Hines v. Commissioner of Social Security

Filing 24

MEMORANDUM OPINION AND ORDER by Judge Greg N. Stivers on 7/14/2015. For the foregoing reasons, IT IS HEREBY ORDERED AND ADJUDICATED that Magistrate Judge King's Findings of Fact, Conclusions of Law and Recommendation (DN [21)] is ACCEPTED AND ADOPTED IN ITS ENTIRETY, and the Commissioner's Objections (DN 22 ) are OVERRULED. This is a final and appealable Memorandum Opinion and Order, and there is no just cause for delay. cc: Counsel (CDR)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CASE NO. 1:14-CV-126-GNS-LLK
TIMOTHY HINES

PLAINTIFF

v.

CAROLYN W. COLVIN

DEFENDANT

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Magistrate Judge King’s Findings of Fact, Conclusions
of Law and Recommendation (“R&R”) (Findings of Fact, Conclusions of Law and
Recommendation, DN 21 [hereinafter “R&R”]), and the objections thereto by Defendant
Carolyn W. Colvin, acting Commissioner of the Social Security Administration (“the
Commissioner”) (Commissioner’s Objections to Magistrate Judge’s R. & R., DN 22 [hereinafter
“Objs.”]). For the reasons stated below, the Court hereby OVERRULES the Commissioner’s
objections and ADOPTS the Findings of Fact, Conclusions of Law and Recommendation of
Magistrate Judge King in full.
I.

STATEMENT OF FACTS AND CLAIMS

Plaintiff Timothy Hines (“Hines”) served in the United States Marine Corps from 1986 to
1992, during which time he served in Saudi Arabia and Kuwait. (Administrative R. 223, 879
[hereinafter “R.”]). Hines then worked as welder for a time, and from 1999 until 2007 drove a
truck in various capacities for various employers. (R. 498-505).
On October 22, 2007, Hines underwent a biopsy of the muscle on his left thigh in order to
confirm a suspected diagnosis of polymyositis. (R. 652-62). The Department of Veterans Affairs

granted Hines disability pension benefits effective November 1, 2007, based on, inter alia, a
review of Hines’s treatment reports from the Veterans Administration (“VA”) from May 5, 1999
through November 19, 2007. (R. 1180-81). The last progress note for that time period contains
the

following

diagnoses:

polymyositis,

sleep

disturbances,

essential

hypertension,

hyperlipidemia, allergic rhinitis, and obesity. (R. 620-21).
Hines applied for Disability Insurance Benefits on November 23, 2007, stating that his
disabling condition began on September 1, 2007. (R. 158, 455). His last insured date was
December 31, 2012. (R. 161). In a letter dated April 14, 2008, Hines’s treating physician, Dr. J.
Stephenson, listed 17 diagnoses that applied to Hines and stated: “The total of his medical
conditions leave him totally disabled. . . . [H]is conditions are not expected to improved [sic]
significantly over time. He is not a candidate for vocational rehabilitation due to these
conditions.” (R. 794). Hines’s application was denied initially on May 6, 2008, and upon
reconsideration on June 25, 2008. (R. 158). Administrative Law Judge (“ALJ”) Kayser held
hearings regarding Hines’s application on March 3, 2010 (R. 217) and May 25, 2010 (R. 174).
On July 1, 2010, ALJ Kayser issued a decision stating that Hines was not disabled. (R. 295).
Hines appealed that decision to the Appeals Council, which issued an order on November
8, 2011, vacating ALJ Kayser’s decision and remanding the case back to him. (R. 311-13). The
Appeals Council noted that: (1) the decision relied upon the statements of Dr. Melissa Couch,
Ph.D., who evaluated Hines’s mental abilities (R. 796-802) and made statements inconsistent
with her own report; (2) the decision did not address or weigh her detailed opinion; (3) the
decision did not include the opinions of two psychological consultants and does not explain why
they were not accepted; (4) the decision incorrectly indicated that the VA notes indicated no
mental problems, when in fact they did; (5) the decision did not address or weigh the opinion of

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Dr. Stephenson that Hines is totally disabled, that his conditions are not expected to improve
significantly, and that he is not a candidate for vocational rehabilitation; (6) the decision did not
address or weigh the opinion of Hines’s work abilities given by Dr. Fritzhand, who performed a
consultative examination of Hines; (7) the decision did not address “the consideration given to
the testimony of medical expert Dr. Cooke”; and (8) the decision did not address or indicate the
consideration of “multiple work employability statements in VAMC progress notes that the
claimant can perform sedentary work or a range of sedentary work.” (R. 311-13).
On remand ALJ Kayser held additional hearings on August 30, 2012 (R. 242) and
December 12, 2012 (R. 270). On January 25, 2013, ALJ Kayser issued a second unfavorable
decision finding that Hines is not disabled. (R. 158-67). The Appeals Council declined to review
ALJ Kayser’s second decision. (R. 1-4).
On September 5, 2014, Hines filed his Complaint with this Court. (Compl., DN 1).
Following the filing of the administrative record and fact and law summaries from each party
(Pl.’s Fact & Law Summ., DN 15; Def.’s Fact & Law Summ., DN 20), Magistrate Judge King
submitted a Findings of Fact, Conclusions of Law and Recommendation. Magistrate Judge King
“recommends that this matter be remanded to the Commissioner for calculation and payment of
past-due Title II benefits based on [Hines’s] application for Title II benefits filed on November
23, 2007.” (R&R 12). The Commissioner objects to that recommendation. (Objs.). This matter is
ripe for adjudication.
II.

JURISDICTION

The Court has jurisdiction to examine the record that was before the Commissioner on
the date of the Commissioner’s final decision and to enter a judgment affirming, modifying, or
reversing that decision. 42 U.S.C. § 405(g), sentence four.

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III.

STANDARD OF REVIEW

In general, this Court conducts a de novo review of the portions of a United States
magistrate judge’s report and recommendation to which a party objects. See 28 U.S.C. §
636(b)(1). In conducting its review, this Court “may accept, reject, or modify, in whole or in
party, the findings or recommendations [of] . . . the magistrate.” Id.
IV.

DISCUSSION

The Commissioner objects to Magistrate Judge King’s R&R on four grounds: (1) the
evidence does not establish that Hines is entitled to an outright award of benefits; (2) Magistrate
Judge King erred in concluding that ALJ Kayser improperly weighed the various medical
opinions offered; (3) because Magistrate Judge King identified unresolved credibility issues,
remand is the appropriate outcome rather than an outright award of benefits; and (4) given new
evidence not presented to ALJ Kayser, remand for an award of benefits is inappropriate. (Objs.
2, 3, 6, 8).
A.

Substantial Evidence Requirement

The Commissioner first notes that “if substantial evidence supports the ALJ’s decision, it
must be affirmed, even if substantial evidence also supports the opposite conclusion.” (Objs. 3).
The Sixth Circuit has used very similar language to express this rule:
If substantial evidence supports the ALJ’s conclusion and the ALJ applied
the correct legal stands, we are not at liberty to reverse the ALJ’s decision even if
substantial evidence exists in the record that would have supported an opposite
conclusion. Conversely, however, we must reverse and remand if the ALJ applied
incorrect legal standards, even if the factual determinations are otherwise
supported by substantial evidence and the outcome on remand is unlikely to be
different.
Kalmbach v. Comm’r of Soc. Sec., 409 F. App’x 852, 859 (6th Cir. 2011) (citations omitted).

4

In the R&R, Magistrate Judge King states that ALJ Kayser did not “give good reasons for
preferring” a non-treating physician’s opinion over a treating physician’s opinion (R&R 4), that
ALJ Kayser’s discounting of Hines’s credibility is “not adequately supported by the record as a
whole” (R&R 10), and that ALJ Kayser’s credibility assessment of Hines was deficient for not
evaluating the side effects of Hines’s medications (R&R 10), but does not state that ALJ
Kayser’s opinion was not supported by substantial evidence. Instead, Magistrate Judge King
asserts that ALJ Kayser failed to apply the correct legal standards when he weighed the medical
opinion evidence and made credibility determinations. (R&R 8, 10). Therefore, the Court will
not undertake an analysis regarding whether or not ALJ Kayser’s decision was supported by
substantial evidence, but will instead address the legal standards which Magistrate Judge King
found that ALJ Kayser did not apply.
B.

Medical Opinions

As the Sixth Circuit has held:
[A]n ALJ may only choose not to give a treating physician’s opinion controlling
weight if she gives “good reasons . . . for the weight give[n],” 20 C.F.R. §
404.1527(d)(2) (now in 20 C.F.R. § 404.1527(c)(2)) and if those reasons are
“supported by the evidence in the case record, and [are] 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,” SSR 96-2p,
1996 WL 374188, at *5 (1996).
Gentry v. Comm’r of Soc. Sec., 741 F.3d 708, 727 (6th Cir. 2014) (second, third, and fourth
alterations in original). Dr. J. Stephenson (“Dr. Stephenson”), who practices at the Veterans
Administration Medical Center (VAMC) in Lexington, Kentucky, is Hines’s treating physician.
(R. 164; R&R 2). Dr. Stephenson’s name appears twice in ALJ Kayser’s January 25, 2013,
Decision: “The Appeals Council remanded the case to reevaluate the limitations indicated by
treating physician Dr. Stephenson . . . On April 14, 2008, treating physician Dr. J. Stephenson,

5

issued a statement that . . . the total medical conditions leave the claimant totally disabled.” (R.
164). ALJ Kayser then dismisses Dr. Stephenson’s opinion by citing one progress note falling
between a September 18, 2007, progress note and a November 20, 2007, Admission/Discharge
progress note stating “no impact on sedentary employment”1 (R. 571), and one progress note
dated November 15, 2007, stating an opinion of 50% improvement since Hines started
prednisone in October 2007 (R. 576), and showing that Hines’s extremity strength was -5/5 (R.
578).
“If the ALJ decides not to give a treating physician’s opinion controlling weight, the ALJ
may not reject the opinion, but must apply other factors to determine what weight to give the
opinion . . . .” Gentry, 741 F.3d at 728. These factors include “‘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.’” Id. (citing Wilson v. Comm’r of Soc. Sec., 378
F.3d 541, 544 (6th Cir. 2004) (citing § 404.1527(c)(2)) (internal quotation marks omitted)). An
ALJ may not, then, “implicitly reject” a treating physician’s opinion and remain in compliance
with applicable agency regulations.
The Commissioner argues that Dr. Stephenson’s opinion is a “blanket statement of total
disability” which is entitled to no special weight. (Objs. 5 (citing 20 C.F.R. § 404.1527(d)(1))).
Magistrate Judge King found that Dr. Stephenson’s opinion was a genuine medical opinion,
specifically because of the additional language offering the opinion that Hines is not a candidate

1

ALJ Kayser states that this progress report falls between “September 18, 2007 to October 8,
2007.” (R. 164). Magistrate Judge King states that the progress report was generated “in
September, 2007.” (R&R 4). In its review of the record, however, the Court finds the date of the
information at issue as noted.
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for vocational rehabilitation. (R&R 5-7). The medical evidence prior to Dr. Stephenson’s April
14, 2008, report supports Magistrate Judge King’s view.
A December 5, 2007, progress noted “still with pain in jts muscles,” and “short term
memory impacted must keep notebook.” (R. 760). On March 21, 2008, Dr. Stephenson stated in
a progress noted Hines’s polymyositis diagnosis and made the following note: “Per Rheum . . .
Limited ability to perform ADL directly related to this condition.”2 (R. 708). On April 1, 2008,
Hines underwent a left tympanoplasty. It was noted at that time that his lungs were “abnormal
very diminished especially in bases.” (R. 718). Hines’s medical conditions continued, and Dr.
Stephenson utilized his experience in treating veterans of Gulf War I to reach the conclusion that
Hines should not work and that this state of affairs would likely not improve. This constitutes a
genuine medical opinion.
By summarily rejecting Dr. Stephenson’s opinion without explanation and analysis
pursuant to 20 C.F.R. § 404.1527(c)(2), ALJ Kayser failed to apply the controlling regulations.
His decision is therefore not supported by substantial evidence. See Gentry, 741 F.3d at 729
(“The ‘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.’” (citing
Cole v. Astrue, 661 F.3d 931, 939-40 (6th Cir. 2011))).

2

The quoted text is all capitalized in the original, however the Court modified the text for
readability. “ADL” is an acronym for “activities of daily living.” Joshua M. Wiener et al.,
Measuring the Activities of Daily Living: Comparisons Across National Surveys, 45 J.
Gerontology:
Soc.
Sci.
229-37
(1990),
available
at
http://aspe.hhs.gov/daltcp/reports/meacmpes.htm (“The term ‘activities of daily living,’ or
ADLs, refers to the basic tasks of everyday life, such as eating, bathing, dressing, toileting, and
transferring.”).
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C.

Credibility Issues

“The ALJ . . . is tasked with evaluating the credibility of witnesses, including that of the
claimant. However, the ALJ is not free to make credibility determinations based solely upon an
‘intangible or intuitive notion about an individual’s credibility.’” Kalmbach, 409 F. App’x at 863
(citations omitted) (citation omitted). “[B]lanket assertions that the claimant is not believable
will not pass muster, nor will explanations as to credibility which are not consistent with the
entire record and the weight of the relevant evidence.” Id.
Magistrate Judge King found that “the documentary evidence in this case to discount
[Hines’s] credibility is not adequately supported by the record as a whole,” speaking specifically
about a piece of metal slag found in Hines’s ear in early 2008 and the nature of his dwelling.
Judge King also noted that “[t]he ALJ’s credibility assessment was deficient for not evaluating
the side effects of medications on [Hines’s] ability to work.” (R&R 10).
The metal slag question began with a January 16, 2008, radiology education note that
states, inter alia, “MRI cancelled by radiologist due to foreign body that entered Mr. Hines’s left
ear while welding on 1-15-07.” (R. 751). An addendum the same day stated, “Foreign body
entered Mr. Hines’s left ear on 1-15-08 NOT 1-15-07.” (R. 751). A March 5, 2008,
otolaryngology clinic physician note concurred that “a piece of metal slag fell into left ear and
caused a perforation in Jan 2008.” (R. 728). Hines testified at his first hearing before ALJ Kayser
on March 3, 2010 that the slag had “obviously been in there for years. It, it was a rusted looking
like a BB,” and stated “I don’t remember it, sir. I haven’t welded since — oh it’s been years and
years.” (R. 229-30). In his January 25, 2013, Decision, ALJ Kayser noted the March 5, 2008
progress note, but made no mention of Hines’s testimony in contradiction. (R. 165).

8

The dwelling in question is described as “2 story house, 2 STE, basement has 10 steps to
get down.” (R. 1176). Hines testified on March 3, 2010, however, that he lives in a one-story
house with no basement. (R. 234-35).
Finally, Magistrate Judge King notes that one of the primary bases for Hines’s disability
claim is that he cannot maintain employment due to the side effects of multiple medications that
he is required to take. Judge King found ALJ Kayser’s credibility determination to be deficient
for not evaluating the side effects of medications on Hines’s ability to work. (R&R 10). The
Court finds no analysis as to the side effects of Hines’s medications in ALJ Kayser’s January 25,
2013, Decision, which renders the decision incomplete. Because ALJ Kayser found Hines not to
be credible, the Court will assume that ALJ Kayser did not believe that Hines’s assertion that the
side effects of his medication contribute to an overall condition of disability was credible. If ALJ
Kayser believed that Hines’s assertion was not credible, it was his duty to explain what record or
testimonial evidence supported that conclusion.
The Commissioner argues that Hines waived any argument about ALJ Kayser’s
credibility determinations as he offered no specific argument identifying the errors and instead
simply stated that the credibility assessment of Hines was “patently wrong.” (Objs. 6). The
Commissioner is correct that the portion of Hines’s Fact and Law Summary addressing
credibility only asserts that the credibility determination of ALJ Kayser as to Hines was patently
wrong. (Pl.’s Fact & Law Summ. 8). The three credibility issues mentioned above, however, do
appear in Hines’s Fact and Law Summary as examples of “glaring inconsistencies.” (Pl.’s Fact &
Law Summ. 6). The Court finds that these inconsistencies were appropriately noted and
addressed by Magistrate Judge King as instances of erroneous credibility determinations. Hines
therefore did not waive these arguments as to ALJ Kayser’s credibility determination.

9

ALJ Kayser uses these three examples as well as others to bolster his credibility
determination as to Hines. (R. 165). One other example he noted was the Hines “denied any
difficulty dressing, feeding, walking and with activities of daily living.” (R. 165 (citing R. 32, R.
132)). As noted in subsection C above, there are instances in the record in which Hines did have
difficulty with the activities of daily living. On March 5, 2008, it is noted in a Mental Health
Physician Note that Hines then “[found] it difficult to perform everyday activities.” (R. 713-14).
On March 21, 2008, Dr. Stephenson stated in a progress noted Hines’s polymyositis diagnosis
and made the following note: “Per Rheum . . . Limited ability to perform ADL directly related to
this condition.” (R. 708). The final example given by ALJ Kayser is that while Hines complained
of pain, he exhibited no pain behaviors. (R. 165). This concern by ALJ Kayser notwithstanding,
it was noted that as late as May 10, 2012, that Hines has been prescribed narcotic medication for
pain. (R. 2003, 2005). If Hines’s treating physicians, whose opinions are given controlling
weight, believe that he is in sufficient pain to warrant prescribed chronic opioid use, the Court is
not willing to second-guess the physicians’ best medical judgment. In sum, ALJ Kayser’s
credibility determination as to Hines is not supported by the record as a whole.
D.

New Evidence

In light of the foregoing analysis under subsections A, B, and C, the Court declines to
address the evidence contained in Hines’s treatment records from January 2013, through May
2014, which were not before ALJ Kayser. An evaluation of that evidence is immaterial to the
conclusions reached herein.
E.

Judicial Award of Benefits

“Benefits may be awarded immediately if all necessary factual issues have been resolved,
‘the proof of disability is strong, and opposing evidence is lacking in substance, so that remand

10

would merely involve the presentation of cumulative evidence, or where the proof of disability is
overwhelming.’” Gentry, 741 F.3d at 730 (citing Kalmbach, 409 F. App’x at 865 (internal
quotation marks omitted)). The Commissioner argues in various places that remand for
calculation of awards is inappropriate, and that a remand to ALJ Kayser is the appropriate
remedy if this Court finds ALJ Kayser’s decision to be in error. (Objs. 5-6, 8-9).
As described above, the Court has found errors in ALJ Kayser’s decision. ALJ Kayser
has held four hearings in this matter. The Appeals Council remanded the case to ALJ Kayser
following his first decision in order for him to, inter alia, address or weigh Dr. Stephenson’s
opinion, which ALJ Kayser again failed to do in accordance with the applicable regulations in
his January 15, 2013, Decision.
The Sixth Circuit has granted an award of benefits after a single hearing before an ALJ
due to “the opinions of the treating physicians, [plaintiff’s] assertions of disabling pain arising
from documented physical illness, injury, and mental impairment, and the extensive medical
record . . . .” Minor v. Comm’r of Soc. Sec., 513 F. App’x 417, 439 (6th Cir. 2013) (citation
omitted). It has also granted an award of benefits after a single hearing before an ALJ due to
severity of the disabling conditions and in light of the impairments caused by. Gentry, 741 F.3d
at 730. The Court finds that, after four hearings and having reviewed over one thousand pages of
medical evidence, a judicial award of benefits is appropriate as it is supported by substantial
evidence, and remand for further proceedings would result only in the presentation of cumulative
evidence.
V.

CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED AND ADJUDICATED that
Magistrate Judge King’s Findings of Fact, Conclusions of Law and Recommendation (DN 21) is

11

ACCEPTED AND ADOPTED IN ITS ENTIRETY, and the Commissioner’s Objections (DN
22) are OVERRULED.
This is a final and appealable Memorandum Opinion and Order, and there is no just cause
for delay.

Greg N. Stivers, Judge
United States District Court
July 14, 2015

cc:

counsel of record

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