DAVID L. BUNNING, District Judge.
Plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of an administrative decision of the Commissioner of Social Security. The Court, having reviewed the record and for the reasons set forth herein, will reverse and remand the Commissioner's decision, as it failed to follow the regulations and thus deprived Plaintiff of a substantial right.
Plaintiff Stanley Bryant, Jr. filed applications for supplemental security income and disability insurance benefits on March 27, 2009, alleging disability as of September 23, 2008. (Tr. 156-162). These applications were denied initially and upon reconsideration. (Tr. 85-101). At Plaintiff's request, an administrative hearing was conducted on December 21, 2010, by Administrative Law Judge Don C. Paris. (Tr. 37). On January 14, 2011, the ALJ ruled that Plaintiff was not disabled and therefore not entitled to either benefit. (Tr. 22-31). This decision became the final decision of the Commissioner when the Appeals Council denied review on May 8, 2012. (Tr. 1-4).
On July 2, 2012, Plaintiff filed the instant action. The matter has culminated in cross-motions for summary judgment, which are now ripe for adjudication. (Docs. # 11, 14).
Judicial review of the Commissioner's decision is restricted to determining whether it is supported by substantial evidence and was made pursuant to proper legal standards. See Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994). Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Courts are not to conduct a de novo review, resolve conflicts in the evidence, or make credibility determinations. See Cutlip, 25 F.3d at 286. Rather, we are to affirm the Commissioner's decision, provided it is supported by substantial evidence, even if we might have decided the case differently. See Her v. Comm'r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999). However, even if supported by substantial evidence, "a decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right." Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007) (citing Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 546-47 (6th Cir. 2004)).
The ALJ, in determining disability, conducts a five-step analysis. Step 1 considers whether the claimant is still performing substantial gainful activity; Step 2, whether any of the claimant's impairments are "severe"; Step 3, whether the impairments meet or equal a listing in the Listing of Impairments; Step 4, whether the claimant can still perform her past relevant work; and Step 5, whether significant numbers of other jobs exist in the national economy which the claimant can perform. As to the last step, the burden of proof shifts from the claimant to the Commissioner. See Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003); Preslar v. Sec'y of Health & Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994).
At Step 1, the ALJ found that there was no evidence that Plaintiff had engaged in substantial gainful activity since the alleged onset of his disability. (Tr. 25). At Step 2, the ALJ found Plaintiff's obesity, possible rotator cuff tendinitis and degenerative disk disease of the lumbar spine were severe impairments within the meaning of the regulations. (Id.).
At Step 3, the ALJ found that Plaintiff does not have an impairment or combination of impairments listed in, or medically equal to an impairment listed in 20 CFR Part 404, Subpart P, Appendix 1. (Tr. 26). In doing so, the ALJ found that neither his possible rotator cuff tendinitis nor his degenerative disk disease meets or equals the requirements of Listing 1.02 (major dysfunction of a joint) or 1.04 (disorders of the spine) because "the record is devoid of any evidence of limitations in one or both extremities resulting in ineffective fine and gross manipulation as well as nerve root compression, spinal arachnoiditis, or lumbar spinal stenosis with accompanying ineffective ambulation." (Id.).
At Step 4, the ALJ concluded that Plaintiff has the residual functional capacity (RFC) to perform light work activity with the following additional restrictions:
(Tr. 27). Based upon this RFC, the ALJ concluded at Step 4 that Plaintiff was unable to perform any past relevant work. (Tr. 29).
Accordingly, the ALJ proceeded to the final step of the sequential evaluation. At Step 5, the ALJ found that there were a significant number of jobs in the national economy that Plaintiff could perform. (Tr. 30). The ALJ based this conclusion on testimony from a vocational expert (VE), in response to a hypothetical question assuming an individual of Plaintiff's age, education, work experience, and RFC. (Id.). The VE testified that a hypothetical individual with Plaintiff's vocational profile and RFC could work as a general clerical worker (9,000 jobs in Kentucky/719,000 nationally), information clerk (2,500 jobs in Kentucky/200,000 nationally), and gate guard (2,500 jobs in Kentucky/250,000 nationally). (Id.). Based on the testimony of the VE and Plaintiff's age, education, work experience, and RFC, the ALJ found that Plaintiff is capable of making a successful adjustment to other work and thus concluded that he was not under a "disability," as defined by the Social Security Act. (Tr. 30-31).
Plaintiff advances two arguments on appeal. First, Plaintiff argues that the ALJ erred by giving little weight to the medical opinions provided by his treating physicians. Second, Plaintiff argues that the ALJ's assessment of his credibility is flawed. Each of these arguments will be discussed in turn.
Plaintiff takes issue with the ALJ's treatment of assessments completed by his two treating physicians, doctors John Vaughan and Finley Hendrickson. Dr. Vaughan submitted a medical report and functional capacity questionnaire dated June 7, 2010 and September 7, 2010, respectively, while Dr. Hendrickson submitted a questionnaire dated July 21, 2010. (Tr. 402-412, 415-420).
In his medical report, Dr. Vaughan indicated that Plaintiff should alternate between sitting, standing and lying flat as needed, and that he should avoid lifting greater than ten pounds and repetitive bending and twisting of the back. (Tr. 404). As a result, he concluded that Plaintiff did not retain the physical capacity to return to work as a truck driver. (Id.).
In his questionnaire, Dr. Vaughan limited Plaintiff to continuously sitting, standing and walking for ten minutes, five minutes and ten minutes, respectively. (Tr. 418). In an eight hour day, the doctor concluded that Plaintiff could sit for about two hours, but that any standing or walking would have to be for less than two hours. (Id.).
Dr. Vaughan further concluded that Plaintiff has significant limitations in his ability to use both hands to grasp, turn and twist objects, as well as to reach overhead. (Tr. 419). The doctor also noted that Plaintiff does not have the ability to bend and twist at the waist, and that he has a marked limitation in his ability to deal with normal stresses of competitive employment (such as working at a constant pace, working appropriately with co-workers and supervisors and not taking an excessive number of breaks). (Tr. 417, 419). Finally, Dr. Vaughan concluded that Plaintiff's impairments would affect his ability to work at a regular job all day, every day, and estimated that Plaintiff would be absent five to ten days per month. (Tr. 419-420).
The questionnaire completed by Dr. Hendrickson mirrors the report and questionnaire completed by Dr. Vaughan. In his questionnaire, Dr. Hendrickson limited Plaintiff to continuously sitting, standing and walking for thirty minutes, fifteen to twenty minutes and fifteen minutes, respectively. (Tr. 409). In an eight hour day, the doctor concluded that Plaintiff could sit for about four hours and stand for about two hours, but that any walking would have to be for less than two hours. (Id.) Among other numerous limitations pertaining to ambulation, he opined that Plaintiff would need to lie down during the workday, elevate his legs at will, and alternative sitting, standing and walking at will. (Tr. 410).
Beyond ambulation, Dr. Hendrickson limited Plaintiff to lifting and carrying no more than ten pounds occasionally, and never carrying twenty pounds. (Id.). He further opined that Plaintiff has significant limitations in his ability to use his left hand to grasp, turn and twist objects, as well as to reach overhead. (Tr. 411). Finally, the doctor noted that Plaintiff does not have the ability to bend and twist at the waist, and that he has a marked limitation in his ability to deal with normal stresses of competitive employment. (Tr. 408, 411).
Based upon his impairments, Dr. Hendrickson did not believe that Plaintiff could work eight hours without enduring significant increased pain and dysfunction. (Id.). The doctor ultimately estimated that Plaintiff would be absent twelve or more days per month.
In his decision, the ALJ chose to give little weight to the assessments offered by doctors Hendrickson and Vaughan, as he considered them to be "inconsistent with the objective evidence of record." (Tr. 29). In doing so, the ALJ further noted that "Dr. Vaughan released Plaintiff to return to work in July 2009 with a restriction to `light to medium duty.'" (Id.). Additionally, he viewed the assessments as "contraindicated by the conservative treatment provided by both physicians, as well as the level of severity that can reasonably be attribut[ed] to [Plaintiff's] impairments." (Id.).
Pursuant to the Code of Federal Regulations, doctors Hendrickson and Vaughan are "acceptable medical sources." See 20 C.F.R. §§ 404.1513(a)(1), 416.913(a)(1) (characterizing licensed physicians as "acceptable medical sources"). Their opinions, then, are "medical opinions" as defined in the regulations, and would generally be entitled to controlling weight because the doctors are "treating sources."
Due to this general rule in favor of "treating sources," the ALJ was obligated to give "good reasons" for the weight accorded to the assessments by doctors Hendrickson and Vaughan. Id. More specifically, his decision must contain "specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be 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." SSR 96-2p, 1996 WL 374188, at *5 (July 2, 1996). This is where the heart of Plaintiff's argument lies.
Plaintiff takes issue with the ALJ's assertion that the assessments are "inconsistent with the objective evidence of record," pointing out that the ALJ never identified this contrary evidence. As a result, he argues that this assertion is not "sufficiently specific to make clear to any subsequent reviewers . . . the reasons for" the weight assigned. The Sixth Circuit's decisions in Gayheart v. Commissioner of Social Security, 710 F.3d 365 (6th Cir. 2013) and Sharp v. Barnhart, 152 F. App'x 503 (6th Cir. 2005) are instructive.
In Gayheart, the Sixth Circuit deemed the ALJ's reference to the two prongs of the test for controlling weight — "well-supported by medically acceptable clinical and laboratory diagnostic techniques" and "not inconsistent with the other substantial evidence in the record"-to be lacking sufficient specificity:
710 F.3d at 377 (citation omitted). The appellate court reached a similar conclusion in Sharp:
152 F. App'x at 510 (some citations omitted).
In light of Gayheart and Sharp, the Court agrees with Plaintiff that a general assertion that the assessments are "inconsistent with the objective evidence of record" is not sufficiently specific. While the ALJ's statement may not be a verbatim regurgitation of either the "clinical and laboratory diagnostic techniques" or "substantial evidence" prongs, it is at least akin to the latter, and is ambiguous and lacking any sort of explanation. In short, the ALJ's first reason does not suffice.
In asserting that "Dr. Vaughan released [him] to return to work in July 2009 with restrictions to light to medium duty," Plaintiff contends that the ALJ erred by focusing on the doctor's invocation of "light to medium duty" rather than actual restrictions imposed, which he urges precludes sedentary to light work as defined in the regulations and are consistent with all of the doctor's later opinions. The July 6, 2009 note reads:
(Tr. 372).
Plaintiff is correct that Dr. Vaughan's restriction-that he must be able to alternate between sitting and standing as needed-would often preclude "light to medium duty." As explained in Social Security Ruling 83-12:
1983 WL 31253, at *4 (January 1, 1983). Moreover, an RFC determination is beyond Dr. Vaughan's purview. See §§ 404.1527(a)(2), 416.927(a)(2) (limiting medical opinions to "judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions"); see also Nejat v. Comm'r of Soc. Sec., 359 F. App'x 574, 578 (6th Cir. 2009) ("Although physicians opine on a claimant's residual functional capacity to work, ultimate responsibility for capacity-to-work determinations belongs to the Commissioner."). The Court thus agrees that Dr. Vaughan's reference to "light to medium duty" is not a "good reason" to discount the assessments.
Besides taking issue with the ALJ's characterization of the treatment note, Plaintiff also argues that the ALJ ignored what happened to him after July 2009, i.e., his pain worsened when he lifted a trash can. Dr. Vaughan's September 9, 2009 note reads:
(Tr. 428). And his February 17, 2010 note reads:
(Id.). These notes demonstrate that Plaintiff's condition worsened between the note dated July 6, 2009 and the medical report and functional capacity questionnaire dated June 7, 2010 and September 7, 2010, respectively, which further supports the Court's conclusion that Dr. Vaughan's release of Plaintiff to "light to medium duty" also does not suffice.
Because two of the three reasons set forth by the ALJ either lack evidentiary support or are not sufficiently specific, remand is compelled in this case.
Besides making a litany of complaints with respect to the ALJ's treatment of the assessments completed by doctors Vaughan and Hendrickson, Plaintiff also argues that the ALJ's assessment of his credibility is flawed. Ordinarily, the Court would be inclined to address such an argument to provide the ALJ further guidance on remand. Here, though, this issue depends, at least to some degree, on the ALJ's treatment of the assessments of the doctors. The Court therefore declines to consider this argument at this time.
For the reasons stated herein, the Court concludes that the ALJ failed to adhere to the applicable regulations and a remand is therefore warranted. Accordingly,
1. The decision of the Commissioner is not supported by substantial evidence and is
2. Plaintiff's Motion for Summary Judgment (Doc. # 11) is
3. Defendant's Motion for Summary Judgment (Doc. # 14) is
4. A Judgment reversing and remanding this matter will be entered contemporaneously herewith.
