CAROL E. JACKSON, District Judge.
This matter is before the Court for review of an adverse ruling by the Social Security Administration.
On April 27, 2010, plaintiff Rebecca Donnelly filed an application for a period of disability and disability insurance benefits, Title II, 42 U.S.C. §§ 401 et seq., with an alleged onset date of December 1, 2006. (Tr. 123-29). After plaintiff's application was denied on initial consideration (Tr. 64-70), she requested a hearing before an Administrative Law Judge (ALJ). (Tr. 73-75).
Plaintiff and counsel appeared for a hearing on August 25, 2011. (Tr. 27-57). On September 20, 2011, the ALJ issued a decision finding that plaintiff was not disabled before March 30, 2008, the date she was last insured. (Tr. 13-26). The Appeals Council denied plaintiff's request for review on December 26, 2012. (Tr. 1-6). Accordingly, the ALJ's decision stands as the Commissioner's final decision.
In her Disability Report (Tr. 138-48), plaintiff listed her disabling condition as multiple sclerosis. She worked as an administrative clerk in the communications business from January 16, 1978 until November 1, 2002, when she was laid off. (Tr. 141). She briefly worked as the manager of a fireworks stand during the summer of 2005. Plaintiff's medications included Avonex
Plaintiff completed a Function Report on May 21, 2010. (Tr. 156-66). Her daily activities included watching television, attempting household chores, visiting her son, talking on the phone, or going places with her husband. She provided some care for the family pets. She managed her personal care without assistance and did not need reminders to take medication. She did not prepare any of her own meals. She completed some cleaning chores about once a month. She was able to drive a car and go out alone. She occasionally shopped. She was able to pay bills, handle a checkbook and savings account, and count change. She spent time with others at least once a week. Plaintiff had difficulties with standing, squatting, walking, and seeing, and her condition affected her sleep. She could follow written and spoken instructions. She had no difficulty managing stress or changes in routine. In a narrative section, she wrote that her condition varied from day to day. On bad days, she experienced fatigue and incontinence. She stated that her leg muscles hurt and she could hardly walk. She described vision problems in which "your eyes feel like at halloween wearing those eyeballs on springs and bobbling around."
Plaintiff completed an updated Disability Report after her application was denied on initial consideration. (Tr. 169-74). She stated that an MRI had revealed new lesions in her brain and that she had begun to stumble and fall. Her husband helped her to get up and to cook and dress.
Plaintiff was 52 years old at the time of the hearing. She graduated from high school. She lived with her husband who retired from Lucent Technologies in 2001. (Tr. 41). Plaintiff worked for Lucent as an administrative assistant until 2002 when she was laid off as part of a reduction in force. (Tr. 32). Plaintiff testified that she applied for other jobs without success. (Tr. 42). She did not know she might be eligible for Social Security disability until 2010 when her husband applied for Social Security retirement benefits. (Tr. 52).
Plaintiff was diagnosed with multiple sclerosis in 2006. After she was diagnosed, she was hospitalized for five days for treatment with Solu-Medrol
Plaintiff testified that her fatigue had worsened over time. At the time of the hearing, she napped for one to three hours every afternoon. Regarding her vision problems, plaintiff testified that her eyes were not well-coordinated: she felt as though they were going "in all directions," and objects appeared to be going back and forth. She was no longer able to read the newspaper because she could not focus her eyes. She testified that even when she looked at the ALJ, it appeared as if he was moving back and forth. Her condition was not improved by doing eye exercises. Regarding her incontinence, plaintiff explained that she did not "get a sign" that she needed to urinate so she liked to stay close to the restroom. She urinated every two hours and had frequent daily bowel movements. All of her symptoms had worsened over time. Plaintiff's ability to concentrate had deteriorated and she was diagnosed with depression. Her symptoms included crying, wanting to be left alone and becoming angry and walking away. She believed that depression would have interfered with her ability to focus on tasks in the workplace.
Plaintiff received weekly injections of Avonex to slow the progression of her multiple sclerosis. (Tr. 34, 38). The Avonex caused flu-like symptoms and severe chills which lasted for about a day. She also received injections of Rebif
Plaintiff testified that, before she was diagnosed with multiple sclerosis, she used to clean her house, cook, do laundry, mow the lawn, and decorate her yard for the holidays. She stopped doing chores because the exertion caused her to become imbalanced. Plaintiff testified that she stopped driving about a month or so after her diagnosis in 2006. (Tr. 42). This contradicts her statement in her 2010 Function Report in which she indicated that she was able to drive. At the hearing, she testified that she waited in the car while her husband did the shopping.
The ALJ noted that the medical record contained a notation that plaintiff was planning to start a retail business. She explained that it was her husband who opened and ran the business. She denied helping in the store. (Tr. 48). The shop was in operation for about two years.
Jeffrey F. McGroskey, Ph.D., a vocational expert, provided testimony regarding the employment opportunities for plaintiff between the time of her diagnosis in 2006 and her last insured date, March 31, 2008. (Tr. 53, 30). The ALJ asked Dr. McGroskey to assume that plaintiff was limited to performing light work, could spend "the better part of the day" standing and walking; could lift 20 pounds occasionally and 10 pounds frequently; and would be unable to perform work that required fine visual acuity. (Tr. 53-54). Dr. McGroskey opined that, with these limitations, plaintiff would be able to perform light unskilled work, such as host or guide, bagging small items, light stocking work, and wrapping small items. He excluded most clerical work because it required reading. These jobs would not be suitable for someone who needed to use the restroom with the frequency plaintiff described. (Tr. 55-56).
Plaintiff saw her primary care physician, Jorge Alegre, M.D., with complaints of sinus drainage and lightheadedness in late 2005. (Tr. 296). Radiologic studies of plaintiff's sinuses disclosed no abnormalities. (Tr. 239). Plaintiff began seeing chiropractor Toni Lane in early 2006, with complaints of pain in her low back, upper back, and neck. She also complained of dizziness and pressure behind her eyes. (Tr. 354-55). In July 2006, Dr. Lane noted that plaintiff struggled to get up and walked with a noticeable limp. (Tr. 355).
In October 2006, plaintiff underwent an MRI to investigate complaints of lightheadedness, unsteadiness, and migraine headaches. A CT scan two weeks earlier had raised concerns of possible demyelinating disease. (Tr. 234-35). The MRI revealed multiple lesions consistent with multiple sclerosis. The diagnosis was confirmed following a lumbar puncture. (Tr. 222, 229).
Plaintiff began treatment with neurologist Max P. Benzaquen, M.D., on November 15, 2006. (Tr. 255-56). Plaintiff reported that she had been experiencing lightheadedness, pressure around her eyes and difficulties with balance. She also reported that she had lost 100 pounds, which is inconsistent with Dr. Alegre's report in October 2006 that plaintiff had reduced her weight from 314 to 298 pounds. (Tr. 292). On examination, Dr. Benzaquen found that plaintiff had full ocular eye movements with nystagmus
On December 13, 2006, Dr. Benzaquen admitted plaintiff to the hospital for treatment with Solu-Medrol. (Tr. 222-24). He noted that plaintiff's neurological symptoms first manifested about six months earlier when she started having trouble focusing her eyes and her walking became clumsy. She experienced increasing fatigue in the two weeks before she was admitted for treatment. She was alert and oriented with normal speech. Dr. Benzaquen's examination disclosed nystagmus and pale optic discs. The examination was otherwise unremarkable. At discharge, Dr. Benzaquen noted that plaintiff's fatigue and difficulty focusing her eyes had diminished.
On January 30, 2007, Dr. Benzaquen noted that plaintiff had finished a course of oral prednisone that he prescribed following completion of the Solu-Medrol. He wanted her to begin treatment with Avonex as soon as possible. (Tr. 253). In March 2007, Dr. Benzaquen noted that plaintiff had been treated with Avonex for 5 weeks, with Naprelan given before the treatment. She had right eye visual difficulties, right lateropulsion,
Plaintiff received nine chiropractic treatments in March and April 2007. She reported pain in her neck, buttocks, and right leg, with limping, weakness and fatigue. (Tr. 357-58).
In June 2007, Dr. Benzaquen noted that plaintiff was very fatigued and was having difficulty moving both eyes. She was started on Amantadine.
In November 2007, plaintiff saw Dr. Lane seven times. She reported that her back and leg were "really flared up" and that it was hard to walk. On November 20th, she reported that "[t]he pain is better, about a 5 out of 10 today." She was trying not to walk too much. (Tr. 358-59).
On December 11, 2007, Dr. Benzaquen noted that plaintiff's fatigue was better. However, her depression was "terribl[e and] she is crying." On examination, he found that her right eye movement had improved. There were no abnormalities in her gait and cerebellar functioning. (Tr. 248). He discontinued Amantadine and prescribed Lexapro to treat depression. An MRI on December 29, 2007, showed that the majority of lesions in plaintiff's brain had decreased in size while others had grown larger. (Tr. 212). During December 2007, plaintiff reported to Dr. Lane that her leg was weak and she found it hard to walk. (Tr. 359). In February 2008, Dr. Lane observed that plaintiff was "limping considerably." (Tr. 360).
Plaintiff returned to see Dr. Benzaquen on March 4, 2008. He noted that she "feels better since she started the Lexapro 10 mg daily." She had resumed taking Amantadine. On examination, Dr. Benzaquen noted that plaintiff's cranial nerves, motor functions, sensory functions, cerebellar functioning, and gait showed no abnormalities. (Tr. 247).
In six visits to Dr. Lane in March 2008, plaintiff consistently complained of pain in her leg and buttocks. On March 31, 2008, she reported that she was limping more each day. (Tr. 360). In April 2008, plaintiff continued to complain of weakness, pain, and difficulty with when walking. (Tr. 361). On May 14, 2008, she told Dr. Lane that she was "hurting a lot" and complained of a headache, low back pain, and increased limping.
On May 16, 2008, Dr. Alegre noted that Dr. Benzaquen had increased plaintiff's Lexapro dosage to 20 milligrams a day. (Tr. 285).
In June 2008, plaintiff told Dr. Lane that she had good days and bad days and that her good days were not as good as they used to be. In August, plaintiff told Dr. Lane that she was hurting and that "I just don't do anything anymore because I can't." (Tr. 361-62). She continued to complain of pain in September. (Tr. 363).
In September 2008, plaintiff went to the emergency department at St. Luke's Hospital for pain in her right foot. She was diagnosed with cellulitis for which she was prescribed antibiotics. (Tr. 200). Results of venous evaluation were consistent with normal deep venous system. (Tr. 206).
In October 2008, Dr. Benzaquen noted that plaintiff was "still very fatigued on Amantadine and it has not been helpful." He again discontinued the Amantadine and prescribed Provigil.
In February 2009, Dr. Benzaquen described plaintiff as having more energy and reported that she was "very happy" and that she had "started a retail office in St. Charles." (Tr. 243). Her radiculopathy had subsided. On examination he noted right eye internuclear opthalmoplegia.
Plaintiff experienced an exacerbation of her multiple sclerosis and was hospitalized for five days in June 2010 for treatment with Solu-Medrol. (Tr. 315). An MRI of her brain showed that "a few" new lesions had developed and some pre-existing lesions had increased in conspicuity or size. (Tr. 324). Dr. Benzaquen started plaintiff on Rebif three times a week. (Tr. 340-41). At an office visit in August 2010, Dr. Benzaquen noted that plaintiff had trouble walking at times and "turn[ed] to the left most of the time." (Tr. 340). In December 2010, Stephen Shields, M.D., performed an ophthalmology examination. Her optic discs were pink and healthy and she had no ocular problems related to her multiple sclerosis. (Tr. 326-28). Plaintiff saw Dr. Lane 32 times in 2010. She continued to complain of pain and weakness. (Tr. 368-71).
In February 2011, Dr. Benzaquen described plaintiff as not doing well despite treatment with the immunomodulators Avonex and Rebif. Nonetheless, she was walking very well, despite cramping in her right leg. (Tr. 338). He proposed starting plaintiff on Gilenya.
Dr. Benzaquen completed a medical source statement on July 20, 2011. (Tr. 372). He opined that plaintiff could stand for one hour, walk for 30 minutes, sit for six hours, and bend or stoop for one hour in an 8-hour workday; lift and carry no more than 10 pounds; and was limited in her ability to push or pull. She also could not "eye target in coordination due to myalgias." He stated that she "cannot perform sustainable goal mediated activity." He completed another medical source statement on November 8, 2011, in which he stated that her symptoms "apparently" started in 2000. (Tr. 375). He identified her symptoms as chronic physical fatigue, decreased visual acuity, and motor and sensory deficits, including clumsiness and abnormal sensation in her hands and feet. She was unable to tolerate the side effects of interferon treatments and was taking the oral agent Gilenya, which she was tolerating well. Dr. Benzaquen noted that plaintiff also suffered from severe depression and stated that she had "been evaluated to cognitively show certain decrease in her abilities of cognition." It was his opinion that she became unable to sustain full-time work before March 31, 2008, and he cited her need to rest her eyes when she experienced the "bobble-head" symptoms.
In the decision issued on September 20, 2011, the ALJ made the following findings:
(Tr. 18-23).
The Court must affirm the Commissioner's decision "if the decision is not based on legal error and if there is substantial evidence in the record as a whole to support the conclusion that the claimant was not disabled."
In this instance, plaintiff presented new evidence to the Appeals Council. The regulations provide that the Appeals Council must evaluate the entire record, including any new and material evidence that relates to the period before the date of the ALJ's decision. 20 C.F.R. § 404.970(b);
To be entitled to disability benefits, a claimant must prove she is unable to perform any substantial gainful activity due to a medically determinable physical or mental impairment that would either result in death or which has lasted or could be expected to last for at least twelve continuous months. 42 U.S.C. § 423(a)(1)(D), (d)(1)(A);
Steps one through three require the claimant to prove (1) she is not currently engaged in substantial gainful activity, (2) she suffers from a severe impairment, and (3) her disability meets or equals a listed impairment.
"Prior to step four, the ALJ must assess the claimant's residual functioning capacity (`RFC'), which is the most a claimant can do despite her limitations."
In determining a claimant's RFC, the ALJ must evaluate the claimant's credibility.
At step four, the ALJ determines whether a claimant can return to her past relevant work, "review[ing] [the claimant's] [RFC] and the physical and mental demands of the work [claimant has] done in the past." 20 C.F.R. § 404.1520(e). The burden at step four remains with the claimant to prove her RFC and establish that she cannot return to her past relevant work.
If the ALJ holds at step four of the process that a claimant cannot return to past relevant work, the burden shifts at step five to the Commissioner to establish that the claimant maintains the RFC to perform a significant number of jobs within the national economy.
If the claimant is prevented by her impairment from doing any other work, the ALJ will find the claimant to be disabled.
Plaintiff argues that the ALJ incorrectly determined her RFC; improperly discounted her credibility; and improperly evaluated the medical opinion evidence. She also claims that the evidence submitted to the Appeals Council undermines the ALJ's RFC determination.
A claimant's RFC is "the most a claimant can still do despite his or her physical or mental limitations."
The ALJ determined that, through March 30, 2008, plaintiff had the RFC to perform light work with an additional limitation on her ability to focus on small objects. "Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. [A] job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls." 20 C.F.R. § 404.1567.
The Court finds that the ALJ's RFC determination is not based on substantial evidence in the record as a whole. In particular, the ALJ failed to consider the records of chiropractor Dr. Lane; improperly characterized Dr. Benzaquen's record; failed to address all of plaintiff's relevant complaints; and improperly assessed plaintiff's credibility.
The Social Security regulations separate information sources into two main groups: acceptable medical sources and other sources. Other sources is further divided into two groups: medical sources and non-medical sources. 20 C.F.R. §§ 404.1502, 416.902 (2007). Chiropractors qualify as "other" medical sources. 20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1). "Other sources" cannot be relied upon to establish the existence of a medically determinable impairment, but may provide evidence to show the severity of impairments and how they affect the claimant's ability to work. 20 C.F.R. § 404.1513(d)(1);
The ALJ did not consider the records of plaintiff's chiropractic care. Plaintiff saw Dr. Lane thirty-four times from 2006 through March 31, 2008. Throughout that time, plaintiff repeatedly complained of weakness in her right leg and pain in her leg, neck, buttocks, and low back.
The ALJ found that Dr. Benzaquen's records "did not show much in the way of symptoms from 2006 through 2008 and
The ALJ also noted that Dr. Benzaquen frequently reported that plaintiff had no abnormalities of gait. As discussed above, however, Dr. Lane frequently observed that plaintiff was limping.
The ALJ noted that, in December 2007, plaintiff told Dr. Benzaquen that she was terribly depressed and was crying. She started treatment with Lexapro and, on March 4, 2008, reported that she was feeling better. The ALJ stated that there were no further complaints of depression before her last insured date, March 30, 2008. However, on May 16, 2008, Dr. Alegre noted that Dr. Benzaquen had doubled plaintiff's Lexapro dosage, suggesting that she continued to have difficulty with depression.
In his July 2011 medical source statement, Dr. Benzaquen opined that plaintiff could not "eye target in coordination due to myalgias." This assessment is consistent with the frequent references in the treatment notes to plaintiff's nystagmus — a term which describes rapid involuntary eye movements — and the results of the evoked potential visual test in October 2006. The ALJ rejected Dr. Benzaquen's assessment, citing plaintiff's full visual fields and lack of double vision. There is no medical evidence in the record to indicate that inability to "eye target in coordination" only manifests in conjunction with double vision or results in less than full visual fields. The ALJ improperly substituted his medical opinion for that of Dr. Benzaquen.
On remand, the ALJ should reconsider the weight to be given to Dr. Benzaquen's opinion that plaintiff was unable to maintain full-time employment before March 30, 2008, due to her multiple sclerosis.
Plaintiff complained that she suffered from fatigue, poor balance, and exacerbation of her symptoms with exertion. These complaints are relevant to plaintiff's capacity to work an 8-hour day, and the ALJ erred in failing to address these complaints.
The ALJ found that plaintiff's statements regarding the intensity, persistence and limiting effects of her symptoms were not credible to the extent that they were inconsistent with the RFC determination. It will be necessary to conduct a new credibility determination once the errors discussed above are addressed. There are additional flaws in the credibility analysis that must be corrected.
Plaintiff worked steadily from 1975 until she was laid off in 2002. (Tr. 134). The ALJ noted that she had good earnings until 2002, but cited the four years of unemployment before her diagnosis as a factor in discounting her credibility. He stated that plaintiff "did not seek" further employment after 2002 because she considered herself too old to be hired, even though she was only 42 years old. To the contrary, plaintiff testified that she applied for other jobs, but "they didn't hire" her because, she guessed, she "was not qualified, too old." (Tr. 42). Plaintiff did not proffer her age as a reason for not seeking employment, but as a possible explanation for not getting hired. The ALJ's assessment of plaintiff's work history is thus based on a misunderstanding of her testimony. The ALJ also found it significant that plaintiff did not file for disability for more than three years after she was diagnosed with multiple sclerosis. However, she testified that she did not apply because she did not know that she might be eligible. It was error for the ALJ to rely on the delay in filing to discount plaintiff's credibility without expressly rejecting her explanation.
For the reasons discussed above, the Court finds that the Commissioner's decision is not supported by substantial evidence in the record as a whole.
Accordingly,
