LOUISE W. FLANAGAN, District Court Judge.
This matter comes before the court on the parties' cross motions for judgment on the pleadings (DE 23, 29).
Plaintiff filed an application for a period of disability and Disability Insurance Benefits ("DIB") on December 15, 2008, alleging disability beginning April 11, 2007. This application was denied initially and upon reconsideration. Hearing was held before an Administrative Law Judge ("ALJ") who determined that plaintiff was not disabled during the relevant time period in a decision issued October 28, 2010. On June 11, 2012, the Appeals Council denied plaintiff's request for review, rendering the ALJ's determination defendant's final decision. Plaintiff filed complaint in this court on July 12, 2012, for review of the final administrative decision.
The court has jurisdiction under 42 U.S.C. § 405(g) to review the Commissioner's final decision denying benefits. The court must uphold the factual findings of the ALJ "if they are supported by substantial evidence and were reached through application of the correct legal standard."
The ALJ's determination of eligibility for Social Security benefits involves a five-step sequential evaluation process, which asks whether:
In the instant matter, the ALJ performed the sequential evaluation. At step one, the ALJ found that plaintiff may have engaged in substantial gainful employment since her alleged onset date, but did not resolve this issue where she found plaintiff not disabled in light of plaintiff's residual functional capacity. R. 20. At step two, the ALJ found that plaintiff had the following severe impairments: lumbar degenerative disc disease ("DDD") and obesity. R. 20. However, at step three, the ALJ further determined that these impairments were not severe enough to meet or medically equal one of the impairments in the regulations. R. 21. Prior to proceeding to step four, the ALJ determined that plaintiff had the residual functional capacity ("RFC") to perform sedentary work involving lifting or carrying no more than four to five pound frequently and ten (10) pounds occasionally, allowing plaintiff the opportunity to alternate between sitting and standing throughout the workday, and with only occasional climbing, stooping, or balancing. R. 21. The ALJ then determined that plaintiff did not have the RFC to perform under the requirements of her past relevant work. R. 23. However, at step five, the ALJ determined that plaintiff is capable of adjusting to the demands of other employment opportunities existing in significant numbers in the national economy. R. 24. Accordingly, the ALJ determined that plaintiff was not under a disability during the relevant time period. R. 25.
Plaintiff contends that the commissioner's final decision must be either reversed, or the case remanded for further consideration for three reasons. First, plaintiff argues that the ALJ erred in not giving controlling weight to plaintiff's treating physician. Second, plaintiff contends the ALJ improperly assessed plaintiff's credibility regarding the extent of her pain. Third, plaintiff maintains the ALJ erred in not using the "special technique" in evaluating her claim of depression. While the court finds the ALJ gave appropriate weight to plaintiff's treating physician and properly assessed plaintiff's credibility, the court finds that the ALJ erred in not using the special technique to evaluate plaintiff's alleged depression. Therefore the court will remand to the Commissioner for further proceedings
Plaintiff first argues that the ALJ erred by not giving the opinions of her treating physician, Dr. Fuller-Hines — a pain specialist — controlling weight. Dr. Fuller-Hines opined that plaintiff could sit for only four hours a day and one hour at a time, and could only walk or stand for two hours a day and fifteen (15) minutes at a time, and only with a cane. R. 711-12. She also opined that plaintiff could lift or carry only five pounds frequently, and ten (10) pounds occasionally; that plaintiff could not stoop; that plaintiff's experience of pain would interfere with her concentration and attention; and that plaintiff's condition would cause her to be absent from work about three times a month. R. 711-14.
"`Although the treating physician rule generally requires a court to accord greater weight to the testimony of a treating physician, the rule does not require that the testimony be given controlling weight.'"
In this case, the ALJ properly based her decision to give less than controlling weight to Dr. Fuller-Hines on the grounds that it was inconsistent with other substantial evidence. Notably, the ALJ noted that Dr. Fuller-Hines initially agreed with a function capacity assessment ("FCE") conducted in May of 2009 releasing plaintiff to do sedentary work. R. 23. Moreover the ALJ also pointed out that Dr. Fuller-Hines own treatment notes indicated that plaintiff had a normal gait.
Plaintiff notes that Dr. Fuller-Hines's treatment notes show plaintiff had an antalgic gait-essentially a limp — for a short period in 2008 and then during all of plaintiff's exams by Dr. Fuller Hines in late 2009 and 2010. R. 262, 266, 533, 690, 695, 702, 707. Dr. Fuller-Hines's notes, however, show plaintiff had a normal gait at every other appointment during the time period at issue. R. 258, 270, 274, 279, 283, 288, 315, 336, 503, 562, 601, 663, 669. Where Dr. Fuller-Hines opined that plaintiff was disabled not just since late 2009, but from April 11, 2007, plaintiff's normal gait is inconsistent with Dr. Fuller-Hines's opinion that plaintiff was disabled during this entire period. R. 631. The ALJ also noted that plaintiff's May 2009 FCE indicated she was capable of sedentary work and even suggested she might be capable of functioning at a higher level where her effort during the FCE was so poor as to be borderline invalid. R. 518. Accordingly the ALJ properly assigned this as a basis for according less weight to Dr. Fuller-Hines's opinions.
Plaintiff next asserts that the ALJ failed to properly assess plaintiff's credibility regarding the severity of her pain. "The determination of whether a person is disabled by pain or other symptoms is a two-step process."
In this case, the ALJ articulated numerous reasons why plaintiff's complaints of pain were inconsistent with the record. The ALJ noted plaintiff's continued work activity through 2009, that plaintiff was active in her church and attended services regularly, and that she did not continue her physical therapy exercises at home. R. 23. The ALJ also noted plaintiff's lack of effort during her May 2009 FCE undermined her credibility. R. 23.
Plaintiff does not address any of these reasons given for discounting her credibility. Instead, she lists items from an over seven hundred (700) page record she claims the ALJ did not consider. Plaintiff's argument that the ALJ failed to even consider much of this evidence is undercut by plaintiff's own arguments where she asserts that the ALJ, in summarizing certain documents in her decision, did not include certain pieces of information from those very documents. Of course, the ALJ's summarization of those documents indicates the opposite, namely, that she read and considered their contents.
In essence, by raising the evidence she raises, plaintiff asks the court to re-weigh the evidence and find her credible. The court declines to do so. "[T]he court should not undertake to re-weigh conflicting evidence, make credibility determinations, or substitute its judgment for that of the Secretary."
Plaintiff finally contends that the ALJ erred in not applying the "special technique" to assess the impact of plaintiff's alleged depression. When a claimant presents a "colorable claim" of mental impairment, an ALJ is required to follow a special technique to evaluate such impairments. 20 C.F.R. § 404.1520a(a);
In this case, plaintiff repeatedly described herself as depressed in forms sent to the Social Security Administration. R. 184, 197, 200. The medical record also contains evidence of depression. She reported to Dr. Thai that she was sad since her April 11, 2007 injury. R. 225. Dr. Fuller-Hines requested a psychiatric consultation on July 2, 2008. R. 258. On September 18, 2008, Dr. Fuller-Hines started plaintiff on Cymbalta — an antidepressant — and plaintiff continued on Cymbalta at least through December 2008. R. 275, 279, 283, 288.
On October 8, 2009, Dr. Fuller-Hines referred plaintiff to psychology for "depression related to chronic pain." R. 679. On November 5, 2009, Dr. Fuller-Hines reported reviewing a note from psychology
Accordingly, the record reflects that plaintiff has made a "colorable claim" for depression and the ALJ's failure to follow the special technique was error.
The government argues that even if plaintiff presented a colorable claim for depression, failure to follow the special technique in this case is harmless error because a great body of evidence indicates plaintiff had no depression or other mental limitations. The court disagrees that failure to follow the proper legal standard in this case is harmless. "Under the Social Security Act, [a reviewing court] must uphold the factual findings of the Secretary if they are supported by substantial evidence and were reached through application of the correct legal standard."
For the reasons stated, defendant's motion for judgment on the pleadings is DENIED, plaintiff's motion for judgment on the pleadings is GRANTED, and the case is REMANDED for further proceedings. The clerk is directed to CLOSE this case.
SO ORDERED.
