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Conn v. Berryhill

United States District Court, E.D. Kentucky, Southern Division, London

November 5, 2018

RITA LYNN CONN, Plaintiff,
NANCY C. BERRYHILL, Acting COMMISSIONER OF Social Security, Defendant.


          Joseph M. Hood Senior U.S. District Judge

         Plaintiff Rita Lynn Conn brings this matter under 42 U.S.C. § 405(g) seeking judicial review of an administrative decision of the Acting Commissioner of Social Security. The Court, having reviewed the record and the cross-motions for summary judgment filed by the parties, will REVERSE and REMAND the Commissioner's decision because the ALJ's finding pertaining to the severity of Conn's gastrointestinal impairments is not supported by substantial evidence and the ALJ committed reversible error at multiple steps of the sequential evaluation.

         I. Standard for Determining Disability

         Under the Social Security Act, a disability is defined as “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). In determining disability, an Administrative Law Judge (“ALJ”) uses a five-step analysis. See Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). Step One considers whether the claimant is still performing substantial gainful activity; Step Two, whether any of the claimant's impairments are “severe”; Step Three, whether the impairments meet or equal a listing in the Listing of Impairments; Step Four, whether the claimant can still perform past relevant work; and, if necessary, Step Five, whether significant numbers of other jobs exist in the national economy which the claimant can perform. As to the last step, the burden of proof shifts from the claimant to the Commissioner. Id.; see also Preslar v. Sec'y of Health & Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994).

         II. Procedural and Factual History

          Conn initially filed an application for Title XVI Supplemental Social Security Insurance Benefits in August 2014, alleging disability as of July 1, 2014. [TR 171]. Conn alleged disability due to incontinence, stress, nerves, high blood pressure, thyroid issues, diabetes, and heart problems. [TR 213].

         Prior to her current application for disability benefits, Conn was treated by Dr. John Michael Watts, her primary care physician, beginning in late 2013 for numerous physical and mental health complaints including chronic pain and numbness, frequent bowel movements, incontinence, abdominal cramping, headaches, hand tremors, fatigue, joint pain, diabetes, depression, and anxiety, among other ailments. [TR 318-21, 353-54, 383-84, 445-56]. Dr. Watts opined that Conn was disabled. [TR 359, 373].

         Due to complaints of abdominal cramping, incontinence, and frequent bowel movements, Dr. Watts referred Conn to Dr. Morris Beebe, a gastroenterologist. [TR 322-29]. An EGD and colonoscopy were performed on Conn. [TR 325]. These tests revealed a small hiatal hernia, mild nonerosive gastritis, diverticulosis, and a rectal polyp. [Id.].

         After Conn filed her application for benefits, Dr. Robert Nold performed a consultative evaluation of Conn. [TR 344-50]. During the consultative examination, Conn reported incontinence of both the bowel and bladder due to stress, anxiety issues, high blood pressure, low thyroid, type 2 diabetes, and heart problems. [TR 344]. Based on the history provided by Conn, limited medical records, and a physical examination, Dr. Nold reported that Conn had a normal range of motion in the lower back. [TR 347]. Dr. Nold also reported that Conn may have difficulty squatting, standing, stooping, and kneeling due to osteoarthritis in her right knee. [Id.]. Additionally, Nold noted that “[f]ine manipulation would be difficult because of her tremor involving her hands and forearms.” [Id.]. Nold stated that Conn's problems with bowel and bladder incontinence had not been fully explored but noted that Conn had a colonoscopy in early 2014 that showed one polyp and the possibility of irritable bowel syndrome and Crohn's disease. [Id.]. Nold also reviewed Conn's history of chest pain and noted that she had a heart catheterization in 2013 and was placed on medication for coronary artery disease. [Id.]. Finally, Nold mentioned that Conn's high blood pressure, type 2 diabetes, and migraine headaches are managed with medication. [Id.].

         On October 17, 2014, Dr. Marvin Bittinger, a state agency physician, opined that Conn had exertional limitations but that she could occasionally lift and carry twenty pounds and could frequently carry ten pounds. [TR 76-78]. Additionally, Bittinger stated that Conn could stand and walk, with normal breaks, for a total of about six hours in an eight-hour workday. [Id.]. Finally, Bittinger found that Conn could occasionally climb ramps and stairs, kneel, crouch, and crawl and that Conn could frequently balance and stoop. [Id.].

         Subsequently, on May 4, 2015, Dr. William Waltrip performed a consultative evaluation of Conn. [TR 386-92]. Conn reported symptoms and medical disorders similar to those reported at her previous examination with Dr. Nold, including, incontinence, high blood pressure, stress and nerve problems, thyroid problems, diabetes, and heart problems. [TR 386]. Dr. Waltrip noted that Conn reported bowel incontinence and that she has diarrhea immediately after eating. [Id.].

         After his physical examination and review of Conn's medical history, Dr. Waltrip observed that Conn had problems with nervous disorder and stress that had been previously evaluated. [TR 389]. Additionally, Waltrip observed that Conn has a gastrocolic reflex. [Id.]. Furthermore, Dr. Waltrip observed that Conn was “very minimally limited in her ability to walk, stand or sit.” [Id.]. Waltrip stated that Conn should be able to lift objects of 25-30 pounds without limitation, that Conn had good strength of grip, and could perform fine and gross manipulations. [Id.]. Finally, Waltrip noted that Conn had no limitation of hearing, seeing, or speaking. [Id.].

         In June 2015, Dr. Donna Sadler, a state agency physician, made findings that were analogous to the previous findings of Dr. Bittinger. [TR 96-100]. Sadler opined that Conn could stand or walk, with normal breaks, for a total of four hours and that Conn could sit, with normal breaks for about six hours in an eight-hour workday. [TR 97]. Finally, Dr. Sadler found that Conn had unlimited balance but that she could only crouch occasionally. [Id.].

         Finally, the record was reviewed by two state agency health consultants, Drs. Maxine Ruddock and Alex Guerrero. [TR 74-75, 94-95]. The state agency consultants observed that Conn had anxiety in the context of fear of soiling herself. [TR 75, 95]. Even so, the consultants both found that Conn had non-severe mental impairment. [TR 74-75, 94-95].

         Conn's claim for benefits was denied initially and upon reconsideration. [TR 79, 101]. Subsequently, Conn pursued her claims at an administrative hearing in front of ALJ Jonathan Leiner on July 25, 2016. [TR 33-68]. Conn was represented by an attorney at the hearing.

         At the hearing, Conn testified that her “bowels” were her most serious medical issue. [TR 38]. Conn testified that she had lost approximately ten pounds. [TR 39]. Conn reported that her gastrointestinal issues led to frequent bowel movements and required her to use the restroom ten times per day on average. [Id.]. Additionally, Conn reported issues with incontinence and reported that Dr. Watts had prescribed Amodil for her symptoms. [TR 40-41]. Furthermore, Conn reported that she used over-the-counter medications and had tried dieting to relieve her symptoms. [Id.].

         In addition to gastrointestinal issues, Conn testified about other medical issues such as radiating neck pain, fibromyalgia, tremors in her hands and arms, arthritis, heart issues, migraines, and sleep apnea, among other conditions and symptoms. [TR 42-49, 54-62].

         Finally, Jane Hall, a vocational expert, also testified at the hearing. [TR 62-67]. Hall testified that Conn was approaching retirement age, had a high-school education, and had worked as a cardiac monitor at a regional hospital. [TR 63]. Hall explained that the position of a cardiac monitor is a sedentary position and is considered skilled. [Id.]. Hall testified that the Dictionary of Occupational Titles (“DOT”) Code for the position of cardiac monitor is 078.365-010. [Id.].

         The ALJ presented two hypotheticals to the vocational expert. First, the ALJ asked the vocational expert to assume a hypothetical individual of Conn's age, education, and work experience, with limitations such as only being able to walk or stand four to eight hours, only being able to sit four hours, and migraine headaches lasting between two to eight hours per day two days per week. [TR 64-65]. The vocational expert responded that “[t]his individual could not complete a normal workweek.” [TR 65].

         Second, the ALJ asked the vocational expert to assume a hypothetical individual of Conn's age, education, and work experience, who can stand and walk for four hours in an eight-hour workday, can sit for six hours in an eight-hour workday, and can perform frequent, but not repetitive bilateral feeling and handling, among other factors. [TR 65-66]. The vocational expert testified that this hypothetical individual could perform past work. [TR 66].

         ALJ Leiner issued an unfavorable decision on January 4, 2017, denying Conn's claims and finding that she was not disabled. [TR 18-27].

         At the first step of the sequential analysis, the ALJ found that Conn had not engaged in substantial gainful activity since July 21, 2014. [TR 20].

         At step two, the ALJ found that Conn suffered from the following severe impairments: neck and back disorders, tremor, knee disorder, diabetes mellitus, migraine headaches, and obesity. [TR 20-23]. The ALJ determined that Conn did not suffer from any severe gastrointestinal impairment, cardiac impairment, obstructive sleep apnea, or mental impairment. [TR 22]. Pertaining to Conn's gastrointestinal impairment, specifically bowel incontinence, the ALJ found that this impairment was not severe because the documentary record shows no evidence of weight loss. [TR 22]. Additionally, the ALJ considered the four broad functional areas for evaluating mental disorders and found that Conn's mental impairments resulted in no more than a mild limitation and no episodes of decompensation. [TR 22-23].

         At step three, the ALJ concluded that Conn did not experience any impairment or combination of impairments that meets or medically equals the severity of any of the listed impairments in 20 C.F.R. pt. 404, subpt. P, app. 1. [TR 23]. In making this determination, the ALJ found that Conn's neck, back, and knee disorders failed to meet or equal the severity of any of the listing requirements, particularly Section 1.02 and 1.04. [Id.]. Additionally, the ALJ found the neither Conn's migraine headaches nor her tremors met or equaled the severity of any of the listing requirements, specifically Section 11.01. [Id.]. Finally, the ALJ concluded that Conn's obesity, viewed alone and in combination, failed to meet the listing requirements and that endocrine disorders, such as diabetes mellitus, were to be evaluated based on the results those disorders had on other body systems. [Id.].

         At step four, the ALJ found that Conn retained the residual function capacity to perform a broad range of light work. [TR 23]. The ALJ explained that Conn can lift twenty pounds occasionally and ten pounds regularly, can stand and walk for four hours in an eight-hour workday, can sit for six hours in an eight-hour workday, and can perform frequent bilateral feeling and handling. [TR 23-24]. The ALJ noted that Conn testified that her worst impairment were gastrointestinal issues but explained that Conn had not required additional specialized medical treatment. [TR 24]. The ALJ also noted Conn's radiating neck pain and inability to walk for long periods of time. [Id.].

         Even so, the ALJ found “that the claimant's medically determinable impairments cannot reasonably be expected to impose symptoms of the intensity, persistence, and limiting effects as [Conn] alleges.” [TR 24]. Additionally, the ALJ found that Conn's subjective allegations and hearing testimony were unpersuasive. [TR 25]. Again, the ALJ emphasized that Conn's lack of weight loss appeared inconsistent with her asserted debilitating diarrhea and bowel incontinence. [Id.]. The ALJ appears to have assigned controlling weight to the opinions of the two state agency physicians, Dr. Nold and Dr. Waltrip. [TR 26-27]. As a result, the ALJ concluded that Conn could perform past relevant work as a cardiac monitor and did not proceed to step five. [TR 27].

         The Appeals Council denied review of Conn's claim. [TR 1-5]. Having exhausted her administrative remedies, Conn pursued judicial review of the Commissioner's decision by filing this action on January 6, 2018. [DE 2]. Pursuant to the Court's Standing Scheduling Order [DE 10], Conn moved for summary judgment on June 3, 2018, [DE 11] and the Commissioner moved for summary judgment on June 29, 2018 [DE 13]. As a result, this matter is ripe for review.

         III. Standard of Review

          When reviewing the ALJ's ruling, this Court may not “try the case de novo, resolve conflicts in evidence, or decide questions of credibility.” Ulman v. Comm'r of Soc. Sec, 693 F.3d 709, 713 (6th Cir. 2012). This Court determines only whether the ALJ's ruling is supported by substantial evidence and was made pursuant to proper legal standards. Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994). “Substantial evidence” is defined as “more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. The Court is to affirm the decision, provided it is supported by substantial evidence, even if this Court might have decided the case differently. See Her v. Comm'r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999).

         Even so, the existence of substantial evidence supporting the Commissioner's decision cannot excuse failure of an ALJ to follow a mandatory regulation that “is intended to confer a procedural protection” for the claimant. Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 543, 546-47 (6th Cir. 2004). “To hold otherwise ... would afford the Commissioner the ability [to] violate the regulation with impunity and render the protections promised therein illusory.” Id. at 546; see also Cole v. Comm'r of Soc. Sec., 661 F.3d 931, 937 (6th Cir. 2011) (“An ALJ's failure to follow agency rules and regulations ‘denotes a lack of substantial evidence, even where the conclusion of the ALJ may be justified based upon the record.'” (quoting Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 409 (6th Cir. 2009))).

         Finally, the ALJ must provide a discussion of “findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record.” 5 U.S.C. § 557(c)(3)(A). This requirement is “necessary in order to facilitate effective and meaningful judicial review.” Reynolds v. Comm'r of Soc. Sec., 424 Fed.Appx. 411, 415 (6th Cir. 2011).

         IV. Analysis

         Conn raises three main issues in this action. [DE 11 at 1-2, 5-13, Page ID # 601-02, 605-13]. First, Conn claims that the ALJ erred in evaluating the severity her digestive disorder and mental health conditions. Second, Conn asserts that the ALJ erred by not addressing the opinion of her primary care provider, Dr. Watts. Third, Conn claims that the ALJ ...

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