Foster v. Comm'r of Soc. Sec.
Foster v. Comm'r of Soc. Sec.
Opinion of the Court
This Social Security disability benefits appeal is before the undersigned for disposition based upon the parties' consent. Doc. 8. 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 on Plaintiff's Statement of Errors (doc. 10), the Commissioner's memorandum in opposition (doc. 12), Plaintiff's reply (doc. 13), the administrative record (doc. 5),
I.
A. Procedural History
Plaintiff filed for SSI alleging disability as a result of a number of impairments including, inter alia , fibromyalgia, an anxiety disorder, and an affective (depressive) disorder. PageID 545.
Plaintiff filed for SSI in 2010 and, after an initial denial of her application, received *712a hearing before ALJ Thomas McNichols on September 28, 2012. PageID 59. ALJ McNichols issued a written decision on November 6, 2012 finding Plaintiff not disabled. PageID 59-76. After the Appeals Council denied Plaintiff's request for a review of the ALJ's decision, Plaintiff filed an appeal with this Court. PageID 541-42. Finding that the ALJ erred in his analysis of Plaintiff's treating physician, this Court remanded for further proceedings. Foster v. Colvin , No. 3:14-cv-66,
Plaintiff then received a second administrative hearing before ALJ Elizabeth Motta on July 27, 2015. PageID 634. ALJ Motta issued a written decision October 28, 2015, again finding Plaintiff not disabled. PageID 771-90. Finding that ALJ Motta's decision did not sufficiently address this Court's directives on remand, the Appeals Council vacated the non-disability finding and remanded the case for further proceedings. PageID 799-801. Specifically, the Appeals Council directed ALJ Motta to "give further consideration to treating source opinion evidence with particular emphasis on SSR 12-2p in conjunction with the claimant's fibromyalgia and explain the weight given to such opinion evidence." PageID 542.
ALJ Motta held a third administrative hearing on October 26, 2016. PageID 578-606. For a third time, an ALJ issued a written decision finding Plaintiff not disabled. PageID 541-68. Specifically, ALJ Motta found at Step Five that, based upon Plaintiff's Residual Functional Capacity ("RFC") to perform a reduced range of light work,
Thereafter, the Appeals Council denied Plaintiff's request to review ALJ Motta's December 29, 2016 decision, making her non-disability finding the final administrative decision of the Commissioner. PageID 529-32. See Casey v. Sec'y of Health & Human Servs. ,
B. Evidence of Record
The evidence of record is adequately summarized in the ALJ's decision (PageID 541-68), Plaintiff's Statement of Errors (doc. 10), the Commissioner's memorandum in opposition (doc. 12), and Plaintiff's reply (doc. 13). The undersigned incorporates all of the foregoing and sets forth the facts relevant to this appeal herein.
II.
A. Standard of Review
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.
*713Bowen v. Comm'r of Soc. Sec.,
Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales,
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. ,
B. "Disability" Defined
To be eligible for disability benefits, a claimant must be under a "disability" as defined by the Social Security Act.
Administrative regulations require a five-step sequential evaluation for disability determinations.
1. Has the claimant engaged in substantial gainful activity?;
2. Does the claimant suffer from one or more severe impairments?;
3. Do the claimant's severe impairments, alone or in combination, meet or equal the criteria of an impairment set forth in the Commissioner's Listing of Impairments (the "Listings"), 20 C.F.R. Subpart P, Appendix 1?;
4. Considering the claimant's RFC, can he or she perform his or her past relevant work?; and
5. Assuming the claimant can no longer perform his or her past relevant work -- and also considering the claimant's age, education, past work experience, and RFC -- do significant numbers of other jobs exist in the national economy which the claimant can perform?
III.
Plaintiff argues, and the undersigned agrees, that the ALJ erred on remand in: (1) evaluating the treating source opinions and medical evidence; and (2) failing to follow this Court's January 5, 2015 Remand Order. PageID 1211.
*714Until March 27, 2017, "the Commissioner's regulations [which apply to this appeal] establish[ed] a hierarchy of acceptable medical source opinions[.]" Snell v. Comm'r of Soc. Sec. , No. 3:12-cv-119,
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. ,
After treaters, "[n]ext in the hierarchy are examining physicians and psychologists, who often see and examine claimants only once." Snell ,
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."
Here, the record contains the opinions of Plaintiff's treating physician of nineteen years, Rick Gebhart, D.O. Most recently -- in August 2016 -- Dr. Gebhart opined that, due to her fibromyalgia, depression, Post-Traumatic Stress Disorder ("PTSD"), and anxiety, Plaintiff is unable to be prompt and regular in attendance, withstand the pressure of meeting normal standards of work productivity, or complete a normal work day and work week without interruption from psychologically and physically-based symptoms without unreasonable rest periods. PageID 1179-81. Dr. Gebhart also concluded, based on his examinations and medical findings, that Plaintiff is unable to stand and walk for any amount of time during an eight-hour work day, and can sit for only 15-20 minutes at a time before needing half hour breaks to lie down. PageID 1811. Ultimately, Dr. Gebhart found that Plaintiff could "absolutely no[t]" perform even sedentary work. PageID 1833. Dr. Gebhart also authored opinions in 2010, 2012, and 2015, which consistently document similarly debilitating symptoms of Plaintiff's impairments. PageID 333, 476-83, 1023-26.
The ALJ declined to afford Dr. Gebhart's opinions controlling or deferential weight, finding that the opinions "are entirely unsupported ... and inconsistent with other substantial evidence in the case record." PageID 560. Upon determining that other medical records show normal muscle strength and tone, normal range of motion, and normal gait, the ALJ concluded that the "only plausible explanation" for the degree of limitation suggested by Dr. Gebhart "is that he based his conclusions on the unsubstantiated allegations and subjective complaints of the claimant."
The undersigned finds multiple errors in the ALJ's assessment of Dr. Gebhart's *715opinions. The undersigned initially notes that the ALJ erred in selectively focusing on the "normal" (i.e., non-disabling) aspects of Plaintiff's treatment notes to the exclusion of evidence supportive of Dr. Gebhart's opinion. Hawthorne v. Comm'r of Soc. Sec., No. 3:13-cv-179,
Dr. Gebhart's opinions are also consistent with the findings of the state agency's consultative physician, Damian Danopulos, M.D. Dr. Danopulos documented painful motion in all joints, sensitive muscles with palpation, painful spine with pressure, highly restricted and painful lumbar spine motion, and severe anxiety neurosis. PageID 375-76. Dr. Danopulos concluded that Plaintiff's "ability to do any work-related activities is affected mainly from her lumbar spine arthritis plus aches and pains of her upper extremities and cervical spine and headaches." PageID 376. Because the record thus undermines the ALJ's assertion that "[t]here is no objective medical evidence" to substantiate Dr. Gebhart's opinion, PageID 556, the ALJ failed to overcome the "rebuttable presumption" that a treating physician's opinion is entitled to great deference. Rogers v. Comm'r of Soc. Sec.,
Even assuming, arguendo, that Dr. Gebhart founded his conclusion on Plaintiff's subjective reports as the ALJ suggests, this does not provide a valid basis for discounting his opinions. "Unlike medical conditions that can be confirmed by objective testing, fibromyalgia patients present no objectively alarming signs."
The ALJ similarly erred in discounting the opinions of treating psychologists, *716C. Jesse Carlock, Ph.D., and Kathleen Glaus, Ph.D. Both Drs. Carlock and Glaus authored opinions concluding that Plaintiff would be absent from work more than three times a month; has "marked" restrictions of daily living; "marked" restrictions in concentration, persistence, and pace; and has "extreme" functional limitations due to episodes of deterioration or decompensation in work.
In affording their opinions "little weight," the ALJ found it "quite evident that any limitations described [by Drs. Carlock and Glaus] were based largely, if not entirely, on the Claimant's subjective complaints and self-reported symptoms." PageID 552. Yet, the psychologists provided an extensive list of the clinical findings, treatment, and prognosis that demonstrate the severity of Plaintiff's mental impairments and symptoms. PageID 444. Moreover, Plaintiff's treatment notes from Drs. Carlock and Glaus document that she consistently exhibited a depressed, hopeless, anxious, anhedonic mood; concentration problems; and tearful behavior. Thus, the ALJ's determination -- that the opinions of Drs. Carlock and Glaus "lack any support" -- is belied by a close reading of the medical record. PageID 552.
To the extent that the ALJ discounted the treating psychologists' opinions because they relied on Plaintiff's subjective complaints, such an assessment demonstrates a fundamentally flawed understanding of mental impairments. Like fibromyalgia, "a psychiatric impairment is not as readily amenable to substantiation by objective laboratory testing as a medical impairment." Blankenship v. Bowen,
Next, the ALJ discounted Drs. Carlock and Glaus's physical limitations on the grounds that the doctors are "mental health professionals." PageID 552. The ALJ erred in this respect because she flouted both the instructions given to her on remand
Finally, the undersigned notes that, in her efforts to find Plaintiff not disabled, the ALJ erroneously evaluated Plaintiff's credibility. First, the ALJ found that "the claimant's alleged symptoms appear *717much more severe than any pathology shown on lumbar spine studies in the record." PageID 546. But, as explained above, fibromyalgia does not manifest in objective medical evidence like other physical impairments. Rogers,
Based on all the foregoing, the ALJ's non-disability finding is unsupported by substantial evidence and must be reversed. See Blakley,
IV.
When, as here, the ALJ's non-disability determination is unsupported by substantial evidence, the Court must determine whether to reverse and remand the matter for rehearing or to reverse and order the award of benefits. The Court has authority to affirm, modify or reverse the Commissioner's decision "with or without remanding the cause for rehearing."
The undersigned also notes the unusual circumstances of this appeal: three unsound ALJ decisions, all of which included reversable error in the analysis of the same treating physician. Given these circumstances and the strong, uncontroverted evidence of record in support of a finding of disability, there is no just reason to further delay this matter for even more administrative procedures. See Gentry v. Comm'r of Soc. Sec. ,
V.
For the foregoing reasons, IT IS ORDERED THAT : (1) the Commissioner's non-disability finding is unsupported by substantial evidence, and REVERSED ; (2) this matter is REMANDED to the Commissioner under the Fourth Sentence of
IT IS SO ORDERED.
Hereafter, citations to the electronically-filed administrative record will refer only to the PageID number.
Light work "involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds" and "requires a good deal of walking or standing, or ... sitting most of the time with some pushing and pulling of arm or leg controls."
The undersigned also notes that the ALJ made this same error in discounting the opinion of Dr. Danopulos. PageID 549-50.
Whereas "mild" and "moderate" functional limitations are generally considered "non-disabling," see Sims v. Comm'r of Soc. Sec.,
This Court found that the ALJ erred in the same manner in Masters v. Comm'r of Soc. Sec. , No. 3:17-cv-354,
Reference
- Full Case Name
- Michelle K. FOSTER v. COMMISSIONER OF SOCIAL SECURITY
- Cited By
- 14 cases
- Status
- Published