KATHLEEN B. BURKE, Magistrate Judge.
Plaintiff Robert Justice ("Plaintiff" or "Justice") seeks judicial review of the final decision of Defendant Commissioner of Social Security ("Defendant" or "Commissioner") denying his application for social security disability benefits. Doc. 1. This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned Magistrate Judge pursuant to the consent of the parties. Doc. 13. As explained more fully below, the Administrative Law Judge ("ALJ") failed to fully and fairly develop the record with respect to evidence that Justice claimed provided support for his treating physician's opinion and the Court is therefore unable to determine whether the ALJ's reasons for providing very little weight to that opinion are supported by substantial evidence and constitute "good reasons." Accordingly, for the reasons set forth herein, the Court
On June 4, 2009, Justice filed the application for SSI ("SSI") that is at issue in this case. Tr. 15, 81-84. He alleged a disability onset date of July 14, 1999. Tr. 81. He alleged disability based on back problems, epicondylitis, depression, removal of a testicle, heart problems, anxiety, and a hernia. Tr. 64, 67, 112. After initial denial by the state agency (Tr. 64-66), and denial upon reconsideration (Tr. 67-69), Justice requested a hearing (Tr. 70). On February 3, 2012, Administrative Law Judge John Allen ("ALJ" or "ALJ Allen") conducted an administrative hearing (Tr. 368-399) and, on April 20, 2012, the ALJ conducted a supplemental administrative hearing (Tr. 400-410.)
In his May 3, 2012, decision (Tr. 12-30), the ALJ determined that Justice had not been under a disability since June 4, 2009, the date the application was filed. Tr. 19. The ALJ found that there was new evidence to support his decision not to adopt the findings of the prior Administrative Law Judge Denise McDuffie Martin ("ALJ Martin") (discussed below). Tr. 27. For example, the ALJ stated in part,
Tr. 27.
Justice requested review of the ALJ's decision by the Appeals Council. Tr. 10-11. On February 19, 2012, the Appeals Council denied Justice's request for review, making the ALJ's decision the final decision of the Commissioner. Tr. 5-7.
Justice previously filed applications for Supplemental Security Income ("SSI") and Disability Insurance Benefits on June 21, 2004. Tr. 18, 51. He alleged a disability onset date of July 14, 1999. Tr. 51. On March 22, 2008, Administrative Law Judge Denise McDuffie Martin ("ALJ Martin") issued a decision finding that Justice had not been under a disability from July 14, 1999, through the date of the decision.
Justice was born in 1969. Tr. 81. He was 42 years old at the time of the first hearing and resided with his wife. Tr. 373. He has two children. Tr. 271. He received his GED in 1988. Tr. 118, 272, 374. He last worked in a factory as a general laborer. Tr. 112-113, 272. He stopped working in 1999 after being hurt on the job. Tr. 112.
In January 2012, Justice's treating physician Siraj Siddiqui, M.D., completed a "Medical Source Statement: Patient's Physical Capacity" ("Physical MSS") (Tr. 348-349) and a "Medical Source Statement: Patient's Mental Capacity" ("Mental MSS") (Tr. 350-351).
In the Physical MSS, Dr. Siddiqui opined that Justice was limited to occasionally lifting and/or carrying 5-10 pounds; he was limited to standing and/or walking 1-2 hours in an 8-hour workday and standing and/or walking for 45 minutes without interruption; he was limited to sitting 1-2 hours in an 8-hour workday; he could occasionally balance; he could rarely or never climb, stoop, crouch, kneel or crawl; he could occasionally reach, handle or feel; he could rarely push and/or pull or perform fine or gross manipulation; and he had environmental restrictions, including no heights, moving machinery, temperature extremes, chemicals, dust, noise or fumes. Tr. 348-349. Dr. Siddiqui opined that the foregoing limitations were supported by the fact that Justice was status post CVA.
In the Mental MSS, Dr. Siddiqui rated Justice's ability to perform certain basic mental activities on a sustained basis as either "unlimited/very good," "good," "fair," and "poor or none." Tr. 350-351. Dr. Siddiqui opined that Justice's ability to follow work rules was good; Justice's ability to use judgment; understand, remember and carry out complex job instructions; maintain appearance; relate predictably in social situations; and manage funds/schedules was fair; and Justice had poor or no ability to maintain attention and concentration for extended periods of 2 hour segments; respond appropriately to changes in routine work setting; maintain regular attendance and be punctual within customary tolerances; deal with the public; relate to co-workers; interact with supervisors; function independently without special supervision; work in coordination with or proximity to others without being unduly distracted or distracting; deal with work stresses; complete a normal workday and work week without interruptions from psychologically based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods; understand, remember and carry out detailed, but not complex job instructions; understand, remember and carry out simple job instructions; socialize; behave in an emotionally stable manner; and leave home on his own. Tr. 350-351.
Justice claims that the ALJ ignored the results of a February 14, 2012, MRI ("MRI report") performed on his brain. Doc. 15-1, p. 2. The MRI report noted that Justice had a clinical history of ataxia and slurred speech, left arm numbness and facial droop. Doc. 15-1, p. 2. The MRI impression was:
Doc. 15-1, p. 2.
During the April 20, 2012, hearing, Justice's counsel argued that results of the MRI report showing ischemic vessel disease or early onset of a dymelinating condition were consistent with Justice's reports that he had made since August of the prior year of losing balance and his treating doctor's report of being status post CVA. Tr. 401. The MRI report is not contained in the administrative record but Justice submitted the MRI report with his brief in this case
As discussed more fully below, Justice seeks a sentence six remand for consideration of the MRI report and/or a remand for the reason that the ALJ failed to fully and fairly develop the record by inquiring further about the medical evidence that Justice relied upon to show support for his doctor's opinion.
The ALJ held two administrative hearings. The first occurred on February 3, 2012 (Tr. 368-399), and the second occurred on April 20, 2012 (Tr. 400-410).
During the first hearing, Justice described an incident that occurred in December 2011 that resulted in a diagnosis of Bell's Palsy at the emergency room. Tr. 374-377. He was with a friend and was eating a cracker. Tr. 375. All of a sudden, he started having chest pain and tingling in his left arm and left leg. Tr. 375. He had had chest pains in the past. Tr. 375. Thus, at first, he did not think much about the pain but food and water started coming out of the side of his mouth. Tr. 375. His friend took him home and he took a nitro pill and some aspirin and slept for 8-12 hours. Tr. 375. The following day, he went to the emergency room and he was diagnosed with Bell's Palsy. Tr. 375-376. He later went to Mid Ohio Heart. Tr. 376. Per Justice, a physician with Mid Ohio Heart indicated that she thought he had been misdiagnosed and she wanted him to follow up with Dr. Hill. Tr. 376. Justice reported having seen Dr. Hill the day before the hearing and that Dr. Hill had informed him that he would have to have an MRI done. Tr. 376-377.
During the second hearing, Justice's counsel argued that there was recent evidence showing that Justice has "either ischemic vessel disease or an early onset of a dymelinating condition that's condition that's consistent with the reports he's made since August of last year of losing balance and his doctor's report of being status post CDA [sic]. We would argue, based on the doctor's RFC's, that he's not able to perform competitive work activity." Tr. 401. The ALJ asked Justice about seeing Dr. Hill and Justice reported that he had seen Dr. Hill in March. Tr. 401-402. Justice indicated that Dr. Hill had indicated that he was not sure what was happening with him. Tr. 402-404. At the close of the hearing, the ALJ stated, "I just have to look at this evidence again, particularly Dr. Siddiqui's notes and found [sic] out where we end up." Tr. 410.
During the first hearing, the ALJ called James Parker, a board certified neurologist, as a medical expert. Tr. 390. The ALJ asked Dr. Parker to confine his opinions to the documentary record or subjective complaints supported by objective evidence rather than solely on Justice's testimony regarding his conditions. Tr. 390-391. Dr. Parker opined that Justice did not have an impairment that met or equaled a Listing. Tr. 391-392. Dr. Parker also opined that the only limitation that he felt Justice would have based on his impairments would be related to his left shoulder. Tr. 392. More particularly, Dr. Parker opined that Justice would be precluded from overhead reaching and limited to occasional reaching forward and occasional handling.
During the first hearing, the ALJ asked VE Oestreich whether there would be work available either regionally or nationally for someone of Justice's age, education, and with no past work experience who would be limited to sedentary work; could not reach overhead with his left upper extremity; would not be able to use ladders; could occasionally use stairs; could occasionally balance, stoop, kneel, crouch, and crawl; should be permitted, as needed, to elevate his legs to footstool level; and would be limited to the performance of unskilled, simple repetitive tasks. Tr. 393. VE Oestreich indicated that, if the individual would be required to elevate his leg to footstool level more than half of the time, the requirement would be considered an accommodation. Tr. 394. VE Oestreich indicated that, if the footstool elevation requirement was removed, there would be work available to the described individual, including hand packer, inspector and assembler.
During the second hearing, the ALJ asked VE Coleman whether there would be work available either regionally or nationally for someone of Justice's age, and education, and with no past work experience who would be limited to light work; could sit, stand, or walk for 6 hours in an 8-hour day; would be precluded from use of ladders, ropes or scaffolds; would be limited to occasional tasks involving balancing, stooping or crouching; would be precluded from reaching overhead with his left upper extremity; would be precluded from exposure to hazardous machinery or work at unprotected heights; would be limited to the performance of unskilled, simple, repetitive tasks; would be limited to superficial interaction with co-workers and the general public; and should work in a predicted stable environment with minimal changes in routine. Tr. 406-407. VE Coleman indicated that there would be unskilled, light jobs available to the described individual, including mail sorter (170 regionally
In response to questions from Justice's counsel, the VE indicated that, if the hypothetical individual's interaction with co-workers and the general public was revised to include limitations to both superficial and only occasional, the listed jobs would remain available. Tr. 408-409. The VE also indicated that, if the hypothetical individual was restricted to sedentary work; unskilled, simple, routine tasks; superficial and occasional contact with the general public and co-workers in a predictable and stable environment; and limited to no overhead reaching with the left upper extremity and only occasional use of the left extremity to reach in front of him and for fine or gross manipulation, there would be no work available. Tr. 409-410.
The ALJ started to ask VE Coleman a question relating to Dr. Siddiqui's opinion (Exhibit 21F) but then noted that he did not need to ask VE Coleman about that stating, "if I accept, Counsel, if I accept the parameters of Dr. Siddiqui's limitations at 21F, page 3, I'm going to conclude that, that would be work preclusive without the need for vocational testimony."
Under the Act, 42 U.S.C § 423(a), eligibility for benefit payments depends on the existence of a disability. "Disability" is defined 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 12 months." 42 U.S.C. § 423(d)(1)(A). Furthermore:
42 U.S.C. § 423(d)(2).
In making a determination as to disability under this definition, an ALJ is required to follow a five-step sequential analysis set out in agency regulations. The five steps can be summarized as follows:
20 C.F.R. §416.920; see also Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). Under this sequential analysis, the claimant has the burden of proof at Steps One through Four. Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). The burden shifts to the Commissioner at Step Five to establish whether the claimant has the RFC and vocational factors to perform work available in the national economy. Id.
In his May 3, 2012, decision, the ALJ made the following findings:
Based on the foregoing, the ALJ determined that Justice had not been under a disability since June 4, 2009, the date the application was filed. Tr. 29.
Justice requests that the Court remand the case pursuant to sentence six of 42 U.S.C. § 405(g) for consideration of new and material evidence and/or remand the case because the ALJ ignored evidence or failed to fully and fairly develop the record. Doc. 15, pp. 13-15. He asserts that, through his counsel, he attempted to submit results of a February 14, 2012, MRI report (Doc. 15, p. 7, n.4, Doc. 15-1, p. 2) prior to the April 20, 2012, administrative hearing; attempted to confirm the ALJ's receipt of that evidence;
Justice also claims that the ALJ's RFC finding is not supported by substantial evidence. Doc. 15, pp. 18-24. He argues that the ALJ's RFC restricting Justice to a reduced range of light work was inconsistent with the prior ALJ's RFC that restricted Justice to a reduced range of sedentary work as well as Dr. Siddiqui's opinion. Doc. 15, pp. 19-22. Additionally, Justice argues that the ALJ's RFC finding overlooks left arm restrictions for reaching and handling as identified by the ME during the hearing as well as limitations in the ability to maintain attention and concentration, maintain regular attendance and punctuality, and complete a normal workday and workweek as indicated in Dr. Siddiqui's opinion as well as in the opinions of treating psychiatrist Dr. Pervez and state agency reviewing physicians. Doc. 15, pp. 22-24.
In response to Justice's argument that the case should be remanded for consideration of the MRI results, the Commissioner argues that the MRI results are irrelevant because they do not mention a CVA or stroke. Doc. 16, p. 2, 9. Also, the Defendant argues that, even if the MRI results related to Justice's alleged stroke, the MRI results do not alone demonstrate functional loss or that his alleged stroke resulted in disability lasting more than 12 months. Doc. 16, p. 9.
The Commissioner also argues that the ALJ properly gave very little weight to Dr. Siddiqui's opinion that Justice was disabled due to a CVA. Doc. 16, pp. 9-11. She argues again that the MRI results do not mention a CVA and that there is no evidence that Justice's physical impairments required extensive treatment such as physical, speech or occupational therapy. Doc. 16, p. 10. She also argues that all other objective tests fail to provide support for Justice's claim that he is disabled, i.e., 2007 left heart catheterization, coronary angiography, and left ventriculography did not reveal any "significant obstructive coronary artery disease;" in 2009 treating cardiologist reported there was "no objective evidence of cardiac disease . . . There is no evidence of disability;" and, in 2011, a CT scan of the brain was normal, a carotid Doppler revealed "no significant stenosis," and a nerve conduction study was within normal limits. Doc. 16, pp. 10-11 (citing Tr.198, 238, 345, 362, 363, 366).
With respect to Justice's RFC argument, the Commissioner argues that the ALJ found that the record contained new and material evidence and therefore was not required to adopt the prior ALJ's RFC. Doc. 16, pp. 11-12. Additionally, the Commissioner argues that the ALJ's RFC is supported by substantial evidence. Doc. 16, pp. 11-12.
A reviewing court must affirm the Commissioner's conclusions absent a determination that the Commissioner has failed to apply the correct legal standards or has made findings of fact unsupported by substantial evidence in the record. 42 U.S.C. § 405(g); Wright v. Massanari, 321 F.3d 611, 614 (6th Cir. 2003). "Substantial evidence is more than a scintilla of evidence but less than a preponderance and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Besaw v. Sec'y of Health & Human Servs., 966 F.2d 1028, 1030 (6th Cir. 1992) (quoting Brainard v. Sec'y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989). The Commissioner's findings "as to any fact if supported by substantial evidence shall be conclusive." McClanahan v. Comm'r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (citing 42 U.S.C. § 405(g)). Even if substantial evidence or indeed a preponderance of the evidence supports a claimant's position, a reviewing court cannot overturn "so long as substantial evidence also supports the conclusion reached by the ALJ." Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003). Accordingly, a court "may not try the case de novo, nor resolve conflicts in evidence, nor decide questions of credibility." Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
Justice argues that, during the April 20, 2012,
In order to demonstrate an entitlement to a remand under sentence of 42 U.S.C. § 405(g), Justice has to demonstrate that the evidence he now presents in support of a remand is "new" and "material," and that there was "good cause" for his failure to present this evidence in the prior proceeding. See Hollon v. Commissioner, 447 F.3d 477, 483 (6th Cir. 2006); see also Ferguson v. Commissioner, 628 F.3d 269, 276 (6th Cir. 2010). Evidence is "new only if it was not in existence or available to the claimant at the time of the administrative proceeding."
Justice contends that he submitted the MRI report through his attorney prior to the April 20, 2012, hearing.
Alternatively, Justice argues that the ALJ failed to fully and fairly develop the record after being alerted to objective medical findings that could support Justice's claim that he had suffered a stroke and/or Dr. Siddiqui's opinion that Justice was status post CVA. Doc. 15, pp. 14-16.
At the start of the April 20, 2012, hearing, the ALJ responded to an inquiry from Justice's counsel about the exhibits and indicated that B22F included documents submitted on March 22. Tr. 400. Following that exchange, Justice's counsel proceeded with an opening argument wherein she stated in part,
Tr. 401 (emphasis supplied).
With respect to Justice's counsel's argument that there was medical evidence that was consistent with Justice's allegation of loss of balance and his treating physician's opinion that Justice was status post CVA, the ALJ stated in his decision,
Tr. 19. With respect to Dr. Siddiqui's opinion, the ALJ stated,
Tr. 27, 28 (emphasis supplied). Thus, the ALJ discounted the opinion of Justice's treating physician because of his conclusion that Justice had not had a stroke, a conclusion that Justice contends is contradicted by the MRI results that his counsel alerted the ALJ to during the April 20, 2012, hearing.
"Social security proceedings are inquisitorial rather than adversarial. It is the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefits." Sims v. Apfel, 530 U.S. 103, 110-11, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000) (citing Richardson v. Perales, 402 U.S. 389, 400-401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). An ALJ's duty to develop the record is balanced against the fact that "[t]he burden of providing a complete record, defined as evidence complete and detailed enough to enable the Secretary to make a disability determination, rests with the claimant." Hawkinberry v. Comm'r of Soc. Sec., 2011 WL 2555272, *5 (N.D. Ohio May 24, 2011), report and recommendation adopted, 2011 WL 2554243 (June 28, 2011) (quoting Landsaw v. Sec'y Health & Human Servs., 803 F.2d 211, 214 (6th Cir. 1986) (citing 20 C.F.R. §§ 416.912, 416.913(d)).
Here, Justice was represented by counsel at the hearing. Thus, the ALJ had no heightened duty.
In considering whether the ALJ fulfilled his duty to fully and fairly develop the record, the Court notes that Justice claims that the evidence that the ALJ should have more fully and fairly developed relates to his treating physician's opinion, which the ALJ made clear was material to his disability determination. For example, during the April 20, 2012, hearing, the ALJ stated, "if I accept the parameters of Dr. Siddiqui's limitations at 21F, page 3, I am going to conclude that, that would be work preclusive without the need for vocational testimony." Tr. 408. Further, at the start of the February 3, 2012, hearing, the ALJ noted that he had specifically asked Justice's counsel about Dr. Siddiqui's January 2012 opinion and whether there was documentary support for that opinion (Tr. 371), suggesting that the ALJ recognized correctly that Dr. Siddiqui was a treating physician and, it was therefore important to determine whether there was support for his January 2012 opinions.
Considering the materiality of Dr. Siddiqui's opinion, based on the following testimony, arguments and/or records, the ALJ should have been prompted to take additional steps to inquire further into the medical evidence that Justice argued provided support for Dr. Siddiqui's opinion that Justice was status post CVA.
First, during the February 3, 2012, hearing, Justice testified that he had seen Dr. Hill the day before the hearing because of the possibility of a stroke and Dr. Hill had informed him that he needed to have an MRI done. Tr. 376-377. In his decision, the ALJ noted that, during the February 2012 hearing, Justice indicted that he had attended a doctor's appointment the day before the hearing which was related to his alleged stroke. Tr. 19. The ALJ does not, however, mention that Justice also indicated that that doctor wanted him to have an MRI. Tr. 376-377.
Second, during the April 20, 2012, hearing, Justice's counsel argued, referring to Exhibit B22F, "there is evidence that he has either ischemic vessel disease or an early onset of a dymelinating condition that's condition that's consistent with the reports he's made since August of last year of losing balance and his doctor's report of being status post CDA. We would argue, based on the doctor's RFC's, that he's not able to perform competitive work activity." Tr. 401. While the MRI report is not in the administrative record, the Commissioner does not challenge Justice's claim that he attempted to submit the MRI results prior to the hearing and/or that, at the time of the hearing, his counsel believed that the ALJ had confirmed receipt of that evidence.
Third, Exhibit B22F contains treatment notes from Dr. Siddiqui, including March 7, 2012, treatment notes (post-dating the MRI report). Tr. 353. Those notes contain the notation "test results," suggesting that test results of some kind were discussed or reviewed during the March 7, 2012, appointment. Tr. 353. However, it does not appear that the ALJ inquired about these notes or asked what "test results" were being referred to.
Thus, even though the ALJ acknowledged that, if Dr. Siddiqui's opinion were accepted, the functional limitations contained therein would be work preclusive (Tr. 408), the ALJ failed to inquire further about the evidence that Justice was relying upon at the April 20, 2012, hearing, to support Dr. Siddiqui's opinion. Rather, the ALJ concluded, without making such an inquiry, that there was no evidence to support either Justice's counsel's argument or Dr. Siddiqui's opinion.
Moreover, without further development of the record and/or explanation by the ALJ as to what, if any, impact the February 14, 2012, MRI results would have on the weight the ALJ provided to Dr. Siddiqui's opinion, the Court is unable to assess whether the ALJ's decision to provide very little weight to Dr. Siddiqui's opinion is supported by substantial evidence. Accordingly, the Court concludes that reversal and remand is warranted for further development of the record, including consideration of the February 14, 2012, MRI results
Justice also argues that reversal and remand are warranted because the ALJ erred in assessing his RFC and in not adopting the prior ALJ's RFC. Since further proceedings on remand may impact the ALJ's other findings, the Court declines to address Justice's other arguments. See Trent v. Astrue, 2011 WL 841538, *7 (N.D. Ohio Mar. 8, 2011) (declining to address the plaintiff's remaining assertion of error because remand was already required and, on remand, the ALJ's application of the treating physician rule might impact his other findings).
For the reasons set forth herein, the Court
Tr. 18.
