HUGH W. BRENNEMAN, Jr., Magistrate Judge.
Plaintiff brings this 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 her claim for child's insurance benefits
Plaintiff was born on July 19, 1982 (AR 100).
After an administrative hearing held on November 25, 2008 (AR 693-753), the administrative law judge (ALJ) reviewed plaintiff's claim de novo and entered a decision denying benefits on February 5, 2009 (AR 31-38). The Appeals Council remanded the case for additional review and fact finding (AR 40-42). A second hearing was held on August 17, 2010 (AR 754-80). The ALJ reviewed plaintiff's claim de novo and entered a decision denying benefits on September 21, 2010 (AR 18-26). This decision, which was later approved by the Appeals Council, has become the final decision of the Commissioner and is now before the Court for review.
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 Services, 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 Services, 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. § 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." D'Angelo v. Commissioner of Social Security, 475 F.Supp.2d 716, 719 (W.D. Mich. 2007). "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 of the evaluation. The ALJ initially found that plaintiff had not attained the age of 22 as of the alleged disability onset date of July 18, 2003, and that she has not engaged in substantial gainful activity since that date (AR 20). Second, the ALJ found that plaintiff had severe impairments of: hereditary hemorrhagic telangiectasia, with arterial venous malformations (AVM's) and resultant epistaxis
The ALJ decided at the fourth step that plaintiff "has the residual functional capacity to perform work limited to lifting up to 20 pounds occasionally and 10 pounds frequently; sitting up to 6 hours and standing/walking up to 6 hours in an 8-hour workday; and only occasional overhead work with the left upper extremity" (AR 22). The ALJ also found that plaintiff was unable to perform any past relevant work (AR 24).
At the fifth step, the ALJ determined that plaintiff could perform a range of light work in the national economy (AR 25). Representative occupations in the regional economy (Michigan) included 40,000 unskilled, light clerical jobs, including general office clerk, file clerk, photocopy machine attendant, or medical records scanner (AR 25). Accordingly, the ALJ determined (1) that based on her application for child's insurance benefits, plaintiff was not disabled as defined in the Social Security Act prior to July 18, 2004, the date she attained age 22, and (2) that based on her application for SSI, plaintiff was not disabled as defined in the Social Security Act from July 18, 2003 (the alleged onset date) through September 21, 2010 (the date of the decision) (AR 25-26).
Plaintiff raised three issues (with sub-issues) on appeal:
Plaintiff contends that the ALJ failed to give proper weight to the opinions of her treating physicians. A treating physician's medical opinions and diagnoses are entitled to great weight in evaluating plaintiff's alleged disability. Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001). "In general, the opinions of treating physicians are accorded greater weight than those of physicians who examine claimants only once." Walters v. Commissioner of Social Security, 127 F.3d 525, 529-30 (6th Cir. 1997). "The treating physician doctrine is based on the assumption that a medical professional who has dealt with a claimant and his maladies over a long period of time will have a deeper insight into the medical condition of the claimant than will a person who has examined a claimant but once, or who has only seen the claimant's medical records." Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994). See 20 C.F.R. § 404.1527(c)(2) ("Generally, we give more weight to opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations"). Under the regulations, a treating source's opinion on the nature and severity of a claimant's impairment must be given controlling weight if the Commissioner finds that: (1) the opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques; and (2) the opinion is not inconsistent with the other substantial evidence in the case record. See Gayheart v. Commissioner of Social Security, 710 F.3d 365, 375 (6th Cir. 2013); 20 C.F.R. §§ 404.1527(c)(2) and § 416.927(c)(2). An ALJ is not bound by the conclusory statements of doctors, particularly where the statements are unsupported by detailed objective criteria and documentation. Buxton, 246 F.3d at 773; Cohen v. Secretary of Health & Human Services, 964 F.2d 524, 528 (6th Cir. 1992). In summary, the opinions of a treating physician "are only accorded great weight when they are supported by sufficient clinical findings and are consistent with the evidence." Cutlip, 25 F.3d 284 at 287.
Finally, the ALJ must articulate good reasons for not crediting the opinion of a treating source. See Wilson v. Commissioner of Social Security, 378 F.3d 541, 545 (6th Cir. 2004); 20 C.F.R. § 404.1527(c)(2) ("[w]e will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion").
Gianna McKay, M.D., provided a statement regarding plaintiff's condition on December 22, 2008 (AR 634-39). Dr. McKay treated plaintiff since 2007 (with the doctor's office having treated plaintiff since 1994), and diagnosed her with HHT, post thoracotomy syndrome, anemia, frequent epistaxis, migraine headaches, and allergies (AR 634). The doctor identified the vocationally relevant major symptoms as follows "[t]he primary symptom would be the left upper chest pain that radiates into her arm that is worsened by upright activity including walking and sitting and fatigue that is worsened by activity which is secondary to her anemia and medications" (AR 634). Given plaintiff's anemia, the side effects of her medications, and her "overall clinical picture," the doctor thought it was medically reasonable for plaintiff to take naps during the day (AR 634). Dr. McKay also thought plaintiff's pain or other symptoms were sufficiently severe to interfere with her attention and concentration, even if she was performing a simple, unskilled sedentary job (AR 634-35). The interference would be frequent and over a sustained period of time (AR 635). The doctor also opined: that plaintiff could walk about one block or 15 minutes at a time; that she could sit for up to two hours and stand less than two hours in an eight-hour workday; that she would need to take an unscheduled break about once an hour; that plaintiff could lift at most 10 pounds; that her neck movement (flexion, turning, looking up, or holding a static position) would be restricted; that she would have less than frequent use of her upper extremities; that plaintiff's description having nosebleeds once or twice a day are consistent with her hemoglobin level; and, that plaintiff's reported pain in her upper left chest is consistent with post thoracotomy pain syndrome (AR 635-37). However, the doctor could not "medically explain the radiation to her left leg" (AR 618). Finally, Dr. McKay opined that plaintiff could not work an eight-hour workday with normally scheduled breaks:
(AR 638).
In reviewing the medical evidence, the ALJ summarized plaintiff's treatment history as follows. The ALJ found that "while there is evidence of deconditioning, there is no objective evidence of a problem beyond anemia" (AR 23). Plaintiff had a history of pain, but when discharged from a pain clinic in September 2006, she reported no pain with palpation (AR 23). A University of Michigan Hospital doctor who had followed plaintiff's underlying disease noted that the pain was nicely controlled in January 2007 (AR 23, 593). In April 2007, Dr. McKay noted that plaintiff was in no apparent distress on examination and recommended exercise (AR 23). Plaintiff's anemia increased in 2009, but at that time plaintiff admitted that she was not taking iron supplements as prescribed (AR 23). By September 2009 plaintiff's anemia improved with medication and her pain was generally well-controlled (AR 23). In July 2010, a pain and rehabilitation specialist, Gholamreza Shareghi, Ph.D., M.D., found that plaintiff's upper extremities were normal (AR 23, 630).
The ALJ reviewed Dr. McKay's 2008 opinion as follows:
(AR 24).
However, as plaintiff pointed out, Dr. McKay updated her 2008 statement in 2010, but the ALJ did not address the more recent statement. Plaintiff's Brief at pp. 5, 12. Dr. McKay made this statement on August 16, 2010 (the day before plaintiff's hearing), but it was not transcribed and signed by Dr. McKay until September 8, 2010 (AR 660-64). The statement was faxed to the ALJ on September 14, 2010 and identified as in the medical record as Exhibit 35F (AR 659). Defendant acknowledges that Dr. McKay gave an updated assessment on August 16, 2010 and that the ALJ did not address it in his decision. Defendant's Brief at pp. 9-10. Defendant takes the position that Dr. McKay's August 16, 2010 statement "merely reiterated her December 8, 2008 statement, which, as discussed above, the ALJ properly gave little weight to" and that the ALJ's lack of specific discussion of the August 16, 2010 statement was a harmless, de minimis procedural error which could conceivably exist under Wilson. Id. at p. 10. See Wilson, 378 F.3d at 547 (while the regulations require the ALJ to give good reasons for the weight assigned to a treating source's opinion, the Sixth Circuit observed "[t]hat is not to say that a violation of the procedural requirement of § 1527(d)(2) could never constitute harmless error. We do not decide the question of whether a de minimis violation may qualify as harmless error. For instance, if a treating source's opinion is so patently deficient that the Commissioner could not possibly credit it, a failure to observe § 1527(d)(2) may not warrant reversal").
Here, it is undisputed that Dr. McKay is plaintiff's primary care doctor. The Court does not view Dr. McKay's 2010 opinions so "patently deficient" as to avoid the procedural requirements set forth in Wilson. Accordingly, this matter will be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g). On remand, the Commissioner should evaluate Dr. McKay's updated statement made on August 16, 2010 (AR 660-64).
At the hearing, plaintiff's counsel wanted to send the ALJ additional opinion evidence from Dr. Shareghi. The ALJ noted that he had records from Dr. Shareghi from as recent as July 22, 2010, and told plaintiff's counsel that he had "an obligation to read anything you send me, and if you send it to me before I sign off on a decision, I'll read it and consider it and put it into the, into the decision" (AR 758). Plaintiff's counsel sent the ALJ an unsigned copy of Dr. Shareghi's statement on September 17, 2010 (AR 665-69), but he was unable to send the signed version until September 21, 2010, the same date the ALJ issued his decision. While it is possible that the ALJ rejected Dr. Shareghi's unsigned opinion on authenticity concerns, he did not address that issue in his decision. However, since the ALJ received Dr. Shareghi's signed opinion on the same day as he issued he decision, and this matter is being remanded, there is no reason why the ALJ cannot review that opinion on remand. Accordingly, on remand, the ALJ should evaluate Dr. Shareghi's September 21, 2010 opinion.
Plaintiff contends that the ALJ erred by failing to find that her thoracic pain syndrome and mental impairments constituted severe impairments. A "severe impairment" is defined as an impairment or combination of impairments "which significantly limits your physical or mental ability to do basic work activities." 20 C.F.R. § 416.920(c). Upon determining that a claimant has one severe impairment the ALJ must continue with the remaining steps in the disability evaluation. See Maziarz v. Secretary of Health & Human Services, 837 F.2d 240, 244 (6th Cir. 1987). Once the ALJ determines that a claimant suffers from a severe impairment, the fact that the ALJ failed to classify a separate condition as a severe impairment does not constitute reversible error. Id. An ALJ can consider such non-severe conditions in determining the claimant's residual functional capacity. Id. Here, the ALJ found that plaintiff had multiple severe impairments and performed the remaining steps of the disability evaluation. This claim of error will be denied.
Residual functional capacity (RFC) is a medical assessment of what an individual can do in a work setting in spite of functional limitations and environmental restrictions imposed by all of his medically determinable impairments. 20 C.F.R. § 416.945. RFC is defined as "the maximum degree to which the individual retains the capacity for sustained performance of the physical-mental requirements of jobs" on a regular and continuing basis. 20 C.F.R. Part 404, Subpt. P, App. 2, § exertional and nonexertional capacities of the individual." SSR 96-8p.
(AR 778). In response, the VE testified "It would appear so" (AR 778).
It is undisputed that plaintiff suffers from frequent and significant nosebleeds. The ALJ found that this condition was a severe impairment (AR 20). The VE testified that this condition could be work preclusive (AR 778). However, plaintiff's RFC was mute with respect to limitations caused by this condition. Given this record, the RFC did not accurately reflect plaintiff's ability to function in a work setting. Accordingly, on remand, the ALJ should re-evaluate the evidence with respect to plaintiff's nosebleeds and determine the extent to which this condition affects her RFC.
An ALJ may discount a claimant's credibility where the ALJ "finds contradictions among the medical records, claimant's testimony, and other evidence." Walters, 127 F.3d at 531. "It [i]s for the [Commissioner] and his examiner, as the fact-finders, to pass upon the credibility of the witnesses and weigh and evaluate their testimony." Heston, 245 F.3d at 536, quoting Myers v. Richardson, 471 F.2d 1265, 1267 (6th Cir. 1972). The court "may not disturb" an ALJ's credibility determination "absent [a] compelling reason." Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001). The threshold for overturning an ALJ's credibility determination on appeal is so high, that in recent years, the Sixth Circuit has expressed the opinion that "[t]he ALJ's credibility findings are unchallengeable," Payne v. Commissioner of Social Security, 402 Fed. Appx. 109, 113 (6th Cir. 2010), and that "[o]n appeal, we will not disturb a credibility determination made by the ALJ, the finder of fact . . . [w]e will not try the case anew, resolve conflicts in the evidence, or decide questions of credibility." Sullenger v. Commissioner of Social Security, 255 Fed. Appx. 988, 995 (6th Cir. 2007). Nevertheless, an ALJ's credibility determinations regarding subjective complaints must be reasonable and supported by substantial evidence. Rogers v. Commissioner of Social Security, 486 F.3d 234, 249 (6th Cir. 2007).
The ALJ's evaluation of plaintiff's credibility included the following observations:
(AR 23).
The ALJ summarized his credibility determination as follows:
(AR 23-24).
The ALJ properly discounted plaintiff's credibility after identifying contradictions among the medical records, plaintiff's testimony, and other evidence. Walters, 127 F.3d at 531. However, as discussed, the ALJ did not review Dr. McKay's updated statement from 2010. Because the ALJ's credibility determination was based on an incomplete medical record, the Court concludes that the credibility determination is not supported by substantial evidence. See Rogers, 486 F.3d at 249. On remand, the ALJ should re-evaluate plaintiff's credibility based upon the complete medical record.
An ALJ's finding that a plaintiff possesses the capacity to perform substantial gainful activity that exists in the national economy must be supported by substantial evidence that the plaintiff has the vocational qualifications to perform specific jobs. Varley v. Secretary of Health and Human Services, 820 F.2d 777, 779 (6th Cir. 1987). This evidence may be produced through the testimony of a VE in response to a hypothetical question which accurately portrays the claimant's physical and mental limitations. See Webb v. Commissioner of Social Security, 368 F.3d 629, 632 (6th Cir. 2004); Varley, 820 F.2d at 779. Here, the ALJ posed a hypothetical question to the VE which reflected the RFC determination (AR 22, 776-77). Both the RFC determination and the hypothetical question were based, in part, upon the ALJ's review of Dr. McKay's opinions and records. However, as discussed, supra, the Court concluded that a reversal and remand under sentence four is in order because the ALJ did not review Dr. McKay's updated statement from August 16, 2010. In addition, the RFC did not address plaintiff's chronic nosebleeds. These infirmities carried over into the hypothetical question posed to the VE which, as a result, did not accurately portray plaintiff's limitations. The Commissioner should re-evaluate the vocational evidence at the fifth step of the sequential process.
For the reasons discussed, the Commissioner's decision will be
