WILLIAM B. CARTER, Magistrate Judge.
This action was instituted pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the final decision of the Commissioner of Social Security denying the plaintiff supplemental security income under Title XVI of the Social Security Act.
This matter has been referred to the undersigned pursuant to 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure for a Report and Recommendation regarding the disposition of:
For the reasons stated herein, I
Plaintiff was 57 years old at the time the administrative decision was issued and he had obtained a tenth grade education (Tr. 118, 147). The ALJ found Plaintiff has past relevant work experience as a certified electrician (Tr. 18-20, 148-149, 163-170).
Plaintiff applied for a period of disability and disability insurance benefits on May 12, 2011 (Tr. 118-121). This application was denied by hearing decision issued April 20, 2012 (Tr. 9-20). Thereafter, Plaintiff timely pursued and exhausted his administrative remedies available before the Defendant. The final decision of the Commissioner finding Plaintiff has not met the statutory requirements for disability is now ripe for review pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
Disability is defined as the inability to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment that has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 423(d)(1)(A). The burden of proof in a claim for social security benefits is upon the claimant to show disability. Barney v. Sec'y of Health & Human Servs., 743 F.2d 448, 449 (6th Cir. 1984); Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980); Hephner v. Mathews, 574 F.2d 359, 361 (6th Cir. 1978). Once the claimant makes a prima facie case that he/she cannot return to his/her former occupation, however, the burden shifts to the Commissioner to show that there is work in the national economy which claimant can perform considering his/her age, education, and work experience. Richardson v. Sec'y of Health & Human Servs., 735 F.2d 962, 964 (6th Cir. 1984); Noe v. Weinberger, 512 F.2d 588, 595 (6th Cir. 1975). "This Court must affirm the Commissioner's conclusions absent a determination that the Commissioner has failed to apply the correct legal standards or has made findings of fact unsupported by substantial evidence in the record." Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004) (quoting Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997)). If there is substantial evidence to support the Commissioner's findings, they should be affirmed, even if the Court might have decided facts differently, or if substantial evidence also would have supported other findings. Smith v. Chater, 99 F.3d 780, 782 (6th Cir. 1996); Ross v. Richardson, 440 F.2d 690, 691 (6th Cir. 1971). The Court may not re-weigh the evidence and substitute its own judgment for that of the Commissioner merely because substantial evidence exists in the record to support a different conclusion. The substantial evidence standard allows considerable latitude to administrative decision makers because it presupposes there is a zone of choice within which the decision makers can go either way, without interference by the courts. Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994) (citing Mullen v. Bowen, 800 F.2d 535, 548 (6th Cir. 1986)); Crisp v. Sec'y of Health & Human Servs., 790 F.2d 450, 453 n.4 (6th Cir. 1986).
Plaintiff asserts there is new evidence to support his claim of disability. Since this evidence was not presented in the administrative hearing, it can only be considered in the context of a sentence six remand. In order to remand a case for further consideration of additional evidence, plaintiff must show that the additional evidence is new and material and there is good cause for his or her failure to incorporate such evidence in the record during the prior proceedings. See 42 U.S.C. § 405(g); Cline v. Commissioner of Social Security, 96 F.3d 146, 149 (6th Cir. 1996); Casey, 987 F.2d at 1233. Good cause is shown when the claimant gives a valid reason for failing to obtain relevant evidence prior to the hearing. See Cotton v. Sullivan, 2 F.3d 692, 696 (6th Cir. 1993). Additional evidence is new if it was not in existence or available to the claimant at the time of the administrative proceedings. See Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990). The party seeking remand has the burden to show that remand is appropriate. See Oliver v. Sec'y of Health and Human Servs., 804 F.2d 964, 966 (6th Cir. 1986)
As the basis of the administrative decision that plaintiff was not disabled, the ALJ made the following findings:
Tr. 14-20.
Plaintiff's allegation of disability mainly involves injuries to his right shoulder, neck, and related areas. On approximately February 27, 2010, he injured his right shoulder on the job (Tr. 237). He was initially treated at Physician's Care through the workers' compensation process. (Tr. 230-244). Due to Plaintiff's complaints, an MRI was done on March 10, 2010 (Tr. 242). That test showed a full thickness tear of the supraspinatus tendon (the rotator cuff tendon on top of the shoulder joint) with retraction to the level of the acromion (the upper part of the shoulder blade over the shoulder joint), glenohumeral joint effusion extending into the subacromial/subdeltoid bursa through the rotator cuff tear, and mild to moderate acromioclavicular ("AC") joint arthrosis (i.e. arthritis) (Tr. 242).
Due to the severity of that report, Plaintiff was referred to an orthopedic specialist through workers' compensation. Pursuant to that law, he was only offered physicians chosen by his employer. T.C.A. § 50-6-204. That physician was Dr. Neil Spitalny (Tr. 189-209). Initially, Dr. Spitalny tried conservative treatment in the form of physical therapy (Tr. 245-250). After that failed, nothing was left but surgical intervention.
Therefore, on July 29, 2010, Dr. Spitalny performed surgery on Plaintiff's right shoulder (Tr. 193-194). His operative diagnosis was AC arthritis, torn rotator cuff, right shoulder, and torn biceps (Tr. 193). The surgery he performed was an exploration of the right shoulder, AC joint arthroplasty, resection of the distal clavicle, and reconstruction of the right rotator cuff (Tr. 193-194).
Post-surgically, Plaintiff continued to report symptoms and dysfunction. On December 28, 2010, Plaintiff reported problems with supination and cramping in his ruptured right biceps with use of a screwdriver (Tr. 201). At that time, Dr. Spitalny, considering only Plaintiff's work related shoulder problems, stated Plaintiff could lift up to 40 to 45lbs below chest level limiting overhead lifting to 25 pounds. He felt this was a permanent restriction (Tr. 201). On February 22, 2011, Plaintiff again saw Dr. Spitalny. He still reported some aching discomfort with cramping in his ruptured biceps. Physical examination that day showed reduced range of motion on internal and external rotation. It also showed positive lift off test, which is indicative of a tear in the subscapularis related to Plaintiff's workers' compensation claim. Dr. Spitalny assigned a 11% permanent medical impairment rating to the right, dominant upper extremity, which equated to a 6.5-7% rating to the body as a whole (Tr. 199). On February 2, 2011, Dr. Spitalny in an addendum assigned restrictions of lifting less than 25lbs overhead and 50lbs below chest level (Tr. 200). He offered no opinion on the ability to manipulate objects (like screwdrivers with his hands), push, pull, stand, walk, carry, bend, stoop, or a number of other work functions. In support of this additional restriction, his note that day also stated "[t]here is some large rotator cuff tear and his biceps tendonitis is permanent." (Tr. 200).
A partial consultative examination ("CE") was had with Dr. Stephen Goewey on July 15, 2011. Dr. Goewey performed a short physical examination that showed reduced shoulder flexion, abduction, and extension. He also found that Plaintiff had acromioclavicular tenderness to palpitation. Dr. Goewey noted some limited range of motion of the right shoulder with tenderness to palpation and scarring (Tr. 211).
On August 4, 2011, a state agency physician, Dr. Iris Rotker, offered an opinion on Plaintiff's residual functional capacity ("RFC"). Dr. Rotker's opinion was that Plaintiff was only capable of lifting 10lbs frequently, 20lbs occasionally, sitting, standing, or walking for six hours of a workday with only frequent pushing, pulling, or overhead reaching with the right upper extremity (Tr. 213-217). That opinion is basically the textbook definition of light work with some additional limitations in pushing, pulling, and overhead reaching. In coming to that opinion, Dr. Rotker clearly evaluated all of the medical evidence, including all of it from Dr. Spitalny. His report contains exact quotations from Dr. Spitalny's last pre-hearing visit (Tr. 219). That RFC was then affirmed as correct by another DDS state agency physician, Dr. Frank Pennington (Tr. 228).
At ALJ Feibus' request, Plaintiff went to seek further treatment from Dr. Spitalny. However, that treatment required a conference with the Department of Labor for approval by the workers' compensation insurance carrier. On April 5, 2012, he reported to Dr. Spitalny with complaints of increased pain in the right shoulder. Physical examination that day showed discomfort with cervical compression, interscapular pain, pain in the trapezial and biceps region, and that Plaintiff was hyperflexic. Dr. Spitalny felt Plaintiff may have cervical radiculopathy (Tr. 253).
Dr. Spitalny had Plaintiff return to his office on April 18, 2012. Plaintiff again reported ulnar neuritis pain with flexion, pain with cervical compression, and weakness related to both the cervical spine and right shoulder. He also took an x-ray of Plaintiff's cervical spine. That x-ray showed
Plaintiff's counsel asserts those records from Dr. Spitalny were gathered and submitted as soon as possible. The notes following the April 18, 2012 visit to Dr. Spitalny were submitted on April 24, 2012, four days after the administrative decision.
Plaintiff seeks reversal for an award of benefits. When reversal is sought the Court must determine whether the ALJ failed to apply the correct legal standard and whether the ALJ's findings of fact were supported by substantial evidence. 42 U.S.C. § 405(g); Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). "This Court must affirm the Commissioner's conclusions absent a determination that the Commissioner has failed to apply the correct legal standards or has made findings of fact unsupported by substantial evidence in the record." Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004) (quoting Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997)).
For reasons that follow, I conclude the Commissioner's decision is not supported by substantial evidence and remand under sentence four and six is an appropriate remedy. I conclude the ALJ's stated reasons for rejecting part of the opinion of the treating physician and rejection of the opinions of the state agency physicians are not adequately supported looking at the record as a whole. The ALJ's conclusion that Plaintiff is capable of a medium work is therefore not supported by substantial evidence. When the ALJ's findings are not supported by substantial evidence, or are legally unsound, the reviewing court should reverse and remand the case for further administrative proceedings unless the proof of disability is overwhelming or . . . the proof of disability is strong and evidence to the contrary is lacking. Faucher v. Secy of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994). I cannot say the evidence of disability is overwhelming and that no evidence exists on the other side, therefore I am recommending remand rather than reversal.
In his opinion, the ALJ discusses the opinion of Dr. Spitalny noting the modification assessed on February 2, 2011 to less than 25 pounds over head and lifting less than 50 pounds below chest level. The relevant portions of his opinion follow:
Tr. 18.
The ALJ is essentially accepting the earlier opinion of the treating physician and rejecting the modified opinion. It is true that less than does not quantify exactly how much less than but it does not mean zero less than 25 or 50, otherwise he would not have said less than. It may be that Plaintiff is capable of some work at less than the medium level but that decision is one for the ALJ not for me. Then one turns to the opinions of the state agency physicians which create another problem with the administrative decision.
On August 4, 2011, state agency physician Dr. Iris Rotker offered an opinion on Plaintiff's RFC. Dr. Rotker's opinion was that Plaintiff was only capable of lifting 10lbs frequently, 20lbs occasionally, sitting, standing, or walking for six hours of a workday with only frequent pushing, pulling, or overhead reaching with the right upper extremity (Tr. 213-217). As Plaintiff points out, that opinion is basically the definition of light work with some additional limitations in pushing, pulling, and overhead reaching. In coming to that opinion, Dr. Rotker clearly evaluated all of the medical evidence, including three specific references to Dr. Spitalny's treatment and an evaluation of Dr. Stephen Goewey. His report contains exact quotations from Dr. Spitalny's last pre-hearing visit and two others (Tr. 219). His report concluded a light work level was appropriate. That RFC was then affirmed as correct by another DDS state agency physician, Dr. Frank Pennington, on October 18, 2011 (Tr. 228). The ALJ does not mention this opinion. There are therefore two state agency physicians who opined Plaintiff was restricted to light work. And, as the Commissioner often points out, State agency consultants are highly qualified specialists who are also experts in the Social Security disability programs, and their opinions may be entitled to great weight if the evidence supports their opinions.
In his decision, ALJ Feibus stated that he did not accord the findings of Dr. Rotker considerable weight because they did not consider the treating surgeon's functional assessment and were made without a personal examination, so he gave the surgeon's opinion more weight. However, I note that he did not consider all of the surgeon's opinion, as discussed above. Based on this, he finds Plaintiff capable of performing his past relevant work and not disabled within the meaning as defined by the Social Security Act because he concluded he was capable of medium work (Tr. 20). I conclude that when one looks at all of the evidence, this conclusion is not supported by substantial evidence. Neither the treating physician as contained in the addendum to his opinion nor the state agency physicians provide support for this.
Plaintiff also seeks remand under Sentence Six. Four days after the ALJ's decision Plaintiff submitted additional medical evidence. Plaintiff asserts this is new and material evidence to support his claim of disability. Since this evidence was not presented in the administrative hearing, it can only be considered in the context of a Sentence Six remand. In order to remand a case for further consideration of additional evidence, plaintiff must show that the additional evidence is new and material and there is good cause for his or her failure to incorporate such evidence in the record during the prior proceedings. See 42 U.S.C. § 405(g); Cline v. Commissioner of Social Security, 96 F.3d 146, 149 (6th Cir. 1996); Casey, 987 F.2d 1230 at 1233 (6th Cir. 1993). Good cause is shown when the claimant gives a valid reason for failing to obtain relevant evidence prior to the hearing. See Cotton v. Sullivan, 2 F.3d 692, 696 (6th Cir. 1993). Additional evidence is new if it was not in existence or available to the claimant at the time of the administrative proceedings. See Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990). The party seeking remand has the burden to show that remand is appropriate. See Oliver v. Sec'y of Health and Human Servs., 804 F.2d 964, 966 (6th Cir. 1986).
At the hearing, ALJ Feibus appeared to invite new evidence (Tr. 59, 60). Plaintiff went to seek further treatment from Dr. Spitalny. Plaintiff asserts this treatment required a conference with the Department of Labor for approval by the workers' compensation insurance carrier. On April 5, 2012, he reported to Dr. Spitalny with complaints of increased pain in the right shoulder (Tr. 253). Physical examination that day showed discomfort with cervical compression, interscapular pain, pain in the trapezial and biceps region, and that Plaintiff was hyperflexic (Tr. 253). Dr. Spitalny opined Plaintiff may have cervical radiculopathy (Tr. 253).
Dr. Spitalny had Plaintiff return to his office on April 18, 2012. Plaintiff again reported ulnar neuritis pain with flexion, pain with cervical compression, and weakness related to both the cervical spine and right shoulder (Tr. 252). He also took an x-ray of Plaintiff's cervical spine. That x-ray showed
Those records from Dr. Spitalny were gathered and submitted. The notes following the April 18, 2012 visit to Dr. Spitalny were submitted on April 24, 2012, four days after the administrative decision. I conclude this evidence is new because it did not exist at the time of the administrative decision. Evidence is new only if it was not in existence or available to the claimant at the time of the administrative proceeding. Foster, 279 F.3d at 357 (quoting Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990)). It is material if there is a reasonable probability that the [Commissioner] would have reached a different disposition of the disability claim if presented with the new evidence. Id. (quoting Sizemore v. Secy of Health & Human Servs., 865 F.2d 709, 711 (6th Cir. 1988)). The claimant must demonstrate good cause for his failure to incorporate such evidence into the record in a prior proceeding. Hollon ex rel. Hollon v. Commr of Soc. Sec., 447 F.3d 477, 483 (6th Cir. 2006) (citing 42 U.S.C. 405(g)). Lastly, the party seeking remand has the burden of demonstrating that remand is appropriate. See Willis v. Secy of Health & Human Servs., 727 F.2d 551, 554 (6th Cir.1984).
In light of all of the evidence in this case I conclude it is material, in that there is a reasonable probability that the Commissioner would reach a different conclusion, especially in light of the opinions of the treating physician and state agency physicians discussed above. As to good cause for the failure, I conclude Plaintiff was diligent in obtaining this new information and had a good faith belief that the ALJ was going to allow him to provide it for his consideration in reaching a decision in the case. For those reasons, I recommend remand under sentence six as well.
Having carefully reviewed the entire administrative record and the briefs of the parties filed in support of their respective motions, I conclude the findings of the ALJ and the decision of the Commissioner are not supported by substantial evidence when one looks at all of the evidence of the record. However, evidence of disability is not overwhelming and there is some evidence to support the Commissioner therefore remand is the appropriate remedy. I further conclude remand is required under sentence six to consider new evidence which supports his claim of disability.
Accordingly, I RECOMMEND
1. Plaintiff's motion for Summary Judgment (Doc. 11) be
2. The Commissioner's Motion for Summary Judgment (Doc. 13) be DENIED,
3. The Commissioner's decision be
