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Hagan v. Commissioner of Social Security

United States District Court, E.D. Michigan, Southern Division

February 23, 2018

KELLY J. HAGAN, Plaintiff





         A. Proceedings in this Court

         On November 14, 2016, plaintiff filed the instant suit seeking judicial review of the Commissioner's unfavorable decision disallowing benefits. (Dkt. 1). This case was referred to the undersigned magistrate for all pre-trial purposes. (Dkt. 3). This matter is before the Court on cross-motions for summary judgment. (Dkt. 14, 15). Plaintiff also filed a reply in support of her motion for summary judgment. (Dkt. 17).

         B. Administrative Proceedings

         Plaintiff filed the instant claims for a period of disability and disability insurance benefits on October 30, 2013, alleging disability beginning September 9, 2013. (Tr. 19).[1] At the hearing, plaintiff amended the alleged onset date to March 19, 2014. (Tr. 39-40). The claim was initially disapproved by the Commissioner on April 11, 2014. (Tr. 19). Plaintiff requested a hearing, and on November 19, 2015, she appeared and testified, with the assistance of her attorney, before Administrative Law Judge (ALJ) Manh H. Nguyen, who considered the case de novo. (Tr. 34-56). In a decision dated January 13, 2016, the ALJ found that plaintiff was not disabled. (Tr. 16-29). Plaintiff requested a review of this decision. (Tr. 15). The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on September 26, 2016. (Tr. 1-6); 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, that defendant's motion for summary judgment be DENIED, that the findings of the Commissioner be REVERSED, and that this matter be REMANDED for further proceedings under Sentence Four.


         A. ALJ Findings

         Plaintiff was born in 1965 and was 50 years old at the time of the hearing. (Tr. 58). Plaintiff had past relevant work as a short order cook and a cashier. (Tr. 28). Plaintiff stopped working completely, after reducing her hours, in June 2014 because of the pain and her physician's orders. (Tr. 41). 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 since the amended alleged onset date. (Tr. 21). At step two, the ALJ found that plaintiff's multiple joint arthritis, degenerative disc disease of the thoracic and lumbar spine, disc bulging and stenosis of the cervical spine, myalgia, chronic pain syndrome, headaches, and obesity were severe impairments. Id. At step three, the ALJ found no evidence that plaintiff's combination of impairments met or equaled one of the listings in the regulations. (Tr. 23-24). The ALJ determined that plaintiff had the following residual functional capacity (RFC):

After careful consideration of the entire record, I find that the claimant has the residual functiona1 capacity to perform light work as defined in 20 CFR 404.1567(b) except she can occasionally lift and/or carry 20 pounds and frequently lift and/or carry 10 pounds; she can stand and/or walk for 6 hours in an 8 hour workday; she can sit for 6 hours in an 8 hour workday; she cannot climb ladders, ropes, or scaffolds; she cannot kneel or crawl; she can occasionally climb stairs and ramps; she can occasionally balance, stoop, and crouch; she can occasionally reach overhead with either arm; she can frequently reach forward, handle, and finger with either hand; for every one hour of sitting, standing, or walking, she must be able to change position for 3 minutes before resuming the prior position; she cannot be in an occupation that requires the use of a computer; and she cannot work around unprotected heights.

(Tr. 24). At step four, the ALJ concluded that plaintiff could perform her past relevant work as a short order cook, but not as a cashier, based on the vocational expert testimony. (Tr. 28-29). Thus, the ALJ concluded that plaintiff has not been under a disability from March 19, 2014 through the date of the decision. (Tr. 29).

         B. Plaintiff's Claims of Error

         To reach the finding that plaintiff could perform light work, plaintiff maintains that the ALJ improperly disregarded the medical opinions and restrictions of her treating physician, Dr. Viguilla. Dr. Viguilla opined that plaintiff is limited to lifting less than 10 pounds occasionally; standing and walking is limited to less than 2 of 8 hours; sitting is limited to less than 6 of 8 hours and her ability to sustain concentration would be impaired by pain. (Tr. 376-77). Accordingly, Dr. Viguilla opined that plaintiff could not perform even sedentary level work without the need to lie down or take unscheduled rest breaks multiple times during the day, and as a result of her pain, she would likely miss more than 15 days of work per month. (Tr. 387).

         Plaintiff asserts that the ALJ provides insufficient analysis as to why he gave the treating physician's opinion little weight. (Tr. 27-28). The ALJ concluded that there is “no evidence that the claimant was unable to stand or walk.” (Tr. 28). Yet, neither Dr. Viguilla nor plaintiff has stated that she is unable to walk or stand. Consistent with plaintiff's testimony, however, on multiple occasions, her physicians have opined that her back pain was aggravated or worsened by standing and walking. (Tr. 386, 316, 320, 324, 327, 330, 334, 338, 341, 345, 348, 359, 362). Plaintiff maintains that this is entirely consistent with Dr. Viguilla's opinion that plaintiff was limited to being on her feet standing and walking less than 2 hours of an 8 hour day. (Tr. 27, 376).

         According to plaintiff, the he ALJ's only reference to the medical records to support his analysis was an August 20, 2014 report of pain specialist, Dr. Marvin Bleiberg, M.D. who noted only slightly diminished muscle strength. (Tr. 370). Plaintiff points out, however, that Dr. Bleiberg also noted that plaintiff appeared to be in pain, and also reported straightening of cervical and lumbar lordosis; tenderness to bilateral paraspinal palpation; restricted range of motion in the lumbar and cervical spine; hypertonic muscle groups; involuntary muscle spasms in both the paravertebral muscles bilaterally and the trapezius muscles; and positive Patrick's sign bilaterally for low back pain. (Tr.370). Plaintiff argues that Dr. Bleiberg's findings support rather than contradict Dr. Viguilla's restrictions.

         The ALJ then cites a lack of treatment for plaintiff's psychological conditions, but notably, plaintiff contends that neither she nor Dr. Viguilla is alleging a disabling psychological condition. (Tr. 28). In according Dr. Viguilla's opinion little weight, plaintiff maintains that the ALJ has failed to cite any medical evidence of record contradicting the treating physician's opinions. In discounting Dr. Viguilla's restrictions, the ALJ holds, “although Dr. Viguilla is the claimant's treating physician, his opinion is unsupported by the objective medical evidence.” (Tr. 27, 28). The ALJ, however, does not cite any specific testing that contravenes Dr. Viguilla's findings. The ALJ did note that the electromyographic study of the lower extremities revealed no evidence of lumbar radiculopathy. (Tr. 25). Plaintiff points out, however, that EMG testing, was consistent with bilateral peroneal sensory neuropathy (Tr. 291) (peroneal nerve is a branch of the sciatic nerve that supplies sensation to the lower leg, foot and toes. See National Library of Medicine Encyclopedia [] 2017).

         According to plaintiff, the other objective testing also supports the opinions of the treating physician and her own testimony. Dr. Yacisen, an orthopedic surgeon, ordered x-rays of the thoracic spine and concluded that they revealed significant degenerative disc disease and increased kyphosis. (Tr. 381). Dr. Amy Hance noted that cervical x-rays revealed reversal of the lordotic curve with posterior bone spurs at ¶ 4-5, C5-6 and C6-7 with moderately decreased disc spaces at ¶ 3-4, C4-5 and C5-6. (Tr. 302). NP Patricia McGuire opined that lumbar MRI studies revealed significant degenerative disc disease at ¶ 2-3 and L4-5. (Tr.425). Thus, plaintiff maintains that the opinions of Dr. Viguilla are fully supported by the objective testing.

         The ALJ also opined that plaintiff “walked at a normal speed with a non-antalgic gait.” (Tr. 27). This holding is not consistent with all of the medical evidence of record. Plaintiff points out that on several occasions, her gait was described as impaired or stiff and painful, (Tr.391, 396, 404), while on several other occasions, plaintiff was described as having a slow gait (Tr.317, 321, 328). Further, in accessing plaintiff's medical history, even the ALJ has acknowledged that plaintiff has undergone significant treatment including opioid medication, epidural steroid injections, physical therapy, nerve blocks, chiropractic manipulation and a lumbar radiofrequency procedure to burn the nerve roots (Tr. 219, 341-343) in attempts to reduce her pain.

         Lastly, the ALJ suggests that the aforesaid treatment has provided significant improvement in her condition. (Tr. 27). According to plaintiff, the improvement that she obtained with treatment has only been temporary. On September 30, 2014, plaintiff underwent an epidural steroid injection with her physician noting the prior injection had provided 50% relief but only for one week. (Tr. 359). On February 9, 2015, plaintiff underwent an additional pain injection with her physician opining the prior injection provided 80% pain relief but only for 1 week (Tr. 341). On September 22, 2015, due to ongoing symptoms in her neck, plaintiff was provided with additional cervical pain injections with her pain management specialist noting the prior injection had provided 70% relief but only for two weeks (Tr. 310). On August 25, 2015, Dr. Ruiz noted a recent lumbar radio frequency procedure had provided significant pain relief but that the relief had only lasted for one month before the pain returned. (Tr. 313). On May 19, 2015, her physician noted that while pain medications were helping, they were only taking away approximately 25% of plaintiff's pain. (Tr. 327). As noted by the ALJ, plaintiff has been taking significant pain medication including Vicodin, Norco, Naprosyn, Cymbalta, Meloxicam (Mobic), Lyrica and Methocarbamol. (Tr.26). Yet, on multiple occasions, plaintiff's physicians have noted that those medications were not successful in providing control of plaintiff's severe pain. (Tr. 281, 412-3, 406, 324, 425). Accordingly, plaintiff contends that the ALJ has failed to set forth any reason supported by the medical record for failing to give controlling weight to the medical opinions and restrictions of the treating physician.

         Plaintiff also argues that the ALJ's decision that plaintiff could perform her past work as a short order cook is inconsistent with the vocational evidence. The ALJ holds plaintiff is capable of performing past relevant work as a short order cook holding this does not require the performance of work -related activities precluded by the ALJ's residual functional capacity. (Tr.28). Yet, the vocational record reflects plaintiff's past work as a cook required standing/walking at least 7-1/2 hours of an 8 hour workday. (Tr. l78). In his holding, the ALJ finds that plaintiff would only be able to stand/walk for 6 hours of an 8 hour work day (Tr. 24). By definition, this restriction would preclude the past work as a short order cook. While the ALJ finds plaintiff could perform the cook position while sitting or standing, plaintiff contends that there is no vocational testimony to support that position. (Tr. 29).

         Additionally, Dr. Viguilla opined that as a result of her medical conditions, plaintiff would likely miss or be absent 15 days of a 30 day period. (Tr. 387). The vocational expert testified that missing more than one day per month would preclude all employment. (Tr. 55). Dr. Viguilla opined that the severity of plaintiff's pain would prevent her from sustaining even sedentary level work without the ability to take multiple unscheduled rest breaks during the day. (Tr. 387). The vocational expert testified that this time off task would preclude all employment. (Tr. 54). Without a valid rationale, plaintiff contends that the ALJ disregarded the restrictions of the treating physician and opined that plaintiff would not need any unscheduled rest breaks or be absent due to her medical impairments. (Tr. 24). Because the ALJ's decision is inconsistent with the uncontested medical and vocational evidence, plaintiff argues that the ALJ's findings are legally in error requiring reversal.

         C. The Commissioner's Motion for Summary Judgment

         Although Dr. Viguilla was Plaintiff's treating physician, the Commissioner contends that the ALJ properly gave his opinion little weight because it was not supported by the objective medical evidence, including: (1) no evidence of limitations with standing and walking; (2) no significant evidence of lack of strength; and (3) no evidence of lack of focus. (Tr. 27-28). With respect to standing and walking, the ALJ wrote, “The record provides no evidence that the [Plaintiff] was unable to stand or walk.” (Tr. 28). Plaintiff alleges that this justification is erroneous because she never alleged that she was unable to walk or stand, but instead reported that her back pain worsened with those activities. Although inartfully stated, the Commissioner contends that it is clear that the ALJ did not mean to imply that plaintiff needed to demonstrate a complete inability to stand or walk in order for Dr. Viguilla's opinion that she could stand for less than two hours to be given less weight. (Tr. 28, 376). Rather, the ALJ reasoned that Dr. Viguilla's extreme standing and walking limitations were not supported by the evidence, which showed no limitations in these areas. (Tr. 28). According to the Commissioner, substantial evidence supports the ALJ's finding because Dr. Viguilla's November 2013 opinion referenced no objective findings to demonstrate limited standing or walking ability. (Tr. 376). Dr. Viguilla reported a diminished range of motion in plaintiff's neck and shoulder, along with pain, but included no other objective findings in the opinion. Id. In contrast, Dr. Viguilla's June 2014 opinion discussed a functional capacity evaluation that concluded plaintiff was capable of performing light-exertion work-i.e., standing and walking for up to six hours in an eight-hour workday. (Tr. 386). Dr. Viguilla characterized the finding as being “just one step above sedentary” but opined, contrary to the evaluation and without reference to objective support, that plaintiff could not work at all. Id. Later that month, Dr. Viguilla opined that plaintiff could not sustain sedentary work without the need to take several unscheduled breaks. (Tr. 387). According to the Commissioner, Dr. Viguilla failed to provide any objective basis for his opinion that plaintiff could walk for less than two hours. The Commissioner also points out that other evidence shows that plaintiff's condition actually improved with activity. For example, the medical providers at Michigan Spine and Pain noted that “activity” improved plaintiff's activity, allowing her to stand longer. (Tr. 320, 324, 327). Dr. Viguilla also indicated that plaintiff's condition could improve with physical and occupational therapy. (Tr. 384). Plaintiff reported that physical therapy was helping and asked to continue. (Tr. 341). The Commissioner maintains that the records do not demonstrate that plaintiff required standing limitations in excess of those provided by the ALJ.

         The Commissioner argues that the ALJ also gave less weight to Dr. Viguilla's opinion that plaintiff could lift less than ten pounds because the evidence failed to support that limitation. (Tr. 28, 386). For example, on December 26, 2013, Mary Ann Frick, F.N.P., observed normal strength. (Tr. 269). After examining plaintiff on August 20, 2014, Marvin Bleiberg, M.D., opined that she could lift between ten and twenty five pounds. (Tr. 368). The physician also reported that plaintiff's strength measured four or five out of five in her shoulders, elbows, wrists, hand ...

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