Green v. Commissioner of Social Security
Filing
21
MEMORANDUM OPINION AND ORDER by Magistrate Judge Lanny King on 07/02/2014, REMANDING to the Commissioner for a new decision and further administrative proceedings not inconsistent with this opinion. cc: Counsel (TJD)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
CIVIL ACTION NO. 5:13‐CV‐00176‐LLK
SHERRY RENEE GREEN
Plaintiff
CAROLYN W. COLVIN
Acting Commissioner of Social Security
MEMORANDUM OPINION AND ORDER
Defendant
v.
Sherry Green filed this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of an
administrative decision of the Commissioner of Social Security, who denied her application for disability
benefits. 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.
Plaintiff seeks review of a decision issued by administrative law judge (ALJ) Marci P. Eaton. The
Court agrees with Plaintiff that the ALJ’s finding that she can perform medium work, in light of the
objective radiographic evidence in the administrative record, is unsupported by substantial medical
evidence. Therefore, the Court will REMAND this matter to the Commissioner for a new decision and
further administrative proceedings.
Background Facts and Sequential Evaluation Process
Disability determination is a five‐step sequential process. If an ultimate finding of “disabled” or
“not disabled” is required at any step, it is legally unnecessary to advance the evaluation to the next
step. However, as occurred in this case, where a finding of “not disabled” is required, ALJs sometimes
proceed to subsequent steps, which also result in a finding of “not disabled,” for the purpose of showing
an alternative legal basis for the denial decision.
STEP # 1 The claimant must not be engaged in substantial gainful activity (SGA). Plaintiff was
not engaged in SGA at the time she alleges disability. She last engaged in work‐like activity at Minute
1
Mart.1 She was discharged and, thereafter, received unemployment benefits pursuant to Kentucky
Revised Statutes (KRS) 341.350.
STEP # 2 The alleged disabling impairment must be “severe.” Any physical or mental
impairment that has more than a de minimis, or significant, effect on the claimant's ability to work is
severe, and the sequential evaluation proceeds to Step # 3. The ALJ acknowledged that Plaintiff suffers
from severe, or vocationally‐significant, spine disorder, Hepatitis C, affective disorder, somatoform
disorder, and history of polysubstance abuse. Administrative Record (AR), p. 17.
STEP # 3 If the claimant has a medical condition that satisfies the medical criteria of any
impairment listed in Appendix 1 of 20 C.F.R. Part 404, Subpart P of the regulations (the “Listing”), a
conclusive presumption attaches that the claimant is disabled. Plaintiff does not allege that any of her
impairments are of Listing‐level severity.
STEP # 4 The claimant must not be able to perform past relevant work (PRW) either as actually
performed or as generally performed in the national economy.
The Commissioner determines a claimant’s residual functional capacity (RFC) at Step 4. The ALJ
found that Plaintiff has an RFC for a limited range of medium work. AR, p. 18. Among Plaintiff’s PRW
was working as a hand packager at a cookie factory. The vocational expert (VE) described this job as
medium as generally performed in the national economy but indicated that it was light as actually
performed by Plaintiff.2
1
While the work at Minute Mart was substantial, it was insufficiently gainful to rise to the level of SGA. Plaintiff
had to pay the Methadone Clinic $368.05 per month, which counted against earnings, for treatment that allowed
her to work.
2
Upon questioning by the VE, Plaintiff clarified that she did not engage in any significant lifting such as lifting a
mixing machine or any other type of machinery – just picking up cookies. AR, p. 351. The VE testified that the
work was “normally medium in exertion [Dictionary of Occupational Titles (DOT) Code No. 920.587‐018] [but] it
certainly does exist at light. There is just not a good light classification for it.” AR, p. 352.
2
The ALJ found that Plaintiff is able to perform her PRW as hand packager as actually and
generally performed in the national economy. AR, p. 27. This finding terminated the sequential
evaluation process and required an ultimate finding of “not disabled.”
STEP # 5 The claimant must be unable to perform any job that exists in significant numbers in
the national economy. The ALJ found, “in the alternative,” that “[a]lthough the claimant is capable of
performing past relevant work, there are other jobs existing in the national economy that she is also
able to perform.” AR, p. 27.
The claimant retains the burden of proof at steps one through four. At Step 5, the burden of
going forward with evidence of non‐disability shifts to the Commissioner. The ALJ accepted the VE’s
testimony that, in addition to Plaintiff’s past relevant work as hand packager, an individual with
Plaintiff’s limitations would retain the ability to perform other medium jobs in the national economy,
including laundry worker (DOT 361.687‐018) and product laborer (DOT 921.686‐014). AR, pp. 27‐28.
The ALJ found Plaintiff to be “not disabled” at the fourth and, alternatively, at the fifth and final
steps of the sequential evaluation process.
The ALJ erred in relying on Dr. Hernandez’ opinion
In support of her RFC finding for medium work.
As reflected in the above discussion, the ALJ’s alternative denial rationale required a finding that
Plaintiff retains the ability to perform a limited range of medium work. The ALJ’s finding that Plaintiff
can perform medium work was based, in part, upon “accept[ance] [of] the opinion of the State Agency
program physician,” Carlos X. Hernandez. AR, p. 24.
In recent years, the State Agency has implemented a new system in which disability
determinations are made at the initial level are made by a so‐called “single‐decisionmaker” (SDM). The
SDM is neither a medical nor a vocational expert. Nevertheless, the SDM reviews the medical evidence,
makes medical and vocational findings, and applies those findings to governing legal standards to arrive
at an ultimate finding of “disabled” or “not disabled.”
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If the claimant requests reconsideration, the State Agency will typically obtain a medical opinion
from a State Agency program physician and/or psychologist. These individuals are “highly qualified
physicians, psychologists, and other medical specialists who are also experts in Social Security disability
evaluation.” 20 C.F.R. § 404.1527(e)(2)(i).
The problem in this case is not Dr. Hernandez’ qualification to independently evaluate medical
evidence and arrive at an RFC assessment but rather a lack of evidence in the administrative record as to
what, if any, medical evidence he was provided by the State Agency and, therefore, the extent to which
he was in a position to independently evaluate the evidence.
In this case, SDM Erin Wheeler evaluated the medical evidence of record, including a cervical
spine x‐ray from December, 2009, and a cervical spine MRI from January, 2010. AR, pp. 193‐194. The
radiographic interpretation of these studies revealed significant findings, including degenerative disc
disease (DDD) at the C4 through C7 levels, broad‐based disc bulging, foraminal encrouchment, spurring,
canal narrowing at multiple levels, etc. The SDM summarized these findings as showing only: “Multiple
canal and foraminal stenosis. No fracture. ... DDD at C4‐5, C5‐6 and C6‐C7.” AR, p. 39.3 The SDM
completed the physical RFC form consistently with an ability to perform medium work.
Upon reconsideration, the State Agency requested Dr. Hernandez’ opinion with the following
instructions: “This is a recon claim on a 55 year old .... A medium RFC has been completed. Please sign
RFC ... if you agree. Thanks!” AR, p. 285. Dr. Hernandez signed the form.
The only medical information on the pre‐completed form is an identified primary diagnosis of
“DDD Cervical Spine.” AR, p. 277. The only additional information on the form (besides the pre‐
completed “X” marks corresponding to an ability to perform medium work) is the following (AR, p. 278):
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Subsequent to the assessment of the SDM and Dr. Hernandez, a diagnostic consultation by Keith Crawford, M.D.,
revealed additional significant findings, including “extensive Grade III hypertrophic cervical spondylosis involving
C4‐C5, C5‐C6, C6‐C7 with mild bilateral neuroforaminal encroachment. ... Grade I thoracic spondylosis. Grade II
facet osteoarthropathy with Grade I degenerative spondylolisthesis, L4 with respect to L5.” AR, pp. 325‐326.
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Question: Explain how and why the evidence supports your conclusions .... Cite the
specific facts upon which your conclusions are based.
Pre‐completed Response: The initial RFC is affirmed. New information has been received
and considered but does not significantly alter the previous assessment.
Dr. Hernandez signed the RFC form.
There is no indication whether Dr. Hernandez was provided with: 1) the “new information”
referenced on the form he signed, 2) the actual cervical spine x‐ray and MRI reports, or 3) only the
SDM’s abbreviated summary of those reports. The record does not contradict the possibility that Dr.
Hernandez simply signed off on the form provided by the State Agency based upon a diagnosis of “DDD
Cervical Spine.” There is a huge gap of medical information between this raw diagnosis and the actual
clinical findings in the radiographic reports. While a generic individual with “DDD Cervical Spine” may be
able to perform medium work, it does not follow that Plaintiff can.
The Eastern District of Kentucky (Senior District Judge Joseph M. Hood) was recently confronted
with a similar situation, which also involved an SDM and program physician Dr. Hernandez. Conn v.
Colvin, No. 0:13‐CV‐00138‐JMH, 2014 WL 1613930 (E.D.Ky. April 23, 2014).4
Judge Hood agreed with Plaintiff that “the ALJ erred by relying on the report provided by Dr.
Carlos X. Hernandez because Dr. Hernandez adopted an RFC that was completed by a single‐decision
maker without adequate explanation for the included limitations.” Because Dr. Hernandez left his
explanation blank, the ALJ was unable to determine the appropriate weight to give to Dr. Hernandez’
opinion under the rules for weighing nonexamining source medical opinions. Those rules provide, in
part, that “the weight we will give [nonexamining source] opinions will depend on the degree to which
they provide supporting explanations for their opinions [and] consider all of the pertinent evidence in
your claim.” 20 C.F.R. § 404.1527(c)(3). However, Judge Hood found the error to be harmless because
4
The situation is also reminiscent of the Sixth Circuit’s passing observation in Johnson v. Commissioner, 652 F.3d
646, 650 (6th Cir.2011) that it simply could not “help but note that that the administrative record reflects that [the
State Agency program physician] did not reach this conclusion independently; he was provided with a completed
residual functional capacity [form] and asked to sign it ‘if [you] agree with assessment.’”
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the ALJ did not solely rely on Dr. Hernandez’ opinion in assessing the claimant’s RFC but relied on other
substantial evidence.
This Court reaches the same conclusion that the ALJ erred in relying on Dr. Hernandez’ opinion
in this case. In addition, as in Conn, the Court wishes to clarify that: “[I]t is not holding that a consulting
examiner cannot agree with the findings of an SDM. It is possible that two individuals may examine the
same medical evidence and come to the same conclusion. Rather, the Court is holding that an ALJ may
not rely on the findings of a consulting examiner who wholly fails to explain his findings. Without an
explanation for the examiner's conclusion, the ALJ cannot make a reasoned decision as to the weight to
give to the consulting medical examiner's opinion.”
The ALJ erred in relying on Dr. Hernandez’ opinion in support of her RFC finding for medium
work.
The error was not harmless.
As in Conn, the ALJ’s RFC for medium work was not based solely upon Dr. Hernandez’opinion.
However, unlike Conn, the error was not harmless as the other evidence cited by the ALJ in support of
her RFC was insubstantial.
In June, 2011, Plaintiff was examined, at the request of the State Agency, by Jonathan R. Van
Meter, M.D. In his narrative report, Dr. Van Meter opined restrictions that are inconsistent with the 25‐
pound lifting, 6‐hour standing requirements of medium work and arguably inconsistent with the 6‐hour
sitting requirement of even sedentary work5 (AR, p. 211):
In my opinion, this patient can sit comfortably for 15 to 20 minutes. She can stand for 5
minutes before she has trouble. She can probably walk 5 minutes. She can lift and carry
objects less than 5 pounds short distances. ... She states that she has some numbness in
her hands, which limits her ability to use her hands .... In my opinion, this patient would
5
Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects
weighing up to 25 pounds. A full range of medium work requires standing or walking, off and on, for a total of
approximately 6 hours in an 8‐hour workday. Social Security Ruling (SSR) 83‐10. Sedentary work involves lifting no
more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools.
A full range of sedentary work requires sitting for approximately 6 hours in an 8‐hour workday. Id.
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benefit from the use of a cane over all terrain given the fact that she complained of a lot of
pain in her legs and also complained of back problems and foot. She states she needs a
cane over all terrain.6
In August, 2011, the SDM gave Dr. Van Meter’s opinion little weight and found that Plaintiff can
perform medium work. AR, p. 40.
In November, 2012, the ALJ concurred with the SDM and Dr. Hernandez that Plaintiff can
perform medium work and gave Dr. Van Meter’s contrary opinion “little weight”7 because (AR, pp. 17
and 24):
1. Dr. Van Meter’s objective medical findings during his examination were “within normal limits,
which is consistent with other physical and neurological examinations.”
2. Dr. Van Meter’s opinion is “only consistent with the subjective complaints of the claimant.”
3. Dr. Hernandez opined that Plaintiff can perform medium work.
4. Plaintiff provided no treating source medical opinion regarding her physical restrictions.
5. Plaintiff’s daily activities reflect that she can participate in more activities than she alleged to
Dr. Van Meter.
6. Plaintiff testified that she has been receiving unemployment benefits since June or July 2012
and has applied for work at the Five Star Food Mart and at other small businesses close to her home
after her alleged onset of disability date.
7. Plaintiff’s certification of ability to work as required by Kentucky Revised Statutes (KRS)
341.350 to receive unemployment benefits, while simultaneously alleging inability to work in connection
with her disability claim, negatively impacts on her credibility.
The foregoing reasons for discounting Dr. Van Meter’s opinion and finding that Plaintiff can
perform medium work were insubstantial because:
6
These limitations that Plaintiff reported to Dr. Van Meter are consistent with her testimony at the administrative
hearing beginning at AR, p. 337.
7
“Generally, we give more weight to the opinion of a source who has examined you [i.e., Dr. Van Meter] than to
the opinion of a source who has not examined you [Dr. Hernandez].” 20 C.F.R. § 404.1527(c)(1).
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1. The ALJ’s finding that the physical and neurological examination results support an RFC
“within normal limits,” i.e., an RFC for medium work, is belied by the radiological evidence, which no
medical source took into account in opining an RFC.
2. In light of the radiological evidence, it is not the case that Dr. Van Meter’s opinion, which
acknowledged some significant limitations, is “only” consistent with the subjective complaints of the
claimant.
3. The ALJ’s reliance on Dr. Hernandez’ opinion was insubstantial for the reasons discussed in
the previous section of this report.
4. The lack of a treating source medical opinion did not relieve the ALJ of her responsibility of
considering the evidence as a whole, including the radiographic evidence, in determining Plaintiff’s RFC.
5. While Plaintiff’s daily activities may reflect that she can participate in more activities than she
alleged to Dr. Van Meter, they do not prove that she can perform medium work.
6 and 7. While the Sixth Circuit has recognized that “[a]pplications for unemployment and
disability benefits are inherently inconsistent,” Workman v. Commissioner, 2004 WL 1745782, a finding
that Plaintiff is capable of some work does not prove that she can perform medium work.
The ALJ’s erroneous reliance upon Dr. Hernandez’ RFC for medium work was not harmless
because – disregarding Dr. Hernandez’ RFC – there was no substantial evidence supporting the ALJ’s
finding that Plaintiff can perform her past relevant work, which was medium, and a substantial number
of other medium jobs in the national economy.
The evidence does not support a judicial award of benefits.
The remaining question is whether the Court should accept Dr. Van Meter’s findings and
judicially award benefits.8
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The rationale for an award of benefits would be two‐fold: First, Dr. Van Meter’s finding that Plaintiff can “sit
comfortably for [only] 15 to 20 minutes” (AR, p. 211) suggests that she cannot sit for 6 out of 8 hours per workday
as required by even sedentary work. Second, if Plaintiff cannot perform her medium past relevant work, the
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“A judicial award of benefits is proper only where the proof of disability is overwhelming or
where the proof of disability is strong and the evidence to the contrary is lacking.” Faucher v. Secretary,
17 F.3d 171, 176 (6th Cir.1994).
Like Dr. Hernandez, there is no evidence that Dr. Van Meter was aware of the radiographic
evidence at the time he gave his opinion. On the contrary, it appears that Dr. Van Meter’s assessment
was based entirely upon the results of his own first‐hand observations and examination and a somewhat
uncritical acceptance of Plaintiff’s self‐description of her pain and other subjective symptoms.
Because there is no evidence that Dr. Van Meter’s opinion took into account the radiographic
evidence and other objective medical evidence and because this Court is unqualified to interpret such
evidence in functional terms, the Court is uncomfortable giving Dr. Van Meter’s opinion case‐dispositive
weight on its own initiative.
A judicial award of benefits is inappropriate because evidence of non‐disability is not completely
“lacking” as contemplated by Faucher, supra.
Order
For the foregoing reasons, this matter is REMANDED to the Commissioner for a new decision
and further administrative proceedings not inconsistent with this opinion.
July 2, 2014
sequential evaluation advances to the fifth and final step. In connection with her alternative fifth‐step findings,
the ALJ cited Grid Rules 203.15 and 203.22 as a framework for decisionmaking. AR, p. 28. The corresponding Grid
Rules for light and sedentary work (202.06, 201.06, and 201.14) dictate in an ultimate finding of “disabled.”
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