Clement v. Social Security, Commissioner of

Filing 19

MEMORANDUM OPINION and ORDER REMANDING THIS MATTER TO DEFENDANT FOR FURTHER PROCEEDNGS CONSISTENT WITH THIS OPINION AND ORDER re 14 MOTION for Summary Judgment, 13 MOTION for Summary Judgment (to replace incomplete PDF in Doc #12), 16 RE PORT AND RECOMMENDATION re 14 MOTION for Summary Judgment filed by Social Security, Commissioner of, 13 MOTION for Summary Judgment (to replace incomplete PDF in Doc #12) filed by Neil E. ClementREPORT AND RECOMMENDATION re 14 MOTION for Summary Judgment filed by Social Security, Commissioner of, 13 MOTION for Summary Judgment (to replace incomplete PDF in Doc #12) filed by Neil E. Clement Signed by District Judge Lawrence P. Zatkoff. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
NEIL E. CLEMENT,
Plaintiff,
CIVIL NO.: 10-14983
HON. LAWRENCE P. ZATKOFF

v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
__________________________/

OPINION AND ORDER
AT A SESSION of said Court, held in the
United States Courthouse, in the City of Port Huron,
State of Michigan, on the 1ST day of February, 2012
PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
This matter is before the Court on the parties’ cross motions for summary judgment with
respect to Defendant’s decision to deny Plaintiff’s application for Social Security disability benefits.
The Court is also in receipt of Magistrate Judge Binder’s Report and Recommendation, wherein the
Magistrate Judge recommends that Plaintiff’s Motion for a Summary Judgment be denied and
Defendant’s Motion for Summary Judgment be granted.
After a thorough review of the court file, the Report and Recommendation, the objections
to the Report and Recommendation filed by Plaintiff, and Defendant’s response to Plaintiff’s
objections to the Report and Recommendation, this Court:
A.

Adopts Sections II.A.- II.E., Section F.1 and Section F.2.c. of the Report and
Recommendation and incorporates by reference into this Opinion those
portions of the Report and Recommendation;

B.

Declines to adopt the balance of the Report and Recommendation; and

C.

For the reasons that follow, concludes that this matter must be remanded to
Defendant for further proceedings in accord with this Opinion.

II. ANALYSIS
Plaintiff contends that substantial evidence fails to support the findings of the Commissioner.
Plaintiff specifically contends that the Administrative Law Judge (“ALJ”) failed to comply with
controlling Sixth Circuit precedent in rejecting the opinion of Plaintiff’s treating physician, Dr.
James Honet. Dr. Honet opined that Plaintiff cannot perform even the minimal demands of
sedentary work. Plaintiff also contends that the ALJ’s credibility findings as to Plaintiff are not
supported by substantial evidence.
A.

Treating Physician
As stated by the Magistrate Judge, in weighing the opinions and medical evidence, an ALJ

must consider relevant factors such as the length, nature and extent of the treating relationship, the
frequency of examination, the medical specialty of the treating physician, the opinion’s evidentiary
support, and its consistency with the record as a whole. 20 C.F.R. § 404.1527(d)(2)-(6). Therefore,
a medical opinion of an examining source is entitled to more weight than a non-examining source,
and a treating physician’s opinion is entitled to more weight than a consultative physician who only
examined the claimant one time. 20 C.F.R. § 404.1527(d)(1)-(2). See also Rogers, 486 F.3d at 242
(stating that the “treating physician rule,” which provides that “greater deference is usually given
to the opinions of treating physicians than to those of non-treating physicians,” is a key governing
standard in social security cases).
The opinion of a treating physician should be given controlling weight if it is “well supported

2

by medically acceptable clinical and laboratory diagnostic techniques” and is “not inconsistent with
the other substantial evidence in [the] case record.” Wilson, 378 F.3d at 544 (emphasis added); 20
C.F.R. § 404.1527(d)(2). A physician qualifies as a treating source if the claimant sees the physician
“with a frequency consistent with accepted medical practice for the type of treatment and/or
evaluation required for [the] medical condition.” 20 C.F.R. § 404.1502. “The opinion of a nonexamining physician, on the other hand, ‘is entitled to little weight if it is contrary to the opinion of
the claimant’s treating physician.’” Adams v. Massanari, 55 Fed. App’x 279, 284 (6th Cir. 2003)
(quoting Shelman v. Heckler, 821 F.2d 316, 321 (6th Cir. 1987)).
“Claimants are entitled to receive good reasons for the weight accorded their treating sources
independent of their substantive right to receive disability benefits.” Smith v. Comm’r of Soc. Sec.,
482 F.3d 873, 875 (6th Cir. 2007). Therefore, a decision denying benefits “must contain specific
reasons for the weight given to the treating source’s medical opinion, supported by the evidence
in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the
weight the adjudicator gave to the treating source’s opinion and the reasons for that weight.” S.S.R.
96-2p, 1996 WL 374188, at *5 (1996). See also Rogers, 486 F.3d at 242. “[A] failure to follow the
procedural requirement of identifying the reasons for discounting the opinions and for
explaining precisely how those reasons affected the weight accorded the opinions denotes a
lack of substantial evidence, even where the conclusion of the ALJ may be justified based upon
the record.” Rogers, 486 F.3d at 243 (emphasis added).
“It is well settled that the ultimate issue of disability is reserved to the Commissioner.” Kidd
v. Comm’r, 283 Fed. App’x 336, 341 (6th Cir. 2008); Gaskin v. Comm’r, 280 Fed. App’x 472, 47576 (6th Cir. 2008). As such, Dr. Honet’s conclusion that Plaintiff is totally disabled from any

3

occupation and that he will never be able to resume any work is not binding on the ALJ. It is
undisputed that Dr. Honet is a treating physician, however, and Dr. Honet appears to be the only
treating physician for Plaintiff since February 2008, at least in relation to the medical conditions at
issue. It is undisputed that no physician examined Plaintiff on behalf of Defendant. Instead, at the
request of the ALJ after the hearing, Dr. Joseph Jensen completed a medical interrogatory form
based upon a review of Plaintiff’s medical records–without examining Plaintiff. Under such
circumstances, and for the following reasons, the Court finds that the ALJ’s decision to not give
controlling weight to Dr. Honet’s underlying opinions was improper.
Simply put, the ALJ did not provide valid reasons for rejecting Dr. Honet’s opinion
regarding Plaintiff’s disability, as required in the Sixth Circuit. See 20 C.F.R. § 404.1527(d)(2). As
the Sixth Circuit recently stated, an ALJ must properly discuss the weight the ALJ gives a treating
physician’s opinion regarding disability, and:
[t]his requirement is not simply a formality; it is to safeguard the
claimant’s procedural rights. It is intended “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 []he is not.
Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011) (quoting Wilson v. Comm’r of Soc. Sec., 378 F.3d
541, 544-45 (6th Cir. 2004)). In other words, “the real issue is whether the Commissioner both had,
and adequately articulated, a valid rationale for not accepting [a doctor’s] statement that plaintiff
was disabled from a combination of his physical ... disorders.” Daniels v. Comm’r of Soc. Sec., 2011
WL 2110145, at *2 (S.D. Ohio 2011).
In this case, the ALJ (as the ALJ did in Cole) accepted the treating physician’s diagnosis of
the medical condition (here, cervical post laminectomy syndrome) but rejected the conclusions of
4

the treating physician regarding the severity of Plaintiff’s impairments as such impairments related
to Plaintiff’s ability to work. The ALJ’s evaluation of Dr. Honet contains no discussion of the
weight, if any, the ALJ gave to Dr. Honet’s opinion regarding disability. The ALJ stated only that
“the undersigned finds [Dr. Honet’s] opinion to be at odds with the treatment record as a whole and
the opinion is not supported by his treatment notes,” and no explanation of how Dr. Honet’s opinion
was at odds with the treatment record as a whole or Dr. Honet’s treatment notes was provided.
Thus,
[it] cannot be said that Dr. [Honet’s] opinions are patently deficient,
because the ALJ found them sufficient as to [Plaintiff’s] category of
diagnosis. . . . Nor can [this Court] say that the goal of § 1527(d)(2)
was met, because the ALJ’s decision leaves this Court without a clear
understanding of why the ALJ credited Dr. [Honet’s] opinion as to
diagnosis but discredited it as to work limitations.
Cole, 661 F.3d at 940.
Accordingly, the Court concludes that the ALJ’s “failure to follow the procedural
requirement of identifying the reasons for discounting the opinions and for explaining precisely how
those reasons affected the weight” given “denotes a lack of substantial evidence, even [though] the
conclusion of the ALJ may be justified based upon the record.” Rogers, 486 F.3d at 243.
B.

Plaintiff’s Credibility
Social Security Regulations prescribe a two-step process for evaluating subjective complaints

of pain. The plaintiff must establish an underlying medical condition: (1) based on objective medical
evidence to confirm the severity of the alleged pain rising from the condition, or (2) of a severity
which can reasonably be expected to give rise to the alleged pain. 20 C.F.R. § 404.1529(b); Jones
v. Sec’y of Health & Human Servs., 945 F.2d 1365, 1369 (6th Cir. 1991) (citing Duncan v. Sec’y of
Health & Human Servs., 801 F.2d 847, 853 (6th Cir. 1986)). If a plaintiff establishes such an
5

impairment, the ALJ then evaluates the intensity and persistence of the plaintiff’s symptoms. 20
C.F.R. § 404.1529(c); Jones, 945 F.2d at 1369-70. In evaluating the intensity and persistence of
subjective symptoms, the ALJ considers objective medical evidence and other information, such as
what may precipitate or aggravate the plaintiff’s symptoms, what medications, treatments, or other
methods plaintiff uses to alleviate his symptoms, and how the symptoms may affect the plaintiff’s
pattern of daily living. Id.
Thus, the issue before this Court is whether the ALJ’s credibility determinations are
supported by substantial evidence. An ALJ’s findings based on the credibility of an applicant are
to be accorded great weight and deference, particularly since the ALJ is charged with the duty of
observing a witness’s demeanor and credibility. Walters, 127 F.3d at 531. When weighing
credibility, an ALJ may give less weight to the testimony of interested witnesses. Cummins v.
Schweiker, 670 F.2d 81, 84 (7th Cir. 1982) (“a trier of fact is not required to ignore incentives in
resolving issues of credibility”); Krupa v. Comm’r of Soc. Sec., No. 98-3070, 1999 WL 98645 at *3
(6th Cir. Feb. 11, 1999) (unpublished).
After examining the record evidence, especially in light of the ALJ’s apparent disregard of
Dr. Honet’s opinion regarding Plaintiff’s disability, it is not clear to this Court that substantial
evidence supports the ALJ’s finding that Plaintiff’s testimony regarding his level of pain was not
fully credible. For example, as noted above, the objective medical evidence shows that Plaintiff
underwent cervical spine surgeries and takes pain medication as a result. Nonetheless, the ALJ did
not make findings regarding the medication’s side effects (which Dr. Honet testified could cause,
among other side effects, concentration problems). Accordingly, as with the ALJ’s consideration
of the treating physician’s opinion, the Court finds that the ALJ failed to adequately address why

6

he did not find Plaintiff credible.
C.

Conclusion
For the reasons set forth above, the Court concludes that:
(1)

The findings of the ALJ as to Plaintiff’s credibility and disability are not
sufficient; and

(2)

This matter must be remanded to Defendant for purposes of:
(a)

properly considering and addressing Dr. Honet’s opinion regarding
Plaintiff’s disability;

(b)

properly considering and addressing the credibility of Plaintiff; and

(c)

rendering a new decision in accordance with all applicable law.

III. CONCLUSION
Accordingly, and for the reasons stated above, the Court hereby REMANDS this matter to
Defendant for further proceedings consistent with this Opinion and Order.
IT IS SO ORDERED.

S/Lawrence P. Zatkoff
LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
Dated: February 1, 2012

7

CERTIFICATE OF SERVICE
The undersigned certifies that a copy of this Order was served upon the attorneys of record
by electronic or U.S. mail on February 1, 2012.

S/Marie E. Verlinde
Case Manager
[phone]

8