WALTER H. RICE, District Judge.
Plaintiff has brought this action pursuant to 42 U.S.C. § 405(g) to review a decision of the Defendant Commissioner denying Plaintiff's application for Social Security disability benefits. On February 1, 2013, the United States Magistrate Judge filed a Report and Recommendations (Doc. #11), recommending that the Commissioner's decision that Plaintiff was not disabled and, therefore, not entitled to benefits under the Social Security Act be reversed, and that the captioned cause be remanded to the Defendant Commissioner, pursuant to the Fourth Sentence of 42 U.S.C. § 405(g), for further administrative proceedings. Based upon reasoning and citations of authority set forth in the Magistrate Judge's Report and Recommendations (Doc. #11) and in the Plaintiff's Reply to Defendant's Objections to the Magistrate Judge's Report and Recommendations (Doc. #13), as well as upon a thorough de novo review of this Court's file, including the Administrative Transcript (Doc. #6), and a thorough review of the applicable law, this Court adopts the aforesaid Report and Recommendations in their entirety and, in so doing, orders the entry of judgment in favor of the Plaintiff and against the Defendant Commissioner, concluding that the Commissioner's decision that Plaintiff was not disabled and, therefore, not entitled to benefits under the Social Security Act was not supported by substantial evidence. The Defendant's Objections to said judicial filing (Doc. #12) are overruled. Accordingly, the decision of the Defendant Commissioner that Plaintiff was not disabled and, therefore, not entitled to benefits under the Social Security Act is reversed, and the captioned cause is remanded to the Defendant Commissioner, pursuant to the Fourth Sentence of 42 U.S.C. § 405(g), for further administrative proceedings.
In reviewing the Commissioner's decision, the Magistrate Judge's task is to determine if that decision is supported by "substantial evidence." 42 U.S.C. § 405(g). Under 28 U.S.C. § 636(b)(1)(C), this Court, upon objections being made to the Magistrate Judge's Report and Recommendations, is required to make a de novo review of those recommendations of the report to which objection is made. This de novo review, in turn, requires this Court to re-examine all the relevant evidence, previously reviewed by the Magistrate Judge, to determine whether the findings of the Secretary [now Commissioner] are supported by "substantial evidence." Lashley v. Secretary of Health and Human Services, 708 F.2d 1048, 1053 (6th Cir. 1983); Gibson v. Secretary of Health, Education and Welfare, 678 F.2d 653,
In determining whether the Commissioner's findings are supported by substantial evidence, the Court must consider the record as a whole. Hephner v. Mathews, 574 F.2d 359 (6th Cir.1978); Ellis, supra; Kirk v. Secretary of Health and Human Services, 667 F.2d 524, 536 (6th Cir.1981); Houston v. Secretary of Health and Human Services, 736 F.2d 365 (6th Cir.1984); Garner v. Heckler, 745 F.2d 383 (6th Cir.1984). However, the Court may not try the case de novo, resolve conflicts in evidence or decide questions of credibility. Garner, supra. The findings of the Commissioner of Social Security and proceedings on Claimant's application for social security disability benefits are not subject to reversal merely because there exists in the record substantial evidence to support a different conclusion. Buxton v. Halter, Commissioner of Social Security, 246 F.3d 762 (6th Cir. 2001). If the Commissioner's decision is supported by substantial evidence, it must be affirmed, even if the Court as a trier of fact would have arrived at a different conclusion. Elkins v. Secretary of Health and Human Services, 658 F.2d 437, 439 (6th Cir.1981).
In addition to the foregoing, in ruling as aforesaid, this Court makes the following, non-exclusive, observations:
1. A review of the above convinces this Court that it agrees with the Magistrate Judge in two significant aspects, to wit: First, that the Commissioner's finding of non-disability is not based upon substantial evidence, given the Administrative Law Judge's failure to properly consider Plaintiff's prescribed ambulatory device in formulating Plaintiff's Residual Functional Capacity ("RFC"), and that the state of the record warrants remand for further administrative procedures, rather than remand for the payment of benefits, given that "proof of disability is not overwhelming or proof of disability is not strong and evidence to the contrary is lacking." Faucher v. Secretary of Health and Human Services, 17 F.3d 171, 176 (6th Cir. 1994).
2. Upon remand, the Defendant Commissioner, through the Administrative Law
3. To the extent that Plaintiff requests a remand broader in scope than that set forth by the Court above, said request is overruled, given that the Court has reviewed the evidence of record and feels that such a broadened remand is not necessary, given the Administrative Law Judge's findings based upon substantial evidence of record.
WHEREFORE, based upon the aforesaid, this Court adopts the Report and Recommendations of the United States Magistrate Judge (Doc. #11) in their entirety, having concluded that the Commissioner's decision that Plaintiff was not disabled and, therefore, not entitled to benefits under the Social Security Act was not supported by substantial evidence, as set forth above. Defendant's Objections to said judicial filing (Doc. #12) are overruled. Judgment will be ordered entered in favor of the Plaintiff and against Defendant Commissioner, reversing the Commissioner's decision that Plaintiff was not disabled and, therefore, not entitled to benefits under the Social Security Act, and remanding the captioned cause to the Defendant Commissioner, pursuant to the Fourth Sentence of 42 U.S.C. § 405(g), for proceedings consistent with this Decision and Entry.
The captioned cause is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton.
MICHAEL J. NEWMAN, United States Magistrate Judge.
This is a Social Security disability benefits appeal brought pursuant to 42 U.S.C. § 405(g) and § 1383(c). At issue is whether the Administrative Law Judge ("ALJ") erred in finding Plaintiff David Ray ("Plaintiff) not "disabled" and therefore unentitled to Disability Insurance Benefits ("DIB") and/or Supplemental Security Income ("SSI").
This case is before the Court upon Plaintiffs Statement of Errors (doc. 8), the Commissioner's Memorandum in Opposition (doc. 9), Plaintiffs Reply (doc. 10), the administrative record
Plaintiff filed applications for DIB and SSI in July 2009, asserting that he has been under a "disability" since October 15, 2004. See PageID 58. Plaintiff claims he
Following initial administrative denial of his applications, Plaintiff received a hearing before ALJ Carol Bowen in July 2011. PageID 87-121. At the hearing, Plaintiff testified along with Richard Katzman, M.D., a Medical Expert ("ME"), and William Braunig, a Vocational Expert ("VE"). See id. On August 10, 2011, ALJ Bowen issued a written decision, concluding that Plaintiff was not "disabled." PageID 58-74.
Specifically, the ALJ's "Findings," which represent the rationale of her decision, were as follows:
PageID 61-74 (footnote added).
Thereafter, the Appeals Council denied Plaintiff's request for review, making the ALJ's non-disability finding the final administrative decision of the Commissioner. PageID 36-38. See Casey v. Sec'y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir.1993). Plaintiff then filed this timely appeal on March 5, 2012. Doc. 2.
Plaintiff testified that he is divorced and lives alone. PageID 99. He has a GED. PageID 100. He has an adult son who visits him daily. PageID 99, 104. He also sees his friend, Mary, on a daily basis, and is occasionally visited by a neighbor who lives in his building. Id. Plaintiff testified that he does not have a driver's license, and relies upon his son and Mary for transportation. PageID 100.
Plaintiff sees a mental health therapist once per week. PageID 101. Plaintiff testified that he occasionally hears voices which tell him to kill himself. Id. He takes prescribed medication, and claims drowsiness and mental confusion are side effects of the medication. PageID 102. Plaintiff testified that he cannot stand or walk for sustained periods. PageID 105-06. He was prescribed a cane, and uses it whenever he walks. PageID 106. He gets dizzy if he stands up too fast, or rises after being bent over. PageID 110-11.
Plaintiff estimated he can stand for 30 minutes, and can lift no more than a gallon of milk. PageID 106-07. He testified that he is able to dress himself, but is only able to perform chores if he is sitting down. PageID 103. Whenever Plaintiff cleans, he uses dishwashing detergent because all other cleaning products have odors which aggravate his lungs and causes dizziness. Id. He uses a microwave oven to prepare his meals, and only cooks when he is assisted by his son or Mary. PageID 112. His son and Mary help him with household chores. Id. Plaintiff testified that Mary does his grocery shopping; if he goes with her to the grocery store, he will stay in the car to avoid crowds. PageID 103.
The Court's inquiry on a Social Security appeal is to determine (1) whether the ALJ's non-disability finding is supported by substantial evidence, and (2) whether the ALJ employed the correct legal criteria. 42 U.S.C. §§ 405(g), 1383(c)(3)
Substantial evidence is "such relevant evidence as a reasonable mind might
The second judicial inquiry — reviewing the correctness of the ALJ's legal analysis — may result in reversal even if the ALJ's decision is supported by substantial evidence in the record. Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 651 (6th Cir.2009). Thus, "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." Bowen, 478 F.3d at 746.
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. 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).
Administrative regulations require a five-step sequential evaluation for disability determinations. 20 C.F.R. § 404.1520(a)(4). Although a dispositive finding at any step ends the ALJ's review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir.2007), the complete sequential review poses five questions:
20 C.F.R. § 404.1520(a)(4); Miller v. Comm'r of Soc. Sec., 181 F.Supp.2d 816, 818 (S.D.Ohio 2001). A claimant bears the ultimate burden of establishing that he or she is "disabled" under the Social Security Act's definition. Key v. Callahan, 109 F.3d 270, 274 (6th Cir.1997).
As a preliminary note, Plaintiff's pertinent medical records have been adequately summarized in his Statement of Errors, as well as the administrative decision, see doc. 8 at PageID 642-50; PageID 61-72, and the Court will not repeat them here. Where applicable, the Court will identify the medical evidence relevant to its decision.
Plaintiff asserts multiple assignments of error. He claims the ALJ erred by: (1) improperly weighing several medical opinions
At the outset, the Court notes that Plaintiff's treatment records are rather sparse from his alleged onset date of disability in 2004 through late 2009. See PageID 365-411. Furthermore, Plaintiff received unemployment benefits for a period in 2009 which, as the ALJ appropriately noted, undermines his claim that he was completely disabled prior to 2010. See PageID 62. In addition, Plaintiff claims he is impaired due to a combination of physical and mental issues, but the record regarding his mental health issues is not developed until 2010.
By the time of the administrative hearing, the record was more fully-developed, and contained several opinions regarding Plaintiff's mental and physical limitations upon which the ALJ could have relied in finding Plaintiff disabled. However, the ALJ found Plaintiff had the RFC to perform a limited range of medium work, and the VE confirmed that jobs existed in the regional economy which Plaintiff could do with such an RFC.
Although Plaintiff devotes assignments of error to challenging the ALJ's analysis in weighing the mental and physical limitation opinions of record, the Court finds none of his arguments in this regard persuasive. It is the Commissioner's function to resolve conflicts in the medical evidence, see Hardaway v. Sec'y of Health & Human Servs., 823 F.2d 922, 928 (6th Cir.1987), and that is exactly what the ALJ reasonably did regarding the opinions of the ME, consultative examiner Nicole Leisang, Psy.D., psychological consultant Catherine Flynn, Psy.D., and medical consultants Kathryn Drew, M.D. and W. Jerry McCloud, M.D. See PageID 62-73. Furthermore, Plaintiff's argument — that the evaluations of psychological trainees Megan Michaels and Kimberly Brzezowsky were improperly considered — is also unpersuasive. The ALJ appropriately recognized neither trainee to be an "acceptable medical source" under Social Security regulations, and thus committed no error by declining to apply the "treating physician rule" to their opinions simply because they were countersigned by Michelle Schultz, Psy.D.
The Court also finds Plaintiffs assignment of error challenging the ALJ's analysis regarding his history of alcohol use to be unmeritorious. The record reflects the ALJ properly considered the evidence of Plaintiffs alcohol use under Public Law 104-121 (establishing substance abuse/dependence cannot be a basis for a finding of "disability"), and the Social Security regulations 20 CFR §§ 404.1525, 404.1535, 416.925, and 416.935. The ALJ reasonably synthesized this evidence to conclude that "substance abuse is not a contributing factor material to a finding of disability," see PageID 67 (emphasis in original), and her analysis of Plaintiff's alcohol use was supported by substantial evidence in light of the varying evidence of record. See Buxton, 246 F.3d at 772.
The Court finds reversal of the Commissioner's non-disability finding is warranted based upon the ALJ's failure to properly consider Plaintiffs prescribed
At the hearing, Plaintiff arrived using his prescribed cane. PageID 105. He testified that he uses his cane for all of his walking. PageID 106. He further testified, "[h]e prescribed [the cane] for me because I fall sometimes. I get dizzy real easy and I lose my balance." Id.
Nevertheless, the ALJ chose to completely disregard Dr. Avery's cane prescription — as well as Plaintiff's testimony that he used the cane full-time — finding, "[t]here is no substantial evidence to document the medical necessity for an ambulatory aid (cane)." PageID 71. Moreover, even though the VE testified that the use of a cane would preclude all work at the medium level — which requires the ability to lift up to 50 pounds, and walk or stand for six out of eight hours — the ALJ nonetheless found Plaintiff retained the RFC to perform medium work, and used such a finding to conclude Plaintiff was not "disabled." See PageID 68-74, 114. The Court finds the ALJ's analysis in this regard to be unsupported by substantial evidence.
In weighing the medical evidence, "ALJs must not succumb to the temptation to play doctor and make their own independent medical findings." Simpson v. Comm'r of Soc. Sec., 344 Fed.Appx. 181, 194 (6th Cir.2009). By summarily disregarding Plaintiff's prescribed cane — and not basing such a decision on any medical opinion of record — the ALJ improperly subjected her lay opinion for that of a doctor who would be qualified to make such a medical determination. Id.
The Court recognizes there are limited occasions when the medical evidence is so clear, and so undisputed, that an ALJ would be justified in drawing functional capacity conclusions from such evidence without the assistance of a medical source. See Deskin v. Comm'r of Soc. Sec., 605 F.Supp.2d 908, 912 (N.D.Ohio 2008) ("To be sure, where the medical evidence shows relatively little physical impairment, an ALJ permissibly can render a commonsense judgment about functional capacity even without a physician's assessment"). This, however, is not such a case. The treatment notes on the date the cane was prescribed reflect a number of possible reasons supporting Dr. Avery's decision to prescribe a cane — including Plaintiffs reports that his leg was "giving out," and the findings of the "Moving Safely Risk Assessment." See PageID 589-94. As such, it was error for the ALJ to impermissibly substitute her interpretation in place of the opinions of Plaintiff's physicians at the Miami Valley Hospital Med/Surg Clinic on the necessity of a cane. Under these circumstances, the ALJ's RFC determination is unsupported by substantial evidence. Because the ALJ improperly relied on this
Under Sentence Four of 42 U.S.C. § 405(g), the Court has authority to affirm, modify, or reverse the Commissioner's decision "with or without remanding the cause for rehearing." Melkonyan v. Sullivan, 501 U.S. 89, 99, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991). Remand is appropriate if the Commissioner applied an erroneous principle of law, failed to consider certain evidence, failed to consider the combined effect of impairments, or failed to make a credibility finding. Faucher v. Sec'y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir.1994). Here, a judicial award of benefits is unwarranted because the record does not show either that "proof of disability is overwhelming" or that "proof of disability is strong and evidence to the contrary is lacking." Id.
The Court recommends the ALJ be ordered, upon remand, to properly consider the effects of Plaintiffs prescribed cane use on his RFC; reassess Plaintiff's impairments in combination; and solicit additional VE testimony regarding Plaintiff's RFC. In addition, the Court notes that given Plaintiff's age, a finding of "disabled" may be warranted under the Medical Vocation Guidelines (the "Grid") within 20 C.F.R. Part 404, Subpart P, Appendix 2. On remand, the ALJ shall additionally address whether a finding of "disabled" is mandated by the Grid.
For the foregoing reasons, the Court finds that, as more fully explained above, the ALJ's decision is unsupported by substantial evidence, and recommends that it be reversed and remanded to the Commissioner of Social Security under the Fourth Sentence of 42 U.S.C. § 405(g).
