Booth v. SSA

Filing 8

MEMORANDUM OPINION AND ORDER: 1. Plaintiff's 6 motion for summary judgment is GRANTED; 2. Defendant's 7 motion for summary judgment is DENIED; 3. This action is REMANDED to the Commissioner under sentence four of 42 U.S.C. § 405(g) with instructions to adequately explain his treatment of Dr. Shearer's opinion, consistent with this Memorandum Opinion and Order; and 4. A Judgment will be entered contemporaneously herewith. Signed by Judge David L. Bunning on 2/11/2014. (STC)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
AT LEXINGTON
CIVIL ACTION NO. 13-75-DLB
BILLY RAY BOOTH

vs.

PLAINTIFF

MEMORANDUM OPINION AND ORDER

CAROLYN W. COLVIN, Acting
Commissioner of Social Security

DEFENDANT

*********************
Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review
of an administrative decision of the Commissioner of Social Security. The Court, having
reviewed the record and for the reasons set forth herein, hereby reverses and remands the
decision of the Commissioner.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff Billy Ray Booth filed his current applications for Supplemental Security
Income (SSI) and Disability Insurance Benefits (DIB) payments, alleging disability as of
February 19, 2009. (Tr. 7-25 and 151-59). Plaintiff’s claim was denied initially and on
reconsideration. (Tr. 87-90 and 94-96). At Plaintiff’s request, Administrative Law Judge
Gregory O. Varo conducted an administrative hearing on September 16, 2011. (Tr. 97 and
124-44). On November 3, 2011, ALJ Varo ruled that Plaintiff was not entitled to benefits.
(Tr. 7-25). This decision became the final decision of the Commissioner when the Appeals
Council denied review on January 15, 2013. (Tr. 1-4).

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On March 14, 2013, Plaintiff filed the instant action. (Doc. # 1). The matter has
culminated in cross motions for summary judgment, which are now ripe for review. (Docs.
# 6 and 7).
II. DISCUSSION
A.

Overview of the Process
Judicial review of the Commissioner’s decision is restricted to determining whether

it is supported by substantial evidence and was made pursuant to proper legal standards.
See Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994).
“Substantial evidence” is defined as “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.” Id. Courts are not to conduct a de novo review, resolve
conflicts in the evidence, or make credibility determinations. See id. Rather, we are to
affirm the Commissioner’s decision, provided it is supported by substantial evidence, even
if we might have decided the case differently. See Her v. Comm’r of Soc. Sec., 203 F.3d
388, 389-90 (6th Cir. 1999).
The ALJ, in determining disability, conducts a five-step analysis. Step 1 considers
whether the claimant is still performing substantial gainful activity; Step 2, whether any of
the claimant’s impairments are “severe”; Step 3, whether the impairments meet or equal
a listing in the Listing of Impairments; Step 4, whether the claimant can still perform his past
relevant work; and Step 5, whether significant numbers of other jobs exist in the national
economy which the claimant can perform. As to the last step, the burden of proof shifts
from the claimant to the Commissioner. See Jones v. Comm’r of Social Sec., 336 F.3d

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469, 474 (6th Cir. 2003); Preslar v. Sec’y of Health & Human Servs., 14 F.3d 1107, 1110
(6th Cir. 1994).
B.

The ALJ’s Determination
At Step 1, the ALJ found that Plaintiff had not engaged in substantial gainful activity

since the alleged onset date. (Tr. 12). At Step 2, the ALJ found Plaintiff’s degenerative
disc disease of the lumbar spine, obesity, and a depressive disorder with anxiety to be
severe impairments within the meaning of the regulations. (Id.).
At Step 3, the ALJ found that Plaintiff does not have an impairment or combination
of impairments listed in, or medically equal to an impairment listed in 20 CFR Part 404,
Subpart P, Appendix 1. (Id.). In doing so, the ALJ found that claimant’s degenerative disc
disease does not meet the requirements of Listing 1.02 (major dysfunction of a joint) or
1.04 (disorders of the spine) because “the record does not demonstrate ineffective
ambulation or the need for a hand-held assistive device.” (Tr. 15). Although obesity has
been deleted from the listing of impairments, the ALJ gave “consideration to the fact that
obesity can cause limitation of function” in evaluating Steps 3, 4 and 5. (Tr. 16). The ALJ
also determined that claimant’s depressive disorder with anxiety did not meet the
requirements of 12.04 (affective disorders) or 12.06 (anxiety related disorders) because
“claimant’s mental impairments do not cause at least two ‘marked’ limitations, or one
‘marked’ limitation and ‘repeated’ episodes of decompensation.” (Tr. 17).
At Step 4, the ALJ concluded that Plaintiff has the residual functional capacity (RFC)
to perform limited light work activity, defined in 20 CFR 404.1567(b) as follows:
Lift 10 pounds frequently and 20 pounds occasionally; Stand/Walk 6 hours
in an 8 hour day, but not more than 1 hour at a time; Sit 6 hours in an 8 hour
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day, but not more than 1 hour at a time; Needs to shift positions hourly;
Occasionally climb ramps and stairs; Never climb ladders, ropes or scaffolds;
Occasionally stoop and kneel; Never crouch or crawl; Avoid concentrated
exposure to vibration; Avoid all exposure to unprotected heights; Limited to
simple, repetitive tasks; Requires a non-public work setting with [n]o fastpaced production quotas.
(Tr. 17-18). Based upon this RFC, the ALJ concluded at Step 4 that Plaintiff was unable
to perform any past relevant work. (Tr. 19).
Accordingly, the ALJ proceeded to the final step of the sequential evaluation. At
Step 5, the ALJ found that there were a significant number of jobs in the national economy
that Plaintiff could perform. (Tr. 20). The ALJ based this conclusion on testimony from a
vocational expert (VE), in response to a hypothetical question assuming an individual of
Plaintiff's age, education, work experience, and RFC. (Id.). The VE testified that a
hypothetical individual with Plaintiff's vocational profile and RFC could work as a
laborer/hand packer (3,200 jobs in Kentucky/184,000 nationally), machine operator (3,200
jobs in Kentucky/184,000 nationally), and in bench assembly (3,600 jobs in
Kentucky/208,000 nationally). (Id.). Based on the testimony of the VE and Plaintiff’s age,
education, work experience, and RFC, the ALJ found that Plaintiff is capable of making a
successful adjustment to other work and thus concluded that he was not under a
"disability," as defined by the Social Security Act. (Tr. 21).
C.

Analysis
Plaintiff advances three arguments on appeal. (Doc. # 6). First, Plaintiff argues that

the ALJ erred in deciding not to give controlling weight to the opinion of Plaintiff’s treating
physician and in failing to provide “good reasons” for his decision. Second, Plaintiff asserts
that the ALJ erred in evaluating Plaintiff’s credibility and complaints of pain. Third, Plaintiff
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contends that the ALJ erred in relying on the VE’s answers to improper hypothetical
questions.
1.

The ALJ erred in his application of the “treating physician” rule.

An ALJ must give a treating source’s opinion controlling weight “if he finds the
opinion ‘well supported by medically acceptable clinical and laboratory diagnostic
techniques’ and ‘not inconsistent with the other substantial evidence in the case record.’”
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004)(quoting 20 C.F.R. §
404.1527(d)(2)). If the ALJ decides that the treating source’s opinion is not entitled to
controlling weight, the ALJ must consider the following factors in order to determine how
much weight to give the opinion: (1) the length of the treatment relationship and the
frequency of the examination; (2) the nature and extent of the treatment relationship; (3)
supportability of the opinion; (4) consistency of the opinion with the record as a whole; and
(5) the specialization of the treating source. Id.
The regulations require the ALJ to give “good reasons” for the weight given to a
treating source’s opinion. 20 C.F.R. § 404.1527(d)(2). Accordingly, “a decision denying
benefits ‘must contain specific reasons for the weight given to the treating source’s medical
opinion, supported by the evidence in the case record, and must be sufficiently specific 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.’” Soc. Sec. Rul. 96-2p, 1996 WL
374188 at *5 (1996); see also Wilson, 378 F.3d at 546 (vacating and remanding the case
due to the ALJ’s failure to follow these guidelines); Rogers v. Comm’r of Soc. Sec., 486
F.3d 234, (6th Cir. 2007)(finding ALJ’s conclusion that “[o]nce again, in assessing the
evidence in light of Section 404.1527 of the Social Security Administration Regulations No.
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4, the record does not support the limitations of the severity suggested by Dr. Stein”
insufficient to satisfy the “good reasons” requirement). This “good reasons” requirement
not only enables claimants to better understand the disposition of their case, it allows for
meaningful review of the ALJ’s decision-making process. Wilson, 378 F.3d at 544.
Case law suggests that ALJs should not give a treating source’s opinion less than
controlling weight simply because another medical source reaches a conflicting conclusion.
Hensley v. Astrue, 573 F.3d 263, 266-67 (6th Cir. 2009)(vacating and remanding the case
because the ALJ “made his own medical evaluation [by] reaching a conclusion that lay
between the two conflicting absolute views of the physicians”). Social security disability
cases commonly involve conflicting medical assessments. Id. If ALJs were allowed to
disregard treating source opinions every time another source presented contrary
conclusions,” it would be a rare case indeed in which [controlling] weight would be
accorded.” Id.
An ALJ’s non-compliance with 20 C.F.R. § 404.1527(c)(2) cannot be excused simply
because his decision is otherwise supported by substantial evidence in the record. Wilson,
378 F.3d at 546. To hold otherwise, and “recognize substantial evidence as a defense to
non-compliance with [20 C.F.R. § 404.1527(d)(2)], would afford the Commissioner the
ability [to] violate the regulation with impunity and render the protections promised therein
illusory.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 407 (6th Cir. 2009)(internal
citations omitted). But see Nelson v. Comm’r of Soc. Sec., 195 Fed. Appx. 462, (6th Cir.
2006)(holding that the ALJ’s failure to specify the weight given to treating sources’ opinions
was harmless error because “the ALJ’s evaluation of Nelson’s mental impairments
indirectly attacks both the supportability of Dr. Cook’s and Dr. Peterson’s opinions and the
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consistency of those opinions with the rest of the record evidence”).
Between November 16, 2010 and June 2, 2011, Dr. Gary Shearer treated Plaintiff
for back pain and anxiety. (Tr. 355-88). On June 16, 2011, Dr. Shearer also prepared a
Physical RFC Assessment for Plaintiff, in which he opined that Plaintiff was “[i]ncapable of
even “low stress” jobs. (Tr. 390). Although the ALJ acknowledged Dr. Shearer’s status as
a treating physician, he proceeded to discount his opinion as follows:
The treating physician assessment at Ex. 10F has been considered. The
limitations in that assessment are found to be excessive and not consistent
with the overall treatment records. The claimant’s representative asserted
that the 3/20/09 MRI at Ex. 2F, p. 38 was sufficient to support the extreme
limitations by the treating physician. The undersigned disagrees, but finds
that it does support the significant limitations in the residual functional
capacity.
(Tr. 19). The ALJ ultimately concluded that “[t]he Kentucky Disability Determination
Services’ assessment for medium work and Dr. Shearer’s opinion of no work at all
represent two extremes, neither of which are found to be warranted.” (Id.).
This analysis does not satisfy the procedural requirements outlined in 20 C.F.R. §
404.1527(d)(2). The ALJ fails to explain why the treating physician’s opinion was not
supported by the evidence and cites to no treatment records that would buttress this
proposition. Furthermore, the ALJ fails to specify what weight he did give to Dr. Shearer’s
opinion, based on his use of the CFR factors. Simply stating that he “split the difference”
between a treating source’s opinion and a state agency consultant’s assessment because
they represented two extremes is not a satisfactory explanation, as the Hensley opinion
makes clear.
Although the Commissioner does not directly argue that the ALJ’s failure to give
“good reasons” is harmless error, she cites to several portions of the record that support
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the ALJ’s findings. In essence, the Commissioner invites this Court to overlook gaps in the
analysis because there is enough evidence in the record to support the ALJ’s ultimate
conclusion. However, the law clearly prohibits the Court from accepting this logic, because
to do so would thwart the very purpose of these procedural requirements. Accordingly, the
Court will remand the Commissioner’s decision for further proceedings.
2.

The Court does not reach Plaintiff’s remaining arguments

Plaintiff’s remaining arguments are as follows: (1) the ALJ erred in evaluating
Plaintiff’s credibility and complaints of pain; and (2) the ALJ erred in relying on the VE’s
answers to improper hypothetical questions. Ordinarily, the Court would be inclined to
address such arguments to provide the ALJ further guidance on remand. However, each
of these arguments depend, to one degree or another, on the ALJ’s treatment of Dr.
Shearer’s opinion. Therefore, the Court cannot address these arguments until the ALJ has
re-considered his treatment of that opinion on remand.
III.

CONCLUSION

For the reasons stated herein, the Court concludes that the ALJ failed to failed to
follow SSA regulations and a remand is required. Accordingly, for the reasons stated,
IT IS ORDERED as follows:
1.

Plaintiff’s motion for summary judgment (Doc. # 6) be, and it hereby is,

GRANTED;
2.

Defendant’s motion for summary judgment (Doc. # 7) be, and it hereby is,

DENIED;

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3.

This action be, and it is, hereby REMANDED to the Commissioner under

sentence four of 42 U.S.C. § 405(g) with instructions to adequately explain his treatment
of Dr. Shearer’s opinion, consistent with this Memorandum Opinion and Order; and
4.

A Judgment will be entered contemporaneously herewith.

This 11th day of February, 2014.

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