Anderson v. SSA

Filing 14

MEMORANDUM OPINION & ORDER, 1) granted in part and denied in part 12 MOTION for Summary Judgment by James Michael Anderson 2) granted in part and denied in part 13 MOTION for Summary Judgment by Commissioner of SSA 3) action is remanded to SSA for reconsideration consistent with above opinion and 4) Judgment in favor of plaintiff shall be entered herewith. Signed by Judge Gregory F. VanTatenhove on 12/21/16.(SMT)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
ASHLAND
JAMES MICHAEL ANDERSON,
Plaintiff,
v.
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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Civil No. 0:15-cv-00066-GFVT

MEMORANDUM OPINION
&
ORDER

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James Michael Anderson seeks judicial review of an administrative decision of the
Commissioner of Social Security, which denied Anderson’s claim for supplemental security
income benefits as well as disability insurance benefits. Mr. Anderson brings this action
pursuant to 42 U.S.C. § 405(g), alleging various errors on the part of the ALJ considering the
matter. The Court, having reviewed the record and for the reasons set forth herein, will GRANT
Mr. Anderson’s Motion for Summary Judgment [R. 12] and REMAND the action to the Social
Security Administration for further consideration.
I
A
Plaintiff James Michael Anderson filed an application for Title II disability insurance
benefits and Title XVI supplemental social security in July 2013, alleging disability beginning on
January 6, 2012. [Transcript (hereinafter, “Tr.”) 21.] Anderson’s motion for summary judgment
explains that Anderson suffers from, among other things, back pain, hernias, and mental health
issues such as depression and post-traumatic stress disorder. [See R. 12-1 at 2.] Anderson’s

claims for Title II and Title XVI benefits were denied initially and upon reconsideration. [Tr.
21.] Subsequently, a hearing was conducted upon Anderson’s request. [See id.] Following the
hearing, ALJ Ronald M. Kayser issued a final decision denying both of Anderson’s claims for
benefits. [Tr. 21-28.]
To evaluate a claim of disability for both Title II disability insurance benefit claims and
Title XVI supplemental security income claims, an ALJ conducts a five-step analysis. Compare
20 C.F.R. § 404.1520 (disability insurance benefit claims) with 20 C.F.R. § 416.920
(supplemental security income claims).1 First, if a claimant is performing a substantial gainful
activity, he is not disabled. 20 C.F.R. § 404.1520(b). Second, if a claimant does not have any
impairment or combination of impairments which significantly limit his physical or mental
ability to do basic work activities, he does not have a severe impairment and is not “disabled” as
defined by the regulations. 20 C.F.R. § 404.1520(c). Third, if a claimant’s impairments meet or
equal one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, he is
“disabled.” 20 C.F.R. § 404.1520(d). Before moving on to the fourth step, the ALJ must use all
of the relevant evidence in the record to determine the claimant’s residual functional capacity
(“RFC”), which assesses an individual’s ability to perform certain physical and mental work
activities on a sustained basis despite any impairment experienced by the individual. See 20
C.F.R. § 404.1520(e); 20 C.F.R. § 404.1545.
Fourth, the ALJ must determine whether the clamant has the RFC to perform the
requirements of his past relevant work, and if a claimant’s impairments do not prevent him from

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For purposes of a disability insurance benefits claim, a claimant must show that his impairments were
disabling prior to the date on which his insured status expired. 20 C.F.R. § 404.131. Beyond this
requirement, the regulations an ALJ must follow when analyzing Title II and Title XVI claims are
essentially identical. Hereinafter, the Court provides primarily the citations to Part 404 of the relevant
regulations, which pertain to disability insurance benefits. Parallel regulations for supplemental security
income determinations may be found in Subpart I of Part 416.

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doing past relevant work, he is not “disabled.” 20 C.F.R. § 404.1520(e). Fifth, if a claimant’s
impairments (considering his RFC, age, education, and past work) prevent him from doing other
work that exists in the national economy, then he is “disabled.” 20 C.F.R. § 404.1520(f).
Through step four of the analysis, “the claimant bears the burden of proving the existence
and severity of limitations caused by her impairments and the fact that she is precluded from
performing her past relevant work.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir.
2003). At step five, the burden shifts to the Commissioner to identify a significant number of
jobs that accommodate the claimant’s profile, but the claimant retains the ultimate burden of
proving his lack of residual functional capacity. Id.; Jordon v. Comm’r of Soc. Sec., 548 F.3d
417, 423 (6th Cir. 2008).
At the outset of this case, the ALJ determined that Mr. Anderson meets the insured status
requirements of the Social Security Act through December 31, 2016. [Tr. 21, 23]; see also 20
C.F.R. § 404.131. Then at step one, the ALJ found Anderson had not engaged in substantial
gainful activity since his alleged disability onset date. [Tr. 23.] At step two, the ALJ found
Anderson to suffer from the severe impairments of status-post hernia, bulging in the lumbar
spine, mild foraminal stenosis in the cervical spine, and a recurrent major depressive disorder.
[Tr. 24.] At step three, the ALJ determined Anderson’s combination of impairments did not
meet or medically equal one of the listed impairments in 20 C.F.R. Part 404 or Part 416. [Id.]
Before moving on to step four, the ALJ considered the entire record and determined Anderson
possessed the residual functional capacity to perform light work as defined in 20 C.F.R. §§
404.1567(b) and 416.967(b), with certain limitations described as follows:
[H]e can only frequently climb ramps and stairs, balance, stoop, crouch kneel and
crawl; and must avoid climbing ropes, scaffolds and ladders. He can perform the
mental demands of unskilled work, including the ability to understand, remember
and carry out detailed instructions and deal with change in the workplace.
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[Tr. 25.] After explaining how he determined Anderson’s RFC [Tr. 25-26], the ALJ found at
step four that, based on this RFC, Anderson is capable of performing various jobs that exist in
significant numbers in the national economy. Accordingly, the ALJ concluded Anderson was
not disabled under 20 C.F.R. §§ 404.1520(g) or 416.920(g). [Tr. 27-28.] The Appeals Council
initially declined to review the ALJ’s decision [see Tr. 8], but the Appeals Council then set aside
that decision to consider additional information presented by Mr. Anderson.2 [Tr. 1-2.] After
considering the new information, however, the Appeals Council once again declined to review
the ALJ’s decision. [See id.] Anderson now seeks judicial review in this Court.
B
The Court’s review is generally limited to whether there is substantial evidence in the
record to support the ALJ’s decision. 42 U.S.C. § 405(g); Wright v. Massanari, 321 F.3d 611,
614 (6th Cir. 2003); Shelman v. Heckler, 821 F.2d 316, 319-20 (6th Cir. 1987). “Substantial
evidence” is “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.” Cutlip v.
Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (citing Richardson v. Perales,
402 U.S. 389, 401 (1971)). The substantial evidence standard “presupposes that there is a zone
of choice within which [administrative] decision makers can go either way, without interference
by the courts.” Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (quoting Baker v. Heckler,
730 F.2d 1147, 1150 (8th Cir. 1984)).
To determine whether substantial evidence exists, courts must examine the record as a
whole. Cutlip, 25 F.3d at 286 (citing Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 535

This additional information includes a description of ALJ Kayser’s alleged bias at the hearing and
supplemental medical records from Dr. Tommy von Luhrte, which are both discussed in more detail
throughout this Opinion.
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(6th Cir. 1981), cert. denied, 461 U.S. 957 (1983)). However, a reviewing court may not
conduct a de novo review, resolve conflicts in the evidence, or make credibility determinations.
Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2012); see also Bradley v. Sec’y of
Health & Human Servs., 862 F.2d 1224, 1228 (6th Cir. 1988). Rather, if the Commissioner’s
decision is supported by substantial evidence, it must be affirmed even if the reviewing court
would decide the matter differently, and even if substantial evidence also supports the opposite
conclusion. See Ulman, 693 F.3d at 714; Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007);
Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999).
II
A
The Court first addresses Mr. Anderson’s contention that ALJ Kayser treated him
unfairly or conducted his hearing with bias. [See R. 12-1 at 9-12.] When considering a claim
that an ALJ’s decision has been colored by bias, the Court must begin with the “presumption that
policymakers with decisionmaking power exercise their power with honesty and integrity.”
Collier v. Comm’r of Soc. Sec., 108 F. App’x 358, 363-64 (6th Cir. 2004) (citing Navistar Int’l
Transportation Corp. v. United States Envt’l Protection Agency, 941 F.2d 1339, 1360 (6th Cir.
1991)). “The burden of overcoming the presumption of impartiality rests on the party making
the assertion [of bias], and the presumption can be overcome only with convincing evidence that
a risk of actual bias of prejudgment is present.” Id. (internal quotation marks and citations
omitted). That is to say, “any alleged prejudice on the part of the decisionmaker must be evident
from the record and cannot be based on speculation or inference.” Id.
The Court notes Mr. Anderson did preserve this issue for review, because he presented
allegations of bias and a request for a new ALJ to the Appeals Council. [See Tr. 2]; Wells v.

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Apfel, 234 F.3d 1271 (6th Cir. 2000) (explaining a claimant’s failure to request withdrawal of an
ALJ during the hearing or in his request for review before the Appeals Council would constitute
a waiver of his right to object to the ALJ’s conduct). Nonetheless, Anderson is not entitled to
relief on this claim. The record does suggest, as Mr. Anderson contends, that the ALJ made
various offhand and inappropriate comments regarding his marital history and personal
relationships. [See Tr. 33-73.] However, the Sixth Circuit has repeatedly found that an ALJ’s
“unwarranted skepticism” towards a claimant, as well as an ALJ’s “obvious frustration,
emotional mannerisms and abruptness” are insufficient to establish actual bias. Collier, 108 F.
App’x at 364 (citing Wells, 234 F.3d 1271).
After carefully reading the entire hearing transcript, the Court finds an objective listener
would not conclude the ALJ conducted the hearing, which covered a wide variety of topics,
unfairly. At most, ALJ Kayser was “demeaning and discourteous” to Mr. Anderson, which,
while unfortunate, does not suffice to overcome the presumption of impartiality. See id. The
undersigned joins with the Court of Appeals in reminding ALJs of the importance of treating all
claimants with basic respect despite the grueling nature of their tasks. See Wells, 234 F.3d 1271.
Still, the record before the Court does not require remand and reassignment of Anderson’s case
due to any alleged bias or adversarial behavior on the part of ALJ Kayser.
B
Mr. Anderson also alleges the ALJ failed to properly consider the opinion of his treating
physician Dr. Tommy von Luhrte. Anderson draws the Court’s attention to two particular parts
of the record he argues the ALJ should have considered: an April 2012 assessment by Dr. von
Luhrte indicating Anderson should refrain from lifting more than ten pounds [Tr. 281] and an

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April 2015 opinion recommending Anderson refrain from lifting more than five pounds. [Tr.
389-90.]
The latter opinion has no bearing on the case, as it was not available to the ALJ at the
time he made his decision and was submitted by Mr. Anderson only to the Appeals Council.
[See Tr. 5-6.] The Sixth Circuit “has repeatedly held that evidence submitted to the Appeals
Council after the ALJ’s decision cannot be considered part of the record for purposes of
substantial evidence review.” Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). The
information was simply not available to the ALJ when he reviewed Mr. Anderson’s claims and
thus provides no grounds whatsoever for Anderson to now argue the ALJ improperly ignored it.
The ALJ’s failure to even mention the other medical evidence from Dr. von Luhrte,
however, is concerning. The Social Security Administration’s regulations provide that:
If we find that a treating source's opinion on the issue(s) of the nature and severity
of your impairment(s) is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in your case record, we will give it controlling weight. When we do not
give the treating source's opinion controlling weight, we apply the factors listed in
paragraphs (d)(2)(i) and (d)(2)(ii) of this section, as well as the factors in
paragraphs (d)(3) through (d)(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.
20 C.F.R. § 404.1527(d)(2). The other factors which must be considered when the treating
source opinion is not given controlling weight include the length of the treatment relationship,
the frequency of examination, the nature and extent of the treatment relationship, the
supportability of the opinion, the consistency of the opinion with other evidence in the record,
and whether the treating source is a specialist. 20 C.F.R. §§ 404.1527(d)(2)(i)-(ii), d(3)-d(5);
416.927(d)(2)(i)-(ii), d(3)-d(5).

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The regulations also contain a clear procedural requirement that the ALJ must give “good
reasons” for discounting a treating physician's opinion, specific enough “to make clear to any
subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion
and the reasons for that weight.” 20 C.F.R. §§ 1527(d)(2), 416.927(d)(2); Social Security Ruling
(“SSR”) 96-2, 1996 WL 374188, at *5 (July 2, 1996). The purpose of the reason-giving
requirement is to allow “claimants [to] understand the disposition of their cases, particularly
where a claimant knows that his physician has deemed him disabled and therefore might be
bewildered when told by an administrative bureaucracy that she is not, unless some reason for
the agency's decision is supplied.” Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (citation
and internal quotation marks omitted). In addition, the requirement “ensures that the ALJ applies
the treating physician rule and permits meaningful appellate review of the ALJ's application of
the rule.” Id. Failure to follow the procedural requirement denotes a lack of substantial
evidence, even where the ALJ's conclusion may otherwise be justified on the record. Id. at 546.
“To hold otherwise, and to recognize substantial evidence as a defense to non-compliance with
§ 1527(d)(2), would afford the Commissioner the ability to violate the regulation with impunity
and render the protections rendered therein illusory.” Id.
Admittedly, the eleven pages of medical evidence from Dr. von Luhrte are somewhat
irregular. [See Tr. 281-92.] For one, his handwritten treatment notes are barely legible. Also,
his medical opinion that Mr. Anderson may lift only ten pounds is conclusory, and he maintains
Anderson has been totally disabled since January 6, 2012, which is a determination reserved
solely for the Commissioner. See, e.g., 20 C.F.R. § 404.1527. But even where a medical source
contains opinions reserved for the Commissioner, a relevant Social Security Ruling makes clear
that the source’s opinions “must not be disregarded.” SSR 96-5p, 1996 WL 362206, at *34474

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(July 2, 1996). The ALJ’s decision must still explain the weight and consideration given to the
evidence. Id.
It is true that the records from Anderson’s treatment with Dr. von Luhrte do not contain
any residual functional capacity finding prepared solely for this disability proceeding but,
instead, stem from Anderson’s underlying worker’s compensation case. However, the record is
clear that Anderson considers von Luhrte his treating physician [see Tr. 216 (identifying Dr. von
Luhrte as his primary care physician in his disability application)], and at least one of the
Commissioner’s consultative examiners also identifies von Luhrte as such. [Tr. 337.] Further,
prior to Mr. Anderson’s request for a hearing, various notices sent from the Social Security
Administration to Anderson indicate that Dr. von Luhrte’s records were received on September
3, 2013, as well as considered by the Administration in its initial denials of Anderson’s disability
claims. [See Tr. 116, 122.] The ALJ’s complete disregard of Dr. von Luhrte surely defies the
spirit of the reason-giving requirement, which exists to protect Mr. Anderson and facilitate his
comprehension of these proceedings. See Wilson, 378 F.3d at 544.
Moreover, Dr. von Luhrte’s records are more germane to Mr. Anderson’s disability
claims than the Commissioner makes them out to be. The Commissioner argues the von Luhrte
notes are concerned solely with Anderson’s worker’s compensation claim, which in turn
stemmed from a finger injury that was not even alleged as an impairment in Anderson’s
disability application. [See R. 13 at 10-11.] Actually, Anderson’s worker’s compensation claim
was based on work-related inguinal hernias [see Tr. 266-70], and that injury is listed as one of
Anderson’s relevant medical conditions in his disability application. [Tr. 213 (listing “hernia,
compressed disk in back, and pain in shoulders” as physical conditions limiting his ability to

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work).] Dr. von Luhrte’s records, then, although from the worker’s compensation proceeding,
still relate to a relevant injury for purposes of Anderson’s disability claims.
In the end, the Court finds the ALJ’s failure to even mention Dr. von Luhrte’s findings
warrants remand. The Court will not allow the Social Security Administration to circumvent
important procedural requirements, even if the ALJ’s decision proves otherwise justified. See
Wilson, 378 F.3d at 546.
C
Finally, the Court also notes that Anderson points out several ways the ALJ allegedly
misconstrued Anderson’s medical records or left out other important information. [See R. 12-1
at 6-8.] Because the Court is ordering remand based on the procedural error discussed above, it
will not address these arguments in detail. But for purposes of this case going forward, the Court
does clarify a misstatement in the ALJ’s decision regarding one of Mr. Anderson’s mental health
diagnoses.
At step two of the evaluation, the ALJ noted the following: “The claimant also alleged
that he had post-traumatic stress disorder after his wife died. While it has been stated that he had
been grieving, there is no evidence of being diagnosed with post-traumatic stress disorder.” [Tr.
24.] In actuality, Mr. Anderson does have a post-traumatic stress disorder diagnosis from Dr.
George Mercado, dated January 26, 2015. [See Tr. 377, 379.] The Commissioner has conceded
the same [see R. 13 at 8], and the ALJ is directed to take that diagnosis into account upon
remand.
III
Being otherwise sufficiently advised, the Court hereby ORDERS as follows:
1. Plaintiff James Michael Anderson’s Motion for Summary Judgment [R. 12] is

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GRANTED IN PART AND DENIED IN PART;
2. The Commissioner’s Motion for Summary Judgment [R. 13] is GRANTED IN PART
AND DENIED IN PART;
3. This action is REMANDED to the Social Security Administration Office of Disability
Adjudication and Review for reconsideration consistent with the above Opinion; and
4. Judgment in favor of the Plaintiff shall be entered contemporaneously herewith.
This the 21st day of December, 2016.

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