KAREN L. LITKOVITZ, Magistrate Judge.
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of Social Security (Commissioner) denying plaintiff's application for disability insurance benefits (DIB) and supplemental security income (SSI). This matter is before the Court on plaintiff's Statement of Errors (Doc. 10), the Commissioner's response in opposition (Doc. 15), and plaintiff's reply memorandum. (Doc. 17).
Plaintiff filed applications for DIB and SSI in July 2007, alleging disability since September 23, 2005 due to: Crohn's disease, ulcerative colitis, gastric and esophageal ulcers, degenerative joint disease, bipolar disorder, depression, anxiety, obsessive compulsive disorder, back injuries, and knee injuries. Plaintiff's applications were denied initially and upon reconsideration. Plaintiff, through counsel, requested and was granted a de novo hearing before administrative law judge (ALJ) Amelia G. Lombardo. Plaintiff and a vocational expert (VE) appeared and testified at the ALJ hearing. On September 20, 2010, the ALJ issued a decision denying plaintiff's DIB and SSI applications.
To qualify for disability benefits, a claimant must suffer from a medically determinable physical or mental impairment that can be expected to result in death or that 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) (DIB), 1382c(a)(3)(A) (SSI). The impairment must render the claimant unable to engage in the work previously performed or in any other substantial gainful employment that exists in the national economy. 42 U.S.C. §§ 423(d)(2), 1382c(a)(3)(B).
Regulations promulgated by the Commissioner establish a five-step sequential evaluation process for disability determinations:
Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 652 (6th Cir. 2009) (citing §§ 404.1520(a)(4)(i)-(v), 404.1520(b)-(g)). The claimant has the burden of proof at the first four steps of the sequential evaluation process. Id.; Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 548 (6th Cir. 2004). Once the claimant establishes a prima facie case by showing an inability to perform the relevant previous employment, the burden shifts to the Commissioner to show that the claimant can perform other substantial gainful employment and that such employment exists in the national economy. Rabbers, 582 F.3d at 652; Harmon v. Apfel, 168 F.3d 289, 291 (6th Cir. 1999).
The ALJ applied the sequential evaluation process and made the following findings of fact and conclusions of law:
(Tr. 13-22).
Judicial review of the Commissioner's determination is limited in scope by 42 U.S.C. § 405(g) and involves a twofold inquiry: (1) whether the findings of the ALJ are supported by substantial evidence, and (2) whether the All applied the correct legal standards. See Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see also Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir. 2007).
The Commissioner's findings must stand if they are supported by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citing Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). Substantial evidence consists of "more than a scintilla of evidence but less than a preponderance. . . ." Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). In deciding whether the Commissioner's findings are supported by substantial evidence, the Court considers the record as a whole. Hephner v. Mathews, 574 F.2d 359 (6th Cir. 1978).
The Court must also determine whether the All applied the correct legal standards in the disability determination. Even if substantial evidence supports the All's conclusion that the plaintiff is not disabled, "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." Rabbers, 582 F.3d at 651 (quoting Bowen, 478 F.3d at 746). See also Wilson, 378 F.3d at 545-46 (reversal required even though ALJ's decision was otherwise supported by substantial evidence where ALJ failed to give good reasons for not giving weight to treating physician's opinion, thereby violating the agency's own regulations).
Plaintiff raises three assignments of error: (1) the All erred in determining the severity of plaintiff's mental and physical impairments; (2) the ALJ usurped the role of a medical expert and rendered an improper medical opinion; and (3) the hypothetical question presented to the VE failed to properly account for all of her supported limitations. For the following reasons, the Court finds the instant matter should be reversed and remanded as the ALJ's findings are not substantially supported by the record evidence.
Plaintiff contends the All erred by finding that her severe impairments were limited to degenerative disc disease, bipolar disorder, and substance abuse. Plaintiff argues that the record supports findings that she has other severe mental impairments, as well as severe Crohn's disease and associated diarrhea. In support, plaintiff cites to her long history of mental health treatment, including: multiple hospitalizations for depression; diagnosis of anxiety disorder; medical opinions that her mental impairments cause moderate functional limitations; use of various psychotropic medications; and low GAF scores.
A severe impairment or combination of impairments is one which significantly limits the physical or mental ability to perform basic work activities. 20 C.F.R. § 404.1520(c). Basic work activities relate to the abilities and aptitudes necessary to perform most jobs, such as the ability to perform physical functions like walking, standing, lifting, and carrying; the capacity for seeing and hearing; and the ability to use judgment, respond to supervisors, and deal with changes in the work setting. 20 C.F.R. § 404.1521(b).
Plaintiff is not required to establish total disability at this level of the sequential evaluation. Rather, the severe impairment requirement is a threshold element which plaintiff must prove in order to establish disability within the meaning of the Act. Gist v. Sec'y of H.H.S., 736 F.2d 352, 357 (6th Cir. 1984). An impairment will be considered nonsevere only if it is a "slight abnormality which has such minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education, and work experience." Farris v. Sec'y of H. H.S., 773 F.2d 85, 90 (6th Cir. 1985) (citing Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984)). The severity requirement is a "de minimis hurdle" in the sequential evaluation process. Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988). See also Rogers, 486 F.3d at 243 n.2.
Plaintiff argues the ALJ erred by finding that her only severe mental impairments were bipolar disorder and polysubstance abuse. Plaintiff contends that the medical evidence of record documents a significant history of mental health treatment, including the diagnosis and treatment of anxiety, which supports a finding that plaintiff has additional severe mental impairments. The Court agrees.
The ALJ's decision provides that plaintiff has three severe impairments: (1) degenerative disc disease of the lumbosacral spine; (2) bipolar disorder; and (3) polysubstance abuse. (Tr. 16). The ALJ determined that "[t]here is no substantial evidence of any other impairments which significantly limit the [plaintiff]'s vocational capabilities." Id. Relying on this broad analysis of the evidence, the ALJ declined to engage in any meaningful discussion of plaintiff's other mental impairments despite numerous records documenting plaintiff's anxiety. Indeed, the ALJ only briefly mentions plaintiff's other mental impairments during her summary of plaintiff's testimony and medical records. See, e.g., Tr. 13 ("[plaintiff] reports that she was afflicted with anxiety); Tr. 15 (noting that plaintiff was treated for anxiety disorder and hospitalized for complaints of depression); Tr. 16 (noting that consultative and treating psychiatric sources have diagnosed plaintiff with anxiety disorder). The ALJ's cursory discussion of the evidence of plaintiff's anxiety disorder fails to accurately portray plaintiff's impairments and associated limitations.
The following evidence demonstrates that plaintiff's anxiety disorder is more than a "slight abnormality" having more than a "minimal effect" on plaintiff's work capabilities. Farris, 773 F.2d at 90. The record includes a history of plaintiff's treatment for anxiety beginning in 2004. See generally Tr. 294-312, 539, 545, 548-56, 947-51. In January 2004 plaintiff sought mental health treatment for what she believed was bipolar disorder due to a family history of the disease. (Tr. 296). At that time plaintiff reported the following symptoms: constant worry, panic attacks, self-mutilation, and irritability and anger with mania. (Tr. 299). Plaintiff was determined to be in need of management skills as evidenced by ongoing symptoms of anxiety, mania, and depression. (Tr. 300). Plaintiff was diagnosed with bipolar and anxiety disorders and referred for individual counseling. (Tr. 304-05).
Throughout, the record details similar and consistent findings and diagnoses of anxiety. See Tr. 294, 304, 309, 442-66, 473-76, 500, 511, 533-50, 669, 677, 687-89, 847, 951. Moreover, every single treating, examining, and reviewing psychiatric or psychological opinion of record includes a diagnosis of anxiety disorder. Paul A. Deardorff, Ph.D., examined plaintiff in December 2007 for disability purposes and diagnosed her with anxiety disorder NOS in addition to bipolar disorder NOS and opined that she had moderate difficulties in her ability to relate to others. (Tr. 500). Dr. Deardorff's opinion was affirmed by state agency reviewing psychologist Alice Chambly, Psy.D, who further opined that plaintiff was moderately limited in her ability to relate to others and "retained the capacity for work that is simple and routine in nature with superficial contact." (Tr. 504) (emphasis added). Following plaintiff's hospitalization in March 2008 for prescription medication overdose,
In light of this evidence, the ALJ's finding of "no substantial evidence" of a severe mental impairment other than bipolar disorder and polysubstance abuse is not substantially supported. The Court is particularly persuaded by the consistent findings of every psychiatric specialist of record who all opined that plaintiff suffers from mental impairments not recognized by the ALJ, notably anxiety. Dr. Deardorff, Dr. Chambly, and Dr. Meyer all concurred that plaintiff had some functional limitations related to her anxiety disorder in contradiction of the ALJ's failure to find that plaintiff's anxiety constitutes a severe impairment.
Plaintiff also asserts the ALJ erred in evaluating the severity of her physical impairments. Specifically, plaintiff argues the ALJ erroneously determined that plaintiff's Crohn's disease and associated diarrhea were not severe impairments. For the following reasons, the undersigned agrees.
The record is replete with evidence regarding plaintiffs treatment for Crohn's disease and associated gastrointestinal problems. The ALJ determined that plaintiffs Crohn's disease was not a severe impairment as it was currently in remission and plaintiff was not actively receiving treatment. (Tr. 16). The ALJ's determination is substantially supported in this regard. See Tr. 36 (plaintiff testified at the All hearing that her Crohn's disease was in remission); Tr. 314 (January 2007 notes from plaintiff's treating gastroenterologist, Bikram Verma Ansil, M.D., indicate that a November 17, 2005 scan of plaintiffs bowel showed no evidence of active Crohn's); Tr. 319, 321 (Dr. Ansil opined in August 2007 that plaintiffs Crohn's was in remission, with occasional breakthrough cramping and diarrhea); Tr. 489 (consultative examining physician Damian M. Danopulos, M.D., opined in October 2007 that plaintiff's Crohn's disease was in remission); Tr. 573 (May 2009 treatment notes from Digestive Specialists, Inc. include findings that plaintiffs Crohn's disease was in remission and that she was "not on active IBD treatment"); Tr. 582-83 (March 2009 colonoscopy results showed no evidence of Crohn's disease). Given the objective findings, medical opinion evidence, and plaintiff's own testimony that her Crohn's disease is in remission, the ALJ's determination that it is not a severe impairment is substantially supported. Nevertheless, the undersigned finds that the AIJ erred in evaluating the severity of plaintiffs irritable bowel syndrome (IBS) and diarrhea.
Review of the medical record demonstrates that while plaintiff may occasionally experience relief from IBS and diarrhea, it is a long-standing condition for which she receives ongoing treatment. See Tr. 313 (in January 2007, plaintiff reported 6-8 episodes of diarrhea daily with mucous and occasional blood in stool); Tr. 346 (plaintiff presented to Dr. Ansil in April 2007 with persistent diarrhea worsening post-cholecystectomy which was likely due to Crohn's and IBS). Treatment notes from Dr. Ansil's office also include plaintiff's reports of ongoing diarrhea after her Crohn's disease was in remission. See Tr. 573 (in May 2009, plaintiff assessed with IBS; report notes alternating diarrhea and constipation); Tr. 577 (same, with plaintiff reporting up to "7-10 mucus containing, yellow stools per day"); Tr. 591-92 (in February 2009, plaintiff reported 10-12 stools per day and Dr. Ansil opined that the worsening diarrhea may represent Crohn's exacerbation); Tr. 595 (plaintiff reported alternating diarrhea and constipation and was noted as having a history of IBS); Tr. 597 (in July 2008 Dr. Ansil opined that plaintiffs diarrhea was likely a result of her IBS). Further, plaintiff testified in June 2010 that although her Crohn's was in remission, she continued to have bowel incontinence which requires frequent trips to the bathroom and that she bring a change of clothes with her whenever she leaves home in the event of an episode. (Tr. 36, 47-48).
Regarding plaintiffs diarrhea, the All simply stated that "treatment notes further reflect that [plaintiff] presented with intermittent complaints of diarrhea, but the condition was controlled with Lomotil."
The Court further concludes that the evidence of record demonstrates that plaintiff's IBS and diarrhea constitute more than "mild impairments" to the extent they impose nonexertional functional limitations on plaintiffs ability to work. See 20 C.F.R. § 404.1569a(a). See also Spencer v. Comm'r of Soc. Sec., No. 1:11cv328, 2012 WL 1068876, at *10 (N.D. Ohio Jan. 27, 2012) (Report and Recommendation), aff'd, 2012 WL 1068874 (N.D. Ohio Mar. 29, 2012) (frequent diarrhea is a nonexertional limitation which ALJ must consider in formulating RFC) (citing cases). Plaintiff's testimony that she requires frequent visits to the bathroom is consistent with extensive treatment records, discussed above, and supports a finding that her IBS and diarrhea are severe impairments. The ALJ's decision to the contrary should therefore be remanded with instructions that the ALJ determine the functional limitations caused by plaintiff's gastrointestinal conditions.
For her second assignment of error, plaintiff asserts the ALJ improperly generated her own medical opinion regarding plaintiff's mental impairments in lieu of adopting Dr. Chambly's opinion that plaintiff has moderate difficulties in maintaining social functioning. The Commissioner asserts in opposition that the ALJ's determination that plaintiff has only mild limitation in social interaction is substantially supported by the record. For the following reasons, plaintiff's argument is well-taken.
The medical opinion evidence on plaintiff's social functioning limitations is limited to the opinions of Dr. Deardorff, Dr. Chambly, and Dr. Meyer. Pursuant to his examination of plaintiff in December 2007, Dr. Deardorff opined that plaintiff's "mental ability to relate to others including fellow workers and supervisors is moderately impaired by her emotional difficulties." (Tr. 500). Dr. Deardorff added that plaintiff reported "difficulty trusting others" and opined that this "may lead to misinterpretation of information and increases in symptoms of depression and anxiety." Id. Dr. Chambly gave weight to Dr. Deardorff's opinion and found that plaintiff had moderate difficulties in social functioning but retained the capacity for simple and routine work that involved only superficial contact. (Tr. 504). Dr. Meyer reviewed plaintiff's file following her March 2008 hospitalization, again gave weight to Dr. Deardorff's opinion noting its ongoing consistency with the record evidence, and affirmed Dr. Chambly's assessment. (Tr. 568).
Despite the complete consistency among these medical opinions, the All determined that plaintiff has only "mild limitations" in social functioning. (Tr. 17). In support, the ALJ identified that Dr. Chambly's notes (summarizing Dr. Deardorff's notes) show that plaintiff has "many friends, helps out with chores and spends time with her boyfriend. Since Dr. Chambly gave her opinion, the [plaintiff] has begun a long term relationship with this individual, lives independently and cares for a young child . . . ." Id. These notes, however, were based on Dr. Deardorff's 2007 one-time examination and do not adequately represent the record as a whole regarding plaintiff's social functioning. For example, following Dr. Chambly's assessment, plaintiff reported being homeless and having limited social support while receiving treatment following her March 2008 overdose. (Tr. 535). Plaintiff also testified at the ALJ hearing in 2010 that she only occasionally visits with one friend and depends on her mother-in-law to assist with childcare due to her physical pain. (Tr. 42-43). The ALJ did not address this later social functioning evidence which contradicts Dr. Chambly's notes; thus, the undersigned is unable to discern if this evidence was not credited or simply ignored by the All. See Bledsoe v. Comm'r of Soc. Sec., No. 09cv564, 2010 WL 5795503, at *3 (S.D. Ohio Aug. 31, 2010). Accordingly, the Court cannot conclude that the ALJ's decision in this regard is supported by substantial evidence.
While the ALJ is permitted to look to other factors "which tend to support or contradict the opinion" evidence from Dr. Chambly, 20 C.F.R. §§ 404.1527(c)(6), 416.927(c)(6),
For her final assignment of error, plaintiff contends the ALJ erred by presenting a hypothetical question to the VE which did not reflect all of plaintiffs supported limitations. Given the above findings that the ALJ erred in evaluating the severity of plaintiffs mental and physical impairments and erred by creating her own medical opinion regarding plaintiffs mental impairments, the ALJ's RFC finding is also without substantial support in the record. Consequently, the hypothetical question presented to the VE does not properly reflect plaintiffs impairments and/or limitations. The All therefore erred at Step 5 of the sequential evaluation process by relying on the VE's vocational testimony. See White v. Comm'r of Soc. Sec., 312 F. App'x 779, 789 (6th Cir. 2009) (ALJ erred in relying on answer to hypothetical question because it simply restated residual functional capacity which did not accurately portray claimant's impairments). Because the ALJ's hypothetical question failed to accurately portray plaintiffs impairments, the VE's testimony in response thereto does not constitute substantial evidence that plaintiff could perform the work identified by the VE. Therefore, plaintiffs final assignment of error should be sustained.
This matter should be reversed and remanded pursuant to Sentence Four of § 405(g) for further proceedings consistent with this Report and Recommendation. All essential factual issues have not been resolved in this matter, nor does the current record adequately establish plaintiffs entitlement to benefits as of her alleged onset date. Faucher v. Sec'y of H.H.S., 17 F.3d 171, 176 (6th Cir. 1994). On remand, the All should evaluate the severity of all of plaintiffs documented mental and physical impairments and fully articulate her rationale in support of her findings. The All should further designate the medical opinion evidence supporting her RFC formulation, especially as it regards plaintiffs mental impairments. The ALJ must also clearly articulate the rationale in support of her RFC finding and provide hypothetical questions to the VE which accurately portray plaintiffs impairments. If necessary, the ALJ should elicit testimony from a medical expert.
The decision of the Commissioner be
