaintiff's mood was depressed and anxious, while her affect was flat, labile, tearful and anxious. (Tr. 636-94).
On June 6, 2006, Dr. Nims and therapist Moore completed another assessment of mental abilities. The assessment echoed their September 2004 assessment findings that Plaintiff's ability to perform many work-related mental tasks continued to be markedly or extremely impaired. (Tr. 632-635; see also, Tr. 521-23). Plaintiff remained "severely impaired in memory and function due to major depression." (Tr. 633).
Plaintiff last saw Dr. Nims on June 27, 2006; then she started receiving her medications from her family physician. (Tr. 688). She continued psychotherapy sessions with Kimberly Sneltzer, Psy.D., after Mr. Moore retired. (Tr. 683-86). In October 2006, Plaintiff's auditory hallucinations returned, making her anxious, depressed, and tearful. She was admitted for inpatient psychiatric treatment for a week. (Tr. 658-60, 678).
On November 9, 2006, Plaintiff began seeing her new treating psychiatrist, Rafay Atiq, M.D. (Tr. 669-670). Plaintiff saw Dr. Atiq monthly through April 2007, and every two months thereafter. Her symptoms fluctuated. In January 2007 she was "doing ok." (Tr. 727). In February, she was "not doing well." Dr. Atiq noted that her mood was depressed, affect constricted, and her attention/concentration impaired. (Tr. 734-37). In March, she was "doing well"; and in April she was "ok." (Tr. 727-37, 927-30, 945). However, on April 27, 2007, Dr. Atiq, completed a questionnaire that showed that Plaintiff's psychiatric symptoms included sleep disturbance, psychomotor agitation or retardation, difficulty concentrating or thinking, suicidal thoughts, and hallucinations. Plaintiff's ability to perform activities of daily living was markedly impaired, and she would frequently have deficiencies in maintaining concentration, persistence or pace. (Tr. 723-26).
Plaintiff continued individual counseling with psychologist Dr. Sneltzer. (Tr. 929-51). On August 13, 2007, Plaintiff's mood and affect were depressed; and in November, her mood and affect were anxious. (Tr. 933, 943). In December 2007, her mood was depressed, her affect was blunted and slightly anxious, and her panic attacks began to increase. (Tr. 927, 929. 930).
During 2008 thru April 2009, therapy sessions were reduced, as Plaintiff learned new coping strategies and methods to adjust and stabilize her symptoms. (Tr. 905-25). Plaintiff continued to attend regular psychiatric appointments with Dr. Atiq at MCMHC until at least her October 2009 hearing. (Tr. 905-25, 1090). At times her anxiety attacks were better (March 2008), and at others they increased, particularly when she left home (August 2008). (Tr. 916, 923).
At the October 14, 2009 hearing, Plaintiff testified that she had depression with daily crying spells, decreased concentration, and decreased stress tolerance. (Tr. 1106-07). She also has frequent anxiety attacks, making it difficult for her to leave home five-out-of-seven days. (Tr. 1089).
PHYSICAL IMPAIRMENTS
In August 2001, Plaintiff had left knee surgery to repair a torn meniscus. (Tr. 151-52). In January 2002, a lumbar spine MRI showed multi-level degenerative changes (Tr. 155-56) and a February 2002 EMG showed mild right radiculopathy. (Tr. 164). Due to these injuries, Plaintiff stopped working in August 2002. (Tr. 147-48, 186, 191-93, 1082).
Plaintiff began pain management treatment with John D Moore, III, M.D., on September 18, 2002. (Tr. 425-35). On examination, Plaintiff had difficulty staying seated; significant paraspinal tenderness; positive right leg raising; limited range of motion of the spine; and severe tailbone tenderness. (Tr. 427). An October 2002 bone scan was consistent with degenerative changes of the lumbar spine and knee joints, as well as thoracic scoliosis. (Tr. 222). Dr. Moore prescribed epidural injections, pain medications, TENS unit, therapeutic exercise, and facet blocks. (Tr. 403-45).
On August 8, 2003, Daniel Franklin, M.D., examined Plaintiff. (Tr. 230-33). He noted that Plaintiff had a limited range of motion in the lumbar spine in all planes. (Tr. 231). In October 2003, Dr. Moore noted that Plaintiff continued to show significant decreased range of motion of the lumbar spine; positive left straight leg lift; and an inability to heel and toe walk. (Tr. 411).
On March 4, 2004, Plaintiff was examined by Amita Oza, M.D. (Tr. 261-68). Dr. Oza noted tenderness along the thoracic and lumbar spine; positive right straight leg raising; limited lumbar range of motion; and valgus deformity with limited knee flexion. (Tr. 263, 266). A left knee x-ray revealed "moderate to severe osteoarthritis." (Tr. 268). That same month, a state agency physician reviewed the file and opined that Plaintiff could perform light work so long as she did not climb ladders, ropes or scaffolds, and she only occasionally climbed stairs, balanced, stooped, knelt, crouched, or crawled. (Tr. 269-74).
W. Jerry McCloud, M.D., affirmed the findings on July 26, 2004. (Tr. 274).
On October 6, 2004, Dr. Moore completed a functional capacity assessment. Plaintiff's ability to perform most work activities was significantly impaired. She needed to rest and/or lie down throughout the day; she could not sustain work activity on a full-time basis; and she would likely miss at least five days of work a month in a work setting. (Tr. 348-50). An October 21, 2004 lumbar MRI revealed a new central disc herniation at L4-5, with bilateral lateral recess stenosis; bilateral facet joint hypertrophy at L3-4 and L5-S1; and stenosis at L3-4. (Tr. 443). W. D. Leak, M.D., examined Plaintiff on October 22, 2004, and noted Plaintiff had bilateral knee valgus deformity, an antalgic, reduced lumbar range of motion, sluggish deep tendon reflexes, and vibratory and pinprick sensations were decreased on the right along the L4, L5 and S1 dermatomes. (Tr. 281).
On January 14, 2005, Charles L. Walters, M.D., examined Plaintiff and noted Plaintiff had an antalgic gait; lumbar paraspinal muscle spasms; limited lumbar range of motion; decreased right leg sensation; and hypoactive deep tendon reflexes at the knees and absent at the ankles. (Tr. 283-84). A June 2005 left knee MRI showed osteoarthritic changes with high-grade chondromalacia, as well as medial and lateral meniscus tears. (Tr. 442). On June 15, 2005, Sympathetic Sudomotor testing was consistent with right L4-S1 nerve pathology and "validates patient's pain." (Tr. 446).
Chondromalacia is abnormal softening of the cartilage of the underside the kneecap (patella) causing pain in the front of the knee (anterior knee pain). MedicineNet.com, http://www.medicinenet.com/patellofemoral_syndrome/article.htm
Sympathetic Sudomotor testing is a comprehensive assessment of sympathetic sudomotor activity (relating to the nerves that stimulate the sweat glands to activity) which is performed using a scanning device called a EDX Epi-Scan P100 Selective Tissue Conductance System.
Plaintiff continued treatment at Dr. Moore's office throughout 2006. (Tr. 285-327, 600-25). In a May 8, 2006 form, Dr. Rorrer, Dr. Moore's associate, noted Plaintiff could lift or carry up to 10 pounds, but that she could sit, stand and walk only up to one-hour during a workday, and was unemployable for at least 12 months. (Tr. 953-54).
On January 5, 2007, Plaintiff initially saw primary care physician, Robert L. McCarthy, MD, and saw him regularly through June 2009. Dr. McCarthy treated Plaintiff and made referrals to specialists for deep vein thrombosis ("DVT"), spinal stenosis (with associated chronic back pain), bilateral knee pain, anxiety, and depression. (See generally, Tr. 980-1015).
In February and July 2007, Plaintiff noticed left flank pain and blood in her urine. (Tr. 966, 1003, 1009). In August 2007, Dr. McCarthy noted he thought it was the result of Coumadin. (Tr. 1002).
A February 2007, a venous Doppler study showed a possible new clot "superimposed on an old clot." (Tr. 964-65,1011). Thereafter, Dr. McCarthy prescribed Coumadin and monitored Plaintiff's blood levels frequently. (Tr. 1016-66). She had a second left leg DVT on May 6, 2007. (Tr. 1005). In December 2007, Plaintiff's legs were "very painful." (Tr. 995). Dr. McCarthy noted lower extremity edema, left more than right. (Id).
For knee pain exacerbations Dr. McCarthy gave Plaintiff Kenalog injections. (Tr. 984, 999-1000). He prescribed Vicodin and Elavil for Plaintiff's back and knee pain. (Tr. 994, 1007). In October 2007, Plaintiff's left knee was swollen. (Tr. 999). On March 2008, her knees were "fairly bony and a little bit deformed." (Tr. 993). On April 17, 2008, Dr. McCarthy noted Plaintiff had "knotty muscles in the paraspinal area on the lower back." (Tr. 990). During a June 2009 neurological evaluation, Ahmad Anouti, MD, noted psychomotor slowing, a slight limp, and shoulder tenderness. (Tr. 979).
Kenalog is a medication which works by decreasing the body's immune response to diseases and reducing symptoms such as swelling. Web.MD.com, http://www.webmd.com/drugs/drug-9275-Kenalog+Inj.aspx?drugid=9275&drugname=Kenalog+Inj
According to his letter, Dr. Anouti thought Plaintiff had some kind of unspecified inflammatory disease. (Id.) An ESRs (sedimentation rate) test, that indirectly measures how much inflammation is in the body, were elevated in February 2007 and May 2009, as was the positive ANA (antinuclear antibody which are autoantibodies directed against components of the cell nucleus, e.g., DNA, RNA, and histones). (Tr. 1022, 1032, 1060.)
On June 18, 2009, Dr. McCarthy saw Plaintiff and noted that she had a disease that "kind of acts like fibromyalgia" noting ANA was positive, DVT of the left leg, "disc problems" with spinal stenosis, "she has anxiety, phobias, and essentially the patient is probably totally disabled." (Tr. 980).
B.
First, Plaintiff contends that the ALJ failed to give her long-time treating psychiatrist either "controlling" or "deferential" weight.
As a general rule in social security disability cases, opinions of treating doctors are given greater deference than opinions given by non-treating doctors. Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007). This rule is "commonly known as the treating physician rule." Id. (citing Soc. Sec. Rul. 96-2p, 1996 WL 374188 (July 2, 1996); Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004)).
...an opinion from a medical source who has examined a claimant is given more weight than that from a source who has not performed an examination and an opinion from a medical source who regularly treats the claimant is afforded more weight than that from a source who has examined the claimant but does not have an ongoing treatment relationship. In other words, the regulations provide progressively more rigorous tests for weighing opinions as the ties between the source of the opinion and the individual become weaker.Gayheart v. Comm'r of Soc. Sec., 710 F.3d 365, 375 (6th Cir. 2013) (internal citations omitted).
The rationale behind the treating physician rule is that, "treating physicians are 'the medical professionals most able to provide a detailed, longitudinal picture of [a claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone[.]'" Rogers, 486 F.3d at 242 (citing 20 C.F.R. § 416.927(d)(2)). The source of the opinion therefore dictates the process by which the Commissioner accords it weight. Gayheart, 710 F.3d at 376. Treating physicians' opinions must be given controlling weight if: (1) the opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques; and (2) the opinion is not inconsistent with the other substantial evidence in the record. Wilson, 378 F.3d at 544. See also 20 C.F.R. § 404.1527(c)(2).
If the ALJ decides to discount the treating physician's conclusions, he must do so based on "good reasons." Rogers, 486 F.3d at 242. Such reasons 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." Id. (citing Soc. Sec. Rul. 96-2p at *4). An ALJ's failure to explain "precisely how those reasons affected the weight accorded the opinions denotes a lack of substantial evidence, even where the conclusions of the ALJ may be justified based upon the record." Rogers, 486 F.3d at 243 (citing Snell v. Apfel, 177 F.3d 128, 134 (2nd Cir.1999)).
Even if a treating source opinion is not afforded controlling weight, it is "still entitled to deference" and must be weighed using all of the regulatory factors. Soc. Sec. Ruling 96-2p. The ALJ must determine what weight to give differing medical conclusions by applying the remaining factors listed in 20 C.F.R. § 404.1527(d). These factors include: "(1) the length of the treatment relationship and the frequency of the examination; (2) the nature and extent of the treatment relationship; (3) the supportability of the opinion, with respect to relevant evidence such as medical signs and laboratory findings; (4) the consistency of the opinion with the record as a whole; (5) the specialization of the physician rendering the opinion; and (6) any other factor raised by the applicant." Meece v. Barnhart 192 Fed. Appx. 456, 461 (6th Cir. 2006) (citing 20 C.F.R. §§ 404.1527(d) (2)-(d)(6)).
According to the ALJ, psychiatrist Peter E. Nims, M.D., received "poor marks in terms of supportability and consistency with the overall record," and therefore should not be given "controlling or deferential weight." (Tr. 847). The ALJ does not articulate exactly what weight he gave to Dr. Nims' opinions, and instead specifies that greater weight should be given to the reviewing psychological consultant Bureau of Disability Determination's ("BDD"). (Id.)
In support of this assessment, the ALJ states that Dr. Nims' "pessimistic appraisals reflect a degree of functional compromise that simply is not documented in progress notes or on clinical exams." (Tr. 846). However, this statement fails to give "good reasons" as to why Dr. Nims' opinions fail the controlling weight test. Instead, it merely touches upon the controlling weight standard in a conclusory manner and is otherwise ambiguous. It is not clear whether the "pessimistic appraisals" lacked objectivity, were incomplete, or were objective but unsupportive of the medical conclusions.
The ALJ does make an attempt at meeting the second prong of the controlling weight test by citing facts from the record. Although it is not clearly stated, the implication is that Plaintiff's ability to engage in certain activities is substantial evidence that is inconsistent with Dr. Nims' opinions. The ALJ states:
Review of the progress notes and the claimant's testimony shows that she has sufficient emotional stability to not only live independently but to baby sit a grandchild and act as a caretaker for her son. She has been able to travel away from home (and out of state) to visit her children. She takes care of household chores, cooks, and drives. This evidence does not describe a person who cannot maintain emotional equilibrium.(Tr. 847).
However, the ALJ mischaracterizes the record. For example, the ALJ cites the fact that Plaintiff was able to travel away from home (and out of state) to visit her children. What he fails to mention is that Plaintiff had not, at the time of the decision, taken such a trip in two to three years. (Tr. 1102). Nor did the ALJ establish over what time period these trips occurred, with what frequency, or even if such trips happened more than once. Furthermore, Plaintiff explains that her children are the only people whom she visits because they are the only people with whom she could rest by lying down on their couch before she makes the trip back home. (Tr. 1100).
The ALJ also notes that Plaintiff takes care of household chores, cooks, and drives. However, Plaintiff is only able to do dishes and laundry, and her adult children clean her floors, sweep, mop, and vacuum. (Tr. 841). Plaintiff's testimony indicates that her daughter takes her grocery shopping and gathers items that Plaintiff chooses while Plaintiff rides in a cart. (Tr. 1098). Moreover, what the ALJ describes as cooking is merely Plaintiff using the microwave to heat up food that has been prepared by her daughter in batches once a week. Plaintiff's need for regular help from her adult children to do basic cleaning in her home, obtain groceries, and provide meals does not constitute independent living. The ALJ's focus on isolated portions of the record, facts that are taken out of context, or facts that are off-set by other unmentioned parts of the record, are an insufficient basis for failing to give Dr. Nims' opinions controlling weight. See Gayheart, 710 F.3d at 378.
The fact that Plaintiff cared for her son and a grandchild might have been relevant if they were inconsistent with Dr. Nims' opinion that Plaintiff's ability to perform work-related mental tasks was markedly or extremely impaired. However, the ALJ's contentions do nothing to demonstrate that Plaintiff could perform these activities on a sustained basis, "which is how the functional limitations of mental impairments are to be assessed." Gayheart, 710 F.3d at 377 (citing 20 C.F.R. § 404.1520a(c)(2); 20 C.F.R. Part 404, Subpart P, Appendix 1, at 12.00 ("Social functioning refers to your capacity to interact independently, appropriately, effectively, and on a sustained basis with other individuals.")).
The ALJ further noted that "it also bears observing that the claimant's attendance in therapy was sporadic with many cancelations and no shows." (Tr. 847). "Appellant may have failed to seek psychiatric treatment for his mental condition, but it is a questionable practice to chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation." Blankenship v. Bowen, 874 F.2d 1116, 1124 (6th Cir. 1989). Indeed, one of Plaintiff's most disruptive symptoms is panic attacks, making it difficult for her of leave her home several days a week. (Tr. 1089).
"The failure to provide "good reasons" for not giving [a treating source's] opinions controlling weight hinders a meaningful review of whether the ALJ properly applied the treating-physician rule that is at the heart of the regulation." Gayheart, 710 F.3d at 377 (see also Wilson, 378 F.3d at 544).
C.
Next, Plaintiff contends that Dr. Nims' opinion is supported by objective medical evidence and is consistent with the record.
Dr. Nims treated Plaintiff from November 2003 to June 2006. He consistently found Plaintiff to have depression and anxiety, to display psychotic features, including auditory hallucinations, and to show an extremely low or impaired capacity to function. Dr. Nims' opinion that Plaintiff could not work on a sustained basis in the competitive work environment is well-supported by medically acceptable clinical and laboratory diagnostic techniques, is consistent with the record, and is thus given controlling weight.
In 2003, Dr. Nims' opinions reflected those of psychologist Smith, who stated that Plaintiff manifested severe psychopathology, depression, panic attacks with agoraphobia, and psychotic symptomology. (Tr. 225-29). Smith also doubted Plaintiff's ability to function on a daily basis and recommended that she not be provided with the vocational assessment and/or training that she requested. (Tr. 229). Also in 2003, MCMHC's assessment of Plaintiff showed a GAF score of 45, and symptoms of depression with crying spells, auditory hallucinations, shaking, difficulty participating in public activities, and difficulty breathing. (Tr. 569-73). This foreshadowed Dr. Nims' first assessment of Plaintiff a month later, when he observed crying spells, pressure in the chest, difficult breathing, depression, auditory hallucinations, and impaired immediate, recent and remote memory. (Tr. 564, 571).
Most notably, in 2004, Plaintiff was admitted for a week to the inpatient psychiatric unit at UVMC with auditory hallucinations and suicidal thoughts. (Tr. 25360). Consistent with this occurrence and throughout her treatment that year, Dr. Nims found that Plaintiff's symptoms included major depression with psychotic features, panic disorder, and her highest level of adaptive functioning (GAF) for that year was 45-50. (See generally, Tr. 505-20, 524-49).
Throughout 2005 and 2006, Plaintiff continued to receive treatment from Dr. Nims and he noted largely the same symptoms: crying spells, depression, and anxiety. (Tr. 489). Confirming these continuing issues, Plaintiff attempted to alleviate these symptoms by attending a depression group and a self-esteem group. (Tr. 471-85, 591-97, 655-57, 693). Dr. Nims' final 2006 assessment echoed his 2004 assessment that Plaintiff's ability to perform many work-related mental tasks continued to be markedly or extremely impaired. (Tr. 632-635; see also, Tr. 521-23). Plaintiff "remains severely impaired in memory and function due to major depression." Dr. Nims' opinions were further validated in October 2006, when Plaintiff's auditory hallucinations returned necessitating a second week-long inpatient psychiatric treatment. (Tr. 658-60, 678).
In late 2006 and throughout 2007, Dr. Atiq further substantiated Dr. Nims' opinions. Dr. Atiq noted Plaintiff would "do okay" for a month to two months interspersed with longer periods wherein her mood was depressed, affect constricted, and her attention and concentration were impaired. (Tr. 727-37, 927-30, 945).
At the October 14, 2009 hearing, Plaintiff testified that she had depression with daily crying spells, decreased concentration, and decreased stress tolerance. (Tr. 1106-07). She also has frequent anxiety attacks, making it difficult for her to leave home five-out-of-seven days. (Id.)
Dr. Nims' opinion that Plaintiff is disabled due to psychological impairments is consistent with the examining mental health specialist, Dr. Smith, and the other treating mental health specialists, Dr. Atiq, therapist Moore, and Dr. Sneltzer. The opinion is also consistent with Plaintiff's extensive mental health treatment that included medication management and psychiatric care from November 2003 onward, individual psychotherapy from November 2003 through August 2009, group psychotherapy from May 2005 thru May 2006, case management services from January 2004 through April 2005, and two psychiatric hospitalizations.
In January 2004, Dr. Steiger opined that Plaintiff's mental health symptoms were not expected to last for more than 12 months with treatment. The ALJ relied on that assessment to refute the treating source's opinion, bluntly asserting that Dr. Steiger's opinion was more accurate. (Tr. 847). However, "it is clearly established law that the opinion of a non-treating 'one-shot' consultative physician or of a medical advisor cannot constitute substantial evidence to overcome the properly supported opinion of a physician who has treated a claimant over a period of years." Daniels v. Comm'r of Soc. Sec., No. 1:08cv52, 2009 U.S. Dist. LEXIS 44140 at *7 (S.D. Ohio Mar. 16, 2009) (citing Lashley v. Sec'y of Health & Human Services, 708 F.2d 1048, 1054 (6th Cir.1983)).
Therefore, based on the record, there is no basis upon which Dr. Nims' opinions should have been accorded less then controlling weight.
Accordingly, the Court need not address whether Dr. Nims' opinions should be given deferential weight or what weight to give other mental health sources. See Gayheart, 710 F.3d at 376.
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D.
For her third error, Plaintiff contends that the ALJ failed to give her long-time treating pain specialist either "controlling" or "deferential" weight.
According to the ALJ, treating pain management specialist, Dr. John Moore, received "poor marks, and his opinion is given no controlling or deferential weight." (Tr. 846). The ALJ manages to propose "good reasons" for his opinion: (1) "Dr. Moore gave no medical explanation for these rather extreme functional limitations"; and (2) "[t]he drastic limitations are not consistent with the degree of severity described by objective medical findings, nor compatible with the conservative treatment history." (Id.) However, the ALJ fails to support his good reasons with evidence that is "sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion..." Gayheart, 710 F.3d at 376 citing Soc. Sec. Rul. No. 96-2p, 1996 WL 374188, at *5 (Soc. Sec. Admin. July 2, 1996). The only evidence that the ALJ notes in his assessment is that Plaintiff was weaned off of strong narcotic medication. (Tr. 846). The ALJ makes no attempt to analyze Dr. Moore's reports to demonstrate that Dr. Moore indeed gave no explanation for Plaintiff's limitations, nor did he compare Dr. Moore's opinions to the objective medical findings or her treatment history. He does state that he gave Dr. Moore "little weight," but he fails to offer evidence sufficiently specific to make clear why he did so. An ALJ's failure to explain "precisely how those reasons affected the weight accorded the opinions denotes a lack of substantial evidence, even where the conclusions of the ALJ may be justified based upon the record." Rogers, 486 F.3d at 243 (citing Snell v. Apfel, 177 F.3d 128, 134 (2nd Cir.1999)).
The Court further considers what weight to give the opinions of non-treating physicians, specifically reviewing physicians. Only if a treating-source is not deemed controlling, does the Commissioner weigh non-treating and non-examining sources based on the examining relationships (or lack thereof), specialization, and supportability. Gayheart, 710 F.3d at 376 (citing 20 C.F.R. § 404.1527(c)). Furthermore, even if the Commissioner considers the non-treating and non-examining source opinions based on the foregoing factors, these opinions are never assessed for controlling weight. (Id).
The ALJ found that greater weight should be given to the BDD's reviewing medical consultants. (Tr. 846). Notwithstanding the label of "greater weight" or "considerable weight" (Tr. 845), as a practical matter, it is clear that the reviewing medical consultants were given "controlling weight" by the ALJ. The ALJ improperly utilizes the BDD's reviewing medical consultants' opinions to the exclusion of the examining and treating physicians in making his determination that Plaintiff has the residual functional capacity to perform light work. (Tr. 845).
The ALJ erred in failing to give sufficiently specific evidence to support his reasons as to why Dr. Moore should not be given controlling weight; and he further erred in the improper assignment of controlling weight to reviewing medical consultants.
E.
In her fourth assignment of error, Plaintiff contends that the ALJ erred in rejecting the opinion of the treating pain specialist because it is supported by objective medical evidence and is consistent with the record.
Plaintiff's long-time treating pain specialist, John D. Moore, III, M.D., found Plaintiff was disabled. At his initial September 2002 examination, Dr. Moore noted that Plaintiff had significant paraspinal tenderness, positive right leg raising, limited range of motion of the spine, and severe tailbone tenderness. (Tr. 427). In October 2003, Dr. Moore noted that "physical exam continues to show significant decreased range of motion" of lumbar spine; positive left straight leg lifts; and an inability to heel and toe walk. (Tr. 411). In July 2004, Dr. Moore concluded, "it is my opinion that she is totally disabled at this time." (Tr. 373). Dr. Moore completed a functional capacity assessment on October 6, 2004. He found Plaintiff's ability to perform most work activities was significantly impaired. She needed to rest and/or lie down throughout the day; she could not sustain competitive work; and she would likely miss at least five days. (Tr. 348-50).
Other examining source findings support Dr. Moore's opinion. In August 2003, Dr. Daniel Franklin noted Plaintiff's lumbar range of motion was limited. (Tr. 231). State agency examining physician, Dr. Oza, noted tenderness along the thoracic and lumbar spine; positive right straight leg raising; limited lumbar range of motion; and valgus deformity with limited knee flexion. (Tr. 263, 266). In October 22, 2004, Dr. W. D. Leak's examination revealed that Plaintiff had bilateral knee valgus deformity, reduced lumbar range of motion, sluggish deep tendon reflexes, and vibratory and pinprick sensations were decreased on the right along the L4, L5 and S1 dermatomes. (Tr. 281). At his 2005 examination, Dr. Walters noted that Plaintiff had an antalgic gait; lumbar paraspinal muscle spasms; limited lumbar range of motion; decreased right leg sensation; and deep tendon reflexes were hypoactive at the knees and absent at the ankles. (Tr. 283-84). Treating primary care physician, Dr. McCarthy, found Plaintiff's knees were "fairly bony and a little bit deformed" in March 2008 and that she had "knotty muscles in the paraspinal area on the lower back," in April 2008. (Tr. 990, 993). On June 17, 2009, examining neurologist, Dr. Ahmad Anouti, noted psychomotor slowing. (Tr. 979).
Dr. Moore's opinions are also supported by diagnostic tests. A January 2002 lumbar spine MRI showed multi-level degenerative changes. (Tr. 155-56). A February 2002 EMG showed mild right radiculopathy; the next month a bone scan revealed "probable" degenerative changes of the lumbar spine and knee joints, and scoliosis. (Tr. 164, 222). A March 2004 left knee x-ray revealed "moderate to severe osteoarthritis." (Tr. 268). An October 2004 MRI revealed a new central disc herniation at L4-5, with bilateral lateral recess stenosis; bilateral facet joint hypertrophy at L3-4 and L5-S1; and stenosis at L3-4. (Tr. 443). A June 2005 left knee MRI showed osteoarthritic changes as well as meniscus tears. (Tr. 442). A June 15, 2005 Sympathetic Sudomotor testing was consistent with right L4-S1 nerve pathology and "validates patient's pain." (Tr. 446).
Additionally, Dr. Moore's opinion is consistent with subsequent treating pain specialist Rorrer's May 2006 opinion that Plaintiff could only sit, stand, or walk up to one-hour total during a workday, and was unemployable for at least 12 months. (Tr. 953-54). More recently, on June 18, 2009, Dr. Robert McCarthy, Plaintiff's primary care physician, noted that Plaintiff had a disease that "kind of acts like fibromyalgia" (pointing to a positive ANA), DVT of the left leg, "disc problems" with spinal stenosis, anxiety, and that "essentially the patient is probably totally disabled." (Tr. 980).
Dr. Moore's opinion that Plaintiff could not work on a sustained basis in the competitive work environment is well-supported by medically acceptable clinical and laboratory diagnostic techniques, is not inconsistent with the other substantial evidence in the record, and should have be given controlling weight.
F.
In the final assignment of error, Plaintiff contends that the ALJ violated Social Security's Regulations and Rulings, as well as Sixth Circuit case law, regarding evaluation of medical source opinions.
The ALJ's failure to produce "good reasons" as to why the treating physician should not be given controlling weight was not harmless error. An error is harmless when the proper use of legal standards and procedure would have resulted in the same outcome as that produced in spite of the presence of the error. See Heston v. Comm'r of Soc. Sec., 245 F.3d 528 (6th Cir. 2001). Moreover, the ALJ's error cannot be deemed harmless when the treating physician's opinion should have been given controlling weight, and that assignment of controlling weight would have resulted in a finding of disability. The ALJ's error substantially prejudiced Plaintiff resulting in the wrongful denial of benefits, and it is therefore not harmless. See Wilson, 378 F.3d at 547. The vocational expert testified that if Plaintiff were limited as described by treating psychiatrist Nims and treating therapist Moore, competitive employment would be precluded. (Tr. 1119).
III.
When, as here, the non-disability determination is not supported 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 v. Sullivan, 501 U.S. 89, 100, 111 (1991).
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 Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994); see also Abbott v. Sullivan, 905 F.2d. 918, 927 (6th Cir. 1990); Varley v. Sec'y of Health & Human Servs., 820 F.2d 777, 782 (6th Cir. 1987).
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; Mowery v. Heckler, 772 F.2d 966, 973 (6th Cir. 1985). Such is the case here.
Here, remand would simply result in the presentation of cumulative evidence and would serve no purpose other than delay. As fully recited here, in view of the extensive medical record of evidence of disability, and the credible and controlling findings of Drs. Nims and Moore, the ALJ failed to meet its burden of finding substantial evidence that Plaintiff is able to engage in substantial gainful activity. Here, instead, proof of disability is overwhelming.
IT IS THEREFORE ORDERED THAT:
The decision of the Commissioner, that Doris Linton was not entitled to disability insurance benefits and supplemental security income beginning August 16, 2002 is hereby found to be NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, and it is REVERSED; and this matter is REMANDED to the ALJ for an immediate award of DIB benefits, beginning on August 16, 2002 and ending on March 31, 2008, and of SSI benefits, beginning on August 16, 2002 and ending on October 31, 2009. The Clerk shall enter judgment accordingly, and this case is CLOSED.
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Timothy S. Black
United States District Judge