HUGH W. BRENNEMAN, Jr., Magistrate Judge.
Plaintiff brings this pro se action pursuant to 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of the Social Security Administration (Commissioner) denying his claim for disability insurance benefits (DIB) and Supplemental Security Income (SSI).
Plaintiff was born on May 2, 1957 (AR 202).
This court's review of the Commissioner's decision is typically focused on determining whether the Commissioner's findings are supported by substantial evidence. 42 U.S.C. § 405(g); McKnight v. Sullivan, 927 F.2d 241 (6th Cir. 1990). "Substantial evidence is more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Cutlip v. Secretary of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994). A determination of substantiality of the evidence must be based upon the record taken as a whole. Young v. Secretary of Health & Human Servs., 925 F.2d 146 (6th Cir. 1990).
The scope of this review is limited to an examination of the record only. This Court does not review the evidence de novo, make credibility determinations or weigh the evidence. Brainard v. Secretary of Health & Human Services, 889 F.2d 679, 681 (6th Cir. 1989). The fact that the record also contains evidence which would have supported a different conclusion does not undermine the Commissioner's decision so long as there is substantial support for that decision in the record. Willbanks v. Secretary of Health & Human Services, 847 F.2d 301, 303 (6th Cir. 1988). Even if the reviewing court would resolve the dispute differently, the Commissioner's decision must stand if it is supported by substantial evidence. Young, 925 F.2d at 147.
A claimant must prove that he suffers from a disability in order to be entitled to benefits. A disability is established by showing that the claimant cannot engage in substantial gainful activity by reason of any medically determinable physical or mental impairment which 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 twelve months. See 20 C.F.R. §§ 404.1505 and 416.905; Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). In applying the above standard, the Commissioner has developed a five-step analysis:
Heston v. Commissioner of Social Security, 245 F.3d 528, 534 (6th Cir. 2001) (citations omitted).
The claimant bears the burden of proving the existence and severity of limitations caused by her impairments and the fact that she is precluded from performing her past relevant work through step four. Jones v. Commissioner of Social Security, 336 F.3d 469, 474 (6th Cir. 2003). However, at step five of the inquiry, "the burden shifts to the Commissioner to identify a significant number of jobs in the economy that accommodate the claimant's residual functional capacity (determined at step four) and vocational profile." Id. If it is determined that a claimant is or is not disabled at any point in the evaluation process, further review is not necessary. Mullis v. Bowen, 861 F.2d 991, 993 (6th Cir. 1988).
The federal court's standard of review for SSI cases mirrors the standard applied in social security disability cases. See Bailey v. Secretary of Health and Human Servs., No. 90-3265, 1991 WL 310 at * 3 (6th Cir. Jan. 3, 1991). "The proper inquiry in an application for SSI benefits is whether the plaintiff was disabled on or after her application date." Casey v. Secretary of Health and Human Services, 987 F.2d 1230, 1233 (6th Cir. 1993).
Plaintiff's claim failed at the fifth step. At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity since the alleged onset date of January 1, 2005 and met the insured status requirements of the Social Security Act through December 31, 2008 (AR 19). At step two, the ALJ found that plaintiff suffered from severe impairments as follows: history of cardiomyopathy, status post placement of a pacemaker; degenerative disc disease; hypertension; likely chronic pulmonary disease; cognitive disorder; and major depressive disorder (AR 19-20). At step three, the ALJ found that plaintiff did not have an impairment or combination of impairments that met or equaled the requirements of the Listing of Impairments in 20 C.F.R. Pt. 404, Subpt. P, App. 1, specifically Listings 1.04 (disorders of the spine), 4.02 (chronic heart failure), 12.02 (organic mental diseases), 12.04 (affective disorders) and 12.06 (anxiety-related disorders) (AR 20).
The ALJ decided at the fourth step that plaintiff has the residual functional capacity (RFC) to perform light work exertionally as defined in 20 CFR 404.1567(b) and 416.967(b):
(AR 21-22). The ALJ further found that plaintiff could not perform any of his past relevant work (AR 32).
At the fifth step, the ALJ determined that plaintiff could perform a significant number of unskilled, light jobs in the national economy (AR 33-34). Specifically, plaintiff could perform 18,200 jobs in the regional economy (defined as the state of Michigan) such as machine tender (4,200 jobs) and assembler (14,000 jobs) (AR 33). Accordingly, the ALJ determined that plaintiff has not been under a disability, as defined in the Social Security Act, from January 1, 2005 through the date of the decision (September 3, 2009) (AR 34).
Plaintiff was represented by counsel during the administrative action. However, he is proceeding pro se in this appeal, and plaintiff has raised four issues in his pro se brief. First, plaintiff contends that he suffers from a disabling back condition. Second, plaintiff contends that he suffers from a disabling heart condition with dypsnea. Third, plaintiff contends that he suffers from disabling depression. These three issues are addressed in a letter brief from plaintiff's former attorney to the ALJ. See Letter Brief (docket no. 16-1). In his fourth issue, plaintiff seeks to have this court consider recent medical records regarding the alleged deterioration of his condition since the ALJ denied his applications for DIB and SSI in 2009.
The ALJ noted that plaintiff underwent a lumbar diskectomy in 1996 for a disc herniation in his lumbar spine at the L4-5 level (AR 24). The ALJ reviewed plaintiff's treatment with his family physician, James W. Leete, M.D. Plaintiff's treatment notes from December 2005 (approximately 11 months after plaintiff's alleged disability onset date) indicated that plaintiff was doing well and his activity was good (AR 24, 369). In April 2006, plaintiff reported that he was looking for work and considering a possible move to Florida (AR 24, 365). In May 2006, plaintiff was looking for construction work on a daily basis (AR 24, 364). In June 2006, plaintiff's treatment notes indicated that he had been sentenced to a term of 40 days in jail, but was otherwise well; his back pain was under control and he was exercising regularly (AR 24, 363).
In September 2006, Dr. Leete completed a report for the State of Michigan Department of Human Services, in which he listed plaintiff's diagnoses of recent cardiac arrest, cardiomyopathy, a pacemaker, and severe spinal pain with past surgeries, and opined that plaintiff's condition was stable (AR 27, 356-57). Given these conditions, the doctor found that plaintiff was limited in his ability to lift and carry 20 pounds occasionally and that he could stand and/or walk for about 6 hours in an 8-hour workday (AR 27, 357). In November 2006, plaintiff was diagnosed with depression (AR 24, 359). Despite these limitations, Dr. Leete noted that plaintiff could perform "low exertion" work and could operate an automobile (AR 24, 359).
At a consultative examination in January 2007, Michael J. Simpson, M.D., observed that plaintiff complained of neck and back pain (AR 26, 459). However, plaintiff was able to ambulate without the aid of an assistive device and there was no evidence of nerve root impingement (AR 24, 459).
In September 2007, plaintiff's treating cardiologist, Mark S. Smith, M.D., noted that plaintiff was "doing poorly" and limited by chronic back pain, heart disease and chronic obstructive pulmonary disease (COPD) (AR 24, 476). Dr. Smith opined that plaintiff could not go back to work at that time (AR 476). In response to plaintiff's condition, Dr. Smith re-programmed the pacemaker to make it less rate-responsive with activity, adjusted plaintiff's medications and scheduled plaintiff for a stress test in two months to assess his exercise tolerance (AR 476). A treatment note (presumably from Dr. Leete) in 2007 reflected plaintiff's complaints that he had questionable agility, strength and cardiac endurance to perform physical labor and carpentry (AR 25, 535). Plaintiff's treatment notes from 2007 indicate a history of substance abuse, with the doctor's plan to taper down plaintiff's use of methadone (AR 25, 537). Other treatment notes from 2007 indicated that plaintiff was non-compliant with his medication (AR 25, 540).
Treatment notes from May 2009, reflected that plaintiff was to taper off of the methadone (AR 25, 551). Plaintiff complained of low back pain and degenerative joint disease and asked the doctor to complete a form regarding an alleged disability (AR 25, 551). At this time, plaintiff also complained of sciatica and pain radiating into his legs (AR 25, 551). During the same month, Dr. Leete completed a physical RFC questionnaire, in which he listed plaintiff's impairments of cardiac arrythmia, low back pain, disc surgery and sciatica, and stated that plaintiff was taking pain medication and methadone (AR 27, 137). The doctor identified additional limitations: plaintiff could sit, stand and walk less than two hours each in an 8-hour workday; he could only sit in a chair for one hour at a time; and he would need to stand and walk for ten minutes each hour (AR 27, 139). Plaintiff could frequently lift 10 pounds and occasionally lift 20 pounds (AR 139). In addition, plaintiff would need to shift positions at will and take unscheduled breaks during an 8-hour workday (AR 139).
In June 2009, plaintiff underwent an x-ray of his lumbar spine which showed some mild degenerative changes with mild compression deformities within his upper lumbar and lower thoracic spine (AR 24-25, 580). X-rays of plaintiff's neck revealed only mild degenerative changes (AR 25, 579).
The ALJ found that Dr. Leete's extreme limitations were not consistent with the doctor's own treatment notes (AR 28). The ALJ found it notable that plaintiff has been on long-term methadone maintenance for his back and neck, and that he was on it in 2004 when working full-time (AR 30). While plaintiff's prescription for methadone could indicate that he is in a high degree of pain, the ALJ observed that plaintiff had similar treatment when he was working "at a very high level of physical exertion" (AR 30). The ALJ found that plaintiff's claim of disabling neck and back pain was not supported by his past treatment, work history, the failure of consultants to find any significant physical abnormalities, the x-rays which revealed only "mild" or "mild to moderate" degenerative changes, the fact that plaintiff has undergone "little" recent testing, and the fact that plaintiff's physicians did not refer him to a specialist (AR 31). In addition, the ALJ noted that plaintiff's continuous job search through 2006 (more than one year after his alleged disability onset date) suggested that he did not consider himself disabled (AR 30). The ALJ also found plaintiff lacking in credibility, noted that at the administrative hearing plaintiff "flatly denied" using illegal drugs after high school, despite his recorded history of cocaine abuse and emergency room physicians noting track marks on his arm (AR 31, 316).
The ALJ noted plaintiff's testimony that he gets around by riding his bicycle or taking public transportation (having lost his driver's license due to a DUI in 2001) (AR 30). The ALJ also noted plaintiff's adult function report, in which he stated that in a typical day: plaintiff takes his medication and waits for it to work; thinks about what to do for the day; performs small and light handyman work; prepares meals twice a day; and makes money performing small jobs and "handyman" jobs (AR 30). The ALJ's RFC determination, which acknowledged significant restrictions in plaintiff's ability to lift, stand, walk, sit, and maneuver his body in the workplace (e.g., stoop, crawl, etc.) is supported by substantial evidence. While the ALJ found that plaintiff's alleged activities gave some support to his claim that he is disabled under the Regulations, these allegations did not overcome the "generally unremarkable medical findings" and other factors listed above (AR 30).
Plaintiff contends that he suffers from a disorder of the spine which meets the requirements under Listing 1.04. Plaintiff points to an MRI and EMG from April and August 1996 which indicated L4-L5 disc herniation with right L5 nerve root compression with pain (AR 413), previous back surgery (L4-5 diskectomy) performed in September 1996 (AR 415), and medical imaging from January 2005 which shows a small disc protrusion at the C3-C4 level (AR 324-25).
A claimant bears the burden of demonstrating that he meets or equals a listed impairment at the third step of the sequential evaluation. Evans v. Secretary of Health & Human Servs., 820 F.2d 161, 164 (6th Cir.1987). In order to be considered disabled under the Listing of Impairments, "a claimant must establish that his condition either is permanent, is expected to result in death, or is expected to last at least 12 months, as well as show that his condition meets or equals one of the listed impairments." Id. An impairment satisfies the listing only when it manifests the specific findings described in the medical criteria for that particular impairment. 20 C.F.R. §§ 404.1525(d); 416.925(d). A claimant does not satisfy a particular listing unless all of the requirements of the listing are present. See Hale v. Secretary of Health & Human Servs., 816 F.2d 1078, 1083 (6th Cir.1987); King v. Heckler, 742 F.2d 968, 973 (6th Cir.1984). See, e.g., Thacker v. Social Security Administration, 93 Fed.Appx. 725, 728 (6th Cir 2004) ("[w]hen a claimant alleges that he meets or equals a listed impairment, he must present specific medical findings that satisfy the various tests listed in the description of the applicable impairment or present medical evidence which describes how the impairment has such equivalency"). If a claimant successfully carries this burden, the Commissioner will find the claimant disabled without considering the claimant's age, education and work experience. 20 C.F.R. §§ 404.1520(d); 416.920(d).
Listing 1.04 states as follows:
The "inability to ambulate effectively" as defined in § 1.00B2b is as follows:
20 CFR Pt. 404, Subpt. P, App. 1.
The ALJ found that plaintiff's impairment failed to meet Listing 1.04 because the record "does not demonstrate compromise of a nerve root (including the cauda equina) or the spinal cord with additional findings of: (A) Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and positive straight-leg raising or; (B) Spinal arachnoiditis or; (C) Lumbar spinal stenosis resulting in pseudoclaudication" (AR 20). As previously discussed, the record reflects that plaintiff had only minor degenerative changes in his spine since his surgery in 1996 and had worked after that date. Based on this record, plaintiff has not established that he met the requirements of Listing 1.04 or had a condition which was the medical equivalent of that listing.
Plaintiff also contends that he met or equaled the requirements for chronic heart failure, Listing 4.02, which provides as follows:
20 C.F.R. Pt. 404, Subpt. P. App. 1, Listing 4.02.
Plaintiff points out that his ejection fraction was tested a low as 35% (AR 384) and that this was supported by the agency's physician during plaintiff's consultative examination. Plaintiff's assertion is partially correct; the consultative examiner, Dr. Simpson, found that plaintiff's medical records "suggest an ejection fraction of somewhere between 35 and 45%" (AR 459). Plaintiff acknowledges that this ejection fraction did not meet the Listing's requirement of 30 %, but contends that his condition is the medical equivalent of the listing. See Letter Brief (docket no. 16-1).
The ALJ found that plaintiff's heart condition did not meet or equal the relevant listing, reasoning as follows:
(AR 20). With respect to the "B" criteria of Listing 4.02, the ALJ found that plaintiff's dyspnea was not of the required severity:
(AR 31).
Plaintiff appears to claim that his dyspnea is so severe as to be medically equivalent to chronic heart failure.
Reynolds v. Commissioner of Social Security, 424 Fed. Appx. 411, 415 at fn. 2 (6th Cir. 2011). Generally, the opinion of a medical expert is required before a determination of medical equivalence is made. Retka v. Commissioner of Social Sec., No. 94-2013, 1995 WL 697215 at *2 (6th Cir., Nov 22, 1995); 20 C.F.R. §§ 404.1526(b); 416.926(b). If the evidence fails to demonstrate the required severity as to even one of the criteria, it would be fatal to plaintiff's claim. See Hale, 816 F.2d at 1083; King, 742 F.2d at 973. "Even in cases where the claimant has had an impairment which came very close to meeting a listing, this court has refused to disturb the Secretary's finding on medical equivalence." Retka, 1995 WL 697215 at *2, citing Dorton v. Heckler, 789 F.2d 363, 366-67 (6th Cir.1986).
Here, no medical expert has opined that plaintiff's condition is medically equivalent to Listing 4.02. The ALJ discussed the medical record and determined that plaintiff's condition did not meet or equal the requirements of Listing 4.02, and a review of the ALJ's determination with respect to Listing 4.02 shows that it is supported by substantial evidence. Accordingly, plaintiff's claim of medical equivalence should be denied.
Plaintiff also contends that he is disabled due to depression. The ALJ observed that plaintiff received treatment for depression (AR 28-29). The ALJ characterized plaintiff's consultative examination by DDS psychologist Lynn McAndrews, Ph.D. as "generally unremarkable": plaintiff's thoughts were logical and goal directed; while plaintiff was hyperverbal and circumstantial in his responses, he had no difficulty understanding or expressing himself; he was oriented; he could identify large cities and famous people; and he could recall two of three objects after a delay (AR 25, 428-34). Dr. McAndrews diagnosed plaintiff with: a panic disorder without agoraphobia; a cognitive disorder not otherwise specified; a major depressive disorder, severe at this time; and past alcohol abuse (AR 26, 432). She also assigned plaintiff a Global Assessment of Functioning (GAF) score of 40 (AR 433).
The ALJ addressed the evidence of plaintiff's mental impairment as follows:
(AR 28-29).
The ALJ's conclusions with respect to plaintiff's depression are supported by substantial evidence for the reasons explained in the decision. While Dr. Leete diagnosed plaintiff with depression and anxiety, there is no evidence that plaintiff experienced more than moderate limitations in social functioning. The ALJ could properly discount the GAF score as "not particularly helpful" in this context because it was vague and not connected to work-related mental tasks. See Kornecky v. Commissioner of Social Security, 167 Fed. Appx. 496, 511(6th Cir. 2006) ("we are not aware of any statutory, regulatory, or other authority requiring the ALJ to put stock in a GAF score"). The ALJ addressed plaintiff's moderate limitations by restricting him to minimal contact with the public and only occasional interactions with co-workers and supervisors. Plaintiff's claim that he suffers from disabling depression should be denied.
Finally, plaintiff's initial brief referred to medical records which were generated after the ALJ issued his unfavorable decision on September 3, 2009. See Brief (docket no. 16). These records were submitted to the Appeals Council and consist of the following: a letter from Dr. Smith dated March 25, 2010, expressing his opinion that plaintiff "is disabled from taking any job" due to his cardiac history and "significant dyspnea;" a CT scan of his lumbar spine dated October 6, 2009, which indicated advanced degenerative disc disease and facet arthritis of L4-5, instances of mild disc bulging, and advanced degenerative changes of the facet joints at L4-5, L5-S1 and to a lesser degree at L3-4; a CT scan of the cervical spine from October 6, 2009, indicating mild changes of the discs with minimal central protrusion C2-3 and C3-4 with no herniation (relatively unchanged from the previous examination), hypertrophic changes of the fact joints at C2-3, C3-4 and to a mild degree C4-5, and mild degenerative disc disease at C7-T1; and a motor nerve study from November 23, 2009 (AR 583-91).
When a plaintiff submits evidence that has not been presented to the ALJ, the court may consider the evidence only for the limited purpose of deciding whether to issue a sentence-six remand under 42 U.S.C. § 405(g). See Sizemore v. Secretary of Health and Human Servs., 865 F.2d 709, 711 (6th Cir.1988). Under sentence-six, "[t]he court . . . may at any time order the additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . ." 42 U.S.C. § 405(g). In a sentence-six remand, the court does not rule in any way on the correctness of the administrative decision, neither affirming, modifying, nor reversing the Commissioner's decision. Melkonyan v. Sullivan, 501 U.S. 89, 98 (1991). "Rather, the court remands because new evidence has come to light that was not available to the claimant at the time of the administrative proceeding and that evidence might have changed the outcome of the prior proceeding." Id.
Plaintiff's post-hearing solicitation of an opinion letter from Dr. Smith which seeks to address the ALJ's alleged wrongful decision denying benefits does not meet the good cause requirement of a sentence-six remand. See Perkins v. Chater, 107 F.3d 1290, 1296 (7th Cir. 1997) (in denying the plaintiff's request for a sentence-six remand, in which the plaintiff sought to add new evidence in the form of a medical opinion that critiqued the ALJ's decision, the court held that there was not "good cause" for a remand, because allowing this opinion "would amount to automatic permission to supplement the administrative records with new evidence after the ALJ issues a decision in the case, which would seriously undermine the regularity of the administrative process"); Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985) (explaining that the good cause requirement would be meaningless if every time a claimant lost before the agency he was free to seek out a new expert witness who might better support his position).
The CT scans present a different category of evidence. Unlike Dr. Smith's letter, which was apparently generated to rebut the ALJ's decision, the CT scans appear to be part of plaintiff's ongoing medical treatment. Good cause exists for plaintiff's failure to present this evidence because the tests were not available until about 1 1/2 months after the ALJ issued the decision denying benefits. Courts acknowledge that claimant's have limited control over the scheduling of medical tests. See generally, Nelson v. Shalala, 93-35343, 1994 WL 108930 (9th Cir. March 29, 1994) (noting that physicians, not patients, order medical tests); Stubbs v. Apfel, No. 97-C-7069, 1998 WL 547107 at * 11 (N.D. Ill. Aug. 20, 1998) (good cause shown to remand for consideration of MRI results when claimant could not afford the test until after the ALJ issued his opinion).
The court concludes that this new evidence is material. "In order for the claimant to satisfy this burden as to materiality, he must demonstrate that there was a reasonable probability that the [Commissioner] would have reached a different disposition of the disability claim if presented with the new evidence." Sizemore, 865 F.2d at 711. The October 2009 CT scans indicate that plaintiff suffers from more extensive degenerative changes than reflected in the previous radiography. It is not for this court to evaluate how these changes affect plaintiff's ability to work. It is possible that these recent tests could lead the Commissioner to conclude that plaintiff has additional restrictions which reduce the job base identified by the ALJ (i.e., 18,200 jobs). In addition, October 2009 CT scans will provide the Commissioner with an additional tool to evaluate plaintiff's impairments. See, e.g., Geigle v. Sullivan, 961 F.2d 1395, 1397 (8th Cir. 1992) (MRI performed six months after an administrative hearing is not merely evidence of a deteriorating condition, but also probative of the patient's condition prior to and at the time of the hearing); Bilodeau v. Shalala, 856 F.Supp. 18, 21 (D. Mass. 1994) (ordered sentence-six remand for consideration of an MRI performed six months after ALJ's decision). While these tests are not relevant to plaintiff's DIB claim (plaintiff was last insured for DIB on December 31, 2008), the tests would be relevant to his SSI claim. Accordingly, this matter should be remanded for consideration of October 2009 CT scans.
Plaintiff underwent motor nerve studies with Dr. Julie Gronek, M.D., on November 23, 2009. It appears that the studies were performed as part of plaintiff's medical treatment within two months of the ALJ's decision. However, plaintiff has provided no guidance as to the significance of these studies. For example, there is no report accompanying the study results. Given the lack of context or interpretation of these studies, the court concludes that they are not material, i.e., there is no "reasonable probability" that the Commissioner would reach a different disposition of plaintiff's disability claim if presented with the new evidence.
Based on the foregoing, the court concludes that plaintiff's request for a sentence-six remand should be granted with respect to the CT scans performed in October 2009.
For the reasons discussed, I respectfully recommend that the Commissioner's decision be
