R. STEVEN WHALEN, Magistrate Judge.
Plaintiff Perry Devitis brings this action under 42 U.S.C. §405(g) challenging a final decision of Defendant Commissioner denying his application for Disability Insurance Benefits ("DIB") under the Social Security Act. The parties have filed cross-motions for summary judgment. Both motions have been referred for a Report and Recommendation pursuant to 28 U.S.C. §636(b)(1)(B). For the reasons discussed below, I recommend that Defendant's Motion for Summary Judgment [DE #12] be DENIED, and that Plaintiff's Motion for Summary Judgment [DE #10] be GRANTED to the extent that the case be remanded pursuant to the fourth sentence of 42 U.S.C. 405(g) for additional proceedings consistent with this Recommendation.
On June 28, 2007, Plaintiff applied for DIB, alleging disability as of September 14, 2005 (Tr. 100-101). Following the initial denial of benefits, Plaintiff requested an administrative hearing, held on October 16, 2008 in Detroit, Michigan (Tr. 31). Patricia S. McKay, Administrative Law Judge ("ALJ") presided. Plaintiff, represented by attorney Robert Blamer, testified (Tr. 36-66), as did Plaintiff's wife, Vicky Devitis (Tr. 66-73), and Vocational Expert ("VE") Michael Rosco (Tr. 74-80). On January 28, 2009, ALJ McKay found Plaintiff not disabled (Tr. 20). On July 20, 2010, the Appeals Council denied review (Tr. 1-3). Plaintiff filed suit in this Court on January 14, 2011.
Plaintiff, born December 23, 1957, was 51 when ALJ McKay issued her decision (Tr. 20, 100). He completed 12
Plaintiff testified by stating that he currently lived in a single family home with his wife and teenaged children (Tr. 37). In addition to a high school education, Plaintiff stated that he received some training in hotel and restaurant management but did not finish the program (Tr. 38). He indicated that his former work as a bartender required him to mix drinks, use a computer, prepare food, restock supplies, and perform cleanup tasks (Tr. 39-42). He stated that subsequently, he worked as a school janitor but that hand and foot problems forced him to quit work (Tr. 43). He stated that since losing the janitorial position, his work activity had been limited to a two-month stint cleaning for a veterinarian clinic (Tr. 44).
Plaintiff testified that he limited his driving to short distances due to his inability to sit for long periods (Tr. 45). He stated that on an average day, he arose at 6:15 a.m., prepared breakfast for his son, stretched, watched television, and shopped for groceries (Tr. 47). He admitted that he was independent in self care activities but that he required help getting out of a bathtub and putting on his right sock (Tr. 47, 56). He stated that hand problems created problems tying his shoes or performing other activities requiring fine manipulative functions (Tr. 56-58). He alleged that hand tremors prevented him from picking up more than a gallon of milk (Tr. 48). He admitted that he continued to cut the lawn (Tr. 49). He denied church or club attendance (Tr. 48). He denied being able to type, due to hand problems (Tr. 50). He stated that his hand tremors were worse some days than others (Tr. 59).
Plaintiff alleged that foot and leg pain prevented him from being on his feet for extended periods, adding that he experienced hand swelling and numbness (Tr. 51). He indicated that arthritis in his legs and toes prevented him from standing for long periods (Tr. 52). He denied that he had a drinking problem, noting that his alcohol intake was limited to two glasses of wine each day (Tr. 52). He stated that he experienced frequent chest infections (Tr. 54). Plaintiff noted that he took insulin by injection twice a day (Tr. 57). He also reported that since falling out of a tree at age 12, he had undergone several hip operations and that he wore a lift in his right shoe (Tr. 62). He stated that he was unable to walk more than three or four blocks (Tr. 63). He opined that his drinking did not adversely affect symptoms of diabetes but acknowledged that his treating sources had told him to abstain from alcohol (Tr. 63, 65-66).
Mrs. Devitis testified she had been married to Plaintiff for 17 years (Tr. 67). She stated that at times when Plaintiff experienced hand shaking, she helped him thread his belt through his belt loops and tie his shoes (Tr. 67-68). She reported that Plaintiff cooked for the family during the week, but that she took the garbage to the curb and dusted (Tr. 69). She concurred with Plaintiff's testimony that he did not use the computer (Tr. 71). She stated that Plaintiff drank "a couple of glasses of wine per evening," later acknowledging that he drank "maybe more than two" (Tr. 72).
In November, 2002, a CT of the abdomen found degenerative changes of the spine and asymmetry of the chest wall muscles, but was otherwise unremarkable (Tr. 148). An MRI found atrophy of the right abdomen and hip muscles (Tr. 153). In January, 2003, imaging studies showed degenerative changes in the lumbar and thoracic spine as well as ankylosis at the right hip joint (Tr. 151). An August, 2003 MRI revealed multiple herniations of the thoracic spine impacting the spinal chord (Tr. 152). In February, 2004, Plaintiff sustained a mild stroke creating numbness of the right hand and foot (Tr. 158-159, 168-169). A July, 2004 imaging study of the lumbar spine showed "minimal lumbar spurring" (Tr. 199). A June, 2005 ultrasound of the abdomen was unremarkable (Tr. 214). A CT of the brain was also unremarkable (Tr. 215). A CT of the abdomen showed asymmetry of the pelvic muscles but otherwise showed minimal abnormalities (Tr. 217). An EKG was normal (Tr. 219).
In November, 2005, Plaintiff sought emergency treatment for abdominal pain (Tr. 226). Treating staff noted that he admitting to drinking "excessive amounts of alcohol" for the past several days (Tr. 227). He was diagnosed with diabetes mellitus and alcohol abuse (Tr. 226). He was discharged five days later with directions to avoid alcohol (Tr. 228). His diagnosis was deemed "poor" as a result of his "continued history of alcohol abuse in the past, present, and probable future" (Tr. 228). The following month, Joseph G. D'Avanzo, D.O., noting that abdominal symptoms had subsided, directed Plaintiff to "discontinue alcohol" (Tr. 229, 333).
In January, 2007, Plaintiff underwent surgery for the treatment of prostate cancer (Tr. 282). March, 2007 CT and MRI studies showed no evidence of metastatic disease (Tr. 288-289, 312). In May, 2007, endocrinologist George J. Leach, D.O. told Plaintiff's counsel that a recent nerve conduction study of the extremities showed mild neuropathy (Tr. 328). He noted that Plaintiff reported foot and right hand pain as well as difficulty "holding tools for a prolonged period of time" (Tr. 328). August, 2007 treating notes indicate no recurrence of a malignancy (Tr. 307). Treating notes from January, 2008 show that Plaintiff was "doing well" one year after prostate surgery (Tr. 304). In March, 2008, Dr. Leach noted Plaintiff's history of "significant diabetic peripheral neuropathy" (Tr. 327). In May, 2008, Plaintiff was again advised to discontinue alcohol (Tr. 330).
In September, 2008, treating physician Troy M. Smith, D.O, noted that Plaintiff experienced the conditions of diabetes, hypertension, hypothyroidism, hyperlipidemia, gastro esophageal reflux disease, allergies, degenerative disc disease, and chronic alcohol abuse (Tr. 342). He deemed Plaintiff's prognosis "guarded" (Tr. 342). He opined that Plaintiff would experience difficulty performing any work (Tr. 343).
In August, 2006, Leonidas Rojas, M.D. performed a consultive examination of Plaintiff on behalf of the SSA (Tr. 270). Dr. Rojas noted that Plaintiff fractured his right hip when he was 12, resulting in current "aches and pains" (Tr. 269). Plaintiff's right leg was one and a half inches shorter than the left; a condition for which he wore a right shoe lift (Tr. 268-269). Plaintiff demonstrated the ability to perform fine and gross manipulation (Tr. 270). He walked with a "mild" limp on the right (Tr. 270). Dr. Rojas observed normal muscle tone and no tremors or muscle atrophy (Tr. 270).
The same month, Jack Kaufman, M.D. completed a non-examining Residual Functional Capacity Assessment on behalf of the SSA (Tr. 271-278). Dr. Kaufman found that Plaintiff could lift 50 pounds occasionally and 25 frequently; sit, stand, or walk for six hours in an eight-hour workday; and push and pull without limitation (Tr. 272). Plaintiff was limited to occasional climbing, balancing, stooping, kneeling, crouching, and crawling (Tr. 273). The Assessment found the absence of manipulative, visual, communicative, or environment impairment (Tr. 274-275).
VE Michael Rosco classified Plaintiff's past work as a custodian as unskilled and exertionally medium (as performed) and bartender, semiskilled/medium (as performed)
(Tr. 76). The VE replied that the above limitations would preclude Plaintiff's work as a janitor but allow the work of a bartender (Tr. 76). He testified further that if the same individual required a "sit/stand at will" limitation, the job of bartender would be unavailable but that the individual could perform the jobs of assembler, packer, sorter, and visual inspector, finding 5,000 medium jobs, 6,000 light, and 7,000 sedentary in the regional economy (Tr. 76-77).
The VE testified further that if the same individual were restricted to frequent (as opposed to constant ) use of the hands for gross manipulation, all of the above jobs would be unavailable, but that Plaintiff could perform the unskilled, sedentary work of a unarmed security guard (Tr. 77-78). He stated that if Plaintiff's testimony were fully credited, he would be unable to perform any work based on his inability to stand or walk for long periods and hand limitations (Tr. 78-79).
The VE stated that his testimony was consistent with the information found in the Dictionary of Occupational Titles ("DOT") except with respect to the sit/stand option and findings regarding the skill level of the security guard position which he stated was based on professional experience (Tr. 79).
Citing Plaintiff's medical records, the ALJ found the severe impairments of "diabetes mellitus with peripheral neuropathy, degenerative disc and joint disease in the lumbar spine, and status post carcinoma of the prostate and fusion of the the right hip" but that none of the impairments met or equaled any impairment listed in 20 CRF Part 404, Subpart P, Appendix 1 (Tr. 19-20). ALJ McKay found that while Plaintiff was unable to perform any of his past relevant work, he retained the following residual functional capacity ("RFC"):
(Tr. 20). Citing the VE's testimony, the ALJ found that Plaintiff could perform the jobs of assembler, inspector, sorting, and packager (Tr. 22).
The ALJ discounted the credibility of Plaintiff's claims, finding that his allegations of shortness of breath and neuropathy of the hands and feet were "exaggerated in view of the rather mild evidence" (Tr. 21). She noted that Plaintiff had been noncompliant with his physician's advice to quit drinking (Tr. 21).
The district court reviews the final decision of the Commissioner to determine whether it is supported by substantial evidence. 42 U.S.C. §405(g); Sherrill v. Secretary of Health and Human Services, 757 F.2d 803, 804 (6
Disability is defined in the Social Security Act as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §423(d)(1)(A). In evaluating whether a claimant is disabled, the Commissioner is to consider, in sequence, whether the claimant: 1) worked during the alleged period of disability; 2) has a severe impairment; 3) has an impairment that meets or equals the requirements of an impairment listed in the regulations; 4) can return to past relevant work; and 5) if not, whether he or she can perform other work in the national economy. 20 C.F.R. §416.920(a). The Plaintiff has the burden of proof at steps one through four, but the burden shifts to the Commissioner at step five to demonstrate that, "notwithstanding the claimant's impairment, he retains the residual functional capacity to perform specific jobs existing in the national economy." Richardson v. Secretary of Health & Human Services, 735 F.2d 962, 964 (6th Cir.1984).
Plaintiff argues first that the ALJ failed to "give adequate weight" to the treating source findings of Dr. Leach, an endocrinologist, and Dr. Smith, a family physician. Plaintiff's Brief at 3-4. On a related note, Plaintiff contends that the ALJ misinterpreted objective studies showing "mild" neuropathy, arguing that mild neuropathy does not equate with a "mild" work related impairment. Id.
If the opinion of the claimant's treating physician is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record, it must be given controlling weight." See Hensley v. Astrue, 573 F.3d 263, 266 (6th Cir.2009) (internal quotation marks omitted) (citing Wilson, 378 F.3d at 544; 20 C.F.R. § 404.1527(d)(2)). However, in the presence of contradicting substantial evidence, the ALJ may reject all or a portion of the treating source's findings, see Warner v. Commissioner of Social Sec., 375 F.3d 387, 391-392 (6th Cir.2004), provided that he supplies "good reasons" for doing so. Wilson, at 547; 20 C.F.R. § 404.1527(d)(2). In explaining reasons for rejecting the treating physician opinion, the ALJ must consider "the length of the ... relationship and the frequency of examination, the nature and extent of the treatment [,] ... [the] supportability of the opinion, consistency ... with the record as a whole, and the specialization of the treating source." Wilson, at 544.
Plaintiff does not argue that the ALJ ignored Dr. Smith's April, 2008 disability opinion or failed to abide by the procedural requirements of a treating physician analysis. Rather, he contends that because Dr. Smith's opinion was well supported by objective studies, it ought to have been adopted. Plaintiff's Brief at 3-4. In rejecting Dr. Smith's opinion, the ALJ correctly noted that the condition of gastro esophageal reflux disease (cited by Dr. Smith) had mostly resolved (Tr. 21). Likewise, she observed that Plaintiff had made a full recovery after undergoing surgery for prostrate cancer, reasonably finding that the condition would not limit his work abilities (Tr. 21).
However, the ALJ's conclusion that imaging studies mentioned by Dr. Smith "did not identify a debilitating degree of arthritis" erroneously cites studies of the lumbar spine from late 2006 through the early months of 2007 rather than the earlier thoracic spine studies to which Dr. Smith referred (Tr. 21, 342). Consistent with Dr. Smith's opinion, earlier MRI's of the thoracic spine showed multiple herniations of the thoracic spine impacting the spinal chord (Tr. 152). While these studies predate Plaintiff's alleged onset of disability, they support Dr. Smith's statement that Plaintiff experienced significant ongoing degenerative spinal problems (Tr. 342). Thus, the ALJ's rejection of Dr. Smith's opinion on this point stands at odds with the medical evidence. Given that the administrative opinion omits all mention of the earlier MRIs showing significant thoracic problems, the ALJ's erroneous interpretation of Dr. Smith's letter is of particular concern.
Further, while the ALJ cited Dr. Leach's 2007 nerve conduction studies showing "mild" peripheral sensory polyneuropathy (Tr. 21, 328), Plaintiff is correct that "mild" neuropathy does not necessarily equate to "mild" symptoms or "mild" work related limitations. Dr. Leach's later, 2008, statement that Plaintiff experiences "significant" neuropathy suggests that the condition created some level of limitation (Tr. 327). Notwithstanding a consultive examiner's 2006 finding that Plaintiff demonstrated the ability to perform fine and gross manipulation (Tr. 270), later studies correlate with complaints of hand pain, clumsiness, and numbness (Tr. 328). Given that the RFC found in the administrative opinion does not contain any manipulative limitations, clarification on this point is also required.
Plaintiff argues that the ALJ's credibility determination was inadequate. Plaintiff's Brief at 4-5. Specifically, he contends that the fact that he continued to drink against medical advice does not support the finding that he exaggerated his functional limitations. Id. Once again, he submits that the nerve conduction findings of "mild" neuropathy do not contradict his testimony regarding manipulative limitations. Id.
"[A]n ALJ's credibility determinations about the claimant are to be given great weight, `particularly since the ALJ is charged with observing the claimant's demeanor and credibility.'" Cruse v. Commissioner of Social Sec., 502 F.3d 532, 542 (6
Notwithstanding the deference generally accorded the administrative credibility determination, I find that here too, the ALJ's findings are not adequately supported. Her discussion of Dr. Smith's opinion, as noted above, suggests that she overlooked compelling evidence of long term spinal problems (Tr. 21). Second, while I agree that Plaintiff's continued drinking is problematic and could be used to support the inference that he was not well motivated to find work, the ALJ has not made a correlation between his continued alcohol use and his medical problems. While his continued "social" drinking against medical advice is regrettable, treating records postdating his November, 2005 hospitalization show that his blood sugar levels remained fairly stable. Third, the ALJ's rejection of Plaintiff's claims on the basis that he "took care of his autistic son" (Tr. 21) is undermined by Plaintiff's testimony that the son "pretty much takes care of himself" and his wife's testimony that the boy was able to care for his personal needs and was generally "high function[ing]" (Tr. 71).
Because Plaintiff has shown a strong but not "overwhelming" case for disability, the errors discussed herein, the undersigned recommends a remand for further administrative proceedings rather than an award of benefits. Faucher v. Secretary of Health and Human Services, 17 F.3d 171 (6th Cir. 1994). However, a finding that Plaintiff (over 50 at the time of the ALJ's decision) experienced even some degree of manipulative limitation would mandate a finding of disability
For these reasons, I recommend that Defendant's Motion for Summary Judgment [DE #12] be DENIED, and that Plaintiff's Motion for Summary Judgment [DE #10] be GRANTED, and that the case be remanded pursuant to the fourth sentence of 42 U.S.C. 405(g) for additional administrative proceedings consistent with this Recommendation
Any objections to this Report and Recommendation must be filed within 14 days of service of a copy hereof as provided for in 28 U.S.C. §636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v. Secretary of HHS, 932 F.2d 505 (6
Within 14 days of service of any objecting party's timely filed objections, the opposing party may file a response. The response shall be not more than twenty (20) pages in length unless by motion and order such page limit is extended by the court. The response shall address specifically, and in the same order raised, each issue contained within the objections.
