Ferguson v. Comm'r of Soc. Sec.

• Decision Date: 08 March 2013
• Docket Number: Case No. 3:12-cv-225
• Parties: MARY E. FERGUSON, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
• Court: U.S. District Court — Southern District of Ohio

MARY E. FERGUSON, Plaintiff,

v.COMMISSIONER OF SOCIAL SECURITY, Defendant.

Case No. 3:12-cv-225

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

Dated: March 8, 2013

Judge Timothy S. Black

ORDER THAT: (1) THE ALJ'S NON-DISABILITY FINDING IS FOUND NOT

SUPPORTED BY SUBSTANTIAL EVIDENCE, AND REVERSED;

(2) JUDGMENT SHALL BE ENTERED IN FAVOR OF PLAINTIFF AWARDING

BENEFITS; AND (3) THIS MATTER IS REMANDED TO THE ALJ UNDER

THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) TO DETERMINE

THE DATE FOR TERMINATION OF BENEFITS

This is a Social Security disability benefits appeal. At issue is whether the administrative law judge ("ALJ") erred in finding the Plaintiff "not disabled" and therefore unentitled to disability insurance benefits ("DIB"). (See Administrative Transcript ("Tr.") (Tr. 12-25) (ALJ's decision)).

I.

On April 21, 2008, Plaintiff filed an application for DIB, alleging disability since April 21, 2008. (Tr. 182-88). Plaintiff alleges disability due to residual effects of breast cancer, bilateral carpal tunnel syndrome, lumbosacral neuritis, urinary stress incontinence, and seizure-like episodes. (Tr. 15-17). Plaintiff's applications were denied initially and on reconsideration. (Tr. 118-19). Plaintiff filed a timely request for a hearing. (Tr. 122-23). Plaintiff, her attorney, and a vocational expert appeared at ahearing on October 12, 2010 before an ALJ, after which the ALJ found Plaintiff not disabled. (Tr. 85). The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. (Tr. 52-54). See also 20 C.F.R. §§ 404.955, 404.981.

At the time of Plaintiff's hearing before the ALJ she was 47 years old and considered to be a "younger person" for Social Security purposes. See 20 C.F.R. §§ 404.1563(c); 416.963(c). Plaintiff is a high school graduate. (Tr. 89). Plaintiff's past relevant work was as a commercial cleaner. (Tr. 102). She lives in a rental house with her adult son and her girlfriend. (Tr. 86-89).

The ALJ's "Findings," which represent the rationale of her decision, were as follows:

1. The claimant last met the insured status requirements of the Social Security Act on December 31, 2011.

2. The claimant did not perform substantial gainful activity after the alleged disability onset date of April 21, 2008 (20 CFR 404.1571, et seq).

3. The claimant has the following severe impairments: degenerative disc disease/degenerative joint disease, carpal tunnel syndrome, adjustment disorder with depressed mood (20 CFR 404.1520(c))).

4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.525 and 404.1526).

5. The claimant has the residual functional capacity to perform light work as defined at 20 CFR 404.1567(b) subject to the following additional limitations: no more than frequent fine and gross manipulation; low-stress duties (i.e., no assembly-line production quotas and no fast-paced duties).

6. The claimant is unable to perform past relevant work (20 CFR 404.1565).

7. The claimant was born on April 11, 1963. At age 47 the claimant is classified as a "younger individual" for Social Security purposes (20 CFR 404.1563).

8. The claimant has a high-school education (20 CFR 404.1564).

9. The claimant does not have "transferable" work skills within the meaning of the Social Security Act (20 CFR 404.1568).

10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).

11. The claimant has not been disabled, as defined in the Social Security Act, from April 21, 2008, through the date of this decision (20 CFR 404.1520(g)).

(Tr. 15-25).

In sum, the ALJ concluded that Plaintiff was not under a disability as defined by the Social Security Regulations, and she was therefore not entitled to DIB. (Tr. 25).

On appeal, Plaintiff argues that: (1) the ALJ failed to properly weigh the opinion of Plaintiff's treating physician; (2) the assigned residual functional capacity is without substantial evidentiary support; (3) the ALJ's findings regarding Plaintiff's daily activities are unreasonable and unsupported; and (4) the ALJ's decision is not supported by substantial evidence and the Commissioner's position is not substantially justified. The Court will address each error in turn.

II.

The Court's inquiry on appeal is to determine whether the ALJ's non-disability finding is supported by substantial evidence. 42 U.S.C. § 405(g). 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 (1971). In performing this review, the Court considers the record as a whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If 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. As the Sixth Circuit has explained:

"The Commissioner's findings are not subject to reversal merely because substantial evidence exists in the record to support a different conclusion. The substantial evidence standard presupposes that there is a "zone of choice" within which the Commissioner may proceed without interference from the courts. If the Commissioner's decision is supported by substantial evidence, a reviewing court must affirm."

Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994).

The claimant bears the ultimate burden to prove by sufficient evidence that she is entitled to disability benefits. 20 C.F.R. § 404.1512(a). That is, she must present sufficient evidence to show that, during the relevant time period, she suffered an impairment, or combination of impairments, expected to last at least twelve months, that left her unable to perform any job in the national economy. 42 U.S.C. § 423(d)(1)(A).

A.

The record reflects that:

1. Claimant's testimony and background

Plaintiff is a breast cancer survivor. In the Spring of 2008, she underwent bilateralmastectomies. (Tr. 91, 98). A course of chemotherapy was also administered via a surgically installed port and ended about ten months before Plaintiff's hearing. (Tr. 91-92). The chemotherapy caused Plaintiff to experience dizzy spells and neuropathy in her extremities. (Tr. 87-91). She drops things, her hands shake, and she falls four or five times each day. (Tr. 91-94, 100). Her balance is poor to the point that she needed to lean upon a friend to walk the block to get to her hearing. (Tr. 94). She can only stand or sit for about five minutes at a time because of shooting pain in her legs. (Tr.94). Six pounds of lifting is too much for Plaintiff. She continued trying to work after her surgeries, but could only do so on a part-time basis and was ultimately fired because her employer observed her symptoms. (Tr. 90, 100).

Shortly after Plaintiff's chemotherapy ended, she had right carpal tunnel release surgery. (Tr. 96). Her carpal tunnel is worse on the left, but she could not have surgery on that arm because of her chemotherapy port. (Id.) The right surgery was helpful, but did not restore feeling to Plaintiff's finger tips. (Id.) Plaintiff also described having daily panic attacks that feel like hot flashes and cause her to breathe heavily. (Tr. 92, 97).

In terms of daily activities, Plaintiff explained that when she does dishes it makes her cry. (Tr. 95). Her cooking is interrupted by the shooting pain in her legs resulting in her son microwaving the family's meals. (Id.) She spends most of her day sleeping. (Tr. 96). Plaintiff admitted that she occasionally smokes marijuana to help her appetite. (Tr. 101). She has lost about twenty pounds. (Id.)

2. Medical evidence of record

On March 26, 2008, a bilateral screening mammogram revealed calcifications in both of Plaintiff's breasts suspicious for malignancy. (Tr. 261). Biopsies were performed the next day to remove and test the calcifications. (Tr. 265-67). Testing of the excised masses came back positive for ductal carcinoma. (Tr. 267). Another biopsy was performed on April 22, 2008, and it was found that fairly extensive cancer remained in virtually all sections of Plaintiff's left breast. (Tr. 276, 288).

On April 14, 2008, Plaintiff had an initial consult with oncologist Dr. Daljeet Singh who discussed options for treating her breast cancer. (Tr. 273-75). She met Dr. Singh for a second time on May 1, 2008 and discussed the possibilities of mastectomies, lumpectomies, and/or chemotherapy in light of her testing and a strong family history of breast cancer. (Tr. 272). During this time, Plaintiff was also treated by Dr. Ronald Spier who guided the course of Plaintiff's biopsies and ultimately recommended a left mastectomy due to the extent of her cancer. (Tr. 299). On May 13, 2008, Plaintiff was admitted to Springfield Regional Medical Center for a left modified radical mastectomy performed by Dr. Spier. (Tr. 281-83).

Despite the wound healing well, Plaintiff complained to Dr. Spier of burning, stiffness, and swelling in her arm and chest following her left mastectomy. (Tr. 409). On July 7, 2008, a bilateral breast MRI was performed. (Tr. 353). The site of Plaintiff's left mastectomy was unremarkable, but there were concerning densities in her right breast. (Id.) Ultimately, a right simple mastectomy was performed on August 18, 2008 by Dr.Spier. (Tr. 361-62). On August 28, 2008, Dr. Spier turned Plaintiff's care over to the oncologists at Springfield Hematology and Oncology Associates, Inc. for chemotherapy. (Tr. 408, 421).

A left arm chemotherapy port was implanted by Dr. Spier on September 18, 2008. (Tr. 420-424). Plaintiff then underwent eight courses of chemotherapy through March of 2009. (Tr. 417-18). The administering physicians noted...