Elam v. Commissioner of Social Security
Filing
19
MEMORANDUM OPINION AND ORDER by Magistrate Judge Lanny King on 7/2/2015. This matter is REMANDED to the Commissioner for a new decision in which the Commissioner will identify good reasons for the weight given to the treating source medical opinion in light of the evidence as a whole, including new and material evidence. cc: Counsel (CDR)
JAMES H. ELAM
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:14‐CV‐00166‐LLK
PLAINTIFF
DEFENDANT
v.
CAROLYN W. COLVIN, Commissioner of Social Security
MEMORANDUM OPINION AND ORDER
Plaintiff filed a complaint seeking judicial review, pursuant to Sentence 4 of 42 U.S.C. § 405(g), of
a final decision of the Social Security administration denying his claims for disability benefits. Docket
Number (DN) 13. The decision was issued by an administrative law judge (ALJ). Additionally, Plaintiff
filed a motion for a judicial remand to the administration, pursuant to Sentence 6 of Section 405(g), for
consideration of new and material evidence that was not before the ALJ. DN 12. The Commissioner’s
consolidated answer to complaint and response in opposition to motion is at DN 18.
The parties have consented to the jurisdiction of the undersigned Magistrate Judge to
determine this case, with any appeal lying before the Sixth Circuit Court of Appeals. The matter is ripe
for determination.
Because the ALJ’s decision failed to give “good reasons” as contemplated by 20 C.F.R. §
404.1527(c)(2) and 416.927(c)(2) for the weight given to the medical opinion of Plaintiff’s treating
physician, the Commissioner’s decision does not comport with applicable legal standards and must be
remanded for a new decision. Additionally, a sentence‐six remand is warranted for consideration of
new and material evidence.
Judicial Review
Plaintiff alleges disability, among other things, due to degenerative disc disease with
radiculopathy and chronic pain syndrome.
1
On June 14, 2013, Plaintiff’s treating physician, Narendra Nathoo, completed the standard
Residual Functional Capacity [RFC] Assessment form, finding significant limitations with respect to
Plaintiff’s ability to lift and stand/walk, which are incompatible with the requirements of light work.
Administrative Record (AR), p. 471.1
The ALJ gave Dr. Nathoo’s opinion “little weight” and found that, although he can no longer
perform his past relevant work, Plaintiff can perform a significant number of light jobs in the national
economy. AR, pp. 56‐57.
The ALJ’s stated rationale for rejection of Dr. Nathoo’s opinion was:
1. Dr. Nathoo’s opinion is “inconsistent with this doctor’s own contemporaneously reported
findings (Exhibits 15F, 19F) [AR, pp. 441‐445 and 475‐478].”
2. Dr. Nathoo’s treatment notes provide “no basis whatsoever for the environmental limitations
posited by Dr. Nathoo.”
3. Plaintiff “testified that he had no problems with hand and arm use.”
4. The Function Reports submitted by Plaintiff and his mother at Exhibits 1E and 8E [AR, pp.
249‐57 and 291‐99] indicate “no significant problems with ... standing, walking.”
5. Mason v. Commissioner, 994 F.2d 1058 (3d Cir.1993), Crane v. Commissioner, 76 F.3d 251 (9th
Cir.1996), and O’Leary v. Secretary, 710 F.2d 1334 (8th Cir.1983) hold that “form reports [such as Dr.
Nathoo’s completion of the RFC Assessment form], in which a source’s only obligation is to fill in a blank
or check off a box, are entitled to little weight.”
(ALJ’s decision at AR, pp. 56‐57).
A treating physician’s opinion is entitled to controlling weight if it is “well‐supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other
1
Dr. Nathoo found, among other things, that Plaintiff can lift no more than 10 pounds occasionally, can stand daily
at a work station for less than 2 hours per 8‐hour workday, and can walk for only about a block. AR, p. 471. Light
work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to
10 pounds. 20 C.F.R. §§ 404.1567(b) and 416.967(b). The full range of light work requires standing or walking, off
and on, for a total of approximately 6 hours of an 8‐hour workday, with sitting occurring intermittently during the
remaining time. Social Security Ruling (SSR) 83‐10 at *6.
2
substantial evidence in your case record.” 20 C.F.R. § 404.1527(c)(2) and 416.927(c)(2). “We will always
give good reasons in our notice of determination or decision [in light of the factors listed at sub‐sections
(c)(1) through (c)(6) of the regulation] for the weight we give your treating source's opinion.”
Prior to Wilson v. Commissioner, 378 F.3d 541 (6th Cir.2004), reviewing courts typically went
beyond the literal requirement that the “good reasons” be stated on the face of the ALJ's decision.
Where no such good reasons were apparent, courts proceeded to determine whether the deficiency in
the written decision was harmless error. The error was deemed harmless if, through suggestion by the
Commissioner or on its own initiative, the courts could identify “good reasons” in the administrative
record as a whole.
Wilson held that this type of harmless‐error analysis is inappropriate because Section
404.1527(c)(2) is a procedural regulation that bestows a quasi‐substantive right upon claimants: “The
requirement of reason‐giving exists, in part, to let claimants understand the disposition of their cases,
particularly in situations where a claimant knows that his physician has deemed him disabled and
therefore might be especially bewildered when told by an administrative bureaucracy that she is not,
unless some reason for the agency's decision is supplied.” Id. at 544.
The reasons given by the ALJ for rejection of Dr. Nathoo’s medical opinion are not “good
reasons” because:
1. The ALJ identified no specific inconsistency between Dr. Nathoo’s opinion and his
contemporaneous treatment notes and findings, and none is apparent.
2. A treating physician may, if asked, identify limitations regardless of whether he previously
documented those limitations and their medical bases in his treatment notes. In any event, even
discounting the environmental limitations, the limitations on lifting, standing, and walking still preclude
light work.
3
3. While Plaintiff testified that there is nothing per‐se “wrong” with his arms and hands, he
clarified that he is unable to lift more than 10 pounds at a time and would not be able to lift even 10
pounds many times due to “extreme pain.” AR, pp. 86‐87.
4. In completing the Function Report, Plaintiff specifically stated that “back hurts to ... stand”
and that he can walk for only 2 blocks before needing to stop and rest. AR, p. 255.
5. The RFC Assessment completed by Dr. Nathoo was not just a check‐box / fill‐in‐the‐blank
form because it provided a comments section. Dr. Nathoo’s commentary was that his findings were
based upon the fact that: “Patient has multi‐level lumbar disc disease with chronic pain syndrome. Also
has radicular pain in right lower back.” AR, p. 472. The foreign‐circuit cases cited by the ALJ are not
binding on this Court, particularly to the extent they permit summary dismissal of a treating source
medical opinion that is supported by objective medical evidence simply because the opinion is
contained within a pre‐prepared form.
The ALJ erred in failing to identify good reasons for rejecting the treating source medical
opinion. Pursuant to Wilson, supra, the Court does not reach the question of whether the error was
harmless. A remand for a new decision is required.
Motion For A Sentence‐Six Remand
Evidence submitted by a plaintiff after the Commissioner's final decision may be considered by a
reviewing court only for the limited purpose of determining whether to grant a motion for a sentence‐
six remand. Cline v. Commissioner, 96 F.3d 146 (6th Cir.1996). The party seeking remand bears the
burden of proving that it is proper. Sizemore v. Secretary, 865 F.2d 709, 711–712 (6th Cir.1988).
In December, 2013, after the ALJ issued his decision in July, 2013, Dr. Nathoo’s treatment notes
state that: “Given the progression of his symptoms, I have re‐ordered an MRI [magnetic resonance
4
imaging] of the lumbar spine, EMG/NCV [electromyography / nerve conduction velocity] testing of both
lower limbs and a flexion extension x‐ray of his lumbar spine.” AR, p. 31.2
Dr. Nathoo opined that the new evidence reinforced his prior opinion, which the ALJ rejected,
that Plaintiff is unable to engage in frequent bending, lifting, and walking, lifting and/or carrying
weights. AR, p. 25. This is because the new radiographic evidence showed advanced degenerative disc
disease involving the entire lumbar spine (T12/L1 down to L5/S1) and the EMG/NCV revealed
demyelinating polyneuropathy to both lower limbs (diffuse nerve damage to multiple nerves). Id.
Remand is warranted if the evidence is material and there was good cause for its late
submission. Evidence is material if there is a reasonable probability that the ALJ “would have reached a
different disposition ... if presented with the new evidence.” Sizemore, supra. Evidence of subsequent
deterioration or change in a claimant's condition after the administrative hearing is deemed immaterial.
Id. Good cause is generally shown “if the new evidence arises from continued medical treatment of the
condition, and was not generated merely for the purpose of attempting to prove disability.” Koulizos v.
Secretary, 1986 WL 17488 at *2 (6th Cir.).
The Commissioner argues that the new evidence is immaterial because it reveals only a
subsequent (post‐ALJ decision) deterioration in Plaintiff’s medical condition. DN 18, pp. 12‐13.
Given the relatively short period of time between the ALJ’s decision and MRI and EMG/NCV
testing and in light of the slowly‐progressive nature of degenerative disc disease, it is unlikely that the
degeneration occurred entirely or even primarily after the ALJ’s decision. See Works v. Commissioner,
2014 WL 3819338 (E.D.Mich.) (“the degradation in Works' condition occurred over a long period of time,
and not simply within the few intervening months between the evaluations and the ALJ's decision”) and
Bates v. Commissioner, 2014 WL 906567 (N.D.W.Va.) (the “EMG study clearly relates to the period on or
before the date of the ALJ decision”) (internal quotation omitted).
2
The lumbar spine MRI results are at AR, pp. 40‐41. The EMG/NCV test results are at AR, pp. 36‐37. The lumbar
spine x‐ray results are at AR, p. 42.
5
A sentence‐six remand is appropriate and warranted in this case.
Order
This matter is REMANDED to the Commissioner for a new decision in which the Commissioner
will identify good reasons for the weight given to the treating source medical opinion in light of the
evidence as a whole, including new and material evidence.
July 2, 2015
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?