Cheryl Scott Brown v. Commissioner of Social Securi

Filing

OPINION filed : For all of the reasons set forth above, we VACATE the judgment of the district court and REMAND the case for further proceedings consistent with this opinion, decision not for publication. R. Guy Cole , Jr., Chief Circuit Judge; Ronald Lee Gilman and Raymond M. Kethledge, Circuit Judges.

Case: 14-6299

Document: 19-2

Filed: 05/08/2015

Page: 1

NOT RECOMMENDED FOR PUBLICATION
File Name: 15a0346n.06
No. 14-6299

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

May 08, 2015
DEBORAH S. HUNT, Clerk

CHERYL S. BROWN,
Plaintiff-Appellant,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.

)
)
)
)
)
)
)
)
)
)
)
)

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF KENTUCKY
OPINION

Before: COLE, Chief Judge; GILMAN and KETHLEDGE, Circuit Judges.
RONALD LEE GILMAN, Circuit Judge. Cheryl S. Brown applied for Social Security
disability benefits on the basis that the side effects of the medications she takes to control her
hypertension render her incapable of working.

Brown’s application was denied in the

administrative and judicial proceedings below, but no adjudicator has squarely addressed her
primary claim that she is unable to work due to the collateral consequences of her medications.
For this reason, we VACATE the judgment of the district court and REMAND the case for
further proceedings consistent with this opinion.
I. BACKGROUND
A.

Medical history
The basic facts of Brown’s medical history are largely undisputed. Between June 2009

and October 2010, Brown struggled with hypertension.

She made several visits to the

Case: 14-6299

Document: 19-2

Filed: 05/08/2015

Page: 2

Brown v. Comm’r of Soc. Sec., No. 14-6299
emergency room, she saw a panoply of doctors, and the doctors tried numerous medications in
varying combinations and doses to try to bring Brown’s blood pressure under control. Finally,
by October 2010, the doctors hit on the right set of prescriptions, and Brown’s blood pressure
came down to within normal limits.
Unfortunately, the medications that are required to keep Brown’s blood pressure in check
have serious side effects with their own set of problems. The medications cause drowsiness that
requires Brown to take one to two naps every day. Her medications also cause nausea, dizziness,
and headaches.

Because of these side effects, Brown’s daily activities are substantially

diminished from what they once were. She is no longer able to cook or clean without stopping to
rest, she cannot participate in many of the recreational activities that she once enjoyed, and she
rarely leaves her house for more than a few hours at a time. Brown has, however, retained her
ability to run errands, such as taking her son to school, shopping for groceries twice a month, and
sitting through her son’s baseball games.
Before these medical complications, Brown had spent the vast majority of her working
life as an accounting specialist. This was an administrative job requiring minimal physical
exertion. But Brown has not worked since August 27, 2009 due to the struggles with her blood
pressure.
B.

Procedural history
On March 16, 2010, at the age of 46, Brown filed an application with the Social Security

Administration for disability insurance benefits under Title II of the Americans with Disabilities
Act, as well as an application for supplemental security income under Title XVI of the same Act.
These applications were first denied on June 19, 2010, and then again after reconsideration on
September 10, 2010. Brown filed a written request for a hearing before an Administrative Law
-2-

Case: 14-6299

Document: 19-2

Filed: 05/08/2015

Page: 3

No. 14-6299, Brown v. Comm’r of Soc. Sec.
Judge (ALJ) on October 7, 2010. That hearing took place by video conference on February
7, 2012.
Two witnesses testified at the hearing: Brown and William Ellis, the latter being a
vocational expert appointed by the ALJ. Brown testified about her work and medical history, as
well as her ongoing medical problems. She told the court that the biggest challenge to her ability
to work was her medications, and she described the impact of the medications’ side effects on
her daily life. Ellis then offered his opinion that a hypothetical person of Brown’s age and
education could find work in the national economy outside of a high-stress environment and
without being exposed to physical hazards such as scaffolds or machinery. But he also testified
that if such a person were unable to maintain an eight-hour work day or a 40-hour work week
due to the side effects from medications, there would be no job in the national economy that she
could perform.
On February 22, 2012, the ALJ issued her decision that denied Brown’s application for
benefits.

She acknowledged that Brown appeared to be “very honest and sincere” in her

testimony, but nonetheless concluded that Brown’s medical record did not support her claims of
being totally disabled.

The ALJ discussed the symptoms of Brown’s hypertension and

psychological conditions at length, but found that each was under sufficient control to allow
Brown to work, with certain limitations. Missing from the discussion, however, was the impact
of the side effects of Brown’s medications on her ability to work.

The Appeals Council

subsequently denied Brown’s request for review on April 6, 2013, at which point her
administrative remedies were officially exhausted and the ALJ’s ruling became the final decision
of the Commissioner.

-3-

Case: 14-6299

Document: 19-2

Filed: 05/08/2015

Page: 4

Brown v. Comm’r of Soc. Sec., No. 14-6299
On June 7, 2013, Brown filed suit in the United States District Court for the Western
District of Kentucky, seeking judicial review of the Commissioner’s decision. Her case was
referred to a magistrate judge, who issued a Report and Recommendation on August 15, 2014
concluding that the case should be remanded to the Commissioner for further proceedings. The
magistrate judge decided that the ALJ had erred as a matter of law by “determining Ms. Brown’s
physical functional capacity based only on treatment records and Ms. Brown’s testimony,” rather
than “avail[ing] herself of her regulatory ability to request an [sic] either an opinion from Ms.
Brown’s treating physician, or order a consultative physical examination.”
Noting his disagreement, the district judge upheld the Commissioner’s objections to the
magistrate judge’s recommendation.

According to the district judge, there is no per se

requirement that an ALJ must consider medical opinions in determining a claimant’s residual
functional capacity (RFC).

The district court then affirmed the Commissioner’s decision

denying benefits to Brown and dismissed her case with prejudice. Brown has timely appealed.
II. ANALYSIS
This case comes before us in an odd procedural posture. Brown’s primary argument—
both before this court and below—has consistently been that the ALJ erred in failing to consider
and address the impact of her medications’ side effects on her ability to work. Yet both the
magistrate judge and the district judge ignored her argument. First, instead of confronting the
issue raised by Brown, the magistrate judge announced, sua sponte, a new rule that an ALJ
cannot determine a claimant’s RFC without obtaining and considering a physician’s medical
opinion on that issue. Because the magistrate judge concluded that his new rule disposed of the
case, he declined to reach Brown’s main argument and instead recommended that the case be
remanded to the ALJ to obtain and consider a medical expert’s opinion.
-4-

Case: 14-6299

Document: 19-2

Filed: 05/08/2015

Page: 5

No. 14-6299, Brown v. Comm’r of Soc. Sec.
The district judge’s 11-sentence opinion rejecting that recommendation addressed only
the new legal rule announced by the magistrate judge. Because the district judge concluded that
there was no legal support for this new rule, he affirmed the ALJ’s decision denying Brown
benefits. He did not, however, acknowledge in any way Brown’s argument that she is unable to
work due to the side effects of her medications. So, as it now stands, Brown has yet to receive a
ruling on the factual issue that she raised in her complaint, despite the fact that she has argued it
at every opportunity.
We review de novo district-court decisions in Social Security cases. Jordan v. Comm’r
of Soc. Sec., 548 F.3d 417, 422 (6th Cir. 2008). But in this case there is no decision to review on
the key issue raised by Brown.
The district judge correctly decided that “neither the applicable regulations nor Sixth
Circuit law limit the ALJ to consideration of direct medical opinions on the issue of RFC.” True
enough, a medical opinion was presented by a treating or examining physician in each of the
cases that the magistrate judge cited in support of his per se rule. See, e.g., McCain v. Dir.,
Office of Workers Comp. Programs, 58 F. App’x 184, 193 (6th Cir. 2003) (reviewing the ALJ’s
decision that rejected the opinion of the claimant’s treating physician); Schmidt v. Sullivan,
914 F.2d 117, 118-19 (7th Cir. 1990) (same); Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988)
(approving the Appeals Council’s rejection of a medical opinion that was not backed by
objective medical data).
Those cases and others indicate that an ALJ should resist the temptation to substitute the
ALJ’s own interpretation of medical records for that of a physician who has examined the
records. See, e.g., Schmidt, 914 F.2d at 118-19 (stating in dicta that the ALJ would have erred if
he had disregarded the opinion of the claimant’s treating physician simply because it did not
-5-

Case: 14-6299

Document: 19-2

Filed: 05/08/2015

Page: 6

Brown v. Comm’r of Soc. Sec., No. 14-6299
make sense from a layman’s perspective); Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir. 1985)
(holding that the ALJ erred in rejecting the opinion of the claimant’s treating physician in favor
of the ALJ’s own interpretation of the medical file); Burke v. Astrue, No. 3:11-cv-00185-S, 2011
WL 7404388, at *4 (W.D. Ky. Sept. 27, 2011), report and recommendation adopted 2012 WL
566790 (W.D. Ky. Feb. 21, 2012) (holding that the ALJ did not err in relying on the opinion of
nonexamining physicians rather than interpreting raw clinical data himself).
But none of these cases even remotely suggests that an ALJ must, as a matter of law, seek
out a physician’s medical opinion where one is not offered. The district judge therefore did not
err in rejecting the magistrate judge’s determination that such a rule required the reversal of the
Commissioner’s decision regarding Brown’s application for benefits.
Having rejected that rule, however, the district judge should have then proceeded either
to evaluate Brown’s argument about the ALJ’s failure to address the side effects of her
medications or returned the case to the magistrate judge to consider those arguments.

That

claim remains at the heart of Brown’s case. Affirming the Commissioner’s decision without
confronting the argument simply because the magistrate judge chose to go off on a different—
and incorrect—legal path was an unfortunate oversight.
“It is the general rule, of course, that a federal appellate court does not consider an issue
not passed upon below.” Singleton v. Wulff, 428 U.S. 106, 120 (1976). However, “[t]he matter
of what questions may be taken up and resolved for the first time on appeal is one left primarily
to the discretion of the courts of appeals, to be exercised on the facts of individual cases.”
Id. at 121. Here, we decline to reach the substance of Brown’s argument because there is no
decision from the lower court to review. So despite acknowledging the correctness of the district
court’s legal ruling, we vacate the affirmance of the Commissioner’s decision and remand the
-6-

Case: 14-6299

Document: 19-2

Filed: 05/08/2015

Page: 7

No. 14-6299, Brown v. Comm’r of Soc. Sec.
case to the district court to consider whether the ALJ erred in failing to address the side effects of
Brown’s medications.
III. CONCLUSION
For all of the reasons set forth above, we VACATE the judgment of the district court and
REMAND the case for further proceedings consistent with this opinion.

-7-