Monroe v. Commissioner of Social Security

Filing 36

MEMORANDUM OPINION & ORDER Signed by Senior Judge Thomas B. Russell on 3/28/2017 REJECTING 30 Findings of Fact; The Commissioners decision is REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Memorandum Opinion. The Clerk of the Court is DIRECTED to close the above-captioned action. cc: Counsel(KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:15-CV-00123-TBR-LLK
JAMES A. MONROE,

Plaintiff,

v.
COMMISSIONER OF SOCIAL SECURITY,

Defendant.

MEMORANDUM OPINION AND ORDER
James A. Monroe brought this action pursuant to 42 U.S.C. § 405(g) to obtain
judicial review of the Commissioner of Social Security’s decision to deny his application
for disability insurance benefits. The Court referred Monroe’s action for a report and
recommendation regarding its appropriate disposition.

See 28 U.S.C. § 636(b)(1).

Subsequently, the Magistrate Judge recommended that the Court affirm the
Commissioner’s decision and dismiss Monroe’s complaint.

Monroe objects to that

course of action, arguing that the ALJ erred when she failed to discuss, or even mention,
the medical opinions of a nontreating (but examining) source before deciding that he was
not disabled within the meaning of the Social Security Act. Having reviewed the record,
the Court agrees. Accordingly, the Court REJECTS the Magistrate Judge’s Report and
Recommendation, [R. 30], and SUSTAINS James A. Monroe’s Objection, [R. 31]. The
Commissioner’s decision is REVERSED and REMANDED pursuant to sentence four of
42 U.S.C. § 405(g) for further proceedings consistent with this Memorandum Opinion.
I.
A.
James A. Monroe, a United States Marine Corps veteran, applied for disability
benefits on January 3, 2014. [A.R. at 31.] He claims that he has been unable to work
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since September 17, 2013. [Id.] Monroe’s alleged disabilities include degenerative disc
disease, migraine headaches, obesity, traumatic brain injury, depression, and posttraumatic stress disorder.

[Id. at 33.]

The Social Security Administration denied

Monroe’s initial claim for disability insurance benefits on March 4, 2014, and, upon
reconsideration, adhered to that decision. [Id. at 31.] Upon his request, Administrative
Law Judge Marci P. Eaton held a hearing on May 9, 2014. [Id.] In addition to Monroe,
the ALJ heard testimony from Dr. Tom L. Wagner, a psychological expert, and James B.
Adams, a vocational expert. [Id. at 64, 68.]
The ALJ denied Monroe’s claim. [Id. at 39.] Using the traditional five-step
evaluation for disability benefits, see 20 C.F.R. § 404.1520(a)(4), the ALJ made the
following findings. First, the ALJ found that Monroe had not engaged in substantial
gainful activity since the alleged onset date. [A.R. at 33.] Second, Monroe has several
severe impairments, namely degenerative disc disease, migraine headaches, obesity,
traumatic brain injury, depression, and post-traumatic stress disorder. [Id.] Third, the
ALJ found that Monroe’s impairments do not meet or equal one of the Commissioner’s
recognized impairments. [Id. at 34.] Fourth, Monroe retains the residual functional
capacity to perform a range of sedentary work, although not any past relevant work. [Id.
at 34–38.] Fifth, in light of his age, education, and work experience, Monroe is able to
perform jobs that exist in significant numbers in the national economy. [Id. at 38–39.]
The ALJ, therefore, determined that Monroe is not disabled within the meaning of the
Social Security Act. [Id. at 39.]
The Appeals Council declined to review the ALJ’s decision on October 20, 2014.
[Id. at 10–13.]

Accordingly, the ALJ’s denial became the final decision of the

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Commissioner. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 543–44 (6th Cir. 2004)
(citing Miles v. Chater, 84 F.3d 1397, 1399 (11th Cir. 1996)). Pursuant to 42 U.S.C. §
405(g), Monroe brought this action to obtain judicial review of the Commissioner’s
decision. [See R. 1 (Complaint).]
B.
The Court referred Monroe’s action to Magistrate Judge Lanny King for a report
and recommendation regarding its appropriate disposition. See 28 U.S.C. § 636(b)(1).
The Magistrate Judge recommended that the Court affirm the Commissioner’s decision
and dismiss Monroe’s complaint.

[See R. 30 at 6 (Report and Recommendation).]

Monroe objects to that course of action. [See R. 31 (Monroe’s Objection).] Despite
enjoying the benefit of two extensions of time, the Commissioner has declined to respond
to Monroe’s objection. [See R. 34 (Order of December 13, 2016); R. 35 (Order of
December 13, 2016).]
II.
It is well-settled that the Court reviews the objected-to portions of a report and
recommendation de novo. 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b). Its
review of the Commissioner’s determination is, of course, more deferential. See 42
U.S.C. § 405(g); Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009). The
scope of that inquiry is limited to (1) “whether the findings of the ALJ are supported by
substantial evidence” and (2) “whether the ALJ applied the correct legal standards.”
Miller v. Comm’r of Soc. Sec., 811 F.3d 825, 833 (6th Cir. 2016) (quoting Blakley, 581
F.3d at 405–06). “Substantial evidence” means “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Lindsley v. Comm’r of Soc.

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Sec., 560 F.3d 601, 604 (6th Cir. 2009) (quoting Richardson v. Perales, 402 U.S. 389,
401 (1971)). Even if supported by substantial evidence, however, “a decision of the
Commissioner will not be upheld where the [Social Security Administration] fails to
follow its own regulations and where that error prejudices a claimant on the merits or
deprives the claimant of a substantial right.” Rabbers v. Comm’r of Soc. Sec., 582 F.3d
647, 651 (6th Cir. 2009) (quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th
Cir. 2007)).
III.
In this case, Monroe argues that the ALJ erred when she failed to discuss, or even
mention, the opinions of Dr. Krista Brooks-Horrar before deciding that he was not
disabled within the meaning of the Social Security Act. [See R. 24 at 12–15 (Monroe’s
Memorandum of Law).] While conceding that the ALJ never addressed Dr. BrooksHorrar’s opinions, the Magistrate Judge held that the ALJ’s failure was, at worst,
harmless because her opinions were consistent with the ALJ’s findings. [See R. 30 at 2–
3.] Monroe takes issue with that conclusion, [see R. 31 at 2–4], and for good reason.
Under the Social Security Act, “the Commissioner determines whether a claimant
is disabled,” and, therefore, “entitled to benefits.” Blakley, 581 F.3d at 405 (citing 42
U.S.C. § 405(g)). In evaluating a claimant’s status, the Commissioner has instructed
ALJs to consider all “medical opinions” offered in the claimant’s case. See 20 C.F.R. §
404.1527(b)–(c). “Medical opinions” are statements from “acceptable medical sources
that reflect judgments about the nature and severity” of the claimant’s impairment. Id. §
404.1527(a)(1). The ultimate weight assigned to, and the depth of consideration of, those

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opinions will depend on the classification of the source as nonexamining, nontreating
(but examining), or treating. Id. § 404.1502.
A nonexamining source is a “physician” or “other acceptable medical source who
has not examined [the claimant] but provides a medical or other opinion in [the
claimant’s] case.” Id. A nontreating (but examining) source has examined the claimant,
“but does not have, or did not have, an ongoing treatment relationship” with the claimant.
Id. A treating source, to whom the Commissioner affords the most deference, has not
only examined the claimant, but also has “an ongoing treatment relationship” with him
too. Id.
If a medical opinion is from a “treating source,” then the ALJ must “give good
reasons” for accepting or rejecting that opinion. Id. § 404.1527(c)(2). The ALJ need not
do the same for opinions from nontreating (but examining) and nonexamining sources.
Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 875–76 (6th Cir. 2007).

Still, the

Commissioner has advised ALJs to consider factors such as “the length and nature of the
treatment relationship, the evidence that the physician offered in support of her opinion,
how consistent the opinion is with the record as a whole, and whether the physician was
practicing in her specialty,” to determine the weight of opinions from those sources. Ealy
v. Comm’r of Soc. Sec., 594 F.3d 504, 514 (6th Cir. 2010) (citing 20 C.F.R. §
404.1527(d) (2009)).

If the ALJ fails to follow those regulations and that error

“prejudices a claimant on the merits or deprives the claimant of a substantial right,” the
ALJ’s decision will not be upheld. Rabbers, 582 F.3d at 651 (quoting Bowen, 478 F.3d
at 746).

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Here, Dr. Brooks-Horrar, a neurologist, examined Monroe on three occasions
between January 2013 and April 2014 to evaluate the residuals of his traumatic brain
injury, which he sustained while serving in Iraq in 2004. [A.R. at 399–427, 1019–33.] In
2013, Dr. Brooks-Horrar opined that Monroe suffered from migraine headaches as a
result of his traumatic brain injury. [Id. at 407–09.] Although migraine headaches alone
would not render Monroe “unemployable,” Dr. Books-Horrar went on to conclude that
Monroe would exhibit “occasional tardiness or absence” as a result. [Id. at 412; see also
id. at 416.] One year later, Dr. Brooks-Horrar reevaluated Monroe’s condition. [Id. at
1019–33.] Monroe reported suffering from migraine headaches once or twice a week,
and four or five times in the month prior to his visit. [Id. at 1031.] The headaches were
of such intensity that Monroe must lie down for around an hour before the pain subsides.
[Id.] Based on Monroe’s description, Dr. Brooks-Horrar opined: “[Monroe’s] headaches
with associated nausea and light sensitivity would cause absences or tardiness from both
physical and sedentary occupations.” [Id. at 1032–33.]
Monroe appears to concede, [see R. 31 at 3–4], and the Court agrees, that Dr.
Brooks-Horrar qualifies as a nontreating (but examining) source, see 20 C.F.R. §
404.1502. Accordingly, the ALJ was not required to “give good reasons” for accepting
or rejecting Dr. Brooks-Horrar’s medical opinions. See Smith, 482 F.3d at 876. Still, the
Commissioner’s regulations obligated the ALJ to at least “consider” Dr. Brooks-Horrar’s
medical opinions. 20 C.F.R. § 404.1527(b) (“In determining whether [claimants] are
disabled, we will always consider the medical opinions in [the] case record together with
the rest of the relevant evidence we receive.”).

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Contrary to the Magistrate Judge’s finding, [see R. 30 at 3–4], there is no
indication that the ALJ considered Dr. Brooks-Horrar’s medical opinions. The ALJ made
no mention of Dr. Brooks-Horrar’s medical opinion in any portion of her decision. [See
A.R. at 31–40.] In doing so, the ALJ failed to weigh Dr. Brooks-Horrar’s opinion using
the factors discussed in 20 C.F.R. § 404.1527(c). Though the ALJ is not obligated to
expressly provide “good reasons” for accepting or rejecting Dr. Brooks-Horrar’s
opinions, “it must be apparent from a fair reading of the [ALJ’s] decision that the medical
opinions of nontreating sources were at least considered.” Borman v. Comm’r of Soc.
Sec., No. 2:12-CV-509, 2013 WL 3394392, at *4 (S.D. Ohio July 8, 2013), adopted by
2013 WL 3935028 (S.D. Ohio July 30, 2013); accord Jackson v. Comm’r of Soc. Sec.,
No. 2:14-CV-801, 2015 WL 5634671, at *6–9 (S.D. Ohio Sept. 25, 2015); cf. Potts v.
Astrue, No. 3:07-CV-1284, 2009 WL 2168731, at *4–7 (M.D. Tenn. July 17, 2009).
Here, it is not.
The ALJ’s omission cannot be considered harmless error since it prejudiced
Monroe “on the merits.” Rabbers, 582 F.3d at 651 (quoting Bowen, 478 F.3d at 746). In
the main, Dr. Brooks-Horrar’s opinion is inconsistent with the ALJ’s assessment of
Monroe’s residual functional capacity.

Dr. Brooks-Horrar opined:

“[Monroe’s]

headaches with associated nausea and light sensitivity would cause absences or tardiness
from both physical and sedentary occupations.” [A.R. at 1032–33.] However, the ALJ’s
discussion of Monroe’s residual functional capacity includes no limitation responsive to
Dr. Brooks-Horrar’s above-quoted opinion. The failure to consider that evidence cannot
be considered harmless.

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Due to that error, the Court will remand this action to the Social Security
Administration. Upon remand, the ALJ is instructed to consider Dr. Brooks-Horrar’s
opinion in accordance with the Commissioner’s regulations.
IV.
IT IS HEREBY ORDERED that the Court REJECTS the Magistrate Judge’s
Report and Recommendation, [R. 30], and SUSTAINS James A. Monroe’s Objection,
[R. 31]. The Commissioner’s decision is REVERSED and REMANDED pursuant to
sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this
Memorandum Opinion.
The Clerk of the Court is DIRECTED to close the above-captioned action.
IT IS SO ORDERED.
Date:

March 28, 2017

cc:

Counsel of Record

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