ERIC F. MELGREN, UNITED STATES DISTRICT JUDGE.
Plaintiff Mary Golisch seeks review of a final decision by Defendant, the Commissioner of Social Security ("Commissioner"), denying her claim for a period of disability and disability insurance benefits under Title II of the Social Security Act. Plaintiff alleges that the new evidence she submitted to the Appeals Council undermines the administrative law judge's ("ALJ's") findings. She also alleges that the ALJ erred in assessing her credibility. Upon review, the Court finds that the new evidence Golisch submitted to the Appeals Council warrants reconsideration of the ALJ's residual functional capacity ("RFC"). Therefore, the Court reverses the decision of the Commissioner and remands for further consideration.
Mary Golisch was born on August 15, 1955. She was fifty-six years old as of her alleged disability onset date. Golisch previously worked for a department store as a customer service representative. On October 8, 2012, she filed a Title II application for a period of disability and disability insurance benefits, alleging disability beginning March 30, 2012. Golisch alleged that she was unable to work due to fibromyalgia, restless leg syndrome, migraine headaches, and pancreatitis. Her application was denied initially and upon reconsideration. Golisch then asked for a hearing before an ALJ.
ALJ Ross Stubblefield conducted an administrative hearing on April 24, 2014. Golisch was represented by counsel at the hearing, and she testified about her medical conditions, previous work history, and activities of daily living. The ALJ also heard from a vocational expert at the hearing.
The ALJ determined that Golisch had the residual functioning capacity ("RFC")
The ALJ then determined that Golisch is capable of performing her past relevant work as a customer service representative. According to the ALJ, this work does not require the performance of work-related activities precluded by Golisch's RFC. Thus, the ALJ concluded that Golisch has not been under a disability from March 30, 2012, through the date of his decision.
Given this unfavorable result, Golisch sought reconsideration of the ALJ's decision from the Appeals Council. Along with her request for review, Golisch submitted treatment records from 2007, 2012, and 2014. She also submitted a Residual Functional Capacity Questionnaire completed by her treating physician assistant two months after the ALJ issued his written decision. The Appeals Council refused to consider the supplemental medical evidence and denied Golisch's request. As such, the ALJ's June 2014 decision became the final decision of the Commissioner.
On September 10, 2015, Golisch filed a Complaint in the United States District Court, District of Kansas seeking reversal of the ALJ's decision and the immediate award of benefits or, in the alternative, a remand to the Commissioner for further consideration. Given Golisch's exhaustion of all administrative remedies, her claim is now ripe for review before this Court.
Judicial review of the Commissioner's decision is guided by the Social Security Act (the "Act") which provides, in part, that the "findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive."
Pursuant to the Act, the Social Security Administration has established a five-step sequential evaluation process for determining whether an individual is disabled.
The first three steps of the sequential evaluation require the Commissioner to assess: (1) whether the claimant has engaged in substantial gainful activity since the onset of the alleged disability; (2) whether the claimant has a severe, or combination of severe, impairments; and (3) whether the severity of those severe impairments meets or equals a designated list of impairments.
Upon assessing the claimant's residual functional capacity, the Commissioner moves on to steps four and five, which require the Commissioner to determine whether the claimant can either perform her past relevant work or whether she can generally perform other work that exists in the national economy, respectively.
On appeal, Golisch argues that the Commissioner's decision is not supported by substantial evidence of the record as a whole. In support of this argument, Golisch first alleges that the new evidence she submitted to the Appeals Council justifies either remand of her claim or an immediate award of benefits. Second, Golisch alleges that the ALJ erred in assessing her credibility. The Court will address each of Golisch's arguments below.
This Court's review is limited to determining whether the Commissioner's decision is supported by substantial evidence from the record as a whole.
Golisch submitted the following additional evidence to the Appeals Council:
The Appeals Council considered this evidence but ultimately found that it did not provide a basis for changing the ALJ's decision. Golisch disagrees with this conclusion. She claims that the additional evidence supports a more restrictive RFC with regard to her manipulative limitations and that the new opinion of one of her treating providers undermines the ALJ's RFC assessment. She also claims that the evidence establishes the existence of a new severe impairment.
At the hearing, Golisch testified that she experiences pain and swelling in her hands and that this pain and swelling makes grasping and lifting difficult. The ALJ, however, did not include any manipulative limitations in his RFC assessment. Golisch contends that the evidence she submitted to the Appeals Council provides a basis for changing this RFC. In support of this argument, Golisch points to the 2007 treatment notes from rheumatologist Kathryn Welsh, M.D., which state that she experienced numbness and tingling in her hands after neck surgery. She also points to the opinion of her treating provider, Leslie Smith, PA-C, who opined that, during an eight-hour work day, Golisch could only use her fingers twenty-five percent of the time and grasp, turn, and twist objects ten percent of the time.
Contrary to Golisch's argument, this evidence does not support a more restrictive RFC. Although Smith opines that Golisch is unable to use her hands for the vast majority of the work day, the medical records from College Park Family Care, where she practices, do not support this opinion. For example, a complete physical from May 2014 showed that Golisch had normal strength in her arms and legs and no abnormalities. An examination from April 2014 showed normal motor strength
Golisch next contends that her claim should be remanded based on the opinion of her treating physician assistant, Leslie Smith, PA.C. The facility at which Smith practices has treated Golisch since 2003. Smith herself treated Golisch from her onset date and as many as fifteen times in 2014. Smith opined that Golisch's symptoms would "constantly" interfere with her ability to sustain attention and concentration necessary for simple work tasks. Physically, Smith opined that Golisch would be capable of sitting and standing/walking for less than two hours in an eight hour work day. She noted that Golisch would be capable of reaching for only twenty percent of an eight hour workday and handling up to ten percent in an eight hour work day. She also opined that Golisch would only occasionally be capable of lifting ten pounds. Finally, she opined that Golisch would miss more than four days of work per month because of her impairments.
Golisch argues that the Commissioner erred by failing to give controlling weight to Smith's opinion. A treating physician's opinion must be given "controlling weight," provided that opinion is well-supported and not inconsistent with substantial evidence in the record.
Here, the Court finds that Smith's opinion is not consistent with both her own treatment notes and the rest of the medical evidence in the record. As previously noted, Smith's treatment records do not show limitations similar to those she identified. Smith's examination in August 2014 showed that Golisch's extremities had no deformity or loss of function, that her gait was normal, and that she otherwise had no physical abnormalities. A physical conducted by Smith in May 2014 showed some mild tenderness in her lower back as well as moderate spasm, but also full range of motion in her back and extremities, normal strength in her arms and legs, normal gait, and no other abnormalities. Three other treatment records from 2012 and 2014 also showed no functional abnormalities and normal physical examination.
A review of the remaining medical evidence in the record reveals the same result. A consultative examination in January 2013 showed that Golisch experienced some mild tenderness but otherwise had normal range of motion in her extremities and back and a normal gait. The examining physician from that consultation opined that Golisch had no limitations in sitting, standing, or walking, and that she could
Overall, Smith's opinion is inconsistent with substantial evidence in the record. Therefore, her opinion is not entitled to controlling weight and does not undermine the ALJ's decision.
Golisch argues that the mental health evaluations completed the week before and after the hearing are evidence of a new severe impairment. The week before the hearing, Golisch saw Laura Reilly, M.D., for a neurological consultation. At that appointment, Golisch described short term memory difficulties, reporting that she often forgets portions of movies as well as things that her husband just told her. Following the evaluation, Dr. Reilly noted that Golisch missed three out of five immediate recall objects and both math questions. Dr. Reilly also noted that Golisch drew her clock face incorrectly, which is suggestive of mild cognitive decline. The following month, Golisch saw Michael Anderson, Ph.D., for a neuropsychological evaluation. Testing revealed that Golisch's visual language was borderline to mildly impaired and her auditory verbal recall was notable for a modestly impaired learning curve. Dr. Anderson diagnosed Golisch with mild cognitive impairment.
According to Golisch, this evidence shows the existence of a medically determinable impairment and this impairment should be classified as severe. The Commissioner responds that this evidence is not sufficient to undermine the substantial evidence the ALJ identified showing that Plaintiff does not have a severe mental impairment. The Commissioner also argues that even if the ALJ should have identified a severe mental impairment at step two, this still does not merit reversal because such error is harmless.
At step two, the ALJ examined Golisch's anxiety by applying the Commissioner's psychiatric review technique set out in 12.00C of the Listing of Impairments.
The ALJ's RFC assessment is discussed at pages four through eight of his decision. The only reference the ALJ makes to Golisch's mental health impairments is the opinion of Dr. Bergmann-Harms, who opined that Golisch has no severe mental health impairment. The ALJ gave this opinion great weight, as it was consistent with Golisch's lack of treatment for her mental health symptoms.
After looking at the additional evidence, the Court finds that the ALJ's RFC assessment is not supported by substantial evidence. Although Golisch primarily argues that her evidence shows the existence of a new severe impairment, the real problem is not whether the impairment was classified as severe, but whether it was
In this case, Dr. Anderson diagnosed Golisch with mild cognitive impairment. This diagnosis qualifies as a medically determinable impairment because it was based on medically acceptable clinical and diagnostic techniques. Dr. Anderson did not make this diagnosis solely based on Golisch's statements but on six objective tests used to evaluate Golisch's symptoms. Therefore, this impairment must be considered in assessing Golisch's RFC.
The only mental impairment the ALJ considered in formulating Golisch's RFC was anxiety. The ALJ obviously did not consider Golisch's diagnosis of mild cognitive impairment because Golisch first submitted evidence of this impairment to the Appeals Council. It's not clear whether the Appeals Council considered this new impairment in reviewing the ALJ's RFC. The Appeals Council's decision makes no mention of Dr. Reilly's and Dr. Anderson's reports and only generally states that the additional information provided by Golisch "does not provide a basis for changing the Administrative Law Judge's decision." Thus, the Court finds that the ALJ's RFC is not support by substantial evidence because it is not clear whether all medical impairments were considered in formulating Golisch's RFC.
Recognizing that "some claimants exaggerate symptoms for the purposes of obtaining government benefits,"
In evaluating a disability claim based on nonexertional symptoms, including pain, the ALJ must first determine whether the objective medical evidence demonstrates that a claimant suffers from an underlying medically determinable physical or mental impairment.
In this case, the ALJ found Golisch to be partially credible. He noted that her ability to perform daily activities was inconsistent with her alleged limitations. He also noted that her allegations of ongoing symptoms were inconsistent with the lack of medical evidence after early 2013. Golisch argues that these findings are not supported by substantial evidence in the record. The Court disagrees.
The ALJ's determination that Golisch's activities of daily living are inconsistent with her alleged limitations is supported by substantial evidence. Golisch testified at the hearing that she drives, goes grocery shopping, performs some household chores, and cares for her teenage grandson on the weekends. Thus, the ALJ reasonably considered this factor in finding Golisch only partially credible.
Similarly, the ALJ's credibility finding based on the lack of treatment records is also supported by the record. As the ALJ observed, the record before him lacked medical records after early 2013. Golisch asserts that the additional evidence she submitted to the Appeals Council containing her treatment records from 2014 resolves this issue. However, this evidence actually supports the ALJ's credibility finding and not Golisch's argument. As noted above, Golisch's physical exam records show no physical abnormalities, a normal gait, and no deformity or loss of function. Thus this medical evidence does not undermine the ALJ's credibility determination.
