Coulter v. Commissioner of Social Security

Filing 15

MEMORANDUM OPINION AND ORDER by Magistrate Judge Lanny King on 8/1/2013. For the foregoing reasons, this matter is REMANDED to the Commissioner for a new decision and further administrative proceedings regarding the current availability of jobs in the national economy that Plaintiff can still perform despite her impairments and for reconsideration Plaintiffs ability to reach overhead and use of her left upper extremity in light of the treating source medical opinions. cc: Counsel (TJD)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT BOWLING GREEN
PENNY K. COULTER
Plaintiff
v.

No. 1:13-CV-00011-LLK

CAROLYN W. COLVIN
Commissioner of Social Security
Defendant
MEMORANDUM OPINION AND ORDER
This matter is before the Court upon Plaintiff’s Complaint seeking judicial review of the final
decision of the Commissioner pursuant to 42 U.S.C. § 405(g). The parties have consented to the
jurisdiction of the undersigned Magistrate Judge, pursuant to 28 U.S.C. § 636(c), to conduct all further
proceedings in this case, including entry of judgment, with direct review by the Sixth Circuit Court of
Appeals in the event an appeal is filed. Docket Entry Number (DN) 10.
The fact and law summaries of the Plaintiff and the Defendant are at DN 12 and DN 13,
respectively. Mary G. Burchett-Bower represents Plaintiff. The final decision of the Commissioner,
which is presently before this Court upon judicial review, was rendered on July 29, 2011, by
Administrative Law Judge (ALJ) Scott M. Staller. Administrative Record (AR), pp. 31-42.
For the reasons below, this matter is REMANDED to the Commissioner for a new decision and
further administrative proceedings regarding the current availability of jobs in the national economy
that Plaintiff can still perform despite her impairments and for reconsideration Plaintiff’s ability to reach
overhead and use of her left upper extremity in light of the treating source medical opinions.
ALJ’s Decision
The ALJ denied Plaintiff’s disability claim at the fifth and final step of the sequential evaluation
process. At step 5, the burden of proof “shifts to the Commissioner [to] identify a significant number of

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jobs in the economy that accommodate the claimant’s residual functional capacity [RFC] and vocational
profile.” Johnson v. Commissioner, 652 F.3d 646, 651 (6th Cir.2011).
In support of his fifth-step denial decision, the ALJ relied upon testimony from a vocational
expert (VE). The VE testified that an individual having an RFC for a limited range of sedentary work
would retain the ability to perform a significant number of jobs in the national economy.
Representative examples included surveillance systems monitor, sorter, and fishing reel assembler (AR,
p. 41):
* surveillance systems monitor, described by Dictionary of Occupational Titles (DOT) code
number 379.367-010 as sedentary in terms of exertion and unskilled (SVP 2) [specific
vocational preparation number of 2], numbering 80,000 jobs in the national economy and
3,000 in the state of Kentucky;
* sorter, described by DOT code number 209.687-022 as sedentary in terms of exertion and
semi-skilled (SVP 3), numbering 3.5 million jobs in the national economy and 65,000 in the
state of Kentucky; and
* fishing reel assembler, described by DOT code number 732.684-062 as sedentary in terms
of exertional and unskilled (SVP 2), numbering 253,000 jobs in the national economy and
3,000 in the state of Kentucky.
Cunningham v. Commissioner
The Plaintiff’s principal contention upon judicial review is that the ALJ’s fifth-step findings are
not supported by substantial evidence. Step 5 requires a finding of current availability of jobs in the
national economy.
For essentially the same reasons outlined in Cunningham v. Commissioner, 360 Fed.Appx. 606,
2010 WL 22286 (6th Cir.), the jobs identified by the ALJ do not satisfy the Commissioner’s burden of
proving that a significant number of jobs exist in the national economy that Plaintiff can perform.
In Cunningham, the ALJ accepted the VE’s identification of jobs described in the DOT and found
that Cunningham retained the ability to perform the jobs of security camera monitor and document
preparer. Cunningham observed that the DOT, a document published by the Department of Labor, was
dated and obsolete at the time of the ALJ’s decision. “While the Social Security Commissioner does take
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administrative notice of this document when determining if jobs exist in the national economy, 20 C.F.R.
§ 404.1566(d)(1), common sense dictates that when such descriptions appear obsolete, a more recent
source of information should be consulted.” Id. at *9.
The “security camera monitor” position mentioned in Cunningham is the same “surveillance
systems monitor” job in the present case. i Cunningham determined that this job and that of document
preparer appear to be obsolete and remanded the matter to the Commissioner for reconsideration in
light of the DOT’s replacement, known as the O*NET:
In light of the fact that more current job descriptions were available at the time of the
hearing before the ALJ -- the Department of Labor replaced the DOT with the Occupational
Information Network (O*NET), a database that is continually updated based on data
collection efforts that began in 2001 -- and that the two descriptions relied on by the VE
are not found in O*NET, we conclude that the VE's dependence on the DOT listings alone
does not warrant a presumption of reliability. E.g., O*NET Resource Center, http:// www.
onetcenter. org/ data Collection. html (last visited Jan. 4, 2010). As such, we remand to the
Commissioner for consideration of whether the DOT listings, specifically the document
preparer and security camera monitor descriptions, were reliable in light of the economy as
it existed at the time of the hearing before the ALJ.
The jobs of sorter ii and fishing reel assembler iii in the present case appear to be as obsolete as
the job of document preparer iv in Cunningham. These jobs are not listed in the O*NET. Therefore, as in
Cunningham, a remand is required for new step 5 findings addressing the current availability of jobs in
the national economy that Plaintiff can perform.
Occasional Reaching
The ALJ found that Plaintiff has an RFC to “only occasionally reach and reach overhead with her
left upper extremity” (AR, p. 35). However, according to the DOT, the jobs of sorter and fishing reel
assembler require frequent reaching 1/3 to 2/3 of the work day. Upon remand, if the Commissioner
determines that these jobs currently exist in significant numbers in the national economy, the
Commissioner should address this apparent inconsistency.

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Treating Physician Rule
Plaintiff argues that the ALJ’s decision does not comport with the so-called “treating physician”
rule.
Under that rule, in making a disability determination, the ALJ evaluates every medical opinion
received, but is required to give controlling weight to the treating physician's opinion on the nature and
severity of the impairment, provided that the opinion “is well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the]
case record.” 20 C.F.R. § 404.1527(c)(2). If the ALJ does not give controlling weight to the treating
source's opinion, the ALJ must then consider and balance the following factors to determine how much
weight to give the opinion: length of the treatment relationship and the frequency of examination;
nature and extent of the treatment relationship; extent to which the opinion is supported by relevant
evidence; extent to which the opinion is consistent with the record as a whole; and whether the treating
physician is a specialist in the area on which the disability claim is based. 20 C.F.R. §§ 404.1527(c)(1) –
(6).
The ALJ also has the obligation to provide “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(c)(2). Thus, if the
ALJ does not give controlling weight to the treating source's opinion, he must: (1) clarify whether the
treating source's opinion was not well-supported by medically acceptable clinical and laboratory
diagnostic techniques or was inconsistent with the other substantial evidence in the case record and
identify the evidence supporting such a finding; and (2) explain his application of the factors listed in 20
C.F.R. § 404.1527(c)(2) to determine the weight to give to the treating physician's opinion. Wilson v.
Commissioner, 378 F.3d 541, 546 (6th Cir.2004). The ALJ's explanation must be “sufficiently specific to
make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's
medical opinion and reasons for that weight.” Social Security Ruling (SSR) 96-2p, 1996 WL 374188 at *5.
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Dr. Malmquist’s Opinion
The ALJ’s evaluation of the weight given to the opinions of Plaintiff’s treating physicians, Gregg
Malmquist and Grover Dils, does not comport with treating physician rule as described above.
On October 26, 2009, Dr. Malmquist performed a subacromial decompression of the left
shoulder with open rotator cuff repair (AR, p. 257). On April 9, 2010, Dr. Malmquist opined that Plaintiff
is permanently restricted to lifting no more than 10 pounds occasionally with the left hand and no
overhead reaching with the left arm (AR, p. 393). The ALJ gave this opinion “little weight” because
“[t]he undersigned has considered Dr. Malmquist’s opinion and accords little weight to those limitations
consistent with the decision herein, which limitations are supported by the objective medical evidence
of record” (AR, p. 39).
The foregoing rationale is inadequate because the residual effects of left shoulder replacement
with x-rays showing cemented hemiarthroplasty in place and mild degenerative changes at the
acromioclavicular (AC) joint (AR, p. 294) provided an objective medical basis for the limitations opined
by Dr. Malmquist.
The “objective medical evidence of record” (AR, p. 39), which the ALJ indicated was contrary to
Dr. Malmquist’s opinion, was provided by the non-examining program physician, who opined that
Plaintiff should have no significant left-arm restriction as “projected to 12 months post [surgical] repair”
(AR, p. 369). The ALJ’s decision to credit this non-examining source projected opinion over the actual
opinion of the surgeon (Dr. Malmquist), given 12 months after the surgery, is unpersuasive.
Dr. Dils’ Opinion
On or about June 22, 2011, Dr. Dils signed off on an assessment prepared by Gwen Wright,
APRN (advanced practice registered nurse), to the effect that Plaintiff has a history of left shoulder
replacement and heel spurs, making it difficult for her to walk or stand for long periods of time or use
her hands for product jobs or activities (AR, p. 509). The ALJ discounted Dr. Dils’ opinion because “a
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nurse practitioner is not considered an acceptable medical source according to Social Security
regulations v” (AR, p. 39).
This rationale is insufficient because “[w]hen such [non-acceptable medical source] opinions are
adopted by the treating physician, they should be elevated to opinions of an ‘acceptable medical source’
and treated as such.” Goins v. Commissioner, 2008 WL 4066095, *4 (W.D.Ky.).
In addition, even if the ALJ was justified in treating the opinion as Ms. Wright’s (as opposed to
Dr. Dils’ by way of adoption), the ALJ was not entitled to dismiss Ms. Wright’s opinion on that basis
alone. The Commissioner has recognized that:
With the growth of managed health care in recent years and the emphasis on containing
medical costs, medical sources who are not “acceptable medical sources,” such as nurse
practitioners, physician assistants, and licensed clinical social workers, have increasingly
assumed a greater percentage of the treatment and evaluation functions previously
handled primarily by physicians and psychologists. Opinions from these medical
sources, who are not technically deemed “acceptable medical sources” under our rules,
are important and should be evaluated on key issues such as impairment severity and
functional effects, along with the other relevant evidence in the file.
SSR 06–03p, 2006 WL 2329939 at *3.
The ALJ’s decision fails to identify an adequate legal basis for discounting the opinions of the
treating physicians.
Date Last Insured
Plaintiff argues that the ALJ’s Finding No. 1 that she meets the insured status requirements of
the Social Security Act through December 31, 2013 (AR, p. 33) is erroneous and that, in fact, she is
insured through December 31, 2014.
Any error in this regard was harmless as the ALJ found that Plaintiff was not under a disability as
defined in the Social Security Act at any time through the date of the ALJ’s decision issued on July 29,
2011 (AR, p. 41).

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ORDER
For the foregoing reasons, this matter is REMANDED to the Commissioner for a new decision
and further administrative proceedings regarding the current availability of jobs in the national economy
that Plaintiff can still perform despite her impairments and for reconsideration Plaintiff’s ability to reach
overhead and use of her left upper extremity in light of the treating source medical opinions.
August 1, 2013

i

According to DOT 379.367-010, a surveillance system monitor monitors premises of public transportation
terminals to detect crimes or disturbances, using closed circuit television monitors, and notifies authorities by
telephone of need for corrective action: Observes television screens that transmit in sequence views of
transportation facility sites. Pushes hold button to maintain surveillance of location where incident is developing,
and telephones police or other designated agency to notify authorities of location of disruptive activity. Adjusts
monitor controls when required to improve reception, and notifies repair service of equipment malfunctions.
ii
According to DOT 209.687-022, a sorter sorts data, such as forms, correspondence, checks, receipts, bills, and
sales tickets, into specified sequence or grouping, such as by address, code, quantity, and class, for such purposes
as filing, mailing, copying, or preparing records. May be designated according to work performed as Bill Sorter
(clerical); Sales-Slip Sorter (clerical).
iii
According to DOT 732.684-064, a fishing reel assembler assembles fishing reels, performing any combination of
following tasks: Positions parts, such as washers, levers, springs, line spool, and retaining rings, in slots, holes, or
over pins provided on frame of fishing reel. Inserts drive shaft through line spool and frame bearing. Positions side
plate assembly containing gears and crankshaft on frame, aligns screw holes, and screws assembly to frame, using
powered screwdriver. Places crank on crankshaft and tightens nut with wrench to fasten crank to shaft. Screws
parts, such as control knobs and case covers, to frame. Tests and adjusts reel for unrestricted, positive movement
of parts by performing such tasks as rotating reel crank, pulling fishline off spool, and turning adjustment screws or
knobs located on reel. May disassemble reel, realign parts, and remove burrs to rework defective reels, using
handtools. May operate arbor and kick presses to perform such tasks as forcing bushings into reel frames, riveting
parts to subassemblies, and pressing or staking gears on shafts.
iv
According to DOT 249.587-018, a document preparer prepares documents, such as brochures, pamphlets, and
catalogs, for microfilming, using paper cutter, photocopying machine, rubber stamps, and other work devices: Cuts
documents into individual pages of standard microfilming size and format when allowed by margin space, using
paper cutter or razor knife. Reproduces document pages as necessary to improve clarity or to reduce one or more
pages into single page of standard microfilming size, using photocopying machine. Stamps standard symbols on
pages or inserts instruction cards between pages of material to notify MICROFILM-CAMERA OPERATOR (business
ser.) 976.682-022 of special handling, such as manual repositioning, during microfilming. Prepares cover sheet and
document folder for material and index card for company files indicating information, such as firm name and
address, product category, and index code, to identify material. Inserts material to be filmed in document folder
and files folder for processing according to index code and filming priority schedule.
v
According to 20 C.F.R. § 404.1513(a) the only acceptable medical sources are licensed physicians, licensed or
certified psychologists, licensed optometrists, licensed podiatrists, and qualified speech-language pathologists.

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