Meece v. Comm Social Security , 192 F. App'x 456 ( 2006 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0569n.06
Filed: August 8, 2006
No. 05-6502
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CHARLES E. MEECE, JR.,
Plaintiff-Appellant,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
JO ANNE B. BARNHART, EASTERN DISTRICT OF KENTUCKY
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
/
BEFORE: MOORE, COLE, and CLAY, Circuit Judges.
CLAY, Circuit Judge. Plaintiff Charles E. Meece, Jr. appeals the August 1, 2005 order of
the United States District Court for the Eastern District of Kentucky granting Defendant Jo Anne
B. Barnhart, Commissioner of Social Security’s motion for summary judgment and denying
Plaintiff’s motion for summary judgment. The district court affirmed the February 20, 2004 decision
of the Social Security Administration (“SSA”) that found that Plaintiff was not disabled and was
therefore not entitled to disability insurance benefits under the Social Security Act (“Act”), 42
U.S.C. § 423. For the following reasons, we REVERSE the order of the district court and
REMAND for an award of disability insurance benefits.
No. 05-6502
I.
On July 24, 1998, Plaintiff filed an application for disability benefits. Plaintiff claimed that
he had been disabled since March 12, 1996. The SSA denied the application in its initial review and
also upon reconsideration; however, the SSA granted Plaintiff a hearing, which took place on March
14, 2000, and a supplemental hearing took place on June 1, 2000. On July 27, 2000, Administrative
Law Judge (“ALJ”) David A. Gerard found that Plaintiff was entitled to disability benefits for a
closed period, from March 12, 1996 to April 30, 2000.1 The ALJ found that while Plaintiff was
disabled on March 12, 1996, Plaintiff’s disability ceased on February 16, 2000 due to medical
improvement, such that Plaintiff was capable of sedentary work. Plaintiff did not appeal this
decision.
On April 22, 2002, Plaintiff filed another application for disability benefits. Plaintiff again
claimed that he had been disabled since March 12, 1996.2 The SSA denied the application in its
initial review and also upon reconsideration; however, the SSA granted Plaintiff a hearing, which
took place on November 19, 2003. On February 20, 2004, ALJ Samuel A. Rodner found that
Plaintiff was not disabled and therefore was not entitled to disability benefits. Utilizing the SSA’s
five step sequential evaluation procedure, 20 C.F.R. § 404.1520, the ALJ found that Plaintiff was
not engaged in substantial gainful activity; that Plaintiff’s impairments were severe; that Plaintiff’s
1
The ALJ found that Plaintiff’s disability ceased on February 16, 2000, so that Plaintiff’s
disability benefits ceased on the end of the second calendar month after the month in which the
disability ceased.
2
Because Plaintiff did not appeal the July 27, 2000 decision of the SSA, that decision had
preclusive effect under the principle of res judicata. As a result, Plaintiff amended his second
disability application, such that the disability onset date was July 28, 2000.
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impairments did not meet the requirements of a listed impairment; that Plaintiff could not return to
his past work as a truck driver; and that Plaintiff could engage in another occupation, such as a
cashier, deli cutter, food counter worker, or an order clerk.
In his analysis, the ALJ found that Plaintiff suffered from degenerative disc disease and
spondylosis in the cervical spine, subsequent to an anterior cervical discectomy and fusion at C5-6.
Plaintiff claimed he suffered residual pain and headaches. The ALJ found that there was no
evidence to support Plaintiff’s claim that Plaintiff’s condition had worsened since February 16,
2000. The ALJ relied on the consultative examination of Dr. David M. Hiestand. Dr. Hiestand
found that Plaintiff had a decreased range of motion for the cervical spine, but otherwise had no
motor or sensory deficit. Specifically, Dr. Hiestand found “[n]o physical evidence for significant
restriction in patient’s tolerance for stooping, bending, reaching, sitting, standing, moving about,
carrying, handling objects or ability to travel.” (J.A. at 171.) Although not mentioned by the ALJ,
Dr. Hiestand also observed that Plaintiff suffered from chronic neck pain, along with associated
chronic headaches.
The ALJ also dismissed several pieces of evidence from Plaintiff’s treating physician, Dr.
Steven Wunder. Dr. Wunder had indicated on certain insurance forms that Plaintiff was unable to
engage in minimal activity or sedentary work; the ALJ found that these were conclusory statements
lacking explanation, and were not entitled to any weight. Likewise, the ALJ dismissed Dr.
Wunder’s notes of Plaintiff’s office visits as cursory and without any specific clinical findings. The
ALJ also dismissed a letter written by Dr. Wunder in which Dr. Wunder opined that Plaintiff would
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No. 05-6502
have to miss a significant number of days of work due to Plaintiff’s headaches. The ALJ found that
this opinion was unsupported by Dr. Wunder’s treatment notes.
The ALJ found that Plaintiff’s complaints of pain due to his neck impairments and the related
headaches were only partially credible. The ALJ noted that Plaintiff visited Dr. Wunder only once
a year, Plaintiff did not seek stronger pain medication, and Plaintiff did not visit the emergency room
for his pain. The ALJ also found that the extent of Plaintiff’s pain was undercut by Plaintiff’s use
of over the counter pain medications, as well as Plaintiff’s non-use of certain prescription pain
medication. The ALJ found that Plaintiff did not need to go into a darkened room for relief and was
not nauseous, behavior inconsistent with disabling headaches. The ALJ found that certain of
Plaintiff’s activities were inconsistent with a disabling level of pain: Plaintiff helped his children get
ready for school, helped to make lunch, vacuumed once a week, swept once a week, drove once or
twice a week, went grocery shopping, and went on a hunting trip in November 2002. Additionally,
Plaintiff was able to engage in truck driving from November 2002 to April 2003, three or four days
a week. Under these facts, the ALJ found that Plaintiff was not disabled and was therefore not
entitled to disability benefits.
On August 1, 2005, the district court affirmed the ALJ’s decision. Plaintiff timely filed a
notice of appeal.
II.
On March 12, 1996, Plaintiff was unloading a heavy door from the back of a truck when he
heard a pop in the back of his neck and he felt a consequent sharp pain. While physical therapy
initially relieved Plaintiff’s symptoms, the symptoms recurred after Plaintiff briefly returned to
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No. 05-6502
work. On May 3, 1996, an MRI scan revealed disc bulging at C3-4 and C6-7, as well as a
significant amount of encroachment and potential cord displacement at C5-6 and, to a lesser extent,
at C4-5. On October 24, 1996, Plaintiff underwent an anterior cervical discectomy and cervical
fusion at C5-6. After the procedure, Plaintiff complained about intermittent pain in the neck and the
left shoulder; Plaintiff later complained of daily headaches. Plaintiff’s treating physician at the time,
Dr. Michael J. Kramer, recommended another MRI scan; Dr. Kramer also noted, “If the scan does
not show anything, I do not believe that anything more can be done and [Plaintiff] will have reached
maximum medical improvement. He had two months of therapy post-operatively and additional
therapy is not likely to result in any improvement.” (J.A. at 193.)
The new MRI scan, dated April 23, 1997, showed small to moderate disc protrusion at C4-5
that was causing mild compression of the spinal cord. Dr. Kramer noted that a discectomy and
fusion at C4-5 were not guaranteed to relieve the pain in Plaintiff’s neck and his attendant
headaches. A later MRI scan, dated March 1998, revealed multi-level degenerative disc disease and
spondylosis. As noted by ALJ Gerard, “Dr. Kramer expressed doubt as to whether there was
anything more that could be done surgically.” (J.A. at 89.) Plaintiff did not undergo any additional
surgical procedures.
Beginning in October 1998, Dr. Wunder began treating Plaintiff. Plaintiff engaged in
various forms of physical therapy, cervical traction, and the use of a TENS unit, as well as a
prescription medicine regimen to target headaches, muscle spasms, and inflammation. On August
24, 2001, Dr. Wunder noted that Plaintiff had tightness in the cervical musculature, and this
tightness was causing Plaintiff’s headaches. On March 18, 2002, Dr. Wunder wrote a letter that
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No. 05-6502
stated that Plaintiff suffered from significant cervical spondylosis, multiple levels of disc protrusions
and herniations, and chronic radiculopathy. On December 4, 2003, Dr. Wunder wrote a letter that
stated that Plaintiff’s headaches were “real and are likely emanating from the cervical spine
spondylosis.” (J.A. at 250.) Dr. Wunder also found that Plaintiff “would have to miss many or quite
a number of days of work on average each month.” (J.A. at 250.) Dr. Wunder opined that while
Plaintiff could engage in sedentary work on a short-term basis, Plaintiff could not do so on a regular
basis. While Dr. Wunder believed facet blocks could relieve Plaintiff’s symptoms, Plaintiff did not
have the financial means or medical insurance to pursue such treatment option.
At the hearing before ALJ Rodner, Plaintiff testified that he worked from November 2002
to April 2003 as a truck driver. Plaintiff worked three or four days per week. Plaintiff discontinued
this work because of his increasing pain. Plaintiff testified that his pain became so severe that he
vomited once or twice every two or three months. Plaintiff testified that he was taking Vioxx and
Zanaflex, as well as over the counter pain medication. Plaintiff testified that while he previously
took Percocet, his doctors did not allow him to take the drug for an extended period of time because
of the drug’s addictive quality. Plaintiff testified that he saw Dr. Wunder once a year, when Plaintiff
ran out of his medication. With respect to additional treatment, Plaintiff stated that “all [Dr.
Wunder] can do is tell me that he can’t do nothing [sic] and I won’t get no better [sic]. That’s all
he’s told me ever since I’ve seen him.” (J.A. at 55.) Plaintiff testified that he engaged in minor
household chores, such as helping his children get ready for school, helping to make lunch,
vacuuming once a week, sweeping once a month, infrequent yard work, driving once a week, and
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No. 05-6502
infrequent grocery shopping. Plaintiff also testified that he went on a hunting trip with his family
in November 2002.
III.
This Court reviews the district court’s decision in a social security case de novo. Valley v.
Comm’r of Soc. Sec., 427 F.3d 388, 390 (6th Cir. 2005) (citation omitted). This Court reviews the
factual findings of the ALJ to determine whether such findings are supported by substantial
evidence. Id. (citations omitted); 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .”). “A decision
is supported by substantial evidence where a reasonable mind could find that the evidence is
adequate to support the conclusion reached.” Valley, 427 F.3d at 391 (citation omitted). A decision
supported by substantial evidence must be upheld, even if this Court could arrive at a different
conclusion from the evidence on record. Id. (citation omitted). In addition, this Court reviews the
ALJ’s decision to determine whether the ALJ applied the correct legal standards. Longworth v.
Comm’r of Soc. Sec. Admin., 402 F.3d 591, 595 (6th Cir. 2005) (citation omitted).
In determining whether an applicant is disabled, the SSA engages in a five step sequential
evaluation procedure:
(i) At the first step, we consider your work activity, if any. If you are doing
substantial gainful activity, we will find that you are not disabled. . . .
(ii) At the second step, we consider the medical severity of your impairment(s). If
you do not have a severe medically determinable physical or mental impairment that
meets the duration requirement in § 404.1509, or a combination of impairments that
is severe and meets the duration requirement, we will find that you are not disabled.
...
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No. 05-6502
(iii) At the third step, we also consider the medical severity of your impairment(s).
If you have an impairment(s) that meets or equals one of our listings in appendix 1
of this subpart and meets the duration requirement, we will find that you are
disabled. . . .
(iv) At the fourth step, we consider our assessment of your residual functional
capacity and your past relevant work. If you can still do your past relevant work, we
will find that you are not disabled. . . .
(v) At the fifth and last step, we consider our assessment of your residual functional
capacity and your age, education, and work experience to see if you can make an
adjustment to other work. If you can make an adjustment to other work, we will find
that you are not disabled. If you cannot make an adjustment to other work, we will
find that you are disabled. . . .
20 C.F.R. § 404.1520(a)(4).
IV.
The instant case centers around the fifth step of the sequential evaluation process. Plaintiff’s
first claim is that the ALJ’s finding, that the opinion of Plaintiff’s treating physician was entitled to
little or no weight, was not supported by substantial evidence. We agree.
Under the SSA regulations, the opinion of a treating physician is entitled to controlling
weight if such opinion (1) “is well-supported by medically acceptable clinical and laboratory
diagnostic techniques,” and (2) “is not inconsistent with the other substantial evidence in [the] case
record.” 20 C.F.R. § 404.1527(d)(2). Even if not entitled to controlling weight, the opinion of a
treating physician is generally entitled to more weight than other medical opinions, as
these [treating] sources are likely to be the medical professionals most able to
provide a detailed, longitudinal picture of [the applicant’s] medical impairment(s)
and may bring a unique perspective to the medical evidence that cannot be obtained
from the objective medical findings alone or from reports of individual examinations,
such as consultative examinations or brief hospitalizations.
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No. 05-6502
Id. In such cases, the SSA considers several factors in assessing the weight of the opinion of the
treating physician, including: (1) the length of the treatment relationship and the frequency of the
examination; (2) the nature and extent of the treatment relationship; (3) the supportability of the
opinion, with respect to relevant evidence such as medical signs and laboratory findings; (4) the
consistency of the opinion with the record as a whole; (5) the specialization of the physician
rendering the opinion; and (6) any other factor raised by the applicant. 20 C.F.R. §§ 404.1527(d)(2)-
(d)(6). The SSA must clearly articulate the reasons underlying its decision to give a medical opinion
a specific amount of weight. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004)
(citing 20 C.F.R. §§ 404.1527(d)(2)).
The ALJ examined two medical opinions in reaching the outcome of Plaintiff’s case.3 First,
the ALJ examined the medical opinion of Plaintiff’s treating physician, Dr. Wunder. Dr. Wunder’s
ultimate opinion was that Plaintiff was unable to engage in sedentary activity on a sustained basis
due to the neck pain and headaches from which Plaintiff suffered. Dr. Wunder opined that Plaintiff
would have to miss “many or quite a number of days work on average each month,” so that Plaintiff
could not engage in employment on a regular basis. (J.A. at 250.) Second, the ALJ examined the
opinion of Dr. Hiestand, a physician hired by the SSA to conduct a one time consultative
3
In addition to the opinions of Dr. Wunder and Dr. Hiestand, the record also contains two
physical residual capacity assessments, written by two different physicians. The ALJ did not rely
on these assessments at all in his decision, and for good reason. First, the assessments were merely
derivative of Dr. Hiestand’s opinion, as Dr. Hiestand’s opinion served as the underlying basis of the
assessments. Second, the physicians who authored the assessments did not examine Plaintiff. This
Court has stated that “the opinion of a nonexamining physician is entitled to little weight if it is
contrary to the opinion of the claimant’s treating physician.” Shelman v. Heckler, 821 F.2d 316, 321
(6th Cir. 1987) (internal quotation marks and citation omitted).
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No. 05-6502
examination of Plaintiff. Dr. Hiestand found that while Plaintiff suffered from a decrease range of
motion of the cervical spine, Plaintiff did not suffer from any other motor or sensory deficit. Dr.
Hiestand opined that there was ‘[n]o physical evidence for significant restriction in patient’s
tolerance for stooping, bending, reaching, sitting, standing, moving about, carrying, handling objects
or ability to travel.” (J.A. at 171.) Dr. Hiestand did find that Plaintiff suffered from chronic neck
pain and chronic headaches.
The ALJ gave little to no weight to the opinion of Dr. Wunder. The ALJ’s rationale centered
upon the factor of supportability; the ALJ found that Dr. Wunder’s opinion was conclusory and was
not based on sufficient medical evidence. We disagree. We first note what conditions are supported
by the record and are uncontested. Plaintiff underwent an anterior cervical discectomy and cervical
fusion at C5-6 to treat pain in his neck and shoulder. The procedure did not alleviate his pain. A
subsequent MRI scan revealed small to moderate disc protrusion at C4-5 that was causing mild
compression of the spinal cord. Plaintiff’s treating physician at the time, Dr. Kramer, expressed
doubt as to whether another discectomy and cervical fusion would alleviate Plaintiff’s pain. Dr.
Kramer later diagnosed Plaintiff as suffering from multi-level degenerative disc disease and
spondylosis. Dr. Wunder agreed with this diagnosis. Dr. Wunder also diagnosed Plaintiff as
suffering from multiple levels of disc protrusions and herniations, as well as chronic cervical
radiculopathy. Dr. Wunder diagnosed Plaintiff as suffering from osteoarthritis, a diagnosis
supported by a radiology report. Dr. Wunder observed that Plaintiff suffered from diminished
cervical motion, an observation confirmed by Dr. Hiestand. Dr. Wunder observed that Plaintiff had
positive compression testing, an observation supported by a previous MRI scan. Dr. Wunder also
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No. 05-6502
observed that Plaintiff had chronic right C7 findings, as well as tightness and guarding in the
cervical musculature. Dr. Wunder opined that Plaintiff’s cervical spondylosis and disc protrusions
were causing pain in Plaintiff’s neck and shoulder. Dr. Wunder also opined that this pain, along
with the tightness in the cervical musculature, was causing Plaintiff’s headaches. Dr. Hiestand
agreed that Plaintiff suffered from chronic neck pain and chronic headaches.
The only disagreement between Dr. Wunder and Dr. Hiestand was Plaintiff’s ability to
engage in regular employment. Dr. Wunder found that Plaintiff’s pain and headaches were so severe
that he could not perform even sedentary work on a regular basis. On the other hand, Dr. Hiestand
found that Plaintiff, while unable to fully move his neck, was not limited in other respects, such as
in Plaintiff’s ability to stoop, bend, reach, sit, stand, move about, carry, handle objects, or travel.
The ALJ credited the opinion of Dr. Hiestand over that of Dr. Wunder, on the basis that the
consultative report of Dr. Hiestand was more detailed than the findings of Dr. Wunder. This
decision was not supported by the record. While a cursory examination of Dr. Hiestand’s report
shows that the report in general contained many details, a more thorough examination reveals that
the report contained very few details as to Plaintiff’s claimed disability. Plaintiff claims that he is
disabled by chronic neck pain and chronic headaches. Dr. Hiestand found that Plaintiff did in fact
suffer from chronic neck pain and chronic headaches; besides these conclusions, however, Dr.
Hiestand mentions very little about Plaintiff’s neck pain and headaches. Indeed, almost all of the
details in Dr. Hiestand’s report relate to conditions that are irrelevant to Plaintiff’s claimed
disability. For example, Dr. Hiestand observed Plaintiff’s ranges of motion for various bodily
movements. Dr. Hiestand found that, with the exception of cervical motion, Plaintiff’s ranges of
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No. 05-6502
motion fell within normal standards. While these observations were no doubt necessary to rule out
certain limitations of Plaintiff, these observations do not relate to Plaintiff’s neck pain or headaches.
In short, while Dr. Hiestand’s report observed the many ways in which Plaintiff was not disabled,
the report failed to confront or challenge Plaintiff’s claimed disability, his neck pain and headaches.
The instant case is a textbook example of why the opinion of a treating physician is entitled
to greater weight than that of a nontreating physician. It bears repeating that
these [treating] sources are likely to be the medical professionals most able to
provide a detailed, longitudinal picture of [the applicant’s] medical impairment(s)
and may bring a unique perspective to the medical evidence that cannot be obtained
from the objective medical findings alone or from reports of individual examinations,
such as consultative examinations or brief hospitalizations.
20 C.F.R. § 404.1527(d)(2) (emphasis supplied). The one time consultative examination of Plaintiff
conducted by Dr. Hiestand did not and could not provide sufficient details as to Plaintiff’s chronic
neck pain and chronic headaches, as Plaintiff’s condition is complex and has been ongoing for many
years. We concede that Dr. Wunder’s opinion was not entitled to controlling weight, as his opinion
and Dr. Hiestand’s opinion were inconsistent as to the ultimate determination of disability. Under
the factors enumerated by the SSA under 20 C.F.R. §§ 404.1527(d)(2)-(d)(6), however, it is clear
that Dr. Wunder’s opinion deserved much greater weight than that given to it by the ALJ. Dr.
Wunder has treated Plaintiff since 1998. While it is true that Plaintiff visited Dr. Wunder
infrequently during the later years of his treatment, this resulted from the fact that there was nothing
that Dr. Wunder could do to alleviate Plaintiff’s pain besides prescribing medication. The
relationship between Dr. Wunder and Plaintiff was specifically focused on Plaintiff’s chronic neck
pain and chronic headaches. As explained, supra, Dr. Wunder’s opinion was more than adequately
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No. 05-6502
supported by the medical evidence. Dr. Wunder’s opinion was consistent with that of prior
physicians who had treated Plaintiff, and the opinion was also consistent with the medical evidence
on record. Dr. Wunder is a specialist in physical medicine and rehabilitation, a field that is directly
relevant to Plaintiff’s claimed disability. All of the enumerated factors militate in favor of granting
substantial weight to Dr. Wunder’s opinion, as opposed to the nominal weight the opinion in fact
received from the ALJ.
As a final note, a comparison between ALJ Gerard’s decision and ALJ Rodner’s decision
is instructive as to the weight that should be afforded to Dr. Wunder’s opinion. ALJ Gerard found
that Plaintiff was disabled from March 12, 1996 to February 16, 2000. ALJ Gerard found that
Plaintiff was disabled due to his neck pain and his headaches. This disabling level of pain was
confirmed by Dr. Wunder’s prescription of pain medications and anti-inflammatory medication.
ALJ Gerard found that Plaintiff’s disability ended on February 16, 2000, a finding that relied in part
on Dr. Wunder’s observation that Plaintiff’s condition seemed to improve with physical therapy,
cervical traction, and the use of a TENS unit. This finding also relied in part on “the absence of any
opinion by treating or examining physicians fully supporting [Plaintiff’s] alleged limitations.” (J.A.
at 91.) In other words, although Plaintiff claimed he was unable to perform even sedentary work,
Dr. Wunder did not give an opinion that was consistent with such claim. In marked contrast, on the
record before ALJ Rodner, Dr. Wunder specifically opined that Plaintiff was unable to perform even
sedentary work on a regular basis due to his chronic neck pain and chronic headaches. Unlike ALJ
Gerard, ALJ Rodner virtually ignored the opinion of Dr. Wunder, a decision that was inconsistent
with the SSA regulations and the law of this Circuit: “[T]he opinions of treating physicians are
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No. 05-6502
accorded greater weight than those of physicians who examine claimants only once.” Walters v.
Comm’r of Soc. Sec., 127 F.3d 525, 529-30 (6th Cir. 1997) (citation omitted); see also Landsaw v.
Sec’y of Health & Human Servs., 803 F.2d 211, 213 (6th Cir. 1986) (“[T]he opinion of the treating
physician should be given greater weight than that of the government’s physician. . . . This is true,
however, only if the treating physician’s opinion is based on sufficient medical data.” (internal
quotation marks and citation omitted).). The ALJ failed to give Dr. Wunder’s opinion the
substantial deference to which it was entitled.
V.
Plaintiff also claims that the ALJ improperly displaced the findings of Dr. Wunder with the
ALJ’s own medical judgment. Specifically, Plaintiff claims that the ALJ improperly played the role
of medical expert in determining that Plaintiff’s assertions as to the extent of his pain were only
partially credible. We agree.
In general, the credibility determination of the ALJ is entitled to “great weight and deference,
particularly since an ALJ is charged with the duty of observing a witness’s demeanor and
credibility.” Walters, 127 F.3d at 531 (citation omitted). The ALJ’s credibility determination,
however, must be supported by substantial evidence. Id. (citation omitted).
When a plaintiff claims that he is disabled due to pain, this Court engages in a two prong
inquiry. “[W]e . . . examine: (1) whether objective medical evidence confirms the severity of the
alleged pain arising from the condition; or (2) whether the objectively established medical condition
is of such a severity that it can reasonably be expected to produce the alleged disabling pain.” Id.
(citing Felisky v. Bowen, 35 F.3d 1027, 1038-39 (6th Cir. 1994)). A plaintiff need not establish
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objective evidence of the pain itself under this inquiry. Felisky, 35 F.3d at 1039 (citation omitted).
When evaluating a plaintiff’s complaint of pain, the ALJ may properly consider the plaintiff’s
credibility. Walters, 127 F.3d at 531 (citation omitted). “Discounting credibility to a certain degree
is appropriate where an ALJ finds contradictions among the medical reports, claimant’s testimony,
and other evidence.” Id. (citation omitted).
In the instant case, the ALJ partially discredited Plaintiff’s assertions as to the extent of his
chronic neck pain and his chronic headaches. The ALJ found that Plaintiff’s complaint of a
disabling level of pain was inconsistent with: (1) the fact that Plaintiff sees Dr. Wunder and his
family physician only once or twice a year; (2) Plaintiff’s use of over the counter medication; (3)
the fact that Plaintiff does not need to go into a darkened room and rarely becomes nauseous; (4)
Plaintiff’s life activities; and (5) Plaintiff’s return to work. We will address these points in turn.
Although Plaintiff sees Dr. Wunder and his family physician only once or twice a year, this
fact does not support an adverse credibility determination as to Plaintiff’s level of pain. The ALJ
believed that Plaintiff’s infrequent visits to his physicians, and Plaintiff’s failure to visit the
emergency room, belied Plaintiff’s claim of a disabling level of pain. This belief ignores the fact
that additional visits to Plaintiff’s physicians or to the emergency room would yield no benefit to
Plaintiff. With respect to additional treatment, Plaintiff stated that “all [Dr. Wunder] can do is tell
me that he can’t do nothing [sic] and I won’t get no better [sic]. That’s all he’s told me ever since
I’ve seen him.” (J.A. at 55.) As a result, Plaintiff sees Dr. Wunder only to renew his prescriptions
for medication. Thus, even assuming that Plaintiff could afford additional visits to see Dr. Wunder
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No. 05-6502
or his family physician,4 these additional visits could not give Plaintiff any additional relief from his
pain.
Plaintiff’s use of over the counter pain medication does not undercut his complaint of a
disabling level of pain. This Court has found that a plaintiff’s failure to use prescription pain
medication may undermine his credibility as to a complaint of a disabling level of pain. Warner,
375 F.3d at 392; Blacha v. Sec’y of Health & Human Servs., 927 F.2d 228, 231 (6th Cir. 1990) (“Mr.
Blacha’s use of only mild medications (aspirin) undercuts complaints of disabling pain . . . .”). In
this case, Plaintiff has used prescription pain and anti-inflammatory medication throughout his
treatment of chronic neck pain and chronic headaches, including: Naprelan, Ultram, Robaxin,
Naprosyn, Vioxx, Zanaflex, and Percocet. Plaintiff testified before the ALJ that he was currently
taking Vioxx and Zanaflex, as well as over the counter medication such as Tylenol and Bayer
Aspirin to deal with his headaches. While the ALJ discounted the extent of Plaintiff’s headache pain
due to the fact that Plaintiff’s doctors failed to prescribe Fiorinal, Imitrex, or Zomig, the ALJ may
not substitute his own medical judgment for that of the treating physician where the opinion of the
treating physician is supported by the medical evidence. McCain v. Dir., Office of Workers Comp.
Programs, 58 Fed. App’x 184, 193 (6th Cir. 2003) (citation omitted); see also Pietrunti v. Dir.,
Office of Workers Comp. Programs, 119 F.3d 1035, 1044 (2d Cir. 1997); Winfrey v. Chater, 92 F.3d
1017, 1022 (10th Cir. 1996); Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir. 1990) (“But judges,
4
This is highly questionable, given Plaintiff’s lack of medical insurance. Although Plaintiff
does receive a fixed payment through private disability insurance, and Plaintiff’s wife earns a salary,
Plaintiff also must provide for four children. A finding that Plaintiff could afford additional medical
care would be completely speculative.
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No. 05-6502
including administrative law judges of the Social Security Administration, must be careful not to
succumb to the temptation to play doctor.”). While the ALJ may have prescribed different pain
medication than that prescribed by Plaintiff’s doctors, this decision is beyond the expertise of the
ALJ and is not a legitimate basis for an adverse credibility determination.
Plaintiff’s failure to seek refuge in a darkened room and Plaintiff’s infrequent nausea are
likewise not legitimate bases for an adverse credibility determination. Plaintiff points out that
sensitivity to light and nausea are symptoms of migraine headaches. There is absolutely no medical
evidence in the record that suggests that such symptoms also occur with the type of headaches from
which Plaintiff suffers. The ALJ’s ascription of those symptoms to the instant case was without any
proper support.
Moreover, the fact that Plaintiff engages in minor life activities is not inconsistent with a
disabling level of pain. “An ALJ may . . . consider household and social activities engaged in by
the claimant in evaluating a claimant’s assertions of pain or ailments.” Walters, 127 F.3d at 532
(citations omitted). Plaintiff testified that he engaged in minor household chores, such as helping
his children get ready for school, helping to make lunch, vacuuming once a week, sweeping once
a month, infrequent yard work, driving once a week, and infrequent grocery shopping. Plaintiff also
testified that he went on a hunting trip with his family in November 2002. Plaintiff’s ability to
engage in these intermittent activities of relatively short duration does not negate the fact that
Plaintiff is unable to regularly engage in work due to his pain. Cohen v. Secretary of Department
of Health & Human Services, 964 F.2d 524 (6th Cir. 1992), is instructive in this regard. In that case,
the plaintiff suffered from Chronic Epstein-Barr virus and associated chronic fatigue syndrome. Id.
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No. 05-6502
at 526. The ALJ found, and the district court agreed, that the plaintiff was not disabled, as the
plaintiff was able to engage in ballroom dancing twice a week, for three to four hours at a time; the
plaintiff attended law school for three days a week, for three and one half hours at a time; and the
plaintiff founded a national support group for persons suffering from the Epstein-Barr virus, which
involved talking over the telephone for two to three hours per week. Id. at 529-30.
In reversing the order of the district court and awarding benefits, this Court emphasized the
definition of disability:
The issue here is whether, despite her illness, Cohen had the residual functional
capacity to maintain substantial gainful employment during the period for which she
now seeks disability benefits. Residual functional capacity is defined as the
“maximum degree to which the individual retains the capacity for sustained
performance of the physical-mental requirements of jobs.” 20 C.F.R. Pt. 404, Subpt.
P, App. 2 § 200.00(c) (1989) (emphasis added). In determining a claimant’s physical
abilities, we must “assess the severity of [claimant’s] impairment(s) and determine
[claimant’s] residual functional capacity for work activity on a regular and
continuing basis.” 20 C.F.R. § 404.1545(b) (1989) (emphasis added).
Id. at 530 (alterations in the original). This Court noted that the plaintiff’s disability of chronic
fatigue syndrome “is characterized by periods of exacerbation and remission.” Id. While the
plaintiff was able to engage in some activities, such as ballroom dancing and part time attendance
of law school, the plaintiff required significant rest at other times, and the plaintiff was confined to
her bed for sixteen to eighteen hours per day. Id. at 530-31. The Court found that while the plaintiff
was able to engage in some activities for several hours at a time, her illness prevented her from
working on a regular and continuing basis. Id. at 531. As a final note, the Court stated: “We
acknowledge that this is a close case . . . . In a close case, it is well to bear in mind that ‘[t]he Social
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No. 05-6502
Security Act is a remedial statute which must be “liberally applied”; its intent is inclusion rather than
exclusion.’” Id. (quoting Marcus v. Califano, 615 F.2d 23, 29 (2d Cir. 1979)).
In the instant case, Plaintiff does not allege that he suffers from a disabling level of pain at
all times that prevents him from participating in any activities, nor must he so allege in order to
qualify for disability benefits. The key question is whether Plaintiff is able to engage in employment
on a “regular and continuing basis.” 20 C.F.R. § 404.1545(b). Plaintiff testified that his neck pain
and headaches were constant; the pain was at least moderate, as Plaintiff rated the pain as between
four and six on a scale of one to ten. Plaintiff testified that the pain reached severe levels, with a
rating of seven to nine on a scale of one to ten. Plaintiff further testified that he had half “good
days” and half “bad days.” On good days, Plaintiff suffered from only moderate pain, so that he
could engage in some activities. On bad days, Plaintiff suffered from severe pain, so that Plaintiff
could not engage in any activities. Thus, the mere fact that Plaintiff is able to perform some
household activities when his level of pain allows him to do so is not inconsistent with Plaintiff’s
claim that his pain prevents him from engaging in regular and continuous employment. Likewise,
Plaintiff’s ability to take his family on a single hunting trip is not inconsistent with Plaintiff’s claim
of disability. About fifty percent of the time, Plaintiff suffers from severe pain that prevents Plaintiff
from engaging in any activities; the other fifty percent of the time, Plaintiff suffers from moderate
pain. Such a condition, while allowing Plaintiff to engage in some activities, does not allow Plaintiff
to work on a regular and continuing basis. See, e.g., Walston v. Gardner, 381 F.2d 580, 586 (6th
Cir. 1967) (“The fact that appellant can still perform simple functions, such as driving, grocery
shopping, dish washing and floor sweeping, does not necessarily indicate that this appellant
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No. 05-6502
possesses an ability to engage in substantial gainful activity. Such activity is intermittent and not
continuous, and is done in spite of the pain suffered by appellant.”).
Likewise, Plaintiff’s attempt to return to work despite his chronic neck pain and his chronic
headaches is not inconsistent with Plaintiff’s claim of disability. Plaintiff testified that he returned
to work as a truck driver from November 2002 to April 2003. Plaintiff engaged in truck driving on
a part time basis; as the ALJ noted, his activity fell under the threshold of substantial gainful
activity. During this time, Plaintiff chose only to drive the short trucking runs. Moreover, Plaintiff
testified that after two weeks of truck driving, his pain began to progressively increase. Plaintiff
continued to work through the pain, until the pain reached such a level that he was forced to stop
work. This case is therefore similar to Wilcox v. Sullivan, 917 F.2d 272 (6th Cir. 1990), where the
plaintiff returned to work after being hospitalized for disabilities caused by multiple sclerosis. Id.
at 277. During this period of employment, the plaintiff’s “condition progressively worsened, to the
point where his union recommended that he stop working; he was subsequently laid off.” Id. In
reversing the order of the district court and holding that the plaintiff was disabled during this period
of employment, this Court stated, “[The plaintiff] should not be penalized because he had the
courage and determination to continue working despite his disabling condition.” Id. Similarly,
Plaintiff’s unsuccessful attempt to return to work may not be used as evidence that Plaintiff is not
disabled. Like the Wilcox plaintiff, Plaintiff worked despite his disabling condition until he could
no longer do so. This fact does not serve as substantial evidence that undermines Plaintiff’s
credibility with respect to his complaint of disabling pain.
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No. 05-6502
In sum, the ALJ’s finding that Plaintiff was only partially credible with respect to his
complaint of disabling pain was not supported by substantial evidence. We concede that this a close
issue, due to the deference afforded to the ALJ’s credibility determination. Like the decision in
Cohen, our decision today on this issue is shaped by the remedial nature of the Act, whose “intent
is inclusion rather than exclusion.” Cohen, 964 F.2d at 531 (internal quotation marks and citation
omitted).
VI.
When this Court gives proper weight to the opinion of Plaintiff’s treating physician, Dr.
Wunder, and when this Court gives proper credibility to Plaintiff’s complaint of disabling pain, the
record clearly establishes that Plaintiff is entitled to disability benefits. Under such circumstances,
this Court may immediately award such benefits. See Faucher v. Sec’y of Health & Human Servs.,
17 F.3d 171, 176 (6th Cir. 1994) (citations omitted). For the foregoing reasons, we REVERSE the
order of the district court and REMAND the case to the district court with instructions to remand
to the SSA for an award of benefits.
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KAREN NELSON MOORE, Circuit Judge, dissenting. I respectfully dissent from the
majority’s decision to reverse because I believe that Administrative Law Judge Rodner’s
determination that Charles Meece was not disabled was supported by substantial evidence. The ALJ
carefully considered evidence from treating physician Dr. Wunder and concluded that Dr. Wunder’s
conclusions were cursory and were not adequately supported. Moreover, the ALJ’s conclusion that
Meece’s allegations of symptoms and functional limitations were “not totally credible” was
supported by substantial evidence. In view of the high threshold of the substantial-evidence
standard of review, I would affirm.
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