H. BRENT BRENNENSTUHL, Magistrate Judge.
Before the Court is the complaint (DN 1) of Tonya G. Johnson (APlaintiff@) seeking judicial review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both the Plaintiff (DN 11) and Defendant (DN 14) have filed a Fact and Law Summary.
Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties have consented to the undersigned United States Magistrate Judge conducting all further proceedings in this case, including issuance of a memorandum opinion and entry of judgment, with direct review by the Sixth Circuit Court of Appeals in the event an appeal is filed (DN 9). By Order entered October 24, 2016 (DN 10), the parties were notified that oral arguments would not be held unless a written request therefor was filed and granted. No such request was filed.
Plaintiff protectively filed an application for Disability Insurance Benefits on March 11, 2013 (Tr. 24, 244). Plaintiff alleged that she became disabled on January 23, 2013, as a result of chronic pain from degenerative disc disease in the neck and back, neuropathy and limitation of movement in the left side, obesity, chronic diarrhea, sleep disorders, depression and anxiety, short-term memory loss, high cholesterol, and persistent bladder infections with incontinence (Tr. 24, 294-95). From Lexington, Kentucky, Administrative Law Judge Karen R. Jackson (AALJ@) conducted a video hearing on November 4, 2014, and a supplemental video hearing on April 16, 2015 (Tr. 24, 45, 83). Plaintiff and her counsel, Richard Burchett, participated in both video hearings from Campbellsville, Kentucky (
In a decision dated May 26, 2015, the ALJ evaluated this adult disability claim pursuant to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 24-37). At the first step, the ALJ found Plaintiff has not engaged in substantial gainful activity since January 23, 2013 the alleged onset date (Tr. 26).
At the second step, the ALJ determined that Plaintiff has the following Asevere@ impairments: lumbar and cervical degenerative disc disease, minimal degenerative joint disease/bursitis of the left hip, obesity, depressive disorder, generalized anxiety disorder, and post-traumatic stress disorder (
At the third step, the ALJ concluded that Plaintiff does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in Appendix 1 (
At the fourth step, the ALJ made the following residual functional capacity finding:
(Tr. 29). Relying on testimony from the vocational expert, the ALJ found that Plaintiff is unable perform any of her past relevant work (Tr. 35).
The ALJ proceeded to the fifth step where he considered Plaintiff's residual functional capacity, age, education, and past work experience as well as testimony from the vocational expert (Tr. 35-36). The ALJ found that Plaintiff is capable of performing a significant number of jobs that exist in the national economy (Tr. 36). Therefore, the ALJ concluded that Plaintiff has not been under a Adisability,@ as defined in the Social Security Act, from January 23, 2013 through the date of the decision, May 26, 2015 (Tr. 36-37).
Plaintiff timely filed a request for the Appeals Council to review the ALJ's decision (Tr. 18, 20). The Appeals Council denied Plaintiff's request for review of the ALJ's decision (Tr. 1-3).
Review by the Court is limited to determining whether the findings set forth in the final decision of the Commissioner are supported by Asubstantial evidence,@ 42 U.S.C. § 405(g);
As previously mentioned, the Appeals Council denied Plaintiff's request for review of the ALJ's decision (Tr. 1-3). At that point, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. §§ 404.955(b), 404.981, 422.210(a); see 42 U.S.C. § 405(h) (finality of the Commissioner's decision). Thus, the Court will be reviewing the decision of the ALJ, not the Appeals Council, and the evidence that was in the administrative record when the ALJ rendered the decision. 42 U.S.C. § 405(g); 20 C.F.R. § 404.981;
The Social Security Act authorizes payment of Disability Insurance Benefits and Supplemental Security Income to persons with disabilities. 42 U.S.C. §§ 401 et seq. (Title II Disability Insurance Benefits), 1381 et seq. (Title XVI Supplemental Security Income). The term Adisability@ is defined as an
42 U.S.C. §§ 423(d)(1)(A) (Title II), 1382c(a)(3)(A) (Title XVI); 20 C.F.R. §§ 404.1505(a), 416.905(a);
The Commissioner has promulgated regulations setting forth a five-step sequential evaluation process for evaluating a disability claim. See AEvaluation of disability in general,@ 20 C.F.R. §§ 404.1520, 416.920. In summary, the evaluation proceeds as follows:
Here, the ALJ denied Plaintiff's claim at the fifth step. The ALJ relied on the testimony of the vocational expert to find that Plaintiff is capable of making a successful adjustment to other work that exist in significant numbers in the national economy (Tr. 36).
Plaintiff disagrees with Finding No. 3 because the ALJ failed to consider her left shoulder condition in the severe impairment analysis (DN 11 PageID # 910-11 citing Tr. 26-27). Plaintiff asserts that her left shoulder diagnoses includes osteoarthritis, subacromial bursitis, and tendinitis of the superaspinatus, infraspinatus, and teres minor muscles (
Defendant acknowledges that the ALJ did not assess whether Plaintiff's left shoulder condition was a "severe" impairment within the meaning of the regulations (DN 14 PageID # 925-26). Defendant argues the ALJ's omission does not constitute reversible error because the ALJ evaluated all of Plaintiff's alleged impairments through the remaining steps (DN 14 PageID # 925-26 citing
Finding No. 3 addresses the second step of the sequential evaluation process (Tr. 26). At that step, a claimant must demonstrate she has a Asevere@ impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii);
To satisfy the Amedically determinable@ requirement the claimant must present objective medical evidence (i.e., signs, symptoms, and laboratory findings) that demonstrates the existence of a physical or mental impairment. 20 C.F.R. § 416.908; Social Security Ruling 96-4p, 1996 WL 374187, at *1 (1996); Social Security Ruling 96-3p, 1996 WL 374181, at *2 (1996). Thus, symptoms and subjective complaints alone are not sufficient to establish the existence of a Amedically determinable@ physical or mental impairment. Social Security Ruling 96-4p, 1996 WL 374187, at *1.
Basic work activities relate to the abilities and aptitudes necessary to perform most jobs, such as the ability to perform physical functions, the capacity for seeing and hearing, and the ability to use judgment, respond to supervisors, and deal with changes in the work setting. 20 C.F.R. § 416.921(b). An impairment will be considered non-severe only if it is a "slight abnormality which has such 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."
When Plaintiff applied for benefits, she alleged that she became disabled on January 23, 2013 as a result of a number of health conditions, but did not identify a shoulder condition (Tr. 294). However, during the administrative hearing on November 4, 2014, Plaintiff testified that her neck and shoulder conditions limit what she is able to do with her left arm (Tr. 86). Further, during the supplemental administrative hearing on April 16, 2015, Plaintiff testified about her left shoulder and the treatment administered by Dr. Nair for that condition (Tr. 53-54, 59).
Medical records from Kentuckiana Pain Specialists indicate from February 2012 through March 2013, Dr. Nair treated Plaintiff for neck pain that radiated down her left shoulder and lumbar pain (Tr. 369-465). Notably, during this time frame the musculoskeletal examinations of Plaintiff's shoulder were normal and Dr. Nair did not express a diagnostic impression with regard to Plaintiff's left shoulder (
On April 23, 2013, a non-examining state agency medical consultant reviewed the medical record and rendered an opinion regarding Plaintiff's physical limitations (Tr. 107-117). The medical consultant did not identify Plaintiff's shoulder condition as a medically determinable impairment in spite of acknowledging that a musculoskeletal examination revealed left subacrominal bursitis (Tr. 111) and finding partially credible Plaintiff's reports of pain in her left shoulder (Tr. 113). The medical consultant expressed an opinion regarding Plaintiff's physical limitations that focused on the limitations imposed by Plaintiff's lumbar spine condition (Tr. 111, 113-15).
On August 8, 2013, a different non-examining state agency medical consultant reviewed the medical record and rendered an opinion regarding Plaintiff's physical limitations (Tr. 120-31). Although the medical consultant did not acknowledge that musculoskeletal examinations had revealed left subacrominal bursitis, the consultant did find partially credible Plaintiff's reports of pain in her left shoulder (Tr. 124-26). This medical consultant also expressed an opinion regarding Plaintiff's physical limitations that focused on the limitations imposed by Plaintiff's lumbar spine condition (Tr. 126-28). In sum, despite what Dr. Nair's musculoskeletal examinations of Plaintiff's left shoulder revealed during the time frame April through August 2013, the non-examining state agency medical consultants failed to determine whether the shoulder condition constituted a medically determinable impairment that satisfies the duration requirement (20 C.F.R. § 404.1509) and significantly limits Plaintiff's ability to perform basic work activities. 20 C.F.R. §404.1520(a)(4)(ii) and (c); Social Security Ruling 96-3p; Social Security Ruling 96-4p.
Dr. Nair prepared a medical source statement regarding the limitations imposed by Plaintiff's lumbar spine (Tr. 849-54). However, he did not express an opinion regarding limitations imposed by Plaintiff's left shoulder condition.
The undersigned recognizes that there is no medical opinion in the record that specifically expresses limitations imposed by Plaintiff's left shoulder condition. Notwithstanding, Dr. Nair's musculoskeletal examinations of Plaintiff's left shoulder appears to be substantial evidence in the record to support a finding that Plaintiff suffers from a medically determinable condition. Indeed, a perfunctory review of the record reveals at least thirty-one separate medical documents reflecting Plaintiff's shoulder condition. The sheer volume of medical records in combination with the fact that the Plaintiff mentioned her shoulder condition at both administrative hearings should have been more than sufficient to put the ALJ on notice of the need to address this condition at the second step in the sequential evaluation process. Yet, the ALJ failed to mention this condition and did not make any findings addressing whether Plaintiff has a medically determinable impairment and whether it is "severe" within the meaning of the regulations as required by 20 C.F.R. § 404.1520, Social Security Ruling 96-3p, and Social Security Ruling 96-4p.
These second step errors alone would be an insufficient basis to reverse and remand the ALJ's decision.
Here, the ALJ found that Plaintiff has the following severe impairments: lumbar and cervical degenerative disc disease, minimal degenerative joint disease/bursitis of the left hip, obesity, depressive disorder, generalized anxiety disorder, and post-traumatic stress disorder (Tr. 26). The ALJ continued with the sequential evaluation process, but the administrative decision does not even mention Plaintiff's shoulder condition, let alone address whether it imposed any limitations on Plaintiff's residual functional capacity (Tr. 29-35). Again, the sheer volume of medical records in combination with the fact that the Plaintiff mentioned her shoulder condition at the administrative hearings should have been more than sufficient to put the ALJ on notice that the residual functional capacity assessment should account for any associated limitations. During the supplemental administrative hearing
In sum, there is no indication in the record that the ALJ considered the limitations and restrictions imposed by all of Plaintiff's impairments, both severe and non-severe, in the remaining steps of the sequential evaluation process. The Court concludes that the
Sentence four of 42 U.S.C. § 405(g) authorizes a post judgment remand. Under sentence four, the Court makes a final judgment (e.g., affirming, reversing, or modifying the final decision of the Commissioner) and remands the case to the Commissioner with instructions to consider additional evidence and/or conduct additional proceedings to remedy a defect in the original proceedings.
The undersigned is aware that Plaintiff has raised other claims with regard to the ALJ's findings regarding whether Plaintiff meets Listing 1.04, her residual functional capacity, and whether there are jobs that exist in significant numbers in the national economy that she can perform (DN 11). In light of the above conclusion, the undersigned deems it unnecessary to address those other claims. Further, the ALJ will have the opportunity to remedy those issues when he conducts additional proceedings to remedy the above identified defect in the original proceedings.
For the foregoing reasons, the undersigned concludes that the final decision of the Commissioner does not comport with applicable law.
