Weber v. Commissioner of Social Security, No. 1:2012cv00550 - Document 18 (S.D. Ohio 2013)
Court Description: OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATIONS for 13 Report and Recommendation. The Court REVERSES the decision of the ALJ that Plaintiff be denied disability insurance benefits, REMANDS this matter (under sentence four of 42 U.S.C. § ; 405(g)) to the ALJ for proceedings consistent with this Opinion, and DISMISSES this case from the Courts docket. Remand is appropriate in cases, as here, when there is insufficient evidence in the record to support the Defendant Commissioner' s conclusion and further fact-finding is necessary. On remand, as the Magistrate Judge recommended, the ALJ should: (1) reevaluate whether Plaintiff can sustain full-time work; (2) reconsider the evidence regarding Plaintiffs mental RFC, obtain anoth er report from a consultative psychologist if necessary, and more carefully explain the basis for the weight accorded to the opinion of Plaintiffs treating psychologist; and (3) reassess Plaintiff's credibility, with particularly attention devoted to the admonition of the Magistrate Judge at pages 12-14 of her Report and Recommendation 13 . Signed by Judge S Arthur Spiegel on 9/24/2013. (km1)
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION JUSTIN WEBER, : : : : : : : : : : Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant. NO. 1:12-cv-550 OPINION AND ORDER This matter is before the Court on the Magistrate Judge s June 19, 2013 Report and Recommendation (doc. 13), Defendant s objections thereto (doc. 16) and For the reasons Magistrate indicated Judge s Plaintiff s reply (doc. 17). herein, recommended the Court decision AFFIRMS the ADOPTS the and Magistrate Judge s Report and Recommendation in all respects, REVERSES the decision of the Administrative Law Judge and REMANDS this case for further proceedings consistent with this Opinion and the specific recommendations of the Magistrate Judge. The procedural and factual backgrounds of this case are well-detailed in the Magistrate Judge s Report Recommendation, and the Court will not reiterate them here. brief, however, Plaintiff applied for disability and In insurance benefits ( DIB ), alleging a disability onset date of December 15, 2008 because of a combination 1 of mental and physical impairments. In a decision dated January 6, 2010, the Administrative Law Judge ( ALJ ) determined that Plaintiff had severe impairments of loin pain-hematuria syndrome (LPHS) and depression. However, the ALJ also determined that none of these impairments, alone or in combination, met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1, capacity ( RFC ) additional and that Plaintiff to perform limitations. A had the sedentary vocational residual work expert functional with certain testified that, although he was not capable of performing his past relevant work, a person with Plaintiff s profile and RFC nonetheless would be able to perform jobs that exist in significant numbers in the national economy (doc. 13 at 2 (citing Tr. 26-27)). Therefore, the ALJ determined that Plaintiff was not disabled and thus not entitled to DIB. Plaintiff argued that eventually the ALJ sought erred review when: (1) from he this Court determined and that Plaintiff could sustain full-time work without addressing his need to miss work for treatment or because of pain; (2) he failed to give controlling weight to his treating psychologist s opinion of his mental RFC; and (3) he improperly assessed Plaintiff s credibility regarding his allegations of disabling pain. Conceding that it was a close case, and noting that the heart of [it] rests on credibility issues (id. at 12), the 2 Magistrate Judge concluded that the evidence presented fell short of the amount necessary to affirm and thus recommended that it be remanded for additional review of all three issues. Beginning with Plaintiff s first assignment of error, the Magistrate Judge noted that the ALJ made a misstatement when he observed that Plaintiff had not required in-patient treatment for his LPHS or for pain, inasmuch as the record indicated that Plaintiff was admitted to the hospital twice for unrelenting pain. Of greater concern to her, however, was his reference to evidence that he believed supported a conclusion that Plaintiff s frequent but relatively short emergency room visits could be attributed to opiate abuse and drug-seeking behavior. Because the primary symptom of LPHS is severe pain and because the primary treatment of LPHS is the administration of opiates, she questioned whether the ALJ properly discounted the large number of visits and attributed them instead to substance abuse. Moreover, in characterizing the issue as one of credibility, the ALJ plainly side-stepped the sequential analysis required when the issue of substance abuse presents itself. The ALJ must determine initially whether a claimant suffers from a disability with symptoms that include the symptom of substance abuse (20 C.F.R. § 416.920); only after a determination of disability can he then proceed to consider whether the substance abuse is a contributing factor to the determination of disability (citing 3 20 C.F.R. § 416.1535). Framing the inquiries in this case, the Magistrate Judge instructed that the ALJ should have determined first whether Plaintiff s symptoms (including the alleged drugseeking visits) would preclude sustained work and, if so, whether Plaintiff s symptoms still would be disabling in the absence of substance abuse. With regard to Plaintiff s 83 doctor and hospital visits, a volume arguably incompatible with sustained employment, the Magistrate Judge noted that the record did not contain any quantitative evidence concerning the number of visits reasonably Plaintiff s LPHS. required to treat the symptoms of She thus found reversible error in the ALJ s failure to address more specifically the issue of whether the frequency of Plaintiff s need for treatment would preclude all work. Regarding Plaintiff s second assignment of error, the Magistrate Judge agreed with the ALJ that Plaintiff s mental health record was quite sparse. scant record mitigated against She believed, however, that a his decision to not give controlling weight to the opinion of treating psychologist, Dr. Dennis debilitating. Schneider, that Plaintiff s depression was Among other things, she noted that, when Dr. Schneider assessed Plaintiff s depression as stable , it was improper for the ALJ to assume he meant better when the only appropriate inference was unchanged. 4 Of particular concern to the Magistrate Plaintiff s two Judge was the hospitalizations ALJ s for pronouncement suicidal ideation that were simply attempts to garner the attention of family members (see doc. 13 at 10 (quoting Tr. 23, corroborate Dr. Schneider s opinion. 26)) and thus could not To draw such a conclusion based on personal perception, she observed, borders on improper medical judgment (see id. at 10).1 Just as she was troubled by the little weight given to the opinion of Dr. Schneider, the Magistrate Judge likewise was concerned with the decision of the ALJ to give some weight to the contrary (and much earlier) mental RFC opinion psychologist. of Dr. Catherine Flynn, a non-examining Dr. Flynn opined, for example, that Plaintiff had just mild difficulties in maintaining social functioning (see Tr. 423), yet because the ALJ recognized that she was unable to review significant documentary and testimonial evidence received at the hearing level regarding the claimant s mental status, he somewhat randomly assessed Plaintiff as having moderate difficulties instead (see doc. 13 at 12 (quoting Tr. 22)). 1 With This perception does find minimal support in the hospital records documenting both admissions for suicidal ideation (Tr. 263 (Mercy Hospital Clermont) and Tr. 816 (Lindner Center for Hope)) and in Plaintiff s own testimony in response to the ALJ s leading questions posed at the administrative hearing ( That was really more of a gesture, was it not? (Tr. 68 (emphasis added))). Nevertheless, we agree with the Magistrate Judge that the ALJ s dismissive tone is without foundation in the absence of evidence that Plaintiff s treating physicians believed that his hospitalizations were not medically necessary (see doc. 13 at 10-11). 5 a record so lacking, the Magistrate Judge recommended remand, believing that the ALJ should reconsider the evidence, obtain another report from a consultative psychologist if necessary and more carefully explain the basis for the weight accorded to Dr. Schneider s opinion. Finally, regarding Plaintiff s third assignment of error, the Magistrate Plaintiff s Judge credibility observed for that multiple the ALJ reasons, discounted none of which alone or in any combination amounted to substantial evidence. As detailed earlier, it was error for the ALJ to characterize Plaintiff s issue. 2008, alleged drug-seeking behavior as a credibility On the issue of whether Plaintiff worked beyond December it was nonsensical for the ALJ to question the his truthfulness when the ALJ made a specific factual finding that indeed he substantial did not gainful ( 2. The activity claimant since has December not 15, engaged in 2008, the alleged disability onset date (Tr. 18 (citation omitted))).2 2 The Magistrate Judge also correctly referenced the fact that Plaintiff s employment records did not support work activity beyond December 2008 (see Tr. 140-48) and the Court notes that Plaintiff did not equivocate during his hearing testimony in this regard (see Tr. 43-44). Concerning the January 6, 2011 treatment record from Dr. R. Bruce Bracken at UC Health-Surgery that indicated Plaintiff simultaneously was unemployed and works at a sports/health club (Tr. 785), purportedly suggesting that Plaintiff was not truthful when he testified that he left his job just before or after Christmas of 2008 (see Tr. 43), we observe that this information appears in the record under the category PAST HISTORY/Social History . We 6 The Magistrate Judge also questioned the validity of the ALJ s reliance on Plaintiff s failure to seek more mental health treatment without considering if that failure might be simply another symptom of his depression, citing authority from our parent circuit. White v. Comm r of Soc. Sec., 572 F.3d 272, 283 (6th Cir. 2009) ( ALJs must be careful not to assume that a patient s failure to receive mental-health treatment evidences a tranquil mental state. ). She was critical, too, of the ALJ s reference alleged to Plaintiff s conservative . . . and relatively non-aggressive pain management treatment with Dr. Mukarram Khan. Treatment with opiates and narcotics, coupled with multiple emergency room visits, nearly all for pain, seemed anything but recommendation Schneider, to conservative, of and Plaintiff s postpone a more she treating aggressive referenced the psychologist, Dr. surgical treatment involving implantation of a pain pump (see Tr. 436-37) given the state of Plaintiff s mental health. note further that the same information appears again in the January 25, 2011 treatment record from Dr. Jennifer Cavitt at UC Health-Neurology under exactly the same category (see Tr. 791). Clearly the more probable explanation is a carry-over of information previously entered in the database of Plaintiff s medical record maintained by UC Health. In like regard, the ALJ s focus on Plaintiff s supposed pursuit of a paralegal degree since December 2008 also was misguided. The entry going to school for paralegal degree appears in that very line immediately after works at sports/health club, and, as with his last date of employment, Plaintiff s hearing testimony was quite definite (see Tr. 42-43). 7 Defendant filed objections to the Magistrate Judge s Report and Recommendation, arguing that, she improperly re-weighed the evidence and should have instead given deference to the ALJ s determinations visits, the concerning amount of the volume weight to of credit Plaintiff s the Schneider and whether Plaintiff was credible. opinion hospital of Dr. Defendant also argues that it was harmless error when the ALJ did not engage in the two-step inquiry outlined by the Magistrate Judge, urging that in fact he implicitly found that none of Plaintiff s drug-seeking visits were necessary to control his pain, but, rather, were the result of opiate abuse (see doc. 16 at 4). Plaintiff replies that he believes the ALJ s determinations merit reversal and an award of benefits, but, at a minimum, urges us to accept the Magistrate Judge s recommendation for remand. As required by 29 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b), the Court has reviewed the comprehensive findings of the Magistrate Judge and considered de novo the filings in this matter. Upon careful consideration of the foregoing, the Court finds Defendant s objections unpersuasive and determines that the Magistrate Judge s Report and Recommendation well-reasoned, thorough, and correct. Accordingly, this Court ADOPTS and AFFIRMS the Magistrate Judge s Report and Recommendation (doc. 13), REVERSES the decision of the ALJ that Plaintiff be denied 8 disability insurance benefits, REMANDS this matter (under sentence four of 42 U.S.C. § 405(g)) to the ALJ for proceedings consistent with this Opinion, and DISMISSES this case from the Court s docket. Remand is appropriate in cases, as here, when there is insufficient evidence in the record to support the Defendant Commissioner s conclusion and further fact-finding is necessary. See Faucher v. Secretary of Health and Human Servs., 17 F.3d 171, 176 (6th Cir. 1994). Judge recommended, Plaintiff can the ALJ sustain On remand, as the Magistrate should: full-time (1) work; reevaluate (2) whether reconsider the evidence regarding Plaintiff s mental RFC, obtain another report from a carefully consultative explain the psychologist basis for if the necessary, weight and accorded opinion of Plaintiff s treating psychologist; and to more the (3) reassess Plaintiff s credibility, with particularly attention devoted to the admonition of the Magistrate Judge at pages 12-14 of her Report and Recommendation (doc. 13). SO ORDERED. Dated: September 24, 2013 s/S. Arthur Spiegel S. Arthur Spiegel United States Senior District Judge 9
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