KATHRYN H. VRATIL, District Judge.
Robyn Hollinger appeals the final decision of the Commissioner of Social Security to deny disability insurance benefits and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-434, 1281-1385. For reasons set forth below, the Court finds that the final decision of the Commissioner should be reversed.
On August 9, 2010, plaintiff applied for disability insurance benefits under Title II. On August 24, 2010, she applied for SSI under Title XVI. The agency denied plaintiff's applications initially and upon reconsideration. Tr. 92-123. On September 28, 2012, following a hearing, an administrative law judge ("ALJ") found that plaintiff was not disabled as defined in the Social Security Act. Tr. 10-33. On November 8, 2013, the Appeals Council denied plaintiff's request for review. Tr. 1-6. The ALJ decision thus stands as the final decision of the Commissioner. See U.S.C. §§ 405(g), (h). Plaintiff appealed to this Court the final decision of the Commissioner.
The following is a brief summary of the evidence presented to the ALJ. The Court explores some of the facts in greater detail in the analysis section.
In September of 2001, plaintiff saw Dr. Frederick Wolfe, M.D., for a consultation regarding her history of intractable generalized pain and associated symptoms including sleep disturbance, fatigue, anxiety, depression and feelings of helplessness. Dr. Wolfe diagnosed dysfunctional pain syndrome. He also noted that plaintiff was 125 pounds overweight and recommended weight loss and exercise and psychological intervention for her pain.
On December 16, 2008, Nurse Practitioner Traci Harsch, ARNP, examined plaintiff at the Shawnee County Health Agency. Tr. 370. Plaintiff reported fatigue, weakness, pain, myalgia and anxiety. Harsch noted that plaintiff's speech was slow, and that she appeared withdrawn and agitated. She assessed plaintiff with fibromyalgia, anxiety and depression. Plaintiff signed a narcotic contract for pain medication.
A month later, plaintiff reported a severe flare-up of fibromyalgia. Harsch noted that plaintiff had palpable tenderness and spasm in her neck and back, and prescribed gabapentin. Tr. 368.
On February 18, 2010, plaintiff reported to Harsch that she was doing pretty well but continued to experience fatigue, weakness, pain, headache and myalgia. She had stopped taking gabapentin because it did not help her pain and made her sleepy. Harsch prescribed Effexor and Lortab.
On July 23, 2010, Harsch wrote a letter stating that plaintiff needed a service dog due to fibromyalgia, degenerative joint disease and hearing loss. Tr. 485.
On September 10, 2010, plaintiff reported fluctuations in her blood pressure, as well as continued fibromyalgia pain, which she rated ten on a scale of one to ten. Tr. 414. She reported racing thoughts and anxiety. Harsch prescribed Flexeril and Klonipin.
On November 30, 2010, Harry Hilderman, AUD, evaluated plaintiff's hearing. Plaintiff reported a history of ear infections and tinnitus in both ears. Dr. Hilderman diagnosed mild to moderate sensorineural hearing loss which would affect her ability to understand soft-spoken words or speech in noisy environments. Tr. 378.
On December 4, 2010, Dr. Jay Hughey evaluated plaintiff on referral from Disability Determination Services. Tr. 383. Dr. Hughey noted that plaintiff had difficulty rising from a seated position, hopping and squatting. He found that she had five fibromyalgia paired trigger points. He determined that she had an unimpaired ability to walk with normal range of motion in all joints. He concluded that plaintiff had a history of arthralgias and fibromyalgia.
On March 24, 2011, Dr. Magdalene Kovach conducted a consultative psychological evaluation of plaintiff. Plaintiff reported that she had received intermittent treatment for depression and anxiety and that anti-depressants had not helped her. Plaintiff appeared very serious and rarely smiled but had normal speech and adequate eye contact. Dr. Kovach found that plaintiff had normal memory and clear thinking but below average problem-solving and judgment skills possibly affected by impulsiveness. She diagnosed plaintiff with depressive disorder and passive aggressive personality features. Dr. Kovach opined that plaintiff could understand and follow simple directions, that plaintiff's work history suggested problems with consistency and reliability, that her motivation to work was low and affected by depression and medical issues, and that her judgment was affected by resentment and a cynical view of others. Tr. 391.
On October 11, 2011, plaintiff reported to Harsch that her Effexor was not working; she was feeling tired and having headaches and muscle aches due to weather, arthralgias, worsening muscle cramps, anxiety, high irritability, depression, sleep disturbances and anhedonia. Nurse Harsch prescribed Viibryd. Tr. 428. The next month, plaintiff reported that Viibryd was working well, but she that was anxious. Plaintiff requested an increased dose of Klonipin.
On November 21, 2011, Harsch completed a Medical Source Statement-Physical in which she opined that plaintiff had the following limitations: she could lift and/or carry less than five pounds frequently and five pounds occasionally; stand and/or walk continuously for less than 15 minutes and for one hour total in an eight hour day; limited ability to push and pull; never climb, balance, stoop, kneel, crouch, crawl or reach; avoid moderate exposure to extreme cold and heat, weather, wetness, humidity, dust, fumes, vibration, hazards and heights; and lie down or recline to relieve pain. She opined that plaintiff's pain and medications caused her to have decreased concentration. Tr. 423-24.
On January 6, 2012, plaintiff began seeing Karen Bruce, M.D.
On April 13, 2012, plaintiff told Dr. Bruce that she was experiencing dizziness and forgetfulness, anxiety, depression and chronic pain. Tr. 449-50. Dr. Bruce prescribed tramadol and morphine. Tr. 451-52. On May 1, 2012, Dr. Bruce prescribed a wheelchair. Tr. 437.
On May 2, 2012, plaintiff reported that her medications made her drowsy and that she was erratic on morphine. She also reported increased falls. Plaintiff's husband reported that she was sleeping more, was confused, had poor tracking, was not eating normally and required more care from him. Tr. at 446. Dr. Bruce discontinued the morphine and started plaintiff on Butrans. Tr. 447. On June 1, 2012, plaintiff told Dr. Bruce that she could not afford Butrans. At that visit, she had improved gait and walked with a cane.
On June 5, 2012, Richard Shapiro, Ph.D. examined plaintiff. Plaintiff reported that she was sleeping poorly and spent most of her days at home reading and watching television. Dr. Shapiro diagnosed cognitive disorder, dysthymic disorder and personality disorder. He assessed a Global Assessment of Functioning ("GAF") score of 35, and noted that plaintiff's difficulty with testing appeared to stem from medications or identity diffusion.
On June 20, 2012, plaintiff reported to Dr. Bruce that she had pain in her hips, back, left shoulder and left ribs which was not completely alleviated by fentanyl. She was drowsy when sedentary and "fuzzy-headed" at other times. Tr. 471. Dr. Bruce lowered the gabapentin dose to reduce side effects. On July 19, 2012, plaintiff reported severe burning in both knees, headaches, increased pain in her left shoulder and tingling in her fingers. She was not driving because her medications made her sleepy. Tr. 465-66. She reported that her depression and memory had improved, but Dr. Bruce noted that her mood and affect were still depressed. Tr. 467.
On September 4, 2012, Dr. Shapiro opined that plaintiff had moderate limitations in seven areas of mental functioning and marked limitations in six areas. He stated that plaintiff was extremely limited in her ability to complete a normal workday or workweek without interruption from psychological symptoms and to perform at a consistent pace without numerous rest periods. Tr. 483.
On September 17, 2012, the ALJ held a hearing at which plaintiff testified as follows:
In April of 2009, plaintiff quit her job at the Veteran's Administration because the stress exacerbated her fibromyalgia and the job required her to sit constantly at her desk. Tr. 42. Plaintiff's condition worsened in September of 2011 and since then she has been largely bedridden. She is unable to work because of pain and medications which make her drowsy and cause her to fall asleep. She takes her medications in the morning and then goes back to sleep for a few hours. When her children come home from school she spends time with them or helps them with their homework. Plaintiff needs help with activities of daily living, including getting to the bathroom and showering. Tr. 44. Her husband and children do all of the housework. For the past six months she has used a wheelchair when she goes out. Tr. 43. She goes grocery shopping once a month in her wheelchair.
The last year was very difficult because of "the stress associated with trying to get to the doctor's appointments for Social Security." Tr. 47. Plaintiff explained as follows:
Tr. 48.
The ALJ proposed the following hypothetical to the vocational expert: an individual of claimant's age, education and work experience, who is limited to sedentary exertional work, allowing for alternating sitting and standing positions every 30 minutes at the work station; no ladders, ropes or scaffolds; occasional ramps and stairs; occasional balance, stoop, kneel, crouch and crawl, with the need to avoid concentrated exposure to excessive noise; doing simple, routine repetitive tasks; occasional decision-making; and occasional changes in the work setting; no interaction with the public, occasional interaction with co-workers and occasional supervision. The vocational expert testified that an individual with these limitations would not be able to perform plaintiff's past relevant work, but could work as a document preparer, optical goods assembler or wire patcher. Tr. 54. The vocational expert testified that if this individual needed to use a wheelchair, an accommodated work station would be needed.
In her order of September 28, 2012, the ALJ made the following findings:
The Court reviews the Commissioner's decision to determine whether it is free from legal error and supported by substantial evidence. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009);
Plaintiff bears the burden of proving disability under the Social Security Act.
The Commissioner uses a five-step sequential process to evaluate disability. 20 C.F.R. § 404.1520;
At step four, the ALJ makes specific findings of fact at three phases: (1) the individual's RFC, (2) the physical and mental demands of prior jobs or occupations and (3) the ability of the individual to return to the past occupation given her RFC.
Plaintiff claims that the ALJ erred at step four in weighing the medical opinions and evaluating her credibility to formulate her RFC. Plaintiff asserts that based on the erroneous RFC, the ALJ erred at step five in finding that she is capable of performing work that exists in the national economy.
Plaintiff claims that the ALJ did not properly weigh the medical opinions. Specifically, she asserts that the ALJ (1) gave too little weight to the opinion of nurse practitioner Harsch and (2) gave too much weight to the opinion of examining physician Dr. Hughey and non-examining state agency medical sources Carl Leigh, M.D., and Emil Goring, M.D.
Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of a claimant's impairments including claimant's symptoms, diagnosis and prognosis. 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). A treating physician's opinion about the nature and severity of claimant's impairments should be given controlling weight by the Commissioner if well supported by clinical and laboratory diagnostic techniques and if not inconsistent with other record evidence.
Even if an opinion of a treating medical source is not entitled to controlling weight, the ALJ must weigh the opinion in light of the factors set forth at 20 C.F.R. § 404.1527.
The opinion of a non-treating source who only examined claimant once is not entitled to the sort of deferential treatment accorded to a treating physician's opinion.
On December 4, 2010. Dr. Hughey performed a detailed physical examination of plaintiff
In February and March of 2011, respectively, Drs. Leigh and Goring reviewed plaintiff's medical records. They each opined that plaintiff could perform light work which required lifting 10 pounds frequently and 20 pounds occasionally, and sitting, standing or walking for six hours of an eight-hour day, with frequent climbing of stairs and ramps, occasional climbing of ropes, ladders or scaffolds, and no manipulative limitations. Tr. 21, 83-104.
On November 21, 2011, Harsch opined that plaintiff was limited to lifting or carrying less than five pounds frequently and five pounds occasionally, standing and/or walking continuously for less than 15 minutes and for one hour total in an eight hour day and would need to lie down or recline every hour to relieve pain. She opined that plaintiff's pain and medications caused her to have decreased concentration. Tr. 424.
As the ALJ recognized, Social Security Ruling ("SSR") 06-03p provides the procedure for evaluating the opinions of medical sources (such as Harsch), who are not "acceptable medical sources."
Here, the ALJ provided four reasons for discounting Harsch's opinion: (1) as a nurse practitioner, Harsch is not an acceptable medical source; (2) Harsch's opinion that plaintiff needed to recline every hour was inconsistent with detailed findings of Dr. Hughey, (3) progress notes do not support Harsch's opinion, and (4) Harsch's finding that plaintiff could not work is not supported by objective evidence.
Plaintiff contends that in evaluating Harsch's opinion, the ALJ failed to acknowledge that her condition deteriorated after September of 2011. She points out that Dr. Hughey examined her in December of 2010, almost a year before Harsch provided her opinon. The ALJ acknowledges that plaintiff testified that her condition deteriorated after September of 2011, but found that her testimony was not credible, because "nothing medically significant" had occurred after September of 2011. Further, the ALJ found that plaintiff had no medical need for a wheelchair — even though Dr. Bruce, a treating physician, prescribed one on May 1, 2012. The ALJ stated that plaintiff is not morbidly obese and that no objective tests of any joint or spine support the need for a wheelchair. The ALJ noted that on January 6, 2012, Dr. Bruce found that plaintiff had normal stability in her gait. The fact that plaintiff had no joint, gait or spinal dysfunction in January of 2012, however, does not compel the conclusion that plaintiff had no medical need for a wheelchair several months later.
The Court's overriding concern is that the ALJ discounted the opinons of Harsch and Dr. Bruce, as well as the credibility of plaintiff's testimony, because of a lack of "objective" medical evidence. Symptoms of fibromyalgia, however, are entirely subjective; no laboratory tests can identify its presence or severity.
