Gibson v. Saul

548 F.Supp.3d 659

Kimberly A. GIBSON, Plaintiff,

v.Andrew SAUL, Commissioner of Social Security, Defendant.

Case No. 20cv366

United States District Court, N.D. Ohio, Western Division.

Filed July 12, 2021

Clifford M. Farrell, Manring & Farrell, Columbus, OH, for Plaintiff.

Cara Staley Rafferty, Ruchi Vikram Asher, Office of the U.S. Attorney - Cleveland - Social Security, Cleveland, OH, Social Security Administration, for Defendant.

ORDER

James G. Carr, Sr. U.S. District Judge

This is an appeal from the denial of Social Security benefits. Pending is the Commissioner's Motion to Alter/Amend Judgment (Doc. 26), which is directed to my May 10, 2021 order (Doc. 24) awarding plaintiff benefits and remanding the case solely for the Commissioner to calculate their amount.

The Commissioner argues that I should have remanded the case for further proceedings rather than award benefits on the ground that the evidence does not clearly support a benefits award. He also argues that the record contains contrary evidence that raises disputed issues that should be resolved in the first instance by an ALJ.

I find the Commissioner's arguments regarding supposedly contradictory evidence to be both a repetition of his prior briefs and completely devoid of merit. Nevertheless, I find merit in the argument that the record does not fully resolve all issues in the case; particularly that of when Gibson's disability began. Accordingly, I will grant the motion and remand this matter to the Commissioner for further proceedings consistent with the substance of my prior order and this order.

Legal Standard

The Sixth Circuit has propounded the following standard for determining whether to remand an erroneous Social Security denial of benefits for further proceedings or purely for calculation of the benefits due the claimant:

If a court determines that substantial evidence does not support the Secretary's decision, the court can reverse the decision and immediately award benefits only if all essential factual issues have been resolved and the record adequately establishes a plaintiff's entitlement to benefits.... A judicial award of benefits is proper only where the proof of disability is overwhelming or where the proof of disability is strong and evidence to the contrary is lacking.

Felisky v. Bowen , 35 F.3d 1027, 1041 (6th Cir. 1994) (quoting Faucher v. Sec'y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994) ).

Discussion

The Commissioner's argument that the record contains substantial evidence to support the Administrative Law Judge's ("ALJ") denial of benefits is meritless and disingenuous. The most glaring example is his argument regarding the medical witnesses.

The Commissioner contends that consultative examiner Dr. E. Jann Offut's report "supported non-disability." (Doc. 28, pgID 743). He summarizes Dr. Offut's report as "opin[ing] in May 2017 that Plaintiff was only "mildly impaired" in various work-related activities and that Plaintiff ‘does have ... severe migraines but physically she would be able to perform any job.’ " (Id. ) (quoting Doc. 17, pgID 743) (ellipsis added by the Commissioner). That contention is incompatible with the record.

In his report, Dr. Offut discussed Gibson's back and neck impairment in detail. See (Doc. 17, pgID 501-04). He also commented generally on her migraine condition, mentioning that she had a history of chronic migraines and little success in treatment. He concluded that "[h]er physical exam was essentially negative except for the tenderness over the spinous processes in her thoracic spine. She does have the severe migraines but physically she would be able to perform any job." (Id. , pgID 437) (emphasis added).

In the next sentence, in his summary conclusion, Dr. Offut stated: "[t]he claimant's ability to perform work-related activities such as bending stooping, lifting, walking, crawling, squatting, carrying and traveling as well as pushing and pulling heavy objects is at least mildly impaired due to the stated factors" (Id. , pgID 504). As to the limiting effects of Gibson's migraines, the only thing resembling a medical opinion that he stated was that "she does have the severe migraines." (Id. , pgID 437).

It is facially obvious that Dr. Offut distinguished in his reporting between the limiting effects of Gibson's "physical" condition -her back and neck impairments - on her ability to perform the exertional activities required for work, "such as pushing pulling heavy objects ...," and whatever limitations Gibson's migraines impose. Merely taking the words "mildly impaired" from Dr. Offut's analysis of her ability to perform exertional activities and applying it to her headaches as though Dr. Offut had offered a considered opinion on how the migraines limited Gibson's ability to work is hardly a convincing form of legal argument.¹

The Commissioner also attempts to rely on snippets taken from treatment records of individual treatment sessions filed with Gibson's insurer by her chiropractor, Bettie Lok. In his motion, the Commissioner cites to the record from a December 27, 2015 treatment session in which Lok stated Gibson could perform sedentary work with a 15-pound-limit. The Commissioner cites to a note written on the bottom of the first page of the report stating "15# wt restriction, 8 hours per day, no other restrictions." (Doc. 26, pgID 728) citing (Doc. 17, pgID 459).

On next page of the document, which the Commissioner did not mention, Lok stated "[p]t can work within restrictions with FMLA disability for migrane [sic]"(Id. , pgID 460). On the last page of the document, Lok responded to a question whether Gibson was motivated to return to work by stating "[y]es, if it didn't exacerbate migraines with her work." (Doc. 17, pgID 459).

In a February 17, 2018 letter to an insurance company physician seeking a consultation, Lok reported that Gibson "has had daily headaches since March 4, 2015. The headaches are worsening. She has tried all medications and specialists without success." (Id. pgID 597). She concluded that Gibson "has a desire to work, but the daily headaches and migraines have progressed to the point where she is physically unable."

The ALJ afforded this letter from Lok "no weight" on the ground that Lok had opined on the ultimate issue of disability that is reserved to the Commissioner. (Id. , pgID 218). At the same time, the ALJ accepted and relied on Lok's prior statement that Gibson could work with limitations, even though it similarly opined on the ultimate issue of disability. She also offered no basis for concluding that a chiropractor would be qualified to make such a determination or that any available FMLA leave would be sufficient to account for Gibson's more than four migraine-related absences each month.

The ALJ improperly treated Lok's chiropractic treatment records as a medical opinion that Gibson was not disabled but could "perform less than a full range of medium work." (Doc. 26, pgID 728).

First, as the ALJ pointed out (Doc. 17, pgID 218), a chiropractor is not an acceptable medical source. See (Doc. 17, pgID 218) (citing 20 CFR §§ 404.1502, 1527(a)(2), 1513 ). The ALJ relied on that rule to discount the portions of Lok's treatment records inconsistent with her decision while, at the same time, she adopted the portions of her records that could be read to suggest that Gibson's back problems did not fully disable her. (Doc. 17, pgID 218).

Whatever can be said about Lok's "opinions" reflected in those records, the Commissioner's argument that Lok offered an opinion that Gibson could work full time despite her migraines is completely unsupported.

The opinions of the state agency physicians who reviewed Gibson's files also do not provide substantial evidence to support the Commissioner's argument.

The ALJ properly gave those opinions "little weight" on the ground that "additional medical evidence submitted after these opinions were rendered demonstrates that the claimant is more limited than these opinions and that additional limitations are appropriate based on that evidence." (Id. , pgID 218). My review is limited to the reasons stated by the ALJ in the record. SEC v. Chenery Corp. , 332 U.S. 194, 196, 67 S.Ct. 1760, 91 L.Ed. 1995 (1947). At this juncture, the Commissioner's attempt to resuscitate and rely on those opinions as evidence adverse to Gibson's claim is untenable. See Mun. Resale Serv. Customers v. F.E.R.C. , 43 F.3d 1046, 1052 n.4 (6th Cir. 1995) (rejecting argument that violated "the fundamental rule of administrative law that we must judge the propriety of agency action solely by the grounds invoked by the agency").

In addition, those opinions’ substantive content does not provide substantial evidence to support the ALJ's decision.

In the initial administrative claim review, the state agency physician, Dr. Dianne Manos, noted that Gibson reported to her doctors experiencing daily headaches and that "[h]er report is consistent w/ her MDIs and prescribed medication for headaches." (Doc. 17, pgID 268). Thus, Dr. Manos did not question the accuracy of Gibson's reports regarding her migraines’ frequency or severity.

In her "Additional Explanation" of her residual functional capacity determination, Dr. Manos’ only statement regarding Gibson's migraines was: "Neuro TS: Migraines, occipital neuralgia ? "medically managed." (Id. , pgID 271). Otherwise, she essentially adopted consultative examiner, Dr. Offut's, opinion but afforded it the same twisted interpretation that the ALJ subsequently adopted.

Dr. Manos took Dr. Offut's statement that Gibson's physical ability to perform the exertional requirements of employment was mildly limited and misapplied it to her migraine condition. Dr. Offut's only stated opinion regarding Gibson's migraines was to confirm that "she does have the severe migraines." (Id. , pgID 504). Nevertheless, the Dr. Manos summarized Dr. Offut's opinion as: "[t]he CE examiner states that [Gibson] would be able to perform any job. Mild impairment...