GREG WHITE, Magistrate Judge.
Plaintiff Kimberly Jenkins ("Jenkins") challenges the final decision of the Acting Commissioner of Social Security, Carolyn Colvin ("Commissioner"), denying her claim for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("Act"), 42 U.S.C. § 1381 et seq. This matter is before the Court pursuant to 42 U.S.C. § 405(g) and the consent of the parties entered under the authority of 28 U.S.C. § 636(c)(2).
For the reasons set forth below, the final decision of the Commissioner is VACATED and the case is REMANDED for further proceedings consistent with this opinion.
On September 1, 2010, Jenkins filed an application for SSI alleging a disability onset date of July 29, 2010 and claiming she was disabled due to a herniated disc in her lower back, chronic obstructive pulmonary disease ("COPD"), and asthma. (Tr. 46, 221, 236-237.) Her application was denied both initially and upon reconsideration. (Tr. 158-160, 165-167.) Jenkins timely requested an administrative hearing.
On March 4, 2013, an Administrative Law Judge ("ALJ") held a hearing during which Jenkins, represented by counsel, and an impartial vocational expert ("VE") testified. (Tr. 64-108.) On March 20, 2013, the ALJ found Jenkins was able to perform a significant number of jobs in the national economy and, therefore, was not disabled. (Tr. 46-58.) The ALJ's decision became final when the Appeals Council denied further review.
Age forty-four (44) at the time of her administrative hearing, Jenkins is a "younger" person under social security regulations. See 20 C.F.R. § 416.963(c). (Tr. 56, 72.) Jenkins has an 11
Jenkins has a history of chronic lower back pain. In March 2008, Jenkins underwent an MRI of her lumbar spine, which showed (1) mild generalized disc bulging at L4-5 with borderline impingement upon bilateral intrathecal L5 nerve roots; and, (2) a suspected 4 mm central disc herniation at L5-S1 with mild bilateral facet arthropathy without overt neural foraminal narrowing. (Tr. 463.) An MRI of Jenkins' cervical spine showed minimal bulging at C5-7, but was otherwise unremarkable. (Tr. 464.)
On April 15, 2010, Jenkins presented to the emergency room ("ER") with complaints of back pain after apparently being involved in motor vehicle accident the week before.
On April 30, 2010, Jenkins presented to Anita Hackstedde, M.D., for treatment of her asthma and chronic back pain. (Tr. 313.) Dr. Hackstedde's treatment notes indicate that Jenkins "has had some problems with illicit drug use in the past, I do not think she is an appropriate candidate for us to prescribe any narcotics whatsoever." Id. Jenkins returned to Dr. Hackstedde in June 2010, at which time she was referred for pain management. (Tr. 312.)
On June 25, 2010, Jenkins presented to psychiatrist K.R. Kaza, M.D., for "follow-up medication management and supportive therapy" relating to her complaints of nightmares, flashbacks, depression, anxiety and "low energy." (Tr. 349.) Jenkins denied hallucinations and suicidal feelings. Id. It is unclear from the medical record what medications she was taking at this time, but it appears she had been prescribed Valium for her anxiety. (Tr. 312.)
In August 2010, Jenkins presented to David Cola, D.O., for treatment of her "long history of chronic back pain with herniated discs." (Tr. 310.) She reported "difficulty walking, pain down her legs, [and being] numb from the knees down." Id. Dr. Cola's treatment note indicates Jenkins "walks with a cane." Id. On examination, Dr. Cola noted negative straight leg raise bilaterally; and, "full range of motion of the lumbosacral spine with pain at the extremes of range of motion, pushing on her thigh to get up." Id. Dr. Cola also noted that "the patient stated she had to walk with a cane, but when she left the room, she walked down the hall without any difficulty or limp." Id. Nevertheless, Dr. Cola gave Jenkins a prescription for a cane and referred her to pain management. Id.
Jenkins continued to see Dr. Kaza on a regular basis for treatment of her mental conditions. In October 2010, she complained of mood swings and depression, and was continued on her treatment plan of "pharmacotherapy/psychotherapy." (Tr. 347.) In December 2010, Jenkins complained of nightmares and flashbacks; was continued on her medications; and, was given support and insight therapy. (Tr. 345.)
On January 5, 2011, Jenkins was evaluated by consultative psychological examiner Vernon Brown, Ph.D. (Tr. 318-326.) She reported a history of head trauma as a result of a motor vehicle accident in April 2009, and "episodes of domestic violence." (Tr. 320.) She complained of night sweats, night terrors, crying spells, "feeling sad all the time," panic attacks, and visual and auditory hallucinations. (Tr. 320-322.) Dr. Brown described Jenkins' attitude as "evasive" and her mood as "mildly dysphoric." (Tr. 321.) He summarized his conclusions as follows:
(Tr. 324-325.)
On January 29, 2011, state agency physician Jerry McCloud, M.D., reviewed Jenkins' medical records and completed a Physical Residual Functional Capacity ("RFC") Assessment. (Tr. 139-140, 143.) Dr. McCloud concluded Jenkins was capable of lifting and/or carrying 50 pounds occasionally and 25 pounds frequently; standing and/or walking for about 6 hours in an 8 hour workday; and, sitting for about 6 hours in an 8 hour workday. (Tr. 139.) He further found she had unlimited push/pull capacity and no postural, manipulative, or environmental limitations.
The next day, state agency psychologist Steven J. Meyer, Ph.D., reviewed Jenkins' records and completed a Mental RFC Assessment. (Tr. 140-142.) Dr. Meyer opined Jenkins had no understanding or memory limitations, but that she was moderately limited in her abilities to carry out detailed instructions; maintain attention and concentration for extended periods; and, complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. (Tr. 140.) In addition, Dr. Meyer found Jenkins was moderately limited in her abilities to interact appropriately with the general public and to respond appropriately to changes in the work setting. (Tr. 141.) In sum, Dr. Meyer concluded Jenkins was "capable of simple and moderately complex routine work, in setting with regular expectations, occasional intermittent interactions with others and few changes." Id.
On February 7, 2011, Jenkins presented to Kristen Hymes, D.O. (Tr. 353-354.) At this visit, Jenkins complained of chronic low back pain and indicated that a "Dr. Munda"
Later that month, on February 11, 2011, Jenkins returned to Dr. Kaza for treatment of her anxiety and depression. (Tr. 343.) She indicated Valium wasn't helping and she was "just tight as a knot." Id. She reported feeling increased anxiety and depression, as well as constant back pain. Id. It appears she requested, and was prescribed, Xanax. Id.
On March 8, 2011, Jenkins presented to the ER complaining of back pain. (Tr. 336-340.) She reported a gradual onset of symptoms resulting in difficulty walking. (Tr. 337-338.) The ER doctor noted Jenkins "can walk without assistance but with some difficulty." (Tr. 338.) Examination revealed bony tenderness over L2-S1; a moderately abnormal Patrick's test bilaterally; moderately abnormal straight leg raise test bilaterally; and, moderate stiffness with decreased range of motion of the lumbar spine. Id. Jenkins was prescribed Decadron and discharged in stable condition.
On April 21, 2011, Jenkins reported to the ER for treatment of a dog bite after a "friend sicked a pit bull dog" on her. (Tr. 342, 351, 365-366.) She had 27 sutures placed on her face, and was prescribed antibiotics. (Tr. 351, 365-372.) She presented to Dr. Kaza the next day for follow-up treatment. (Tr. 342.) Dr. Kaza's treatment note indicates Jenkins was "on Vicodin" and "unsteady on her feet." Id. He described her mood as "very very low" and noted "terrible self isol[ation] at home." Id. At this visit, Jenkins reported "hearing voices." Id. She stated she was out of Valium and Xanax and requested additional medication. Id.
Jenkins presented to Dr. Cola on May 2, 2011 for removal of the sutures. (Tr. 351-352.) She requested narcotics but Dr. Cola refused to prescribe them. Id. Later that day, Jenkins presented to the ER seeking narcotic pain medication. (Tr. 360-361.) According to the ER treatment notes, Jenkins "left after she was told narcotics were not indicated for her condition." (Tr. 360.)
On June 16, 2011, Jenkins presented to Dr. Cola for evaluation of an elevated heart rate. (Tr. 420-421.) She reported chronic back pain and indicated she used a cane. (Tr. 420.) Dr. Cola referred Jenkins to a cardiologist; ordered blood work; and, advised her to continue her pain medication. (Tr. 421.) Jenkins returned to Dr. Cola in October 2011 with complaints of continued back pain. (Tr. 419.) She reported that physical therapy had not worked, but stated she had been walking and exercising more. Id. Dr. Cola noted full range of motion in Jenkins' lumbosacral spine and a negative straight leg raise bilaterally. Id. He referred her for "ortho/pain management." Id.
Jenkins thereafter began treatment with chiropractor William F. Grubbs, D.C. in October 2011. (Tr. 388.) During her initial visit, Jenkins presented with a cane, and generally reported feeling "miserable all the time" as a result of her neck and back pain. Id. Although difficult to decipher, Dr. Grubbs' examination appeared to reveal increased cervical, thoracic, and lumbar pain, tenderness, limited range of motion, and joint fixation. Id.
In November 2011, Jenkins reported to her gynecologist Fu Nen Lee, M.D., that she continued to have leaking urinary incontinence, particularly when lifting and bending. (Tr. 394.) Jenkins was referred to urologist Christopher A. Stiff, M.D., who examined her in January 2012. (Tr. 399.) Dr. Stiff noted that Jenkins complained of night time incontinence, urgency, and leaking with coughing and sneezing. (Tr. 399.) He ordered a urodynamic study, which revealed some rotation of her bladder neck and bladder instability, but no signs of obstruction or malignancy. (Tr. 401-405.) Dr. Stiff believed Jenkins' largest problem was urge incontinence, and prescribed Vesicare. (Tr. 405.) In a subsequent visit with Dr. Lee, Jenkins continued to report "uncontrolled leaking of urine in the form of urge incontinence and urinary stress incontinence." (Tr. 500.) Dr. Lee renewed Jenkins' Vesicare prescription. Id.
Meanwhile, in February 2012, Dr. Grubbs completed a Medical Source Statement regarding Jenkins' physical capacity. (Tr. 461-462.) Therein, Dr. Grubbs offered that Jenkins could lift and/or carry a maximum of 20 pounds occasionally and 5 pounds frequently; and that her abilities to stand, walk, and sit were not affected by her impairment. (Tr. 461.) Dr. Grubbs further found Jenkins could (1) frequently balance, stoop, and crouch; (2) frequently reach, handle, feel, and engage in fine and gross manipulation; (3) occasionally climb, kneel, and crawl; and, (4) occasionally push/pull. (Tr. 461-462.) Dr. Grubbs opined Jenkins was restricted from heights, moving machinery, temperature extremes, chemicals, dust, noise and fumes. (Tr. 462.) He concluded she needed an at-will sit/stand option and, further, that she would need rest periods in addition to a morning break, lunch, and afternoon break. Id. Finally, he noted Jenkins had been prescribed a brace and tens unit, but not a cane. Id.
Jenkins returned to Dr. Grubbs in April, May, June, July, September, and December 2012. (Tr. 413, 425-427, 466-467.) During these visits, Dr. Grubbs generally noted cervical, thoracic, and lumbar pain and tenderness, fixation, and often (although not always) decreased range of motion. Id. Her condition appears to have remained principally unchanged throughout this time period. Id.
Meanwhile, on April 6, 2012, Dr. Kaza completed a Medical Source Statement regarding Jenkins' mental capacity.
In May 2012, Jenkins reported to Dr. Kaza for follow up medication management and supportive therapy. (Tr. 454-455.) She denied delusions and hallucinations, and reported that her nightmares were under "good control." (Tr. 455.) Dr. Kaza placed Jenkins on Zoloft for depression; Valium for nightmares; and, Xanax for anxiety. Id. On June 1, 2012, Jenkins returned to Dr. Kaza and reported she had stopped taking Zoloft because "it didn't work for me." (Tr. 453.) He changed her medication to Effexor. Id. Jenkins returned to Dr. Kaza later that month, at which time she was crying and anxious because someone "stole [her] meds" and "Social Security took my son's money and only gave me $400 for him." (Tr. 452.) Dr. Kaza continued Jenkins on her meds and encouraged her to maintain a stable mood, eat healthy foods, exercise regularly, and follow-up with a medical doctor. Id.
On June 10, 2012, Jenkins presented to the ER with complaints of dizziness, abdominal pain and back pain. (Tr. 475-482.) She complained of generalized lower abdominal pain; lower back pain; chronic fatigue; and, general weakness. (Tr. 476.) Jenkins was described in treatment notes as "thrashing in the bed, hyperventilating, crying." (Tr. 478.) A CT scan was performed of her abdomen/pelvis, which showed that her liver, spleen, adrenal glands, kidneys, pancreas, appendix, and bladder were all unremarkable. (Tr. 488.) The scan did reveal follicular changes to Jenkins' left ovary and a small amount of nonspecific free fluid in her pelvis. Id. Jenkins was diagnosed with chronic pain; intervertebral disc prolapse; vomiting symptom; abdominal colic; and, leukocytosis. (Tr. 482.) The ER doctor administered Ativan and Demerol; prescribed four tablets of Percocet; and, discharged Jenkins in an improved condition. (Tr. 478-479.)
Jenkins began treatment with Thomas Ranieri, M.D., in June 2012. (Tr. 428-429.) At her first visit, she complained of neck, lower back, and right leg pain, which she described as constant, aching, stabbing, and throbbing. (Tr. 428.) On examination, Dr. Ranieri noted decreased range of motion; pain on flexion, extension, rotation and side bend; positive straight leg testing; positive Patrick's test for back pain; positive heel and toe walk; 1+ reflexes in the upper extremities, patella, and ankles; tandem gait; tenderness over the spinous process; and, paraspinal muscle spasm. Id. He ordered x-rays and an MRI of Jenkins' lumbar spine; a total skeletal bone scan; and, an EMG of both legs. (Tr. 429.)
The x-rays and bone scan were conducted on June 22, 2012 and reported as normal. (Tr. 473, 474.) Jenkins underwent the MRI on July 5, 2012. (Tr. 470-471.) It revealed the following: (1) at L5-S1, moderate generalized disc bulging, impinging upon bilateral S1 intrathecal nerve roots, as well as mild bilateral facet arthropathy and borderline neural foraminal narrowing; and, (2) at L4-L5, mild generalized disc bulging with borderline impingement upon bilateral L5 intrathecal nerve roots, as well as mild facet arthropathy and ligamentum flavum hypertrophy creating minimal bilateral neural foraminal narrowing. (Tr. 471.)
Jenkins returned to Dr. Ranieri on July 16, 2012, at which time he again observed decreased range of motion; pain on flexion, extension, rotation and side bends; positive straight leg raising; positive Patrick's test for back pain; positive heel and toe walk; tandem gait; paraspinal muscle spasm; and, decreased mobility. (Tr. 431-432.) He diagnosed lumbosacral radiculopathy and lumbar degenerative disc disease; and, ordered lumbar facet blocks. (Tr. 432.)
On July 27, 2012, Jenkins underwent an Adult Diagnostic Assessment and Mental Status Exam with Steven Ilko, L.P.C.C. (Tr. 438-450.) At this time, Jenkins reported a history of physical and sexual abuse; and, past and present substance abuse. (Tr. 438, 439, 442, 443.) She complained of increased depression, anxiety, post-traumatic stress, and anger. (Tr. 443, 444.) Jenkins indicated her current medications included Valium, Xanax, and Trazadone. (Tr. 441.) She was diagnosed with Post-Traumatic Stress Disorder ("PTSD") and cannabis abuse; and, assessed a GAF of 47. (Tr. 447.) Jenkins agreed to undergo counseling and continue with her medications. (Tr. 447.)
The following month, Dr. Kaza completed an Initial Psychiatric Evaluation of Jenkins. (Tr. 434-437.) Jenkins reported she was "angry all the time" and wanted "to hurt somebody all the time." (Tr. 434.) She indicated her night terrors had stopped, and her panic attacks had decreased. Id. Dr. Kaza described Jenkins' demeanor as hostile, mistrustful, and preoccupied. (Tr. 435.) He stated she had a flat affect, and described her mood as depressed, angry, and irritable. (Tr. 436.) Dr. Kaza diagnosed PTSD; assigned a GAF of 50; and, continued Jenkins on Valium, Xanax, and Trazadone. (Tr. 436-437.)
On September 7, 2012, Dr. Kaza completed another Medical Source Statement regarding Jenkins' mental capacity. (Tr. 459-460.) Once again, he rated Jenkins "poor" in nearly every listed category. The only exceptions were that Jenkins was rated "fair" in terms of her abilities to maintain appearance; leave home on her own; and, understand, remember, and carry out complex job instructions.
Meanwhile, Jenkins returned to Dr. Ranieri in August, September, and October 2012, and January 2013. (Tr. 503-510.) Throughout this time period, Jenkins continued to complain of neck, lower back, and right leg pain, which she variously rated between a 7 and 10 on a scale of 10. Id. Dr. Ranieri generally found decreased range of motion; pain on flexion, extension, rotation and side bends; positive straight leg raising; positive Patrick's test for back pain; positive heel and toe walk; and, tandem gait. (Tr. 503, 505, 507.) On January 29, 2013, Dr. Ranieri noted Jenkins had an "antalgic gait [and] dec[reased] sensation in fingers and toes and hyperalgesia and hyperpathi in CS and LS area, + occipital tenderness." (Tr. 509.) On that date, he ordered spinal mapping in the lumbar and cervical spine areas and steroid injections in Jenkins' right knee. (Tr. 510.) Dr. Ranieri's treatment notes indicate Jenkins' medications included Ultram, Vicodin, Voltaren, and Tramadol. (Tr. 509-510.)
Finally, on February 1, 2013, Jenkins returned to Dr. Kaza, complaining that "[t]his bipoliar is killing me. . . I'm up and down!" (Tr. 511.) Dr. Kaza's treatment notes indicate Jenkins presented with a flat affect, and describe her "behavior/functioning" as angry, anxious, and irritable. Id. Jenkins again reported a decrease in her nightmares and panic attacks. Id. Dr. Kaza prescribed Lamictal to address her mood swings. Id.
During the March 4, 2013 hearing, Jenkins testified to the following:
The VE testified Jenkins had past relevant work as an extrusion press operator (light, unskilled, SVP 2) and a child monitor (medium, semi-skilled, SVP 3). (Tr. 100.) The ALJ then posed the following hypothetical:
(Tr. 101.) The VE testified such an individual could not perform Jenkins' past work and, further, would not be able to perform any other jobs at the medium level. Id.
The ALJ then asked:
(Tr. 102.) The VE testified such an individual could not perform Jenkins' past work, but could perform other jobs such as mail clerk (in a business setting, as opposed to the postal service) (light, unskilled, SVP 2); small products assembler (light, unskilled, SVP 2); and, sewing machine operator (light, unskilled, SVP 2). (Tr. 102-103.)
The ALJ then added to the following limitation to the above hypothetical: "said individual would require the opportunity to alternate between sitting and standing and/or walking one to two minutes every half hour without being off task." (Tr. 103.) The VE testified such an individual would be able to perform the previously identified jobs of mail clerk; small products assembler; and, sewing machine operator. Id.
The ALJ then asked whether there would be any jobs available at the sedentary exertional level. (Tr. 103.) The VE testified that there would, and identified the jobs of surveillance system monitor (sedentary, unskilled, SVP 2); document preparer (sedentary, unskilled, SVP 2); and, table worker (sedentary, unskilled, SVP 2). (Tr. 103-104.)
The ALJ then asked whether there would be any jobs if the hypothetical individual "were off task or to miss work 20 percent of [the] work week or greater." (Tr. 104.) The VE testified there would be no jobs available for such an individual.
Jenkins' attorney then noted that the ALJ's first hypothetical required the mandatory use of a cane, and inquired whether that limitation was present in the subsequent hypotheticals. (Tr. 105.) The ALJ replied that mandatory use of a cane was part of his later hypotheticals, and the VE confirmed that as his understanding when testifying about available jobs. Id. Jenkins' attorney then questioned the VE as follows:
(Tr. 105-107.) Finally, Jenkins' attorney asked: "If we were to assume a hypothetical worker the claimant's age, education, and work history who were to be absent from work two or more days per month on a regular basis, would be hypothetical worker be able to maintain employment?" (Tr. 107.) The VE testified that "an individual can be absent up to two times a month and generally still be able to maintain employment, and if an individual were to exceed that limit on an ongoing basis eventually the person will lose their job." Id.
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 (6
The ALJ found Jenkins established medically determinable, severe impairments, due to degenerative disc disease of the lumbar spine with radiculopathy; degenerative disc disease of the cervical spine; asthma; mild restrictive and obstructive airway disease; osteoarthritis of the right knee; urge incontinence; depressive disorder; anxiety disorder; and a history of cannabis abuse; however, her impairments, either singularly or in combination, did not meet or equal one listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1. (Tr. 48-51.) Jenkins was found incapable of performing her past work activities, but was determined to have a Residual Functional Capacity ("RFC") for a limited range of light work. (Tr. 51-56.) The ALJ then used the Medical Vocational Guidelines ("the grid") as a framework and VE testimony to determine that Jenkins was not disabled. (Tr. 56-58.)
This Court's review is limited to determining whether there is substantial evidence in the record to support the ALJ's findings of fact and whether the correct legal standards were applied. See Elam v. Comm'r of Soc. Sec., 348 F.3d 124, 125 (6
The findings of the Commissioner are not subject to reversal merely because there exists in the record substantial evidence to support a different conclusion. Buxton v. Halter, 246 F.3d 762, 772-3 (6
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 (6
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, Jenkins argues the ALJ failed to recognize "changed conditions involving Plaintiff's symptoms and inappropriately applied res judicata effect" pursuant to Drummond v. Comm'r of Soc. Sec., 126 F.3d 837 (6
The Commissioner argues the ALJ "reasonably considered evidence related to Plaintiff's physical and mental impairments since [the previous ALJ's] July 2010 decision." (Doc. No. 21 at 9.) With regard to Jenkins' urge incontinence, the Commissioner maintains the decision fully considered the medical evidence regarding this impairment and included related limitations in the RFC, including postural and stress-related limitations. The Commissioner also notes that "Plaintiff fails to point to evidence suggesting that further limitations were warranted." Id. at 14. With regard to Jenkins' increased back pain, the Commissioner argues the ALJ reasonably addressed this condition by adding a sit/stand option, noting the RFC is consistent with the opinion of Jenkins' chiropractor, Dr. Grubbs. Id. at 11. Finally, with regard to Jenkins' mental impairment, the Commissioner argues that "[t]he ALJ reasonably explained why the evidence failed to show [a] worsening [of this impairment] and why the [RFC] assessment accommodated the mental limitations evidenced by the medical record." Id. at 16.
In Drummond, the Sixth Circuit held that the Commissioner is bound by its prior findings with respect to a claimant's disability application unless new and material evidence, or changed circumstances, require a different finding. Id. at 842. The Social Security Administration ("SSA") later acquiesced in this ruling. See Acquiescence Ruling 98-4(6), 1998 WL 283902 (June 1, 1998) ("AR 98-4(6)"). In AR 98-4(6), the SSA stated that "[w]hen adjudicating a subsequent disability claim with an unadjudicated period arising under the same title of the Act as the prior claim, adjudicators must adopt such a finding from the final decision by an ALJ or the Appeals Council on the prior claim in determining whether the claimant is disabled with respect to the unadjudicated period unless there is new and material evidence relating to such a finding or there has been a change in the law, regulations or rulings affecting the finding or the method for arriving at the finding." AR 98-4(6) at * 3.
Therefore, under Drummond and AR 98-4(6), a change in the period of disability alleged does not preclude the application of res judicata. Slick v. Comm'r of Soc. Sec., 2009 WL 136890 at * 4 (E.D. Mich. Jan. 16, 2009). In order to avoid the application of Drummond, a claimant must present evidence showing that her symptoms have changed since the time of the Commissioner's prior determination. See Bender v. Comm'r of Soc. Sec., 2012 WL 3913094 at * 5 (N.D. Ohio Aug. 17, 2012) (citing Casey v. Sec'y of Health & Human Servs., 987 F.2d 1230, 1232 (6
Here, Jenkins filed her first application for SSI on February 26, 2008, alleging disability beginning January 1, 1997. (Tr. 113.) After her claim was denied both initially and upon reconsideration, a hearing was conducted before an ALJ on July 15, 2010. Id. In a written decision dated July 28, 2010, that ALJ denied Jenkins' application. (Tr. 113-124.) The ALJ thoroughly discussed the medical evidence regarding Jenkins' back and neck pain, breathing problems, endometriosis, and urge incontinence. (Tr. 115-119.) The decision also recounted the evidence regarding Jenkins' mental impairments, including her complaints of nervousness, anxiety, panic attacks, and nightmares. Id. Based on this evidence, the ALJ concluded, at step two, that Jenkins suffered from the severe impairments of lumbar and cervical degenerative joint disease; mild restrictive and obstructive airway disease; post-traumatic stress disorder; and, depressive disorder. (Tr. 115.)
After concluding that Jenkins' impairments did not meet or equal a listing, the decision assessed the following RFC:
(Tr. 121.) In reaching this assessment, the ALJ determined Jenkins was "not entirely credible, particularly in regard to her allegations of pain, limitations, and overall disability" because the "objective medical evidence does not clearly support the extreme nature of her subjective complaints." Id. The decision noted that Jenkins' physicians had "uniformly suggested conservative treatment." Id. In addition, the ALJ explained that Jenkins had a history of noncompliance with her medication regimen; her description of her pain had been vague; and, "the objective medical evidence does not appear to support any physical need for" a cane. (Tr. 122.)
In discussing the opinion evidence, the previous ALJ accorded significant weight to the opinion of state agency consultative examining psychologist Dr. Degli, who determined Jenkins was moderately impaired in her abilities to interact with peers, supervisors, or the general public; to maintain concentration, persistence, and pace; and, to withstand the stress and pressures of the competitive workplace. (Tr. 122.) The decision discussed the opinion of Jenkins' psychiatrist, Dr. Kaza, as follows:
(Tr. 122-123.) Finally, the ALJ concluded Jenkins was unable to perform her past relevant work but was able to perform other jobs in the national economy (such as hand packer, home companion, and hand washer) and, therefore, was not disabled. (Tr. 123-124.)
Jenkins then filed the instant application for SSI on September 1, 2010, alleging disability beginning on July 29, 2010 (the day after the previous ALJ decision was issued). (Tr. 46.) In the written decision denying this application, the new ALJ discussed Drummond and AR 98-4(6) as follows:
(Tr. 48) (emphasis added).
The decision then discussed the medical evidence not only regarding Jenkins' back and knee pain, but regarding her asthma and urge incontinence as well. (Tr. 51-56.) With regard to Jenkins' mental impairments, the ALJ found that "there is little change if any from the previous decision." (Tr. 55.) The decision recounted the medical evidence regarding Jenkins' mental health symptoms and treatment, and discussed the opinion evidence offered with regard to her mental limitations, including the opinions of consultative examiner Dr. Brown and treating psychiatrist Dr. Kaza. (Tr. 52, 55-56.) The ALJ accorded significant weight to Dr. Brown's opinion. (Tr. 53.) With regard to Dr. Kaza's opinion, the decision stated as follows:
(Tr. 53.)
The ALJ found Jenkins suffered from the severe impairments of degenerative disc disease of the lumbar spine with radiculopathy and cervical spine; asthma; mild restrictive and obstructive airway disease; osteoarthritis of the right knee; urge incontinence; depressive disorder; anxiety disorder; and a history of cannabis abuse. (Tr. 49.) The ALJ then adopted the previous RFC, with the additional limitations that Jenkins required a sit/stand option and could never kneel or crawl. (Tr. 51.)
Jenkins first argues the ALJ erred because, although the decision found Jenkins' urge incontinence was a severe impairment, the RFC does not reflect any limitations arising from that condition. (Doc. No. 17 at 17.) Specifically, she maintains that "the ALJ's RFC finding does not reflect the degree to which this severe impairment imposes limitations on Ms. Jenkins' ability to perform basic work activities as required of the regulations and, therefore, does not have the support of substantial evidence." Id.
The Court rejects this argument. As noted supra, the ALJ fully considered the medical evidence regarding Jenkins' urge incontinence. The decision noted that urodynamic testing had revealed some rotation of Jenkins' bladder neck but showed no signs of obstruction, malignancy, or inadequate pelvic support. (Tr. 54.) The ALJ also noted Jenkins' testimony regarding her urge incontinence, including testimony that she experiences components of stress leakage. (Tr. 53-54, 85, 97-98.) As the Commissioner correctly notes, the RFC does include stress-related limitations, including prohibiting Jenkins from work requiring completion of more than unskilled one to two step instructions; rapid production quotas; or occasional contact with supervisors or coworkers. (Tr. 51.) Moreover, the RFC limits Jenkins to occasional stooping and crouching, which addresses evidence suggesting Jenkins' incontinence is aggravated by bending. (Tr. 394.)
While Jenkins asserts the RFC should have included additional limitations related to this impairment, she fails to identify any such limitations or, more importantly, direct this Court's attention to any treating physician opinion supporting her assertion. In the absence of any medical or opinion evidence suggesting further restrictions were warranted, the Court finds the ALJ did not err in her consideration of Jenkins' urge incontinence.
Jenkins next argues the ALJ failed to include limitations in the RFC that adequately address her worsening degenerative disc disease. Relying on the July 2012 MRI results and Dr. Ranieri's treatment notes, Jenkins asserts her condition deteriorated to a greater degree than recognized by the ALJ. She also emphasizes her own testimony that "she has numbness and tingling in her arms and legs that reduces her ability to sit in one place for very long, hold onto things if too heavy, or stand for more than about 10 minutes." (Doc. No. 17 at 18.) In light of this evidence, Jenkins argues the ALJ "played doctor" when she "arbitrarily added a sit/stand option to her residual functional capacity finding without the support of any medical opinion evidence." Id.
As noted above, the ALJ discussed the evidence regarding Jenkins' degenerative disc disease and found it had worsened since the previous decision, noting evidence that "claimant has developed an additional disc bulge with nerve root impairment" and "mild radiculopathy according to recent pain treatment notes." (Tr. 52.) The ALJ considered the opinions of state agency physicians Dr. McCloud and Dr. Lewis, according them "some weight" but finding "the evidence supports limiting the claimant to a range of light work instead of medium exertional work." (Tr. 53.) Additionally, although not an "acceptable medical source," the ALJ considered the February 2012 opinion of Jenkins' chiropractor Dr. Grubbs, according it "some weight as it is essentially consistent with" the RFC. (Tr. 52.) In light of this evidence, the ALJ added a sit/stand option to the RFC, which is, in fact, consistent with Dr. Grubbs' opinion. (Tr. 462.) The ALJ did not include any further limitations relating to this impairment, however, in light of Jenkins' conservative treatment history and physical examinations showing 5/5 strength. (Tr. 52.)
Contrary to Jenkins' argument, the Court finds the ALJ did not "arbitrarily" add a sit/stand option to the RFC. Indeed, this limitation is expressly set forth in Dr. Grubbs' February 2012 opinion, which is the only medical opinion proffered by Jenkins in support of her claim of disabling limitations relating to her degenerative disc disease. As with her argument regarding her urge incontinence, Jenkins does not identify any additional functional limitations relating to her degenerative disc disease that she believes should have been included in the RFC or point to any supporting physician opinion.
The ALJ's consideration of Jenkins' mental impairments, however, presents a more difficult question. Jenkins argues the ALJ failed to provide good reasons for rejecting Dr. Kaza's April 2012 and September 2012 opinions. She notes the ALJ only referenced two notes (June 1, 2012 and July 27, 2012) in discussing her treatment with Dr. Kaza and maintains that "[t]he lack of discussion of the evidence in the record along with a one-sentence reason for dismissing Dr. Kaza's opinion (i.e., that Ms. Jenkins appeared well groomed on one occasion) do not rise to the level of `good reasons.'" (Doc. No. 17 at 20.)
The Commissioner argues the ALJ did not err because the decision reasonably explained why the evidence failed to show that Jenkins' mental condition had worsened. In this regard, the Commissioner notes that the previous ALJ considered and rejected Dr. Kaza's July 2009 opinion, which (like his 2012 opinions) concluded that Jenkins "had no abilities to perform any function on a regular, reliable and sustained schedule." (Tr. 119.) The Commissioner further maintains the RFC is supported by substantial evidence because the ALJ reasonably relied on the opinion of consultative examiner, Dr. Brown. (Doc. No. 21 at 15-17.)
The Commissioner does not argue Dr. Kaza's treating psychiatrist status. Moreover, the ALJ decision at issue identifies Dr. Kaza as a treating psychiatrist in its consideration of his 2012 opinions. (Tr. 52.) Thus, and in the absence of any argument to the contrary, the Court determined Dr. Kaza to have been a "treating physician" when he proffered his April and September 2012 opinions.
Under Social Security regulations, the opinion of a treating physician is entitled to controlling weight if such opinion (1) "is well-supported by medically acceptable clinical and laboratory diagnostic techniques" and (2) "is not inconsistent with the other substantial evidence in [the] case record." Meece v. Barnhart, 2006 WL 2271336 at * 4 (6
If the ALJ determines a treating source opinion is not entitled to controlling weight, "the ALJ must provide `good reasons' for discounting [the opinion], reasons that are `sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight.'" Rogers, 486 F.3d at 242 (quoting Soc. Sec. Ruling 96-2p, 1996 SSR LEXIS 9 at * 5). The purpose of this requirement is two-fold. First, a sufficiently clear explanation "`let[s] claimants understand the disposition of their cases,' particularly where a claimant knows that his physician has deemed him disabled and therefore `might be bewildered when told by an administrative bureaucracy that she is not, unless some reason for the agency's decision is supplied.'" Id. (quoting Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6
Nevertheless, the opinion of a treating physician must be based on sufficient medical data, and upon detailed clinical and diagnostic test evidence. See Harris v. Heckler, 756 F.2d 431, 435 (6
Here, the ALJ recounted some of the medical evidence regarding Jenkins' mental impairments and determined that "[m]entally, there is nothing new since the prior decision." (Tr. 52.) The decision further noted the year-long gap in Jenkins' mental health treatment due to her incarceration; the inconsistent evidence regarding her hallucinations; her conservative course of treatment; and evidence of "some non-compliance." (Tr. 52.) In declining to include any additional mental health limitations in the RFC, the ALJ discussed the opinion of consultative examiner, Dr. Brown at length and accorded it "significant weight." (Tr. 53, 55-56.) With regard to Dr. Kaza, the decision briefly summarized his opinions regarding Jenkins' mental health limitations and stated they "ha[d] been considered but not given great weight." (Tr. 52.) The ALJ's explanation for rejecting Dr. Kaza's opinions is contained in one-sentence as follows: "The undersigned notes that during a mental assessment on July 27, 2012, the claimant's appearance was reported as being well groomed." Id. As Jenkins correctly notes, there is very little discussion of Dr. Kaza's treatment notes in the decision.
As noted above, the Commissioner principally argues that the decision should be affirmed because the ALJ correctly found no deterioration in Jenkins' mental condition since the previous ALJ decision. Although clearly raised in Jenkins' Brief, the Commissioner does not directly address Jenkins' argument that the ALJ was required to provide "good reasons" for rejecting Dr. Kaza's opinions. In particular, the Commissioner does not argue that the "treating physician" rule is inapplicable under the circumstances presented. Nor does she assert that the ALJ did, in fact, provide "good reasons" or that it was "harmless error" for the decision to fail to do so.
In the absence of any argument to the contrary, the Court finds the ALJ was required to provide "good reasons" for rejecting Dr. Kaza's opinions. The Court further finds that the ALJ's rejection of those opinions fails to satisfy the "good reasons" requirement. The fact that Jenkins' appearance was once noted as being well groomed is simply not a sufficient reason, in and of itself, for rejecting Dr. Kaza's assessment of Jenkins' numerous functional mental health limitations. Jenkins presented to Dr. Kaza on at least eleven occasions between June 2010 and February 2013. (Tr. 342-349, 434-437, 452-455, 459-460, 511.) During these visits, she consistently complained of increased anxiety, depression, and anger. Id. The record also contains references to hallucinations, nightmares, flashbacks, panic attacks, and thoughts of hurting others. (Tr. 349, 345, 343, 342, 452, 434.) Aside from the one year gap in her treatment (which was apparently due to her incarceration), Dr. Kaza treated Jenkins on a monthly (sometimes bi-monthly) basis and prescribed numerous psychiatric medications, including Zoloft, Trazadone, Valium, Xanax, Effexor, and Lamictal. (Tr. 342-349, 434-437, 452-455, 459-460, 511.) In August 2012, Dr. Kaza diagnosed PTSD and assigned a GAF of 50. (Tr. 436-437.)
Although the ALJ discusses evidence regarding mental health treatment Jenkins received in June and July 2012, the decision does not discuss Dr. Kaza's lengthy treating relationship with Jenkins or the content of his treatment notes. Indeed, the ALJ does not address any of the factors set forth in 20 C.F.R. § 416.927(c)(2), such as the length of the relationship and frequency of examination; the nature and extent of the treatment relationship; how well-supported Dr. Kaza's opinions are by medical signs and laboratory findings; or, their consistency with the record as a whole. The Court does have some concern that Dr. Kaza's September 2012 opinion is internally inconsistent, in that it concludes Jenkins has a "fair ability" to understand, remember, and carry out complex job instructions but finds she has a "poor" ability in virtually every other category, including her abilities to understand, remember, and carry out detailed and simple job instructions. (Tr. 459-460.) However, the ALJ does not articulate this as a reason for rejecting Dr. Kaza's September 2012 opinion. Indeed, the ALJ fails to offer any "good reasons" as to why Dr. Kaza's opinions were "not given great weight." (Tr. 52.) Moreover, this portion of the decision is so conclusory and devoid of explanation that it deprives this Court of the ability to conduct a meaningful review of the decision. Thus, the Court finds that remand is necessary, thereby affording the ALJ an opportunity to sufficiently explain the weight ascribed to the functional limitations assessed by Dr. Kaza.
For the foregoing reasons, the Court finds the decision of the Commissioner not supported by substantial evidence. Accordingly, the decision is VACATED and the case is REMANDED, pursuant to 42 U.S.C. § 405(g) sentence four, for further proceedings consistent with this opinion.
IT IS SO ORDERED.
