SHARON L. OVINGTON, Chief Magistrate Judge.
Plaintiff Victoria Spaugy returns to this Court for the second time raising concerns about the Social Security Administration's denial of her January 2005 applications for Disability Insurance Benefits and Supplemental Security Income. Invoking Sentence Four of 42 U.S.C. §405(g), this Court previously remanded the matter — with specific instructions — for further consideration of Plaintiff's DIB and SSI applications.
On remand, Administrative Law Judge Thomas R. McNichols II concluded that Plaintiff is not under a "disability" as defined by the Social Security Act. This led him to also conclude that Plaintiff was not eligible to receive DIB or SSI. (Tr. at 855-66).
The case is before the Court upon Plaintiff's Statement of Errors (Doc. #8), the Commissioner's Memorandum in Opposition (Doc. #12), Plaintiff's Reply (Doc. #12), the administrative record, and the record as a whole.
Plaintiff seeks an Order reversing ALJ McNichols' (second) decision or, at a minimum, remanding the case to the ALJ to correct certain alleged errors. The Commissioner seeks an Order affirming the ALJ's decision.
This Court has jurisdiction to review the administrative denial of Plaintiff's DIB and SSI applications. See 42 U.S.C. §§405(g), 1383(c)(3).
To be eligible for SSI or DIB a claimant must be under a "disability" within the definition of the Social Security Act. See 42 U.S.C. §§423(a), (d), 1382c(a). The definition of the term "disability" is essentially the same for both DIB and SSI. See Bowen v. City of New York, 476 U.S. 467, 469-70 (1986). A "disability" consists only of physical or mental impairments that are both "medically determinable" and severe enough to prevent the applicant from (1) performing his or her past job and (2) engaging in "substantial gainful activity" that is available in the regional or national economies. See Bowen, 476 U.S. at 469-70.
A DIB/SSI applicant bears the ultimate burden of establishing that he or she is under a disability. See Key v. Callahan, 109 F.3d 270, 274 (6th Cir. 1997); see Wyatt v. Secretary of Health and Human Services, 974 F.2d 680, 683 (6th Cir. 1992); see also Hephner v. Mathews, 574 F.2d 359, 361 (6th Cir. 1978).
The Court's previous description of the medical opinions and other medical evidence is incorporated herein by reference. (Tr. at 872-76). Among the more salient points Plaintiff presents is her assertion that she was under a disability, beginning on June 26, 2004, due to the following health problems: chronic obstructive pulmonary disease (COPD) and high blood pressure along with "Bipolar [sic], mood disorder, [and] migraines. . . ." (Tr. at 408; see Tr. at 395-401, 793-95). Plaintiff's COPD is emphysema. (Tr. at 857).
Plaintiff was considered a "younger" person under Social Security Regulations when she filed her DIB and SSI applications and when ALJ McNichols issued his first nondisability decision. 20 C.F.R. §§404.1563(c); 416.963(c).
ALJ McNichols concluded in his first nondisability decision that Plaintiff could perform light work
(Tr. 28). The ALJ relied on the opinions of two record reviewers for the Ohio Bureau of Disability Determinations (BDD), especially in support of his conclusion that Plaintiff was limited to light work "in temperature-controlled environments with no exposure to irritants." Id. The ALJ also rejected the opinions provided by Plaintiff's treating physician Karen Frank, M.D. Id. at 29-30.
After learning that the Social Security Administration denied her DIB and SSI applications, Plaintiff turned to this Court seeking judicial review of ALJ McNichols' first decision. Victoria Spaugy v. Michael J. Astrue, Comm'r of Social Sec., 3:10cv00106 (S.D. Ohio). United States District Judge Walter Herbert Rice vacated ALJ McNichols' decision due, in part, to the ALJ's inadequate consideration of Dr. Frank's opinions. Judge Rice explained:
(Tr. at 885-86). Judge Rice remanded the case explicitly instructing the Social Security Administration:
(Tr. at 887).
Medical evidence added to the administrative record on remand included hospital records, test results, and medical source opinions.
Plaintiff was hospitalized for ten days in late June to early July 2008. (Tr. 933-955). Her discharge diagnoses included renal failure, aspiration pneumonia with possible sepsis, polypharmacy, COPD, bi-polar disorder, depression, osteoporosis, hypertension, chronic pain, and anemia. (Tr. 933).
A History and Physical Report, electronically signed by Dr. Frank in mid-July 2008, described Plaintiff's social history:
(Tr. 935).
In September 2009, Plaintiff underwent a pulmonary function test. A physician interpreted the results as showing a "Mild Restriction." (Tr. 986). Her next pulmonary function test, in February 2011, showed "severe obstruction." (Tr. 985). Plaintiff underwent a pulmonary function test in August 2011. (Tr. 1219-1221). The results showed "moderately severe obstructive defect with significant bronchodilator response and lung volumes [and] hyperinflation with air trapping and increased airway resistance." (Tr. 1219).
Plaintiff underwent physical therapy from March 3, 2011, to June 2, 2011. (Tr. 1031-1045). The purpose of therapy was to address symptoms associated with lumbar spondylosis. Plaintiff reported problems bending, squatting, carrying objects, climbing stairs, kneeling, raising from a kneeling position, changing positions, sitting up straight, etc. (Tr. 1045). Clinical findings revealed decreased trunk range of motion, decreased flexibility, positive straight leg raising, etc. Id.
Dr. Wooten examined Plaintiff eight times between April 22, 2009 and November 9, 2011. Dr. Wooten also prescribed medications, ordered testing, and reviewed the testing. (Tr. 1141-51, 1223-27). In June 2009 and July 2011, Dr. Wooten completed basic-medical forms, opining that Plaintiff was limited to (1) lifting up to five pounds, (2) standing/walking up to two hours, and (3) sitting up to five hours. (Tr. 1046-1049). In support of these conclusions, Dr. Wooten referenced Plaintiff's shortness of breath when walking 50 yards or climbing a flight of stairs; her decreased range of lumbar-spine motion; and her increased pain with prolonged sitting. (Tr. 1047, 1049). Dr. Wooten also marked boxes on the form indicating her opinion that Plaintiff was unemployable. Id.
From October 2009 through October 2011, Plaintiff was treated in a pain clinic. Treatment notes consistently document her reports of low-back pain. E.g., Tr. 1152-64, 1166-68, 1175-98. Her treatment consisted of pain medications, radio frequency, blocks, and injections.
Turning to Plaintiff's mental impairments, in November 2011 her treating psychiatrist, Dr. Joseph Trevino, completed a questionnaire. (Tr. 1213-16). Dr. Trevino diagnosed Major Depressive Disorder, Recurrent; PTSD; and Polysubstance Dependence in Remission. (Tr. 1213-16). He assigned Plaintiff a GAF
During the hearing ALJ McNichols held on remand in December 2011, Plaintiff testified that she stopped working in 2002 due to breathing problems, including "real bad" shortness of breath. (Tr. 1239). She has not worked since then. (Tr. at 1239-40). For treatment, she uses inhalers and a nebulizer (four times a day). (Tr. 1240). She has difficulty being around perfumes, lotions, colognes, etc., which cause her to cough "real bad." (Tr. 1241). When her COPD "acts up," her ankles swell. She quit smoking in 2003 except for one relapse in 2007. (Tr. 1243-44).
Plaintiff's family doctors — Drs. Frank and Wooten — have diagnosed her with fibromyalgia. (Tr. 1244-45). Her fibromyalgia mostly affects her hands and is helped by Lyrica. (Tr. 1249). She estimated her hand pain at 6 out of 10 (on a scale of zero to 10: zero equaling no pain; 10 equaling the worst pain imaginable). Hand pain causes her problems picking things up, brushing her teeth, and moving buttons and zippers. This pain usually arises once a week and lasts for half a day. Tr. 1260-61.
Plaintiff testified that she is able to walk 50 yards, stand for 30 minutes, sit for 30 minutes to one hour, and lift 5-10 pounds. She tries not to climb stairs due to shortness of breath. (Tr. 1251).
She has limited activities of daily living and limited socialization. Depression causes her to isolate herself from others. (Tr. 1246). She performs a few household chores and does very little shopping. She has panic attacks a couple times per month. When these occur, she feels like her heart is going to beat out of her chest. (Tr. 1257-88). She only leaves the house once or twice a month. (Tr. 1262).
Plaintiff has not used drugs or alcohol since 2004 except for a single relapse in 2007. (Tr. 1248).
On remand, ALJ McNichols utilized the sequential-evaluation procedure required by Social Security Regulations. See Tr. 855-66; see also 20 C.F.R. §404.1520(a)(4); Walters v. Comm'r of Social Sec., 127 F.3d 525, 529 (6th Cir. 1997). At step 4 of the sequential procedure, ALJ McNichols concluded — as he did in his first decision — that Plaintiff could perform a limited range of light work. Specifically, he found:
(Tr. at 862). At this point in the decision, ALJ McNichols considered Dr. Frank's opinion about Plaintiff's "inability to `be around perfumes, cologne, aftershave lotion, etc.'" (Tr. at 862). The ALJ rejected this limitation, concluding, "Though restricting the claimant to clean-air, temperature-controlled environment in the current residual functional capacity, the undersigned has not included Dr. Frank's restriction because the claimant has not proved that she has such specific allergies causing substantial symptoms. . . ." (Tr. 862).
The ALJ also rejected Dr. Frank's opinion that Plaintiff could not perform even sedentary work. In doing so, the ALJ relied on his discussion of Dr. Frank's opinion in his first nondisability decision. The ALJ took this approach, rather than further evaluating Dr. Frank's opinions, because — in the ALJ's words — "[t]he Court did not raise any issue with regard to rejection of these assessments other than with regard to restriction on exposure to perfumes/odors. . . ." (Tr. at 864).
Judicial review of an ALJ's decision proceeds along two lines: "whether the ALJ applied the correct legal standards and whether the findings of the ALJ are supported by substantial evidence." Blakley v. Comm'r of Social Sec., 581 F.3d 399, 406 (6th Cir. 2009); see Bowen v. Comm'r of Social Sec., 478 F.3d 742, 745-46 (6th Cir. 2007).
The substantial-evidence review does not ask whether the Court agrees or disagrees with the ALJ's factual findings or whether the administrative record contains evidence contrary to those factual findings. Rogers v. Comm'r of Social Sec., 486 F.3d 234, 241 (6th Cir. 2007); see Her v. Comm'r of Social Sec., 203 F.3d 388, 389-90 (6th Cir. 1999). Instead, the ALJ's factual findings are upheld if the substantial-evidence standard is met — that is, "if a `reasonable mind might accept the relevant evidence as adequate to support a conclusion.'" Blakley, 581 F.3d at 407 (quoting Warner v. Comm'r of Social Sec., 375 F.3d 387, 390 (6th Cir. 2004). Substantial evidence consists of "more than a scintilla of evidence but less than a preponderance . . ." Rogers, 486 F.3d at 241.
The second line of judicial inquiry — reviewing the ALJ's legal criteria for correctness — may result in reversal even if the record contains substantial evidence supporting the ALJ's factual findings. Rabbers v. Comm'r of Social Sec, 582 F.3d 647, 651 (6th Cir. 2009); see Bowen, 478 F3d at 746. "[E]ven if supported by substantial evidence, `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 in part Bowen, 478 F.3d at 746 and citing Wilson v. Comm'r of Social Sec, 378 F.3d 541, 546-47 (6th Cir. 2004)).
Plaintiff presents two main arguments:
The ALJ failed to properly consider treating source opinions of Dr[s.] Wooten and Trevino according to its own Regulations and Rulings when he glossed over the issue of deference.
(Doc. #8, PageID at 49) (capitalization omitted).
The Commissioner contends:
ALJ McNichols reasonably discounted Dr. Wooten's and Dr. Trevino's opinions.
(Tr. 82, 84).
Social Security regulations recognize several different categories of medical sources: treating physicians and psychologists, nontreating yet examining physicians and psychologists, and nontreating yet record-reviewing physicians and psychologists. See Gayheart v. Comm'r of Social Sec., 710 F.3d 365, 375 (6th Cir. 2013).
Id., 710 F.3d at 375 (quoting, in part, Social Sec. Ruling No. 96-6p, 1996 WL 374180 at *2) (other citations omitted).
A treating source's opinion may be given controlling weight under the treatingphysician rule only if it is both well supported by medically acceptable data and not inconsistent with other substantial evidence of record. Id. at 376 (citing 20 C.F.R. §404.1527(c)(2)). "If the Commissioner does not give a treating-source opinion controlling weight, then the opinion is weighed based on the length, frequency, nature, and extent of the treatment relationship, as well as the treating source's area of specialty and the degree to which the opinion is consistent with the record as a whole and is supported by relevant evidence." Gayheart, 710 F.3d at 376 (citing 20 C.F.R. § 404.1527(c)(2)-(6)).
Unlike treating physicians, "opinions from nontreating and nonexamining are never assessed for `controlling weight.' The Commissioner instead weighs these opinions based on the examining relationship (or lack thereof), specialization, consistency, and supportability, but only if a treating-source opinion is not deemed controlling. Other facts `which tend to support or contradict the opinion' may be considered in assessing any type of medical opinion." Id. (citing 20 C.F.R. §§404.1572(c), 404.1527(c)(6)).
Plaintiff reads Judge Rice's remand Order as directing the ALJ to address "two issues: Restrictions concerning clean air environment in the workplace and deference to Dr. Frank's opinion." (Doc. #8, PageID at 63). Plaintiff then acknowledges that ALJ McNichols addressed the "clean air" issue. In this manner, Plaitniff first focuses her challenge on the ALJ's failure to consider Dr. Franks' opinion. Plaintiff contends, "The ALJ was under the erroneous impression the case was only remanded to consider the clean air environment (Tr. 864); thereby, failing to consider whether the opinion of Dr. Frank is due deference, as directed by Judge Rice." Id. (internal citations omitted).
The Commissioner maintains:
(Doc. #12, PageID at 83).
The Commissioner misreads the remand decision by overlooking Judge Rice's main point: the ALJ "failed to provide sufficient reasoning, pursuant to the Commissioner's Regulations and prevailing case law, for rejecting the opinion of Plaintiff's treating physician, Dr. Karen Frank, M.D." (Tr. at 885). Although Judge Rice addressed the ALJ's omission of Plaintiff's inability to be "around perfumes, cologne, aftershave lotion, etc." (Tr. 885-86), this arose as single example of the overarching flaw — the ALJ's failure to sufficiently explain his reasoning concerning Dr. Frank's opinions — in the ALJ's first decision. This is seen in Judge Rice's use of the introductory phrase, "For example. . . ." (Tr. 885). In addition, Judge Rice pointed out the ALJ's failure to comply with the regulations by observing that the ALJ "failed to give deference to the opinion of Dr. Frank, even if unable to give said medical provider's opinion controlling weight." (Tr. at 886); see Gayheart, 710 F.3d at 376 (when the treating physician rule does not apply, ALJ must continue to weigh a treating physician's opinions under specific regulatory factors in §404.1527(d)(2-(6)). It is, moreover, easy to again spot Judge Rice's overriding concern in his specific remand instruction:
(Tr. 887). The issue thus becomes whether the ALJ's second decision contains full and adequate reasons, as the Regulations and case law require, for rejecting Dr. Frank's opinions. It does not.
Although the ALJ addressed Dr. Frank's reference to Plaintiff's "perfume/cologne" limitation, the ALJ's remaining review of Dr. Frank's opinions merely references the discussion in the ALJ's first nondisability decision. Because Judge Rice found that discussion inadequate — and because Judge Rice vacated the Commissioner's first nondisability decision (Tr. at 887) — it was error for the ALJ to rely on his prior discussion of Dr. Franks without providing "full and adequate reasons . . . for giving or for failing to give .. . the opinion of Dr. Karen Frank controlling or, at the very least, deferential weight . . . ." (Tr. 887).
Furthermore, the ALJ's first nondisability decision credited the opinions of two stateagency physicians, Drs. Holbrook and Pangalangan, over the opinions of Plaintiff's treating physician, Dr. Frank. The ALJ's second decision did not address the opinions provided by Drs. Holbrook and Pangalangan. The Commissioner is thus presently left with the ALJ's prior acceptance of Dr. Holbrook's and Dr. Pangalangan's opinions to support the ALJ's second rejection of Dr. Frank's opinions. This is problematic because the ALJ's first nondisability decision provided no meaningful evaluation of the opinions provided by Drs. Holbrook and Pangalangan. The ALJ only considered one factor applicable under the Regulations by noting that their "conclusions are consistent with the updated medical records. . . ." (Tr. at 28); see 20 C.F.R. §404.1527(c) ("we consider all of the following factors in deciding the weight to give any medical opinion. . . ."); see also 20 C.F.R. §404.1527(e) (factors apply to opinions of state agency consultants and medical experts); Social Security Ruling 96-6p, 1996 WL 374180 at *2 (same).
Even if it sufficed for the ALJ to apply only the consistency factor to the state-agency physicians' opinions, substantial evidence does not support the ALJ's reasons for rejecting Dr. Frank's opinions. The ALJ recognized that Dr. Frank completed two Basic Medical Forms, assessing Plaintiff's ability to work. In August 2003, Dr. Frank indicated that Plaintiff could not walk more than two hours a day and for only one hour at a time. She noted that Plaintiff's ability to sit during the workday was not affected. However, Dr. Frank noted that Plaintiff could not lift more than 10 pounds occasionally or frequently. And Dr. Frank noted that Plaintiff was moderately limited in her ability to push/pull. (Tr. at 558). By September 2004, Dr. Frank indicated that Plaintiff could not walk or stand without becoming short of breath. She again indicated that Plaitniff could only lift 10 pounds occasionally and five pounds frequently. (Tr. at 531). Although ALJ McNichols acknowledged that Dr. Frank had completed basic medical forms in August 2003 and September 2004, the ALJ maintained that these assessments "essentially portray the claimant as partially bedfast due to the severity of her respiratory complaints." (Tr. at 30). Yet it is unclear how Dr. Frank's opinions were consistent with a person that was "partially bedfast." Exertionally, Dr. Frank has always assumed that Plaintiff was unlimited in her ability to sit. (Tr. at 531, 558).
The ALJ also discounted Dr. Frank's opinion on the ground that she "appears to have based her conclusion that the claimant is disabled from all work activity primarily upon the claimant's subjective allegations and complaints, and she does not appear to have made any effort to determine whether the claimant's complaints are adequately supported by the medical evidence of record." (Tr. at 30). The ALJ, however, fails to cite to any evidence supporting these reasons. Dr. Frank, moreover, did not simply base her restrictions on Plaintiff's subjective allegations. She specifically noted in her August 2003 opinion that the results of a pulmonary function study showing FEV-l at 61% and DLCO at 36% led her to her conclusions. (Tr. at 558). These were indeed the results of a pulmonary function study administered by a specialist — pulmonologist Dr. Anigbogu in June 2002. (Tr. at 279). Significantly, Dr. Anigbogu reached conclusions similar to Dr. Frank's, concerning Plaintiff's ability to work. Dr. Anigbogu noted that Ms. Spaugy could stand/walk for no more than two hours and for only one hour at a time. Dr. Anigbogu indicated that Ms. Spaugy could only lift up to 10 pounds. And Dr. Anigbogu noted Ms. Spaugy was moderately limited in her ability to push/pull. (Tr. at 264).
Accordingly, because the ALJ's second decision did not contain full and adequate reasons for rejecting Dr. Frank's opinions, the decision fails to comply with Judge Rice's remand Order.
If the ALJ failed to apply the correct legal standards or his factual conclusions are not supported by substantial evidence, the Court must decide whether to remand the case for rehearing or to reverse and order an award of benefits. 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 (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. Secretary of H.H.S., 17 F.3d 171, 176 (6th Cir. 1994).
A judicial award of benefits is unwarranted in the present case because the evidence of disability is not overwhelming and because the evidence of a disability is not strong while contrary evidence is weak. See Faucher, 17 F.3d at 176.
Plaintiff, however, is entitled to an Order remanding this case to the Social Security Administration pursuant to Sentence Four of §405(g) due to problems set forth above. On remand the ALJ should be directed to (1) evaluate all the medical source opinions of record under the legal criteria applicable under the Commissioner's Regulations and Rulings and as mandated by case law; and (2) review Plaintiff's disability claim under the required five-step sequential analysis to determine anew whether Plaintiff was under a disability and thus eligible for DIB and/or SSI.
2. No finding be made as to whether Plaintiff Victoria Spaugy was under a "disability" within the meaning of the Social Security Act;
3. This case be remanded to the Commissioner and the Administrative Law Judge under Sentence Four of 42 U.S.C. §405(g) for further consideration consistent with this Report; and
4. The case be terminated on the docket of this Court.
