Conn v. SSA

Filing 14

MEMORANDUM OPINION & ORDER: (1) The decision of the Commissioner is REVERSED, with this action REMANDED; (2) Plaintiff's Motion for Summary Judgment [DE 11 ] is GRANTED IN PART AND DENIED IN PART; (3) Defendant's Motion for Summary Judgment [DE 13 ] is GRANTED IN PART AND DENIED IN PART; and (4) Judgment reversing and remanding this matter will be entered contemporaneously herewith. Signed by Judge Joseph M. Hood on 11/5/2018.(RBB)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION AT LONDON
RITA LYNN CONN,
Plaintiff,
v.
NANCY C. BERRYHILL,
ACTING COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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Case No.
6:18-cv-009-JMH
MEMORANDUM OPINION
AND ORDER

***
Plaintiff Rita Lynn Conn brings this matter under 42 U.S.C.
§ 405(g) seeking judicial review of an administrative decision of
the Acting Commissioner of Social Security.

The Court, having

reviewed the record and the cross-motions for summary judgment
filed by the parties, will REVERSE and REMAND the Commissioner’s
decision because the ALJ’s finding pertaining to the severity of
Conn’s

gastrointestinal

impairments

is

not

supported

by

substantial evidence and the ALJ committed reversible error at
multiple steps of the sequential evaluation.
I.

Standard for Determining Disability

Under the Social Security Act, a disability is defined as
“inability to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12

months.”

42 U.S.C. § 423(d)(1)(A).

In determining disability, an

Administrative Law Judge (“ALJ”) uses a five-step analysis.

See

Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003).
Step

One

considers

substantial
claimant’s

whether

gainful

the

activity;

impairments

are

claimant

Step

Two,

“severe”;

Step

is

still

whether
Three,

performing

any

of

the

whether

the

impairments meet or equal a listing in the Listing of Impairments;
Step Four, whether the claimant can still perform past relevant
work; and, if necessary, Step Five, 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.

Id.; see also Preslar v. Sec’y of

Health & Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994).
II.
Conn

Procedural and Factual History

initially

filed

an

application

for

Title

XVI

Supplemental Social Security Insurance Benefits in August 2014,
alleging disability as of July 1, 2014.
disability

due

to

incontinence,

[TR 171].

stress,

nerves,

Conn alleged
high

pressure, thyroid issues, diabetes, and heart problems.

blood

[TR 213].

Prior to her current application for disability benefits,
Conn was treated by Dr. John Michael Watts, her primary care
physician, beginning in late 2013 for numerous physical and mental
health complaints including chronic pain and numbness, frequent
bowel movements, incontinence, abdominal cramping, headaches, hand
2

tremors, fatigue, joint pain, diabetes, depression, and anxiety,
among other ailments.

[TR 318-21, 353-54, 383-84, 445-56].

Watts opined that Conn was disabled.

Dr.

[TR 359, 373].

Due to complaints of abdominal cramping, incontinence, and
frequent bowel movements, Dr. Watts referred Conn to Dr. Morris
Beebe, a gastroenterologist.
were performed on Conn.

[TR 322-29].

[TR 325].

An EGD and colonoscopy

These tests revealed a small

hiatal hernia, mild nonerosive gastritis, diverticulosis, and a
rectal polyp.

[Id.].

After Conn filed her application for benefits, Dr. Robert
Nold performed a consultative evaluation of Conn.

[TR 344-50].

During the consultative examination, Conn reported incontinence of
both the bowel and bladder due to stress, anxiety issues, high
blood pressure, low thyroid, type 2 diabetes, and heart problems.
[TR 344].

Based on the history provided by Conn, limited medical

records, and a physical examination, Dr. Nold reported that Conn
had a normal range of motion in the lower back.
Nold

also

reported

that

Conn

may

have

[TR 347].

difficulty

Dr.

squatting,

standing, stooping, and kneeling due to osteoarthritis in her right
knee.

[Id.].

Additionally, Nold noted that “[f]ine manipulation

would be difficult because of her tremor involving her hands and
forearms.”

[Id.].

Nold stated that Conn’s problems with bowel

and bladder incontinence had not been fully explored but noted
that Conn had a colonoscopy in early 2014 that showed one polyp
3

and

the

disease.

possibility
[Id.].

of

irritable

bowel

syndrome

and

Crohn’s

Nold also reviewed Conn’s history of chest pain

and noted that she had a heart catheterization in 2013 and was
placed on medication for coronary artery disease. [Id.]. Finally,
Nold mentioned that Conn’s high blood pressure, type 2 diabetes,
and migraine headaches are managed with medication.

[Id.].

On October 17, 2014, Dr. Marvin Bittinger, a state agency
physician, opined that Conn had exertional limitations but that
she could occasionally lift and carry twenty pounds and could
frequently carry ten pounds.

[TR 76-78].

Additionally, Bittinger

stated that Conn could stand and walk, with normal breaks, for a
total

of

about

six

hours

in

an

eight-hour

workday.

[Id.].

Finally, Bittinger found that Conn could occasionally climb ramps
and stairs, kneel, crouch, and crawl and that Conn could frequently
balance and stoop.

[Id.].

Subsequently, on May 4, 2015, Dr. William Waltrip performed
a consultative evaluation of Conn.

[TR 386-92].

Conn reported

symptoms and medical disorders similar to those reported at her
previous examination with Dr. Nold, including, incontinence, high
blood

pressure,

stress

and

diabetes, and heart problems.
Conn

reported

bowel

nerve

[TR 386].

incontinence

immediately after eating.

problems,

[Id.].

4

and

thyroid

problems,

Dr. Waltrip noted that
that

she

has

diarrhea

After his physical examination and review of Conn’s medical
history, Dr. Waltrip observed that Conn had problems with nervous
disorder and stress that had been previously evaluated.

[TR 389].

Additionally, Waltrip observed that Conn has a gastrocolic reflex.
[Id.].

Furthermore, Dr. Waltrip observed that Conn was “very

minimally limited in her ability to walk, stand or sit.”

[Id.].

Waltrip stated that Conn should be able to lift objects of 25-30
pounds without limitation, that Conn had good strength of grip,
and could perform fine and gross manipulations.

[Id.].

Finally,

Waltrip noted that Conn had no limitation of hearing, seeing, or
speaking.

[Id.].

In June 2015, Dr. Donna Sadler, a state agency physician,
made findings that were analogous to the previous findings of Dr.
Bittinger.

[TR 96-100].

Sadler opined that Conn could stand or

walk, with normal breaks, for a total of four hours and that Conn
could sit, with normal breaks for about six hours in an eight-hour
workday.

[TR 97].

Finally, Dr. Sadler found that Conn had

unlimited balance but that she could only crouch occasionally.
[Id.].
Finally, the record was reviewed by two state agency health
consultants, Drs. Maxine Ruddock and Alex Guerrero.
94-95].

[TR 74-75,

The state agency consultants observed that Conn had

anxiety in the context of fear of soiling herself.

5

[TR 75, 95].

Even so, the consultants both found that Conn had non-severe mental
impairment.

[TR 74-75, 94-95].

Conn’s claim for benefits was denied initially and upon
reconsideration. [TR 79, 101].

Subsequently, Conn pursued her

claims at an administrative hearing in front of ALJ Jonathan Leiner
on July 25, 2016.

[TR 33-68].

Conn was represented by an attorney

at the hearing.
At the hearing, Conn testified that her “bowels” were her
most serious medical issue.

[TR 38].

lost approximately ten pounds.
gastrointestinal

issues

led

Conn testified that she had

[TR 39].
to

frequent

Conn reported that her
bowel

movements

and

required her to use the restroom ten times per day on average.
[Id.].

Additionally, Conn reported issues with incontinence and

reported that Dr. Watts had prescribed Amodil for her symptoms.
[TR 40-41].

Furthermore, Conn reported that she used over-the-

counter medications and had tried dieting to relieve her symptoms.
[Id.].
In addition to gastrointestinal issues, Conn testified about
other medical issues such as radiating neck pain, fibromyalgia,
tremors in her hands and arms, arthritis, heart issues, migraines,
and sleep apnea, among other conditions and symptoms.

[TR 42-49,

54-62].
Finally, Jane Hall, a vocational expert, also testified at
the hearing. [TR 62-67]. Hall testified that Conn was approaching
6

retirement age, had a high-school education, and had worked as a
cardiac monitor at a regional hospital.

[TR 63].

Hall explained

that the position of a cardiac monitor is a sedentary position and
is considered skilled.

[Id.].

Hall testified that the Dictionary

of Occupational Titles (“DOT”) Code for the position of cardiac
monitor is 078.365-010.

[Id.].

The ALJ presented two hypotheticals to the vocational expert.
First, the ALJ asked the vocational expert to assume a hypothetical
individual of Conn’s age, education, and work experience, with
limitations such as only being able to walk or stand four to eight
hours, only being able to sit four hours, and migraine headaches
lasting between two to eight hours per day two days per week.
64-65].

[TR

The vocational expert responded that “[t]his individual

could not complete a normal workweek.”

[TR 65].

Second, the ALJ asked the vocational expert to assume a
hypothetical

individual

of

Conn’s

age,

education,

and

work

experience, who can stand and walk for four hours in an eight-hour
workday, can sit for six hours in an eight-hour workday, and can
perform

frequent,

but

not

handling, among other factors.

repetitive

bilateral

[TR 65-66].

feeling

and

The vocational expert

testified that this hypothetical individual could perform past
work.

[TR 66].

7

ALJ Leiner issued an unfavorable decision on January 4,
2017, denying Conn’s claims and finding that she was not disabled.
[TR 18-27].
At the first step of the sequential analysis, the ALJ found
that Conn had not engaged in substantial gainful activity since
July 21, 2014.

[TR 20].

At step two, the ALJ found that Conn suffered from the
following severe impairments: neck and back disorders, tremor,
knee disorder, diabetes mellitus, migraine headaches, and obesity.
[TR 20-23].
severe

The ALJ determined that Conn did not suffer from any

gastrointestinal

obstructive

sleep

apnea,

impairment,
or

mental

cardiac

impairment,

impairment.

[TR

22].

Pertaining to Conn’s gastrointestinal impairment, specifically
bowel incontinence, the ALJ found that this impairment was not
severe because the documentary record shows no evidence of weight
loss.

[TR 22].

Additionally, the ALJ considered the four broad

functional areas for evaluating mental disorders and found that
Conn’s

mental

impairments

resulted

in

no

limitation and no episodes of decompensation.

more

than

a

mild

[TR 22-23].

At step three, the ALJ concluded that Conn did not experience
any

impairment

or

combination

of

impairments

that

meets

or

medically equals the severity of any of the listed impairments in
20 C.F.R. pt. 404, subpt. P, app. 1.

[TR 23].

In making this

determination, the ALJ found that Conn’s neck, back, and knee
8

disorders failed to meet or equal the severity of any of the
listing requirements, particularly Section 1.02 and 1.04.

[Id.].

Additionally, the ALJ found the neither Conn’s migraine headaches
nor her tremors met or equaled the severity of any of the listing
requirements, specifically Section 11.01.

[Id.].

Finally, the

ALJ concluded that Conn’s obesity, viewed alone and in combination,
failed

to

meet

the

listing

requirements

and

that

endocrine

disorders, such as diabetes mellitus, were to be evaluated based
on the results those disorders had on other body systems.

[Id.].

At step four, the ALJ found that Conn retained the residual
function capacity to perform a broad range of light work.
23].

The

ALJ

explained

that

Conn

can

lift

twenty

[TR

pounds

occasionally and ten pounds regularly, can stand and walk for four
hours in an eight-hour workday, can sit for six hours in an eighthour workday, and can perform frequent bilateral feeling and
handling.

[TR 23-24].

The ALJ noted that Conn testified that her

worst impairment were gastrointestinal issues but explained that
Conn had not required additional specialized medical treatment.
[TR 24].

The ALJ also noted Conn’s radiating neck pain and

inability to walk for long periods of time.
Even

so,

the

ALJ

found

“that

the

[Id.].
claimant’s

medically

determinable impairments cannot reasonably be expected to impose
symptoms of the intensity, persistence, and limiting effects as
[Conn] alleges.” [TR 24]. Additionally, the ALJ found that Conn’s
9

subjective allegations and hearing testimony were unpersuasive.
[TR 25].

Again, the ALJ emphasized that Conn’s lack of weight

loss appeared inconsistent with her asserted debilitating diarrhea
and bowel incontinence.
controlling

weight

to

[Id.].
the

The ALJ appears to have assigned

opinions

of

physicians, Dr. Nold and Dr. Waltrip.

the

two

[TR 26-27].

state

agency

As a result,

the ALJ concluded that Conn could perform past relevant work as a
cardiac monitor and did not proceed to step five.

[TR 27].

The Appeals Council denied review of Conn’s claim.
1-5].

[TR

Having exhausted her administrative remedies, Conn pursued

judicial review of the Commissioner’s decision by filing this
action on January 6, 2018.

[DE 2].

Pursuant to the Court’s

Standing Scheduling Order [DE 10], Conn moved for summary judgment
on June 3, 2018, [DE 11] and the Commissioner moved for summary
judgment on June 29, 2018 [DE 13].

As a result, this matter is

ripe for review.
III. Standard of Review
When reviewing the ALJ’s ruling, this Court may not “try the
case de novo, resolve conflicts in evidence, or decide questions
of credibility.”

Ulman v. Comm’r of Soc. Sec, 693 F.3d 709, 713

(6th Cir. 2012).

This Court determines only whether the ALJ’s

ruling is supported by substantial evidence and was made pursuant
to proper legal standards.

Cutlip v. Sec’y of Health & Human

Servs., 25 F.3d 284, 286 (6th Cir. 1994).
10

“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.

The Court

is to affirm the decision, provided it is supported by substantial
evidence,

even

differently.

if

this

Court

might

have

decided

the

case

See Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-

90 (6th Cir. 1999).
Even so, the existence of substantial evidence supporting the
Commissioner’s decision cannot excuse failure of an ALJ to follow
a mandatory regulation that “is intended to confer a procedural
protection” for the claimant.

Wilson v. Comm’r of Soc. Sec., 378

F.3d 541, 543, 546–47 (6th Cir. 2004).
would

afford

regulation

the

with

Commissioner

impunity

therein illusory.”

and

the
render

“To hold otherwise ...

ability
the

[to]

violate

protections

the

promised

Id. at 546; see also Cole v. Comm’r of Soc.

Sec., 661 F.3d 931, 937 (6th Cir. 2011) (“An ALJ’s failure to
follow agency rules and regulations ‘denotes a lack of substantial
evidence, even where the conclusion of the ALJ may be justified
based upon the record.’” (quoting Blakley v. Comm’r of Soc. Sec.,
581 F.3d 399, 409 (6th Cir. 2009))).
Finally, the ALJ must provide a discussion of “findings and
conclusions, and the reasons or basis therefor, on all the material
issues of fact, law, or discretion presented on the record.”
U.S.C. § 557(c)(3)(A).

5

This requirement is “necessary in order to
11

facilitate effective and meaningful judicial review.”

Reynolds v.

Comm’r of Soc. Sec., 424 F. App’x 411, 415 (6th Cir. 2011).
IV. Analysis
Conn raises three main issues in this action.
2, 5-13, Page ID # 601-02, 605-13].

[DE 11 at 1-

First, Conn claims that the

ALJ erred in evaluating the severity her digestive disorder and
mental health conditions.

Second, Conn asserts that the ALJ erred

by not addressing the opinion of her primary care provider, Dr.
Watts.

Third, Conn claims that the ALJ erred in finding that she

had the residual function capacity to return to her past relevant
work.
A.
Whether the ALJ Erred in Evaluating the Severity of Conn’s
Gastrointestinal and Mental Health Impairments
First,
adequately

Conn

asserts

consider

the

mental health impairments.

that

the

severity

of

ALJ
her

erred

by

failing

gastrointestinal

to
and

[See DE 11 at 6, Page ID # 606].

At step two of the sequential analysis, establishing a severe
impairment is a de minimis hurdle.
862 (6th Cir. 1988).

Higgs v. Bowen, 880 F.2d 860,

An impairment is considered severe unless

“it is a slight abnormality that minimally affects work ability
regardless of age, education, and experience.”

Id. (citing Farris

v. Sec’y of Health & Human Servs., 773 F.2d 85, 89–90 (6th Cir.
1985)).

12

(1) Whether substantial evidence supports the ALJ’s finding that
Conn’s gastrointestinal impairments were not severe
In finding that Conn had no severe gastrointestinal issue,
the ALJ stated:
The record evidence fails in particular to demonstrate
that the claimant experiences any “severe” gastrointestinal impairment. The claimant has emphasized that
she experiences uncontrolled bowel incontinence but the
documentary record to the contrary fails to show any
loss of weight. . . . The undersigned finds from the
foregoing that her asserted gastro-intestinal impairment
is not “severe.”
[TR 22].
Conn claims that the ALJ’s finding is in error and ignores
relevant record evidence to the contrary.

Alternatively, the

Commissioner asserts that Conn’s challenge “is largely an academic
question because the ALJ found that the Plaintiff had some severe
impairments and continued in the sequential evaluation.”

[DE 13

at 8, Page Id # 623].
But the Commissioner’s response misses the point.

Conn’s

initial argument is not that the ALJ failed to properly analyze
her

gastrointestinal

impairments

function capacity at step four.

when

considering

residual

Instead, Conn argues that the

ALJ’s consideration of her gastrointestinal impairments at step
two is not adequately articulated and therefore is not supported
by substantial evidence.
Here,

the

ALJ’s

perfunctory

finding

that

Conn’s

gastrointestinal impairments were not severe solely because she
13

had not lost weight is not supported by substantial evidence in
the record.

Conn’s lack of weight loss is the sole reason that

the ALJ provided in concluding that Conn’s gastrointestinal health
problems were not severe impairments. But it is unclear how Conn’s
lack

of

weight

loss,

standing

alone,

indicates

that

her

gastrointestinal health issues are not severe.
At

the

administrative

hearing,

Conn

reported

gastrointestinal problems were her most serious impairment.
38].

that
[TR

Conn also reported that she has frequent bowel movements and

that sometimes she must use the restroom up to ten times per day
for as much as twenty minutes per visit.

[TR 39].

Additionally, the objective medical evidence reflects that
Conn has been treated for various gastro-intestinal issues and
symptoms.
regularly

For

example,

suffered

from

medical
vomiting,

cramping, and incontinence.

records

indicate

nausea,

that

diarrhea,

Conn

stomach

[See, e.g., TR 318-19, 322-24, 326-

29, 354, 359]. Additionally, Conn was treated by Dr. Morris Beebe,
a gastroenterologist.

[TR 322-29].

Moreover, results from an EGD

and colonoscopy revealed a small hiatal hernia, mild nonerosive
gastritis, diverticulosis, and a rectal polyp.

[TR 325].

Ultimately, both the objective medical evidence and Conn’s
testimony suggest that Conn’s gastrointestinal issues may be more
than slight abnormalities that minimally effect work ability and

14

support

a

finding

that

Conn’s

constitute severe impairments.

gastrointestinal

issues

may

See Higgs, 880 F.2d at 862.

Of course, the Commissioner is correct that once the ALJ found
at least one severe impairment, the ALJ was then required to
consider all of Conn’s impairments—severe and non-severe—at step
four.

Fisk v. Astrue, 253 F. App’x 580, 583 (6th Cir. 2007)

(citing Soc. Sec. Rul. 96–8p, 1996 WL 374184, at *5 (July 2,
1996)).
The problem here is that that ALJ’s analysis at step four
simply reiterates the ALJ’s finding at step two.
with

TR

25].

At

step

four,

the

ALJ

[Compare TR 22,

reiterated

Conn’s

gastrointestinal symptoms and then again concluded that Conn’s
“asserted

modest

weight

loss

appears

inconsistent

with

her

asserted debilitating diarrhea and even this moderate weight loss
appears unsupported [by the record].”

[TR 25].

Thus, the ALJ considered Conn’s non-severe gastrointestinal
impairments at step four but it is still unclear how Conn’s lack
of

weight

loss

justifies

disregarding

objective medical evidence in the record.

other

testimony

and

It seems at least

plausible that someone could have severe gastrointestinal issues
and not experience substantial weight loss.
not be the case.
Conn’s

weight

Additionally,

Of course, that may

But here, none of the medical experts discussed
when

the

assessing

listing

her

standards
15

gastrointestinal
for

digestive

issues.

issues

do

discuss weight loss, but weight loss is simply discussed as one
potential symptom, not as a dispositive factor.

See generally, 20

C.F.R. Pt. 404, Subpt. P., App. 1 §§ 5.00E.(2), G., 5.06B.(5),
5.08.

As a result, if there is medical evidence or research that

suggests that severe gastrointestinal health problems are always
accompanied by weight loss, then the ALJ needs to cite to that
evidence to support his conclusion.
Ultimately, the ALJ’s conclusion does not adequately explain
how or why the ALJ found that Conn’s gastrointestinal issues were
not

severe,

making

explanation,
impairments

the
are

proper

ALJ’s
not

review

finding

severe

impossible.

that

is

not

Conn’s

Without

more

gastrointestinal

supported

by

substantial

evidence, justifying remand.
Of course, remand does not necessitate a finding that Conn’s
gastrointestinal impairments are severe.

The Commissioner, not

this Court, is the ultimate fact finder on the issue of disability.
42 U.S.C. § 405(g); see also INS v. Orlando Ventura, 537 U.S. 12,
17-18 (2002).
by

It is the ALJ’s explanation that is not supported

substantial

evidence,

not

necessarily

the

ALJ’s

ultimate

finding. Upon further consideration, the ALJ may properly conclude
that Conn’s gastrointestinal impairments are not severe.

Still,

in so finding, the ALJ must provide enough explanation and detailed
analysis

to

demonstrate

that

his

substantial evidence from the record.
16

decision

is

supported

by

(2) Severity of Conn’s mental health impairments
Conn also claims that the ALJ erred by failing to consider
her mental conditions as severe impairments.
# 607].

[DE 11 at 7, Page Id

Conn cites to medical evidence in the treatment records

that demonstrate that Conn had complained of mental health issues,
took prescription medications Celexa and Buspar, and had been
referred to a psychiatrist.

[Id.; see, e.g., TR 320, 351-59].

On the Disability Report Form, Conn listed “stress” and
“nerves” as mental conditions that limited her ability to work.
[TR 212]. It does not appear that Conn’s mental health impairments
were discussed at the administrative hearing.
Here, whether the ALJ’s finding that Conn had no severe mental
health impairments is supported by substantial evidence is a closer
call.

When

assessing

the

severity

of

Conn’s

mental

health

impairments, the ALJ said:
The record evidence fails to demonstrate that the
claimant experiences any “severe” mental impairment. The
documentary record presents essentially minimal findings
to substantiate the presence of any “severe” mental
impairment. The claimant has never pursued any course of
formal mental health treatment for any asserted “severe”
impairment.
[TR 22].
Additionally, when assessing residual function capacity at
step

four,

the

ALJ

noted

that

Conn

conceded

“that

she

now

experienced only an occasional migraine headache when she was
stressed.”

[TR 25].

Furthermore, the ALJ considered the opinions
17

of the state agency mental health consultants “who assessed the
claimant with no ‘severe’ mental impairment,” and whose opinions
“appear[] consistent with the record evidence.”

[TR 26].

The ALJ’s analysis pertaining to the severity of Conn’s mental
health

impairments

is

substantial evidence.

more

developed

and

is

supported

by

Of course, Conn correctly points out that

she was diagnosed with anxiety and depression by her primary care
physician, Dr. Watts.

[See, e.g., TR 320, 359].

Even so, her

primary care physician did not list anxiety as one of Conn’s major
health issues and stated that while Conn suffers from depression,
it is not her primary limiting health issue.

[See TR 359].

Additionally, while the record indicates that Conn was referred to
a psychiatrist and treated for mental health conditions, it does
not indicate that these conditions are severe or evidence a
longitudinal history of mental health treatment.
Additionally, mental health issues were not raised during the
administrative hearing and the challenge to the ALJ’s mental health
analysis at step two is only afforded a single paragraph in Conn’s
motion for summary judgment.

[See TR 18-27; DE 11 at 7, Page ID

# 607].
Furthermore, even though the ALJ found that Conn did not
suffer from a severe mental health impairment, the ALJ considered
Conn’s non-severe mental health conditions at step four when
considering

residual

function

capacity.
18

In

fact,

the

ALJ

considered

the

opinions

of

two

state

agency

mental

health

consultants and the record evidence in concluding that Conn did
not suffer from a severe mental health impairment.
Ultimately, the record is replete with evidence that Conn may
suffer from a severe gastrointestinal impairment, but that is not
the

case

pertaining

to

Conn’s

mental

health

impairments.

Furthermore, the ALJ properly considered Conn’s non-severe mental
health

impairments

at

step

four

of

the

sequential

analysis.

Additionally, in making his decision, the ALJ considered the
severity of Conn’s stress-induced migraine headaches and opinion
evidence from state agency consultants.

As a result, the ALJ’s

conclusion that Conn did not suffer from a severe mental health
impairment is supported by substantial evidence.
B.

Whether ALJ Failed to Properly Consider Opinion of Dr. Watts
Second, Conn argues that the ALJ erred by failing to consider

the opinion of Conn’s primary care physician, Dr. Watts.

In a

handwritten letter dated September 23, 2014, Dr. Watts listed
Conn’s major health issues as obstructive sleep apnea, diabetic
gastroparesis, arthritis of the knees, obesity, and diabetes.1 [TR
359].

Dr. Watts also listed depression as a medical condition but

1

As Conn acknowledges, Dr. Watts’s handwritten letter is difficult
to read, and it appears that Dr. Watts uses some medical
abbreviations. Still, while the Court has paraphrased portions of
the letter, the letter is not so illegible that it is impossible
to comprehend.
19

indicated that depression was not Conn’s primary limiting issue.
[Id.].

Dr. Watts opined that Conn had multiple factor relating to

her disability.

[Id.].

Furthermore, Dr. Watts also appears to

have opined that Conn was unable to work and had a continuing
disability on another occasion.

[TR 373].

Alternatively, the Commissioner acknowledges that the ALJ’s
written decision did not specifically discuss Dr. Watts’s opinions
but argues that the ALJ considered the entire record in making his
decision, including the opinions of Dr. Watts.
11,

Page

Id

#

624-25].

In

support

of

[See DE 13 at 10-

this

argument,

the

Commissioner cites Simons v. Barnhart for the proposition that an
ALJ’s failure to cite to specific evidence does not indicate that
the evidence was not considered.

114 F. App’x 727, 733 (6th Cir.

2004).
Of course, the Commissioner is correct that the ALJ is not
required to cite to all evidence that was submitted in the record.
Still, there is a substantial difference between an ALJ’s failure
to mention all the findings of a medical professional and an ALJ’s
failure to demonstrate that they even considered evidence provided
by a medical professional.
Here, the Commissioner asks the Court to take the ALJ at his
word and assume that when the ALJ says that he considered all the
record evidence that he also considered the evidence and opinions
of Dr. Watts.

But the law requires the ALJ to provide a discussion
20

of “findings and conclusions, and the reasons or basis therefor,
on all the material issues of fact, law, or discretion presented
on the record.”
something

more

5 U.S.C. § 557(c)(3)(A).
than

nothing

to

allow

this

The ALJ must say
Court

to

conduct

the

medical

meaningful review of the decision and findings.
Additionally,

the

ALJ’s

failure

to

consider

opinions of Dr. Watts violates the treating source rule and
justifies remand.
As an initial matter, the treating source rule has been
recently modified and the controlling weight standard has been
rescinded.
Medical

See Revisions to Rules Regarding the Evaluation of

Evidence,

82

Fed.

Reg.

5844,

5845

(Jan.

18,

2017)

(effective March 27, 2017). Even so, this rule change only applies
to more recent cases.

See Rescission of Social Security Rulings

96-2p, 96-5p, and 06-3p, 82 Fed. Reg. 15,263 (Mar. 27, 2017).
While the parties do not explicitly discuss the treating source
rule, Conn’s application for disability benefits was filed in
before March 27, 2017; therefore, the treating source rule applies
to this decision.
Under the treating source rule, medical opinions from a
treating source are given more weight than opinions from a nontreating source “since these sources are likely to be the medical
professionals

most

able

to

provide

21

a

detailed,

longitudinal

picture of [the claimant’s] medical impairment(s)[.]” 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2).

A treating source is defined as a:

medical source who provides [the claimant], or has
provided [the claimant], with medical treatment or
evaluation and who has, or has had, an ongoing treatment
relationship with [the claimant] ... [of] a frequency
consistent with accepted medical practice for the type
of treatment and/or evaluation required for [the]
medical condition(s).
20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2).
Here, Dr. Watts is a treating source physician.

Dr. Watts

has served as Conn’s primary care physician since late 2013.
Additionally, Watts treated Conn for numerous health conditions
and referred her to multiple specialists.

As a result, Dr. Watts

was likely in the best position to provide a longitudinal picture
of Conn’s medical problems and functional limitations.
Medical opinions are “judgments about the nature and severity
of [the claimant’s] impairment(s), including . . . symptoms,
diagnosis and prognosis, what [the claimant] can still do despite
impairment(s), and [his or her] physical or mental restrictions.”
20 C.F.R. §§ 404.1527(a)(1), 416.927(a)(1).
Of course, Dr. Watts’s opinions that Conn was disabled or
that Conn could not work are not medical opinions that are entitled
to controlling weight.

Decisions about whether a claimant is

disabled or is unable to work are reserved to the Commissioner by
law.

20 C.F.R. § 404.1527(d); see also, e.g., Turner v. Comm’r of

Soc. Sec., 381 F. App’x 488, 492-93 (6th Cir. 2010); White v.
22

Comm’r of Soc. Sec., 572 F.3d 272, 286 (6th Cir. 2009); Buxton v.
Halter, 246 F.3d 762, 773 (6th Cir. 2001).
Still,
controlling

a

treating

weight

when

source’s
it

is

medical

opinion

“well-supported

is

by

given

medically

acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in [the] case
record[.]”
Thus,

20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
Dr.

Watts’s

diagnoses

and

assessments

of

Conn’s

conditions were at least entitled to consideration by the ALJ, if
not controlling weight.
major health issues).

[See TR 359 (listing diagnoses of Conn’s

Additionally, the record reflects that Dr.

Watts treated Conn for various medical problems, including chronic
pain

and

numbness,

frequent

bowel

movements,

incontinence,

abdominal cramping, headaches, hand tremors, fatigue, joint pain,
diabetes, depression, and anxiety, among other ailments.
21, 353-54, 383-84, 445-56].

[TR 318-

The ALJ was required to at least

consider this medical evidence in his analysis.
Additionally, the ALJ is required to “give good reasons in
[the] notice of determination or decision for the weight [given to
the claimant’s] treating source’s medical opinion.”

20 C.F.R. §§

404.1527(c)(2), 416.927(c)(2); see Soc. Sec. Rul. 96-2p, 1996 WL
374188, at *5.

When an ALJ denies benefits, the decision:

must contain specific reasons for the weight given to
[a] treating source’s medical opinion, supported by
evidence in the case record, and must be sufficiently
23

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.
Here, the ALJ has neither mentioned Dr. Watts nor referred to
his medical opinions in his written decision.

As a result, the

ALJ has failed to provide any reason for disregarding the medical
opinions of Dr. Watts.

Of course, there may be good reasons for

disregarding the opinions of Dr. Watts but it is impossible to
make that judgment without some discussion indicating that the ALJ
considered the opinions of Dr. Watts with specific reasons for the
weight assigned to those opinions.
Of

course,

failure

to

provide

good

reasons

does

not

automatically justify remand. Remand is not necessary when failure
to provide goods reasons is a “harmless de minimis procedural
violation.”

Blakley, 581 F.3d at 409.

The Sixth Circuit has

identified three situations in which such a de minimis procedural
violation may occur: (1) where “a treating source’s opinion is so
patently deficient that the Commissioner could not possibly credit
it,” (2) where “the Commissioner adopts the opinion of the treating
source or makes findings consistent with the opinion,” and (3)
“where the Commissioner has met the goal of ... the procedural
safeguard of reasons.”

Wilson, 378 F.3d at 547.

But here, the ALJ’s failure to provide good reasons does not
amount to harmless error.

Without more explanation it is not
24

possible for the Court to meaningfully review the ALJ’s decision
pertaining to the weight that should be given to Dr. Watts’s
medical opinions.

Additionally, Dr. Watts’s opinion is not so

patently discredited by other evidence in the record that the
Commissioner could not possibly assign weight to the opinion.
Moreover, in deciding to completely disregard the medical
opinions of Dr. Watts, the ALJ failed to consider the Wilson
factors.

When a treating source’s medical opinions are not given

controlling weight, the ALJ:
must apply certain factors—namely, the length of the
treatment relationship and the frequency of examination,
the nature and extent of the treatment relationship,
supportability of the opinion, consistency of the
opinion with the record as a whole, and the
specialization of the treating source—in determining
what weight to give the opinion.
Wilson, 378 F.3d at 544; see also Blakley, 581 F.3d at 408.
Ultimately,

the

ALJ

completely

failed

to

consider

the

opinions of Dr. Watts, which constitutes reversible error and
justifies remand.

Hensley v. Astrue, 573 F.3d 263, 267 (6th Cir.

2009); Wilson, 378 F.3d at 545.

“It is an elemental principle of

administrative law that agencies are bound to follow their own
regulations.”

Wilson, 378 F.3d at 545 (citing Sameena, Inc. v.

United States Air Force, 147 F.3d 1148, 1153 (9th Cir. 1998)).
The ALJ is not required to assign controlling weight to Dr. Watts
opinions stating that Conn was disabled or Conn could not cannot
work.

But on remand the ALJ must consider the medical opinions
25

and

medical

evidence

submitted

by

Dr.

Watts.

Finally,

if

controlling weight is not assigned to the opinions of Dr. Watts,
the ALJ must provide specific reasons for refusing to assign
controlling weight to the opinions of Dr. Watts.
C. Whether the ALJ Erred in Finding that Ms. Conn Could Return to
Her Past Relevant Work
At step four of the sequential analysis, the ALJ found that
Conn had the residual function capacity to perform a broad range
of light work as defined in 20 C.F.R. § 404.1567(b).

[TR 23-24].

The ALJ found that Conn could “stand and walk for four hours in an
eight-hour workday and [could] sit for six hours in an eight-hour
workday.”

[TR

24].

Additionally,

the

“frequent bilateral feeling and handling.”

ALJ

limited

[Id.].

Conn

to

“‘Frequent’

means occurring from one-third to two-thirds of the time.”

Soc.

Sec. Rul. 83-10, 1983 WL 31251 at *6.
(1)
Whether Conn can return to past relevant work as actually
performed
Conn claims that ALJ’s residual function capacity finding
would preclude her from performing her past work as it was actually
performed.

[See DE 11 at 9, Page ID # 609]. Conn points out that

the ALJ’s residual function capacity finding is inconsistent with
her reported work history information on the Work History Report
Form.

[See TR 222-23].

Conn reported that her past work required

her to work twelve-hour shifts, eleven hours of which she was
sitting.

[TR 223].

Additionally, Conn reported that her past
26

work required her to handle, grab, grasp, write, and type for the
entire twelve-hour shift.
The

ALJ

seemed

to

[Id.].
rely

heavily

on

the

opinion

of

the

vocational expert when he made his finding on whether Conn could
perform past relevant work.

[See TR 27].

The ALJ is correct that

the vocational expert testified that Conn could perform past
relevant work based on the residual function capacity assessment.
But the hypotheticals that the ALJ posed to the vocational expert
were both based on an eight-hour workday, not the twelve-hour
workday that Conn claims she actually performed.

[See TR 64-66].

Here, Conn is correct that the ALJ’s conclusion that she could
perform past relevant work is inconsistent with his finding on
residual function capacity.

Of course, the ALJ may have had a

good reason to discredit or discount the information from Conn’s
work history report.

Still, the ALJ’s written decision fails to

address or explain this inconsistency.

On remand the ALJ must

resolve the inconsistency between his residual function capacity
finding, based on an eight-hour workday, and the information
pertaining to Conn’s past work, based on a twelve-hour workday.
(2) Whether Conn can return to past relevant work as generally
performed
Conn also claims that she cannot return to past relevant work
as generally performed because she “does not retain sufficient use
of her bilateral hands for purposes of feeling and handling as is

27

required for a sedentary cardiac monitor.”
# 610].

[DE 11 at 10, Page Id

Conn is correct that “[m]ost unskilled sedentary jobs

require good use of the hands and fingers for repetitive handfinger actions.”

Soc. Sec. Rul. 83-10, 1983 WL 31251 at *5.

But here, the ALJ did not distinguish between Conn’s past
relevant work as actually performed and as generally performed.
[See TR 27].

On remand, if the ALJ finds that Conn cannot perform

past relevant work as actually performed, the ALJ should consider
whether Conn can perform past relevant work as generally performed.
(3) Inconsistency between the testimony of the vocational expert
and the dictionary of occupational titles
Finally, Conn argues that the ALJ erred by failing to resolve
an inconsistency between the vocational expert’s testimony and the
DOT.

At

the

administrative

hearing,

the

vocational

expert

testified that Conn’s past work as a cardiac monitor had a DOT
code of 078.365-010.

[TR 63].

The ALJ cited this DOT code in his

written decision when finding that Conn could perform past relevant
work.

[TR 27].
As Conn points out, DOT code 078.356-010 does not appear to

exist.
likely

Conn persuasively asserts that the appropriate DOT code is
078.367-010

technician.”

under

the

title

of

“cardiac

monitor

Dictionary of Occupational Titles, 1991 WL 646826

(4th ed. 1991).

28

Social

Security

regulations

require

that

adjudicators

“[i]dentify and obtain a reasonable explanation for any conflicts
between

occupational

evidence

provided

by

VEs

or

VSs

information in the Dictionary of Occupational Titles (DOT).”
Sec. Rul. 00-4p, 2000 WL 1898704 at *1, 4.

and
Soc.

Here, it appears that

there is a direct conflict between the DOT information provided by
the vocational expert and the DOT itself.

As a result, it is

unclear which DOT code the vocational expert and ALJ relied on
when consider whether Conn could perform past relevant work.
Additionally, this conflict amounts to more than a de minimis
procedural or technical error.

As Conn points out, DOT code

078.367-010 requires “handling” in relation to things.
WL 646826.

See 1991

Thus, if 078.367-010 applies, the ALJ must consider

whether Conn’s limitations with bilateral feeling and handling
limit her ability to perform work as a cardiac monitor technician.
As a result, on remand, the ALJ should address and resolve the
inconsistency between the vocational expert’s testimony and the
DOT.
V. Conclusion
Having found that the ALJ’s finding on the severity of Conn’s
gastrointestinal issues was not supported by substantial evidence
and that the ALJ committed reversible error at multiple stages of
the five-step sequential analysis, the Acting Commissioner’s final
decision is REVERSED and this action is REMANDED for administrative
29

proceedings consistent with this opinion.
the

severity

of

Conn’s

substantial evidence.

mental

The ALJ’s finding on

impairments

is

supported

by

But on remand, the ALJ shall: 1) reconsider

and provide sufficient reasons for determining the severity of
Conn’s gastrointestinal impairments based on the record evidence;
2) consider the opinion evidence provided by Dr. Watts and, if
controlling weight is not assigned to Dr. Watt’s opinions, the ALJ
shall provide specific reasons for refusing to assign controlling
weight to the opinion of Dr. Watts; and 3) the ALJ shall resolve
inconsistencies between the residual function capacity finding and
the finding that Conn can return to past relevant work, consistent
with this opinion.
Accordingly, it is hereby ORDERED as follows:
(1)

The decision of the Commissioner is REVERSED, with this

action REMANDED;
(2)

Plaintiff’s

Motion

for

Summary

Judgment

[DE

11]

is

Summary

Judgment

[DE

13]

is

GRANTED IN PART AND DENIED IN PART;
(3)

Defendant’s

Motion

for

GRANTED IN PART AND DENIED IN PART; and
(4)

Judgment reversing and remanding this matter will be

entered contemporaneously herewith.
This the 5th day of November, 2018.

30

31