Gilliland v. Astrue , 67 F. Supp. 3d 308 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Frederick C. Gilliland,
Plaintiff,
v. Civil Action No. 12-02048 (GK)
Carolyn W. Colvin,
Acting Commissioner of
Social Security,
Defendant.
MEMORANDUM OPINION
Frederick C. Gilliland ("Plaintiff" or "Gilliland") brings
this action seeking judicial review of a final decision of the
Acting Commissioner of the Social Security Administration
("Defendant" or "Commissioner") pursuant to Section 205 (g) of
the Social Security Act, 42 U.S.C. § 405(g), denying his claim
for disability insurance benefits ( "DIB") pursuant to Title II
of the Social Security Act, 42 U.S.C. §§ 401 et seq.
This matter is presently before the Court on Plaintiff's
Motion for Judgment of Reversal [Dkt. No. 10] and Defendant's
Motion for Judgment of Affirmance [Dkt. No. 11] . Upon
consideration of the parties' cross-motions, the administrative
record, the entire record herein, and for the reasons stated
below, Plaintiff's Motion for Judgment of Reversal is hereby
granted, and Defendant's Motion for Judgment of Affirmance is
hereby denied.
I . BACKGROUND
A. Procedural Background
On July 31, 1986, Plaintiff filed an application for
disability insurance benefits ("DIB"), claiming that starting on
April 13, 1985, headaches and fatigue left him disabled.
1
Administrative Record ("AR") 22 [Dkt. No. 8]
On November 23, 1988, Administrative Law Judge Russell
Rowell ("ALJ Rowell") issued an opinion denying Plaintiff's
application. AR 21-25. On January 18, 1990, the Social Security
Administration's ("SSA") Appeal Council denied Plaintiff's
intra-agency appeal. AR 33-34. Plaintiff did not and was not
required to bring an action in federal court at that time.
In December of 1996, Plaintiff began working again, closing
the period of alleged disability. AR 96, 139, 146. Accordingly,
the period of alleged disability relevant to this matter covers
April 13, 1985 to December 1, 1996. AR 14, 146.
On February 7, 2002, the United States District Court for
the Middle District of Pennsylvania approved a class action
settlement in the matter of Grant v. Comm'r, Soc. Sec. Admin.,
1
In January of 1986, Plaintiff, who is a Canadian citizen,
began receiving Canada Pension Disability Benefits. AR 14.
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111 F. Supp. 2d 556 (M.D. Pa. 2000). AR 35-37. The class
included "all applicants for Social Security disability benefits
. who received an adverse decision from [ALJ] Russell Rowell
on or after January 1, 1985." AR 35. As part of the
settlement, the SSA agreed to provide each eligible class member
with de novo review of his or her application by a different
ALJ. AR 36. Defendant concluded that Plaintiff's DIB claim was
eligible for de novo review under the Grant settlement and sent
Plaintiff a letter informing him of his right to another
hearing. AR 63-64.
On December 14, 2 011, ALJ James Mangrum ( "ALJ Mangrum" or
"the ALJ") held a hearing at which Plaintiff, his counsel, and a
vocational expert were present. AR 233-58.
On January 26, 2012, the ALJ denied Plaintiff's claim,
ruling that Plaintiff had not shown that he was disabled during
the period from April 13, 1985 through December 1, 1996. AR 14-
20.
On October 23, 2013, the SSA's Appeal Council denied
Plaintiff's request for review of ALJ Mangrum's decision.· AR 6
("We found no reason under our rules to review the
Administrative Law Judge's decision. Therefore, we have denied
your request for review.").
-3-
On December 20, 2012, Plaintiff filed his Complaint
challenging Defendant's denial of his claim for DIB pursuant to
42 U.S.C. § 405 (g). [Dkt. No. 1]. On June 3, 2013, Defendant
filed its Answer. [Dkt. No. 7] On August 2, 2013, Plaintiff
filed a Motion for Judgment of Reversal. [Dkt. No. 10]. On
September 30, 2013, Defendant filed a Motion for Judgment of
Affirmance and its Opposition to Plaintiff's Motion for Judgment
of Reversal. [Dkt. No. 11]. Finally, on October 16, 2013,
Plaintiff filed his Opposition to Defendant's Motion for
Judgment of Affirmance and Response to Defendant's Opposition.
[Dkt . No. 14] .
B. Factual Background
At the time he filed this action, Plaintiff Frederick
Gilliland was 80 years old and resided in Kamloops, British
Columbia, Canada. AR 120; Pl.'s Compl. [Dkt. No. 1]. Plaintiff
had earned a General Equivalency Diploma, had completed
journeyman steamfitter training, and had attended one year of
college. AR 171. Before the onset of his headaches and fatigue,
Plaintiff had worked as a pipefitter, pipefitter foreman, piping
general foreman, and capital project superintendent. AR 140,
156-60. Most recently, he had served as a capital projects
supervisor in a pulp mill. AR 140, 156-60.
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Plaintiff was 52 years old when the alleged period of
disability began on April 13, 1985 and was 62 years old when he
returned to work, ending the alleged period of disability on
December 1, 1996. AR 14-20, 146-47.
In March of 1985, Plaintiff started to experience
debilitating headaches and severe fatigue. AR 14-19, 189-192,
214-215. Despite the investment of significant time and medical
resources, none of the physicians who Plaintiff saw were able to
provide a diagnosis for his condition. Id.
From February 19, 1986 until March 6, 1986, Plaintiff was
hospitalized at Foothills Hospital in Calgary, Canada in order
to identify the cause of his "nonspecific illness characterized
by extreme fatigue, malaise, myalgias and left orbital and
retro-orbital headache, accompanying a sense of tugging at the
left eye." AR 189-192. During that time, a number of physicians
examined Plaintiff, including a neurologist and an ear, nose,
and throat specialist. Id.
The doctors at Foothills Hospital were unable to reach a
definitive diagnosis of Plaintiff's condition. AR 189-192. The
report from Foothills Hospital relates that "the headache
follow [ed] a daily pattern with gradual onset in late morning,
increasing in severity later in the day. [Plaintiff] did not
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seem to have a nocturnal headache. He ha[d] had several
episodes of pain, severe enough to require hospitalization for
narcotics." AR 189. Plaintiff underwent a battery of tests and
examinations, all of which yielded "essentially unremarkable"
results. AR 17-18. Dr. Mukherjee of Foothills Hospital did note,
however, that during his examination Plaintiff demonstrated,
"some focal tenderness in the left supraorbital region [.]" AR
190. Unable to determine the cause of Plaintiff's symptoms, the
physicians at Foothills Hospital referred him to a pain
management clinic. AR 191. 2
In addition to the specialists at Foothills Hospital,
Plaintiff also met with his family physician, Dr. H.C. Muendel.
AR 146, 206, 214-215, 221. Plaintiff first visited Dr. Muendel
in July of 1985 and described the reasons for his visits as
"examination," "treatment," "diagnosis," and "prescri[ption of]
medication." AR 2 06. Although at one point, Plaintiff described
his visits with Dr. Muendel as "irregular," AR 206, by June 10,
1987, Plaintiff was visiting Dr. Muendel an average of twice a
month, AR 221.
2
The record contains mention of Epstein-Barr virus. AR 218,
234-58. Plaintiff brought up Epstein-Barr virus during his
hearing and a letter written by a member of the Canadian
Parliament asserts that Plaintiff had the virus. AR 18, 234-58.
However, there is no evidence in the record that a physician
ever diagnosed Plaintiff with that disease. AR 18-19.
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Although many of Dr. Muendel's records were lost or
destroyed when he relocated his practice, AR 146, Plaintiff was
able to recover a letter summarizing his findings, AR 214-15.
The letter notes that Dr. Muendel was unable to identify a
"specific cause" of Plaintiff's intense, recurrent headache. Id.
"However, it ha [d] been determined that [the headache] [was]
related to the facial nerves over the left eye." Id. Dr. Muendel
wrote, "[t] hat nerve has been injected by myself and by the
anesthesiologist, Dr. Dhiel, several times with dramatic relief
of pain for a short period of time, half an hour to four hours
of dulling of the pain." Id. Near the end of his letter, Dr.
Muendel added that " [s] ince the onset of this, at present time,
incurable headache, [Plaintiff] has also become somewhat
depressed." Id.
Plaintiff's headaches severely affected nearly every aspect
of his life. AR 235-58. He experienced fatigue, "headaches,
joint pain, loss of memory, inability to express [himself],
[and] severe weakness." AR 165. Until Plaintiff's condition
abated in December of 1996, Plaintiff spent much of his time
sleeping, "required a big effort just to walk up a flight of
stairs[,]" and "spent his days in and out of consciousness." AR
17-20, 146-47.
-7-
Because of the passage of time between Plaintiff's
submission of his DIB application in 1985 and his most recent
hearing before ALJ Mangrum in 2011, many potentially relevant
medical records are absent from the record. AR 236-37. Plaintiff
was able to recover several documents from the Canadian
government, including Dr. Muendel' s letter and the report from
Foothills Hospital. AR 237-42. Unfortunately, Defendant was
unable to recover any of the 32 exhibits appended to ALJ
Rowell's 1988 decision. AR 239.
c. Disability Deter.mination Process
In order to qualify for disability insurance benefits, an
individual must prove that she has a disability that renders her
unable "to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment" for
a period of "not less than 12 months." 42 U.S.C. §§ 423 (a) (1) &
(d) ( 1) (A) . The claimant must support her claim of impairment
with "[o]bjective medical evidence" that is "established by
medically acceptable clinical or laboratory diagnostic
techniques." 42 u.s.c. § 423 (d) (5) (A). In addition, the
impairment must be severe enough to prevent the claimant from
doing either her previous work or any other work commensurate
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with her age, education, and work experience that exists in the
national economy. 42 U.S.C. § 423(d) (2) (A).
The SSA uses a five-step evaluation process to determine
whether a claimant is disabled, and thus, qualified for
benefits. 20 C.F.R. § 404.1520(a) (1). A clear determination of
disability or non-disability at any step is definitive, and the
process ends at that step. 20 C.F.R. § 404.1520(a) (4).
In the first step, a claimant is disqualified if she is
currently engaged in "substantial gainful activity." 20 C.F.R. §
404.1520 (a) (4) (i).
In the second step, a claimant is disqualified if she does
not have a "severe medically determinable physical or mental
impairment" that is proven "by medically acceptable clinical and
laboratory diagnostic techniques." 20 C.F.R. §§ 404.1508 &
404.1520 (a) (4) (ii).
In the third step, a claimant qualifies for benefits if her
impairment (s) meet (s) or equal (s) an impairment listed in 20
C.F.R. part 404, subpart P, appendix 1. 20 C.F.R. §
404.1520 (a) (4) (iii).
Between the third and fourth steps, the SSA relies on the
entire record to make a determination of the claimant's residual
functional capacity ( "RFC"), which is "the most [the claimant]
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can still do despite [the] limitations" created by the
impairment. 20 C.F.R. §§ 404.1520(a) (4) & 404.1545(a) (1).
In the fourth step, a claimant is disqualified if her RFC
shows that she is still able to do her past relevant work. 20
C.F.R. § 404.1520(a) (4) (iv).
In the fifth step, a claimant is disqualified if her RFC
shows that she is capable of adapting to uother work that exists
in the national economy." 20 C.F.R. §§ 404.1520(a) (4) (v) &
404.1545 (a) (5) (ii) . If the claim survives these five steps, then
the claimant is determined to be disabled and qualifies for
benefits . 2 0 C . F . R . § 4 0 4 . 15 2 0 (a) ( 4 ) (v) .
This case centers on the second step of the five-step
analysis.
D. The ALJ's Ruling
After the hearing on December 14, 2011, the ALJ found that
Plaintiff umet the insured status requirements of the Social
Security Act during the period from April 13, 1985, through
December 1, 1996[,]" the alleged period of disability. AR 16.
Continuing on to step one of the five-step disability evaluation
process, the ALJ concluded that Plaintiff udid not engage in
substantial gainful activity during the [alleged period of
disability.]" AR 16.
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At step two, the ALJ determined that, despite the many
tests and examinations that Plaintiff underwent, "there were no
medical signs or laboratory findings to substantiate the
existence of a medically determinable impairment [.]" AR 17. He
noted that "[a]lthough the record confirms that the claimant had
experienced a host of neurological and fatigue symptoms
beginning on the alleged onset date of March 1985, all of the
claimant's workup from March 1985 through his hospitalization in
February and March 1986 were [sic] essentially unremarkable." AR
18. The opinion emphasizes that none of the physicians Plaintiff
consulted were able to arrive at a "formal di?-gnosis" or
identify a "specific cause" of Plaintiff's symptoms. AR 17-18.
Because failure at any step of the five-step evaluation
process is fatal to a DIB claim, the ALJ did not proceed to step
three. He concluded that Plaintiff "was not under a disability,
as defined in the Social Security Act, at any time from April
13, 1985, the alleged onset date, through December 1, 1996[,]"
and therefore, was not entitled to DIB. AR 20.
II. STANDARD OF REVIEW
Judicial review in Social Security disability cases is
limited by statute to determining whether the findings of the
Commissioner are supported by substantial evidence. 42 U.S.C. §
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405 (g); Butler v. Barnhart, 353 F.3d 992, 999 (D.C. Cir. 2004);
Poulin v. Bowen, 817 F.2d 865, 870 (D.C. Cir. 1987). Substantial
evidence "means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion," Richardson v.
Perales, 402 U.S. 389, 401 (1971) (internal quotation marks
omitted), requiring "more than a scintilla, but something
less than a preponderance of the evidence[s]" Fla. Gas
Transmission Co. v. FERC, 604 F.3d 636, 645 (D.C. Cir. 2010).
While the Court must "carefully scrutinize the entire
record," Butler, 353 F.3d at 999, it may not reweigh the
evidence or supplant the SSA' s judgment on the weight of the
evidence with its own judgment, Davis v. Heckler, 566 F. Supp.
1193, 1195 (D.D.C. 1983). It must only review whether the ALJ's
findings are based on substantial evidence and whether th~ ALJ
correctly applied the law. Butler, 353 F.3d at 999; Davis v.
Shalala, 862 F. Supp. 1, 4 (D.D.C. 1994).
III. ANALYSIS
A. Weight Given to Dr. Muendel's Opinion
Plaintiff contends that the ALJ ( 1) provided
"insupportable" reasons for rejecting Dr. Muendel's opinion, (2)
failed to give Dr. Muendel' s opinion the "controlling weight"
appropriate for a "treating physician," and (3) failed to
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properly evaluate Dr. Muendel's medical opinion independently of
the controlling weight analysis. Pl.'s Mot. at 3-6. Defendant
argues that the ALJ correctly gave Dr. Muendel's opinion "little
weight" because ( 1) Dr. Muendel lacked a "treatment
relationship" with Plaintiff and (2) other evidence in the
record contradicted Dr. Muendel's Opinion. Def.'s Opp'n at 6-9.
1. Treating Physician Rule
Our Court of Appeals has made clear that " [b] ecause a
claimant's treating physicians have great familiarity with [her]
condition, their reports must be accorded substantial weight."
Butler v. Barnhart, 353 F.3d 992, 1003 (D.C. Cir. 2004) (quoting
Williams v. Shalala, 997 F.2d 1494, 1498 (D.C. Cir. 1993)). "A
treating physician's report 'is binding on the fact-finder
unless contradicted by substantial evidence.'" Id. Thus, an
"ALJ 'who rejects the opinion of a treating physician [must]
explain his [or her] reasons for doing so." Id.
In addition, the SSA has issued regulations providing that
so long as a treating physician's "opinion on the issue[] of the
nature and severity of [a claimant's] impairment[] is well-
supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in [a claimant's] case record [,] " it will
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receive "controlling weight." 20 C.F.R. §§ 404.1527(c) (2),
416.927 (c) (2) Section 404.1527 (c) (2) makes clear that the SSA
"will always give good reasons in [its] notice of determination
or decision for the weight [it] gives [each claimant's] treating
[physician's] opinion."
a. ALJ's Reasons for According "Little
Weight" to Dr. Muendel's Opinion
The ALJ offered two reasons for giving Dr. Muendel's
opinion "little weight." AR 19. He stated "[f] irst [that]
no specific caused [sic] had been found to explain [Plaintiff's]
symptoms," and "[s]econd, [that] contrary to Dr. Muendel's
report, there is no evidence that the claimant suffered any
persistent depression during the period at issue." AR 19.
Neither of these reasons withstands scrutiny.
First, as the Court discusses more fully below, the ALJ was
wrong that a claimant must show a "specific cause[] to
explain [his] symptoms [ . ] " AR 19. Claimants need only
demonstrate a "medically determinable physical or mental
impairment," 42 U.S.C. §§ 423 (d) (1) (A), that "result [s] from
anatomical, physiological, or psychological abnormalities which
can be shown by medically acceptable clinical and laboratory
diagnostic techniques[,]" 20 C.F.R. 404.1508. There is no
support for the ALJ's assumption that the opinion of a physician
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who fails to identify a specific cause of symptoms should be
accorded little weight.
Nor is there any substantial evidence in the record to
contradict Dr. Muendel' s opinion. Butler, 353 F.3d at 1003. In
fact, Dr. Muendel's inability "to find a definitive diagnosis"
was consistent with the opinions of the "general physician,
[the] neurologist, and [the] ear, nose, and throat specialist"
in this case, all of whom had the same difficulty. AR 19.
Second, the ALJ' s decision to give Dr. Muendel' s opinion
"little weight" because of the doctor's comment regarding
depression is baffling. Near the end of his June 20, 1986 letter
discussing Plaintiff's condition, Dr. Muendel noted that
"[s]ince the onset of this, at present time, incurable headache,
[Plaintiff] has also become somewhat depressed." AR 215. The ALJ
misinterpreted this brief, offhand comment as an opinion that
Plaintiff "suffered persistent depression during the
period at issue." AR 19. That is simply not what Dr. Muendel
wrote. Dr. Muendel did not opine that Plaintiff suffered
persistent depression. Nor did he suggest that depression caused
Plaintiff's disability. The ALJ's interpretation of Dr.
Muendel's comment and subsequent determination that the doctor's
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opinion deserved "little weight" are not supported by
substantial evidence.
The ALJ was required to give "good reasons," 2 0 C. F. R. §
404.1527(c) (2), supported by substantial evidence, before
discounting Dr. Muendel's opinion, Butler v. Barnhart, 353 F.3d
992, 999 (D.C. Cir. 2004). The reasons he gave fail to meet that
test.
b. Treatment Relationship
Defendant responds that the ALJ was not required to give
Dr. Muendel's opinion controlling weight because Dr. Muendel was
not, in fact, Plaintiff's treating physician. Def.'s Mot. at 8-
9.
The SSA's regulations provide that a claimant's own
physician "who provides medical treatment or evaluation" and
"has, or has had, an ongoing treatment relationship" ·with the
claimant is a "treating source." 20 C.F.R. § 404.1502. An
"ongoing treatment relationship" exists when the "medical
evidence establishes" that the claimant "see [s] , or ha [s] seen,
the source with a frequency consistent with accepted medical
practice for the type of treatment and/or evaluation required
for [her] medical condition." Id.
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Evidence in the record shows that Plaintiff consistently
referred to Dr. Muendel as his "family doctor 11
or "personal
physician, 11
AR 146, 206, sought "treatment 11
from him, AR 206,
214-215, and by June 10, 1987 visited him an average of twice a
month, AR 221. Yet, the ALJ failed to consider whether Dr.
Muendel was a treating physician.
Accordingly, there are two problems with Defendant's
argument that Dr. Muendel was not a treating physician. First,
there is little support in the record for that contention. In
Defendant's Motion, Defendant points out what is clearly a
mistake: On a lengthy form dated March 10, 1986, Plaintiff wrote
that he first saw Dr. Muendel in July 1985 and that he last saw
him in February 1985. Def.'s Mot. at 8-9. Those dates, of
course, cannot be accurate. Mr. Gilliland made a mistake. Most
likely, he meant to write that he last saw Dr. Muendel in
February of 1986, the month before he completed the form
Defendant cites. AR 2 06. Defendant's argument- -that Plaintiff
should be foreclosed from putting forth Dr. Muendel as his
treating physician because Plaintiff once provided an obviously
incorrect date on a form sent to the Canadian government--is not
persuasive.
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Second, as Plaintiff correctly contends, the ALJ entirely
failed to consider whether Dr. Muendel was Plaintiff's treating
physician. The Court "must judge the propriety of [the agency's
determination] solely by the grounds invoked by the agency [,]"
SEC v. Chenery 332 U.S. at 196, and therefore, cannot now rely
on Defendant's post-hoc justifications, Butler, 353 F.3d at
1002.
c. Well-Supported by Medically Acceptable
Clinical and Laboratory Diagnostic
Techniques
20 C.F.R. § 404.1527(c)(2) specifies that a treating
physician's opinion must be "well-supported by medically
acceptable clinical and laboratory diagnostic techniques" in
order to receive controlling weight. The ALJ found that the
record did not contain evidence of "medical signs or laboratory
findings to substantiate Plaintiff's claims of a medically
determinable impairment"- -the ultimate issue at step two of the
five step evaluation process. AR 19. One could read that broader
conclusion to suggest that the ALJ believed Dr. Muendel's
treatment of Plaintiff failed to involve clinical and laboratory
diagnostic techniques.
However, "[w]hile this interpretation may have some
intuitive appeal, the ALJ did not articulate this view in his
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decision [,]" as he must in order for this Court to rely on it.
Butler, 353 F.3d at 1002 (citing Chenery Corp., 332 U.S. at 196)
(declining to accept Commissioner's contention that "ALJ must
have interpreted" treating physician's opinion that claimant
"should never stoop to mean that she should stoop very little or
only occasionally"). The ALJ never opined as to whether or not
Dr. Muendel's opinion was supported by medically acceptable
clinical and laboratory diagnostic techniques. Consequently, the
record is bare. For the purposes of a reviewing court
considering a motion for judgment of reversal, "it is sufficient
that the ALJ did not say this and certainly did not explain it."
Jones v. Astrue, 647 F.3d 350, 356 (D.C. Cir. 2011).
d. Not Inconsistent with Substantial Evidence
in the Claimant's Record
Finally, both our Court of Appeals' rulings on treating
physicians, as well as the SSA's regulations, permit an ALJ to
discount medical opinions in conflict with substantial evidence
in the record. Butler, 353 F.3d at 1003 ("A treating physician's
report is binding on the fact-finder unless contradicted by
substantial evidence."); 20 C.F.R. § 404.1527 (c) (2) (Treating
physician's opinion otherwise in accordance with regulatory
requirements receives controlling weight if "not inconsistent
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with the other substantial evidence in [claimant's] case
record. ") .
Defendant argues that "[t]he 'essentially unremarkable'
examination and testing results contained in the record are
inconsistent with Dr. Muendel's opinion that Mr. Gilliland
suffered from extreme limitations associated with a completely
disabling impairment." Def.'s Opp'n at 9.
This argument is unpersuasi ve. The ALJ offered no support
for it in his opinion. Instead, he merely stated that no
physician was able to reach a definitive diagnosis, that all
laboratory results were essentially unremarkable, and that he,
therefore, gave Dr. Muendel's opinion "little weight." AR 19. He
did not explain why the treating physician's opinion should be
given "little weight" just because other laboratory results were
unremarkable and failed to lead to a diagnosis.
Moreover, it does not logically follow that merely because
the tests performed yielded "essentially unremarkable results"
Plaintiff did not suffer "from extreme limitations associated
with a completely disabling impairment." Def. 's Opp' n at 9. The
doctors at Foothills Hospital referred Plaintiff to a pain
management center in order to give him some relief from his
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"blinding" headaches and fatigue even though they could not
reach a specific diagnosis of his condition. AR 191, 254.
Finally, Dr. Muendel 1 s most specific finding--that
Plaintiff,s "intense recurring headache" was "related to the
facial nerves over the left eye [,]" AR 214-15-- is consistent
with notes from the Foothills Hospital that "there [was] some
focal tenderness in [Plaintiff, s] left supraorbital region." AR
190.
2. Proper Weight for Medical Opinions not Deemed
Controlling
Plaintiff contends that even if Dr. Muendel,s opinion was
entitled to less than controlling weight, the ALJ erred by
failing to properly assess it in line with the regulations
applicable to all medical 'opinions. Pl., s Mot. at 7-9. Plaintiff
is correct.
20 C.F.R. §§ 404.1527(c) sets out six factors that ALJs
must consider when applying weight to any medical opinion: ( 1)
the examining relationship; (2) length, nature, and extent of
the treatment relationship; (3) supportability of the opinion
with relevant medical evidence; (4) consistency of the opinion
with the record as a whole; (5) specialization of the medical
source; (6) other factors that tend to support or contradict the
medical opinion. The regulation provides that "[u]nless [an ALJ]
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give [s] a treating source's opinion controlling weight • I
[she] [will] consider all of [these] factors in deciding the
weight . give[n] [to] any medical opinion." Id.
Plaintiff argues that "there is no indication from the
[ALJ' s] decision that [he] considered any of these factors in
his determination to give Dr. Muendel's medical opinion 'little
weight.'" Pl.'s Mot. at 8-9 (emphasis in original) Notably,
Defendant's brief does not address this argument.
To be sure, an "ALJ [is] not required to discuss each of
the relevant regulatory factors when deciding what weight to
give" a medical opinion. Paris v. Astrue, 888 F. Supp. 2d 100,
105 (D.D.C. 2012) (emphasis added). "[T] he regulation requires
the ALJ to 'consider' certain factors, but does not require the
ALJ to recite and discuss each of the factors in the written
decision." Id. In this case, however, there is no indication
that the ALJ gave reasonable consideration to any of the
relevant factors. Pursuant to the Commissioner's own
regulations, the ALJ must "give good reasons" "for the weight"
given to Dr. Muendel's opinion. 20 C.F.R. § 404.1527(c) (2).
This he did not do.
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B. Step Two: Severe Medically Deter.minable Impair.ment
At step two of the five-step evaluation process, a claimant
must show that she has a "severe medically determinable physical
or mental impairment." 20 C.F.R. § 404.1520(a) (4) (ii). The
impairment "must result from anatomical, physiological, or
psychological abnormalities" and "must be established by medical
evidence consisting of signs, symptoms, and laboratory
findings." 20 C.F.R. 1508. "An individual's statement as to pain
or other symptoms" is not enough. 42 U.S.C. § 423 (d) (5) (A).
"[T] here must be medical signs and findings, established by
medically acceptable clinical or laboratory diagnostic
techniques, which show the existence of a medical impairment[,]
[that] could reasonably be expected to produce the pain or
other symptoms alleged [.]" Id.
Because claimants experiencing pain cannot rely solely on
subjective reports of their own symptoms, "[t]he applicable
regulations prescribe a two-step process to determine whether a
claimant suffers from symptoms (including pain) that affect her
ability to perform basic work activities." Butler, 353 F.3d at
1004 (citing 20 C.F.R. §§ 404.1529 & 416.929). "First, the
claimant must adduce 'medical signs or laboratory' findings
evidencing a 'medically determinable impairment that could
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reasonably be expected to produce' the alleged pain." Id. The
second step focuses on severity and "assesses the persistence
and intensity of the claimant's pain as well as the extent to
which it impairs her ability to work." Id.
For clarity's sake, the Court notes that a claimant need
not provide evidence of a specific medical diagnosis. At several
points, the ALJ's opinion makes reference to the absence of a
specific diagnosis of the illness giving rise to Plaintiff's
symptoms. See, e.g., AR 19 ("[A] ll the results from March 1985
through his February 1986 hospitalization failed to establish a
formal medically determinable diagnosis."); AR 19 ("[T]he
current record contains no evidence of a medically determinable
impairment. Through his hospitalization in March 1986, the
claimant had undergone an extensive workup and had been
evaluated by a number of specialists, none of whom were able to
arrive at a formal diagnosis.").
42 U.S.C. 423 (d) (5) (A) speaks of "diagnostic techniques"
that may establish a medically determinable impairment, but the
statute does not require a particular diagnosis. The same is
true of the SSA's implementing regulations. See 20 C.F.R.
§404 .1508 (Impairments "must be established by medical evidence
consisting of signs, symptoms, and laboratory findings[.]"); 20
-24-
C. F. R. §4 04. 152 8 ("Signs must be shown by medically acceptable
clinical diagnostic techniques. . Laboratory findings .
can be shown by use of [the same].")
To the extent the ALJ determined that Plaintiff's claim
failed at step two for lack of a specific medical diagnosis,
that determination was error.
1. Medically Deter.minable Impair.ment Demonstrated by
Medical Signs or Laboratory Findings
Plaintiff had the burden of putting forth "medical signs or
laboratory findings evidencing a medically determinable
impairment that could reasonably be expected to produce [his]
alleged pain." Butler, 353 F.3d at 1004 (internal quotation
marks omitted). He contends that he met this burden with Dr.
Muendel' s letter. Plaintiff argues that "Dr. Muendel detailed
that Plaintiff's chronic headache condition was confirmed by
verifiable signs ('dramatic relief of pain for a short period of
time, half an hour to four hours of dulling of the pain[,]' [AR
214]), using medically acceptable clinical diagnostic techniques
('That nerve had been injected by myself and by the
anesthesiologist, Dr. Dhiel, with dramatic relief of pain [,] '
[AR 214])." Pl.'s Mot. at 11.
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Defendant contends that Dr. Muendel' s injection technique
failed to produce medical signs or laboratory findings because
he relied on "Mr. Gilliland's statements regarding relief from
pain." Def.'s Opp'n at 12. Defendant notes that symptoms, which
are a claimant's "own description of [her] physical or mental
impairment," 20 C.F.R. § 404.1528, are insufficient to show a
medically determinable impairment. Def.'s Opp'n at 11. However,
there is no record evidence as to whether Dr. Muendel based his
observation of "dramatic relief of pain" on Plaintiff's
statements or on some other observed phenomenon.
The SSA's Program Operations Manual System acknowledges
that '"[i]n clinical practice, a sharp distinction between
[medical] signs and symptoms cannot always be found." Program
Operations Manual System (POMS) DI 24501.020 Symptoms, Signs,
and Laboratory Findings (S.S.A. August 9, 2012) Because it is
sometimes "necessary to distinguish symptoms from signs and
laboratory findings[,]" the Manual offers suggestions as to how
to make that distinction. Id. Of particular relevance to this
case, "signs can be observed by the clinician or can be elicited
in response to a stimulus or action by the clinician." Id.
"[T]hey. require professional skill and judgment to evaluate
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their presence and severity as opposed to the mere noting and
reporting of an individual's statements." Id.
The ALJ completely failed to discuss whether Dr. Muendel's
injection technique produced the medical signs and laboratory
findings necessary to demonstrate a medically determinable
impairment. The Court is left to speculate whether the ALJ
mistakenly disregarded Dr. Muendel' s technique because it fell
short of a diagnosis, see discussion supra. pp. 24-25, or
whether the ALJ believed, as Defendant now argues, that any
results produced by the injections were dependent on Plaintiff's
subjective reports of pain. The ALJ' s failure to address this
point was error. "The judiciary can scarcely perform its
assigned review function, limited though it is, without some
indication not only of what evidence was credited, but also
whether other evidence was rejected rather than simply ignored."
Butler, 353 F.3d at 1002 (quoting Brown v. Bowen, 794 F.2d 703,
708 (D.C. Cir. 1986) . 3
3
Plaintiff also contends that the ALJ should have applied
the SSA's most recent guidance regarding the evaluation of
migraine headaches. Pl.'s Mot. at 9-10 (citing Social Security
Administration, National Question and Answer 09-036 (S.S.A.
December 15, 2009)). However, neither Plaintiff nor Dr. Muendel
ever allege that Plaintiff suffered specifically from migraine
headaches, and the Foothills Hospital report contains evidence
tending to rule out a "cluster migraine" diagnosis, AR 191.
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2. Severity of Plaintiff's Impair.ment
At step-two, a Social Security claimant must show not just
a medically determinable impairment, but a "severett one. 20
C.F.R. 404.1520 (a) (4) (ii).
Plaintiff argues that the ALJ failed to apply the proper
guidelines to determine the severity of Plaintiff s impairment. 1
Pl. s Mot. at 11-14. In actuality, the ALJ did not consider the
1
issue at all. AR 18-19.
The record is rife with uncontradicted evidence indicating
the extreme severity of Plaintiff, s symptoms. However, having
concluded that Plaintiff was unable to demonstrate the existence
of a medically determinable impairment, the ALJ mentioned the
issue of severity only to say that Plaintiff had the burden of
proving it. AR 18.
C. Appropriateness of Remand
Courts reviewing determinations by the Commissioner may
remand cases for further action or the taking of additional
evidence. 42 U.S. C. § 405 (g) . Plaintiff argues that the Court
should exercise its discretion and remand this case to the
Commissioner solely for an award of benefits. Pl. 1
S Mot. at 14-
16. He also argues that the already antique record cannot be
further developed on remand because the passage of time has
-28-
limited the evidence available/ Pl. s Mot.
1
at 15 1 and that the
record contains sufficient evidence to proceed with steps three/
four/ and five of the evaluation process. Id. Finally 1 citing
Lockard v. Apfel/ 175 F. Supp. 2d 28 1 34 (D.D.C. 2001) 1 Plaintiff
notes that the Court should take account of the extraordinary
number of years that have passed since Plaintiff filed his
initial claim for DIB and place an extra weight in the scale in
favor of awarding benefits. Pl. s Mot. at 15. 1
Defendant counters with a long list of factual
determinations the Court would have to make in order to award
benefits. Def. s Mot.
1
at 13-15. Defendant also argues that an
award of benefits would exceed the scope of the Court 1
S review.
Def. s Mot.
1
at 14 ("This Court s role is limited to evaluating
1
'whether the ALJ s finding that she is not disabled is supported
1
by substantial evidence and was reached based upon a correct
application of the relevant law. 1
" Craig v. Chater 1 76 F.3d 585/
589 (4th Cir. 1996)).
The Court is very mindful of how truly unfortunate it is
that Plaintiff 1 now over 80 years old 1 must continue to wait for
resolution of his claim. The Court realizes that its own lengthy
delay in deciding the Motions has only worsened the situation/
and apologizes to Mr. Gilliland for its tardiness. However/
-29-
remand for consideration of steps two through five is required.
The SSA' s regulations instruct that if it finds a claimant is
not disabled at any step, it will not continue on to the
remaining steps. 20 C.F.R. §404.1520 (a) (4). In this case, the
ALJ found Plaintiff to be not disabled at step two, leaving
undone any analysis of the remaining steps and necessary factual
findings.
IV. CONCLUSION
For the foregoing reasons, Plaintiff's Motion for Judgment
of Reversal is hereby granted, and this case is remanded to the
Social Security Administration for speedy consideration; and
Defendant's Motion for Judgment of Affirmance is hereby denied.
September 15, 2014 ~~~
GlaySKeSer
United States District Judge
Copies to: attorneys on record via ECF
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