SHASHI H. KEWALRAMANI, Magistrate Judge.
Plaintiff M.Z.
Plaintiff filed an application for DIB on August 30, 2012, alleging disability beginning on September 20, 2012. Transcript ("Tr.") 71.
The reviewing court shall affirm the Commissioner's decision if the decision is based on correct legal standards and the legal findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g);
"`When evidence reasonably supports either confirming or reversing the ALJ's decision, [the Court] may not substitute [its] judgment for that of the ALJ.'"
To establish whether a claimant is disabled under the Act, it must be shown that:
The ALJ employs a five-step sequential evaluation process to determine whether a claimant is disabled within the meaning of the Act.
The five steps are:
The ALJ determined that "[Plaintiff] meets the insured status requirements of the . . . Act through December 31, 2017." Tr. 22. The ALJ then found at step one, that "[Plaintiff] has not engaged in [SGA] since September 20, 2012, the alleged onset date (20 CFR 404.1571
In preparation for step four, the ALJ found that Plaintiff has the residual functional capacity ("RFC") to:
In preparation for step five, the ALJ noted that "[Plaintiff] was born on August 2, 1980 and was 32 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563)." Tr. 27. The ALJ observed that "[Plaintiff] had at least a high school education and is able to communicate in English (20 CFR 404.1564)."
At step five, the ALJ found that "[c]onsidering [Plaintiff's] age, education, work experience, and [RFC], there are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform (20 CFR 404.1569, 404.1569(a))."
After finding that "[Plaintiff] is capable of making a successful adjustment to other work that exists in significant numbers in the national economy[,]" the ALJ concluded that "[a] finding of not disabled is . . . appropriate under the framework of the above-cited rule."
In this appeal, Plaintiff raises three issues, including whether the ALJ: (1) properly considered the applicability of Listing 1.06; (2) conducted a proper RFC assessment; and (3) properly considered Plaintiff's treating physician's opinion. ECF No. 18, Joint Stipulation at 3.
Plaintiff argues that she meets or medically equals Listing 1.06 because she cannot ambulate effectively for even short distances without the use of a prescribed single-point cane or a four-wheeled walker. ECF No. 18, Joint Stipulation at 4-5. Plaintiff argues that her inability to ambulate effectively without an assistive device is a result of "her chronic pubic diastasis and the resulting pain, lower extremity weakness, and gait abnormalities" that she has endured "since giving birth to her son on September 20, 2012."
Plaintiff argues that x-rays and MRIs in the record from October 2012 through February 2014 confirm that her condition remained unchanged throughout the relevant time period.
Defendant argues that Plaintiff's assertion is not persuasive for two reasons. First, Defendant argues that the ALJ supported his step-three finding by adopting the opinion of medical expert Eric Schmitter, M.D., that Plaintiff's impairments did not meet or equal Listing 1.06.
Second, Defendant argues that Plaintiff "did not satisfy her burden of establishing the existence of
As discussed above, the ALJ found at step three that Plaintiff does not have an impairment that meets or equals one of impairments described in the regulations. Tr. 23. The ALJ noted that "[t]his finding is supported by the opinion of the impartial medical expert," Dr. Schmitter, who "concluded that [Plaintiff's] impairments and symptoms did not meet or medically equal the criteria of any listing." Tr. 23, 25 (citing Tr. 886-88). The ALJ noted that Dr. Schmitter supported his conclusion that Plaintiff did not meet any listing, by explaining that Plaintiff's "subjective pain and weakness . . . was not substantiated by examination or diagnostic testing[,]" "the evidence did not likely support the need for a cane[,]" and "surgery was recommended for pubic fusion, which should relieve [Plaintiff's] symptoms."
The Listings describe specific impairments of each major body system, which are "consider[ed] to be severe enough to prevent an individual from doing any gainful activity, regardless of his or her age, education, or work experience." 20 C.F.R. § 404.1525(a). "The Secretary does not consider a claimant's impairment to be one listed in Appendix I solely because it has the diagnosis of a listed impairment[,] . . . an impairment meets a listed condition only when it manifests the specific findings described in the set of medical criteria for that listed impairment."
Listing 1.06 requires a "[f]racture of the femur, tibia, pelvis, or one or more of the tarsal bones[,] [w]ith . . . [i]nability to ambulate effectively, as defined in 1.00B2b, and return to effective ambulation did not occur or is not expected to occur within 12 months of onset." 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.06. "Inability to ambulate effectively means an extreme limitation of the ability to walk; i.e., an impairment(s) that interferes very seriously with the individual's ability to independently initiate, sustain, or complete activities."
"When an individual with an impairment involving a lower extremity or extremities uses a hand-held assistive device, such as a cane, crutch or walker . . . [t]he individual's ability to ambulate with and without the device provides information as to whether, or the extent to which, the individual is able to ambulate without assistance."
"[I]n determining whether a claimant equals a listing under step three of the Secretary's disability evaluation process, the ALJ must explain adequately his evaluation of alternative tests and the combined effects of the impairments."
Dr. Schmitter's opinion, which the ALJ solely relied on in finding that Plaintiff did not meet Listing 1.06, is not supported by the record. As discussed above, the ALJ observed that Dr. Schmitter found that Plaintiff did not meet or medically equal the criteria of any listing because Plaintiff's pain and weakness were not supported by examination or diagnostic testing, because the evidence did not support Plaintiff's need for a cane, and because Plaintiff rejected a recommended pubic fusion surgery. Tr. 25. Because the ALJ supported his conclusion that Plaintiff does not meet Listing 1.06 by adopting Dr. Schmitter's opinion
With respect to the first two reasons provided by Dr. Schmitter for finding that Plaintiff did not meet or equal a listing—that Plaintiff's pain and weakness were not supported by examination or diagnostic testing and that the evidence does not support Plaintiff's need for a cane—the Court finds that the record does not support these conclusions. Rather, an inspection of the record reveals many examination findings and testing results documenting Plaintiff's pain, weakness, and need for an assistive device to ambulate effectively as a result of her impairment that were ignored by Dr. Schmitter and, by extension, the ALJ, who adopted Dr. Schmitter's opinion at step three.
For example, on October 26, 2012, roughly one month after giving birth to her son, Plaintiff sought medical help for pelvic bone pain. Tr. 308. Plaintiff's medical records from that examination reveal that Plaintiff had "[d]ifficulty getting on and off the table and moving[,]" she "[c]ould not do a straight leg lift[,]" she had "suprapubic tenderness over the bony area[,]" she was "unable to tolerate [the] exam[,]" could "not abduct [her] legs[,]" and was ultimately sent for an x-ray that revealed a separation in Plaintiff's pubic symphysis. Tr. 308, 309, 461.
On November 13, 2012, Dr. Frederick Davis, M.D., examined Plaintiff and noted Plaintiff's complaints that she could not go upstairs to her bedroom because of pain and weakness from the pain. Tr. 307. Dr. Davis assessed that Plaintiff was in "moderate to severe distress[,]" her lumbar range of movement was "guarded[,]" her gait was "abnormal to markedly antalgic[,]" and that Plaintiff "walk[ed] out of the examination room to the waiting room with difficulty."
On November 15, 2012, Plaintiff saw Emily Lee for a physical therapy appointment and was noted to be experiencing "high level[s] of pain" that Plaintiff described as being at a level of ten out of ten. Tr. 305. Objective testing revealed that Plaintiff retained between a five and fifteen percent range of motion in all areas tested, and Plaintiff was noted to have "[p]ain with all motions."
On December 7, 2012, Ms. Lee noted that Plaintiff "expresse[d] 10/10 pain constantly and every isometric exercise increases the pain beyond that." Tr. 303. Ms. Lee stated that "I know this separation is not going to repair over night [sic] but I am not sure that we are getting it even close enough to have the opportunity to heal."
On December 13, 2012, one month after declining to give Plaintiff pain medication due to concerns that it would cross into Plaintiff's breast milk, Dr. Davis instructed Plaintiff to stop taking ibuprofen and start taking Norco for her severe pain. Tr. 301. Dr. Davis specifically noted that Plaintiff should take the Norco for severe pain "if [Plaintiff] ha[d] to do a lot of walking."
In December 2012 and January 2013, Ms. Lee noted that Plaintiff reported pain levels at ten out of ten and also reported that it was still very painful to lie down and that Plaintiff still could not walk upstairs at her home to sleep in her room. Tr. 300. Ms. Lee noted that Plaintiff "ambulates with lateral trunk lean" and that Plaintiff attempted a pillow squeeze exercise, but "had shooting pain going down the front of [her] legs, so [the] exercise was stopped."
On January 30, 2013, Dr. Davis noted that Plaintiff's gate was markedly impaired, Plaintiff "[s]till has lots of pain and debility which is expected with such a painful injury[,]" and that Plaintiff was "[m]aking minimal progress in therapy which again is expected." Tr. 295. Dr. Davis wrote that he "[w]ill send [Plaintiff] for [o]rthopedic evaluation but given that [Plaintiff] does wish to have additional childbearing there really are not a lot of surgical options that will preserve this, but will send her for consultation."
On February 15, 2013, Plaintiff reported to Ms. Lee that her pain "feels the same but her doctor thinks its [sic] going to take at least a year for this to heal." Tr. 292. Ms. Lee noted that Plaintiff had weakness in hip flexation, that Plaintiff was "unable to feel any trace contractions in [her] buttocks[,]" and that Plaintiff displayed "left lateral lean with gait with right hip swing phase left lateral trunk lean."
On March 8, 2013, Ms. Lee noted that she spoke with another one of Plaintiff's medical providers and learned that "the rate of healing is approximately 1 year." Tr. 291. Ms. Lee discharged Plaintiff to a home exercise program "due to [a] plateau in progress" and requested that Plaintiff be re-referred to physical therapy six months later to "progress her exercises." Tr. 290-91.
On March 28, 2013, Dr. Davis noted that Plaintiff was "still quite symptomatic and [her] gait [was] abnormal" and recommended that Plaintiff use a "rollator walker." Tr. 288. On May 15, 2013, physical therapist Sharon Ramos noted that Plaintiff was "unable to tolerate walking long distances due to pain from the stress fractures as well [as] the cramping in both legs." Tr. 287. Ms. Ramos added that Plaintiff "is unable to tolerate walking short distances at home from living room to bathroom, to the kitchen without holding on the walls or table."
In June and August 2013, Dr. Davis observed that Plaintiff "has severe pain still and uses a rollator walker to walk." Tr. 285. Dr. Davis assessed that Plaintiff's gait was still markedly antalgic and that "[g]iven the severity of her pain [Plaintiff] will need to still be considered temporarily totally disabled."
On September 23, 2013, Ms. Lee noted that Plaintiff was "walking with [a] walker currently[,]" but was returning to physical therapy to "work on weaning from the walker." Tr. 283. Ms. Lee noted that Plaintiff's eight-week treatment goal was to be able to walk without her walker and, instead, to be able to walk with a single point cane for eight minutes.
Here, the Court finds that—contrary to Dr. Schmitter's opinion that the ALJ adopted as the only support for finding that Plaintiff did not meet Listing 1.06—the evidence discussed above demonstrates that Plaintiff's pain, weakness, and required use of a cane and walker were supported by multiple examination findings throughout the record. Critically, the record reveals that Plaintiff did not even begin to wean herself off of the walker until September 23, 2013, when Ms. Lee set an eight-week goal of Plaintiff walking for eight minutes with a cane. Tr. 283. Therefore, contrary to Defendant's assertion that Plaintiff did not meet Listing 1.06 because Plaintiff started walking with a single point cane in September 2013 and was therefore no longer limited in the use of her bilateral upper extremities by her walker, the evidence suggests that Plaintiff's inability to ambulate without the use of a cane or walker, persisted for well over the twelve-month period required by Listing 1.06.
Moreover, an x-ray and MRI of Plaintiff's pelvis from February 7, 2014, revealed that the widening of Plaintiff's pubic symphysis had remained unchanged from the x-ray that was taken on October 26, 2012. Tr. 617-18. Thus, in addition to the examination findings discussed above, objective diagnostic tests revealed that Plaintiff's impairment that caused her inability to ambulate, remained unchanged seventeen months into Plaintiff's alleged disability period. Accordingly, the Court finds that the ALJ erred by not adequately explaining this evidence when finding that Plaintiff did not meet Listing 1.06 at step three.
Finally, with respect to the third reason provided by Dr. Schmitter for finding that Plaintiff did not meet or equal a listing—that Plaintiff rejected surgery that could have helped ameliorate her condition—the Court finds that this was an invalid reason for finding that Plaintiff did not meet any listing, because Plaintiff provided a valid reason for rejecting the surgery.
As discussed above, Dr. Davis noted that surgery could affect Plaintiff's ability to have more children in the future. Tr. 295, 299, 301. Plaintiff told Ms. Lee that she was concerned about having surgery because Dr. Davis "said if they do anything surgical it may interfere with future child bearing." Tr. 299. The Court finds that Plaintiff adequately explained her reasons for rejecting surgery—that it could affect her ability to have children in the future—and that this reason was adequately supported by the record. As such, the Court finds that this was an invalid reason for concluding that Plaintiff did not meet Listing 1.06.
Accordingly, because the ALJ did not appropriately assess the aforementioned evidence that suggests that Plaintiff may have met Listing 1.06, the Court finds that the ALJ's decision was not supported by substantial evidence. The Court, therefore, finds that remand for further proceedings is appropriate so that the ALJ can examine whether Plaintiff meets Listing 1.06 in light of the evidence discussed above. Because the Court remands as to this issue, the Court does not address the remaining issues raised by Plaintiff.
Because the Commissioner's decision is not supported by substantial evidence, IT IS HEREBY ORDERED that the Commissioner's decision is