Mellott v. Commissioner of Social Security

Filing 28

OPINION AND ORDER; Adopting in Part the Report and Recommendation 24 to the extent it finds the ALJ erred in failing to address Dr. Perrin's opinion, Modifies in Part the Report and Recommendation with respect to remand. The Court finds the error was harmless and does not require remand. Judgment entered in favor of the Defendant and against the Plaintiff. ***Civil Case Terminated. Signed by Judge Theresa L Springmann on 2/28/12. (jld)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
TINA M. MELLOTT,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CAUSE NO.: 3:11-CV-92-TLS

OPINION AND ORDER
The Plaintiff, Tina M. Mellott, seeks judicial review of the Social Security
Administration’s (the Agency’s) final decision denying her September 1, 2006, application for
Disability Insurance Benefits (DIB) under Title II of the Social Security Act, 42 U.S.C. § 423(d),
alleging a disability onset date of May 23, 2005. After a hearing, an administrative law judge
(ALJ) found that the Plaintiff was not disabled at any time from her alleged onset date through
the date of the ALJ’s decision. On January 6, 2011, the Appeals Council denied the Plaintiff’s
request for review of this decision, thereby rendering it the Agency’s final decision for purposes
of judicial review. 20 C.F.R. § 404.981. The Court has jurisdiction pursuant to 42 U.S.C. §
405(g). On January 10, 2012, Magistrate Judge Nuechterlein filed a Report and
Recommendation [ECF No. 24] recommending that the case be remanded for further
proceedings because the ALJ failed to properly consider the May 2007 opinion of Dr. Jean
Perrin. The Magistrate Judge had jurisdiction pursuant to this Court’s order of referral for a
Report and Recommendation under 28 U.S.C. § 636(b)(1)(B) [ECF No. 4].1 On January 19, the

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The Report and Recommendation filed by Magistrate Judge Christopher A. Nuechterlein
indicates that a ruling is being entered “based on the consent of the parties and 28 U.S.C. § 636(c).”
(Report & Recommendation 1, ECF No. 24.) The Court assumes that the Magistrate Judge’s reference to

Defendant filed his Objection to the Magistrate Judge’s Report and Recommendation [ECF No.
25], and this Court must “make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3). The Court may “accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. §
636(b)(1)(C).

ISSUE FOR REVIEW
The parties’ dispute centers around the opinion of Dr. Perrin, a state agency examining
physician. After examining the Plaintiff on May 22, 2007, Dr. Perrin’s assessment was that, “In
regard to the workplace, claimant does not appear to be a suitable workplace candidate at this
time.” (R. at 636.)

A.

Arguments Presented for Judicial Review
In her opening brief, the Plaintiff argued that the Court should remand the Agency’s final

decision because the ALJ erred as a matter of law when he failed to address the opinion of Dr.
Perrin as required by 20 C.F.R. § 404.1527(d). In response, the Defendant submitted that,
although the ALJ did not discuss the specific finding regarding the Plaintiff’s suitability for
work, he considered the most significant diagnostic findings from Dr. Perrin’s May 2007 exam
and found them to be inconsistent with the record medical evidence from two of the Plaintiff’s
treating physicians. The Defendant argued that the ALJ noted that Dr. Perrin observed that the

consent was an oversight and that the correct and intended statutory reference is § 636(b).

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Plaintiff had an intention tremor, a positive finger to nose maneuver in which she missed her
nose with both hands, and “completely off” rapid alternating movements. (R. at 635.) But the
ALJ noted that Dr. David Mattson, the Plaintiff’s treating neurologist, reported negative
finger-to-nose testing in December 2006 and Dr. Mary Jacobs, the Plaintiff’s primary care
physician, reported only a mild tremor at an exam in May 2007, the same month that Dr. Perrin
examined the Plaintiff. (R. at 18–19, 704, 707.) The ALJ went on to note that Dr. Mattson
reported that the Plaintiff had negative finger-to-nose testing at subsequent appointments in
February 2008, May 2008, May 2009, and November 2009. (R. at 18–19, 899–913.) The
Defendant argued that it is reasonable to infer that the ALJ considered Dr. Perrin’s opinion, but
chose not to give it significant weight because the most significant findings from her exam were
inconsistent with the reports of two of the Plaintiff’s treating physicians. The Defendant
submitted that even if the ALJ did not consider Dr. Perrin’s opinion, his error was harmless.
The Plaintiff responded that the Defendant’s argument about what could be inferred from
the ALJ’s findings was unpersuasive because 20 C.F.R. § 404.1527(d) requires the ALJ to
“evaluate every medical opinion” and Dr. Perrin’s ultimate opinion—“In regard to the
workplace, claimant does not appear to be a suitable workplace candidate at this time”—was
never mentioned in the ALJ’s decision. With regard to harmless error, the Plaintiff argued that
this case does not meet the standard set forth in Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir.
2010), which holds that “[i]f it is predictable with great confidence that the agency will reinstate
its decision on remand because the decision is overwhelmingly supported by the record though
the agency’s original opinion failed to marshal that support, then remanding is a waste of time.”
The Plaintiff argued that Dr. Perrin was not the only doctor to state that the Plaintiff had work

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preclusive limitations, noting that her treating cardiologist opined she could not sustain even
sedentary work. (R. at 819–21.)

B.

The Report and Recommendation and Objections
The Magistrate Judge recommends that the case be remanded for further proceedings

because the ALJ failed to state why he did not consider Dr. Perrin’s May 2007 opinion that the
Plaintiff was not suitable for work, and did not discuss the treatment relationship, the physician’s
explanation, or the physician’s specialization. The Magistrate Judge noted that the ALJ
discussed how the results of the coordination test Dr. Perrin gave the Plaintiff differed from one
given by a different physician the previous year, but that “[g]iven the magnitude of the state
physician’s opinion, that [the Plaintiff] ‘does not appear to be a suitable workplace candidate at
this time,’ the ALJ needed to at least minimally articulate his reasons for not considering it.”
(Report & Recommendation 10, ECF No. 24.)
In his Objection to the Magistrate Judge’s Report and Recommendation, the Defendant
argues that the Magistrate Judge did not discuss the Defendant’s harmless error argument.
Additionally, the Defendant argues that the ALJ complied with 20 C.F.R § 404.1527 when he
considered the most important findings from Dr. Perrin’s examination, and concluded that they
were inconsistent with other medical evidence in the record.

ANALYSIS
An ALJ is tasked with evaluating opinion evidence when making a determination of
disability. Federal regulations, 20 C.F.R §§ 404.1527 and 416.927, set forth detailed rules for

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evaluating medical opinions about an individual’s impairments offered by medical sources,
including the medical opinions of state agency medical consultants. The regulations provide that,
“[i]n deciding whether you are disabled, we will always consider the medical opinions in your
case record together with the rest of the relevant evidence we receive.” 20 C.F.R. §§
404.1527(b), 416.927(b). When presented with the opinion of a state agency physician, the ALJ
must explain the weight given to the opinion in the same way the ALJ must do for other sources.
20 C.F.R. §§ 404.1527(f) and 416.927(f); SSR 96-6p2 (stating that ALJs “may not ignore”
opinions of state agency consultants and “must explain the weight given to the opinions in their
decisions”). In addition, the Agency’s own rules mandate that “opinions from any medical
source on issues reserved to the Commissioner must never be ignored.” SSR 96-5p (stating that
“adjudicators must always carefully consider medical source opinions about any issue, including
opinions about issues that are reserved to the Commissioner” such as those that a claimant is
“disabled” or “unable to work”); 20 C.F.R. § 404.1527(e) (providing that matters reserved for
the Commissioner are not entitled to “any special significance,” although they must always be
considered).
Although the ALJ was not required to follow Dr. Perrin’s opinion, there is no indication
in the record that he was aware of Dr. Perrin’s assessment regarding the Plaintiff’s suitability as
a workplace candidate. The only portion of Dr. Perrin’s examination that the ALJ specifically
mentioned was the result of the finger-to-nose testing, the display of an intention tremor, and

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Social Security Rulings (SSRs) “are interpretive rules intended to offer guidance to agency
adjudicators.” Lauer v. Apfel, 169 F.3d 489, 492 (7th Cir. 1999) (citing Lauer v. Bowen, 818 F.2d 636,
639–40 (7th Cir. 1987)). According to 20 C.F.R. § 402.35(b)(1), the Social Security Administration has
made SSRs, including those that are “statements of policy and interpretations” that the Agency has
adopted, “binding on all components of the Social Security Administration.”

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completely off rapid alternating movements. He did not explain the weight he gave to Dr.
Perrin’s ultimate opinion, thus violating 20 C.F.R. §§ 404.1527(f) and 416.927(f), and S.S.R. 966p. See McKinzey v. Astrue, 641 F.3d 884, 891 (7th Cir. 2011) (finding an ALJ’s failure to
consider the opinion of a state agency physician error). The Magistrate Judge correctly
concluded in his Report that the ALJ erred when he failed to include any discussion of Dr.
Perrin’s opinion, even if the opinion carried no special significance. The Court will adopt this
finding from the Report and Recommendation.
It would be an improper application of the harmless error doctrine for the Court to infer,
as the Defendant argues, that the ALJ considered Dr. Perrin’s opinion but chose not to give it
significant weight. The Defendant argues that this can be inferred from the ALJ’s discussion of
the most significant findings from Dr. Perrin’s exam as inconsistent with the reports of two of
the Plaintiff’s treating physicians. The Seventh Circuit has warned that the harmless error
standard is not “an exercise in rationalizing the ALJ’s decision and substituting our own
hypothetical explanations for the ALJ’s inadequate articulation.” McKinzey, 641 F.3d at 892
(noting that the question for resolution under harmless error is prospective, not retrospective);
see also Spiva, 628 F.3d at 353 (criticizing the government’s over-reliance on the doctrine of
harmless error in the social security context). The Magistrate Judge’s Report and
Recommendation correctly declines to engage in such inferences and retrospective
rationalization. However, neither does the Report and Recommendation fully consider whether
remanding the case “would be a waste of time and resources for both the Commissioner and the
claimant.” McKinzey, 641 F.3d at 892. To avoid such waste, a court “will not remand a case to
the ALJ for further specification where [the court is] convinced that the ALJ will reach the same

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result.” Id. (citing Spiva, 628 F.3d at 353). With this standard in mind, the Court now considers
whether it can say “with great confidence what the ALJ would do on remand.” McKinzey, 641
F.3d at 892.
A review of the administrative record convinces the Court that no reasonable ALJ would
reach a contrary decision on remand regarding the weight to give Dr. Perrin’s opinion or the
conclusion that the Plaintiff has the Residual Functional Capacity (RFC) to perform sedentary
work, but no more than occasional climbing, crouching, crawling, kneeling, or stooping.
Although Dr. Perrin’s opinion is entitled to consideration, application of the factors set forth in
20 C.F.R. §§ 404.1527(d) and 416.927(d) lead the Court to confidently conclude that, on
remand, the ALJ would afford very little weight to Dr. Perrin’s opinion.
Dr. Perrin’s opinion that the Plaintiff “does not appear to be a suitable workplace
candidate at this time” is not entitled to any special significance. 20 C.F.R. §§ 404.1527(e)(2),
416.927(e)(2); SSR 96-5p. The ultimate determination as to a claimant’s disability is reserved to
the Commissioner and a physician’s statement that a claimant is disabled or unable to work is
not conclusive. Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000); 20 C.F.R. §§ 404.1527(e),
416.927(e) (“A statement by a medical source that you are ‘disabled’ or ‘unable to work’ does
not mean that we will determine that you are disabled.”). Dr. Perrin did not provide an RFC
opinion and did not opine as to any disabling limitations. Dr. Perrin stated only that the Plaintiff
did not “appear” to be a suitable candidate for work “at the time of her exam with him.”
Where an opinion by a medical source is not entitled to controlling weight, the following
factors are to be considered: the examining relationship, the treatment relationship (its length,
frequency of examination, and its nature and extent), supportability by clinical and laboratory

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signs, consistency, specialization and other miscellaneous factors. 20 C.F.R. § 404.1527(d)(1-6).
It is unclear what findings from Dr. Perrin’s Internal Medicine Examination would support a
finding that the Plaintiff did not have the RFC to perform sedentary work. The examination was
unremarkable with the exception of the intention tremor, a positive finger to nose maneuver, and
off rapid alternating movements, which were all noted in the neurological portion of the
examination. Dr. Perrin’s impressions from the complete examination were that the Plaintiff had
neurologic problems, a history of coronary artery spasm, was easily fatigued, and had
concentration problems. Dr. Perrin did not specifically define the neurological problems or link
them to specific job functions or physical restrictions. Dr. Perrin’s opinion about the workplace
did not differentiate among the types of jobs included in the “workplace” or even indicate the
reasons that Dr. Perrin concluded the Plaintiff was not a suitable workplace candidate,
neurological or otherwise.
The ALJ fully considered the impact of the Plaintiff’s neurological problems on the
Plaintiff’s RFC. In doing so, he relied on the opinions of physicians specializing in rheumatology
and neurology as the fields of medicine that diagnose and treat the Plaintiff’s suggested and
potential impairments, including reflex sympathetic dystrophy (RSD), fibromyalgia, autonomic
dysfunction, and peripheral neuropathy. These included opinions and findings from Dr. David
Mattson, a neurologist who had treated the Plaintiff, Dr. B.A. Lockowitz, a rheumatologist who
examined the Plaintiff, and Drs. Lester Mertz and Mary Jacobs, also rheumatologists who
examined and treated the Plaintiff. The ALJ determined that the findings of these specialists
were entitled to great weight with respect to whether the Plaintiff was disabled due to RSD,
fibromyalgia, autonomic dysfunction, and peripheral neuropathy. If the matter were remanded,

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there is no reason to believe that Dr. Perrin’s assessment, which was inconsistent with
examination findings by these specialists, would be granted any significant weight.
The Plaintiff argues that the Court cannot say with confidence that the ALJ would
reinstate its decision on remand because Dr. Michael Mirro, the Plaintiff’s treating cardiologist,
opined that the Plaintiff could not sustain even sedentary work. The ALJ, however, considered
Dr. Mirro’s opinions. The ALJ adequately explained that he gave Dr. Mirro’s opinions some
weight with respect to the Plaintiff’s cardiac status because he is a cardiologist. With regard to
Dr. Mirro’s opinion that the Plaintiff is totally disabled, the ALJ limited the weight given to this
opinion as inconsistent with Dr. Mirro’s own detailed assessment of the Plaintiff’s RFC and with
his treatment records. The ALJ gave great weight, instead, to his assessment of functional class
II angina which is consistent with capacity for sedentary work activities. The ALJ noted that this
RFC was consistent with the opinions of two other physicians, a specialist in physical medicine
and rehabilitation and a cardiologist, both of whom reviewed the Plaintiff’s medical records and
opined that she could return to her past work. The ALJ found that no other physical limitations
were supported by the objective findings upon diagnostic testing, and that the record lacked
significant and persistent abnormalities upon physical examination, including from the results of
Dr. Perrin’s examination.
For all the above reasons, the Court finds the ALJ’s oversight harmless because although
he failed to articulate his reasons for rejecting Dr. Perrin’s assessment, “the proper place of that
opinion in the context of the other evidence is clear.” McKinzey, 641 F.3d at 892. The addition of
Dr. Perrin’s findings to the discussion of neurological problems would not change the Plaintiff’s
RFC.

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CONCLUSION
For the reasons stated above, the Court ADOPTS IN PART the Report and
Recommendation [ECF No. 24] to the extent it finds that the ALJ erred in failing to address Dr.
Perrin’s opinion, and MODIFIES IN PART the Report and Recommendation [ECF No. 24] with
respect to remand. The Court finds that the error was harmless and does not require remand. The
Clerk will enter judgment in favor of the Defendant and against the Plaintiff.
SO ORDERED on February 28, 2012.
s/ Theresa L. Springmann
THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
FORT WAYNE DIVISION

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