JONATHAN D. GREENBERG, Magistrate Judge.
Plaintiff, Kathy Stubbs ("Plaintiff" or "Stubbs"), challenges the final decision of Defendant, Nancy A. Berryhill,
In April and May 2015, Stubbs filed applications for POD, DIB, and SSI, alleging a disability onset date of March 2, 2015 and claiming she was disabled due to "back injury, back pain, and knee pain." (Transcript ("Tr.") at 12, 167-174, 216.) The applications were denied initially and upon reconsideration, and Stubbs requested a hearing before an administrative law judge ("ALJ"). (Tr. 12, 107-137.)
On October 19, 2016, an ALJ held a hearing, during which Stubbs, represented by counsel, and an impartial vocational expert ("VE") testified. (Tr. 24-71.) On January 13, 2017, the ALJ issued a written decision finding Plaintiff was not disabled. (Tr. 12-19.) The ALJ's decision became final on October 5, 2017, when the Appeals Council declined further review. (Tr. 1-6.)
On November 29, 2017, Stubbs filed her Complaint to challenge the Commissioner's final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 15, 16, 17.) Stubbs asserts the following assignments of error:
(Doc. No. 15.)
Stubbs was born in April 1963 and was fifty-three (53) years-old at the time of her administrative hearing, making her a "person closely approaching advanced age," under social security regulations. (Tr. 18.) See 20 C.F.R. §§ 404.1563(d) & 416.963(d). She has at least a high school education and is able to communicate in English. (Id.) She has past relevant work as a cook (typically performed as medium but actually performed as heavy, SVP 2); short order cook (typically and actually performed as light, SVP 3); home health attendant (typically and actually performed as medium, SVP 3); mail handler (typically and actually performed as heavy, SVP 3); machine operator/production worker (typically and actually performed as medium, SVP 3); packager (typically performed as medium but actually performed as light, SVP 2); and delicatessen clerk (typically and actually performed as medium, SVP 2). (Tr. 17-18.)
The record reflects Stubbs was involved in an accident in 2009 "where she fell onto her knees while on an RTA bus." (Tr. 331.) Stubbs reported she subsequently developed swelling in her knees and was told she had ankle arthritis. (Id.) She was then in "stable health" until May 12, 2011 when she was again injured while taking public transportation. (Id.) Stubbs stated that a door closed on both of her legs, resulting in bruising in her knee area. (Id.) Several days later, she presented to the emergency room ("ER") where x-rays revealed a ligament tear. (Id.) Stubbs reported she then saw an orthopedist who "told her that she only had arthritis." (Id.)
On July 5, 2011, Stubbs presented to neurologist Harold Mars, M.D., with complaints of persistent bilateral knee pain, ankle pain, and mild leg weakness. (Tr. 331-333.) Physical examination findings were normal, including normal strength, sensation, and reflexes. (Id.) Dr. Mars found no neurologic deficit but did note Stubbs "constantly rubbed her hands against her knees." (Tr. 333.)
On January 9, 2013, Stubbs underwent an EMG of her bilateral legs, which revealed left tibial motor amplitude loss. (Tr. 342-343.)
Stubbs returned to Dr. Mars on December 12, 2013. (Tr. 334-335.) She reported that "overall she was stable until 11/25/12 when she was involved in a motor vehicle accident."
Stubbs underwent the MRIs on December 18, 2013. (Tr. 336-339.) The MRI of her cervical spine showed (1) a 1-2 mm central disc herniation at C3-4 with effacement of the ventral subarachnoid CSF space without cord impingement; (2) a 2 mm central disc herniation at C4-5 with minimal impingement on the ventral aspect of the cervical cord and narrowing of the right neural foramen; (3) a 4 mm central disc herniation at C5-6 with impingement on the ventral aspect of the cervical cord and narrowing of the neural foramina bilaterally; and (4) a 2-3 mm central disc herniation at C6-7 with effacement of the ventral subarachnoid CSF space, minimal impingement on the ventral aspect of the central cord, and narrowing of the left neural foramen. (Tr. 336-337.)
The MRI of her lumbar spine showed (1) a 1-2 mm central disc herniation at L1-L2 with no foraminal compromise; (2) a 2mm central disc herniation at L3-L4 with normal foramen; and
(3) minimal anterolisthesis of L4 over L5 with minimal disc bulging, narrowing of the neural foramina bilaterally due to paracentral disc encroachment and hypertrophic changes of the articular facets. (Tr. 338-339.)
On January 10, 2014, Stubbs returned to Dr. Mars. (Tr. 340-341.) Dr. Mars noted the results of Stubbs' imaging, as well as the results of her EMG which he stated showed "some minimal latency changes." (Id.) Physical examination findings were normal, although Dr. Mars found tightness in Stubbs' paraspinous musculature. (Id.) He prescribed Motrin 800 mg. (Id.)
On April 29, 2014, Stubbs presented to the ER with complaints of diffuse abdominal pain for the previous two days. (Tr. 252-255.) She rated her pain a 9 on a scale of 10, and described it as sharp, constant, and associated with nausea. (Tr. 253.) A CT of Stubbs' abdomen and pelvis showed (1) diverticulosis with no definite evidence of acute diverticulitis; (2) a subcentimeter hypodense lesion within the posterior medial right hepatic lobe too small to characterize; and (3) degenerative disc disease and facet arthrosis in the inferior lumbosacral region. (Tr. 258-259.) Stubbs was treated with Toradol and discharged in improved condition. (Tr. 253-254.)
On July 30, 2014, Stubbs presented to primary care physician Judith Weiss, M.D., with complaints of left ankle pain. (Tr. 310-313.) She reported experiencing a left ankle injury eight years previously, and indicated she had been referred to orthopedics in 2012 but never went. (Tr. 311.) On examination, Dr. Weiss noted normal range of motion in Stubbs' back, normal extremities, no edema except for left lateral ankle swelling, normal spinal range of motion, and intact muscular strength. (Tr. 312-313.) She diagnosed left ankle pain, ordered an x-ray of Stubbs' ankle, and referred her to orthopedics. (Tr. 313.)
On October 15, 2014, Stubbs presented to Maria Cordula Jain, M.D., at Express Care with complaints of ankle swelling and lower back pain. (Tr. 307-309.) On examination, Dr. Jain noted 2+ peripheral edema symmetric, and normal pulses. (Tr. 308.) She prescribed Neurontin, and advised Stubbs to elevate her legs and follow up with her primary care physician. (Id.)
Stubbs returned to Dr. Weiss on October 23, 2014. (Tr. 303-306.) She complained of worsening "total body pain," particularly in her back, neck, knees, ankles, and right shoulder. (Tr. 303-304.) On examination, Stubbs was in moderate distress. (Tr. 305.) Dr. Weiss noted diminished, "not normal" range of motion in Stubbs' back and spine, normal extremities, no edema, and intact muscular strength. (Tr. 305.) She assessed cervicalgia, lumbago, and lung nodule; ordered an x-ray of Stubbs' neck and a CT of her chest; and referred her to Neurology and Physical Medicine & Rehabilitation ("PM&R"). (Tr. 306.) In addition, Dr. Weiss noted as follows:
(Tr. 306.) On that same date, Stubbs underwent an x-ray of her neck. (Tr. 325.) This imaging revealed: "Straigtening of the cervical lordosis and general and slight retrolisthesis of C5 on C6 in particular. Degenerative spurring is seen at this level and also at C6-7." (Id.)
Several days later, on October 28, 2014, Stubbs presented to Michelle Geraci-Rambasek, M.D., at Express Care with complaints of left lower calf pain and chronic swelling of her bilateral lower legs. (Tr. 301-302.) Examination revealed tenderness to palpation in Stubbs' left lower extremity with some enlarged varicose veins, normal knee range of motion, and some swelling around the patella. (Id.) Dr. Geraci-Rambasek assessed left lower leg pain of "unclear etiology," which she thought could be a possible muscle strain or early thrombophlebitis. (Id.) She ordered a duplex ultrasound to rule out possible deep vein thrombosis, and advised Stubbs to use cool compresses, elevate her legs, and take Naprosyn for pain. (Id.)
On October 29, 2014, Stubbs underwent a CT of her chest, which revealed a "stable 4 mm nodule in the left upper lobe" which was "now considered benign." (Tr. 321-322.) On that same date, she underwent an ultrasound of her left leg, which showed "no evidence for an acute deep venous thrombosis within the left lower extremity from the groin to the knee." (Tr. 319.)
On November 6, 2014, Stubbs presented to Preeti Gandhi, M.D., with complaints of neck and lower back pain. (Tr. 293-300.) She rated her pain an 8 on a scale of 10, and stated it had been present for the past two years as a result of the 2012 motor vehicle accident. (Tr. 294.) Stubbs indicated she had seen "PM&R" (i.e., Physical Medicine & Rehabilitation), participated in physical therapy, and taken Gabapentin, Naprosyn, and Lidocaine patches but "none of these help much." (Tr. 295.) She reported her pain worsened with forward flexion, prolonged activity, and cold temperatures. (Tr. 294.) Stubbs indicated her "duration for standing is 5 minutes, sitting is 5 minutes, and walking is 5 minutes." (Id.) She also reported fatigue and sleep disturbance. (Id.)
Dr. Gandhi noted Stubbs' "description of symptoms is very vague— says pain sometimes goes down the legs in a non-dermatomal pattern." (Tr. 295.) On examination, Dr. Gandhi noted mildly to severely painful range of motion on flexion, extension, and rotation; tenderness to palpation; normal sensation; normal motor strength in Stubbs' bilateral upper and lower extremities; and normal fine motor coordination. (Tr. 296.) Dr. Gandhi's treatment note is internally contradictory with regard to her other findings. Specifically, Dr. Gandhi noted normal 2+ reflexes at one point but then found only trace reflexes in Stubbs' ankles and 1+ reflexes in her triceps, biceps, and brachioradialis. (Id.) Additionally, Dr. Gandhi initially described Stubbs' gait as normal, but later stated it was slow. (Id.)
Dr. Gandhi found Stubbs' "description of symptoms is consistent with lumbar spondylosis with possible element of [degenerative disc disease]/radiculitis (although only occasional radiation of pain to her leg, in a non-dermatomal pattern)." (Tr. 299.) She recommended pool therapy and weight control, and increased her Gabapentin dosage. (Id.) Dr. Gandhi also ordered "lumbar MBBs;" which appears to be a reference to lumbar medial branch blocks. (Id.)
On November 11, 2014, Stubbs presented to neurologist Hari Prasad Kunhi Veedu, M.D., for evaluation of her chronic neck and back pain. (Tr. 289-292.) She reported she had quit her job as a home health aide because of muscle spasms and an inability to lift patients. (Tr. 290.) Stubbs reported neck spasms and stiffness, as well as chronic back pain shooting to her right leg "at times." (Id.) Physical examination findings were normal, including normal motor strength, tone, and bulk; normal sensation; normal reflexes, and normal gait. (Tr. 292.) Dr. Veedu ordered an MRI of her lumbar spine and prescribed lidoderm patches. (Id.)
On November 19, 2014, Stubbs presented to Dr. Weiss. (Tr. 286-288.) Dr. Weiss advised her "this is going to be a long rehabilitation." (Tr. 287.) On examination, she noted "sluggish but symmetrical" reflexes and 4/5 strength in Stubbs' right hip. (Tr. 288.) Dr. Weiss assessed osteoarthritis, and referred her to a pain management program. (Id.)
Stubbs returned to Dr. Weiss on December 9, 2014. (Tr. 284-285.) She reported she "has gotten better with chiropractic and physical therapy," and rated her pain a 3 on a scale of 10. (Id.) Stubbs indicated she was "now working at UPS doing transport of equipment and supplies" and was "able to get up and down from truck and carry packages." (Id.) She complained of neck stiffness and occasional tingling in her hands. (Id.) Physical examination findings were normal. (Id.)
On January 16, 2015, Stubbs presented to Xiaozhou Tang, M.D., at Express Care with complaints of worsening muscle spasms and back pain. (Tr. 281-283.) She also reported tingling in her fingers. (Tr. 282.) On examination, Dr. Tang noted mild tenderness in Stubbs' lumbar area. (Tr. 283.) She referred Stubbs to Physical Medicine & Rehabilitation. (Id.)
On January 19, 2015, Dr. Mars wrote a letter in response to a request for information from one of Stubbs' attorneys. (Tr. 344-346.) After recounting Stubbs' treatment history, Dr. Mars stated as follows:
(Tr. 345-346.)
On April 14, 2015, Dr. Mars authored another letter to Stubbs' attorney. (Tr. 349.) In this letter, he stated as follows:
(Id.)
On June 25, 2015, Stubbs returned to Dr. Tang with complaints of worsening back pain, "after she was running with loose shoes chasing someone." (Tr. 416-418.) Stubbs indicated she was "requesting today and tomorrow off work because of the back pain." (Tr. 416.) On examination, Dr. Tang noted limited range of motion and mild tenderness in Stubbs' back. (Tr. 417.) She administered a Toradol injection and prescribed Flexeril. (Id.)
Stubbs returned to Dr. Weiss on June 30, 2015. (Tr. 413-415.) Dr. Weiss noted as follows:
(Tr. 414.) On examination, Stubbs was in mild distress and exhibited difficulty with waist flexion. (Id.) Physical examination findings were otherwise normal, including normal range of motion in Stubbs' back, normal reflexes, and normal strength. (Id.) Dr. Weiss referred Stubbs to Physical Medicine, and advised her to take her Flexeril as prescribed. (Id.)
On September 29, 2015, Stubbs presented to Dr. Weiss with complaints of pain in her knees, back, wrists, and shoulders. (Tr. 411.) Dr. Weiss noted as follows:
On November 1, 2015, Stubbs presented to the ER with complaints of right shoulder pain for the previous two weeks, radiating to her neck. (Tr. 432-447.) Examination revealed mild right trapezius muscle spasm and tenderness and right posterior rotator cuff tenderness. (Tr. 437.) Stubbs underwent an x-ray of her right shoulder which revealed degenerative change of the right AC joint with periarticular osteophytosis and bony reactive changes of the greater tuberosity, "which can be seen in association with rotator cuff tendonopathy/tear." (Tr. 441.) Stubbs was diagnosed with right rotator cuff tendinitis, and provided a shoulder immobilizer. (Tr. 438.)
On November 9, 2015, Stubbs presented to Physical Medicine & Rehabilitation physician Antwon Morton, D.O. (Tr. 493-498.) She complained of neck, back, and right shoulder pain, which she rated an 8 on a scale of 10. (Id.) Stubbs described her neck and back symptoms as follows:
(Tr. 494.) She also reported memory loss since her motor vehicle accident. (Id.)
On examination, Dr. Morton noted cervical tenderness and slightly diminished range of motion with no evidence of spasms or trigger points; shoulder tenderness with normal range of motion; normal pulses and sensation; increased lumbar lordotic curvature; lumbar tenderness to palpation with no evidence of spasm or trigger points; decreased lumbar range of motion; negative straight leg raise; pain with FABER and facet loading testing; and reduced (4/5) strength in her shoulders, elbows, and hips. (Tr. 496-497.) He assessed lower back pain secondary to spondylosis with associated muscle tightness and right shoulder pain likely due to AC joint arthropathy and possibly bicepital tendinosis. (Tr. 497.) Dr. Morton referred Stubbs to physical therapy and advised her to continue taking Ibuprofen. (Id.)
On December 24, 2015, Stubbs presented for her first session of physical therapy. (Tr. 489-492.) On this date, Stubbs' therapy session was limited to her shoulder condition only, with later sessions to address her lower back pain. (Tr. 489.) Stubbs reported her shoulder pain was generally between a 0 and 5 on a scale of 10, and exacerbated by lifting, reaching, dressing, and housework. (Tr. 490.) Examination revealed tenderness to palpation in Stubbs' cervical spine and right shoulder region; diminished range of motion in her cervical spine on extension and rotation; and reduced (4/5) strength in her bilateral biceps, triceps, and wrists. (Tr. 491.) Her therapist, Charles Duber, P.T., found Stubbs had the following impairments: "Pain, Decreased Range of Motion (shoulders/neck), decreased strength (shoulders/scapular weakness), Decreased Flexibility (UT, Levator, pectorals), Decreased Function, Postural Deviation, Lack of Home Exercise Program, and Poor body mechanics." (Tr. 492.) Mr. Duber indicated Stubbs' prognosis for therapy was good. (Id.)
The record reflects Stubbs thereafter presented for physical therapy sessions for her right shoulder on January 8, 15, 22, and 29, 2016 and February 2 and 5, 2016. (Tr. 463-481.) During these visits, Stubbs reported some improvement in her shoulder pain but continued to complain of neck pain and "clicking/popping." (Tr. 480, 477, 474, 471-472, 468, 464.) Stubbs rated her pain a 5 on a scale of 10 during these sessions. (Id.)
Meanwhile, on January 6, 2016, Stubbs established care with certified nurse practitioner Melissa Seidowski, CNP. (Tr. 482-488.) She complained of insomnia and "gasping for air in the middle of the night for about 1 year or possibly longer." (Tr. 484.) Physical examination findings were normal, including normal breath sounds, normal range of motion in Stubbs' neck, no edema, no back or neck tenderness, normal motor and sensory function, and no focal deficits. (Tr. 485.) Nurse Seidowski assessed obesity and insomnia, and referred Stubbs for a sleep study. (Tr. 485-486.) Stubbs subsequently underwent the sleep study, which revealed moderate to severe obstructive sleep apnea. (Tr. 452-455.)
On February 23, 2016, Stubbs returned to physical therapy to address her lower back and hip pain. (Tr. 459-462.) She rated her pain a six on a scale of 10, and indicated it worsened with prolonged sitting, standing, and walking, as well as with lifting, bending, and ascending/descending stairs. (Tr 460.) On examination, the therapist noted increased lumbar lordosis, reduced (3 to 4 on a scale of 5) muscle strength, diffuse tenderness to palpation throughout Stubbs' lower back, negative straight leg raise, positive Patricks/Faber bilaterally; and an independent gait. (Tr. 461.) The therapist found the following impairments: "Pain, Decreased Range of Motion (hip), Decreased Strength (hip/core weakness), Decreased Flexibility (quads, hip flexors, pinformis), Postural Deviation, Decreased Gait Status, Lack of Home Exercise Program, and Poor body mechanics." (Tr. 462.)
Stubbs returned to Nurse Seidowski on March 8, 2016. (Tr. 456-458.) She reported exercising 2 to 3 times per week, and cutting down on fast and fried foods. (Id.) Stubbs complained of right shoulder pain and low back pain with sciatica. (Id.) She indicated the pain was slowly improving with physical therapy and she was gaining increased range of motion. (Id.) Physical examination findings were normal. (Tr. 458.)
On March 28, 2016, Stubbs presented to Lisa Lanzara, CNP, at Express Care with complaints of right hip pain that began the previous month. (Tr. 448-451.) She rated her pain a 6 on a scale of 10, and reported the pain was a 7 on a scale of 10 when exercising. (Tr. 449.) On examination, Nurse Lanzara noted normal breath sounds with no wheezes or rales, normal range of motion in Stubbs' neck, and pain on palpation to her right hip with full range of motion and no edema. (Tr. 449.) She ordered an x-ray of Stubbs' right hip, which revealed as follows:
(Tr. 499.) Nurse Lanzara recommended motrin, rest, ice, and heat, and advised Stubbs to follow up with her primary care physician. (Tr. 451.)
Stubbs returned to PM&R physician Dr. Morton on May 25, 2016. (Tr. 592-597.) She complained of diffuse body pain, most notably in her neck, right shoulder, and low back. (Id.) She rated her pain a 9 on a scale of 10, and described it as constant. (Id.) Examination of Stubbs' neck reveled normal lordotic curvature, normal range of motion, negative Spurling's maneuver, and diffuse tenderness. (Tr. 596.) Examination of her right shoulder revealed tenderness to palpation, full range of motion, intact sensation, and positive Hawkin-Kennedy, Neers, Empty can, and Scarfs. (Id.) Other examination findings included normal pulses; normal breathing; normal sensation; reduced strength in Stubbs' right shoulder, right elbow, and hip; and decreased stride length but otherwise normal gait. (Id.) Dr. Morton concluded Stubbs "likely has fibromyalgia along with rotator cuff tendinopathy and right trochanteric bursitis." (Id.) He ordered blood work to rule out other disorders, and administered injections in Stubbs' right hip and shoulder. (Id.)
Several days later, on May 29, 2016, Stubbs presented to the ER with complaints of pain in her neck, back, and abdomen, and difficulty breathing. (Tr. 531-548.) She rated her pain a 10 on a scale of 10. (Tr. 535.) Examination revealed normal breathing sounds, decreased range of motion and tenderness in her cervical spine, and tenderness and pain in her thoracic spine. (Tr. 537.) A CT of her cervical spine taken that date showed moderate degenerative changes throughout her spine. (Tr. 540.) She was prescribed pain medication and discharged home. (Tr. 538.)
Stubbs returned to Nurse Seidowski on June 8, 2016. (Tr. 579-591.) Examination findings were normal with the exception of tenderness to palpation in Stubbs' cervical spinal muscles. (Tr. 585-586.) Nurse Seidowski referred Stubbs to neurology and reminded her to see a sleep doctor in light of her positive sleep study. (Id.)
On August 9, 2016, Stubbs presented to the ER with a knee injury sustained while she was trying to catch the bus. (Tr. 504-518.) She stated she was unable to walk, described her pain as sharp and severe, and rated it a 10 on a scale of 10. (Tr. 507.) Examination revealed diffuse swelling and bony tenderness in Stubbs' left knee. (Tr. 508.) An x-ray taken that date was normal. (Tr. 512.) Stubbs was placed in a knee immobilizer, given crutches, and discharged home with instructions to follow up with orthopedics. (Tr. 509.)
On September 1, 2016, Stubbs returned to Dr. Morton. (Tr. 549-553.) She complained of diffuse body pain, but her primary complaint was her left knee pain and swelling. (Tr. 550.) Stubbs indicated the pain was "slowly resolving but she uses crutches to ambulate" and limps secondary to pain. (Id.) Examination revealed tenderness in Stubbs' left knee, normal pulses, normal sensation, reduced strength in her right shoulder, right elbow, and hip; and antalgic gait with decreased stride length. (Tr. 553.) Dr. Morton planned to wean Stubbs off her crutches as the pain resolved, and recommended over the counter pain gel. (Id.)
On July 9, 2015, state agency physician Lynne Torello, M.D., reviewed Stubbs' medical records and completed a Physical Residual Functional Capacity ("RFC") Assessment. (Tr. 77-79.) Dr. Torello found Stubbs could lift and carry 20 pounds occasionally and 10 pounds frequently; stand and/or walk about 6 hours in an 8 hour workday; and sit for about 6 hours in an 8 hour workday. (Id.) She further concluded Stubbs had an unlimited capacity to push and/or pull and balance. (Id.) Stubbs could frequently stoop, kneel, crouch, crawl, and climb ramps and stairs, but never climb ladders, ropes or scaffolds. (Id.) Finally, Dr. Torello found Stubbs should avoid all exposure to hazardous machinery and unprotected heights. (Id.)
On August 31, 2015, state agency physician Abraham Mikalov, M.D., reviewed Stubbs' medical records and completed a Physical RFC Assessment. (Tr. 98-100.) Dr. Mikalov reached the same conclusions as Dr. Torello. (Id.)
During the October 19, 2016 hearing, Stubbs testified to the following:
The VE testified Stubbs had past work as a cook (medium performed as heavy, unskilled, SVP 2); short order cook (light, semiskilled, SVP 3); mail handler (heavy, semiskilled, SVP 3); machine operator/production worker (medium, semiskilled, SVP 3); packager (medium performed as light, unskilled, SVP 2); deli clerk (medium performed as light, unskilled, SVP 2); home health aide (medium, semiskilled, SVP 2). (Tr. 64-65.) The ALJ then posed the following hypothetical question:
(Tr. 65-66.)
The VE testified the hypothetical individual would be able to perform Stubbs' past work as a short order cook (light, semiskilled, SVP3) and "maybe the packager job," (medium performed as light, unskilled, SVP 2). (Tr. 67-68.) The VE further explained the hypothetical individual would also be able to perform other representative jobs in the economy, such as wire worker (light, unskilled); electronics worker (light, unskilled); and assembly press operator (light, unskilled). (Tr. 68-69.)
The ALJ then asked a second hypothetical that was the same as the first but at the sedentary exertional level. (Tr. 68.) The VE testified that the hypothetical individual would not be able to perform any of Stubbs' past work and "she would have no skills that would transfer to other sedentary work either." (Id.)
Stubbs' counsel then asked the VE "if I were to limit the hypothetical person to standing and walking only four hours a day, would they be able to do any of the light jobs you cited or any light jobs?" (Tr. 69.) The VE testified: "Not really. There are some jobs that would allow for that that might be, you know, under the same job description. But I would describe those as sedentary jobs." (Id.)
Stubbs' counsel then asked the VE to assume the first hypothetical with the additional limitation that the individual was limited to occasional reaching with the non-dominant hand. (Tr. 70.) The VE testified "that wouldn't have any affect on the jobs that I've mentioned here earlier." (Id.)
In order to establish entitlement to DIB under the Act, a claimant must be insured at the time of disability and must prove an inability to engage "in substantial gainful activity by reason of any medically determinable physical or mental impairment," or combination of impairments, that 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." 20 C.F.R. §§ 404.130, 404.315 and 404.1505(a).
A claimant is entitled to a POD only if: (1) she had a disability; (2) she was insured when she became disabled; and (3) she filed while she was disabled or within twelve months of the date the disability ended. 42 U.S.C. § 416(i)(2)(E); 20 C.F.R. § 404.320.
A disabled claimant may also be entitled to receive SSI benefits. 20 C.F.R. § 416.905; Kirk v. Sec'y of Health & Human Servs., 667 F.2d 524 (6th Cir. 1981). To receive SSI benefits, a claimant must meet certain income and resource limitations. 20 C.F.R. §§ 416.1100 and 416.1201.
The Commissioner reaches a determination as to whether a claimant is disabled by way of a five-stage process. 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4). See also Ealy v. Comm'r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010); Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). First, the claimant must demonstrate that she is not currently engaged in "substantial gainful activity" at the time of the disability application. 20 C.F.R. §§ 404.1520(b) and 416.920(b). Second, the claimant must show that she suffers from a "severe impairment" in order to warrant a finding of disability. 20 C.F.R. §§ 404.1520(c) and 416.920(c). A "severe impairment" is one that "significantly limits . . . physical or mental ability to do basic work activities." Abbot, 905 F.2d at 923. Third, if the claimant is not performing substantial gainful activity, has a severe impairment that is expected to last for at least twelve months, and the impairment, or combination of impairments, meets or medically equals a required listing under 20 CFR Part 404, Subpart P, Appendix 1, the claimant is presumed to be disabled regardless of age, education or work experience. See 20 C.F.R. §§ 404.1520(d) and 416.920(d). Fourth, if the claimant's impairment or combination of impairments does not prevent her from doing her past relevant work, the claimant is not disabled. 20 C.F.R. §§ 404.1520(e)-(f) and 416.920(e)-(f). For the fifth and final step, even if the claimant's impairment does prevent her from doing her past relevant work, if other work exists in the national economy that the claimant can perform, the claimant is not disabled. 20 C.F.R. §§ 404.1520(g), 404.1560(c), and 416.920(g).
Here, Stubbs was insured on her alleged disability onset date, March 2, 2015, and remained insured through September 30, 2018, her date last insured ("DLI.") (Tr. 12.) Therefore, in order to be entitled to POD and DIB, Stubbs must establish a continuous twelve month period of disability commencing between these dates. Any discontinuity in the twelve month period precludes an entitlement to benefits. See Mullis v. Bowen, 861 F.2d 991, 994 (6th Cir. 1988); Henry v. Gardner, 381 F.2d 191, 195 (6th Cir. 1967).
The ALJ made the following findings of fact and conclusions of law:
(Tr. 12-19.)
"The Social Security Act authorizes narrow judicial review of the final decision of the Social Security Administration (SSA)." Reynolds v. Comm'r of Soc. Sec., 2011 WL 1228165 at * 2 (6th Cir. April 1, 2011). Specifically, this Court's review is limited to determining whether the Commissioner's decision is supported by substantial evidence and was made pursuant to proper legal standards. See Ealy v. Comm'r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010); White v. Comm'r of Soc. Sec., 572 F.3d 272, 281 (6th Cir. 2009). Substantial evidence has been defined as "`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.'" Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quoting Cutlip v. Sec'y of Health and Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)). In determining whether an ALJ's findings are supported by substantial evidence, the Court does not review the evidence de novo, make credibility determinations, or weigh the evidence. Brainard v. Sec'y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989).
Review of the Commissioner's decision must be based on the record as a whole. Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). The findings of the Commissioner are not subject to reversal, however, merely because there exists in the record substantial evidence to support a different conclusion. Buxton v. Halter, 246 F.3d 762, 772-3 (6th Cir. 2001) (citing Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)); see also Her v. Comm'r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999)("Even if the evidence could also support another conclusion, the decision of the Administrative Law Judge must stand if the evidence could reasonably support the conclusion reached.") This is so because there is a "zone of choice" within which the Commissioner can act, without the fear of court interference. Mullen, 800 F.2d at 545 (citing Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984)).
In addition to considering whether the Commissioner's decision was supported by substantial evidence, the Court must determine whether proper legal standards were applied. Failure of the Commissioner to apply the correct legal standards as promulgated by the regulations is grounds for reversal. See, e.g.,White v. Comm'r of Soc. Sec., 572 F.3d 272, 281 (6th Cir. 2009); Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2006) ("Even if supported by substantial evidence, however, a decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right.").
Finally, a district court cannot uphold an ALJ's decision, even if there "is enough evidence in the record to support the decision, [where] the reasons given by the trier of fact do not build an accurate and logical bridge between the evidence and the result." Fleischer v. Astrue, 774 F.Supp.2d 875, 877 (N.D. Ohio 2011) (quoting Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir.1996); accord Shrader v. Astrue, 2012 WL 5383120 (E.D. Mich. Nov. 1, 2012) ("If relevant evidence is not mentioned, the Court cannot determine if it was discounted or merely overlooked."); McHugh v. Astrue, 2011 WL 6130824 (S.D. Ohio Nov. 15, 2011); Gilliam v. Astrue, 2010 WL 2837260 (E.D. Tenn. July 19, 2010); Hook v. Astrue, 2010 WL 2929562 (N.D. Ohio July 9, 2010).
In her first assignment of error, Stubbs argues the ALJ failed to properly evaluate the medical evidence. (Doc. No. 15 at 11-16.) She maintains "the only medical evidence cited by the ALJ was an office note from Dr. Weiss dated September 29, 2015," and "no mention was made regarding any of the additional medical evidence in this matter." (Id. at 14.) Specifically, Stubbs asserts the ALJ failed to mention or address the medical evidence relating to her back, breathing, or knee impairments. (Id.) She maintains the ALJ cherry-picked the evidence by failing to address "evidence which would not have supported his RFC finding that Stubbs could perform work at the light exertional level." (Id. at 15.)
The Commissioner argues the ALJ properly evaluated the medical evidence in assessing Stubbs' RFC. (Doc. No. 16 at 7-10.) She notes the ALJ gave "great weight" to the opinions of the state agency physicians (Drs. Torello and Mikalov), both of whom had an opportunity to review the medical record. (Id. at 8.) The Commissioner notes the ALJ, in fact, included more restrictive limitations than that proposed by the state agency physicians (including occasional postural limitations and a restriction against working in extreme cold) in order to account for Stubbs' subjective complaints. (Id.) She asserts that, read as a whole, the ALJ decision fully addresses the medical evidence regarding Stubbs' various impairments at other steps in the sequential evaluation. (Id. at 8-9.) Specifically, the Commissioner notes the ALJ discussed the medical evidence regarding Stubbs' knee and breathing impairments at step two, and evaluated the evidence regarding her back impairments at step three. (Id.) Finally, the Commissioner argues "to the extent that Plaintiff argues that the ALJ did not describe every piece of evidence or every treatment note, she has not identified any error because the ALJ is not required to discuss every piece of evidence." (Id. at 10.) Rather, she maintains "the ALJ considered the evidence as a whole, acknowledged Plaintiff's underlying complaints, and reached a reasoned conclusion." (Id.)
In her Reply Brief, Stubbs argues the ALJ's reliance on the state agency physician opinions is misplaced because those physicians "did not review any evidence submitted after" their July and August 2015 decisions. (Doc. No. 17 at 2.) Stubbs further argues the evidence cited in the Commissioner's brief in support of the RFC constitutes "post hoc rationalizations to justify the ALJ's failure to properly evaluate the medical evidence in this matter." (Id.)
The RFC determination sets out an individual's work-related abilities despite his or her limitations. See 20 C.F.R. § 416.945(a). A claimant's RFC is not a medical opinion, but an administrative determination reserved to the Commissioner. See 20 C.F.R.§ 416.927(d)(2).
"In rendering his RFC decision, the ALJ must give some indication of the evidence upon which he is relying, and he may not ignore evidence that does not support his decision, especially when that evidence, if accepted, would change his analysis." Fleischer, 774 F.Supp.2d at 880 (citing Bryan v. Comm'r of Soc. Sec., 383 Fed. Appx. 140, 148 (3d Cir. 2010) ("The ALJ has an obligation to `consider all evidence before him' when he `mak[es] a residual functional capacity determination,' and must also `mention or refute [. . .] contradictory, objective medical evidence' presented to him.")). See also SSR 96-8p at *7, 1996 WL 374184 (SSA July 2, 1996) ("The RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted.")). While the RFC is for the ALJ to determine, however, it is well established that the claimant bears the burden of establishing the impairments that determine his RFC. See Her v. Comm'r of Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999).
It is well established there is no requirement that the ALJ discuss each piece of evidence or limitation considered. See, e.g., Conner v. Comm'r, 2016 WL 4150919, at *6 (6th Cir. Aug. 5, 2016) (citing Thacker v. Comm'r, 99 Fed. Appx. 661, 665 (6th Cir. May 21, 2004) (finding an ALJ need not discuss every piece of evidence in the record); Arthur v. Colvin, 2017 WL 784563, at *14 (N.D. Ohio Feb. 28, 2017) (accord). However, courts have not hesitated to remand where an ALJ selectively includes only those portions of the medical evidence that places a claimant in a capable light, and fails to acknowledge evidence that potentially supports a finding of disability. See e.g., Gentry v. Comm'r of Soc. Sec., 741 F.3d 708, 724 (6th Cir.2014) (reversing where the ALJ "cherry-picked select portions of the record" rather than doing a proper analysis); Germany-Johnson v. Comm'r of Soc. Sec., 313 Fed. App'x 771, 777 (6th Cir. 2008) (finding error where the ALJ was "selective in parsing the various medical reports"). See also Ackles v. Colvin, 2015 WL 1757474 at * 6 (S.D. Ohio April 17, 2015) ("The ALJ did not mention this objective evidence and erred by selectively including only the portions of the medical evidence that placed Plaintiff in a capable light."); Smith v. Comm'r of Soc. Sec., 2013 WL 943874 (N.D. Ohio March 11, 2013) ("It is generally recognized that an ALJ "may not cherry-pick facts to support a finding of non-disability while ignoring evidence that points to a disability finding."); Johnson v. Comm'r of Soc. Sec., 2016 WL 7208783 (S.D. Ohio Dec. 13, 2016) ("This Court has not hesitated to remand cases where the ALJ engaged in a very selective review of the record and significantly mischaracterized the treatment notes.").
Here, at step two, the ALJ determined Stubbs suffered from the severe impairments of spine disorders, skin cancer, and osteoarthritis. (Tr. 14.) He determined Stubbs' shoulder, knee, and breathing were non-severe, explaining as follows:
(Tr. 14-15.)
At step three, the ALJ found Stubbs' impairments did not meet or equal the requirements of a Listing. (Tr. 15-16.) He considered evidence relevant to Listings 1.02 and 1.04 as follows:
(Tr. 15-16.)
The ALJ then proceeded to step four. The entirety of the ALJ's analysis at this step is as follows:
(Tr. 16-17.) The ALJ assessed the following RFC:
(Tr. 16.)
For the following reasons, the Court finds the ALJ failed to meaningfully address the medical evidence regarding Stubbs' neck, back, and knee impairments. Specifically, while the ALJ discussed some of the medical evidence at steps two, three and four, the decision failed to address the majority of Stubbs' treatment records, failed to acknowledge or address the abnormal objective findings documented by her physicians, and misstated the evidence in several respects. As set forth below, the deficiencies in the ALJ's decision are so pervasive and severe as to preclude meaningful appellate review.
First, the Court agrees with Stubbs that the ALJ failed to evaluate the majority of the medical evidence in the record. Even reading the decision as a whole, it is clear the ALJ cited to only a handful of Stubbs' many treatment records and objective test results. Indeed, a review of the decision reveals the ALJ specifically cited and discussed only three of Stubbs' treatment records: (1) Dr. Morton's September 1, 2016 treatment note indicating he intended to wean Stubbs off her crutches (Tr. 553, cited as Exhibit 9F page 5); (2) Dr. Mars' January 19, 2015 letter indicating Stubbs was neurologically intact and her EMG was negative for radiculopathy (Tr. 344-346, cited as Exhibit 3F page 17); and (3) Dr. Weiss' September 29, 2015 treatment note finding Stubbs had not "cooperated with attempting to repair/restore/rehabilitate her back" (Tr. 411 cited as Exhibit 5F page 1.) (Tr. 15-17.) The ALJ ignored, however, the many other treatment notes in the record, many of which included abnormal physical examination findings as follows:
The ALJ's failure to address these treatment notes is particularly concerning in light of the fact the decision otherwise fails to acknowledge or address any of the abnormal physical examination findings documented in the record. While an ALJ need not discuss every piece of evidence, here it appears the ALJ only mentioned certain treatment records which supported the RFC while failing to acknowledge or evaluate treatment records that did not. As noted above, an ALJ "may not ignore evidence that does not support his decision, especially when that evidence, if accepted, would change his analysis." Fleischer, 774 F. Supp.2d at 880 (citing Bryan, 383 Fed. Appx. at 148 ("The ALJ has an obligation to `consider all evidence before him' when he `mak[es] a residual functional capacity determination,' and must also `mention or refute [. . .] contradictory, objective medical evidence' presented to him.")). See also Gentry, 741 F.3d at 724 (reversing where the ALJ "cherry-picked select portions of the record" rather than doing a proper analysis); Germany-Johnson, 313 Fed. App'x at 777 (finding error where the ALJ was "selective in parsing the various medical reports"); Ackles, 2015 WL 1757474 at * 6 ("The ALJ did not mention this objective evidence and erred by selectively including only the portions of the medical evidence that placed Plaintiff in a capable light.")
The ALJ's error in this regard is compounded by the fact that the decision mischaracterized some of the evidence that was cited. Perhaps most egregious, the ALJ purported to reproduce the results of Stubbs' December 2013 lumbar MRI verbatim but, in fact, a careful review reveals the ALJ omitted that same report's most concerning finding; i.e., that Stubbs had anterolisthesis of L4 over L5 with narrowing of the neural foramina bilaterally due to paracentral disc encroachment and hypertrophic changes of the articular facets.
The Commissioner nonetheless argues remand is not required because the ALJ accorded "great weight" to state agency physicians Drs. Torello and Mikalov, both of whom reviewed Stubbs' medical records. This argument is without merit. As Stubbs correctly notes, Drs. Torello and Mikalov submitted opinions in July and August 2015 and, therefore, did not have the opportunity to review the many treatment records post-dating their opinions, including Stubbs' physical therapy notes; the treatment records of Dr. Morton, Nurse Seidowski, and Nurse Lanzara; and treatment records associated with Stubbs' ER visits in November 2015, May 2016, and August 2016. While "[t]here is no categorical requirement that the non-treating source's opinion be based on a `complete' or `more detailed and comprehensive' case record," Helm v. Comm'r of Soc. Sec., 2011 WL 13918 at * 4 (6th Cir. Jan. 4, 2011), the Sixth Circuit does require "some indication that the ALJ at least considered [later treatment records] before giving greater weight to an opinion that is not `based on a review of a complete case record.'" Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 409 (6th Cir. 2009) (quoting Fisk v. Astrue, 253 Fed. Appx. 580, 585 (6th Cir. 2007)). Here, the ALJ failed to consider these later treatment records in any meaningful way, at any point in the decision. Thus, the Court finds the ALJ's reliance on the state agency physicians' opinion is insufficient to cure his failure to meaningfully address the medical evidence regarding Stubbs' neck, back, and knee impairments.
In sum, the ALJ's evaluation and discussion of the medical evidence is so deficient that it precludes meaningful appellate review.
As this matter is being remanded for further proceedings, and in the interests of judicial economy, the Court will not consider Stubbs' remaining assignments of error.
For the foregoing reasons, the Commissioner's final decision is VACATED and the case REMANDED for further consideration consistent with this decision.
