MICHAEL J. NEWMAN, Magistrate Judge.
This is a Social Security disability benefits appeal. At issue is whether the Administrative Law Judge ("ALJ") erred in finding Plaintiff not "disabled" for the closed period of January 10, 2005 through April 26, 2010, and therefore unentitled to Disability Insurance Benefits ("DIB") during that closed period. This case is before the Court upon Plaintiff's Statement of Errors (doc. 6), the Commissioner's memorandum in opposition (doc. 7), Plaintiff's reply (doc. 9), the administrative record (doc. 5), and the record as a whole.
Plaintiff filed an application for DIB asserting disability as of January 10, 2005 as a result of a number of impairments including, inter alia, osteoarthritis in the right, dominant wrist with residuals of surgery, and degenerative changes in the lumbar spine (a bulging disc and facet arthropathy). PageID 43.
On February 12, 2010, Plaintiff had a hearing before ALJ Amelia Lombardo. PageID 117, 130-31. On August 17, 2010, the ALJ issued a decision finding Plaintiff disabled by application of the Medical Vocational Guidelines ("Grid")
On remand, Plaintiff received a second hearing before ALJ Lombardo on February 12, 2014. PageID 84. The ALJ issued a written decision on May 27, 2014, again finding Plaintiff (1) not disabled from January 10, 2005 through April 26, 2010, but (2) disabled from that latter date and thereafter. PageID 61-77. Specifically, the ALJ's findings were as follows:
PageID 43-50.
Thereafter, the Appeals Council denied review on September 15, 2015 making the ALJ's non-disability finding the final administrative decision of the Commissioner. PageID 28. 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"). Plaintiff challenges just the ALJ's non-disability finding. Accordingly, the ALJ's determination — that Plaintiff is disabled as of April 26, 2010 — is not before the Court on appeal.
In her decision, the ALJ set forth a detailed recitation of the underlying medical evidence in this case. PageID 43-47. Plaintiff, in his Statement of Errors, also summarizes the evidence of record. Doc. 6 at PageID 511-17. The Commissioner, in response to Plaintiff's Statement of Errors, defers to the ALJ's recitation of the evidence, and presents no objection to Plaintiff's summary. Doc. 7 at PageID 530. Except as otherwise noted herein, the undersigned incorporates the summary of evidence as set forth by the ALJ and Plaintiff.
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 (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 disability 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 argues that the ALJ erred by failing to properly: (1) weigh the medical source opinions — including the opinions of treating orthopedic surgeon Peter S. Barre, M.D. and treating primary care physician Kent K. Scholl, M.D.; (2) apply Social Security Rulings 83-10 and 83-12 with respect to the Grid; (3) assess the testimony of the Vocational Expert ("VE"); and (4) make a Step Five determination supported by substantial evidence. Doc. 6 at PageID 517. Finding Plaintiff's first alleged error to be well taken, the undersigned does not address the merits of Plaintiff's remaining contentions, but would direct that the ALJ reassess her findings on remand, including the weight accorded to all medical source opinions and application of the Grid.
"[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). In descending order, these medical source opinions are: (1) treaters; (2) examiners; and (3) record reviewers. Id.
A treater's opinion must be given "controlling weight" if "well-supported by medically acceptable clinical and laboratory diagnostic techniques and . . . not inconsistent with the other substantial evidence in [the] case record." LaRiccia v. Comm'r of Soc. Sec., 549 F. App'x 377, 384 (6th Cir. 2013). Treaters are entitled to greater deference because they "are likely to be . . . most able to provide a detailed, longitudinal picture of [a 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). Even if a treater's opinion is not entitled to controlling weight, "the ALJ must still determine how much weight is appropriate by considering a number of factors, including the length of the treatment relationship and the frequency of examination, the nature and extent 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." Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see also 20 C.F.R. § 404.1527(c).
After treaters, "[n]ext in the hierarchy are examining physicians and psychologists, who often see and examine claimants only once." Snell, 2013 WL 372032, at *9. "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)).
Record reviewers are afforded the least deference and these "non-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)).
Unless the opinion of the treating source is entitled to controlling weight, an ALJ must "evaluate all medical opinions" with regard to the factors set forth in 20 C.F.R. § 404.1527(c), i.e., length of treatment history; consistency of the opinion with other evidence; supportability; and specialty or expertise in the medical field related to the individual's impairment(s). Walton v. Comm'r of Soc. Sec., No. 97-2030, 1999 WL 506979, at *2 (6th Cir. June 7, 1999).
Dr. Barre, Plaintiff's orthopedic surgeon, treated him from February 8, 2005 to February 18, 2008. PageID 469-78. When Dr. Barre first began treating Plaintiff, he observed swelling in Plaintiff's carpal area and noted positive Tinel's signs, decreased sensation, and palpable tenderness in Plaintiff's wrist. PageID 478-79. On March 14, 2005, Dr. Barre performed surgery on Plaintiff's right wrist. PageID 477. In post-surgical follow-ups, Dr. Barre noted that Plaintiff continued to experience significant pain, and an examination revealed tenderness and a limited range of right wrist motion. PageID 472-77. X-rays showed "a narrowing of the radiocarpal joint[.]" PageID 473.
After seeing no improvement in Plaintiff's wrist pain and movement by December 2006, Dr. Barre performed a second surgery on Plaintiff's right wrist. PageID 417-18, 471. Postsurgery, Plaintiff attended regular follow-up consultations with Dr. Barre through April 2008. PageID 468-71. In these follow-ups, Plaintiff continued to complain of pain and Dr. Barre continued to note tenderness and swelling, stating that "[u]nfortunately, I think this is a permanent problem of his upper extremity . . . that limits [Plaintiff's] ability to do any type of work." PageID 468-70. In fact, Dr. Barre concluded that the impairment to Plaintiff's right wrist would "make it impossible for him to maintain any type of gainful employment." PageID 469. The ALJ found that Dr. Barre's opinion was not entitled to "controlling weight" because:
PageID 47 (citations omitted).
Insofar as the ALJ rejected Dr. Barre's opinion — on the basis that the severity of the impairment is undermined by Dr. Barre's failure to prescribe medication at all times — the Commissioner concedes error in this regard. Doc. 7 at PageID 539. "The Commissioner acknowledges that Dr. Scholl prescribed . . . [pain] medication at Dr. Barre's request." Id. Accordingly, without dispute, this reason is an insufficient basis upon which to reduce the weight accorded to Dr. Barre's opinion.
With regard to the ALJ's reliance on purportedly "negative" EMG findings and Plaintiff's supposed lack of neurological deficits, the Court notes that EMG findings were not "negative." See PageID 465-66. In fact, Plaintiff's EMG findings were "[a]bnormal[.]" PageID 466. While the EMG findings may have revealed no evidence of ulnar neuropathy — which Dr. Barre did initially suspect — they otherwise revealed abnormal findings, including evidence of carpal tunnel syndrome. Id. With regard to the purported lack of "neurological deficits," Dr. Barre found, and orthopedist Mark Klug, M.D. confirmed in his consultative examination, that Plaintiff had a positive Tinel's sign at the ulnar nerve, which demonstrated a "neurological deficit" in Plaintiff's right wrist/fingers.
Insofar as the ALJ found that treater Barre's opinion was inconsistent with Plaintiff's dynometer hand grip test conducted in January 2007, (see PageID 47), the ALJ inappropriatly substituted her own lay interpretation of medical data for that of the treating orthopedic surgeon. See Meece v. Barnhart, 192 F. App'x 456, 465 (6th Cir. 2006) (holding an ALJ "may not substitute his own medical judgment for that of the treating physician where the opinion of the treating physician is supported by the medical evidence"); Simpson v. Comm. of Soc. Sec., 344 F. App'x 181, 194 (6th Cir. 2009) (citing Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996) (stating "ALJ's must not succumb to the temptation to play doctor and make their own independent medical findings")); see also Martin v. Colvin, No. 3:15-CV-131, 2016 WL 4764961, at *1 (S.D. Ohio Sept. 13, 2016).
With regard to the ALJ's conclusion that Dr. Barre's opinion improperly relied on Plaintiff's subjective allegations, such conclusion is belied by the record. PageID 47. The record is replete with clinical findings supporting Dr. Barre's opinion, including his own clinical observations noted supra (PageID 468-70) and those noted by consulting examiner Dr. Klug — finding tenderness over Plaintiff's ulnar nerve, positive Tinel's sign, and an extremely limited range of motion in his wrist, PageID 460 — whose assessment Dr. Barre read and relied upon. PageID 469. In fact, during the February 15, 2008 examination, after which Dr. Barre gave his opinion, he specifically noted: "swelling over the ulnar aspect of the wrist", "point tender[ness] to palpitation over the pisiform,"
In addition to the reasons advanced by the ALJ being unsupported by substantial evidence, the undersigned further finds that the ALJ's analysis of Dr. Barre's opinion fails to reflect consideration of the deferential weight factors found under 20 C.F.R. § 404.1527(c). Blakley, 581 F.3d at 406 (stating that when the ALJ declines to give controlling weight to a treating physician's assessment, "the ALJ must still determine how much weight is appropriate by considering a number of factors" set forth in 20 C.F.R. § 404.1527(c)). Specifically, Dr. Barre merited deference because he maintained a long-term treatment relationship with Plaintiff, gave an opinion consistent with those offered by treater Dr. Scholl
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 award 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); see also Abbott v. Sullivan, 905 F.2d 918, 927 (6th Cir. 1990). 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. Faucher, 17 F.3d at 176; see also Felisky v. Bowen, 35 F.3d 1027, 1041 (6th Cir. 1994).
Here, evidence of disability during the closed period at issue is not overwhelming and therefore, a remand for further proceedings is proper so that the ALJ can properly assess all opinion evidence of record anew in light of the foregoing findings.
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the proposed findings and recommendations within
Any objections filed shall specify the portions of the Report and Recommendation objected to, and shall be accompanied by a memorandum of law in support of the objections. If the Report and Recommendation is based, in whole or in part, upon matters occurring of record at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs.
A party may respond to another party's objections within
Failure to make objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).
