United States District Court, E.D. Michigan, Southern Division
JEANNETTE L. BIEHL, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant
For Jeannette L. Biehl, Plaintiff: Kiel J. Roeschke, Stu Johnson & Associates, P.C., Warren, MI.
For CAROLYN W COLVIN, Defendant: Candace H. Lawrence, Jason W.Valencia, Social Security Administration, Assistant Regional Counsel, Boston, MA; Derri T. AUSA Thomas, U.S. Attorney's Office, Detroit, MI.
Michael Hluchaniuk, United States Magistrate Judge. John Corbett O'Meara, United States District. Judge.
REPORT AND RECOMMENDATION CROSS-MOTIONS FOR SUMMARY JUDGMENT (Dkt. 13, 14)
Michael Hluchaniuk, United States Magistrate Judge
I. PROCEDURAL HISTORY
A. Proceedings in this Court
On January 22, 2014, plaintiff Jeannette L. Biehl filed the instant suit seeking judicial review of the Commissioner's unfavorable decision disallowing benefits. (Dkt. 1). Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(b)(3), District Judge John Corbett O'Meara referred this matter to the undersigned for the purpose of reviewing the Commissioner's decision denying plaintiff's claims for disability insurance benefits and supplemental security income. (Dkt. 4). This matter is before the Court on cross-motions for summary judgment. (Dkt. 13, 14). Plaintiff also filed a reply brief in support of her motion. (Dkt. 16).
B. Administrative Proceedings
Plaintiff filed the instant claim for disability and disability insurance benefits (DIB) on April 20, 2011, alleging that she became disabled on October 18, 2010. (Dkt. 10-5, Pg ID 251-57). The claims were initially disapproved by the Commissioner on July 15, 2011. (Dkt. 10-3, Pg ID 167). Plaintiff requested a hearing and on October 2, 2012, plaintiff appeared with counsel before Administrative Law Judge (ALJ) Kathleen Eiler, who considered the case de novo. (Dkt. 10-2, Pg ID 125-47). In a decision dated October 23, 2012, the ALJ found that plaintiff was not disabled. (Dkt. 10-2, Pg ID 106-20). Plaintiff requested a review of this decision on November 30, 2012. (Dkt. 10-2, Pg ID 103-05). The ALJ's decision became the final decision of the Commissioner when, after the review of additional exhibits,  the Appeals Council, on December 20, 2013, denied plaintiff's request for review. (Dkt. 10-2, Pg ID 33-37); Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004).
For the reasons set forth below, the undersigned RECOMMENDS that plaintiff's motion for summary judgment be GRANTED IN PART, that the Commissioner's motion for summary judgment be DENIED IN PART, that the findings of the Commissioner be REVERSED IN PART, and that this matter be remanded for further proceedings under sentence four.
II. FACTUAL BACKGROUND
A. ALJ Findings
Plaintiff, born in 1963, was 47 years of age on the alleged disability onset date and 48 years old on the date last insured, June 30, 2011. (Dkt. 10-2, Pg ID 118). Plaintiff had past relevant work experience as an adult foster care worker, a nurse aide, and a custodian. (Dkt. 10-2, Pg ID 118). The ALJ applied the five-step disability analysis to plaintiff's claim and found at step one that plaintiff had not engaged in substantial gainful activity during the period from her alleged onset date through her date last insured. (Dkt. 10-2, Pg ID 111). At step two, the ALJ found that plaintiff's degenerative disc disease, status post Achilles tendon repair, and obesity were " severe" within the meaning of the second sequential step, and that plaintiff's depression was not severe, noting her depression caused no more than mild limitations. (Dkt. 10-2, Pg ID 111-13). At step three, the ALJ found no evidence that plaintiff's combination of impairments met or equaled one of the listings in the regulations. (Dkt. 10-2, Pg ID 113).
The ALJ determined that plaintiff has the following residual functional capacity (" RFC"):
to perform sedentary work as defined in 20 CFR 404.1567(a). However, the claimant required an option to alternate between sitting and standing at will so long as she was not off task for more than 10% of any workday. Additionally, the claimant could never push, pull, twist, or pivot with her left lower extremity. The claimant could occasionally balance, stoop, and climb ramps and stairs, but she could never crouch, kneel, crawl, or climb ladders, ropes, or scaffolds. The claimant must also have avoided concentrated exposure to vibrations and workplace hazards.
(Dkt. 10-2, Pg ID 113-18). At step four, the ALJ found that plaintiff was unable to perform her past relevant work, because the exertional demands of those positions exceeded plaintiff's RFC. (Dkt. 10-2, Pg ID 118). At step five, the ALJ denied plaintiff benefits because she could perform a significant number of jobs available in the national economy, including charge account clerk, document preparer, and order clerk. (Dkt. 10-2, Pg ID 119-20).
B. Plaintiff's Claims of Error
Plaintiff alleges three claims of error: (1) the ALJ's Step Three determination is improper and not supported by substantial evidence; (2) the ALJ violated the procedural aspect of the treating physician rule in evaluating the medical source opinion of Dr. Lene Heinlen; and (3) the ALJ's RFC assessment is not supported by her own findings and is unsupported by substantial evidence.
Plaintiff first contends that the ALJ's Step Three analysis and determination that plaintiff's impairments do not meet or medically equal Listing 1.04(A) is not supported by substantial evidence because the ALJ fails to properly analyze or explain why plaintiff's impairments do not meet or medically equal Listing 1.04(A). Plaintiff asserts that " an ALJ must analyze the claimant's impairments in relation to the Listed Impairments and must give a reasoned explanation of his findings and conclusions in order to facilitate meaningful review." See Christephore v. Comm'r of Soc. Sec., 2012 WL 2274328, at *6 (E.D. Mich. June 18, 2012) (citing Reynolds v. Comm'r Soc. Sec., 424 F.App'x 411, 416 (6th Cir. 2011)). In Reynolds v. Commissioner of Social Security, 424 F.App'x 411 (6th Cir. 2011), the Sixth Circuit reversed the district court's affirmance of the ALJ's decision because the ALJ did not explain why the claimant did not meet or medically equal Listing 1.04, explaining that the ALJ " needed to actually evaluate the evidence, compare it to section 1.00 of the Listing, and give an explained conclusion, in order to facilitate meaningful judicial review. Without it, it is impossible to say that the ALJ's decision at Step Three was supported by substantial evidence." Reynolds, 424 F.App'x at 416. In Reynolds, the ALJ's step three analysis indicated that " Claimant does not have an impairment or combination of impairments which, alone or in combination, meet sections 1.00 or 12.00 of the Listings." Id. at 415.
Plaintiff argues that the ALJ's Step Three determination here is similarly bereft of an actual discussion beyond that of a simple regurgitation of the Listing language, and that the ALJ fails to specifically identify the reasons for determining that plaintiff fails to meet Listing 1.04(A). (Tr. 81). Plaintiff asserts that she has diagnoses of: lumbar radiculitis with left lower extremity radiculopathy, discogenic low back pain, lumbar spondylosis, and lumbago. (Tr. 369). Treatment records from Dr. David A. Herz, dated July 12, 2011, document a diagnosis of chronic degenerative lumbar spine disease, with disc herniation at L5-S1 on the left. (Tr. 463). An MRI of plaintiff's lumbar spine, dated March 10, 2011 documents significant findings of: broad based posterior disc bulge, eccentric to the left at L5-S1, resulting in stenosis of the left lateral recess, compressing the traversing left S1 nerve root without central canal stenosis; small disc protrusions at L1-L2 and L2-L3; mild disc bulge at L3-L4; and mild degenerative facet changes within the mid and lower lumbar spine. (Tr. 371). In addition, loss of disc height is also noted at L1-L2, L3-L4, and L5-S1. (Id.)
Plaintiff continues that in addition, Dr. Bhimalli reviewed and summarized the significant findings of plaintiff's March 2011 lumbar spine MRI, and upon examination, plaintiff was observed with significant tenderness over the lower lumbar spine and mild tenderness over the left lumbar facet joint area. (Tr. 369). Flexion and extension were also restricted and quadrant loading testing was positive on the left side. (Id.) Plaintiff further demonstrated decreased sensation to touch on the left lateral aspect of the left leg, straight leg raise testing was positive bilaterally, and plaintiff was observed with a positive Patrick's test on the left side. (Id.) Plaintiff was also observed with an antalgic gait pattern, favoring her lower left limb. (Tr. 462). Dr. Herz indicated that he reviewed plaintiff's MRI results, and noted findings of: degenerative disc disease and facet joint disease from L1-L2 through L3-L4; early modic change at L3-L4 and loss of disc height; L5-S1 disc herniation with markedly reduced disc height; and moderately advanced modic change and facet joint disease. (Tr. 463). The doctor noted plaintiff has chronic lumbar degenerative lumbar spine disease, with disc herniation at L5-S1 on the left, and specifically indicated that plaintiff was " a surgical candidate." (Id.) Plaintiff was observed with a very limited range of motion and soft tissue tenderness in the lumbar paraspinous region. (Tr. 334-35). Furthermore, plaintiff continues, her treating physician, Dr. Heinlen, completed a September 1, 2011 Medical Source opinion opining that plaintiff cannot sustain a typical full-time 8-hour workday. (Tr. 519-22). Plaintiff related that the reason she is unable to work is due to problems with her back, and testified that she experiences constant pain in her lower back and down her left leg. (Tr. 98). She described her pain as an ache and sharp in nature, and explained that the pain travels down her left leg. (Id.) She stated that she could only stand for about 10 minutes at one time, sit for about 10 to 15 minutes at one time, walk about " a block or so" at one time without stopping, and the heaviest amount of weight she could lift and carry is 10 pounds. (Tr. 98, 100).
Plaintiff acknowledges that it is well settled that this court will not overturn an ALJ's decision if the failure to articulate Step Three findings is harmless. See M.G. v. Comm'r of Soc. Sec., 861 F.Supp.2d 846, 859-60 (E.D. Mich. 2012). Plaintiff contends, however, that remand is appropriate in cases, such as this, where the district court's review of the ALJ's decision and the record evidence leaves open the possibility that a Listing is met or equaled. See Reynolds, 424 F.App'x at 416 (" in this case, correction of such an error is not merely a formalistic matter of procedure, for it is possible that the evidence [the plaintiff] put forth could meet this listing"). Plaintiff argues that, taking the entirety of the evidence and facts together, along with the evidence and testimony outlined above, it is unreasonable to conclude that the ALJ's articulation error was harmless, since the evidence could reasonably meet or equal the relevant Listing/Listings. Plaintiff continues that regardless of how the ALJ might ultimately decide plaintiff's claims, this court cannot say that, if the ALJ had made the required findings at Step Three, she necessarily would have found that plaintiff did not meet or medically equal the relevant Listing. Plaintiff contends, in addition, that if the ALJ does find that the evidence establishes medical equivalence, the plaintiff would be presumptively entitled to benefits. See Christephore, 2012 WL 2274328, at *6. Plaintiff thus argues that because this court cannot conclude that the ALJ's error is harmless, remand is appropriate. See Reynolds, 424 F.App'x at 416.
As her second claim of error, plaintiff contends that the ALJ's determination to reject Dr. Heinlen's treating physician opinion is not supported by substantial evidence and that the ALJ failed to comply with the procedural aspect of the treating physician rule. According to plaintiff, the ALJ here summarizes Dr. Heinlen's RFC assessment in her decision and continued on to state that: " [t]he undersigned gives limited weight to Dr. Heinlen's opinion because it is without substantial support from the medical evidence and the record as a whole, including Dr. Heinlen's own treatment notes which show very few objective findings to support such significant limitations." (Tr. 85). Surely, plaintiff argues, such a vague and conclusory explanation cannot be said to be supported by substantial evidence or constitute the " good reasons" contemplated by SSR
96-2p. Plaintiff also takes exception to the ALJ's statement that Dr. Heinlen's treatment notes " show very few objective findings." Id. Plaintiff argues that Dr. Heinlen is plaintiff's primary care physician and has continuously overseen plaintiff's back pain complaints since her initial injury in March 2011, and that Dr. Heinlen was also the physician who ordered plaintiff to have an MRI. (Tr. 410). In addition, Dr. Heinlen was regularly updated on plaintiff's status from Dr. Herz (Tr. 459-64) and Dr. Bhimalli (Tr. 368-70, 504-17), and Dr. Heinlen was distributed a copy of plaintiff's MRI. (Tr. 372). Plaintiff argues that the ALJ neglects to properly consider the extent that Dr. Heinlen was fully involved in longitudinal picture of plaintiff's care, and, as a result, the ALJ's decision to give " limited weight" is not supported by substantial evidence and made without giving " good reasons." Plaintiff contends therefore that remand is warranted for proper consideration of this evidence.
Plaintiff also asserts, as her third claim of error, that at Step Two of the sequential evaluation process, the ALJ determined that plaintiff had " mild" limitations in social functioning and concentration, persistence, and pace. (Tr. 80). Plaintiff argues, however, that the ALJ fails to include in her RFC assessment any psychological limitations whatsoever. (Tr. 81-82). According to plaintiff, SSR 96-8p, indicates that psychological limitations " must be expressed in terms of work-related functions." See SSR
96-8p. Moreover, the Ruling indicates that " [w]ork-related mental activities generally required by competitive, remunerative work include the abilities to: understand, carry out, and remember instructions; use judgment in making work-related decisions; respond appropriately to supervision, co-workers and work situations; and deal with changes in a routine work setting." See SSR
According to plaintiff, the ALJ here determined that plaintiff has limitations in social functioning and concentration, persistence, and pace. (Tr. 80). Plaintiff argues that by failing to identify how these psychological limitations are accounted for in her RFC assessment, the ALJ has committed error. (Tr. 81-80). As a result, plaintiff continues, the ALJ's RFC assessment and responses to her hypothetical questions from the vocational expert are not supported by substantial evidence. According to plaintiff, the Sixth Circuit has held that where the vocational expert testimony is used as substantial evidence to prove " the existence of a substantial number of jobs that plaintiff can perform, other than her past work, the testimony must be given in response to a hypothetical question that accurately describes the plaintiff in all significant, relevant respects." Felisky v. Bowen, 35 F.3d 1027, 1035-36 (6th Cir. 1994). Failure to do so warrants a remand. Faucher v. Sec'y of Health & Human Servs., 17 F.3d 171, 175 (6th Cir. 1994). Accordingly, plaintiff concludes, this case should be remanded for proper consideration of her psychological limitations.
C. The Commissioner's Motion for Summary Judgment
The Commissioner first argues that substantial evidence supports the ALJ's findings at Step Three of the sequential evaluation. The Commissioner explains that at Step Three, the ALJ " must compare the medical evidence with the requirements for listed impairments in considering whether the condition is equivalent in severity to the medical findings for any Listed Impairment." Reynolds, 424 F.App'x at 415. In Reynolds, the Sixth Circuit found that the ALJ erred because " [n]o analysis whatsoever was done as to whether Reynolds' physical impairments met or equaled a Listing under section 1.00, despite his introduction concluding that they did not." Id. The Reynolds Court further concluded " correction of such error is not merely a formalistic matter of procedure, for it is possible that the evidence Reynolds put forth could meet this listing." Id. Thus, the Court found, " the ALJ needed to actually evaluate the evidence, compare it to section 1.00 of the Listing, and give an explained conclusion, in order to facilitate meaningful judicial review. Without it, it is impossible to say that the ALJ's decision at Step Three was supported by substantial evidence." Id.
The Commissioner states that Listing 1.04 is for " [d]isorders of the spine (e.g., herniated nucleous pulposus, spinal arachniditis, spinal stenosis osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equine) or the spinal cord." 20 C.F.R. Part 404, Subpart P, Appendix 1, at § 1.04. There are three alternative methods of meeting the listing, and plaintiff argues that she could meet the requirements outlined in Listing 1.04(A): " Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associate muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine)." Id. The Commissioner asserts that, regarding motor loss, the Social Security Administration further provides: " inability to walk on the heels or toes, to squat, or to arise from a squatting position, when appropriate, may be considered evidence of significant motor loss." 20 C.F.R. Pt. 404, Subpt. P, App. 1, at § 1.00(E). The Commissioner argues that contrary to plaintiff's allegations, the ALJ here did discuss whether or not plaintiff's back impairment met the requirements of Listing 1.04(A), making the following finding: " [t]hrough the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1." (Tr. 81). The Commissioner contends that had the ALJ stopped her analysis here, it would have been insufficient under Reynolds . The ALJ, however, continued and explained why listing 1.04 was not met:
The claimant's degenerative disc disease failed to meet the requirements for listing 1.04 (Disorders of the Spine), because the record, consistent with the findings below, did not demonstrate compromise of a nerve root or the spinal cord with (A) evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss accompanied by sensory or reflex loss and positive ...