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 not entitled to disability insurance benefits ("DIB"). (See Administrative Transcript ("Tr.") (Tr. 11-18) (ALJ's decision)).
Plaintiff filed for DIB on January 20, 2011, alleging disability beginning April 23, 2010, due to a combination of physical impairments. (Tr. 11, 135, 181). His applications were denied initially and upon reconsideration. (Tr. 58-75). Plaintiff appeared and testified at a hearing on October 9, 2012. The ALJ issued a decision on November 16, 2012, concluding that Plaintiff was not disabled and retained the RFC to perform a reduced range of light exertional work.
The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. (Tr. 1-3). The Court has jurisdiction pursuant to 42. U.S.C. §§ 405(g) and 1383(c).
Plaintiff was born on May 30, 1962 and was approximately 50 years old on the date of his hearing. (Tr. 27). Plaintiff obtained his Associate's Degree in electronic engineering technology. (Tr. 29). Plaintiff's past relevant work experience includes work as a commodity manager.
The ALJ's "Findings," which represent the rationale of his decision, were as follows:
(Tr. 13-17).
In sum, the ALJ concluded that Plaintiff was not under a disability as defined by the Social Security Regulations, and was therefore not entitled to DIB. (Tr. 18).
On appeal, Plaintiff argues that: (1) the ALJ failed to properly weigh the medical opinions and work-related limitations; (2) the ALJ failed to properly evaluate Plaintiff's credibility and subjective complaints; and (3) the vocational expert erred in relying on improper hypotheticals. The Court will address each error in turn.
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 (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).
The claimant bears the ultimate burden to prove by sufficient evidence that he is entitled to disability benefits. 20 C.F.R. § 404.1512(a). That is, he must present sufficient evidence to show that, during the relevant time period, he suffered an impairment, or combination of impairments, expected to last at least twelve months, that left him unable to perform any job in the national economy. 42 U.S.C. § 423(d)(1)(A).
The record reflects that:
On April 30, 2010, Dr. Paul Conover performed surgery on the Plaintiff for colon cancer. (Tr. 257-259, 273-276, 358-359). Since the surgery, Plaintiff has experienced problems with diarrhea and erratic bowel movements. (Tr. 362). Dr. Robert Smith, a treating family doctor, noted diarrhea multiple times a day in August 2011. (Tr. 443).
In August 2011, Plaintiff was also examined by orthopedic surgeon Aivars Vitols, D.O., at the request of the state agency. Plaintiff reported to Dr. Vitols that he was diagnosed with rectal adenocardinoma in 2010, got a colon resection,
In September 2011, Plaintiff's medical records were reviewed by state agency reviewing physician Diane Manos, M.D. (Tr. 63-64). Dr. Manos discussed Plaintiff's history of colorectal cancer in detail, as well as his residual complaints of "irregular and urgent and often uncontrollable bowel movements" that occurred "6-12x a day." (Tr. 63). She noted that in April 2011, Plaintiff was "having intermittent episodes of rectal bleeding frequently, but has resolved since 1/11," but that he still had "erratic bowl habits." (Tr. 63-64). Still, Dr. Manos found that Plaintiff's physical impairments were not severe within the meaning of the Social Security Act and exertional limitations were not warranted. (Id.)
In October 2011, Plaintiff's primary care physician, Paul Conover, M.D., noted that Plaintiff had "done well" since his surgery, with good appetite, no nausea, and no vomiting. (Tr. 454). Dr. Conover noted that Plaintiff's "erratic bowel habits continue to improve and every second or third day he will have diarrhea with up to six loose bowel movements in a three hour period." (Tr. 452). However, Dr. Conover noted that Plaintiff was not using anti-diarrheal medicine despite his complaints.
In December 2011, Steve McKee, M.D., conducted a separate review of Plaintiff's records for the state agency. He noted that in July 2011, Plaintiff's "colon cancer [was] in remission" but he still was complaining of "frequent bowel movements as a result of colon resection, but this is improving over time." (Tr. 72). Based on otherwise normal diagnostic testing and normal clinical observations, Dr. McKee also found that Plaintiff's physical impairments were not severe within the meaning of the Social Security Act and exertional limitations were not warranted. (Tr. 71-72).
In January 2012, Dr. Conover noted that Plaintiff was doing "relatively well," with good appetite, no nausea and no vomiting. (Tr. 452). Dr. Conover noted that Plaintiff's "erratic bowel habits continue to improve." (Id.)
In May 2012, Dr. Conover noted that Plaintiff's most recent colonoscopic examination was unremarkable. (Tr. 450). He reported that Plaintiff was doing "relatively well," with good appetite, no nausea, and no vomiting. (Id.) Dr. Conover noted that Plaintiff was eating a new diet with smaller portion and that "has helped to improve his erratic bowel habits." (Id.) Dr. Conover also noted that Plaintiff had no abdominal or incisional pain. (Id.) Dr. Conover reported that "visual examination of the anal orifice and perineum is unremarkable." (Id.) He concluded that Plaintiff "is now two years out from his surgery for treatment of an early staged rectal cancer with no evidence of recurrence." (Id.) In June 2012, Dr. Conover wrote a letter stating that
(Tr. 477).
On March 28, 2012, Dr. Smith reported that Plaintiff was unable to participate in job-search classes from March 28, 2012 until June 28, 2012 due to diarrhea. (Tr. 15).
First, Plaintiff argues that the ALJ failed to properly weigh the medical opinions and work-related limitations.
"In assessing the medical evidence supporting a claim for disability benefits, the ALJ must adhere to certain standards." Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009).
(Id.) "The ALJ `must' give a treating source opinion controlling weight if the treating source opinion is `well supported by medically acceptable clinical and laboratory diagnostic techniques' and is `not inconsistent with the other substantial evidence in [the]case record.'" Id. "If the ALJ does not accord controlling weight to a treating physician, the ALJ must still determine how much weight is appropriate by considering a number of factors, including the length of the treatment relationship, supportability of the opinion, consistency of the opinion with the record as a whole, and any specialization of the treating physician." Id.
The Commissioner's regulations establish a hierarchy of acceptable medical source opinions. The hierarchy begins at the top with treating physicians or psychologists. 20 C.F.R. §§ 404.1527(d)(2) and 416.927(d)(2). Next in the hierarchy are examining physicians and psychologists, who often see and examine claimants only once. See 20 C.F.R. §§ 404.1527(d) and 416.927(d). In general, more weight is given to examining medical source opinions than is given to the opinions of non-examining medical sources. See 20 C.F.R. §§ 404.1527(d)(1) and 416.927(d)(1). Still, nonexamining physicians' opinions are on the lowest rung of the hierarchy of medical source opinions.
SSR 96-6p. "The opinion of a non-examining physician is entitled to little weight if it is contrary to the opinion of the claimant's treating physician." Shelman v. Heckler, 821 F.2d 316, 321 (6th Cir. 1987).
Plaintiff argues that Dr. Conover's opinion should have been afforded the most weight because of the treatment relationship (since April 2010), specialization (colon and rectal surgeon), supportability, and consistency. Additionally, Plaintiff argues that the ALJ failed to give "good reasons" in his decision to reject the treating physician. Dr. Conover determined that it was "a medical necessity for Mr. Nessle to work in an environment where restroom facilities are readily available" and the ALJ's RFC included a limitation that Plaintiff "must have ready access to restroom facilities." (Tr. 14, 477). However, the ALJ failed to account for Dr. Conover's October 2011 finding that Plaintiff would be absent from work four days a month. (Tr. 448). While Dr. Conover did not expressly state that Plaintiff's need for bathroom breaks would be disabling, he did find that Plaintiff would be unable to work four days per month, which renders him disabled. See 1996 SSR LEXIS 5 (missing four days per month because of impairments renders the claimant unable to perform full time work).
Defendant argues that because Plaintiff's bowel health continued to improve in the nine months between October 2011 and June 2012,
While the record indicates that Plaintiff's bowel health improved and stabilized, it continues to significantly affect his ability to work. On a typical day, Plaintiff must use the restroom 6-8 times during the day. (Tr. 32).
Moreover, Dr. Conover's opinion is not inconsistent with the other physicians of record. For example, Plaintiff relies, in part, on Dr. Vitols, a one-time examining orthopedic physician. The fact that Dr. Vitols, an orthopedic specialist, did not address Plaintiff's bowel issues does not suggest that Plaintiff does not have an impairment.
Accordingly, Dr. Conover was entitled to controlling weight. Therefore, the ALJ's opinion is not supported by substantial evidence.
Next, Plaintiff alleges that the ALJ failed to properly evaluate his credibility and subjective complaints.
On review of substantial evidence, courts must accord great deference to the ALJ's credibility determinations. Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003). Despite this deference, "an ALJ's assessment of a claimant's credibility must be supported by substantial evidence." Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997).
Defendant argues that the record is replete with support for the ALJ's finding that Plaintiff's complaints of debilitating impairments were not entirely credible. The Court disagrees. First, Defendant argues that Plaintiff's surgery for rectal cancer was successful, there has been no recurrence of the cancer, and that Plaintiff's "treatment since the surgery has been conservative/routine in nature." (Tr. 16). However, the fact that there has been no recurrence of cancer and that Plaintiff only sees his surgeon twice a year is completely irrelevant to his alleged debilitating condition — erratic bowel movements. Plaintiff does not allege disability due to cancer, he alleges disability due to debilitating diarrhea.
Next, Defendant suggests that the fact that Plaintiff was looking for employment undermines a finding that he could work. Plaintiff participated in some job search classes because in order to obtain food stamps in Warren County, individuals must perform physical work or engage in a job search. (Tr. 45). Plaintiff was told that physical work entailed doing public works jobs like painting and raking — tasks that he could not perform because of his medical condition. (Tr. 45-46). Accordingly, the record supports a finding that Plaintiff was not participating in a job search process, he was simply fulfilling a prerequisite to be eligible for food stamps. (Id.)
Next, the ALJ claims that Plaintiff's daily activities (walk two miles, lift 40-50 pounds, drive, cook, do the dishes, sweep, vacuum, do laundry, make the bed, grocery shop, and visit friends and family) do not support a finding of disability. (Tr. 16). However, the fact that Plaintiff was able to complete these tasks does not contradict his claim of disability. Plaintiff was able to complete these tasks when he was feeling well. Plaintiff himself admitted that but for the erratic bowel movements he could work. Plaintiff is able to structure his daily activities at home to perform these activites, but would not be able to do so in the workplace.
Moreover, the record shows that Plaintiff had a strong work ethic and work history before he was diagnosed with rectal cancer. Specifically, Plaintiff worked for Reed Elsevier from 1995-2008, earning approximately $100,000 per year when he left to take a job at Teradata where he made approximately $107,000 per year until he stopped working in 2010 because of rectal cancer. (Tr. 178-169). It is nonsensical that Plaintiff would voluntarily choose to forgo a significant salary and benefits to stay at home and live on a fraction of that income with disability insurance benefits. An ALJ is required to consider a claimant's prior work history when weighing the claimant's credibility. O'Donnell v. Barnhart, 318 F.3d 811, 816 (8th Cir. 2003). There is no indication that the ALJ considered Plaintiff's prior work history in this case.
Accordingly, the ALJ's assessment of Plaintiff's credibility is not supported by substantial evidence.
Finally, the ALJ claims that the vocational expert erred in relying on improper hypotheticals.
Plaintiff argues that the ALJ's hypothetical question to the vocational expert was improper because it did not include the full extent of his restroom-related limitations. Specifically, the ALJ's hypothetical included all of the limitations in his RFC, including the exact language regarding "ready access to restroom facilities," as well as "no assembly line work and no exposure to or working with the general public." (Tr. 50-53). Plaintiff argues that the ALJ's hypothetical was improper because it left out "the supported number of bathroom breaks Mr. Nessle would require." (PageID 512). When given a hypothetical that Plaintiff would be away from the workstation about 15 minutes, would have advanced notice of 5-10 minutes, and would miss work about 4 days a month, the vocational expert found that Plaintiff could not sustain full-time employment. (Tr. 55). The fact that Plaintiff would need to have ready access to the bathroom does not take into account how frequently Plaintiff must use the bathroom, the length of time he spends in the bathroom, the amount of sleep he gets at night due to his bowel issues, how many days of work each month he would miss, and how all of these issues effect his productivity at work. The vocational expert specifically testified that Plaintiff could not sustain work under these conditions. (Tr. 55).
Accordingly, the vocational expert erred in relying on an improper hypothetical. The fact that Plaintiff would miss approximately four days of work each month and would be required to take 15 minute bathroom breaks 6-8 times each day renders him disabled.
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 (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); see also Abbott v. Sullivan, 905 F.2d 918, 927 (6th Cir. 1990); Varley v. Sec'y of Health & Human Servs., 820 F.2d 777, 782 (6th Cir. 1987).
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; see also Felisky, 35 F.3d at 1041; Mowery v. Heckler, 772 F.2d 966, 973 (6th Cir. 1985). Such is the case here.
Here proof of disability
The decision of the Commissioner, that Philip Nessle was not entitled to disability insurance benefits is hereby found to be
