McGranahan v. SSA
Filing
12
MEMORANDUM OPINION & ORDER: IT IS ORDERED: (1) that Plaintiff's Motion for Summary Judgment DE 10 is DENIED; and (2) that Defendant's Motion for Summary Judgment DE 11 is DENIED (3) that this action be remanded to the Commissioner for further proceedings consistent herewith pursuant to sentence four of 42 U.S.C. 405(g). Signed by Judge Joseph M. Hood on 10/1/15.(KSS)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DIVISION OF KENTUCKY
NORTHERN DIVISION AT ASHLAND
ROBBIE WAYNE MCGRANAHAN,
)
)
)
)
)
)
)
)
)
)
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Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.
Case No. 0:14-CV-83-JMH
MEMORANDUM OPINION & ORDER
***
This
matter
is
before
the
Court
upon
cross-motions
for
summary judgment (DE 10, 11) on Plaintiff’s appeal, pursuant to
42
U.S.C.
§
405(g),
of
the
Commissioner’s
denial
of
his
application for disability insurance benefits.1 The Court, having
reviewed the record and the parties’ motions, will deny both
motions.
I.
The Administrative Law Judge (“ALJ”), conducts a five-step
analysis to determine disability:
1. An individual who is working and engaging in
substantial
gainful
activity
is
not
disabled,
regardless of the claimant's medical condition.
1
These are not traditional Rule 56 motions for summary judgment. Rather,
it is a procedural device by which the parties bring the administrative
record before the Court.
2. An individual who is working but does not have
a “severe” impairment which significantly limits his
physical or mental ability to do basic work activities
is not disabled.
3. If an individual is not working and has a
severe
impairment
which
“meets
the
duration
requirement and is listed in appendix 1 or is equal to
a
listed
impairment(s)”,
then
he
is
disabled
regardless of other factors.
4. If a decision cannot be reached based on
current work activity and medical facts alone, and the
claimant has a severe impairment, then the Secretary
reviews the claimant's residual functional capacity
and the physical and mental demands of the claimant's
previous work. If the claimant is able to continue to
do this previous work, then he is not disabled.
5. If the claimant
the past because of a
Secretary considers his
age, education, and past
can do other work. If
disabled.
cannot do any work he did in
severe impairment, then the
residual functional capacity,
work experience to see if he
he cannot, the claimant is
Preslar v. Sec’y of Health & Human Servs., 14 F.3d 1107, 1110
(6th
Cir.
1994)
(citing
20
C.F.R.
§
404.1520
(1982)).
“The
burden of proof is on the claimant throughout the first four
steps of this process to prove that he is disabled.” Id. “If the
analysis
claimant
reaches
is
not
the
fifth
disabled,
step
the
Secretary.” Id.
2
without
burden
a
finding
that
the
transfers
to
the
II.
On
April
disability
25,
2011,
insurance
Plaintiff
benefits
filed
(DIB),
an
application
alleging
for
disability
beginning April 1, 2011. (Tr. 92). After this application was
denied,
Plaintiff
pursued
and
exhausted
his
administrative
remedies before the Commissioner. (Tr. 1-6, 92-100, 107-129).
This case is ripe for review pursuant to 42 U.S.C. § 405(g). See
20 C.F.R. 422.210(a)
Plaintiff was 42 years old at the time he claimed to become
disabled due to a variety of problems with his neck and back and
43 years old on the date of the ALJ’s hearing decision.
(See
Tr. 89, 130, 222). Plaintiff completed the eleventh grade and
has worked as a construction laborer, auto mechanic, and tow
truck operator. (Tr. 223).
In her decision, the administrative law judge (ALJ) found
that
Plaintiff
had
severe
impairments
consisting
of
chronic
cervical, thoracic, and lumbar strain, multilevel degenerative
disc disease, chronic arthralgias, and osteoarthritis.
Finding no. 3).
impairments
were
(Tr. 94,
She found, as well, that none of Plaintiff’s
per
se
Impairments (the listings).
disabling
under
the
Listing
of
(Tr. 95, Finding no. 4); see 20
C.F.R. part 404, subpt. P, app. 1.
3
In light of the evidence
presented, the ALJ determined that Plaintiff had the residual
functional capacity to perform light work; could lift and carry
50 pounds occasionally and 25 pounds frequently; could sit and
stand and/or walk for six hours apiece in an eight-hour workday;
could frequently climb ramps/stairs; could never climb ladders,
ropes, or scaffolds; could frequently stoop, kneel, crouch, or
crawl; could not reach overhead with either arm; and needed to
avoid concentrated exposure to vibration.
no. 5).
(Tr. 95-98, Finding
Having concluded that Plaintiff could not return to his
past relevant work at step four of the analysis, the ALJ relied
on
vocational
expert
testimony
at
step
five
to
find
that
Plaintiff could perform other jobs such as usher, surveillance
system monitor, inspector, and sorter, and she concluded that
Plaintiff was not disabled. (Tr. 98-100).
Plaintiff now seeks judicial review of the Commissioner’s
final decision pursuant to 42 U.S.C. § 405(g).
III.
Pursuant to 42 U.S.C. § 405(g), this Court reviews this
administrative decision to determine “whether the Commissioner’s
decision
is
supported
by
substantial
pursuant to proper legal standards.”
evidence
and
was
made
Ealy v. Comm’r of Soc.
Sec., 594 F.3d 504, 512 (6th Cir. 2010) (citing Rogers v. Comm’r
4
of
Soc.
Sec.,
quotation
486
marks
F.3d
234,
omitted).
241
(6th
Cir.
“Substantial
2007))
evidence”
(internal
is
“such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. (quoting Lindsley v. Comm’r of
Soc.
Sec.,
quotation
560
marks
F.3d
601,
omitted).
604
In
(6th
Cir.
other
2009))
words,
as
(internal
long
as
an
administrative decision is supported by “substantial evidence,”
this Court must affirm, regardless of whether there is evidence
in the record to “support a different conclusion.” Lindsley, 560
F.3d at 604-05 (citing Felisky v. Bowen, 35 F.3d 1027, 1035 (6th
Cir. 1994)) (internal quotation marks omitted) (“administrative
findings are not subject to reversal merely because substantial
evidence
exists
conclusion”).
resolve
in
the
record
to
support
a
different
A reviewing court may not try the case de novo,
conflicts
in
the
evidence,
or
decide
questions
of
credibility. See Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 713
(6th Cir. 2012).
IV.
Plaintiff
argues,
generally,
that
the
ALJ
erred
in
her
treatment and evaluation of his treating physician’s opinion. In
the first instance, he argues that the ALJ failed to evaluate
all
medical
opinions
received
5
as
required
in
20
C.F.R.
§404.1527(c) because she did not discuss her rejection of Dr.
Stepp’s
opinion
on
his
RFC
and,
ultimately,
proper weight to Dr. Stepp’s opinion.
failed
to
give
On a related note, he
argues that the ALJ erred in favoring the opinions of a nonexamining consultative physician, Dr. Reed, over that of his
treating physician.
Finally, he argues that the ALJ erroneously
relied upon the Reed’s opinion because Reed did not have access
to all of his medical records, specifically those related to his
MRI in 2012 or Stepp’s opinion on his RFC.
For the reasons
which follow, the Court disagrees.
The Court first considers Plaintiff’s assertion that the
ALJ
erred
by
“rel[ying]
on”
the
opinion
of
a
non-examining
agency physician, Dr. Jack Reed, while also declining to give
controlling weight to Dr. Stepp’s opinion (Pl. Br. 8-9), in
formulating her assessment of Plaintiff’s residual functional
capacity.
Certainly, the current regulations do not require the
ALJ to automatically adopt the opinion of a treating physician
like Dr. Stepp, or give it greater weight than other opinions;
instead, the ALJ evaluates that opinion to determine whether it
is entitled to controlling weight, and if not, how much weight
to which it is entitled. See 20 C.F.R. § 404.1527(c).
state
agency
medical
consultants
6
are
highly
Further,
qualified
professionals who are also experts in Social Security disability
evaluation and, in the proper circumstances, an ALJ may afford
their opinions more weight than that of a treating physician.
See 20 C.F.R. § 404.1527(e)(2)(i); see, e.g., Combs v. Comm’r of
Soc.
Sec.,
459
F.3d
640,
651
(6th
Cir.
2006)
(en
banc)
(affirming ALJ’s decision adopting reviewing physician’s opinion
over treating physician’s opinion).
In
this
instance,
somewhat
inartfully,
treating
physician
incorporating
Dr.
the
Dr.
when
ALJ
appears
Stepp’s
she
Reed’s
October
identified
2011
to
opinion
have
2012
opinion
specific
into
rejected,
reasons
her
as
for
residual
functional capacity finding, stating that she found that the MRI
findings in the record were mild and functional testing did not
reveal any radiculopathy or neuropathy (Tr. 97-98).
In giving
great weight to state agency consulting physician Dr. Reed’s
opinion, the ALJ concluded that Plaintiff do light work, less
than the medium work to which Dr. Reed opined, but could lift 50
pounds
occasionally
and
25
pounds
frequently
perform overhead reaching.2 (Tr. 147-50).
and
could
not
Despite her reliance
2 Dr. Stepp stated that Plaintiff could sit and stand/walk less than two
hours in a day; occasionally lift 20 pounds; frequently lift 10 pounds;
occasionally bend, stoop, and balance; frequently climb ladders and stairs;
and would be absent more than four days a month due to his impairments (Tr.
97, 599).
7
on the MRI findings to support her decision to give greater
weight to Dr. Reed’s opinion, the ALJ did not account, however,
for the fact that both Drs. Stepp and Reed had an opportunity to
review Plaintiff’s MRI results from October 1, 2009 but only Dr.
Stepp,
who
issued
her
assessment
of
Plaintiff’s
functional
capacity in 2012, had the benefit of the results of a July 26,
2012 MRI, which indicated a wedge deformity at the L1 level, a
hemangioma
in
the
L1
vertebral
body
“which
is
unchanged,”
degenerative changes, and hypertrophic facet change, and which
she compared to the October 1, 2009, MRI results.
In
other
persuaded
words,
that
the
while
ALJ
the
has
Court
adequately
is
(Tr. at 600.)
not
immediately
articulated
why
Dr.
Stepp’s opinion is not entitled to controlling weight, 20 C.F.R.
§
404.1527(c)
opinion
(“When
controlling
we
do
weight,
not
we
give
apply
the
the
treating
factors
source's
listed
in
paragraphs (c)(2)(i) and (c)(2)(ii) of this section, as well as
the factors in paragraphs (c)(3) through (c)(6) of this section
in determining the weight to give the opinion.
We will always
give good reasons in our notice of determination or decision for
the weight we give your treating source's opinion.”), it is
certain
that
the
decision
as
it
stands
is
not
supported
by
substantial evidence because the ALJ relied upon and adopted as
8
her own the opinion of a state agency consulting physician who
did not have all of the relevant evidence from the record before
him in assessing the case and stating an opinion, namely the
2012 MRI findings.
It may be that the 2012 MRI findings are so
substantially similar to the 2009 MRI findings to make that fact
meaningless, but the ALJ would need to rely on opinions from
medical
experts
to
determine
whether
the
difference
or
lack
thereof is medically meaningful and explicitly state that or any
other “good reasons” for her decision to discount the opinion of
the treating physician, Dr. Stepp.
As a practical matter, the ALJ is not qualified to assess
the Plaintiff’s RFC on the basis of bare medical findings, and
an
ALJ's
determination
of
RFC
without
a
medical
advisor's
assessment is not supported by substantial evidence. Where the
“medical findings in the record merely diagnose [the] claimant's
exertional
impairments
and
do
not
relate
these
diagnoses
to
specific residual functional capabilities such as those set out
in 20 C.F.R. § 404.1567(a) ... [the Commissioner may not] make
the connection himself.”
Deskin v. Comm'r of Soc. Sec., 605 F.
Supp. 2d 908, 912 (N.D. Ohio 2008) (quoting Rohrberg v. Apfel,
26 F. Supp.2d 303, 311 (D. Mass. 1998)).
In this instance,
since Dr. Reed could not have reviewed the MRI findings from
9
2012 before completing his 2011 assessment upon which the ALJ
relied and the ALJ has failed to provide any reason why this
fact was not meaningful in her analysis, the Court must presume
that she made the connection between the medical findings in the
record and the specific residual functional capabilities of the
Plaintiff vis à vis those medical findings herself.
This is not
permitted.
As such her reliance on the expert testimony of the
vocational
expert
to
reach
the
conclusion
that
jobs
were
available that Plaintiff could do and that Plaintiff was not
disabled is flawed, for the hypothetical question asked of the
vocational expert was not supported by substantial evidence of
record.
See Varley v. Secretary of Health and Human Services,
820 F.2d 777 (6th Cir. 1987) (“Even then, substantial evidence
to support the Commissioner's decision may be produced through
reliance
on
this
expert
testimony
only
if
the
hypothetical
question given to the expert accurately portrays the plaintiff's
physical and mental impairments.”)
While a finding of no disability at either step four or
step five of the sequential evaluation may be appropriate, the
evidence of Plaintiff’s spinal disease compels the need for the
opinion of a medical source to assist in the translation of that
raw medical data into functional limitations. It is not this
10
Court’s errand to try the case de novo, resolve conflicts in the
evidence, or decide questions of credibility.
See Ulman v.
Comm’r of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2012).
It is,
however, this Court’s errand to determine whether substantial
evidence
supports
the
Commissioner's
decision.
Under
these
circumstances, a remand is necessary to obtain a proper medical
source opinion to support the ALJ's residual functional capacity
finding, whatever it may be upon remand.
The ALJ should also
take great care to properly articulate her rationale for the
weight
she
affords
the
treating
physician’s
opinion
in
any
future decision should she discount it in any way.
V.
The undersigned concludes that the administrative decision
must be reversed and the action remanded to the Commissioner for
further consideration. Accordingly, IT IS ORDERED:
(1)
that Plaintiff’s Motion for Summary Judgment [DE 10]
is DENIED; and
(2)
that Defendant’s Motion for Summary Judgment [DE 11]
is DENIED.
(3) that this action be remanded to the Commissioner for
further proceedings consistent herewith pursuant to sentence
four of 42 U.S.C. § 405(g).
11
This the 1st day of October, 2015.
12
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