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" and therefore unentitled to Supplemental Security Income ("SSI"). This case is before the Court upon Plaintiff's Statement of Errors (doc. 8), the Commissioner's memorandum in opposition (doc. 9), Plaintiff's reply (doc. 10), the administrative record (doc. 4), the supplemental administrative record (doc. 7), and the record as a whole.
Plaintiff filed an application for SSI on December 17, 2012 alleging disability as a result of a number of impairments including, inter alia, degenerative disc disease of the lumbar and cervical spine, sciatica and Hepatitis C. PageID 196-201, 56.
After an initial denial of his application, Plaintiff received a hearing before ALJ Emily Ruth Statum on March 7, 2014. PageID 785-810. The ALJ issued a written decision on May 27, 2014 finding Plaintiff not disabled. PageID 53-67. Specifically, the ALJ's findings were as follows:
PageID 53-67.
Thereafter, the Appeals Council denied review on October 30, 2015, making the ALJ's non-disability finding the final administrative decision of the Commissioner. PageID 40-45. 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 56-61. Plaintiff, in his Statement of Errors, also summarizes the evidence of record. Doc. 8 at PageID 812-13. 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. 9 at PageID 825. 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. § 416.920(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. § 416.920(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: (1) properly evaluate his credibility; (2) incorporate additional functional limitations into his RFC in light of recent x-rays documenting worsening advanced degenerative disc disease; and (3) incorporate his difficulties — in maintaining concentration, persistence, or pace — into the hypothetical questions posed to the Vocational Expert ("VE"). Doc. 8 at PageID 812-20. Finding merit to Plaintiff's first alleged error, the undersigned does not address the merits of Plaintiff's two remaining contentions.
With regard to credibility and allegations of disabling pain and symptoms, Plaintiff argues that the ALJ failed to comply with Social Security Ruling ("SSR") 96-7p. A reviewing Court must "accord the ALJ's determinations of credibility great weight and deference particularly since the ALJ has the opportunity, which we do not, of observing a witness's demeanor while testifying." Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003) (citations omitted). Nevertheless, in setting forth a credibility finding, the ALJ's determination "cannot be based on an intangible or intuitive notion about an individual's credibility[,]" and instead, "[t]he reasons for the credibility finding must be grounded in the evidence and articulated in the determination or decision." See SSR 96-7p, 1996 WL 374186, at *2 (July 2, 1996). In fact, the ALJ must set forth "specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight." Id.
"Where the symptoms and not the underlying condition form the basis of the disability claim, a two-part analysis is used[.]" Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007) (citing 20 C.F.R. § 416.929(a); Buxton, 246 F.3d at 773; Felisky v. Bowen, 35 F.3d 1027, 1038-39 (6th Cir. 1994)). "First, the ALJ will ask whether . . . there is an underlying medically determinable . . . impairment that could reasonably be expected to produce the claimant's symptoms." Id. (citation omitted).
Second, where the ALJ determines "that such an impairment exists, then he [or she] must evaluate the intensity, persistence, and limiting effects of the symptoms on the individual's ability to do basic work activities." Id. (citations omitted); see also SSR 96-7p, 1996 WL 374186, at *2. In considering the second part of the two-part analysis, the ALJ must consider a number of "[r]elevant factors," namely: (1) the claimant's daily activities; (2) the location, duration, frequency, and intensity of symptoms; (3) factors that precipitate and aggravate symptoms; (4) the type, dosage, effectiveness, and side effects of any medication taken to alleviate the symptoms; (5) other treatment undertaken to relieve symptoms; (6) other measures taken to relieve symptoms, such as lying on one's back; and (7) any other factors bearing on the limitations of the claimant to perform basic functions. 20 C.F.R. § 416.929(c)(3); see also Rogers, 486 F.3d at 247.
Here, Plaintiff testified that he experienced pain in his lower back, neck and bilateral shoulders and, sometimes, a sharp pain down his right leg. PageID 82. Plaintiff explained that he experiences "bad days" about three days a week where his pain does not relent even with medication. Id. at 87. Plaintiff further testified that due to his back pain, he has problems with walking, balancing, and standing for long periods. Id. In determining that Plaintiff's allegations of disabling pain were "disproportionate" and "less than credible," the ALJ found the following:
PageID 64 (citations omitted). The Court finds that substantial evidence does not support the ALJ's credibility analysis, at least as it relates to Plaintiff's statements of physical pain.
First, the ALJ never articulates what "convincing objective medical evidence or clinical findings" fail to substantiate Plaintiff's allegations of physical pain. PageID 64. Contrary to the ALJ's statement in this regard, however, is the fact that objective evidence of record shows abnormalities in Plaintiff's lumbar and cervical spine that could reasonably be found to support Plaintiff's allegations of pain. PageID 686-87. Significantly, medical imaging of Plaintiff's spine in April 2013 revealed "[m]ild to moderate degenerative disc disease [at] L4-15" and "[m]oderately advanced degenerative disease C5-C6[.]" Id. Consistent with that objective evidence are Dr. Danopulos's clinical findings, wherein he noted on physical examination that Plaintiff's "[s]pine was painful to pressure in the lower cervical and lumbar spine." PageID 679-81. Absent a meaningful explanation by the ALJ, it is unclear how these objective and clinical findings undermine Plaintiff's credibility.
Second, the ALJ's discrediting of Plaintiff's credibility because he only used "nonprescription pain medication" ignores the fact that Plaintiff was prescribed Vicodin for pain, but was not able to fill that prescription because he lacked medical insurance and thus the funds to purchase the medicine. PageID 82; cf. SSR 96-7p, 1996 WL 374186, at *7; Lariccia v. Comm'r of Soc. Sec., 549 F. App'x 377, 387 (6th Cir. 2013) (finding the ALJ's failure to consider claimant's insurance difficulties "significant" error). Absent acknowledgement of such fact, the undersigned cannot find that Plaintiff's use of only over-the-counter medications constitutes substantial evidence upon which the ALJ could rely to discredit Plaintiff's allegations of pain.
Finally, the ALJ's reliance on Nurse Kim Sunshein's assessment to undermine Plaintiff's credibility is curious. Elsewhere in her decision, the ALJ found Nurse Sunshein's opinion entitled to "little to no weight" because, according to the ALJ, her report was vague and her qualifications as a nurse practitioner made her an unacceptable medical source under the regulations. PageID 62. In addition, the undersigned notes that Nurse Sunshein's assessment was generated in January 2008 — more than five years prior to Plaintiff's April 2013 x-rays showing a worsening of his advanced degenerative disc disease, and nearly five years prior to Plaintiff's SSI application in December 2012. PageID 196-201, 712-13; cf. Ford v. Comm'r of Soc. Sec., No. 2:11-cv-1139, 2013 WL 765654, at *2 (S.D. Ohio Feb. 28, 2013) (finding that a medical source's outdated and incomplete assessment could not amount to substantial evidence in support of an ALJ's RFC assessment). Given the minimal relevance of Nurse Sunshein's assessment, the undersigned finds that her opinion is not substantial evidence upon which the ALJ could rely to discredit Plaintiff's allegations of pain. Cf. Grimes v. Comm'r of Soc. Sec., No. 3:13-CV-299, 2015 WL 4550338, at *6 (S.D. Ohio Mar. 3, 2015) (stating that the relevant time period for assessing an SSI benefits claim is the time period between the application and the ALJ's decision).
Although the ALJ also noted a medical record showing that Plaintiff injured himself hanging drywall in 2014, and that his use of a cane was not prescribed by a physician, the undersigned concludes that the ALJ's reliance on such additional facts does not render the aforementioned errors harmless. See Madewell v. Comm'r of Soc. Sec., No. 3:13-CV-318, 2015 WL 163468, at *8 (S.D. Ohio Jan. 13, 2015), report and recommendation adopted, No. 3:13CV318, 2015 WL 1468303 (S.D. Ohio Mar. 26, 2015) (declining to find harmless error where the significant reasons upon which the ALJ relied in discrediting claimant's allegations of pain were unsupported by substantial evidence). Accordingly, the undersigned concludes that the ALJ's credibility assessment is not supported by substantial evidence and, as a result, the non-disability finding should be reversed.
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 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, 35 F.3d at 1041.
Here, evidence of disability 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).
