TIMOTHY S. BLACK, District Judge.
This is a Social Security disability benefits appeal. At issue is whether the administrative law judge ("ALJ") erred in finding the Plaintiff "not disabled" and therefore unentitled to disability insurance benefits ("DIB"). (See Administrative Transcript ("Page ID") (Page ID 43-61) (ALJ's decision)).
In February 2009, Plaintiff applied for DIB alleging disability as of January 5, 2004. (Page ID 51, 103-4, 181-84). Plaintiff alleged disability due to right-sided numbness and weakness, reportedly due to a cerebrovascular accident
The ALJ's "Findings," which represent the rationale of her decision, were as follows:
In sum, the ALJ concluded that Plaintiff was not under a disability as defined by the Social Security Regulations ("SSR") and was therefore not entitled to DIB. (Page ID 55).
The Court's inquiry on appeal is to determine whether the ALJ's non-disability finding is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). In performing this review, the Court considers the record as a whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir.1978). If substantial evidence supports the ALJ's denial of benefits, that finding must be affirmed, even if substantial evidence also exists in the record upon which the ALJ could have found plaintiff disabled. As the Sixth Circuit has explained:
Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir.1994).
Plaintiff bears the ultimate burden to prove by sufficient evidence that she is entitled to disability benefits. 20 C.F.R. § 404.1512(a). That is, she must present sufficient evidence to show that, during the relevant time period, she suffered an impairment, or combination of impairments, expected to last at least twelve months, that left her unable to perform any job in the national economy. 42 U.S.C. § 423(d)(1)(A).
The Secretary's regulations provide a step-by-step review process for determining disability. 20 C.F.R. § 404.1520. If at any step in the review the Secretary makes a decision that the Plaintiff is or is not disabled, review of the claim ceases. 20 C.F.R. § 404.1520(a). See also Mowery v. Heckler, 771 F.2d 966 (6th Cir.1985). The sequential consideration of a disability claim proceeds as follows:
Mowery, 771 F.2d at 970.
Here, the record reflects that:
Barry Fisher, M.D., has been Plaintiff's primary care physician at all relevant times. Plaintiff has a long history of headaches and right hemiparesis reported and observed by Dr. Fisher.
In March 2009, Dr. Fisher referred Plaintiff to a consult for the selection and fitting of a new right leg brace due to her increasing lower extremity problems. (Page ID 605). The notes of the consult reflect that Plaintiff was unable to dorsiflex her right ankle,
On July 20, 2009, Plaintiff underwent a physical therapy assessment at the request of Dr. Fisher. (Page ID 582). The physical therapist recorded that Plaintiff's gait was prolonged, and significant for a minimal Trendelenberg pattern on the right,
Plaintiff's physical therapy plan involved a four-week home exercise program and outpatient monitoring. (Page ID 583, 586-89). Monitoring notes reflect ongoing problems with gait stability. (Page ID 588-89). By September 20, 2009, there had been some increase in Plaintiff's coordination and right lower extremity strength, but her therapy goals remained unmet. (Page ID 586).
On January 5, 2011, Plaintiff consulted with podiatric surgeon Eric Polansky, M.D., regarding her foot problems. (Page ID 608-10). Dr. Polansky noted Plaintiff's right clubfoot,
In an April 3, 2009 note to Social Security, Dr. Fisher found that Plaintiff had deformities in her right extremities due to remote neurological problems. (Page ID 435). Dr. Fisher recorded Plaintiff's complaints of significant right side difficulties, but asked for evaluations by specialists to assess her ability to work. (Id.)
On May 4, 2009, state agency consulting physician Avairs Vitols, M.D., performed a physical examination of Plaintiff. (Page ID 554-61). Dr. Vitols noted Plaintiff's gait was slightly antalgic and had been altered to compensate for her right foot drop.
(Page ID 556).
Following Dr. Vitols' examination, state agency consultant Ronald Cantor, M.D., reviewed the record and drafted an opinion regarding Plaintiff's physical functional limitations. (Page ID 563-70). Dr. Cantor concluded that Plaintiff was capable of performing light work, could not use right foot controls, could only occasionally balance, should not be exposed to hazards, and could only occasionally perform handling and fingering with her right hand. (Page ID 564-67). Dr. Cantor set aside Dr. Vitols' opinions regarding Plaintiff's limited ability to stand or walk asserting that those statements were "reserved for the commissioner" and stated that during Dr. Vitols' examination Plaintiff "was noted to be able to ambulate and move about." (Page ID 569). On September 13, 2009, state agency reviewer, Jerry McCloud, M.D., affirmed Dr. Cantor's assessment. (Page ID 585).
Plaintiff argues that the ALJ erred at step three of the sequential disability analysis by concluding there was not sufficient evidence in the record to show that Plaintiff's physical impairments met 11.04(B) of the Listing of Impairments.
Listing 11.04(B) states:
The ALJ evaluated Plaintiff's condition under section 11.00 of the Listing of Impairments and determined in pertinent part that "... the record does not show the requisite sustained disturbance of gross and dexterous movements or of gait and station, ... disorganization of motor function, ... or fatigue of muscle function as set forth in any listing of this section." (Page ID 55).
The Court finds that the ALJ's determination at step three of her analysis is not supported by substantial evidence because Plaintiff met the requirements of 11.04(B).
First, there is not substantial evidence to support the ALJ's conclusion that Plaintiff failed to show significant and persistent disorganization of motor function in her right leg and foot. The consistent records of multiple medical providers over an extended period of time documented Plaintiff's complete inability to dorsiflex her right ankle and diagnosed Plaintiff with foot drop. On March 9, 2009, Plaintiff presented to Kevin Schraeder, D.P.M. for an evaluation of her right-sided complaints. Dr. Schraeder found Plaintiff had decreased sensation and atrophy of the right lower extremity, especially in the gastroconemis and further found Plaintiff had an inability to dorsiflex her right ankle consistent with a foot drop. (Page ID 605). On April 3, 2009, Plaintiff's family physician of five years, Dr. Fisher, noted that Plaintiff has deformities in her right extremities due to remote neurological problems. (Page ID 435). On May 4, 2009, a physical examination of Plaintiff by Dr. Vitols showed Plaintiff had no active ability to dorsiflex or move her right ankle or great toes. (Page ID 556). Dr. Vitols further noted that Plaintiff's right calf had atrophied and the circumference of Plaintiff's left calve was 45 inches, while the circumference of the right calve was only 33 inches. (Page ID 559). On May 14, 2009, Dr. Cantor completed a physical capacities assessment and found that Plaintiff "could never operate foot controls on the right" and noted atrophy in the right calf. (Page ID 565). On July 20, 2009,
Second, there is not substantial evidence to support the ALJ's conclusion that Plaintiff failed to show significant and persistent disorganization of motor function of her right arm and hand. Again, the consistent records of multiple medical providers documented Plaintiff's significant impairment. On May 4, 2009, Dr. Vitols examined Plaintiff and reported that "the right arm reveals a 4/5 weakness in the upper and forearm musculature," and she "showed significant weakness of the wrist and in grip and pinch strength." (Page ID 556). On May 14, 2009, Dr. Cantor completed a physical capacities assessment and found, consistent with Dr. Vitols' conclusions, that Plaintiff's "grasp and manipulation were reduced on the right side." (Page ID 565).
Third, there is not substantial evidence to support the ALJ's conclusion that Plaintiff failed to show that her impairments resulted in sustained distribution of gross and dexterous movements, or gait and station. As to Plaintiff's gait and station impairment, the following medical evidence appears in the record:
Plaintiff "stands with forward head posture, rounded shoulders, forward flexed at the waist and wide base of support. (Page ID 583).
As to Plaintiff's sustained distribution of gross and dexterous movements in her right arm and hand, the following medical evidence appears in the record:
The ALJ gave "little weight" to the consistent and overwhelming medical evidence summarized above for the following four main reasons: (1) Plaintiff did not use any ambulatory aids and was able to ambulate without a brace; (2) Plaintiff reported increased right leg strength and improved balance over time; (3) Plaintiff's failure to mention fingering or handling difficulties as reasons for leaving her job as a bank teller; and (4) Plaintiff's description of daily activities were inconsistent with medical findings and Listing 11.04(B) listing. (Page ID 57-59). These points will be addressed below, seriatim.
The ALJ found it significant that Plaintiff could ambulate without a leg brace and did not use any ambulatory aids. (Page ID 57, 724). The ability to ambulate without aids, however, in no way detracts from the consistent medical evidence that Plaintiff suffered a significant and persistent disorganization of motor function of her right foot that resulted in sustained distribution of gross movements and gait. Section 11.04(B) does not require that a claimant prove she is unable to ambulate without a brace or other aid. Indeed, 11.04(B) does not mention ambulatory aids.
The ALJ underscores the fact that Plaintiff reported to her physical therapist, Ms. Clagg, that she felt "increased" right leg strength and "improved" balance over the course of her physical therapy. (Page ID 589). The ALJ ignores, however, that Ms. Clagg never changed her finding that Plaintiff's gait was prolonged and significant for a minimal trendelenberg pattern on the right side and Plaintiff's right ankle movements were limited to 0 degrees. (Page ID 586-87). Plaintiff's physical therapy plan involved a four-week home exercise program and outpatient monitoring. By September 20, 2009, monitoring notes reflect that there had been some increase in Plaintiff's coordination and right lower extremity strength, but Plaintiff continued to have ongoing problems with gait stability and ultimately her therapy goals remained unmet. (Page ID 589). The ALJ inappropriately discredited this important medical evidence.
Further, the ALJ concluded that Plaintiff's failure to mention fingering or handling difficulties as a reason for why she left her job as a bank teller precludes her from now claiming that she suffers from a hand impairment. However, the ALJ offers no precedent for the suggestion that overwhelming medical testimony about an impairment will not be credited if a claimant fails to list it as a reason for leaving her last employment. Moreover, the ALJ ignores that Plaintiff clearly explained to the Social Security Administration in regards to her past work that "both the jobs had a lot of things I could not do ... When working at the bank using my hands and standing or sitting got to be hard for me." (Page ID 653) (emphasis added).
Finally, the ALJ attempts to undervalue the weight of overwhelming medical evidence supporting Plaintiff's 11.04(B) disability listing by concluding that it is "obvious" that Plaintiff's daily activities are inconsistent with her claimed impairments and medical findings. With respect to Plaintiff's foot impairments, the ALJ finds several activities — grocery shopping, bike
The standard of review of an ALJ's decision is deferential, and the Commissioner's findings are conclusive if they are supported by substantial evidence. 42 U.S.C. § 405(g). "`Substantial evidence' means `more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Kirk v. Sec'y of Health & Human Servs., 667 F.2d 524, 535 (6th Cir.1981) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). However, a substantiality of evidence evaluation does not permit a selective reading of the record. "Substantiality of the evidence must be based upon the record taken as a whole. Substantial evidence is not simply some evidence, or even a great deal of evidence. Rather, the substantiality of evidence must take into account whatever in the record fairly detracts from its weight." Garner v. Heckler, 745 F.2d 383, 388 (6th Cir.1984) (internal quotes and citations omitted).
In the case at bar, the ALJ erred in selectively reading the record and making conclusions that constituted a "cherry picking" of evidence, designed to produce the result of a negative finding. The ALJ did not consider "all relevant evidence" as is required, but erroneously relied instead only on that information supporting her final conclusion. See Godbey v. Apfel, 238 F.3d 803, 808 (7th Cir.2000) (quoting Clifford v. Apfel, 227 F.3d 863, 871 (7th Cir. 2000)). In other words, there is no "logical bridge" between the evidence in the record and the ALJ's conclusion. Craft v. Astrue, 539 F.3d 668, 673 (7th Cir.2008). The ALJ's decision to give "little weight" to medical findings of a treating physician
When, as here, the non-disability determination is not supported by substantial evidence, the Court must decide whether to reverse and remand the matter for rehearing or to reverse and order benefits granted. The Court has authority to affirm, modify or reverse the Commissioner's decision "with or without remanding the cause for rehearing." 42 U.S.C. § 405(g). Melkonyan v. Sullivan, 501 U.S. 89, 100, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991).
Generally, benefits may be awarded immediately "only if all essential factual issues have been resolved and the record adequately establishes a plaintiff's entitlement to benefits." Faucher v. Sec'y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir.1994). The Court may award benefits where the proof of disability is strong and opposing evidence is lacking in substance, so that remand would merely involve the presentation of cumulative evidence, or where the proof of disability is overwhelming. Faucher, 17 F.3d at 176. Such is the case here.
In cases where there is an adequate record, the Secretary's decision denying benefits can be reversed and benefits awarded if the decision is clearly erroneous, proof of disability is overwhelming, or proof of disability is strong and evidence to the contrary is lacking. See e.g., Lashley v. Sec'y of Health & Human Servs., 708 F.2d 1048, 1053-54 (6th Cir.1983). In the instant action, consideration of Plaintiff's combined impairments brings her within the criteria for section 11.04(B) of the Listing of Impairments. As fully recited herein, in view of the extensive medical record of evidence of disability, and the credible and controlling findings and opinions of treating and consulting medical providers, proof of disability is overwhelming, and remand will serve no purpose other than delay.
