Jones v. Social Security

Filing 23

ORDER Granting 20 Motion for Summary Judgment; and Denying 22 Motion for Summary Judgment - Signed by Magistrate Judge Mona K. Majzoub. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DAVID BERNARD JONES
Plaintiff,
v.

CIVIL ACTION NO. 16-cv-10664
MAGISTRATE JUDGE MONA K. MAJZOUB

COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
____________________________/

OPINION AND ORDER
GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [20] AND
DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [22]
Plaintiff David Bernard Jones seeks judicial review of Defendant Commissioner of Social
Security’s determination that he is not entitled to social security benefits for his physical
impairments under 42 U.S.C. § 405(g). (Docket no. 1.) Before the Court are Plaintiff’s Motion
for Summary Judgment (docket no. 20) and Defendant’s Motion for Summary Judgment (docket
no. 22). With consent of the parties, this case has been referred to the undersigned for final
judgment in accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73.
(Docket no. 16.) The Court has reviewed the pleadings, dispenses with a hearing pursuant to
Eastern District of Michigan Local Rule 7.1(f)(2), and is now ready to rule.
I.

PROCEDURAL HISTORY
Plaintiff protectively filed applications for a period of disability, disability insurance

benefits, and supplemental security income on February 7, 2013, alleging disability beginning
November 1, 2011, due to injuries that he suffered to his lower back and “both leg calfs” when

he was hit by a car. (TR 70-71, 124-33, 146.) The Social Security Administration denied
Plaintiff’s claims on May 15, 2013, and Plaintiff requested a de novo hearing. (TR 50-71, 8889.) On July 11, 2014, Plaintiff appeared with a representative and testified at the hearing before
Administrative Law Judge (ALJ) John Dodson. (TR 29-49.) In a December 10, 2014 decision,
the ALJ found that Plaintiff was not entitled to benefits because he was capable of performing a
significant number of jobs in the national economy. (TR 15-25.) The Appeals Council declined
to review the ALJ’s decision (TR 1-4), and Plaintiff commenced this action for judicial review.
The parties then filed cross motions for summary judgment, which are currently before the
Court.
II.

HEARING TESTIMONY AND MEDICAL EVIDENCE
Plaintiff (docket no. 20 at 5-10), and the ALJ (TR 19-23, 25) have set forth detailed,

factual summaries of Plaintiff’s medical record and the hearing testimony. Defendant adopts the
ALJ’s recitation of the facts. (Docket no. 22 at 4.) Having conducted an independent review of
Plaintiff’s medical record and the hearing transcript, the undersigned finds that there are no
material inconsistencies between these recitations of the record. Therefore, the undersigned will
incorporate the factual recitations by reference. Additionally, the undersigned will include
comments and citations to the record as necessary throughout this Opinion and Order.
III.

ADMINISTRATIVE LAW JUDGE’S DETERMINATION
The ALJ found that Plaintiff had not engaged in substantial gainful activity since the

alleged onset date of November 1, 2011, and that Plaintiff suffered from the following severe
impairments: degenerative disc disease of the lumbar spine and diabetes. (TR 17.) Next, the
ALJ found that Plaintiff’s impairments did not meet or medically equal the severity of an

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impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (TR 17-18.) The ALJ then
found that Plaintiff had the following residual functional capacity (RFC):
[T]he claimant has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b) with the following limitations: no
climbing ropes, ladders, or scaffolds, and only occasional remaining posturals;
able to alternate between sitting and standing, but no more than 4 times per hour;
and no concentrated exposure to hazards, such as unprotected heights or moving
machinery.
(TR 18-24.) Subsequently, in reliance on the vocational expert’s (VE’s) testimony, the ALJ
determined that Plaintiff was capable of performing a significant number of jobs in the national
economy. (TR 24-25.) Therefore, the ALJ found that Plaintiff was not disabled under the Social
Security Act at any time from November 1, 2011, through the date of the decision. (TR 15, 25.)
IV.

LAW AND ANALYSIS
A.

Standard of Review

Pursuant to 42 U.S.C. § 405(g), this Court has jurisdiction to review the Commissioner’s
final decisions. Judicial review of the Commissioner’s decisions is limited to determining
whether his findings are supported by substantial evidence and whether he employed the proper
legal standards. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Walters v. Comm’r, 127
F.3d 525, 528 (6th Cir. 1997). Substantial evidence is more than a scintilla but less than a
preponderance; it is “‘such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’” Richardson, 402 U.S. at 401 (quoting Consolidated Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)); Walters, 127 F.3d at 528. It is not the function of this Court to try
cases de novo, resolve conflicts in the evidence, or decide questions of credibility. See Brainard
v. Sec’y of Health and Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v. Heckler, 745
F.2d 383, 387 (6th Cir. 1984).

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In determining the existence of substantial evidence, the court must examine the
administrative record as a whole. See Kirk v. Sec’y of Health and Human Servs., 667 F.2d 524,
536 (6th Cir. 1981), cert. denied, 461 U.S. 957 (1983). If the Commissioner’s decision is
supported by substantial evidence, it must be affirmed, even if the reviewing court would decide
the matter differently, Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983), and even if
substantial evidence also supports the opposite conclusion. See Her v. Comm’r, 203 F.3d 388,
389-90 (6th Cir. 1999); Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc) (noting
that the substantial evidence standard “presupposes that there is a zone of choice within which
the decisionmakers can go either way, without interference by the courts”).
B.

Framework for Social Security Determinations

Plaintiff’s Social Security disability determination was made in accordance with a fivestep sequential analysis. In the first four steps, Plaintiff was required to show that:
(1)

Plaintiff was not presently engaged in substantial gainful employment; and

(2)

Plaintiff suffered from a severe impairment; and

(3)

the impairment met or was medically equal to a “listed impairment;” or

(4)

Plaintiff did not have the residual functional capacity (RFC) to perform relevant
past work.

See 20 C.F.R. § 404.1520(a)-(f). If Plaintiff’s impairments prevented Plaintiff from doing past
work, the Commissioner, at step five, would consider Plaintiff’s RFC, age, education, and past
work experience to determine if Plaintiff could perform other work. If not, Plaintiff would be
deemed disabled. See id. at § 404.1520(g). The Commissioner has the burden of proof only on
“the fifth step, proving that there is work available in the economy that the claimant can
perform.” Her, 203 F.3d at 391. To meet this burden, the Commissioner must make a finding
“supported by substantial evidence that [the claimant] has the vocational qualifications to
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perform specific jobs.” Varley v. Sec’y of Health and Human Servs., 820 F.2d 777, 779 (6th Cir.
1987).

This “substantial evidence” may be in the form of vocational expert testimony in

response to a hypothetical question, “but only ‘if the question accurately portrays [the
claimant’s] individual physical and mental impairments.’” Id. (citations omitted).
C.

Analysis

The Social Security Act authorizes “two types of remand: (1) a post judgment remand in
conjunction with a decision affirming, modifying, or reversing a decision of the [Commissioner]
(a sentence-four remand); and (2) a pre-judgment remand for consideration of new and material
evidence that for good cause was not previously presented to the [Commissioner] (a sentence-six
remand).” Faucher v. Sec’y of Health and Human Servs., 17 F.3d 171, 174 (6th Cir. 1994)
(citing 42 U.S.C. § 405(g)). Under a sentence-four remand, the Court has the authority to “enter
upon the pleadings and transcript of the record, a judgment affirming, denying, or reversing the
decision of the [Commissioner], with or without remanding the cause for a hearing. 42 U.S.C. §
405(g). Where there is insufficient support for the ALJ’s findings, “the appropriate remedy is
reversal and a sentence-four remand for further consideration.” Morgan v. Astrue, 10-207, 2011
WL 2292305, at *8 (E.D. Ky. June 8, 2011) (citing Faucher, 17 F.3d at 174).
Plaintiff asserts that this matter should be remanded under sentence four because the ALJ
erred in assigning little weight to the opinions of Plaintiff’s treating physician and treating
chiropractor on the basis that they are not consistent with the record evidence and assigning
significant weight to the opinion of the consultative examiner on the basis that it is consistent
with the record evidence. (Docket no. 20 at 11-14.) It is well settled that the opinions of treating
physicians are generally accorded substantial deference. In fact, the ALJ must give a treating
physician’s opinion complete deference if it is supported by clinical and laboratory diagnostic

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evidence and it is not inconsistent with the other substantial evidence in the record. 20 C.F.R.
§§ 404.1527(c)(2), 416.927(c)(2). When an ALJ determines that a treating source’s medical
opinion is not controlling, he must determine how much weight to assign that opinion in light of
several factors: (1) length of the treatment relationship and the frequency of examination; (2)
nature and extent of the treatment relationship; (3) supportability of the opinion; (4) consistency
of the opinion with the record as a whole; (5) specialization of the treating source; and (6) other
factors. 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6).
There is no per se rule that requires an articulation of each of the six regulatory factors
listed in 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6). Norris v. Comm’r of Soc. Sec., No.
11-CV-11974, 2012 WL 3584664, at *5 (E.D. Mich. Aug. 20, 2012) (citing Tilley v. Comm’r of
Soc. Sec., 394 F. App’x 216, 222 (6th Cir. 2010)). An ALJ’s failure to discuss the requisite
factors may constitute harmless error (1) if “a treating source's opinion is so patently deficient
that the Commissioner could not possibly credit it;” (2) “if the Commissioner adopts the opinion
of the treating source or makes findings consistent with the opinion;” or (3) “where the
Commissioner has met the goal of [§ 1527(c)]—the provision of the procedural safeguard of
reasons—even though she has not complied with the terms of the regulation.” Nelson v. Comm’r
of Soc. Sec., 195 F. App’x 462, 470 (6th Cir. 2006) (quoting Wilson v. Comm’r of Soc. Sec., 378
F.3d 541, 547 (6th Cir. 2004)).
The Commissioner requires its ALJs to “always give good reasons in [their] notice of
determination or decision for the weight [they] give [a] treating source’s opinion.” 20 C.F.R.
§§ 404.1527(c)(2), 416.927(c)(2). Those good reasons must be “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 medical opinion and the reasons for that

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weight.” Wilson, 378 F.3d at 544 (quoting SSR 96-2p, 1996 WL 374188, at *5 (1996)). The
district court should not hesitate to remand when the Commissioner has failed to identify the
weight assigned to a treating physician’s opinion and provide good reasons for that weight. See
Cole v. Astrue, 661 F.3d 931, 939 (6th Cir. 2011) (“This Court has made clear that ‘[w]e do not
hesitate to remand when the Commissioner has not provided ‘good reasons’ for the weight given
to a treating physician's opinion and we will continue remanding when we encounter opinions
from ALJ's that do not comprehensively set forth the reasons for the weight assigned to a treating
physician's opinion.”) (citing Hensley v. Astrue, 573 F.3d 263, 267 (6th Cir. 2009)).
Plaintiff treated with Lucia Zamorano, M.D. for his physical impairments from
September 2012 to April 2013. (TR 282-353.) Dr. Zamorano rendered an opinion regarding
Plaintiff’s impairments, which the ALJ assessed as follows:
On January 12, 2013, Dr. Zamorano, a treating physician, stated that the claimant
was totally disabled because of back pain, headaches, and neck pain. Dr.
Zamorano indicated limitations of no bending and no lifting over 10 pounds
(Exhibit 4F).
However, the assessment by Dr. Zamorano is given little weight because it is
inconsistent with the objective clinical findings and the record as a whole. The
claimant has not complained or been treated for significant neck pain and
headaches. Moreover, the MRI of his lumbar spine, in October 2012, indicated
no disk herniation. The nerve conduction studies in November 2012, showed no
evidence of neuropathy or radiculopathy anywhere. Moreover, the determination
of disability is an issue to be decided by the Commissioner and is not a medical
opinion.
(TR 21.)1
The ALJ properly discounted the portion of Dr. Zamorano’s opinion in which she
determined that Plaintiff was totally disabled, as the ultimate issue of disability is reserved to the
1
The ALJ cited to Dr. Zamorano’s opinion as being located in Exhibit 4F of the transcript. The Court has
thoroughly reviewed all 72 pages of Exhibit 4F and is unable to locate Dr. Zamorano’s opinion therein. In their
briefs, both Plaintiff and Defendant represent that Dr. Zamorano’s opinion can be found at TR 303, however, this
opinion, dated November 12, 2012, appears to be rendered by Dr. Zamorano’s physician assistant, Lindsay Gietzen,
PA-C. Nevertheless, the Court will address the ALJ’s assessment of Dr. Zamorano’s opinion as reproduced in the
ALJ’s decision.

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Commissioner, not the treating or examining physician. Kidd v. Comm’r, 283 F. App’x 336, 341
(6th Cir. 2008). Plaintiff seemingly concedes this point, but correctly argues that it does not
excuse the ALJ’s consideration of the additional limitations assessed by Dr. Zamorano. (Docket
no. 20 at 12.) Dr. Zamorano opined that Plaintiff’s back pain, headaches, and neck pain limited
him to no bending and no lifting more than 10 pounds. (TR 21.) The ALJ discounted this
opinion on the basis that it was inconsistent with the objective clinical findings and the record as
a whole, reasoning, in part, that Plaintiff had not complained of or been treated for significant
neck pain and headaches. (TR 21.) Plaintiff argues that the ALJ’s characterization of the record
in this regard is inaccurate (docket no. 20 at 12), and the Court agrees.
In fact, the treatment records submitted by Dr. Zamorano are replete with Plaintiff’s
complaints of headaches and neck pain, diagnoses of headaches and neck pain, and referrals for
diagnostic testing based on those complaints and diagnoses. For example, on September 22,
2012, Plaintiff indicated that he was experiencing pain in his cervical spine, lumbar spine, and
his calves (TR 316); and Dr. Zamorano referred Plaintiff for MRIs and x-rays of his brain,
cervical spine, thoracic spine, and lumbar spine based on diagnoses of headaches, cervical pain,
thoracic pain, and lumbar pain (TR 314-15). On October 11, 2012, Plaintiff indicated that he
was experiencing migraines (TR 312); “neck pain” was noted in Plaintiff’s treatment record (TR
317); and headaches and neck pain were listed as some of Plaintiff’s “Problems and Health
Issues” (TR 308). On October 16, 2012, Plaintiff was diagnosed with cervicalgia (TR 310-11).
And on November 12, 2012, Plaintiff complained of “continuing cervical pain,” as a result of
which a limited range of motion was assessed (TR 317); and headaches and neck pain were again
listed as Plaintiff’s “Problems and Health Issues” (TR 306). Moreover, the report regarding
Plaintiff’s MRI of the cervical spine indicates that he has a clinical history of cephalgia with

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neck pain (TR 328), and the report regarding Plaintiff’s MRI of the brain indicates that he has a
history of headaches2 (TR 321).

Furthermore, the “Patient History” section of Plaintiff’s

November 6, 2012 electromyography results indicates that Plaintiff was complaining of pain in
the posterior aspect of his neck and upper back that radiated to his shoulders bilaterally. (TR
333.) While the record does not reflect that Dr. Zamorano actually treated Plaintiff’s headaches
and neck pain, it does indicate that she recommended anterior cervical discectomy and fusion
(ACDF), which is a surgery to remove a herniated or degenerative disc in the neck.3 (TR 317.)
In light of this evidence, the ALJ’s finding that Dr. Zamorano’s opinion is inconsistent
with the record evidence because Plaintiff did not complain of and was not treated for significant
neck pain and headaches is perplexing and is in itself contrary to the record evidence. Had the
ALJ properly considered this evidence, he may have accorded greater weight to Dr. Zamorano’s
opinion and developed a more restrictive RFC for Plaintiff as a result. This is therefore a
reversible error, and the circumstances necessary under Nelson for the ALJ’s error to be rendered
harmless do not exist here. See Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 407-08, 409 (6th
Cir. 2009). Accordingly, remand of this matter for a proper assessment of Dr. Zamorano’s
opinion is warranted.
Because the assessments of Plaintiff’s treating chiropractor’s opinion and the consultative
examiner’s opinion will potentially change upon remand relative to the proper consideration of
Dr. Zamorano’s opinion, and in the interests of judicial economy, Plaintiff’s remaining claims of
error will not be considered.

2

The ALJ noted in his decision that the MRI of Plaintiff’s brain was normal. (TR 20.) However, this is not entirely
true. While the MRI did indicate some normal findings, it also revealed that Plaintiff’s brain has a CSF-filled cyst
off the fourth ventricle, which is a variant of a Dandy-Walker malformation. (TR 321-22.)
3
http://www.mayfieldclinic.com/PE-ACDF.htm.

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Accordingly, IT IS ORDERED that Plaintiff's Motion for Summary Judgment [20] is
GRANTED, and Defendant’s Motion for Summary Judgment [22] is DENIED. This matter is
remanded pursuant to sentence four of 42 U.S.C. § 405(g) for a proper assessment of Dr.
Zamorano’s opinion in accordance with the treating physician rule and the record evidence.

Dated: March 30, 2017

s/ Mona K. Majzoub__
MONA K. MAJZOUB
UNITED STATES MAGISTRATE JUDGE

PROOF OF SERVICE
I hereby certify that a copy of this Opinion and Order was served upon counsel of record
on this date.
Dated: March 30, 2017

s/ Lisa C. Bartlett
Case Manager

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