RAY KENT, Magistrate Judge.
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security Administration (Commissioner) which denied his claim for disability insurance benefits (DIB).
Plaintiff alleged a disability onset date of January 2, 2009. PageID.831. Plaintiff identified his disabling conditions as a learning disability and problems with his back, lungs and bowel. PageID.836. Prior to applying for DIB, plaintiff completed the 9th grade, and had past employment as a foam gun operator and general laborer. PageID.287, 838. After an adverse administrative decision in 2014, plaintiff filed an appeal in this Court. See Chad Roberts v. Commissioner, 1:14-cv-989 (W.D. Mich.). The Court did not address the merits of plaintiff's claim, because the parties entered into a stipulated remand to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g). Id. (Order and Judgment) (ECF Nos. 9 and 10).
On remand, the Appeals Council directed administrative law judge (ALJ) Ohanesian to address the following matters: (1) "Attempt to obtain the psychological evaluation referenced in Exhibit 22F. If the evaluation is not available or did not occur, then further evaluate the claimant's alleged mental impairments and obtain a medical expert to assist in that evaluation if necessary. Determine whether the claimant's mental impairments are severe and what if any,[work-related] limitations they cause."; (2) "Further evaluate the claimant's malnutrition to determine whether it is severe, meets or equals a Listing and what if any, limitations it causes."; (3) "Give further consideration to the claimant's maximum residual functional capacity and provide rationale with specific references to the evidence of record in support of the assessed limitations"; and, (4) "If warranted by the expanded record, obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base". PageID.273. On the remand, ALJ Ohanesian held an administrative hearing on February 10, 2016, reviewed plaintiff's claim de novo and entered a written decision denying benefits on May 4, 2016. PageID.273-289. This decision, which was later approved by the Appeals Council, has become the final decision of the Commissioner and is now before the Court for review.
This Court's review of the Commissioner's decision is typically focused on determining whether the Commissioner's findings are supported by substantial evidence. 42 U.S.C. § 405(g); McKnight v. Sullivan, 927 F.2d 241 (6th Cir. 1990). "Substantial evidence is 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." Cutlip v. Secretary of Health & Human Services, 25 F.3d 284, 286 (6th Cir. 1994). A determination of substantiality of the evidence must be based upon the record taken as a whole. Young v. Secretary of Health & Human Services, 925 F.2d 146 (6th Cir. 1990).
The scope of this review is limited to an examination of the record only. This Court does not review the evidence de novo, make credibility determinations or weigh the evidence. Brainard v. Secretary of Health & Human Services, 889 F.2d 679, 681 (6th Cir. 1989). The fact that the record also contains evidence which would have supported a different conclusion does not undermine the Commissioner's decision so long as there is substantial support for that decision in the record. Willbanks v. Secretary of Health & Human Services, 847 F.2d 301, 303 (6th Cir. 1988). Even if the reviewing court would resolve the dispute differently, the Commissioner's decision must stand if it is supported by substantial evidence. Young, 925 F.2d at 147.
A claimant must prove that he suffers from a disability in order to be entitled to benefits. A disability is established by showing that the claimant cannot engage in substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months. See 20 C.F.R. §404.1505; Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). In applying the above standard, the Commissioner has developed a five-step analysis:
Heston v. Commissioner of Social Security, 245 F.3d 528, 534 (6th Cir. 2001) (citations omitted).
The claimant bears the burden of proving the existence and severity of limitations caused by her impairments and the fact that she is precluded from performing her past relevant work through step four. Jones v. Commissioner of Social Security, 336 F.3d 469, 474 (6th Cir. 2003). However, at step five of the inquiry, "the burden shifts to the Commissioner to identify a significant number of jobs in the economy that accommodate the claimant's residual functional capacity (determined at step four) and vocational profile." Id. If it is determined that a claimant is or is not disabled at any point in the evaluation process, further review is not necessary. Mullis v. Bowen, 861 F.2d 991, 993 (6th Cir. 1988).
Plaintiff's claim failed at the fifth step of the evaluation. At the first step, the ALJ found that plaintiff had not engaged in substantial gainful activity since the alleged onset date of January 2, 2009, and was insured for benefits through June 30, 2016. PageID.276.
At the second step, the ALJ found that plaintiff had severe impairments of: chronic constipation with associated hematochezia and colitis; degenerative disc disease with failed back syndrome; gastroesophageal reflux disease with hematemesis; hypotension; weight loss; sarcoidosis; borderline intellectual functioning; major depressive disorder; and anxiety disorder. PageID.276. At the third step, the ALJ found that plaintiff did not have an impairment or combination of impairments that met or equaled the requirements of the Listing of Impairments in 20 C.F.R. Pt. 404, Subpt. P, App. 1. PageID.276.
The ALJ decided at the fourth step that:
PageID.279. The ALJ also found at the fourth step that plaintiff is unable to perform any past relevant work. PageID.287.
At the fifth step, the ALJ determined that plaintiff could perform a significant number of unskilled jobs at the light exertional level in the national economy. PageID.288. Specifically, the ALJ found that plaintiff could perform the requirements of work in the national economy including machine tender (101,000 jobs), light assembler (250,000 jobs), and packager (120,000 jobs). PageID.288. Accordingly, the ALJ determined that plaintiff has not been under a disability, as defined in the Social Security Act, from January 2, 2009 (the alleged onset date) through May 4, 2016 (the date of the decision). PageID.288-289.
Plaintiff set forth two broad issues on appeal.
Plaintiff identified three opinions provided by plaintiff's treating physician Kevin Reed, D.O.: the first opinion in 2011 (PageID.1459-1460); the second opinion in 2013 (PageID.1658-1659); and the third opinion in 2016 (PageID.1955-1956). Plaintiff's Brief (ECF No. 13, PageID.2385-2388). A treating physician's medical opinions and diagnoses are entitled to great weight in evaluating plaintiff's alleged disability. Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001). "In general, the opinions of treating physicians are accorded greater weight than those of physicians who examine claimants only once." Walters v. Commissioner of Social Security, 127 F.3d 525, 529-30 (6th Cir. 1997). "The treating physician doctrine is based on the assumption that a medical professional who has dealt with a claimant and his maladies over a long period of time will have a deeper insight into the medical condition of the claimant than will a person who has examined a claimant but once, or who has only seen the claimant's medical records." Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994). See 20 C.F.R. §404.1527(c)(2) ("Generally, we give more weight to opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations").
Under the regulations, a treating source's opinion on the nature and severity of a claimant's impairment must be given controlling weight if the Commissioner finds that: (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 case record. See Gayheart v. Commissioner of Social Security, 710 F.3d 365, 375 (6th Cir. 2013); 20 C.F.R. §404,1527(c)(2). Finally, the ALJ must articulate good reasons for not crediting the opinion of a treating source. See Wilson v. Commissioner of Social Security, 378 F.3d 541, 545 (6th Cir. 2004); 20 C.F.R. §404.1527(c)(2) ("[w]e will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion").
Plaintiff contends that the ALJ failed to properly weigh Dr. Reed's treating source opinions and failed to give good reasons for the "little weight" assigned and that the decision is flawed because "the ALJ does not elaborate as to which portions of the doctors' opinions were being credited, and which were not." Id. at PageID.2386. While plaintiff contends that the ALJ did not comply with 20 C.F.R. § 404.1527(c), the only matter explicitly raised by plaintiff is that "[t]he ALJ cites conservative treatment (PageID.284) which contradicts the record considering Mr. Roberts' problems became worth the multiple back surgeries — anything but conservative treatment." Plaintiff's Brief at PageID.2386-2387. Plaintiff is referring to the ALJ's evaluation of Dr. Reed's first opinion dated April 29, 2011.
The ALJ noted that Dr. Reed's medical source statement was nearly identical to one completed on the same date by PA Maurice Fongers:
PageID.284.
Plaintiff contends that the ALJ incorrectly characterized plaintiff's treatment as conservative, relying on the April 26, 2016 opinion given by Moises S. Googe, D.O., which referenced plaintiff's past failed treatments. PageID.265-266, 2387. However, Dr. Googe's opinion was not part of the administrative record before the ALJ. Accordingly, plaintiff's claim of error will be denied.
Plaintiff contends that the ALJ performed an insufficient analysis of the opinions of an examining psychologist, Dr. Bentley. The ALJ evaluated Dr. Bentley's opinion as follows:
PageID.286.
While the ALJ is required to give "good reasons" for the weight assigned a treating source's opinion, Wilson, 378 F.3d at 545, this articulation requirement does not apply when an ALJ rejects the report of a non-treating medical source. See Smith v. Commissioner of Social Security, 482 F.3d 873, 876 (6th Cir.2007). In evaluating such reports, the ALJ's decision "must say enough to allow the appellate court to trace the path of his reasoning." Stacey v. Commissioner of Social Security, 451 Fed. Appx. 517, 519 (6th Cir. 2011) (internal quotation marks omitted). Here, the ALJ gave adequate reasons for the weight assigned to Dr. Bentley's opinion. Accordingly, plaintiff's claim of error will be denied.
Plaintiff contends that the ALJ failed to acknowledge the testimony of orthopedic surgeon Dr. Lorber, a medical expert who testified in a previous administrative hearing on November 22, 2013. PageID.664-687. Defendant noted that there were discrepancies between Dr. Lorber's opinions expressed in 2013 and the ALJ's RFC evaluation of the evidence on remand which included: (1) Dr. Lorber opined that plaintiff could not crawl, whereas the ALJ found that he could occasionally crawl; (2) Dr. Lorber opined that plaintiff could only occasionally be exposed to moving machinery, whereas the ALJ did not limit this exposure; and (3) Dr. Lorber opined that plaintiff could have no exposure to vibration, concentrated fumes, and extreme temperatures, whereas the ALJ opined that he should avoid concentrated exposure to these conditions. Compare PageID.675 with PageID.279. Defendant contends that this was harmless error because none of the jobs which the ALJ cited at step five require crawling or exposure to extreme temperatures, vibration, atmospheric conditions, moving machinery, or toxic caustic chemicals. Defendant's Brief (ECF No. 14, PageID.2404).
The Court disagrees with defendant's contention that this was harmless error. Dr. Lorber's opinion was relevant to plaintiff's condition as it existed in 2013. The previous ALJ gave Dr. Lorber's opinion great weight because it was well reasoned, detailed, supported by specific medical reports. PageID.95. With respect to defendant's claim of harmless error, nothing in the ALJ Ohanensian's decision or the VE's testimony address whether a person with the limitations described by Dr. Lorber could perform the identified jobs (machine tender, light assembler, and packager). The agency recognized that Dr. Lorber was a credible medical expert during plaintiff's administrative hearing in 2013. Based on this record, the Court concludes that the ALJ should have considered or re-evaluated Dr. Lorber's on remand. Accordingly, this matter should be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g). On remand, the Commissioner should re-evaluate Dr. Lorber's opinion.
Plaintiff contends that this matter should be remanded pursuant to sentence six of 42 U.S.C. § 405(g) for further consideration of new and material evidence located at PageID.265-269 (a report from neurologist Dr. Moises Googe dated April 26, 2016) and PageID.2235-2364 (Exhs. 51F (Dr. Googe's report with CT scans from April 30, 2016) and 52F (laboratory reports from May 2, 2016). Plaintiff's Brief (ECF No. 13, PageID.2392). When a plaintiff submits evidence that has not been presented to the ALJ, the Court may consider the evidence only for the limited purpose of deciding whether to issue a sentence-six remand under 42 U.S.C. § 405(g). See Sizemore v. Secretary of Health and Human Services, 865 F.2d 709, 711 (6th Cir.1988). Under sentence-six, "[t]he court . . . may at any time order the additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . ." 42 U.S.C. § 405(g). In a sentence-six remand, the court does not rule in any way on the correctness of the administrative decision, neither affirming, modifying, nor reversing the Commissioner's decision. Melkonyan v. Sullivan, 501 U.S. 89, 98 (1991). "Rather, the court remands because new evidence has come to light that was not available to the claimant at the time of the administrative proceeding and that evidence might have changed the outcome of the prior proceeding." Id. "The party seeking a remand bears the burden of showing that these two requirements are met." Hollon ex rel. Hollon v. Commissioner of Social Security, 447 F.3d 477, 483 (6th Cir. 2006).
In order for a claimant to satisfy the burden of proof as to materiality, "he must demonstrate that there was a reasonable probability that the [Commissioner] would have reached a different disposition of the disability claim if presented with the new evidence." Sizemore, 865 F.2d at 711. Plaintiff's materiality argument is linked to his claim that the ALJ incorrectly characterized plaintiff's past treatment as conservative. In the April 2016 report, Dr. Googe stated that "[s]ince [plaintiff] has completed every other avenue of conservative and surgical treatment, the only option left would be a laminectomy, decompression and fusion." PageID.2236. The doctor also stated that "given that [plaintiff] has had several surgeries and scar tissue and chronic nerve compression, that may limit the functional recovery." Id. This evidence reflected plaintiff's condition in April and May 2016, after the administrative hearing (February 10, 2016) and before the ALJ's decision denying benefits (May 4, 2016). Based on this record, the Court concludes that plaintiff has demonstrated materiality because ALJ Ohanesian may have reached a different determination if he had considered this new evidence.
In addition, plaintiff has shown good cause for failing to present this evidence to the ALJ in a timely manner. "A claimant shows `good cause' by demonstrating a reasonable justification for the failure to acquire and present the evidence for inclusion in the hearing before the ALJ." Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). To show good cause a claimant is required to detail the obstacles that prevented him from entering the evidence in a timely manner. Bass v. McMahon, 499 F.3d 506, 513 (6th Cir. 2007). Here, plaintiff has explained that the new evidence did not exist at the time of the administrative hearing. Rather, the new evidence involved ongoing medical treatment, including emergency treatment, after the hearing. Plaintiff's Brief (ECF No. 13, PageID.2392-2393). Given this timeline, plaintiff has demonstrated good cause. Accordingly, plaintiff's request for a sentence-six remand will be granted. The Commissioner should review this new evidence in conjunction with the sentence-four remand.
For these reasons, the Commissioner's decision will be
