GREG WHITE, Magistrate Judge.
Plaintiff Allison Advent ("Advent") challenges the final decision of the Commissioner of Social Security, Michael J. Astrue ("Commissioner"), denying Advent's claim for a Period of Disability ("POD") and Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"), 42 U.S.C. §§ 416(I), 423, 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 May 15, 2008, Advent protectively filed an application for POD and DIB alleging a disability onset date of January 1, 2007. Her application was denied both initially and upon reconsideration. Advent timely requested an administrative hearing.
On December 7, 2010, an Administrative Law Judge ("ALJ") held a hearing during which Advent, represented by counsel, and an impartial vocational expert ("VE") testified. On January 20, 2011, the ALJ found Advent was able to perform a significant number of jobs in the national economy and, therefore, was not disabled. The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied further review.
Age twenty-eight (28) at the time of her administrative hearing, Advent is a "younger" person under social security regulations. See 20 C.F.R. § 404.1563(c). She has a high school education and past relevant work as a sales clerk in a boutique and as a hotel clerk supervisor. (Tr. 19, 34, 35.)
Kevin Bogar, M.D., was Advent's primary care physician for the relevant insured period from January 2007 through June 2010. Treatment records from this time period indicate that Advent was treated for headaches, hypertension, fibromyalgia, and anxiety. (Tr. 349-63, 367-73, 560-78.) On September 11, 2009, Dr. Bogar noted ongoing headaches, as well as chronic neck and shoulder pain.
Advent was seen by her treating neurologist, Atanase R. Craciun, M.D., from February 2008 through August 2008. (Tr. 180, 220-46.) During this period, Advent made approximately six office visits complaining of ongoing headaches. Dr. Craciun treated Advent's headaches with a multi-drug regimen, finding that she had migraines with limited control. (Tr. 180, 223-233.) Dr. Craciun noted a diagnosis of chronic anxiety, POTS (postural orthostatic tachycardiac syndrome), and migraine headaches. (Tr. 224.) He prescribed modest amounts of Percocet or Vicodin at three visits, but stressed that narcotics should be used sparingly and were not an acceptable therapeutic modality. (Tr. 221, 224, 231.) During neurological examinations, Dr. Craciun noted no significant abnormalities and found normal muscle strength, gait, and mental status. (Tr. 220-46.)
Advent was also treated at the Cleveland Clinic Headache Clinic from October 23, 2006 through February 6, 2009. (Tr. 183-99, 202-06, 304-08, 317-22, 475-78.) She was seen by both Jennifer Kriegler, M.D., a neurologist, and Linda Alberino, a certified nurse practitioner ("CRNP"). During this period, Advent made approximately eight office visits for treatment of ongoing headaches.
On April 4, 2007, Dr. Kriegler noted that while on Topamax prior to becoming pregnant, Advent's headaches had decreased from occurring daily to a few per month. (Tr. 197-99.) However, due to pregnancy, Topamax was discontinued and the headaches returned daily. Id.
On May 16, 2008, Advent was prescribed Vicodin to be used sparingly.
On July 21, 2008, Dr. Kriegler noted that Advent was having migraines four times per week, lasting about 12 hours, despite her medications. (Tr. 183-87.) Dr. Kriegler also noted a recent diagnosis of Fibromyalgia Syndrome ("FMS"). (Tr. 184.) Dr. Kriegler cautioned Advent about taking too many medications and seeing too many physicians without coordinating her care. (Tr. 185.) She advised Advent to stop taking all over-the-counter medications, triptans, and pain medications and to limit the use of short-acting analgesics and triptans to less than two doses per week. Id.
On September 29, 2008, Advent complained of daily headaches as well as neck and shoulder pain. (Tr. 317-22.) She received an occipital nerve injection. On November 20, 2008, Advent complained of daily headaches and neck pain. (Tr. 304-08.) She was diagnosed with cervical syndrome of the neck and prescribed Vicodin as needed. Id. Advent's last visit to the Headache Clinic was on February 26, 2009. Dr. Kriegler gave Advent a Botox injection and advised her to stop using Percocet. (Tr. 475-78.)
On September 8, 2008, Advent started treatment at the Cleveland Clinic Pain Management Department. Through May 5, 2010, Advent made approximately twenty-eight office visits. (Tr. 390-97, 402-05, 424-32, 435-74, 479-508, 515-526, 533-42.) Advent at first complained of headaches, but later headaches combined with left-sided neck pain. (Tr. 488.) During her treatment, she underwent a series of pain block injections, a radio frequency ablation procedure ("RFA"), trigger point injections, Botox injections, and a Gon block. None of these procedures provided relief lasting more than three weeks. Diagnosis included migraine headaches and cervical syndrome. (Tr. 439.) On at least two office visits, the doctor noted that Advent violated her pain management agreement by obtaining medication from multiple sources. (Tr. 390-91, 488.) When confronted at her last office visit, it was noted that Advent became defensive and left when the doctor refused to prescribe any more narcotic pain medications. Id.
Advent also was seen a number of times at area emergency rooms: Cleveland Clinic Foundation on 6/21/06 (Tr. 214), Marymount Hospital on 2/10/08 (Tr. 178), Marymount Hospital on 2/6/10 (Tr. 376), Marymount Hospital 10/2/10 (Tr. 598), Metrohealth on 10/4/10 (Tr. 633.) Advent had diagnostic imaging testing with normal or unremarkable results including: a MRI of the brain on 2/27/08 (Tr. 250), a CT of the brain on 2/10/08 (Tr. 179), an x-ray of the cervical spine on 2/6/10 (Tr. 388), and an MRI of the brain on 9/20/10. (Tr. 642.)
On October 15, 2008, Dr. Bogar completed a questionnaire. (Tr. 247-51.) He diagnosed migraines, fibromyalgia, anxiety, and hypertension.
On December 11, 2008, Paul Morton, M.D., a state agency reviewing physician, completed an assessment of Advent's physical capacity. (Tr. 276-83.) Dr. Morton explained that he had considered Advent's allegations of migraine headaches and hypertension, as contrasted with a normal brain CT scan and normal neurological findings. Id. Dr. Morton considered Advent's reports of weakness, numbness, and soreness, but noted that her neurological examinations were consistently intact. (Tr. 281.) Dr. Morton also noted Advent's alleged frequent vomiting, but maintenance of a normal weight. Id. He opined that Advent was able to perform work requiring a medium level of exertion. (Tr. 277.) On May 15, 2009, Gary Hinzman, M.D., a state agency physician, reviewed Advent's records and affirmed the assessment of Dr. Morton for medium work. (Tr. 365.)
At the hearing, Advent testified to the following:
The ALJ posed the following hypothetical to the VE:
(Tr. 51.) The VE testified that such a person could not perform Advent's past relevant work, but could perform other jobs such as: hospital cleaner, medium unskilled, (8,100 locally, 26,200 state-wide, 815,000 nationally) and the following light, unskilled jobs: sales attendant (4,000 locally, 12,000 state-wide, 336,000 nationally) and cashier (15,500 locally, 46,400 state-wide, 1,104,000 nationally). (Tr. 52.) In a second hypothetical, the ALJ added restrictions for only brief or superficial interaction with co-workers and the public to accommodate an individual with depression and anxiety. The VE testified that the above three positions would allow such superficial interaction with co-workers and the public. (Tr. 53.) However, the VE testified that adding the limitation of never climbing ladders, ropes or scaffolds to the hypothetical would lower the cleaner job to the light level of exertion and limit the numbers to 4,000 locally, 13,000 state-wide and 403,000 nationally. (Tr. 53-54.) The VE testified that adding occasional balancing to the hypothetical would have no impact. (Tr. 54.) Finally, the VE testified that missing four to five days of work a month would cause the hypothetical person to be unemployable. (Tr. 55.)
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.
Advent was insured on her alleged disability onset date, January 1, 2007 and remained insured through June 20, 2010. (Tr. 12.) Therefore, in order to be entitled to POD and DIB, Advent must establish a continuous twelve month period of disability commencing between these two dates. Any discontinuity in the twelve month period precludes an entitlement to benefits. See Mullis v. Bowen, 861 F.2d 991, 994 (6
The ALJ found Advent established medically determinable, severe impairments due to adjustment disorder with mixed anxiety and depressed mood, migraines, fibromyalgia, high blood pressure, and POTS. (Tr. 14.) 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. Advent was found incapable of performing her past relevant work, but was determined to have a Residual Functional Capacity ("RFC") for a limited range of medium work. The ALJ then used the Medical Vocational Guidelines ("the grid") as a framework and VE testimony to determine that Advent is not disabled.
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 or failure to provide the reviewing court with a sufficient basis to determine that the Commissioner applied the correct legal standards are grounds for reversal where such failure prejudices a claimant on the merits or deprives a claimant of a substantial right. See White v. Comm'r of Soc. Sec., 572 F.3d 272 (6
Advent submitted additional medical records to the Appeals Council and now requests a remand for consideration of new evidence in accordance with section six of 42 U.S.C. § 405(g). On August 25, 2011, the Appeals Council issued an Order specifying that it had received the following additional information: Exhibit 28F: Medical Records from Cleveland Clinic Foundation dated November 23, 2010, through February 15, 2011; Exhibit 29F: MRI Results dated January 24, 2011; Exhibit 30F: Treatment Records from Eric Baron, D.O., dated January 24, 2011, through May 25, 2011; Exhibit 31F: Medical Records from Hillcrest Hospital dated March 30, 2011; and, Exhibit 32F: Medical Records from Marymount Hospital dated January 7, 2011, through January 24, 2011. (Tr. 5.) In its Notice, the Appeals Council noted consideration of the additional evidence, but found that it did not provide a basis for changing the ALJ's decision. (Tr. 1-2.) Advent, however, points to two specific documents that she believes should be considered as new and material evidence: (1) a January 24, 2011 MRI scan of her cervical spine, and (2) a January 17, 2011 bone scan of her shoulders. (Tr. 665, 667.)
Evidence first submitted to the Appeals Council may only be considered to determine whether the case should be remanded under section six of 42 U.S.C. § 405(g). Cline v. Comm'r of Soc. Sec., 96 F.3d 146, 149 (6
Evidence is new if it was not in existence or was unavailable during the administrative proceeding. Foster v. Halter, 279 F.3d 348, 357 (6
Evidence is "material" for purposes of a sentence six remand only if it is time-relevant, i.e., either relates to the period on or before the date the ALJ rendered his decision. See, e.g., Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 478 (6
The medical records submitted are dated after Advent's insured status expired on June 30, 2010. Nonetheless, Advent argues that the records are material because (1) they provide objective support to earlier diagnoses and, as such, pertain to her medical condition during the relevant period of her disability claim, and (2) the evidence would have supported a different decision. (ECF No. 11 at 13-14.) Advent asserts that "the neck disc problem may well have been a contributing factor in Plaintiff's headaches." Id. at 14. She further avers that the ALJ "would presumably have found a severe impairment in Plaintiff's neck and/or shoulders." Id. Advent's conclusions are not supported by these records. The MRI of the cervical spine showed, at most, mild abnormalities. (Tr. 665.) While the shoulder bone scan showed chronic degenerative changes (Tr. 667), Dr. Covington described it as "unremarkable." (Tr. 650.) Moreover, Advent suffered an intervening car accident on January 7, 2011, approximately six months after her last insured date. Though she was diagnosed with both neck and shoulder sprains, X-rays of the shoulders at the ER showed no sign of degenerative changes. (Tr. 708.)
The medical records do not relate to the relevant time period before the denial of benefits and do not show significant abnormalities that would corroborate Advent's disability claim. Therefore, Advent has failed to establish that the ALJ's consideration of this evidence would likely have altered his decision.
"It is well established that the party seeking remand bears the burden of showing that a remand is proper under Section 405." Oliver v. Sec'y of Health & Human Servs., 804 F.2d 964, 966 (6
Here, Advent's primary argument on good cause appears to be that the records "could not have been procured any earlier." (ECF No. 11 at 13.) Between the onset of disability, January 1, 2007, and the date last insured, June 20, 2010, Advent was treated for her headaches and complaints of neck and shoulder pain by her primary care physician as well as numerous neurologists and pain specialists. (Tr. 180, 183-99, 202-06, 220-46, 304-08, 317-22, 349-63, 367-73, 390-97, 402-05, 424-32, 455-508, 515-26, 533-42, 560-78.) In fact, Advent was diagnosed with cervical syndrome as early as November 20, 2008. (Tr. 304-08.) She also was seen numerous times at area emergency rooms. (Tr. 178, 214, 376, 598, 633.) Advent has frequently had diagnostic imaging testing with normal or unremarkable results. (Tr. 179, 250, 388, 642.) Given this long standing medical history, the argument that "it could not have been procured any earlier" is unpersuasive. Therefore, Advent has not met her burden of establishing good cause.
In conclusion, the evidence fails to meet the criteria for a sentence six remand as Advent has failed to meet her burden of showing that the evidence is new and material and that good cause existed for not presenting the evidence earlier.
Advent claims that the ALJ failed to properly evaluate her complaints of pain. She takes issue with the ALJ's analysis with respect to her principle impairments: migraine headaches and fibromyalgia. (ECF No. 11 at 17-19.) Advent contends that the ALJ only mentioned complaints of pain in passing, never engaging in a specific analysis. Id. at 18. She describes the ALJ's analysis as "at best superficial." Id. at 19. The Commissioner asserts that the ALJ provided a thorough analysis of the pain evaluation factors and, based on the entire case record, he provided specific reasons supported by substantial evidence. (ECF No. 14 at 14-15.)
It is well settled that pain alone, if caused by a medical impairment, may be severe enough to constitute a disability. See Kirk v. Sec'y of Health & Human Servs., 667 F.2d 524, 538 (6
If the claimed pain is not substantiated by the medical record, the ALJ must make a credibility determination based on the entire case record. Id. Credibility determinations regarding a claimant's subjective complaints rest with the ALJ. See Siterlet v. Sec'y of Health & Human Servs., 823 F.2d 918, 920 (6
The ALJ expressly noted that he had considered Advent's subjective complaints in accordance with the required two-step process. (Tr. 17.) The ALJ accepted that Advent suffered from various severe impairments, including migraines and fibromyalgia. (Tr. 14.) He found that "the medically determinable impairments could reasonably be expected to cause the alleged symptoms." (Tr. 17.) However, the ALJ dismissed Advent's statements concerning the intensity, persistence, and limiting effects of the symptoms as not credible to the extent they were inconsistent with his RFC finding. (Tr. 17.)
In his decision, the ALJ set forth seven factors that he considered in the credibility assessment including specific citations to medical records and medical source opinions, objective clinical findings, treatment regimen, medication use, and activities. (Tr. 17-19.) The ALJ noted the following:
(Tr. 18.)
Advent takes issue with the ALJ's second and third factors. She contends that the ALJ's discounting her disabling headaches did not take into account her testimony that she quit her job due to the increased severity of her headaches. (ECF No. 11 at 19, citing Tr. 34, 37.) Additionally, she contends that the ALJ did not incorporate the medical records supporting her escalating headaches. Id., citing Tr. 173, 402. Furthermore, Advent believes that the ALJ's recitation of her daily activities is misleading in that Advent "only performed those activities on the days when she was not having a headache, and that she required assistance otherwise." Id. at 19.
An ALJ's credibility determinations are not limited to the medical evidence, and there are seven other factors an ALJ should consider.
As the ALJ failed to properly conduct the credibility analysis, Advent's third assignment of error is well-taken.
Advent also argues that the ALJ improperly rejected the opinions of her treating physicians, Dr. Atanase R. Craciun and Dr. Kevin Bogar. (ECF No. 11 at 17-18.) The Commissioner argues that there is substantial evidence to support giving no weight to Advent's treating physicians. (ECF No. 14 at 12.)
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, 192 F. App'x 456, 560 (6
Nonetheless, 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
In the present case, the ALJ rejected Dr. Craciun's opinion because "it is not clear what this opinion was based on; it consists of no more than mere checkmarks without explanations." (Tr. 18.)
Since the Court found that remand is necessary, the Court need not address whether the ALJ's discussion of the treating physicians' opinions satisfies proper procedural standards. Admittedly the ALJ's discussion is rather brief. Upon remand, the ALJ should conduct a more thorough analysis.
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.