DECISION AND ENTRY
THOMAS M. ROSE, UNITED STATES DISTRICT JUDGE.
This is an action under 42 U.S.C. § 405(g) for review of the decision of the Commissioner of the Social Security Administration ("Commissioner") denying Plaintiff Michael Martin's application for Disability Insurance Benefits and Supplemental Security Income. On August 2, 2016, Magistrate Judge Michael J. Newman entered a Report and Recommendation (Doc. 11), which recommended that the Court reverse the Commissioner's non-disability finding and remand the matter to the Social Security Administration for the payment of benefits. On August 19, 2016, the Commissioner filed Objections (Doc. 12) to the Report and Recommendation. On September 2, 2016, Plaintiff filed a Response (Doc. 13) to the Commissioner's Objections. This matter is therefore ripe for the Court's review.
As required by 28 U.S.C. § 636(b) and Federal Rule of Civil Procedure 72(b), the Court has made a de novo review of the record in this case. Upon said review, the Court finds that the Commissioner's Objections to the Report and Recommendation are
REPORT AND RECOMMENDATION 1 THAT: (1) THE ALJ'S NON-DISABILITY FINDING BE FOUND UNSUPPORTED BY SUBSTANTIAL EVIDENCE, AND REVERSED; (2) THIS MATTER BE REMANDED TO THE COMMISSIONER UNDER THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR AN IMMEDIATE AWARD OF BENEFITS; AND (3) THIS CASE BE CLOSED
Michael J. Newman, United States Magistrate Judge.
This is a Social Security disability benefits appeal. At issue is whether the Administrative Law Judge ("ALP) erred in finding Plaintiff not "disabled" and therefore unentitled to Disability Insurance Benefits ("DIB") and/or Supplemental Security Income ("SSI").
A. Procedural History
Plaintiff filed for DIB and SSI alleging a disability onset date of March 31, 2011. PageID 307-17. Plaintiff claims disability as a result of a number of alleged impairments including, inter alia, degenerative disc disease of the cervical and lumbar spine and degenerative joint disease of the right shoulder. PageID 36.
After initial denials of his applications, Plaintiff received hearings before ALJ Joseph P. Donovan, Sr. on March 8, 2013 and August 29, 2013. PageID 58-91, 92-122. The ALJ issued a written decision on November 22, 2013 finding Plaintiff not disabled. PageID 34-51. Specifically, the ALJ's findings were as follows:
Thereafter, the Appeals Council denied Plaintiff's request for review, making the ALJ's non-disability finding the final administrative decision of the Commissioner. PageID 23-25. See Casey v. Sec'y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993). Plaintiff then filed this timely appeal. Cook v. Comm'r of Soc. Sec., 480 F.3d 432, 435 (6th Cir. 2007).
B. Evidence of Record
In his decision, the ALJ set forth a detailed recitation of the underlying medical evidence in this case. PageID 37-49. Plaintiff, in his Statement of Errors, also sets forth an extensive summary of the record evidence. Doc. 7 at PageID 863-71. The Commissioner, in response to the Statement of Errors, defers to the ALJ's recitation of the evidence and incorporates relevant facts into the arguments presented. Doc. 10 at PageID 906. Except as otherwise noted herein, the undersigned incorporates the summary of evidence as set forth by the ALJ and Plaintiff.
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. 42 U.S.C. § 405(g); Bowen v. Comm'r of Soc. Sec., 478 F.3d 742,745-46 (6th Cir. 2007). In performing this review, the Court must consider the record as a whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978).
Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). When substantial evidence supports the ALJ's denial of benefits, that finding must be affirmed, even if substantial evidence also exists in the record upon which the ALJ could have found Plaintiff disabled. Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Thus, the ALJ has a "`zone of choice' within which he [or she] can act without the fear of court interference." Id. at 773.
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., 582 F.3d 647, 651 (6th Cir. 2009). "[A] decision of the Commissioner will not be upheld where the [Social Security Administration] fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right." Bowen, 478 F.3d at 746.
B. "Disability" Defined
To be eligible for disability benefits, a claimant must be under a "disability" as defined by the Social Security Act. 42 U.S.C. § 423(d)(1)(A). Narrowed to its statutory meaning, a "disability" includes physical and/or mental impairments that are both "medically determinable" and severe enough to prevent a claimant from (1) performing his or her past job and (2) engaging in "substantial gainful activity" that is available in the regional or national economies. Id.
Administrative regulations require a five-step sequential evaluation for disability determinations. 20 C.F.R. § 404.1520(a)(4). Although a dispositive finding at any step ends the ALJ's review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), the complete sequential review poses five questions:
20 C.F.R. § 404.1520(a)(4); see also Miller v. Comm'r of Soc. Sec., 181 F.Supp.2d 816, 818 (S.D. Ohio 2001). A claimant bears the ultimate burden of establishing disability under the Social Security Act's definition. Key v. Comm'r of Soc. Sec., 109 F.3d 270, 274 (6th Cir. 1997).
Plaintiff argues that the ALJ erred in: (1) assigning no weight to the consistent opinions of treating physicians Robert Thaler, M.D. and Sung K. Min, M.D. and, instead, relying on the opinions of record reviewers Jerry McCloud, M.D. and Gary Hinzman, M.D.; and (2) assessing his credibility. Doc. 8 at PageID 872, 877. Finding reversible error in failing to appropriately evaluate medical source opinions, the undersigned does not reach Plaintiff's second alleged error regarding the assessment of his credibility.
"[T]he Commissioner's regulations establish a hierarchy of acceptable medical source opinions[.]" Snell v. Comm'r of Soc. Sec., No. 3:12-cv-119, 2013 WL 372032, at *9 (S.D. Ohio Jan. 30, 2013). In descending order, these medical source opinions are: (1) treaters; (2) examiners; and (3) record reviewers. Id.
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., 549 Fed.Appx. 377, 384 (6th Cir. 2013). Treaters are entitled to greater deference because they "are likely to be... most able to provide a detailed, longitudinal picture of [a claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations[.]" 20 C.F.R. § 404.1527(c)(2). Even if a treater's opinion is not entitled to controlling weight, "the ALJ must still determine how much weight is appropriate by considering a number of factors, including the length of the treatment relationship and the frequency of examination, the nature and extent of the treatment relationship, supportability of the opinion, consistency of the opinion with the record as a whole, and any specialization of the treating physician." Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see also 20 C.F.R. § 404.1527(c).
Here, in weighing the opinions of treaters Thaler and Min, the ALJ did not mention the concept of controlling weight and never specifically declined to afford their opinions controlling weight. See Wilson v. Commissioner of Social Sec., 378 F.3d 541, 544 (6th Cir. 2004) (stating that the regulations are designed to "ensure that the ALJ applies the treating physician rule and permits meaningful review of the ALJ's application of the rule"); PageID 46-47. Such failure is error where the Court cannot determine whether the ALJ undertook the "two-step inquiry" required when weighing treating source opinions. See Gayheart v. Camm'r of Soc. Sec., 710 F.3d 365, 376-78 (6th Cir. 2013); Chrismon v. Colvin, 531 Fed.Appx. 893, 900 (10th Cir. 2013). Such an oversight by the ALJ can constitute harmless error when, "despite [the ALJ's] failure to comply with the terms of 20 C.F.R. § 404.1527(c)(2), [the ALJ] has otherwise met the regulation's goal." Gayheart at 380. Here, even assuming the ALJ otherwise undertook a controlling weight analysis, the reasons given in declining to afford them controlling weight — and in otherwise rejecting these opinions in total — are unsupported by substantial evidence.
1. Dr. Thaler
Dr. Thaler began treating Plaintiff in 2008, during which time imaging revealed — among other findings — herniated discs in Plaintiff's lumbar/sacral spine. PageID 491, 579-80, 690. Dr. Thaler also provided treatment for Plaintiff's mental impairments, such as Plaintiff's depression. While treating with Dr. Thaler, Plaintiff underwent spinal surgery — an L5-S1 fusion — in June 2008. PageID 483-84. Even following surgery, Plaintiff continued to complain of back pain. See e.g., PageID 545. In fact, an MRI in December 2011 revealed "mild disc diffuse bulge" at L3/4, L4/5, and L5/S1, although the impression noted was "[m]inimal degenerative disease." PageID 853. That MRI also noted "minimal degenerative disease of the cervical spine." PageID 852.
During his treatment of Plaintiff, Dr. Thaler also noted Plaintiff's complaints of pain in his right shoulder. Imaging exams performed upon his referral revealed, for example, hypertrophic changes, AC joint changes, and tendinopathy in February 2010. See PageID 494. Plaintiff underwent arthroscopic repair of his right rotator cuff in March 2010. PageID 624. Plaintiff subsequently reinjured his shoulder and imaging studies in August 2010 revealed ten-donitis of the rotator cuff tendon. PageID 557.
In August 2011, Dr. Thaler opined that Plaintiff was "not able to perform sustained work" and was limited to sitting 30 minutes at a time and standing 15 minutes at a time. PageID 467-68. Dr. Thaler also concluded that Plaintiff could perform no bending or stooping, and had a decreased ability to lift and grasp. Id. The ALJ gave "no weight" to Dr. Thaler's August 2011 assessment on the basis that the limitations opined were inconsistent with his own records, such as musculoskeletal examinations that "routinely showed normal range of motion" in the spine and shoulder. PageID 46.
In April 2012, Dr. Thaler provided another assessment. PageID 737-40. In this assessment, Dr. Thaler opined that Plaintiff could sit, stand, or walk for only 1 hour per workday; was required to stand up and move around every 20 minutes; could occasionally lift and carry up to ten
Dr. Thaler offered a similar — if not identical — assessment in February 2013, after noting that he had "been treating [Plaintiff] since 2008, for herniated lumbar discs, bilateral lumbar radiculopathy, neck pain, right shoulder pain, and decreased range of motion status-post rotator cuff repair, depression, and insomnia."
The undersigned finds the reasons advanced by the ALJ in rejecting Dr. Thaler's opinion are unsupported by substantial evidence. First, in rejecting Dr. Thaler's August 2011 assessment, the ALJ commented that his musculoskeletal examinations "routinely showed normal range of motion" in the spine and shoulder. PageID 46. In this regard, the ALJ cites one isolated treatment record. PageID 46. A careful review of the evidence reveals that the record cited by the ALJ predates Plaintiff's alleged onset date. PageID 536; see Melius v. Colvin, No. CV 15-10820, 2016 WL 633953, at *4 (E.D. Mich. Feb. 9, 2016), report and recommendation adopted sub nom. Melius v. Comm'r of Soc. Sec., No. 15-CV-10820, 2016 WL 1104467 (E.D. Mich. Mar. 22, 2016) (noting the limited relevance of records that predate an alleged onset date). Further, the ALJ's statement, while acknowledging the existence of records that document a reduced range of motion, fails to explain why such clinical findings do not support Dr. Thaler's opinion. Absent a meaningful explanation in this regard, substantial evidence does not support the ALJ's conclusion.
Further, in rejecting Dr. Thaler's February 2013 assessment, the ALJ gave such opinion no weight because — among other reasons — "[t]he assessment of herniated lumbar discs is not supported by the most recent MRI[.]" PageID 46. Notably, there is no dispute that Plaintiff did suffer from disc herniation in his lumbar spine in 2008 — a condition for which Plaintiff treated with Dr. Thaler and subsequently underwent surgery to correct. See doe. 10 at PageID 907. Dr. Thaler, in his February 2013 letter, states only that he had "been treating [Plaintiff] since 2008," for a number of conditions, including "for herniated lumbar discs." Id. In other words, Dr. Thaler's statement, on its face, is true because he did treat Plaintiff for herniated discs during his treatment relationship with him.
The ALJ also sought to minimize the findings of the December 2011 MRI by noting that Plaintiff's "course of treatment had stabilized and required only semiannual visits." PageID 46-47. The problem with the ALJ's analysis in this regard, however, is the fact that the treatment record noting Plaintiff's stabilized "course of treatment" was from February 7, 2011 — i.e., almost a year before the imaging study. PageID 537.
Additionally, the undersigned finds error insofar as the ALJ rejected Dr. Thaler's assessments on the suspicion that such opinions were given "in an effort to assist" Plaintiff based upon either bias or sympathy. PageID 47. In fact, this Court has found that such "supposition by the ALJ... is not a `good reason' for discounting a treating physician's opinion where the possibility of bias is not supported by any specific evidence in the record." Price v. Comm'r of Soc. Sec., No. 3:13-CV-394, 2015 WL 93644, at *5 (S.D. Ohio Jan. 7, 2015), report and recommendation adopted, No. 3:13CV394, 2015 WL 1402587 (S.D. Ohio Mar. 25, 2015) (citing Hall v. Astrue, No. 7:07-cv-590, 2008 WL 5455720, at *4 (W.D. Va. Dec. 31, 2008) (stating that "[t]here is simply no basis for an ALJ to reject a treating physician's opinion based on unsupported conjecture of bias"); Hawkins v. Comm'r of Soc. Sec., No. SAG-13-3774, 2014 WL 5381852, at *3 (D. Md. Oct. 21, 2014) (holding that such a factor should not be considered "unless a particular record contains evidence of actual bias")). It is unclear how the ALJ could conclude that Dr. Thaler was moved by sympathy and bias, yet his opinion is consistent with the only other opinion offered by a medical source who actually examined Plaintiff in regard to his physical impairments — i.e., Dr. Min, Plaintiff's treating pain management specialist. See PageID 767-73.
2. Dr. Min
Dr. Min treated Plaintiff beginning on November 16, 2012. PageID 761. In March 2013, Dr. Min opined that Plaintiff could sit for 1 hour per workday; stand/walk for 2 hours per workday; occasionally lift up to 10 pounds; occasionally carry up to 5 pounds. PageID 767-73. Dr. Min also found that Plaintiff would require to take 30-40 minute breaks "often," and would miss more than 3 days of work per month because of his impairments. Id. The ALJ gave Dr. Min's opinion "no weight" because "no clinical findings have been offered in support of these otherwise conclusory assertion functional restrictions." PageID 47. The ALJ also noted a purported inconsistency in Dr. Min assessment insofar as he found "[Plaintiff] has been non-responsive to interventional pain management treatments but also ... able to function with daily activities due to his medication." PageID 47.
Insofar as the ALJ found that Dr. Min offered no clinical findings to support his opinion, such reason is unsupported by the record. In fact, in his assessment report, Dr. Min specifically noted clinical findings such as: limited range of motion at L5/S1; tenderness in the lumbar spine with extension and rotation; muscle weakness in the lumbar spine; positive straight leg test; and pain with range of motion in all planes. PageID 767-68. Dr. Min also pointed to Plaintiff's December 2011 MRI as support underlying his opinion concerning Plaintiff's functional limitations. PageID 769. As a result, the ALJ's finding in this regard is deemed unsupported by substantial evidence.
Further, the ALJ's finding of inconsistency in Dr. Min's statements is also unsupported by the record. In his impairment questionnaire, Dr. Min notes specifically that Plaintiff experienced no relief from epidural injections, i.e., an interventional pain management treatment.
Based on the foregoing, the undersigned concludes that the ALJ's rejection of Dr. Min's opinion is unsupported by substantial evidence.
When the ALJ's non-disability determination is unsupported by substantial evidence, the Court must determine whether to remand the matter for rehearing or to award benefits. Generally, benefits may be awarded immediately "if all essential factual issues have been resolved and the record adequately establishes a plaintiff's entitlement to benefits." Faucher v. Sec'y of Health & Human Servs., 17 F.3d 171,
Here, proof of disability is overwhelming and remand would result in the presentation of cumulative evidence and serve no purpose other than delay. Treaters Thaler and Min both gave consistent disabling opinions based upon their longitudinal treatment of Plaintiff, imaging studies, and clinical findings documented throughout the record. Opinions to the contrary — such as those of the record reviewers who did not analyze a complete treatment record — cannot overcome the controlling weight the treaters' opinions deserve. See Gayheart, 710 F.3d at 377 (holding that conflicting substantial evidence must consist of more than the medical opinions of the nontreating and nonexamining doctors" because "[o]therwise the treating-physician rule would have no practical force because the treating source's opinion would have controlling weight only when the other sources agreed with that opinion"). Accordingly, this case must be remanded for an immediate award of benefits.