JONATHAN D. GREENBERG, Magistrate Judge.
Plaintiff, Christine Morabito ("Plaintiff" or "Morabito"), challenges the final decision of Defendant, Nancy A. Berryhill,
In March 2013, Morabito filed an application for POD and DIB, alleging a disability onset date of August 18, 2005 and claiming she was disabled due to "migraines, memory loss, depression, numbness in right arm, neck, lumbar coccyx, severe arthritis, left ankle fusion, bone removal of left hip, high blood pressure, [and] jaw." (Transcript ("Tr.") 41, 183, 211.) The applications were denied initially and upon reconsideration, and Morabito requested a hearing before an administrative law judge ("ALJ"). (Tr. 41, 124-130, 135.)
On May 14, 2015, an ALJ held a hearing, during which Morabito, represented by counsel, and an impartial vocational expert ("VE") testified. (Tr. 55-94.) On June 26, 2015, the ALJ issued a written decision finding Morabito was not disabled. (Tr. 41-49.) The ALJ' s decision became final on August 5, 2016, when the Appeals Council declined further review. (Tr. 1-7.)
On September 30, 2016, Morabito filed her Complaint to challenge the Commissioner's final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 12, 14.) Morabito asserts the following assignments of error:
(Doc. No. 12.)
Morabito was born in December 1965 and was forty-five (45) years-old at the time of her date last insured ("DLI") of June 30, 2011, making her a "younger" person under social security regulations. (Tr. 48.) See 20 C.F.R. §§ 404.1563(c) & 416.963(c). She has a high school education and is able to communicate in English. (Id.) She has past relevant work as an x-ray technician. (Tr. 48.)
The record reflects Morabito was in a severe motor vehicle accident in 1988. (Tr. 567.) She was in a coma for three months and hospitalized for seven months. (Id.) Morabito suffered multiple injuries (including fractures of her right elbow, left ankle, and left wrist) and underwent numerous surgeries. (Id.) Records reflect that, subsequent to the accident, Morabito suffered from residual pain in her neck, right upper extremity, left wrist, right foot, left knee, low back, right sacroiliac joint, and right posterior lower extremity. (Id.) She treated with pain management beginning in January 2004 and was prescribed numerous pain medications, including OxyContin, Keppra, Neurontin, and Mobic. (Tr. 569.) Her diagnoses in 2004 and 2005 included chronic pain syndrome, osteoarthritis multiple area, neuropathic pain, sciatic distribution pain, and status post multiple trauma. (Tr. 536, 564, 562, 560, 558, 556, 554, 552, 550, 548, 546, 544, 542, 540, 538, 534, 532.)
Despite her chronic pain, Morabito worked full-time as an MRI/x-ray technician throughout 2004 and until August 2005. (Tr. 355.) On August 2, 2005, Morabito injured her right elbow while removing an obese patient from an MRI machine. (Id.) She complained of sharp elbow pain with any kind of motion, and "some minimal pain" radiating down her forearm and up into her shoulder. (Tr. 351.) Examination revealed diffuse tenderness and decreased range of motion. (Id.) X-rays showed (1) an "old healed fracture head of the radius with ununited fragments lying in the elbow joints;" and (2) soft tissue calcifications due to myositis ossificans lying adjacent to the lateral aspect of the metaphysis of the right humerus. (Tr. 355.) Morabito underwent an MRI on August 10, 2005, which revealed (1) probable secondary posttraumatic osteoarthritis; (2) joint effusion; (3) moderate to severe tendinosis common extensor tendon (no complete tear); (4) atrophy of the distal triceps musculature; and (5) mild soft tissue edema. (Tr. 371.)
On August 16, 2005, Morabito presented to Thomas E. Parent, M.D., for evaluation of her right elbow pain. (Tr. 369.) Dr. Parent noted the MRI showed "severe tendinitis of the common extensor." (Id.) Examination revealed swelling, tenderness and pain over the common extensor with limited extension, as well as painful wrist extension and painful long finger testing. (Id.) Dr. Parent administered an injection in Morabito's right elbow and gave her "work restrictions with no use of the right arm." (Id.) Several weeks later, on August 30, 2005, Morabito returned to Dr. Parent and reported "her job is not being compliant with her work restrictions of no use of the arm." (Tr. 368.) She reported mild improvement since her injection, but continued to complain of pain over the lateral aspect of the elbow. (Id.) Dr. Parent prescribed an elbow splint and ordered her "off work for one month." (Id.)
On October 14, 2005, Morabito underwent an x-ray of her right elbow, which showed "degenerative arthritis of the distal humerus and small nodular bony fragment in the anterior elbow joint on the lateral view also compatible with old trauma." (Tr. 370.) She returned to Dr. Parent several days later, who noted Morabito "is not getting over her elbow injury very well." (Tr. 366.) Dr. Parent offered her continued conservative treatment, but indicated she was "probably headed" to operative intervention. (Id.) The record reflects Morabito underwent surgery on her right elbow on December 2, 2005, specifically a lateral epicondylar release of the right elbow. (Tr. 372.)
Meanwhile, during this time period, Morabito regularly presented to pain management physician Paul Arnold, D.O., for treatment of her chronic pain. (Tr. 515-531.) Specifically, the record reflects she presented to Dr. Arnold on eight occasions between August and December 2005. (Id.) On August 10, 2005, she presented with "a great deal of pain bilaterally" in the sacroiliac joints when walking. (Tr. 530.) Dr. Arnold noted Morabito "has undergone chiropractic treatment, physical therapy and opioid therapy, all of which have failed." (Id.) He administered an injection to her sacroiliac ("SI") joint. (Id.) In subsequent visits, Morabito complained of severe right arm pain as well as increased back pain. (Tr. 515-529.) Throughout this time period, treatment notes generally indicated Morabito's activities of daily living were either "limited" or "not possible." (Tr. 528, 526, 524, 520, 518, 515.) Dr. Arnold consistently diagnosed torn extensor tendon, chronic pain syndrome, osteoarthritis multiple area, neuropathic pain, sciatic distribution pain, and status post multiple trauma; and prescribed various pain medications including OxyContin, Roxicodone, Baclofen, Keppra, Mobic, Neurontin, Celebrex, Viagra, and Lidoderm patches. (Id.)
On January 24, 2006, Morabito returned to Dr. Parent for evaluation of her right elbow post surgery. (Tr. 364.) Dr. Parent noted "she lacks some elbow flexion and some elbow extension," and referred her for physical therapy for three weeks. (Id.) Morabito returned on March 13, 2006 with complaints of continuing mild to moderate pain. (Tr. 363.) Dr. Parent noted as follows:
(Id.)
On May 24, 2006, Morabito presented to Dr. Parent with reports of "pain over the lateral aspect of her ankle with continued difficulties with crepitation." (Tr. 362.) Dr. Parent concluded Morabito "certainly has an ongoing problem with her elbow, that I think she is going to have long-term problems especially with the amount of arthritis that she has developed from previous problems and her operative issues." (Id.) At this visit, Morabito also complained of dropping objects in her hands. (Id.) Dr. Parent "could find no cause for [this] in relating to her elbow" and referred her for a neurologic evaluation. (Id.)
The record reflects Morabito continued to regularly present to Dr. Arnold for treatment of her chronic pain. In January 2006, she complained of increased pain in her right elbow. (Tr. 513.) Dr. Arnold noted elevated blood pressure (at 190/110) and started her on hypertension medication. (Id.) The following month, Dr. Arnold noted Morabito's blood pressure remained elevated and changed her medication. (Tr. 509.) In March 2006, Morabito's blood pressure was "still up," causing Dr. Arnold to add a beta blocker. (Tr. 505.) In April 2006, Morabito's blood pressure was under control but Dr. Arnold noted "her elbow looks bad and she has been released to return to work." (Tr. 503.) He did "not feel she can return to moving patients around for xrays." (Id.) In May 2006, Morabito complained of continued right elbow pain with paresthesias in her right hand. (Tr. 501.) On June 5, 2006, Dr. Arnold noted "Christine's arm still hurts and has marked decrease in function," and "she also has loss of use of her hand." (Tr. 499.) At these visits, treatment records generally indicate Morabito was either "unable to perform all the normal activities of daily living with medications" (see Tr. 513, 511), or "able to perform limited activities of daily with medications" (see Tr. 509, 505, 503, 501, 499.)
Dr. Arnold also had Morabito complete "Pain Assessment" questionnaires at several visits. (Tr. 486-498.) In September 2006, Morabito stated her average pain level for the previous week was 4 out of 10, and her worst pain level was 7 out of 10. (Tr. 497.) She reported her pain had been relieved by 50% during the previous week and indicated the amount of pain relief she was obtaining from her current pain relievers was enough "to make a real difference in her life." (Id.) In October, November and December 2006, Morabito rated her average pain level as ranging between 2 and 4 out of 10, and her worst pain levels as ranging between 7 and 8 out of 10. (Tr. 494, 491, 489, 486.) She reported her pain had been relieved by between 50 and 70% during this three month period. (Id.)
Meanwhile, Morabito injured her right thumb in October 2006. (Tr. 873, 876.) She was seen in the emergency room where a drain was placed in the wound. (Id.) In November 2006, she presented with "progressive swelling of the right thumb," as well as chronic pain in that area. (Tr. 873.) An x-ray revealed "destruction involving the distal aspect of the proximal phalanx and the adjacent joint with considerable soft tissue swelling and some periosteal calcifications as well that are consistent with osteomyelitis." (Id.) Examination revealed "marked swelling with fluctuance involving the thumb and with considerable erythema, pain and tenderness in this area." (Id.) Morabito was diagnosed with cellulitis and acute and chronic osteomyelitis of the right thumb, and prescribed antibiotics. (Id.) The record reflects Morabito underwent a debridement of skin, subcutaneous tissue and tendon, as well as partial excision of bone, on November 14, 2006. (Tr. 881-882.)
Morabito required IV antibiotics for several weeks after her thumb surgery. (Tr. 430, 933.) On December 11, 2006, she presented to Nicholas Lekas, M.D., who noted Morabito's thumb was warmer and "seems to be more inflamed." (Tr. 933.) On December 15, 2006, Morabito underwent surgery to remove a pin in her thumb. (Tr. 942. ) Morabito was prescribed a thumb immobilizer splint and continued on antibiotics. (Tr. 946.)
On December 28, 2006, Morabito reported she had fallen on Christmas day and injured her right thumb, resulting in "tremendous pain and more swelling." (Tr. 950.) X-rays revealed that "the cement moved somewhat and detached itself from the proximal phalanx area." (Id.) The record reflects Morabito underwent another debridement on January 2, 2007. (Tr. 956.)
On January 19, 2007, Morabito returned to Dr. Arnold for a routine pain management recheck. (Tr. 482-483.) She reported her pain had improved by 50%, but also stated she was unable to perform activities of daily living. (Id.) Dr. Arnold noted an unsteady gait, painful range of motion in Morabito's lumbosacral and cervical spines, and tenderness to palpation in her SI joint. (Id.) Muscle strength and tone were normal. (Id.) Dr. Arnold continued Morabito on her medication regimen of OxyContin and Roxicodone. (Id.)
On March 23, 2007, Morabito reported her pain had improved by 75% and she was able to perform activities of daily living without difficulty. (Tr. 480-481.) Her gait and station were normal, as was her muscle strength and tone. (Id.) However, Dr. Arnold noted painful range of motion in Morabito's lumbosacral spine. (Id.) Several months later, on April 17, 2007, Morabito reported pain in her right knee and indicated she was unable to perform her activities of daily living. (Tr. 476-477.) Dr. Arnold noted unsteady gait; inflammation of Morabito's digits and nails; misalignment and asymmetry of her joints and muscles; painful range of motion in her lumbosacral spine; and painful leg extension and flexion. (Id.) He ordered an MRI of her right knee, and prescribed crutches and a straight leg brace. (Tr. 477.)
The parties do not direct this Court's attention to any further medical records from 2007. In September 2008,
On January 27, 2009, Morabito underwent x-rays and an MRI of her lumbar spine. (Tr. 614-616.) The x-ray showed degenerative changes within the lower lumbar spine, including intravertebral disc space narrowing at L4-L5 and L5-S1 and narrowing and sclerosis in the lower lumbar facet joints. (Tr. 616.) The MRI revealed (1) bulging discs at L3-L4, L4-L5, and L5-S1 without superimposed focal herniation; and (2) facet joint hypertrophy at L2-L3, L3-L4 and L4-L5.
In July 2009, Morabito returned to Dr. Bshara with elevated blood pressure, occasional shortness of breath, and swelling in her bilateral lower extremities. (Tr. 857.) Dr. Bshara noted Morabito had been noncompliant with her blood pressure medication. (Id.) Examination revealed +1 to +2 edema in Morabito's bilateral ankles and feet. (Id.) He ordered an EKG, which was unremarkable. (Id.) Dr. Bshara advised Morabito to restart her blood pressure medication, and ordered blood work. (Id.) In February 2010, Morabito complained of recurrent edema in her lower extremities and hands. (Tr. 855.)
Morabito returned to Dr. Bshara on June 12, 2010 with complaints of multiple pains and aches, including pain in her left leg, right elbow, and right thumb. (Tr. 852.) She indicated her pain management doctor had quit recently and she was assigned to another doctor, who she was scheduled to see the following month. (Id.) Morabito indicated she was running short on her pain medication and asked for Percocet for "temporary management." (Id.) Dr. Bshara noted Morabito had been anxious and in pain. (Id.) Her blood pressure was elevated at 160/90. (Id.) Dr. Bshara prescribed Percocet, and advised Morabito to schedule an appointment with pain management. (Id.)
Two weeks later, on June 24, 2010, Morabito returned to Dr. Bshara with complaints of persistent and chronic pain in her right upper extremity. (Tr. 850.) Dr. Bshara noted as follows: "She is having problem with the pain management. Her pain management doctor has left and she needs oxycodone and OxyContin. I had referred her to pain management specialist in the past but apparently they would not see her until August 2010." (Id.) Dr. Bshara indicated he would attempt to arrange a pain management appointment for Morabito by telephone and, if unsuccessful, would refill her OxyContin. (Id.)
On July 7, 2010, Morabito began treatment with pain management physician Dean Pahr, D.O. (Tr. 595-597.) Dr. Pahr noted Morabito had a "gross distortion" of her right elbow; a fusion with infection that had resolved in her right thumb; "a problem with her left ankle with a fusion procedure;" and back problems. (Tr. 595.) On examination, he described Morabito as "a pleasant female with these noted joint problems with the right elbow she cannot fully extend, the right thumb is locked in position, and her left elbow." (Id.) Dr. Pahr also noted she had "some guarding and protection of her back with some pain behavioring with light touch." (Id.) He diagnosed lumbar radiculitis; lumbar spondylosis without myelopathy; osteoarthritis, multiple joints; joint pain, multiple locations; and possible fibromyalgia. (Tr. 595-597.) Dr. Pahr continued Morabito on OxyContin, Percocet, Flexeril, and Neurontin. (Tr. 597.)
Morabito returned to Dr. Pahr on August 3, 2010. (Tr. 594, 611.) The nurse's notes from this visit indicate Morabito complained of pain in her left ankle, lower back, right arm, and thumb, rating it an 8 on a scale of 10. (Tr. 611.) Dr. Pahr indicated Morabito was "doing well," in that she "continues to have pain but she continues to make progress with the pain medications." (Tr. 594.) He noted she had "obvious deformities" in her elbow and ankle and stated "we can try to help her with the pain that radiates from her back into her legs." (Id.) The record reflects Dr. Pahr administered lumbar nerve root injections on August 13, August 20, and September 13, 2010. (Tr. 629, 627, 625.)
On October 15, 2010, Morabito presented to Dr. Pahr "doing somewhat better after her injections." (Tr. 593.) The nurse's notes from this visit indicate Morabito complained of pain in her left ankle and lower back, as well as morning stiffness "all over" and difficulty sleeping due to back pain. (Tr. 610.) Dr. Pahr diagnosed lumbar radiculitis, lumbar spondylosis without myelopathy, degenerative lumbar disk, and chronic pain syndrome. (Tr. 593.) He referred her for physical therapy, indicating "her back is arthritic but it is very nonspecific in the fact that I do believe that she can get past some of her symptoms if she would focus on recovery." (Id.)
Morabito returned to Dr. Pahr on December 10, 2010. (Tr. 592, 609.) The nurse's notes from this visit indicate Morabito complained of pain in her left leg, right arm, and lower back, as well as numbness and tingling on her "whole right side" and swelling of her left ankle. (Tr. 609.) Morabito indicated she had attended physical therapy twice per week and stated it "helps." (Id.) Dr. Pahr noted Morabito was "doing well" but "continues to have pain, making progress with pain, does not have significant changes in her health other than her pain escalates." (Tr. 592.) He continued her on her pain medications and instructed her to follow up with her family physician about her blood pressure, which was elevated. (Id.) The following month, Morabito returned to Dr. Bshara who started her on Avapro. (Tr. 849.)
On February 2, 2011, Morabito returned to Dr. Pahr. (Tr. 591.) She complained of pain in her right arm and left leg, as well as swelling in her left ankle. (Tr. 608.) Morabito indicated she had finished her physical therapy and was using a TENS unit. (Id.) Dr. Pahr noted Morabito was "doing well" but "continues to have pain." (Tr. 591.) He stated "the medicines help her a great deal" and "she has done her physical therapy and she does a home exercise program." (Id.) He continued her on her pain medications. (Id.)
Morabito returned to Dr. Pahr on March 29, 2011. (Tr. 590.) She again reported pain in her right elbow, left ankle, and lower back, rating it a 9 on a scale of 10. (Tr. 607.) Dr. Pahr noted Morabito "is doing well but some of the benefit from her injections is wearing off." (Tr. 590.) He indicated she had more pain across her back and into her legs, although he did note "her medicines help her a great deal." (Id.) Dr. Pahr continued Morabito's pain medications and advised further injections, stating "we could try to keep her functioning, keep her exercising, and hopefully get her back on the work force." (Id.) The record reflects Morabito underwent lumbar nerve root injections on May 20, May 27, and June 3, 2011. (Tr. 623, 621, 619.)
On June 27, 2011 (three days prior to her DLI), Morabito returned to Dr. Pahr for follow up regarding her chronic pain. (Tr. 589.) The nurse's notes from this visit indicate Morabito complained of pain in her left ankle, right arm, and lower back, which she rated an 8 on a scale of 10. (Tr. 606.) Morabito also reported numbness and tingling in her right arm and leg; radiating pain from her lower back to her right lower extremity; and morning stiffness in her back and ankle. (Id.) She indicated her "ankle [is] biggest area of pain." (Id.) Dr. Pahr noted as follows:
(Tr. 589.) Dr. Pahr diagnosed (1) ankle joint pain with arthritis secondary to trauma, (2) lumbar radiculitis, (3) lumbar spondylosis without myelopathy, (4) degenerative lumbar disk, and (5) chronic pain syndrome. (Id.) He continued her on pain medication regimen. (Id.)
On September 14, 2011, Dr. Pahr noted Morabito was "doing about the same." (Tr. 588.) He noted " I have tried to cut back [on the pain medication] as much as I can but with high pain levels and mostly everyday she has significant pain, it is quite difficult." (Id.) On December 7, 2011, Dr. Pahr noted Morabito's "joints are really affecting her. She has severe levels of pain most days she shows me in her knees and her feet all the traumatic surgeries and the arthritis she has developed and her back condition is still symptomatic as well." (Tr. 587.) On examination, Dr. Pahr noted swelling in her right elbow and lower extremities.
On April 26, 2013, Dr. Pahr completed a questionnaire regarding Morabito's symptoms and functional limitations . (Tr. 641-642.) He indicated a diagnosis of "joint pain multiple areas" and described the nature of her condition as "widespread." (Tr. 642.) Dr. Pahr noted Morabito was taking OxyContin, OxyCodone, Neurontin, and Flexeril. (Tr. 641) With regard to her functional limitations, Dr. Pahr indicated Morabito "would have difficulty sitting and walking at workplace for 8 hours." (Id.)
On January 3, 2014, Dr. Bshara completed a "Medical Assessment of Ability to Do Work-Related Activities (Physical)." (Tr. 712-716.) Dr. Bshara concluded Morabito could stand/walk for 1 hour without interruption and for 3 hours total, during the course of an 8 hour work day. (Tr. 712.) He described the medical findings supporting this assessment as follows: "severe tenderness and [degenerative joint disease] in lower back, left ankel [sic] & right thumb & elbow." (Id.) Dr. Bshara further opined Morabito could sit for 2 hours without interruption and for 5 hours total, in an 8 hour workday. (Tr. 713.) He identified the basis for this opinion as "tenderness in L-5 spine." (Id.) Dr. Bshara next concluded Morabito could lift and carry 3 pounds frequently and 5 pounds occasionally, based on "scarring & ankylosis in right elbow and right thumb." (Id.)
In terms of Morabito's postural limitations, Dr. Bshara found she could frequently balance; occasionally stoop and kneel; and never climb, crouch, or crawl. (Tr. 713.) He further found she could constantly reach and occasionally handle, finger, and push/pull. (Tr. 714.) Lastly, Dr. Bshara opined Morabito had no environmental limitations and no limitations in her ability to understand and carry out simple, detailed, and complex job instructions. (Tr. 714,716.)
Dr. Bshara stated Morabito's "history & physical" supported his opinion. (Tr. 715.) He indicated he had been treating her since July 2013 "with follow up from other physicians" and specifically stated his treatment had been sufficient to form a basis for his assessments. (Id.) Dr. Bshara found Morabito's conditions had existed since 2002 and opined she was not a malingerer. (Id.)
On June 17, 2013, state agency physician Esberdado Villanueva, M.D., reviewed Morabito's medical records and completed a Physical Residual Functional Capacity ("RFC") Assessment for the period between Morabito's August 2005 onset date and June 2011 date last insured. (Tr. 104-106.) Dr. Villanueva found Morabito could lift and/or carry 20 pounds occasionally and 10 pounds frequently; stand and/or walk for a total of about 6 hours in an 8 hour workday; and sit for a total of about 6 hours in an 8 hour workday. (Id.) He further concluded Morabito had unlimited push/pull capacity and an unlimited ability to balance. (Id.) He found Morabito could frequently stoop; occasionally kneel, crouch, crawl, and climb ramps/stairs; and never climb ladders, ropes, or scaffolds. (Id.) Dr. Villanueva opined Morabito should avoid all exposure to hazardous machinery and heights, but had no visual, communicative or manipulative limitations. (Id.)
On November 15, 2013, state agency physician Steve McKee, M.D., reviewed Morabito's medical records and completed a Physical RFC Assessment for the period between Morabito's August 2005 onset date and June 2011 date last insured. (Tr. 119-121.) He reached the same conclusions as Dr. Villanueva. (Id.)
During the May 14, 2015 hearing, Morabito testified to the following:
The VE found Morabito had past work as an MRI/x-ray technician (SVP 7, medium but performed as heavy). (Tr. 85, 303.) The ALJ then posed the following hypothetical question:
(Tr. 85, 86-87.) The ALJ also limited the hypothetical individual to no loud or very loud environments. (Tr. 89.)
The VE testified the hypothetical individual would not be able to perform Morabito's past work as an MRI/x-ray technician. (Tr. 89.) The VE further explained the hypothetical individual would be able to perform other representative jobs in the economy, such as mail clerk (SVP 2, light, unskilled), ticket taker (SVP 2, light, unskilled), and marker (SVP 2, light, unskilled). (Tr. 89-90.)
The ALJ then asked the following hypothetical questions:
(Tr. 91.)
The ALJ then asked "[i]f, you know, the use of the arm, if the need to change position, if pain interferes with attention, concentration, persistence, and pace, if that would cause an individual to be off task, at what point does that become job prohibitive?" (Tr. 92.) The VE testified anything above 15% off-task would be job prohibitive. (Id.)
Morabito's attorney then asked as follows:
A: No.
BY THE ADMINISTRATIVE LAW JUDGE:
(Tr. 93.)
In order to establish entitlement to DIB under the Act, a claimant must be insured at the time of disability and must prove an inability to engage "in substantial gainful activity by reason of any medically determinable physical or mental impairment," or combination of impairments, that 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." 20 C.F.R. §§ 404.130, 404.315 and 404.1505(a).1
A claimant is entitled to a POD only if: (1) she had a disability; (2) she was insured when she became disabled; and (3) she filed while she was disabled or within twelve months of the date the disability ended. 42 U.S.C. § 416(i)(2)(E); 20 C.F.R. § 404.320.
The Commissioner reaches a determination as to whether a claimant is disabled by way of a five-stage process. 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4). See also Ealy v. Comm'r of Soc. Sec., 594 F.3d 504, 512 (6
Here, Morabito was insured on her alleged disability onset date, August 18, 2005, and remained insured through June 30, 2011, her date last insured ("DLI.") (Tr. 41.) Therefore, in order to be entitled to POD and DIB, Morabito must establish a continuous twelve month period of disability commencing between these dates. Any discontinuity in the twelve month period precludes an entitlement to benefits. See Mullis v. Bowen, 861 F.2d 991, 994 (6th Cir. 1988); Henry v. Gardner, 381 F.2d 191, 195 (6th Cir. 1967).
The ALJ made the following findings of fact and conclusions of law:
(Tr. 41-49.)
"The Social Security Act authorizes narrow judicial review of the final decision of the Social Security Administration (SSA)." Reynolds v. Comm'r of Soc. Sec., 2011 WL 1228165 at * 2 (6
Review of the Commissioner's decision must be based on the record as a whole. Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). The findings of the Commissioner are not subject to reversal, however, merely because there exists in the record substantial evidence to support a different conclusion. Buxton v. Halter, 246 F.3d 762, 772-3 (6th Cir. 2001) (citing Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)); see also Her v. Comm'r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999)("Even if the evidence could also support another conclusion, the decision of the Administrative Law Judge must stand if the evidence could reasonably support the conclusion reached.") This is so because there is a "zone of choice" within which the Commissioner can act, without the fear of court interference. Mullen, 800 F.2d at 545 (citing Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984)).
In addition to considering whether the Commissioner's decision was supported by substantial evidence, the Court must determine whether proper legal standards were applied. Failure of the Commissioner to apply the correct legal standards as promulgated by the regulations is grounds for reversal. See, e.g.,White, 572 F.3d at 281 (6th Cir. 2009); Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2006) ("Even if supported by substantial evidence, however, a decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right.")
Finally, a district court cannot uphold an ALJ's decision, even if there "is enough evidence in the record to support the decision, [where] the reasons given by the trier of fact do not build an accurate and logical bridge between the evidence and the result." Fleischer v. Astrue, 774 F.Supp.2d 875, 877 (N.D. Ohio 2011) (quoting Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir.1996); accord Shrader v. Astrue, 2012 WL 5383120 (E.D. Mich. Nov. 1, 2012) ("If relevant evidence is not mentioned, the Court cannot determine if it was discounted or merely overlooked."); McHugh v. Astrue, 2011 WL 6130824 (S.D. Ohio Nov. 15, 2011); Gilliam v. Astrue, 2010 WL 2837260 (E.D. Tenn. July 19, 2010); Hook v. Astrue, 2010 WL 2929562 (N.D. Ohio July 9, 2010).
In her first assignment of error, Morabito argues the ALJ failed to articulate good reasons for discounting the opinions of treating physicians Drs. Parent, Arnold, and Bshara.
A treating source opinion must be given "controlling weight" if such opinion (1) "is well-supported by medically acceptable clinical and laboratory diagnostic techniques" and (2) "is not inconsistent with the other substantial evidence in [the] case record." Gayheart v. Comm'r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013); 20 C.F.R. § 404.1527(c)(2).
If the ALJ determines a treating source opinion is not entitled to controlling weight, "the ALJ must provide `good reasons' for discounting [the opinion], reasons that are `sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight.'" Rogers, 486 F.3d at 242 (quoting Soc. Sec. Ruling 96-2p, 1996 SSR LEXIS 9 at * 5). See also Gayheart, 710 F.3d at 376. The purpose of this requirement is two-fold. First, a sufficiently clear explanation "`let[s] claimants understand the disposition of their cases,' particularly where a claimant knows that his physician has deemed him disabled and therefore `might be bewildered when told by an administrative bureaucracy that she is not, unless some reason for the agency's decision is supplied.'" Id. (quoting Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004)). Second, the explanation "ensures that the ALJ applies the treating physician rule and permits meaningful appellate review of the ALJ's application of the rule." Wilson, 378 F.3d at 544. Because of the significance of this requirement, the Sixth Circuit has held that the failure to articulate "good reasons" for discounting a treating physician's opinion "denotes a lack of substantial evidence, even where the conclusion of the ALJ may be justified based upon the record." Rogers, 486 F.3d at 243.
Nevertheless, the opinion of a treating physician must be based on sufficient medical data, and upon detailed clinical and diagnostic test evidence. See Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985); Bogle v. Sullivan, 998 F.2d 342, 347-48 (6th Cir. 1993); Blakley, 581 F.3d at 406. The ALJ is not bound by conclusory statements of a treating physician that a claimant is disabled, but may reject such determinations when good reasons are identified for not accepting them. King v. Heckler, 742 F.2d 968, 973 (6th Cir. 1984); Duncan v. Secretary of Health & Human Svcs., 801 F.2d 847, 855 (6th Cir. 1986); Garner v. Heckler, 745 F.2d 383, 391 (6th Cir. 1984). According to 20 C.F.R. § 404.1527(d)(1), the Social Security Commissioner makes the determination whether a claimant meets the statutory definition of disability. This necessarily includes a review of all the medical findings and other evidence that support a medical source's statement that one is disabled. "A statement by a medical source that you are `disabled' or `unable to work' does not mean that we will determine that you are disabled." Id. It is the Commissioner who must make the final decision on the ultimate issue of disability. Duncan, 801 F.2d at 855; Harris, 756 F.2d at 435; Watkins v. Schweiker, 667 F.2d 954, 958 n. 1 (11th Cir. 1982).
Morabito argues the ALJ erred in assigning "little persuasive effect" to Dr. Bshara's June 2014 opinion. (Doc. No. 12 at 13.) She maintains remand is required because the ALJ rejected Dr. Bshara's opinion on the grounds "he does not appear to have ever treated with the claimant prior to the date last insured of June 30, 2011" when, in fact, the record reflects Dr. Bshara began treating Morabito in September 2008. (Id.) Moreover, Morabito asserts that "during the relevant period, [Dr. Bshara] treated her for conditions including chronic pain, uncontrolled hypertension due to pain, and edema in her hands and bilateral lower extremities, and he prescribed opioid medications due to the severity of her pain." (Id. at 14.) Because the ALJ based her rejection of Dr. Bshara's opinion on the erroneous conclusion that he failed to treat Morabito during the relevant time period, Morabito asserts the ALJ failed to provide "good reasons" and this matter should be remanded for further consideration of his opinion.
The Commissioner acknowledges the ALJ incorrectly stated Dr. Bshara had not examined Morabito prior to her DLI. (Doc. No. 14 at 11.) She maintains, however, "the ALJ's underlying rationale remained sufficiently sound, even if the statement regards treatment dates were not fully accurate." (Id.) Specifically, the Commissioner asserts that, when Dr. Bshara indicated in his opinion that he had treated Morabito since July 2013, he "must have meant that he did not treat Plaintiff for her allegedly disabling conditions prior to July 2013." (Id. at 12.) The Commissioner thus maintains "the ALJ's apparent reliance on Dr. Bshara's statement that he had begun to treat Plaintiff after the date last insured constituted a sufficient reason for giving his opinion less weight." (Id.)
As discussed supra, the record reflects Morabito began treatment with Dr. Bshara in September 2008. (Tr. 860.) Treatment notes indicate Dr. Bshara treated Morabito for a variety of issues, including elevated blood pressure, asthma, edema, and pain. (Tr. 860, 858, 857, 852, 850.) In January 2014, Dr. Bshara submitted an opinion regarding Morabito's physical functional limitations. (Tr. 712-716.) He concluded Morabito could stand/walk for 1 hour without interruption and for 3 hours total, in an 8 hour work day. (Tr. 712.) He described the medical findings supporting this assessment as follows: "severe tenderness and [degenerative joint disease] in lower back, left ankel [sic] & right thumb & elbow." (Id.) Dr. Bshara also opined Morabito could sit for 2 hours without interruption and for 5 hours total, in an 8 hour workday. (Tr. 713.) He identified the basis for this opinion as "tenderness in L-5 spine." (Id.) Dr. Bshara next concluded Morabito could (1) carry 3 pounds frequently and 5 pounds occasionally, based on "scarring & ankylosis in right elbow and right thumb;" (2) frequently balance; (3) occasionally stoop and kneel; (4) never climb, crouch, or crawl; (5) constantly reach; and (6) occasionally handle, finger, and push/pull. (Tr. 713-714.)
Dr. Bshara stated Morabito's "history & physical" supported his opinion. (Tr. 715.) He indicated he had been treating her since July 2013 "with follow up from other physicians" and specifically stated his treatment had been sufficient to form a basis for his assessments. (Id.) Dr. Bshara found Morabito's conditions had existed since 2002 and opined she was not a malingerer. (Id.)
The ALJ weighed Dr. Bshara's opinion as follows:
(Tr. 47.)
The Court finds the ALJ failed to articulate "good reasons" for rejecting Dr. Bshara's opinion. As Morabito correctly notes, the ALJ's sole reason for discounting Dr. Bshara's opinion is simply inaccurate. Specifically, while the ALJ was under the impression Dr. Bshara did not treat Morabito prior to her June 30, 2011 DLI, the record reflects Morabito began treatment with Dr. Bshara in September 2008 and saw him on at least eight (8) occasions between that date and June 30, 2011. (Tr. 849, 850, 852, 855, 856, 857, 858, 860.) Moreover, Dr. Bshara's treatment notes reflect he was well aware of Morabito's chronic pain. In September 2008, he noted the presence of scars on Morabito's right elbow and left foot and ankle and indicated she had been prescribed OxyContin and OxyCodone by pain management. (Tr. 860.) In July 2009, Dr. Bshara noted swelling in both of Morabito's lower extremities and indicated she had had left ankle surgery. (Tr. 857.) On June 12, 2010, Dr. Bshara treated Morabito for "multiple pains and aches," including pain in her left leg, right elbow, and right thumb. (Tr. 852.) He noted she "has been anxious and in pain." (Id.) The record reflects he prescribed Percocet until she could establish care with a pain management specialist. (Id.) On June 24, 2010, Morabito returned to Dr. Bshara with complaints of persistent and chronic pain her right upper extremity. (Tr. 850.) Thus, the ALJ's sole reason for discounting Dr. Bshara's opinion was based on the false premise that he had not treated her during the relevant time period, and does not constitute a "good reason" for purposes of the treating physician rule.
The Commissioner emphasizes that Dr. Bshara indicated in his opinion he had treated Morabito since July 2013, and argues "Dr. Bshara must have meant that he did not treat Plaintiff for her allegedly disabling conditions" prior to that date. (Doc. No. 14 at 12.) The Court rejects this argument. As set forth above, Dr. Bshara's treatment notes reflect he was cognizant of Morabito's chronic pain and did, in fact, treat her for pain on several occasions prior to July 2011. (Tr. 852, 850.) Given this treatment history, the Court is not persuaded Dr. Bshara's opinion should be interpreted as meaning he did not treat Morabito for her allegedly disabling conditions prior to July 2013. To the contrary, this notation could just as easily have been the product of human error.
Moreover, the ALJ did not provide this as a reason for discounting Dr. Bshara's opinion. Rather, the ALJ rejected this opinion on the grounds Dr. Bshara "does not appear to have ever treated with the claimant prior to the date last insured of June 30, 2011." (Tr. 47) (emphasis added). It is well-established the Commissioner cannot cure a deficient opinion by offering explanations never offered by the ALJ. As courts within this District have noted, "arguments [crafted by defense counsel] are of no consequence, as it is the opinion given by an administrative agency rather than counsel's `post hoc rationale' that is under the Court's consideration." See, e.g., Blackburn v. Colvin, 2013 WL 3967282 at * 8 (N.D. Ohio July 31, 2013); Cashin v. Colvin, 2013 WL 3791439 at * 6 (N.D. Ohio July 18, 2013); Jaworski v. Astrue, 2012 WL 253320 at * 5 (N.D. Ohio Jan. 26, 2012). Here, the ALJ did not state that she interpreted Dr. Bshara's opinion to mean he did not begin treating Morabito for her allegedly disabling conditions until July 2013. To the contrary, the ALJ explicitly (and incorrectly) stated Dr. Bshara had never treated Morabito prior to her June 2011 DLI.
The Commissioner next argues "this Court should not evaluate Dr. Bshara's opinion under the special regulations applicable only to medical opinions from treating sources." (Doc. No. 14 at 12.) She notes "other physicians" were treating Morabito for her chronic pain, and maintains "Dr. Bshara's pre-2013 examinations were not consistent with the type of treatment or evaluation required for Plaintiff's orthopedic impairments." (Id.) The Commissioner argues the regulations imply a treating source "should have treated the claimant for the impairment in question." (Id. at 13.) Because pain management specialists were primarily responsible for treatment of Morabito's chronic leg and right upper extremity pain, the Commissioner argues "Dr. Bshara's pre-2013 treatment of Plaintiff's orthopedic conditions . . . . did not provide him with a longitudinal view of those conditions from 2005 through the date last insured in 2011." (Id.)
The Court rejects this argument. As noted above, while Dr. Bshara was not a pain management specialist, the record reflects he examined Morabito on eight (8) occasions prior to her June 2011 DLI and was fully aware of her prior motor vehicle accident, previous surgeries on her ankle and right arm, and chronic pain complaints. Several of Dr. Bshara's treatment notes expressly document pain in Morabito's left leg, right upper extremity and right thumb, and reflect that he prescribed her narcotic pain medication. (Tr. 852, 850.) Thus, the Court does not agree with the Commissioner that Dr. Bshara lacked a longitudinal view of Morabito's orthopedic conditions during the relevant time period.
Moreover, while specialization (or the lack thereof) is a factor an ALJ can consider in determining the weight to accord a treating physician opinion, the ALJ in the instant case did not cite Dr. Bshara's lack of specialization as a basis for discounting his opinion. Nor did the ALJ state Dr. Bshara's opinion was entitled to less weight because he was not sufficiently familiar with Morabito's chronic pain conditions or because those conditions were beyond Dr. Bshara's area of expertise. Defense counsel's post hoc rationale cannot provide "good reasons" for rejecting a treating physician opinion. See Schultz v. Comm'r of Soc. Sec., 2016 WL 4577049 at * 6 (E. D. Mich. Aug. 10, 2016) ("But Defendant's post-hoc rationalization of the ALJ's assessment of Drs. Kazmers and Rao's opinions does not cure the ALJ's failure to provide good reasons."); Johnson v. Comm'r of Soc. Sec., 193 F.Supp.3d 836, 847 (N.D. Ohio 2016) ("[T]he Commissioner's post hoc rationalization for discounting Dr. Smarty's opinion is contrary to the law of Sixth Circuit. While. . . there are portions of Dr. Smarty's treatment notes showing that Plaintiff's condition had improved and was, in some respects, normal . . ., the ALJ did not cite this evidence as a basis for rejecting Dr. Smarty's opinion. Rather, this explanation appears for the first time in the briefing now before the Court. This Court `may not accept appellate counsel's post hoc rationalizations for agency action.'") (quoting Berryhill v. Shalala, 4 F.3d 993, 1993 WL 361792 (6
The Commissioner next maintains remand is not required because it is not clear whether Dr. Bshara's opinion that Morabito's "conditions" have existed since 2002, relates to the duration of her underlying medical conditions or to the duration of her functional limitations. (Doc. No. 14 at 13.) She asserts "if the question referred to the underlying medical conditions only, then the opinion's functional limitations were not endorsed as applicable to the period prior to the date last insured." (Id.) Once again, however, there is no indication the ALJ interpreted Dr. Bshara's opinion in such a fashion. The ALJ did not articulate this as a basis for rejecting Dr. Bshara's opinion and the Court cannot engage in any of the various post hoc rationalizations suggested by the Commissioner. This argument is, therefore, without merit.
Finally, the Commissioner argues Dr. Bshara's opinion was "so patently deficient that the Commissioner could not possibly credit it." Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 547 (6
Id. at 547. See also Cole v. Astrue, 661 F.3d 931, 940 (6th Cir. 2011); Nelson v. Comm'r of Soc. Sec., 195 Fed. Appx. 462, 470-471 (6th Cir. 2006); Hall v. Comm'r of Soc. Sec., 148 Fed. Appx. 456, 464 (6th Cir. 2005). In the present case, the Commissioner argues Dr. Bshara's opinion is patently deficient because "the assertion that Plaintiff could not lift more than 5 pounds occasionally or 3 pounds frequently since 2002, and could stand/walk only three hours in a workday since then, is contradicted by the fact that Plaintiff was working full-time (including overtime) as an x-ray technician through August 2005." (Doc. No. 14 at 13-14.)
The Commissioner is correct that Morabito worked full time up until her onset date of August 18, 2005, when she injured the tendon in her right arm moving a patient out of an MRI machine. However, the record reflects that, shortly after her 2005 injury, Morabito stopped working and consistently complained of pain in her right arm, lower back, and left ankle, both to her pain management physicians and to Dr. Bshara.
Accordingly, it is recommended the Court find the ALJ failed to provide "good reasons" for giving Dr. Bshara's opinion less than controlling weight. It is further recommended that this matter be remanded to afford the ALJ the opportunity to sufficiently evaluate and explain the weight ascribed to the limitations assessed by Dr. Bshara.
Morabito also argues the ALJ failed to articulate "good reasons" for rejecting the opinions of treating physicians Drs. Parent and Arnold regarding limitations relating to Morabito's right arm. (Doc. No. 12 at 11-13.) Indeed, Morabito argues the ALJ failed to acknowledge or discuss either of these doctors' opinions at any point in the decision. (Id.) She maintains the ALJ's failure to address these opinions is not harmless error because the restrictions assessed by both Dr. Parent and Dr. Arnold would render her unemployable, pursuant to the VE's hearing testimony. (Id.)
As noted supra, on March 13, 2006, pain management physician Dr. Parent stated in a treatment note that "[w]e will be able to get [Morabito] to work right now with a 10-pound lifting restriction." (Tr. 363.) Several months later, in June 2006, Dr. Arnold stated in a treatment note that "Christine's arm still hurts and has marked decrease in function" and "she also has loss of use of her hand." (Tr. 499.) The ALJ did not expressly address either of these specific treatment notes in the decision.
The Commissioner maintains Dr. Parent's March 13, 2006 opinion "was not intended as a permanent restriction" and "did not address the question before the ALJ— that is, whether Plaintiff was disabled until and through June 30, 2011." (Doc. No. 14 at 8.) She further argues, summarily, that Dr. Parent's opinion is deficient because "the imposition of a long-term 10-pound lifting limit predicated on an impairment affecting only one upper extremity is unsupportable." (Id. at 9.) With respect to Dr. Arnold, the Commissioner asserts his May 2006 statement that Morabito had a marked decrease in function of her right arm and loss of use of her hand dopes not constitute a "medical opinion" because it was a recitation of Morabito's own subjective complaints rather than Dr. Arnold's own conclusions. (Id.) She also argues his statement is inconsistent with Dr. Arnold's own treatment notes and, further, that it lacks specificity. (Id. at 10.)
The Court finds the ALJ should evaluate Dr. Parent's March 13, 2006 opinion on remand. As noted above, Morabito presented to Dr. Parent on seven (7) occasions between August 2005 and May 2006 for evaluation of her right elbow pain. (Tr. 369, 368, 366, 365, 364, 363, 362.) After an MRI showed "severe tendinitis," Dr. Parent performed surgery on Morabito's right elbow in December 2005. (Tr. 369, 372.) In March 2006, Dr. Parent concluded Morabito needed continued physical therapy and indicated she could return to work "with a 10-pound lifting restriction." (Tr. 363.) Two months later, Dr. Parent indicated Morabito "certainly has an ongoing problem with her elbow, and I think she is going to have long-term problems especially with the amount of arthritis that she has developed from previous problems and her operative issues." (Tr. 362.)
The ALJ does not discuss Dr. Parent's opinion that Morabito should be restricted to lifting 10 pounds at any point in the decision.
The Commissioner argues, summarily, that Dr. Parent's opinion is patently deficient because "the imposition of a long-term 10-pound lifting limit predicated on an impairment affecting only one upper extremity is unsupportable." (Doc. No. 14 at 9.) The Court rejects this argument. Dr. Parent treated Morabito for her right elbow pain on multiple occasions over a nine month period, evaluated MRI results regarding her condition, performed her right elbow surgery, and found she would continue to have "long term problems" with her elbow. The ALJ should acknowledge and evaluate Dr. Parent's March 2006 opinion on remand.
The Court further recommends that, on remand, the ALJ should evaluate Dr. Arnold's June 2006 opinion that "Christine's arm still hurts and has marked decrease in function" and "she also has loss of use of her hand." (Tr. 499.) The ALJ does not discuss Dr. Arnold's treatment of Morabito at any point in the decision, despite the fact he examined her for her chronic pain complaints on at least fourteen (14) occasions between August 2005 and June 2006. (Tr. 499-531.) The Commissioner argues the ALJ need not have discussed Dr. Arnold's June 2006 opinion because it was merely a recitation of Morabito's own subjective complaints and, therefore, not a proper medical opinion under 20 CFR § 404.1527(a)(2). See e.g., Francis v. Comm'r of Soc. Sec., 414 Fed. Appx. 802,804 (6
Dr. Arnold's June 2006 treatment note is divided into separate sections entitled "Subjective," "Objective," "Assessment," "Plan," "Medications," and "Follow Up." (Tr. 499.) Dr. Arnold's notations that Morabito had "marked decrease in function" and "loss of use of her hand" are not set forth in the section of the treatment note marked "Subjective" but rather are included as part of the section marked "Plan," which suggests they reflect Dr. Arnold's own conclusions and judgment. (Id.) Moreover, Dr. Arnold's treatment note does not simply restate the medical evidence underlying Morabito's condition but, rather, discusses her symptoms and offers diagnoses as well as an assessment of her right arm/hand functional capacity.
While the Commissioner proffers several reasons for discounting Dr. Arnold's opinion, the ALJ did not articulate any such reasons in the decision. Indeed, as noted above, the ALJ did not acknowledge either Dr. Arnold's opinion or his lengthy treatment of Morabito at any point in the discussion of the medical and opinion evidence. The ALJ should acknowledge and evaluate Dr. Arnold's opinion on remand.
In her second assignment of error, Morabito argues "[t]he ALJ erred in determining the RFC finding by: (1) failing to consider and evaluate all of the impairments suffered by Plaintiff; (2) improperly substituting her own opinion for those of treating physicians; and (3) failing to consider the types, dosages and side effects of her medications." (Doc. No. 12 at 14.) The Commissioner argues the RFC is supported by substantial evidence in the record. (Doc. No. 14.)
The RFC determination sets out an individual's work-related abilities despite his or her limitations. See 20 C.F.R. § 416.945(a). A claimant's RFC is not a medical opinion, but an administrative determination reserved to the Commissioner. See 20 C.F.R.§ 416.927(d)(2). An ALJ "will not give any special significance to the source of an opinion on issues reserved to the Commissioner." See 20 C.F.R.§ 416.927(d)(3). As such, the ALJ bears the responsibility for assessing a claimant's RFC based on all of the relevant evidence, 20 C.F.R. § 416.946(C), and must consider all of a claimant's medically determinable impairments, both individually and in combination,
"In rendering his RFC decision, the ALJ must give some indication of the evidence upon which he is relying, and he may not ignore evidence that does not support his decision, especially when that evidence, if accepted, would change his analysis." Fleischer, 774 F. Supp.2d at 880 (citing Bryan v. Comm'r of Soc. Sec., 383 Fed. Appx. 140, 148 (3d Cir. 2010) ("The ALJ has an obligation to `consider all evidence before him' when he `mak[es] a residual functional capacity determination,' and must also `mention or refute [. . .] contradictory, objective medical evidence' presented to him.")). See also SSR 96-8p, at *7, 1996 SSR LEXIS 5, *20 ("The RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted.")). While the RFC is for the ALJ to determine, however, it is well established that the claimant bears the burden of establishing the impairments that determine his RFC. See Her v. Comm'r of Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999).
Here, at step two, the ALJ found Morabito suffered from the severe impairments of osteomyelitis of the right thumb, right carpal tunnel syndrome, tear of the right extensor tendon, chronic pain syndrome, neuropathic pain, sciatic distribution pain, degenerative disc disease of the lumbar spine, osteoarthritis of the left ankle, and lateral epicondylar release of the right elbow. (Tr. 43.) After determining Morabito did not meet or equal the requirements of a Listing, the ALJ continued at step four to discuss the medical evidence regarding Morabito's right upper extremity, right elbow, lower back, and right ankle. (Tr. 43-47.) The ALJ gave "significant weight" to the opinions of state agency physicians Drs. Villanueva and McKee that Morabito could perform a reduced range of light work. (Tr. 47.) She then gave "limited weight" to the opinion of Dr. Pahr that Morabito would have difficulty sitting and walking for a total of eight hours during a typical work day, and "little persuasive effect" to Dr. Bshara's January 2014 opinion regarding Morabito's physical functional capacity. (Id.)
The ALJ formulated the following RFC:
(Tr. 45.)
As the undersigned has recommended this matter be remanded for further consideration of the opinions of treating physicians Drs. Bshara, Parent, and Arnold, it is possible the ALJ's RFC determination may change on remand. Thus, the Court will not address all of the parties' arguments regarding the alleged deficiencies in the ALJ's discussion of the medical evidence at step four. However, the Court does find ALJ should accord particular consideration to the following issues on remand.
As Morabito correctly notes, while Morabito's left ankle is at issue in this matter and the ALJ found left ankle osteoarthritis to be a severe impairment, the ALJ refers only to Morabito's right ankle in the decision. (Tr. 43, 47.) Specifically, the ALJ's entire discussion regarding Morabito's ankle condition is as follows:
(Tr. 47.)
At best, it is unclear whether the ALJ considered the medical evidence regarding Morabito's left ankle pain. At one point in the above paragraph, she refers to Morabito's right ankle, while later in the same paragraph she references "the arthritis in [both] her ankles." (Id.) The ALJ does not discuss any of the medical records relating to Morabito's left ankle pain and swelling and, further, fails to cite to any exhibits in the record. Thus, the Court cannot discern whether the ALJ was aware of and fully considered the medical evidence regarding Morabito's left ankle condition.
This is problematic because, as set forth supra, the record reflects Morabito consistently complained of pain and swelling in her left ankle during the relevant time period. For example, in July 2010, Dr. Pahr noted Morabito had "a problem with her left ankle with a fusion procedure." (Tr. 595.) The following month, Morabito reported pain in her left ankle and Dr. Pahr noted she had "obvious deformities" in her ankle. (Tr. 611, 594.) Morabito again complained of pain and/or swelling in her left ankle in October 2010, December 2010, February 2011, March 2011, and June 2011. (Tr. 610, 609, 608, 607, 606.) Indeed, on June 27, 2011 (three days before her DLI), Morabito complained of pain in her left ankle and indicated her "ankle [is] biggest area of pain." (Tr. 606.) On that date, Dr. Pahr noted Morabito had "trauma in her ankle" and diagnosed "ankle joint pain with arthritis secondary to trauma." (Tr. 589.) In April 2013, Dr. Pahr opined Morabito would have difficulty walking for eight hours. (Tr. 641.) In January 2014, Dr. Bshara concluded Morabito could stand/walk for no more than 1 hour without interruption and 3 hours total based on her "severe tenderness and [degenerative joint disease] in lower back,
The ALJ does not recite or evaluate any of the above medical evidence in the decision, nor (as discussed supra) does she discuss Dr. Bshara's January 2014 opinion. That in combination with the ALJ's puzzling reference to Morabito's "right ankle" makes it unclear whether she was fully aware of and considered the medical evidence regarding Morabito's left ankle condition. The ALJ should address the medical evidence regarding this issue on remand.
Morabito also argues the ALJ misconstrued the evidence regarding her right arm and hand. (Doc. No. 12 at 15.) She argues the ALJ improperly relied on a nerve conduction study performed in 2001 (four years prior to Morabito's onset date) as indicative of only minor functional limitations in Morabito's right arm, and ignored medical evidence that she suffered from numbness, tingling, and pain in her right arm and hand "due to the significant amount of arthritis she developed after tearing the tendon in her right elbow in August 2005 and the subsequent surgery." (Id.)
The ALJ discussed the medical evidence regarding Morabito's right upper extremity as follows:
(Tr. 46.)
In formulating the RFC's limitations relating to Morabito's right upper extremity, the ALJ relied principally on a 2001 nerve conduction study showing mild carpal tunnel syndrome and the conclusion that Morabito had "recovered well" from her right elbow surgery. (Id.) As Morabito correctly notes, however, the 2001 nerve conduction study was conducted four years prior to Morabito's right tendon injury and surgery. The record reflects that, subsequent to her surgery, Morabito complained of pain, numbness/tingling, and/or swelling in her right arm/elbow. For example, in June 2010, Morabito complained of persistent and chronic pain in her right upper extremity. (Tr. 850.) In July 2010, Dr. Pahr noted Morabito had a "gross distortion of her right elbow by observation" and "joint problems with the right elbow she cannot fully extend [and] the right thumb is locked in position." (Tr. 595.) In August 2010, Morabito complained of pain, numbness and tingling in her right arm and hand, and Dr. Pahr noted "obvious deformities" in her elbow. (Tr. 594, 611.) In December 2010, Morabito complained of pain in right arm and numbness/tingling in her right side. (Tr. 609.) She again complained of right arm/elbow pain in February, March, and June 2011. (Tr. 608, 607, 606.) In June 2011, she also complained of numbness and tingling in right arm, and Dr. Pahr noted Morabito had trauma in her elbow and deformity in her thumb. (Tr. 606, 589.)
Citing a January 2006 treatment note from Dr. Parent, the ALJ states "by most of the objective accounts in the record, the claimant recovered well from [her right elbow surgery] and had not developed subsequent complications prior to June 30, 2011." (Tr. 46.) The ALJ, however, does not acknowledge or discuss the medical evidence noted above. Moreover, in the January 2006 treatment note relied on by the ALJ, Dr. Parent in fact states Morabito "lacks some elbow flexion and some elbow extension" and refers her to physical therapy. (Tr. 364.) In March 2006, Dr. Parent notes Morabito "still has mild to moderate pain" and "she is going to need continued therapy with strengthening of the right elbow." (Tr. 363.) By May 2006, Dr. Parent states Morabito "certainly has an ongoing problem with her elbow, that I think she is going to have long-term problems especially with the amount of arthritis that she has developed from previous problems and her operative issues." (Tr. 362.) Again, the ALJ does not acknowledge or address these post-surgery treatment notes regarding Morabito's right elbow condition.
For all the reasons set forth above, it is recommended that the ALJ should address the medical evidence regarding Morabito's left ankle and right upper extremity condition on remand.
For the foregoing reasons, the Magistrate Judge recommends that the Commissioner's final decision be VACATED and the case REMANDED for further consideration consistent with this decision.
