THOMAS C. MUMMERT, III, Magistrate Judge.
This is an action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of the final decision of Carolyn W. Colvin, the Acting Commissioner of Social Security (the Commissioner), denying Kenneth Green's applications for disability insurance benefits (DIB) under Title II of the Social Security Act (the Act), 42 U.S.C. § 401-433, and for supplemental security income (SSI) under Title XVI of the Act, 42 U.S.C. § 1381-1383b. All matters are pending before the undersigned United States Magistrate Judge with consent of the parties pursuant to 28 U.S.C. § 636(c).
Kenneth Green (Plaintiff) applied for DIB and SSI in June 2011, alleging that he became disabled on June 15, 2010, because of depression, chronic obstructive pulmonary disease (COPD), high blood pressure, and high cholesterol. He was fifty-three years of age when he applied for benefits. (R.
Because the final decision is not supported by substantial evidence on the record as a whole, the decision of the Commissioner is reversed.
Plaintiff, represented by counsel, and Robin Cook testified at the administrative hearing.
Plaintiff testified that he lives alone in a recreational vehicle parked on his sister's property. He has three children. Plaintiff has a twelfth grade education and has received no other education or training. Plaintiff received worker's compensation in 1991 or 1992 and unemployment benefits in 2008 and 2009 during off-season periods in relation to seasonal work he was then performing. (
Plaintiff explained that he stopped working because he could not keep up with the demands of the job given the pace of the work and the breathing difficulties he had in the hot and dusty environment.
Plaintiff first noticed his breathing difficulties about five years ago when he could not sleep or would wake up coughing and not being able to breathe. His breathing has worsened within the past two or three years. He is currently unable to pick up an object and walk without needing to set it down because of coughing and gasping for air. Dust, heat, and bending over aggravate his breathing condition. He experiences intermittent episodes of shortness of breath and sometimes can walk only short distances before becoming short of breath. At other times, he can walk greater distances. Plaintiff regularly takes medication for his breathing condition and uses a rescue inhaler ten to fifteen times a day when he is short of breath. (
Plaintiff experiences shortness of breath doing any type of physical activity but also has coughing spells while sitting and watching television, which lead to shortness of breath. Plaintiff's coughing spells last a minute or two and occur up to twelve or fifteen times a day. He uses his emergency inhaler during such spells, but it takes three to seven minutes before the inhaler is effective. (
Also, Plaintiff has breathing problems and coughing spells at night, causing him to be tired and unable to function upon getting up in the morning. His doctor has provided him an oxygen/breathing machine to use at night. Plaintiff stopped smoking over one year ago; his breathing has improved some since. Plaintiff testified, however, that his doctor has advised him that his breathing condition will worsen over time. (
Plaintiff experiences depression and previously reached a point where he "just didn't care." (
Asked about his exertional abilities, Plaintiff testified that he can walk approximately 100 to 150 feet and then must sit for twenty to thirty minutes. He can comfortably lift forty-five pounds without getting short of breath but cannot do it constantly throughout the day. (
Asked about his daily activities, Plaintiff testified that he listens to the radio and goes for walks outside until he is unable to breathe. He then sits for a while before walking back home. Plaintiff associates with his sister and her husband. He plays very little with his grandchildren and his sister's grandchildren; they must leave him alone after about ten minutes because he is unable to breathe. (
Asked to classify Plaintiff's past work, Robin Cook, a vocational expert, described his past work as a factory worker/laborer, factory worker/molding machine operator, and concrete mixing truck driver as medium and semiskilled; his work as a roll-off truck operator was medium to heavy and semiskilled. (
The ALJ asked Ms. Cook to consider Plaintiff to be limited to medium work and to further assume that Plaintiff should avoid fumes, odors, dust, gases, and extremes in humidity. Plaintiff's mental impairment limited him to unskilled work. Ms. Cook testified that Plaintiff would be unable to perform any of his past relevant work but could perform other medium work such as dining room attendant. Also, he could perform light work such as office helper and sewing machine operator. (
Plaintiff's counsel asked Ms. Cook to assume the person described by the ALJ to be further limited to standing and walking for four hours in an eight-hour workday. She responded that such a person could continue to perform work as a sewing machine operator. The job of sewing machine operator would also remain available to a person limited to two hours of standing and walking. (
The medical records before the ALJ are summarized below in chronological order beginning with those of Plaintiff's admission to the Phelps County Regional Medical Center in July 2010 after he made suicidal statements to his ex-wife and, in response to her 911 call, had taken by the Crawford County sheriff's department to a jail facility where he remained on suicide watch for seven days because there were no psychiatric beds available. Plaintiff was then fifty-two years of age. At the medical center, Plaintiff reported to Dr. Zulfikar Rasool Vali that he had feelings of depression for the past ten years but that his depression had recently worsened. Plaintiff had not sought psychiatric help in the past. Plaintiff reported that he currently felt sad, had difficulty concentrating and sleeping, and was worried about finances. He had lost his job in January because of an offense of driving while intoxicated (DWI). Plaintiff further reported that his alcohol consumption had increased over the years but that alcohol was not a problem for him. Also, he had used drugs between the ages of thirteen and twenty-two. Plaintiff described always feeling dead but he did not want to do anything to harm himself. He denied any psychotic or manic symptoms. Dr. Vali noted that Plaintiff was disheveled in appearance. Dr. Vali further noted no involuntary movements. On examination, Plaintiff was oriented to time, place, and person; his eye contact was poor; his affect was constricted; his insight and judgment seemed partial. Plaintiff described his mood as "sucks." No delusions or hallucinations were reported. Plaintiff denied any suicidal thoughts or plans but reported that he had a wish to be dead. He was tearful at one point during the evaluation. Plaintiff was diagnosed with alcohol dependence and polysubstance abuse versus dependence by history. Mood disorder secondary to chronic substance use, recurrent major depressive disorder, and dysthymia were to be ruled out. Plaintiff was assigned a Global Assessment of Functioning (GAF) score of 25.
During his stay at the medical center, Plaintiff was given Celexa and began an assessment for alcohol withdrawal. Dr. Vali recommended that Plaintiff participate in inpatient rehabilitation at the Salem Treatment Center, but because of Plaintiff's uncertainty regarding continuing inpatient care, he was discharged from the medical center six days after admission. On discharge, Plaintiff was oriented to time, place, and person; was conscious and alert; had good eye contact; had a constricted affect; had partial insight and judgment; and was partly cooperative. Psychomotor agitation, but no involuntary movements, were noted. Plaintiff reported that his mood was okay. His diagnoses were unchanged. Dr. Vali assigned him a GAF score of 50.
In September, Robert Cottone, Ph.D., a psychological consultant with disability determinations, completed a Psychiatric Review Technique Form (PRTF) after reviewing Plaintiff's July 2010 mental health records and his reported activities of daily living. Dr. Cottone opined that Plaintiff's affective disorder and alcohol and polysubstance abuse caused moderate restrictions in activities of daily living; moderate difficulties in maintaining social functioning and in maintaining concentration, persistence, or pace; and resulted in no repeated episodes of decompensation of extended duration. (
In a Mental Residual Functional Capacity (RFC) Assessment completed that same date, Dr. Cottone opined that Plaintiff was markedly limited in his ability to understand, remember, and carry out detailed instructions, but was not significantly limited in his abilities regarding very short and simple instructions, including his ability to make simple work-related decisions. Plaintiff was moderately limited in his ability to maintain attention and concentration for extended periods, to complete a normal workday and workweek without interruptions from psychologically-based symptoms, to perform at a consistent pace without an unreasonable number and length of rest periods, to sustain an ordinary routine without special supervision, and to work in coordination or proximity to others without being distracted by them. Dr. Cottone opined that Plaintiff was not significantly limited in his ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances. As to Plaintiff's ability to interact socially, Dr. Cottone opined that Plaintiff was moderately limited in his abilities to interact appropriately with the general public, to accept instructions and respond appropriately to criticism from supervisors, and to get along with coworkers or peers without distracting them or exhibiting behavioral extremes. Plaintiff was not significantly limited in his abilities to ask simple questions, request assistance, maintain socially appropriate behavior, and adhere to basic standards of neatness and cleanliness. Finally, Dr. Cottone opined that Plaintiff had no significant limitations in his ability to adapt, that is, to respond appropriately to changes in the work setting, to be aware of normal hazards and take appropriate precautions, to travel in unfamiliar places or use public transportation, and to set realistic goals or make plans independently of others. (
In November, Plaintiff underwent a consultative psychological evaluation for purposes of determining his eligibility for Medicaid coverage. Plaintiff reported to Thomas J. Spencer, Psy.D., that he has thoughts of suicide every day and does not want to wake up. He has wanted to die for a long time but did not want to kill himself; he wanted someone else to do it for him. He had called his ex-wife in July and asked her to shoot him, after which he was taken to jail and then hospitalized. He had taken Celexa and trazodone after discharge but had been without medication for nearly two months due to a lack of insurance. And, he had no financial means to afford follow-up care. Dr. Spencer noted that Plaintiff was homeless and living in a tent on his sister's property. Plaintiff reported feeling hopeless and helpless and sleeping poorly at night. He was depressed most of the time. His attention and concentration were poor. Although reporting feeling antsy and restless, Plaintiff also reported that he lacked energy and motivation most days and spent his days lying around and watching television. His bad days outnumbered his good days. Dr. Spencer described Plaintiff as currently being irritable. Plaintiff denied any past or present drug or alcohol abuse. On examination, Plaintiff was cooperative; his eye contact was fair; his motor behavior was delayed; his speech was variable; his mood was "iffy"; his affect was irritable and sullen; his flow of thought was intact and relevant; his insight and judgment were questionable; his immediate and remote memory were adequate. There was no evidence of hallucinations or delusions. He was oriented to time, place, person, and situation. Plaintiff made limited errors during an assessment for attention and concentration. Upon conclusion of the evaluation, Dr. Spencer diagnosed Plaintiff with major depressive disorder, recurrent, moderate to severe, and anxiety disorder, not otherwise specified. Plaintiff was assigned a GAF score of 50-55.
In February 2011, Plaintiff went to the Medical Clinic of Owensville (Medical Clinic) for a checkup and complaints of insomnia, coughing with mucus production, and constant pain. Plaintiff reported that he sometimes coughs so forcefully he feels about to pass out. It was questioned whether Plaintiff had mild COPD, and laboratory and diagnostic testing was ordered. Plaintiff was prescribed Lisinopril for hypertension, Claritin and prednisone for allergies, and Naproxen for arthritis. (
Ten days later, Plaintiff returned to the Medical Clinic for follow up. Plaintiff reported that he needed to have his "cough gone." Plaintiff was prescribed a Z-pack for upper respiratory infection, and Medrol dose pack and Ventolin for mild COPD. Pulmonary function tests were ordered. (
Plaintiff followed up at the Medical Clinic on March 29, complaining of shortness of breath, mainly at night. Plaintiff reported that he was using his inhaler. He thought he was still ill inasmuch as he experienced fever and sweats. Plaintiff was diagnosed with chronic bronchitis and was prescribed an antibiotic. He was also prescribed Symbicort and Ventolin for mild COPD. (
Spirometry testing performed the following day showed Plaintiff to have moderately severe airway obstruction, consistent with moderate COPD as characterized by worsening airflow limitation with shortness of breath typically developing on exertion, and occasional cough and sputum production. (
On April 6, Plaintiff was seen at the Medical Clinic, prescribed Advair for mild COPD, and instructed to continue with Ventolin and to stop smoking. (
In August, Barbara Markway, Ph.D., a psychological consultant with disability determinations, completed a Psychiatric Review Technique Form, opining that Plaintiff's moderate major depressive disorder-recurrent, anxiety disorder, history of polysubstance abuse, and continued use of alcohol caused moderate restrictions in Plaintiff's activities of daily living; moderate difficulties in maintaining concentration, persistence, or pace; mild difficulties in maintaining social functioning; and no repeated episodes of decompensation of extended duration. (
Two weeks later, Plaintiff returned to the Medical Clinic for complaints of shortness of breath with exertion. Plaintiff denied any chest pain or edema. Examination of the lungs showed no wheezing or crackles. Plaintiff was prescribed Decadron and prednisone for COPD, and was instructed to increase his use of Advair and continue with Ventolin. Overnight oximetry testing was ordered. (
At a follow-up visit nine days later, on August 26, Plaintiff reported that he had quit smoking, was using his medication as prescribed, and was using a bilevel positive airway pressure (BiPAP) machine. He felt his COPD was better controlled. Plaintiff was instructed to continue with Advair and Ventolin and to finish his steroid medication. Plaintiff was also instructed to continue using the BiPAP machine for his sleep apnea. (
In January 2012, Plaintiff returned to the Medical Clinic, reporting shortness of breath and a cough. Examination showed trace expiratory wheeze. Plaintiff was diagnosed with COPD exacerbation and was prescribed prednisone. An injection of Decadron and Kenalog was administered. (
One month later, Plaintiff complained to the providers at the Medical Clinic that he experienced chest tightness and shortness of breath again with minimal exertion. Plaintiff reported having a frequent cough that produced clear mucus. Plaintiff was diagnosed with COPD exacerbation and was administered a Decadron/Kenalog injection. Prednisone and Cipro were prescribed, and Plaintiff was instructed to continue with Advair. He was referred to the Pulmonology Clinic. (
Plaintiff was seen at the Pulmonology Clinic on February 23 for evaluation of his complaints of shortness of breath. Plaintiff also reported having a chronic cough with production. Physical examination was essentially unremarkable. Pulmonary/chest examination showed wheezing but no respiratory distress. Dr. Umer Hafeez Siddiqui instructed Plaintiff to continue with Advair and Albuterol. Spiriva was added to his medication regimen. He was to return in two weeks. (
Chest x-rays taken four days later showed Plaintiff's lungs were hyperinflated, consistent with emphysematous lung changes. No acute processes were otherwise noted. (
Plaintiff returned to Dr. Siddiqui on March 8, reporting some improvement in his condition and that he was currently doing well. Plaintiff continued to complain of cough but experienced no shortness of breath. Dr. Siddiqui noted that pulmonary function tests showed moderately severe obstruction but with bronchodilator improvement. Physical examination was unremarkable in all respects. A pulmonary examination was normal. The possibility of beginning treatment with Isoniazid (INH) for latent tuberculosis (TB) was discussed, but Plaintiff reported a history of hepatitis and did not feel that he would avoid alcohol use. Dr. Siddiqui instructed Plaintiff to continue on his current medications and to return in three months. (
When Plaintiff returned, in May, Dr. Siddiqui noted that Plaintiff had begun treatment with INH on March 22 for latent TB. Plaintiff complained of shortness of breath, but experienced no coughing or wheezing. Physical examination was normal in all respects. Dr. Siddiqui described Plaintiff as doing well with his medication. Plaintiff was continued with his treatment plan and was instructed to return in three months. (
Plaintiff visited Dr. Siddiqui in August 10, complaining of increased shortness of breath but not of cough or fatigue. Dr. Siddiqui noted that Plaintiff's INH treatment had been stopped because of elevated liver function tests. Physical examination was normal in all respects. Dr. Siddiqui prescribed Doxycycline for COPD exacerbation and instructed Plaintiff to return in three months. (
When next seeing Dr. Siddiqui, in November, Plaintiff reported that he had had an increase in cough and shortness of breath. Plaintiff exhibited wheezing when examined. Plaintiff was prescribed prednisone and Levaquin for COPD exacerbation and was instructed to return in three months. (
The ALJ first found that Plaintiff met the insured status requirements of the Act through March 31, 2015. The ALJ further found that Plaintiff had not engaged in substantial gainful activity since June 15, 2010, the alleged onset date of disability. The ALJ determined that Plaintiff has severe impairments of COPD and depression, but did not have an impairment or combination of impairments that meets or medically equals the severity of a listed impairment. (
(
To be eligible for DIB and SSI under the Social Security Act, Plaintiff must prove that he is disabled.
To determine whether a claimant is disabled, the Commissioner engages in a five-step evaluation process.
The decision of the Commissioner must be affirmed if it is supported by substantial evidence on the record as a whole. 42 U.S.C. § 405(g);
To determine whether the Commissioner's decision is supported by substantial evidence on the record as a whole, the Court must review the entire administrative record and consider:
Plaintiff challenges the manner and method by which the ALJ determined his RFC — specifically, the weight accorded to Plaintiff's credibility and to the opinion evidence of record — as well as to the ALJ's failure to provide support for her RFC findings. Because it cannot be said that the ALJ's RFC determination is supported by substantial evidence on the record as a whole, the decision must be reversed and the matter remanded to the Commissioner for further proceedings.
A claimant's RFC is the most he can do despite his physical or mental limitations.
Before determining a claimant's RFC, the ALJ must first evaluate the claimant's credibility.
When rejecting a claimant's subjective complaints, the ALJ must make an express credibility determination detailing her reasons for discrediting the testimony.
Here, the ALJ cited inconsistencies in the record when finding Plaintiff's subjective complaints are not credible. First, the ALJ noted that the objective medical evidence of record failed to support the severity of symptoms as reported by Plaintiff. Specifically, the ALJ summarized evidence of Plaintiff's mental health examinations and treatment from July to November 2010 and found such evidence did not document significant limitations of mental functioning that would last twelve months in duration despite treatment. Additionally, the ALJ referred to evidence of Plaintiff's treatment in 2011 and 2012 for COPD and noted that, despite the intermittent nature of treatment, Plaintiff did not exhibit frequent exacerbations, prolonged symptomatic episodes despite treatment, or associated symptoms of breathing difficulties such as weakness or other physical abnormalities. Indeed, the medical record shows Plaintiff to consistently have had essentially normal physical examinations. The absence of objective medical evidence to support a claimant's allegations of disabling symptoms is one factor that the ALJ is required to consider in determining a claimant's credibility.
In addition to the lack of supporting objective medical evidence, the ALJ also noted that Plaintiff's symptoms were controllable with treatment and that Plaintiff experienced no side effects from his treatment or medications. With respect to Plaintiff's COPD, the record supports this determination. Impairments that are controllable or amenable to treatment do not support a finding of disability.
Plaintiff also contends that the ALJ erred by relying on his receipt of worker's compensation and unemployment benefits to discount his complaints of disabling symptoms. Plaintiff's argument is well taken. Although accepting unemployment benefits entails an assertion of an ability to work and is inconsistent with a claim of disability,
Plaintiff also complains that the ALJ discounted his credibility in part on an erroneous finding that Plaintiff repeatedly failed to comply with medication and treatment recommendations. (
The ALJ also determined that Plaintiff's complaints of limited daily activities were not credible, stating only that "[f]or the many reasons and factors that the claimant's allegations of disability are found not credible, so too are the claimant's allegations of severely limited daily activities found not credible." (R. at 21.) Other than this general statement, the ALJ does not discuss or address any of Plaintiff's daily activities or the extent to which such activities themselves are inconsistent with Plaintiff's subjective complaints. This is error.
Accordingly, although the ALJ's credibility determination has some support in the record, her improper, incomplete, and inaccurate consideration of other factors weakens her overall conclusion that the record undermined Plaintiff's credibility.
The ALJ also erred in her treatment of the opinion evidence in this case. When evaluating opinion evidence, an ALJ must explain in her decision the weight given to any opinions from treating sources, nontreating sources and nonexamining sources.
The record before the ALJ includes the opinion of Dr. Cottone, a State agency psychological consultant, that Plaintiff had moderate restrictions in activities of daily living as well as moderate difficulties in maintaining social functioning and in maintaining concentration, persistence, or pace. Dr. Cottone indicated specific circumstances wherein he believed Plaintiff would experience these limitations and concluded that Plaintiff "must avoid work involving intense or extensive personal interaction, handling complaints or dissatisfied customers, close proximity to coworkers, . . . and public contact." In August 2011, Dr. Markway, also a State agency psychological consultant, opined, as did Dr. Cottone, that Plaintiff experienced moderate restrictions in activities of daily living and moderate difficulties in maintaining concentration, persistence, or pace. Indicating specific circumstances of limitations, Dr. Markway opined that Plaintiff was moderately limited in his ability to interact appropriately with the general public but could interact appropriately with co-workers and supervisors. The ALJ's decision is devoid of any reference to these State agency opinions and thus, on its face, runs afoul of the dictates of SSR 96-6p and of the Regulations.
Both Dr. Cottone and Dr. Markway describe functional limitations more restrictive than those determined by the ALJ. Indeed, both opinions describe limitations in Plaintiff's ability to interact socially, whether with the general public, coworkers, or supervisors. The ALJ's analysis as to Plaintiff's RFC, however, contains no mention of any such limitations — not even to discredit any evidence or opinions relevant thereto. Because the extent to which the ALJ may credit or discredit Dr. Cottone's and Dr. Markway's opinions may affect the outcome of this case, the ALJ's failure to address these opinions and explain the weight given to them renders her decision of non-disability unsupported by substantial evidence. The "primary difficulty is not with the possibility that the ALJ discounted [the] opinion[;] . . . the problem with the ALJ's opinion is that it is unclear whether the ALJ did discount [the] opinion, and, if it did so, why."
The Commissioner argues that the ALJ did not err in failing to consider Dr. Cottone's opinion inasmuch as it was rendered prior to Plaintiff's current applications for benefits. This argument is without merit. The Commissioner is charged with the duty to review evidence about a claimant's medical impairment(s) that is material to a determination of whether the claimant is disabled during the period of alleged disability.
Plaintiff's alleged onset date of disability is June 15, 2010. As such, it cannot be said that Dr. Cottone's September 2010 opinion that addresses evidence of Plaintiff's mental impairment since July 2010 is not relevant or material to the Commissioner's determination of disability. Additionally, the Regulations require that the Commissioner consider a claimant's medical history for at least the twelve-month-period preceding the month in which the claimant's application for benefits is filed. 20 C.F.R. §§ 404.1512(d), 416.912(d). Inasmuch as Plaintiff's applications for benefits were filed in June 2011, Dr. Cottone's September 2010 opinion falls well within this twelve-month window.
The Commissioner offers no justification for the ALJ's failure to address Dr. Markway's August 2011 opinion.
Plaintiff's challenge to the ALJ's treatment of Dr. Spencer's November 2010 opinion is also well taken. In her written decision, the ALJ accorded little weight to Dr. Spencer's opinion that Plaintiff's mental impairment interfered with his ability to engage in employment, finding this opinion to be based on only a one-time examination and to be inconsistent with his objective medical findings that "indicated no deficits in cognition, thought process, speech, or psychomotor activity." (R. at 18.) Contrary to the ALJ's statement, however, Dr. Spencer objectively observed several deficits in Plaintiff's functioning, including that Plaintiff's motor behavior was delayed, his speech was variable, his mood and affect were irritable and sullen, and his insight and judgment were questionable. An inaccurate assessment of the evidence can serve as a basis for remand.
Finally, Plaintiff contends that the ALJ failed to articulate any support for her findings as to Plaintiff's physical RFC. An ALJ's RFC assessment must discuss and describe how the evidence supports each conclusion and must cite specific medical facts and nonmedical evidence in doing so, as well as resolve any material inconsistencies or ambiguities in the evidence of record. SSR 96-8p, 1996 WL 374184, at *7 (Soc. Sec. Admin. July 2, 1996). The ALJ failed to engage in this process here. Instead, a review of the ALJ's RFC analysis shows it to consist only of discrediting Plaintiff's subjective complaints as well as a recitation of what the medical evidence did not show with respect to Plaintiff's physical impairments. The ALJ engaged in no discussion or analysis of any evidence as it related to what Plaintiff is able to do despite his impairments. In the absence of any thoughtful discussion or analysis by the ALJ, this Court would be required to weigh the evidence in the first instance or review the factual record de novo in order to find the ALJ's RFC assessment to be supported by substantial evidence on the record as a whole. This the Court cannot do.
Because "[s]ubjective complaints . . . are often central to a determination of a claimant's RFC,"
In the instant case, the ALJ failed to properly evaluate Plaintiff's credibility and failed to properly analyze the medical evidence of record in this cause, resulting in an RFC determination that was not supported by substantial evidence on the record as a whole. The matter will therefore be remanded for further consideration. Although the undersigned is aware that the ALJ's decision as to non-disability may not change after properly considering all evidence of record and undergoing the required analysis,
Accordingly,
An appropriate Order of Remand shall accompany this Memorandum and Order.