KAREN L. HAYES, Magistrate Judge.
Before the court is plaintiff's petition for review of the Commissioner's denial of social security disability benefits. The district court referred the matter to the undersigned United States Magistrate Judge for proposed findings of fact and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and (C). For the reasons assigned below, it is recommended that the decision of the Commissioner be
Eddie Dean Montgomery protectively filed the instant application for Title II Disability Insurance Benefits on September 6, 2012. (Tr. 122-125, 137).
Montgomery appealed the adverse portion of the decision to the Appeals Council. On September 3, 2014, however, the Appeals Council denied his request for review; thus the ALJ's decision became the final decision of the Commissioner. (Tr. 1-3).
On October 28, 2014, Montgomery sought review before this court. He alleges the following errors,
(3) the ALJ erred by failing to address the testimony of plaintiff's lay witness and by not providing specific reasons for his credibility assessment.
This court's standard of review is (1) whether substantial evidence of record supports the ALJ's determination, and (2) whether the decision comports with relevant legal standards. Villa v. Sullivan, 895 F.2d 1019, 1021 (5
Pursuant to the Social Security Act ("SSA"), individuals who contribute to the program throughout their lives are entitled to payment of insurance benefits if they suffer from a physical or mental disability. See 42 U.S.C. § 423(a)(1)(D). The SSA defines a disability 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). Based on a claimant's age, education, and work experience, the SSA utilizes a broad definition of substantial gainful employment that is not restricted by a claimant's previous form of work or the availability of other acceptable forms of work. See 42 U.S.C. § 423(d)(2)(A). Furthermore, a disability may be based on the combined effect of multiple impairments which, if considered individually, would not be of the requisite severity under the SSA. See 20 C.F.R. § 404.1520(a)(4)(ii).
The Commissioner of the Social Security Administration has established a five-step sequential evaluation process that the agency uses to determine whether a claimant is disabled under the SSA. See 20 C.F.R. §§ 404.1520, 416.920. The steps are as follows,
See Boyd v. Apfel, 239 F.3d 698, 704-705 (5
The ALJ determined at step one of the sequential evaluation process that the claimant did not engage in substantial gainful activity during the relevant period. (Tr. 20). At step two, he found that, from the date of alleged onset of disability through December 31, 2012, the claimant suffered severe impairments of obesity and diabetes. Id.
The ALJ next determined that, prior to January 1, 2013, Montgomery retained the residual functional capacity ("RFC") to perform the full range of medium work. (Tr. 22-23).
The ALJ concluded at step four of the sequential evaluation process that Montgomery was unable to perform his past relevant work. (Tr. 24). Accordingly, he proceeded to step five. At this step, the ALJ determined that Montgomery was an individual of advanced age, with at least a high school education, and the ability to communicate in English. (Tr. 24-25). Transferability of skills was immaterial prior to January 1, 2013, but, in any event, he had no transferrable job skills. Id. The ALJ then observed that, given Montgomery's vocational factors, and the ability to perform the full range of medium work, the Medical-Vocational Guidelines directed a finding of not disabled prior to January 1, 2013. 20 C.F.R. § 404.1569; Rule 203.15, Table 3, Appendix 2, Subpart P, Regulations No. 4. Id. Beginning January 1, 2013, however, Montgomery's RFC was reduced to less than sedentary, thus mandating a finding of disabled pursuant to Medical-Vocational Rule 201.06. Id.
The earliest medical reports in the instant record date from 2008-2010 and reflect innocuous office visits by plaintiff to his general practitioner, James M. Smith, M.D., for treatment of acute nasal and respiratory symptoms. (Tr. 197-199).
In April 2012, J. M. Smith, M.D., wrote to the state agency that Montgomery had poorly controlled diabetes because of his non-compliance with medication and diet. (Tr. 195). He further remarked that Montgomery had no ulceration of the lower extremities. Id. Smith opined that Montgomery could walk and stand for normal periods during the day. Id. In fact, if his diabetes were better controlled, he could do even more. Id. Smith concluded by noting that Montgomery had a normal range of motion in his lumbrosacral spine. Id.
On May 10, 2012, Montgomery underwent a consultative examination administered by David Hebert, M.D., at the request of the state agency for purposes of Montgomery's prior disability application. (Tr. 205-207). Montgomery reported to Hebert that his chief complaints were diabetes mellitus, high blood pressure, chronic back problems, stomach problems, and wrist pain. Id. He reported that he had been experiencing lumbar pain for at least three years. Id. Montgomery stated that the pain was non-radiating, but severe, which prevented him from picking up anything weighing more than 20 pounds. Id. His knees also had been hurting him for three years, and were painful to motion, kneeling, and traversing steps. Id. In addition, his right wrist had been painful. Id.
Montgomery reported a 14 year history of diabetes mellitus and arterial hypertension. Id. Nonetheless, he demonstrated no difficulty ambulating about the office. Id. His vision was 20/25 bilaterally, without corrective devices. Id. He exhibited full range of motion of the lumbar spine. Id. Straight leg raise was negative bilaterally. Id. His gait and station were completely normal without assistive devices. Id. He experienced minimal difficulty walking on heels and tiptoes. Id. He had a full range of motion in all peripheral joints, and no motor or sensory deficits. Id. His motor strength was 5/5 in all areas with 5/5 bilateral handgrip; hand dexterity, and good grasping ability. Id. X-rays of the lumbar spine showed normal, intact spine. Id. There was no evidence of degenerative disc disease, osteoarthritis, previous fractures, or malalignments of the spine. Id. Hebert diagnosed diabetes mellitus, type 2, with no clear evidence of end-organ damage; arterial hypertension, well-controlled; history of gastroesophageal reflux disease, which was asymptomatic; non-specific arthralgias of the lumbar spine, wrists, and knees, with no significant impairment of function of those joints at that time. Id. Medically, Hebert saw no reason why Montgomery could not perform routine walking, sitting, standing, carrying, and lifting for an eight-hour day. Id.
On July 13, 2012, Montgomery complained to Dr. J. M. Smith of right lower back pain that radiated to his right leg. (Tr. 201). He had fallen and hit his right hip. Id. He exhibited decreased range of motion with bending at the waist. Id. Montgomery returned to Dr. Smith on September 17, 2012, with complaints of nocturnal leg pain. (Tr. 202).
On November 16, 2012, Montgomery saw Jack Noble, M.D., for cough and congestion. (Tr. 235-237). At that time, Montgomery denied back pain, joint pain, joint swelling, arthritis, and sciatica. Id. Moreover, his musculoskeletal examination was normal. Id.
On November 26, 2012, Montgomery saw Richard D. Smith, M.D. for the first time. (Tr. 228-234). He complained of lumbar pain and stiffness in his right leg and hoarseness. Id. He described the severity of his symptoms as a 10/10. Id. Upon examination, Montgomery had decreased reflexes and weakness. Id. Straight leg raise was abnormal, tender upon palpation, with decreased range of motion. Id. Smith diagnosed diabetes mellitus, sciatica, and lumbar radiculopathy. Id. He prescribed diclofenac sodium for Montgomery's back pain. Id.
On December 11, 2012, Montgomery returned to Richard Smith, M.D., for a check-up. (Tr. 218-221). He again complained of back and right leg pain with symptoms radiating to his right leg. Id. He described the severity as an 8/10. Id. He first noticed the symptoms months ago. Id. His symptoms worsened with movement and bending. Id. Upon examination, his straight leg raise was abnormal, tender upon palpation, with decreased range of motion. Id. Smith diagnosed lumbar radiculopathy, sciatica, and diabetes mellitus. Id. This time, he prescribed hydrocodone-acetaminophen. Id.
Montgomery again saw Richard Smith, M.D., on January 28, 2013. (Tr. 214-217). He complained of pain in his back and right leg, with symptoms radiating to his right leg. Id. The severity was 9/10. Id. Montgomery explained that his symptoms usually lasted for months, and worsened with movement and walking. Id. Upon examination, he exhibited decreased reflexes and weakness. Id. His straight leg raise was abnormal. Id. He was tender to palpation, and had a decreased range of motion. Id. Smith diagnosed lumbar back pain with radiculopathy, and sciatica. Id.
On February 25, 2013, plaintiff saw Cynthia Brown-Manning, M.D. (Tr. 238-240). She diagnosed lumbago; neuralgia; radiculitis, unspecified; unspecified hypertension; type II diabetes mellitus; and muscle spasms. Id. Montgomery reported chronic back pain that started more than one year earlier. Id. He experienced daily symptoms, which had worsened since onset. Id. His pain radiated to his thighs and was described as a 10/10. Id. His symptoms were aggravated by lying down, bending, coughing, standing, and twisting. Id. Associated symptoms included leg pain, tingling, and weakness. Id. Montgomery indicated that his leg pain occurred at work years earlier. Id.
A March 15, 2013, MRI of the lumbar spine revealed mild multilevel degenerative joint disease, central disc bulging at the L5-S1 level encroaching slightly on the S1 nerve roots. (Tr. 242-243).
Dr. Manning's notes from March 18, 2013, reflect a positive straight leg raise test and decreased sensation and strength on the right side. (Tr. 245-247).
On May 20, 2013, Dr. Manning completed an attorney-supplied medical source statement. (Tr. 248). She indicated inter alia that Montgomery could lift nothing, and never bend stoop, or balance. Id. She described his pain as extreme. Id.
On May 16, 2013, at the request of the ALJ, Montgomery was examined by orthopedist James L. Zum Brunnen, M.D. (Tr. 250-251). Montgomery stated that he had lumbar pain that radiated mostly to the right leg for about one year. Id. Montgomery said that it "just came on." Id. He also reported having trouble with right shoulder and knee pain. Id. He used a cane. Id. His cervical spine motion was limited to 50 percent and was painful. Id. His right shoulder had a 50 percent loss of motion in all planes. Id. His left shoulder seemed normal. Id. Montgomery allowed no motion of the lumbar spine. Id. Zum Brunnen could not perform a valid test of the right hip because moving the leg caused plaintiff too much lumbar pain. Id. The knee joints showed no abnormality. Id.
Zum Brunnen noted that Montgomery did not appear to be able to walk or stand properly. Id. Furthermore, he would not be able to sit for more than one hour at a time. Id. He remarked that Montgomery demonstrated more symptoms regarding his right lower extremity than usually associated with the MRI findings. Id. He surmised that Montgomery could have nerve root compression. Id. Zum Brunnen opined that Montgomery would have limited walking, standing, and carrying ability. Id. He diagnosed right sciatica, lumbar disc protrusion, and lumbar spinal stenosis at L5-S1. Id. Zum Brunnen also completed a medical source statement. (Tr. 252-257). He indicated, inter alia, that Montgomery could occasionally lift and carry up to 20 pounds, but no more than that. Id. Montgomery also could not bend over to lift. Id. He could sit, stand, and walk for a total of no more than five hours per day. Id. For the remainder of the workday, he would need to be recumbent. Id. Zum Brunnen also indicated that a cane was medically necessary. Id. Montgomery could never operate foot controls, and reaching was limited with his right hand. Id. Unfortunately, Zum Brunnen did not hazard an opinion as to the onset date of the foregoing limitations. Id.
Social Security Ruling 83-20 outlines the policy and procedure by which the Commissioner should determine the onset date of a disability. TITLES II AND XVI: ONSET OF DISABILITY ("SSR 83-20") (1983). The court incorporates the following pertinent excerpts:
SSR 83-20 (emphasis added).
Citing SSR 83-20, the Fifth Circuit has confirmed that, in cases involving slowly progressive impairments, where the medical evidence regarding the onset date of a disability remains ambiguous and the Commissioner must infer the onset date, the inference must be made with the assistance of a medical advisor. Spellman v. Shalala, 1 F.3d 357, 362 (5
In this case, Drs. Zum Brunnen and Manning each completed medical source statements in May 2013, that found extreme limitations of functioning attributable to plaintiff's lumbar disc disease. (Tr. 248, 252-257). However, the ALJ determined that, prior to January 1, 2013, plaintiff's "back problems" were non-severe impairments. (Tr. 21). It so doing, it is manifest that he relied on Dr. Hebert's May 2012 consultative report, which did not include any definitive diagnosis of spinal impairment. See Tr. 22-23. However, Dr. Hebert's impression was premised, at least in part, on the dearth of objective evidence to identify any specific spinal impairment. Id. Of course, approximately ten months later, an MRI of the lumbar spine revealed objective evidence to support plaintiff's subjective complaints of back pain radiating to his leg(s). (Tr. 242-243). Whether or not the irregularities identified by the MRI would have been present in May 2012 — thereby undermining the basis for Dr. Hebert's opinion — is unknown.
In any event, the medical evidence confirms that in July 2012, Montgomery complained to Dr. J. M. Smith of right lower back pain that radiated to his right leg (possibly caused by a fall). (Tr. 201). In September, Montgomery returned to Dr. Smith with complaints of nocturnal leg pain. (Tr. 202). Smith diagnosed degenerative joint disease of the back at that time Id. At his first visit with Dr. Richard Smith on November 26, 2012, plaintiff demonstrated decreased reflexes and range of motion, a positive straight leg test, and received a diagnosis of lumbar radiculopathy. (Tr. 228-234).
Thus, even if Dr. Hebert's report could support a finding that plaintiff's back impairment was non-severe in May 2012, the uncontroverted medical and testimonial evidence establishes that by November 26, 2012, Montgomery's back impairment had progressed to the point that it potentially affected his ability to work. Although the ALJ remarked that Dr. Richard Smith did not assign any significant functional limitations, Tr. 23, there is no indication that Dr. Smith considered the effects of plaintiff's impairments. Moreover, plaintiff was not even working at that time.
In his decision, the ALJ stated that it was reasonable to conclude that the debilitating limitations of functioning endorsed by Dr. Zum Brunnen should be extended retroactively only until January 1, 2013. (Tr. 24). However, there is no evidence to support January 1, 2013, as the date that plaintiff's back pain first began to significantly impact his ability to work. Rather, the latest date supported by the existing record is November 26, 2012, with evidence of onset between July-September 2012 — or earlier, if the conditions revealed by the 2013 MRI were present in May 2012, thus undermining Dr. Hebert's findings. (Tr. 201).
For these reasons, the court finds that the ALJ's step two determination that, prior to January 1, 2013, plaintiff's radiating back pain was a non-severe impairment that did not affect his ability to work, is not supported by substantial evidence. Furthermore, despite the requirement that the ALJ must consider all of plaintiff's medically determinable impairments in his residual functional capacity assessment,
Relatedly, the court further finds that plaintiff's back pain constitutes a slowly progressive impairment, with ambiguous medical evidence regarding the disability onset date. Accordingly, the ALJ was obliged to infer the onset date, with the assistance of a medical advisor. Spellman v. Shalala, 1 F.3d 357, 362 (5
The foregoing errors tainted the ALJ's step five determination, and thus, materially affected his decision for the period prior to January 1, 2013. Remand is required.
For the above-stated reasons,
IT IS RECOMMENDED that the Commissioner's decision be REVERSED and REMANDED pursuant to the fourth sentence of 42 U.S.C. § 405(g) for further proceedings consistent herewith.
Under the provisions of 28 U.S.C. §636(b)(1)(C) and FRCP Rule 72(b), the parties have
TITLES II AND XVI: DETERMINING CAPABILITY TO DO OTHER WORK—THE MEDICAL-VOCATIONAL RULES OF APPENDIX 2, SOCIAL SECURITY RULING 83-10.
20 C.F.R. 404.1567(a).
The court notes that unless the Commissioner decides to reopen Montgomery's prior application, it seems that the earliest onset of disability for purposes of the instant application is limited to May 18, 2012 — the day after the final denial of plaintiff's prior application. See Tr. 59, 137. The parties, however, did not discuss this issue in their memoranda; it may be addressed on remand, as warranted.
