Michael J. Newman, United States Magistrate Judge.
This Social Security disability benefits appeal is presently before the undersigned for disposition based upon the parties' consent. Doc. 5. At issue is whether the Administrative Law Judge ("ALJ") erred in finding Plaintiff not "disabled" and therefore unentitled to Disability Insurance Benefits ("DIB"). This case is before the Court upon Plaintiff's Statement of Errors (doc. 12), the Commissioner's memorandum in opposition (doc. 13), Plaintiff's reply (doc. 15), the administrative record (docs. 7-8),
Plaintiff filed for DIB on March 14, 2011 alleging a disability onset date of August 26, 2008. PageID 48. Plaintiff claims disability
After initial denial of his application, Plaintiff received a hearing before ALJ Kim S. Nagle on October 10, 2012. PageID 68. The ALJ issued a written decision thereafter finding Plaintiff not disabled at Step Four of the sequential benefits analysis. See infra (explaining Step Fourt); see also PageID 48-62. Specifically, the ALJ's findings were as follows:
PageID 51-61.
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 35-37. Plaintiff then filed this timely appeal. Cook v. Comm'r of Soc. Sec., 480 F.3d 432, 435 (6th Cir.2007) (noting that, "[u]nder the Federal Rules of Appellate Procedure, [claimant] had 60 days from the Appeals Council's notice of denial in which to file his appeal").
In her decision, the ALJ set forth a detailed recitation of the underlying medical evidence in this case. PageID 51-60. Plaintiff, in his Statement of Errors, sets forth a summary of the record evidence. Doc. 12 at PageID 1223-31. The Commissioner presents no specific objection to Plaintiff's summary. Doc. 13 at PageID 1241-42. Accordingly, except as otherwise noted in this Decision and Entry, the undersigned incorporates Plaintiff's summary and the ALJ's recitation of the evidence.
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); Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir.2007). In performing this review, the Court must consider the record as a whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir.1978).
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). When 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. Buxton v. Halter, 246 F.3d 762, 772 (6th Cir.2001). Thus, the ALJ has a "`zone of choice' within which he [or she] can act without the fear of court interference." Id. at 773.
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). "[A] decision of the Commissioner will not be upheld where the [Social Security Administration] 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 be eligible for disability benefits, a claimant must be under a "disability" as defined by the Social Security Act. 42 U.S.C. § 423(d)(1)(A). Narrowed to its statutory meaning, a "disability" includes physical and/or mental impairments that are both "medically determinable" and severe enough to prevent a claimant from (1) performing his or her past job and (2) engaging in "substantial gainful activity" that is available in the regional or national economies. Id.
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); see also 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. Comm'r of Soc. Sec., 109 F.3d 270, 274 (6th Cir.1997).
In his Statement of Errors, Plaintiff alleges the ALJ erred by: (1) failing to properly weigh treating source opinions; (2) misinterpreting the vocational expert's ("VE") testimony in finding that he can perform his past relevant work despite his physical limitations; and (3) finding him not credible.
The Court first addresses Plaintiff's contention that the ALJ erroneously weighed the opinions of: (1) Scott West, D.O., his treating neurosurgeon; and (2) Robert Kominiarek, M.D., his treating family physician. PageID 1233-37. "[T]he Commissioner's regulations establish a hierarchy of acceptable medical source opinions[.]" Snell v. Comm'r of Soc. Sec., No. 3:12-cv-119, 2013 WL 372032, at *9 (S.D.Ohio Jan. 30, 2013). Treating physicians and psychologists top the hierarchy. Id. "Next in the hierarchy are examining physicians and psychologists, who often see and examine claimants only once." Id. "[N]on-examining physicians' opinions are on the lowest rung of the hierarchy of medical source opinions." Id. "The regulations provide progressively more rigorous tests for weighing opinions as the ties between the source of the opinion and the individual [claimant] become weaker." Id. (citing SSR 96-6p, 1996 WL 374180, at *2 (July 2, 1996)).
"An ALJ is required to give controlling weight to `a treating source's opinion on the issue(s) of the nature and severity of [the claimant's] impairment(s)' if the 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.'" LaRiccia v. Comm'r of Soc. Sec., 549 Fed.Appx. 377, 385 (6th Cir.2013) (citation omitted) (alterations in original). This requirement is known as the "treating physician" rule. Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir.2009) (citations omitted). Greater deference is given to treating source opinions "since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations[.]" 20 C.F.R. § 404.1527(c)(2); see also Blakley, 581 F.3d at 406. An ALJ must give controlling weight to a treating source's opinion if the ALJ finds it well-supported by medically acceptable evidence and not inconsistent with other substantial evidence in the record. Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir.2004).
Closely associated with the treating physician rule is the "good reasons rule," which "require[s] the ALJ to always give good reasons in [the] notice of determination or decision for the weight given to the claimant's treating source's opinion." Blakley, 581 F.3d at 406-07. "Those good reasons must be `supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight.'" Id. Thus, when the ALJ declines to give controlling weight to a treating physician's assessment, "the ALJ must
Here, Dr. West opined that Plaintiff could only stand and sit for thirty minutes at a time; work only four hours per day; lift twenty pounds occasionally; lift five pounds frequently; and only occasionally bend, stoop, and balance. PageID 1200-01. Dr. Kominiarek opined that Plaintiff could only stand and sit fifteen minutes at a time; work no hours per day; lift no weight even occasionally; and could never bend, stoop, or balance. PageID 1202-03. The ALJ declined to give controlling weight to these treaters' opinions because she found that they are "inconsistent with other substantial evidence in the record; specifically, the opinion evidence of the reviewing physicians, the opinion of the consultative examiner, the objective signs evidence in the consultative examiner's report and the objective imaging studies in [the] record." PageID 58. Plaintiff argues that the ALJ's finding concerning inconsistent clinical signs and objective imaging studies "is entirely unsubstantiated," and points to numerous records indicating "the presence of a significant pathology in both Plaintiff's lumbar and cervical spine." Doc. 12 at PageID 1234.
However, the records cited by Plaintiff mostly predate the alleged onset date of August 26, 2008, with some dating as far back as 1992. See, e.g., PageID 399-411, 575. On the other hand, the ALJ relied significantly on objective testing and clinical findings found closer in time to Plaintiff's alleged onset date, including: (1) a note from March 26, 2008 stating that Plaintiff's lumbar "x-rays look excellent with evidence of a solid fusion[,]" PageID 386; and (2) an imaging report from January 23, 2009, noting that an x-ray of Plaintiff's cervical spine, following surgery, revealed a stable fusion and no other remarkable findings, PageID 468. Accordingly, the Court finds that the ALJ appropriately assessed the relevant objective evidence, and her conclusion — to not accord controlling weight to Plaintiff's treaters — is supported by substantial evidence.
"[I]n all cases there remains a presumption, albeit a rebuttable one, that the opinion of a treating physician is entitled to great deference, its non-controlling status notwithstanding." Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007) (citing Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *4). The ALJ's analysis of the factors set forth in 20 C.F.R. § 404.1527(c) in determining the ultimate weight accorded, however, presents some issues. See PageID 58-59. Notably, the ALJ afforded "little weight" to the treaters' opinions because they were issued years after Plaintiff's date last insured and, therefore, were "retroactive."
The "regulations do not allow the application of greater scrutiny to a treating-source opinion as a means to justify giving such an opinion little weight." Gayheart v. Comm'r of Soc. Sec., 710 F.3d 365, 380 (6th Cir.2013). In fact, the regulations specifically state that, "[w]hen the treating source has reasonable knowledge of [Plaintiff's] impairment(s)," which, without dispute, the treaters in this case do, the Commissioner "will give the source's opinion more weight than we would give it if it were from a nontreating source." 20 C.F.R. § 404.1527(c)(2)(ii). Here, the Court finds that the ALJ's critique, regarding the treaters' "retroactive" opinions, applies equally to the opinions of the state agency physicians — who never had the opportunity to personally examine Plaintiff at any time
Further, in analyzing Dr. West's opinion, the ALJ found that his treatment relationship with Plaintiff was "short-term." PageID 58. Dr. West performed three separate spinal surgeries on Plaintiff over a six year period. PageID 426-27, 459-60; doc. 12 at PageID 1236. The Commissioner acknowledges the length and nature of Plaintiff's treating relationship with Dr. West, but argues that such treatment was "for short intervals over that span, most of which were related to surgeries, evaluations for surgeries, and follow-up appointments[,]" and that such "evidence of sporadic treatment[] does not undermine the ALJ's conclusion." Doc. 13 at PageID 1248. The ALJ, however, never provided such an explanation in her opinion.
The Court finds that, at best, the ALJ's statement regarding a "short-term" relationship is not a "good reason" because, in the absence of further explanation, such reason is ambiguous and not "sufficiently specific to make clear to [the Court] ... the reasons for [the] weight" given. See Gayheart, 710 F.3d at 376. At worst, such reason is one wholly unsupported by the record, i.e., a treatment relationship that included three separate surgeries spanning a period of six years cannot reasonably be considered "short-term." Finally, the Court notes, again, the record reviewing physicians had
The Court does note, however, that other reasons set forth by the ALJ in diminishing the weight accorded to the treaters' opinions are supported by the record, namely: medical findings from the relevant time period noting improvement in Plaintiff's condition and increased activity, see PageID 58, 286, 412, 428, 1096; and the opinion of examining physician Lynn Richardson, D.O.,
Plaintiff also alleges that the vocational expert's (VE) testimony contradicts the ALJ's conclusion that Plaintiff can perform his past relevant work despite his physical limitations. PageID 1231. During the administrative hearing, the VE testified that Plaintiff would be able to perform his past work as a production worker or materials handler if he could perform medium exertional work and could frequently bend, twist, turn, push, pull, squat, kneel, and reach below the knee. PageID 98-99. In her decision, the ALJ found that Plaintiff could perform medium exertional work with only occasional balancing, stooping, kneeling, crouching, and climbing. PageID 53. Notably, although the ALJ, in her decision, states that she relied on the VE's testimony in finding that Plaintiff could perform his past relevant work, the VE never testified that Plaintiff could perform such work if limited to medium work and only occasional balancing, stooping, kneeling, crouching, and climbing. See id. The Court, therefore, finds the VE's testimony does not support the ALJ's conclusion that Plaintiff can perform his past relevant work.
An ALJ is "not required to solicit testimony from a VE in reaching his [or her] conclusion" as to whether a claimant is "capable of performing past relevant work[.]" Wright-Hines v. Comm'r of Soc. Sec., 597 F.3d 392, 395 (6th Cir.2010). Instead, the regulations state that an ALJ "may use the services of vocational experts... to obtain evidence ... to help ... determine whether [the claimant] can do ... past relevant work, given [his or her] [RFC]." 20 C.F.R. § 404.1560(b)(2). Nevertheless, remand is appropriate where "the ALJ used the [VE's] testimony to assist him in deciding whether plaintiff could perform his past relevant work[,]" and "the VE's testimony is somewhat confusing." See D'Angelo v. Comm'r of Soc. Sec., 475 F.Supp.2d 716, 724 (W.D.Mich. 2007). Here, it is not clear from the VE's testimony that Plaintiff is capable of performing his past relevant work based upon the RFC determined by the ALJ. Accordingly, "on remand, the Commissioner should re-evaluate the evidence to determine whether plaintiff can perform his past relevant work[.]" Id.
"Plaintiff also argues that the VE's testimony establishes that he is incapable of medium work" and, therefore, he is disabled as a matter of law under the Grid.
Further, Grid "Rule 202.06 directs a finding of disabled if the claimant falls within the `advanced age' category and is limited to light work." Maher v. Comm'r of Soc. Sec., No. 1:11-CV-1330, 2012 WL 3258099, at *8 (N.D.Ohio Aug. 8, 2012) (citing 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 202.06). Here, however, the RFC determined by the ALJ does not limit Plaintiff to "light work" and, instead, limits him to a reduced range of medium work. See 20 C.F.R. § 404.1567. The VE's testimony does not change this fact. See Anderson v. Comm'r of Soc. Sec., 406 Fed.Appx. 32, 35 (6th Cir.2010) (stating that "[t]he VE does not testify as to what the claimant is physically capable of doing," and, instead, "the VE's testimony depends upon the RFC and not the other way around"). Simply put, "Plaintiff's inability to perform the full range of medium work does not mean that he only has the RFC to perform light work." Obispo v. Astrue, No. CV 11-9381-SP, 2012 WL 4711763, at *3 (C.D.Cal. Oct. 3, 2012)
For the foregoing reasons, the Court finds that the ALJ erred in relying on the VE's testimony to conclude Plaintiff is capable of performing his past relevant work. The Court further finds, however, that application of the Grid, at this point, does not direct a disability finding.
In his final assignment of error, Plaintiff argues that the ALJ's credibility findings are unreasonable. PageID 1237-39. Given the Court's determination — that the ALJ failed to properly weigh all medical source opinions of record, and erroneously relied on the testimony of the VE in determining that Plaintiff is capable of performing his past relevant work — the Court makes no finding with regard to this alleged error. Instead, upon remand, the ALJ shall analyze Plaintiff's alleged symptoms and determine his credibility anew.
When the ALJ's non-disability determination is unsupported by substantial evidence, the Court must determine whether to remand the matter for rehearing or to order an award of benefits. Generally, benefits may be awarded immediately "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 only award benefits where 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 proof of disability is overwhelming. Id.
In this instance, evidence of disability is not overwhelming in light of differing medical opinion evidence. See PageID 451-61. Accordingly, the Court concludes that a remand for further proceedings
For the foregoing reasons: (1) the Commissioner's non-disability finding is found unsupported by substantial evidence, and
