RENÉE MARIE BUMB, District Judge.
Plaintiff Mark Sullivan (the "Plaintiff") seeks judicial review pursuant to 42 U.S.C. § 405(g) of the final decision of the Acting Commissioner of Social Security (the "Commissioner") denying his application for Disability Insurance Benefits ("DIB") and Social Security Supplemental Income ("SSI"). For the reasons set forth below, the Court will vacate the decision of the ALJ and remand.
Beginning on October 14, 2009, Plaintiff filed applications for SSI and DIB, alleging a disability onset date of December 20, 2007. (Administrative Record "R." 134-39). Plaintiff's disability onset date was amended to May, 9, 2009 at the administrative hearing. (R. 30). Plaintiff's claims were denied on March 8, 2010, (R. 59-60), and again on August 20, 2010, after Plaintiff timely filed a Request for Reconsideration. (R. 61-62). Plaintiff then filed a request for a hearing before an Administrative Law Judge ("ALJ"), which was held before the Honorable Jonathan L. Wesner, ALJ, on May 31, 2011; Plaintiff appeared at the hearing and was represented by counsel. (R. 28-58).
The ALJ issued his determination on August 25, 2011, finding that Plaintiff was not disabled and denying Plaintiff's claim for benefits. (R. 11-23). Thereafter, Plaintiff filed a Request for Review of Hearing Decision with the Appeals Council on October 18, 2011. (R. 8). The request for review was denied and, thus, the ALJ's decision became the final decision of the Commissioner of Social Security on October 12, 2011. (R. 2-6).
During the ALJ hearing, Plaintiff testified that he was 42 years old and had previously worked in heavy construction. (R. 31-32). Plaintiff has not worked since 2008. (R. 31). Plaintiff suffered a heart attack in May of 2009, his disability onset date. (R. 30).
With respect to his physical symptoms, Plaintiff testified that he "can't really stay in an upright position for long periods of time," (R. 32), and that he has pains throughout his body, including his legs and shoulder, that require him to lay down or be in different positions throughout the day. (R. 33). Plaintiff testified that he has continued to smoke even after his heart attack. (R. 34). As a result of the heart attack, Plaintiff states that he has experienced a loss of strength and stamina. (R. 42).
Plaintiff stated that he has shoulder pain and that he has received cortisone treatments. (R. 35-36). Plaintiff is right-handed and testified that his shoulder pain impacts his range of motion, as he can only raise his arm to "almost get it level, but nothing higher than that." (R. 36). As a result, Plaintiff avers that he has lost strength in his arm and cannot lift things to any sort of height; the most he can lift is a small grocery bag, and he has decreased grip strength and gets numbness and tingling in his hand and forearm that prevent extended fine manipulation. (R. 36-37).
Plaintiff also testified that he has received treatment for his right foot from a podiatrist, including injections, and uses a cane to help keep his balance, even though no doctor prescribed the use of that cane. (R. 36-37). Plaintiff states that he can stand for between 10-20 minutes before experiencing pain and is most comfortable laying down with his legs elevated. (R. 38-39). He also soaks his feet and uses a massage chair to help his foot and shoulder pain. (R. 40). Plaintiff also discussed his sleep apnea diagnosis and his use of a CPAP to relieve his symptoms; he testified that he usually sleeps two to two-and-a-half hours at a time, and then is awake for an hour. (R. 39). With respect to household activities, Plaintiff testified that he helps with grocery shopping a "couple of times a month," and helps his wife she needs assistance with things like dusting. (R. 41).
Pursuant to the above testimony, the ALJ stated on the record that he was downgrading Plaintiff's Residual Functional Capacity ("RFC")
Applying the requisite five-step analysis,
Based on the above, the ALJ determined that Plaintiff's impairments did not meet the criteria for listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 19). Furthermore, based on his findings, and considering Plaintiff's symptoms that "can reasonably be accepted as consistent with the objective medical evidence and other evidence," (R. 19) the ALJ determined that Plaintiff had the following residual functional capacity:
(R. 19). In making these findings, the ALJ stated that the Plaintiff "has some subjective limitations, but not of the intensity, frequency or duration alleged." (R. 20). In support of the conclusion that the Plaintiff's "alleged limitations appear[] exaggerated compared to the objective medical evidence of record," (R. 20), the ALJ cited a Function Report (Exhibit 6E), completed by the Plaintiff in November 2009, wherein he reported that he did light cleaning and laundry, takes care of his two dogs, and had no difficulty paying attention. (R. 20).
Moreover, The ALJ predicated his findings on the following medical determinations:
In evaluating the above, the ALJ noted that, with respect to Plaintiff's right shoulder pain, "there is no objective medical evidence documenting that this impairments [sic] imposes significant limitations on the [Plaintiff's] ability to perform basic work-related activities." (R. 21). In drawing this conclusion, he noted Dr. Gross' report dated June 1, 2011 (Exhibit 15F) wherein Dr. Gross determined that Plaintiff:
In evaluating this assessment by Dr. Gross, the ALJ determined that he "impeach[ed] Dr. Gross' assessment as it is poorly supported by his treatment notes and contravened by substantial medical evidence from other treating and examining physicians (SSR 96-2p)(See Exhibits 1F, 4F, 5F, 8F, 12F & 14F)." (R. 21). Thus, the ALJ concluded that the substantial evidence necessitated a finding that Plaintiff's impairments did not impose such severe limitations on his RFC as to preclude the performance of all work activity. (R. 22).
After performing the RFC assessment, the ALJ determined that Plaintiff was unable to perform any past relevant work. (R. 22). Then, considering Plaintiff's age, education, work experience, and RFC as determined, the ALJ found that there were jobs in significant numbers in the national economy that Plaintiff could perform. (R. 22). In making this finding, the ALJ relied on a VE, who had been asked to determine whether jobs exist in the national economy for an individual with the claimant's age, education, work experience and residual functional capacity. (R. 22-23). The VE found that Plaintiff would be able to perform jobs as a surveillance system monitor, information clerk, and charge account clerk. (R. 23).
As a result of the above findings, the ALJ ultimately determined that the Plaintiff is not disabled under Section 1614(a)(3)(A) of the Social Security Act. (R. 23).
A reviewing court must uphold the Commissioner of Social Security's factual findings if they are supported by "substantial evidence," even if the court would have decided the inquiry differently. 42 U.S.C. §§ 405(g), 1383(c)(3);
If faced with conflicting evidence, however, the Commissioner "must adequately explain in the record his reason for rejecting or discrediting competent evidence."
While the Commissioner's decision need not discuss "every tidbit of evidence included in the record,"
In addition to the "substantial evidence" inquiry, the reviewing court must also determine whether the ALJ applied the correct legal standards.
The Social Security Act defines "disability" as the inability "to engage in any 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." 42 U.S.C. § 1382c(a)(3)(A). The Act further states,
42 U.S.C. § 1382c(a)(3)(B).
The Commissioner has promulgated a five-step, sequential analysis for evaluating a claimant's disability, as outlined in 20 C.F.R. § 404.1520(a)(4)(i-v). In
Plaintiff avers that the ALJ erred in rejecting the opinion of the Plaintiff's primary care physician, Dr. David Gross, contained in a June 1, 2011 report (Exhibit 15F), which found that Plaintiff had significant limitations. More specifically, Plaintiff contends that the ALJ erred when, in discussing Dr. Gross' opinion, he simply stated "I impeach Dr. Gross' assessment as it is poorly supported by his treatment notes and contravened by substantial medical evidence from other treating and examining physicians (SSR 96-2p)(See Exhibits 1F, 4F, 5F, 8F, 12F, & 14F)." (R. 19 & 21). Plaintiff argues that this "`string-cite' rationale," (Pl.'s Reply Br. at 3), falls short of the requirements of SSR 96-2p and the analysis required pursuant to 20 C.F.R. § 404.1527 because the ALJ did not explicitly discuss the evidence he referenced and offered no comment regarding the weight given go Dr. Gross' opinion other than indicating it was "impeached." Moreover, Plaintiff argues that when the evidence in the string-cite is actually examined, it does not support the ALJ's conclusion, but rather provides support for Dr. Gross' ultimate opinions. In response to Plaintiff's arguments, the Commissioner responds by contending that the ALJ's opinion properly noted that Dr. Gross' opinion was inconsistent with other substantial evidence of record, including the findings of Dr. Santomauro, Dr. Mark, Dr. Schnieder, and Dr. Evangelisto.
SSR 96-2p states, in relevant part: "If a treating source's medical opinion is well-supported and not inconsistent with the other substantial evidence in the case record, it must be given controlling weight; i.e., it must be adopted." That said, an ALJ must consider every medical opinion and decide how much weight to give the opinion. 20 C.F.R. § 404.1527(c). An ALJ must accord "[t]reating physicians' reports . . . great weight, especially when their opinions reflect expert judgment based on a continuing observation of the patient's condition over a prolonged period of time."
This Court agrees that the ALJ has failed to adequately address evidence in the record that conflicts with his finding that Dr. Gross' conclusions were "impeach[ed]." In his opinion, the ALJ bolstered his determination that Dr. Gross' conclusions were unfounded by citing,
Plaintiff is also correct that the Commissioner seeks to improperly bolster the ALJ's determination with records not cited in his opinion. For example, the Commissioner seeks to rely on the findings of Dr. Schneider contained in Exhibit 7F in support of the ALJ's rejection of Dr. Gross' findings. This Court, however, cannot read the findings of Dr. Schneider into the ALJ's "string-cite" rejection of Dr. Gross' findings.
While the ALJ may again find Dr. Gross' determinations to be unfounded on remand, he must provide a more thorough treatment and explanation for doing so.
Plaintiff argues that the ALJ erred by not properly considering his plantar fasciitis and shoulder impairments to be "severe" impairments at step two of the Sequential Evaluation Process. The ALJ, however, did find in Plaintiff's favor at step two, holding that Plaintiff suffered from the severe impairments of coronary artery disease, status post myocardial infarction, and sleep apnea. (R. 16-19). Thus, "even if [the ALJ] had erroneously concluded that some of [Plaintiff's] other impairments were non-severe, any error was harmless."
This Court will consider together Plaintiff's arguments that the ALJ failed to properly weigh Plaintiff's plantar fasciitis and shoulder impairment in determining Plaintiff's Residual Functional Capacity ("RFC") and whether the ALJ erred in his credibility determinations with respect to Plaintiff's subjective complaints regarding those same impairments.
RFC is what a person is still able to do despite the limitations caused by his impairments. 20 C.F.R. §§ 404.1545(a) and 416.945. Social Security Ruling 96-8p ("SSR" 96-8p), dictates that the RFC assessment is a "function-by-function assessment based upon all the relevant evidence of an individual's ability to do work related activities." SSR 96-8p. In order to meet the requirements of 96-8p, the ALJ "must 'specify the evidence that he relied upon to support his [or her] conclusion.'"
Plaintiff's first RFC-related argument is that the ALJ did not assess any upper-extremity limitations in his formation of Plaintiff's RFC. Moreover, Plaintiff contends that, had the ALJ found Plaintiff's plantar fasciitis to be severe, he might have further limited Plaintiff's ability to stand and walk, which would have impacted Plaintiff's ability to perform 8 hours of work activity.
This Court notes, however, that during the hearing, the ALJ modified Plaintiff's RFC determination found at Exhibit 7F in order to reflect Plaintiff's "lower-extremity problems" and reduced the occasional lifting to 10 pounds and frequent lifting to less than 10 pounds to "eliminate[] all but sedentary work." (R. 45). Furthermore, the ALJ noted that he "did somewhat downgrade the claimant's residual functional capacity to take into account at least to the extent to which his testimony could be deemed believable, his symptoms, including pain." (R. 20).
Despite this "downgrade," Plaintiff similarly avers that the ALJ erred in his determination of Plaintiff's credibility with respect to his subjective complaints. More specifically, the Plaintiff contends that the ALJ failed to give any explicit consideration to the Plaintiff's hearing testimony and only credited portions of Plaintiff's Function Report related to what Plaintiff
"An ALJ must give serious consideration to a claimant's subjective complaints of pain, even where those complaints are not supported by objective evidence."
For reasons similar to those discussed above with respect to the ALJ's treatment of Plaintiff's treating physician's opinion, this Court finds that remand is warranted as to the assessment of Plaintiff's credibility related to his subjective limitations. As Plaintiff correctly points out, the ALJ cites to portions of Plaintiff's Function Report (Exhibit 6E) that support his conclusions as to the intensity, frequency and duration of this subjective limitations, but seemingly ignores the portions of that same report that conflict with his conclusions. For example, while the ALJ notes that Plaintiff reported that he can do light cleaning, laundry, help with his two dogs and had no difficulty paying attention, he does not address the Plaintiff's assertions in that same report that state that he cannot walk more than twenty-feet without rest, that reaching is painful, and that he cannot be upright for more than five minutes. (R. 178). While the ALJ stated that he "downgraded" Plaintiff's RFC to take into account the "extent to which his testimony could be deemed believable," (R. 20), he says this immediately after writing that the Plaintiff's "alleged limitations appeared exaggerated compared to the objective medical evidence." (R. 20). It is, therefore, unclear what evidence was credited and what evidence was rejected with respect to Plaintiff's subjective limitations in the formulation of his RFC, and the ALJ must revisit this issue on remand.
Although the ALJ may again determine that Plaintiff's subjective complaints are not credible on remand under a more thorough analysis, the ALJ failed to adequately address the conflicting evidence in the record. It is the responsibility of the ALJ to weigh the evidence and make determinations on contradicting evidence.
For the reasons stated above, this Court will vacate the decision of the ALJ and remand. An accompanying Order will issue this date.