ALAN N. BLOCH, District Judge.
AND NOW, this 31st day of March, 2017, upon consideration of Defendant's Motion for Summary Judgment (Doc. No. 10) filed in the above-captioned matter on June 17, 2016,
IT IS HEREBY ORDERED that said Motion is DENIED.
AND, further, upon consideration of Plaintiff's Motion for Summary Judgment (Doc. No. 8) filed in the above-captioned matter on May 17, 2016,
IT IS HEREBY ORDERED that said Motion is GRANTED. Accordingly, this matter is hereby remanded to the Commissioner of Social Security ("Commissioner") for further evaluation under sentence four of 42 U.S.C. § 405(g) in light of this Order.
Plaintiff Robert Duane Page protectively filed a claim for Disability Insurance Benefits under Title II of the Social Security Act (the "Act"), 42 U.S.C. §§ 401-434, on June 10, 2013, claiming that he became disabled on May 31, 2013, due to diabetes, silicosis, plantar fascia, and sleep apnea.
Standard of Review
Judicial review of a social security case is based upon the pleadings and the transcript of the record.
"Substantial evidence" is defined as "`more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate'" to support a conclusion.
A disability is established when the claimant can demonstrate some medically determinable basis for an impairment that prevents him or her from engaging in any substantial gainful activity for a statutory twelve-month period.
The Social Security Administration has promulgated regulations incorporating a five-step sequential evaluation process for determining whether a claimant is under a disability as defined by the Act.
Step Four requires the ALJ to consider whether the claimant retains the residual functional capacity ("RFC") to perform his or her past relevant work,
At this stage, the burden of production shifts to the Commissioner, who must demonstrate that the claimant is capable of performing other available work in the national economy in order to deny a claim of disability.
The ALJ's Decision
In his April 17, 2015 decision, the ALJ found that Plaintiff met the insured requirements of the Social Security Act through today, March 31, 2017. (R. 16). Accordingly, to be eligible for DIB benefits, Plaintiff had to establish that he was disabled on or before that date.
The ALJ then proceeded to apply the sequential evaluation process when reviewing Plaintiff's claim for benefits. In particular, the ALJ found that Plaintiff had not been engaged in substantial gainful activity since the alleged onset date of May 31, 2013 (R. 16). The ALJ also found that Plaintiff met the second requirement of the process insofar as he had several severe impairments, specifically: silicosis — mild and reversible chronic obstructive pulmonary disease, mild mediastinal and hilar adenopathy, obstructive sleep apnea, and diabetes mellitus type II. (R. 16-17). The ALJ found that several of Plaintiff's alleged limitations did not qualify as severe impairments, including his plantar fasciitis, diabetic neuropathy, high cholesterol, and post-concussive syndrome. (
The ALJ found that Plaintiff retained the RFC to perform medium work as defined in 20 C.F.R. § 404.1567(c), except that he must avoid more than moderate exposure to fumes, odors, dusts, gases, environments with poor ventilation, hot and cold temperatures, dampness, and humidity. (R. 18-22). Based on this RFC, Plaintiff established that he is incapable of returning to his past employment; therefore, the ALJ moved on to Step Five. (R. 22).
At Step Five, the ALJ used a vocational expert ("VE") to determine whether or not there were a significant number of jobs in the national economy that Plaintiff could perform. The VE testified that, based on Plaintiff's age, education, work experience, and RFC, Plaintiff could perform jobs that exist in significant numbers in the national economy, including the unskilled jobs of food preparer, linen room stock attendant, and childcare worker. (R. 22-23, 50-52). Accordingly, the ALJ found that Plaintiff was not disabled. (R. 23-24).
Plaintiff's primary argument revolves around the ALJ's treatment of his diabetic neuropathy affecting his feet, and particularly the January 19, 2015 opinion from Kevin Sugalski, D.O., regarding the limitations created by Plaintiff's neuropathy. While the Court does not find one way or another whether the RFC must be amended to include more limitations or whether Dr. Sugalski's opinion is entitled to more weight, it does find that the facts of this case necessitate remand for further consideration and discussion of these issues.
Although part of Plaintiff's argument is that the ALJ failed to find that his diabetic neuropathy constituted a severe impairment at Step Two of the sequential process, that is not really the issue. It is true that Step Two is a
What does matter is whether the ALJ adequately considered the neuropathy affecting Plaintiff's feet in determining Plaintiff's functional capacity, because even if an impairment is non-severe, it may still affect a claimant's RFC.
Although the ALJ did state that he included in the RFC limitations designed to accommodate Plaintiff's neuropathic foot pain, the only limitation pertaining thereto was limiting him to medium exertional duties which involve standing and walking about 6 hours of an 8-hour work day. (R. 21). The ALJ acknowledged that Dr. Sugalski opined that Plaintiff was more restricted in his ability to stand and walk, but ultimately gave Dr. Sugalski's opinion little weight. (
Plaintiff's consultative examination with Dr. Johnson was on August 23, 2013, and on that date, Dr. Johnson wrote his opinion that Plaintiff could perform medium work with a few other restrictions. (R. 283-300). At this examination, Dr. Johnson noted that Plaintiff claimed that his feet felt like he had calluses all the time with mild numbness, even though he had not, at that time, ever been diagnosed with neuropathy. (R. 283). Dr. Johnson concluded that there was evidence of perhaps mild peripheral neuropathy (R. 284), but overall he found few foot-related issues. Shortly thereafter, on September 4, 2013, Dr. Mari-Mayans, upon reviewing the records, including Dr. Johnson's report, opined that Plaintiff could perform medium work and walk and stand about 6 hours of an 8-hour workday. (R. 59-60). Dr. Sugalski's opinion that Plaintiff has significantly greater restrictions, on the other hand, was from nearly a year and a half later, on January 19, 2015. (R. 457). Under different circumstances, this gap in time may not have mattered, but it did in this case.
Generally speaking, there is no specific limit on how much time may pass between a medical professional's report or opinion and the ALJ's decision relying on it.
As stated above, at the time Plaintiff was examined by Dr. Johnson, he had not been diagnosed with neuropathy and reported relatively mild symptoms in his feet. However, beginning in December of 2013, and continuing through the date of Dr. Sugalski's opinion and the hearing in this matter, Plaintiff began complaining about burning, numbness, and pain in both of his feet on a regular basis. (R. 309, 310, 317, 318). He was, in fact, diagnosed with neuropathy and treated with medication, including Neurontin and gabapentin, neither of which improved Plaintiff's condition. (R. 317, 318). Dr. Sugalski issued his opinion fairly shortly after the last documented treatment of neuropathy in the record, and just a week and a half before the hearing in this case. In weighing this opinion, and those of the consultant and reviewing agent, the ALJ gave little or no attention to the new complaints and diagnoses from well after the consultative examination. In short, he failed to acknowledge that, in the rather large amount of time between Dr. Johnson's opinion and Dr. Sugalski's, the record reflected new happenings that may have supported a finding that Plaintiff's condition had deteriorated over that time. In a case such as this, where there is a substantial amount of new evidence between the date on which an opinion upon which an ALJ relies and the date on which the ALJ renders his or her decision, remand is warranted.
Accordingly, the Court is remanding this case so that the ALJ can more properly evaluate the weight to be given to the various medical opinions, and what additional limitations, if any, should be included in the RFC to account for Plaintiff's neuropathy based on the full factual context of the case. The Court takes no position as to the ultimate resolution of these issues, and it will leave to the ALJ's discretion whether any additional consultative evidence is needed in light of the evidence post-dating Dr. Johnson's findings.
In short, the record does not permit the Court to determine whether the findings of the ALJ regarding Plaintiff's diabetic neuropathy, and its impact on the weight afforded to the medical opinions and in formulating Plaintiff's RFC, are supported by substantial evidence, and, accordingly, the Court finds that substantial evidence does not support the ALJ's decision in this case. The Court hereby remands the case to the Commissioner for reconsideration consistent with this Order.