United States District Court, E.D. Michigan, Southern Division
KELLY J. HAGAN, Plaintiff
COMMISSIONER OF SOCIAL SECURITY, Defendant.
CORBETT O'MEARA UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION CROSS-MOTIONS FOR SUMMARY
JUDGMENT (DKT. 14, 15)
STEPHANIE DAWKINS DAVIS UNITED STATES MAGISTRATE JUDGE
Proceedings in this Court
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).
filed the instant claims for a period of disability and
disability insurance benefits on October 30, 2013, alleging
disability beginning September 9, 2013. (Tr.
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).
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.
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).
Plaintiff's Claims of Error
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).
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).
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.
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 [Medlineplus.gov/] 2017).
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.
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
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.
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).
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.
The Commissioner's Motion for Summary Judgment
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.
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 ...