Little v. Colvin

Filing 29

ORDER Adopting 26 Report and Recommendation. Signed by District Judge Terrence G. Berg. (AChu)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DEBRA F. LITTLE,
Plaintiff,
v.

Case No. 16-11968

COMMISSIONER OF SOCIAL
SECURITY,

HON. TERRENCE G. BERG
HON. ANTHONY P. PATTI

Defendant.
/

ORDER ADOPTING REPORT AND RECOMMENDATION
This case is an appeal of the denial of Plaintiff’s application for social security disability insurance benefits. This matter is before the
Court on Magistrate Judge Anthony P. Patti’s report and recommendation dated August 14, 2017 (Dkt. 26), recommending that Plaintiff’s motion for summary judgment be granted, that Defendant’s motion for summary judgment be denied, and that this matter be remanded for further
proceedings.
The law provides that either party may serve and file written objections “[w]ithin fourteen days after being served with a copy” of the report and recommendation. 28 U.S.C. § 636(b)(1). Defendant filed timely

objections (Dkt. 27) to the report and recommendation; Plaintiff filed a
response to Defendant’s objections (Dkt. 28). A district court must conduct a de novo review of the parts of a report and recommendation to
which a party objects. See 28 U.S.C. § 636(b)(1). “A judge of the court
may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive
further evidence or recommit the matter to the magistrate judge with
instructions.” Id.
The Court has reviewed Magistrate Judge Patti’s report and recommendation, and Defendant’s objections thereto. For the reasons set forth
below, Defendant’s objections are OVERRULED, and the report and recommendation is ACCEPTED and ADOPTED as the opinion of the
Court.

Consequently, Plaintiff’s motion for summary judgment is

GRANTED, Defendant’s motion for summary judgment is DENIED,
and this matter is REMANDED pursuant to sentence four of to 42 U.S.C.
§ 405(g) for further proceedings, consistent with the discussion below.

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ANALYSIS
A.

The Social Security Act

The Social Security Act “entitles benefits to certain claimants who,
by virtue of a medically determinable physical or mental impairment of
at least a year’s expected duration, cannot engage in ‘substantial gainful
activity.’” Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 642 (6th Cir. 2006)
(en banc) (quoting 42 U.S.C. § 423(d)(1)(A)). A claimant qualifies as disabled “if she cannot, in light of her age, education, and work experience,
‘engage in any other kind of substantial gainful work which exists in the
national economy.’”

Combs, 459 F.3d at 642 (quoting 42 U.S.C. §

423(d)(2)(A)).
Under the authority of the Act, the Social Security Administration
(SSA) has established a five-step sequential evaluation process for determining whether an individual is disabled. See 20 C.F.R. § 404.1520(a)(4).
The five steps are as follows:
In step one, the SSA identifies claimants who “are doing substantial gainful activity” and concludes that these claimants
are not disabled. [20 C.F.R.] § 404.1520(a)(4)(i). If claimants
get past this step, the SSA at step two considers the “medical
severity” of claimants’ impairments, particularly whether
such impairments have lasted or will last for at least twelve
months. Id. § 404.1520(a)(4)(ii). Claimants with impairments
of insufficient duration are not disabled. See id. Those with
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impairments that have lasted or will last at least twelve
months proceed to step three.
At step three, the SSA examines the severity of claimants’ impairments but with a view not solely to their duration but also
to the degree of affliction imposed. Id. § 404.1520(a)(4)(iii).
Claimants are conclusively presumed to be disabled if they
suffer from an infirmity that appears on the SSA’s special list
of impairments, or that is at least equal in severity to those
listed. Id. § 404.1520(a)(4)(iii), (d). The list identifies and defines impairments that are of sufficient severity as to prevent
any gainful activity. See Sullivan v. Zebley, 493 U.S. 521, 532
(1990). A person with such an impairment or an equivalent,
consequently, necessarily satisfies the statutory definition of
disability. For such claimants, the process ends at step three.
Claimants with lesser impairments proceed to step four.
In the fourth step, the SSA evaluates claimant’s “residual
functional capacity,” defined as “the most [the claimant] can
still do despite [her] limitations.” 20 C.F.R. § 404.1545(a)(1).
Claimants whose residual functional capacity permits them
to perform their “past relevant work” are not disabled. Id. §
404.1520(a)(4)(iv), (f). “Past relevant work” is defined as work
claimants have done within the past fifteen years that is “substantial gainful activity” and that lasted long enough for the
claimant to learn to do it. Id. § 404.1560(b)(1). Claimants who
can still do their past relevant work are not disabled. Those
who cannot do their past relevant work proceed to the fifth
step, in which the SSA determines whether claimants, in light
of their residual functional capacity, age, education, and work
experience, can perform “substantial gainful activity” other
than their past relevant work. See id. § 404.1520(a)(4)(v),
(g)(1). Claimants who can perform such work are not disabled.
See id.; § 404.1560(c)(1).
Combs, 459 F.3d at 642–43.

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“Through step four, the claimant bears the burden of proving the
existence and severity of limitations caused by her impairments and the
fact that she is precluded from performing her past relevant work.” Jones
v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). If the analysis
reaches the fifth step, the burden transfers to the Commissioner. See
Combs, 459 F.3d at 643. At that point, the Commissioner is required to
show that “other jobs in significant numbers exist in the national economy that [claimant] could perform given her RFC and considering relevant vocational factors.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241
(6th Cir. 2007); 20 C.F.R. §§ 416.920(a)(4)(v) and (g).
Judicial review of the Commissioner’s final decision is authorized
pursuant to 42 U.S.C. § 405(g). Where the Appeals Council denies review, the ALJ’s decision stands as the Commissioner’s final decision. See
20 C.F.R. § 404.981. Judicial review, however, is circumscribed in that
the court “must affirm the Commissioner’s conclusions absent a determination that the Commissioner has failed to apply the correct legal standard or has made findings of fact unsupported by substantial evidence in
the record.” Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th

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Cir. 2005). Substantial evidence is “such relevant evidence as a reasonable mind might accept to support the ALJ’s conclusion.”

Bass v.

McMahon, 499 F.3d 506, 509 (6th Cir. 2007) (quotation marks omitted)
(quoting Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001)). This substantial evidence standard is less exacting than the preponderance of evidence standard. See Bass, 499 F.3d at 509 (citing Bell v. Comm’r of Soc.
Sec., 105 F.3d 244, 246 (6th Cir. 1996)). For example, if the ALJ’s decision is supported by substantial evidence, “then reversal would not be
warranted even if substantial evidence would support the opposite conclusion.” Bass, 499 F.3d at 509.
The parties do not object to Magistrate Judge Patti’s recitation of
the relevant medical evidence in the record, thus the Court adopts the
evidence as summarized in the report and recommendation. Rather, Defendant raises one objection to the report and recommendation, concerning the ALJ’s failure to address the opinion of one of Plaintiff’s treating
physicians, Dr. Radha Chitturi. The report and recommendation found
that the ALJ erred by failing to address a September 9, 2014 “physical
residual functional capacity questionnaire” filled out by Dr. Chitturi, indicating that Plaintiff’s prognosis was “guarded,” that she was incapable
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of even low-stress jobs due to her physical and mental conditions, and
noting that Plaintiff would likely be off-task 25% or more of the time and
absent more than four days per month (Tr. 1420-23, Pg IDs 1481-1484).
Defendant’s objection argues that the ALJ’s failure to mention was harmless error. Specifically, Defendant contends that Dr. Chitturi’s September 9, 2014 opinion is immaterial, as it was written almost three years
after Plaintiff’s “date last insured,”1 which passed on December 31, 2011.
B.

The ALJ Erred in Failing to Consider the Opinion of
Treating Physician, Dr. Chitturi

As noted above, Magistrate Judge Patti’s report and recommendation identified a single critical error warranting remand. Namely, the
ALJ’s failure to address the opinion of one of Plaintiff’s treating physicians. Defendant acknowledges that the ALJ did not address Dr. Chitturi’s September 2014 assessment, and that because Dr. Chitturi was
Plaintiff’s treating physician, his opinion should have been expressly considered. However, Defendant asserts that the ALJ’s failure to mention

To be eligible for disability insurance benefits, a claimant must be “insured for disability insurance benefits.” 42 U.S.C. §§ 423(a)(1)(A), 423(c)(1); see also 20 C.F.R. §
404.315(a). To have “disability insured status” during any quarter, an individual
must be fully insured in that quarter and have at least twenty quarters of coverage
in the last forty-quarter period ending with that quarter. 20 C.F.R. § 404.130(b). The
expiration of a claimant’s insured status is also known as the “date last insured.”
Plaintiff's date last insured was December 31, 2011.
1

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Dr. Chitturi’s September 2014 assessment was harmless error because it
post-dates the date last insured (December 2011) by almost three years,
includes treatment of Plaintiff’s knee strain that did not exist during the
relevant period, and was based on recent complaints of pain when Plaintiff had not complained of pain prior to Plaintiff’s date last insured. Because much of Dr. Chitturi’s assessment was based on Plaintiff’s condition after the relevant period, Defendant argues that his opinion is immaterial. Defendant is correct that the opinion was completed well after
the relevant time period, and does not specify the time period it covers.
However, the record shows that Dr. Chitturi began treating Plaintiff on August 2, 2011 (prior to the expiration of her insured status), and
treated her on two other occasions during the relevant time period (Tr.
at 621, 648, and 670). Furthermore, contrary to Defendant’s argument,
Dr. Chitturi’s records during the relevant time period make reference to
Plaintiff’s pain. Specifically, on September 13, 2011, Dr. Chitturi notes
that Plaintiff suffers from spasms and sciatica, for which she was prescribed hydrocodone, a powerful opioid used to treat pain (Tr. at 651).
Likewise, on November 15, 2011, Dr. Chitturi’s treatment notes reflect

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that Plaintiff suffered from spasms and sciatica, for which she was referred to a pain clinic. Dr. Chitturi also notes that Plaintiff was to “[c]ontinue pain medication as needed” (Tr. at 623). Finally, Dr. Chitturi practiced at the John D. Dingell VA Medical Center where Plaintiff – a Gulf
War Veteran – had treated for many years. Thus, Dr. Chitturi presumably had access to Plaintiff’s medical records when she filled out the September 2014 assessment.
The treating physician rule “requires the ALJ to generally give
greater deference to the opinions of treating physicians than to the opinions of non-treating physicians because:
‘[T]hese sources are likely to be the medical professionals most able
to provide a detailed, longitudinal picture of [the claimant’s] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical
findings alone or from reports of individual examinations, such as
consultative examinations or brief hospitalizations.’”
Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting
20 C.F.R. § 404.1527(d)(2)). Thus, an ALJ must give controlling weight
to a treating source if he or she finds the opinion well-supported by medically acceptable data and not inconsistent with other substantial evidence in the record. Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th
Cir. 2004) (citing 20 C.F.R. § 404.1527(d)(2)).
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Closely associated with the treating physician rule is the “good reasons rule,” which “require[s] the ALJ to ‘always give good reasons in [the]
notice of determination or decision for the weight’ given to the claimant’s
treating source’s opinion.” Blakley, 581 F.3d at 406 (citing 20 C.F.R. §
404.1527(d)(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 weight.’” Id. at 406–07
(citing SSR 96–2p, 1996 SSR LEXIS 9, at *12).
This is not a case where a treating physician who did not treat the
claimant during the time period in question is offering a purely retrospective opinion. See e.g., Wladysiak v. Comm'r of Soc. Sec., 2013 WL
2480665, at *11 (E.D. Mich. June 10, 2013) (citing Lancaster v. Astrue,
2009 WL 1851407, at * 11 (M.D. Tenn. 2009) (“[A] retrospective diagnosis
relating back to the insured period may be considered proof of disability
only if it is corroborated by evidence contemporaneous with the eligible
period”); Clendening v. Astrue, 2011 WL 1130448, *5 (N.D. Ohio 2011)
(retrospective opinions not entitled to deference where treating physician
had no first-hand knowledge of the claimant’s condition prior to the last
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date insured), aff'd, 482 Fed. App’x. 93 (6th Cir. 2012)). In this case, Dr.
Chitturi was one of Plaintiff's treating physicians during the relevant
time period; she thus had first-hand knowledge of Plaintiff’s condition
prior to her date last insured, and rendered her opinion only after examining Plaintiff and having access to Plaintiff’s medical records containing
relevant information concerning Plaintiff’s medical condition during the
relevant time period.
Plaintiff was entitled to have the ALJ consider, grapple with, and
expressly discuss the opinion from Dr. Chitturi and explain the reasons
why he did or did not give weight to that opinion. Given Dr. Chitturi’s
prior treatment of Plaintiff, her status as a treating physician, and that
the September 2014 assessment was based in part on a review of Plaintiff’s medical condition from the relevant time period, the Court cannot
conclude that the failure to address Dr. Chitturi’s September 2014 assessment was harmless error. Consequently, Defendant’s objection on
this ground is not well-taken, and the Court will adopt the recommendation to reverse the ALJ’s decision for failing address Dr. Chitturi’s September 2014 assessment in any way.

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CONCLUSION
For the reasons set forth above,
It is hereby ORDERED that Magistrate Judge Patti’s report and
recommendation of August 14, 2017 (Dkt. 26) is ACCEPTED and
ADOPTED, and Defendant’s objections (Dkt. 27) thereto are OVERRULED.
It is FURTHER ORDERED that Plaintiff’s motion for summary
judgment (Dkt. 17) is GRANTED and Defendant’s motion for summary
judgment (Dkt. 22) is DENIED.
Accordingly, it is ORDERED that this matter be REMANDED for
further proceedings consistent with this opinion.
SO ORDERED.
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Dated: September 27, 2017
Certificate of Service
I hereby certify that this Order was electronically submitted on
September 27, 2017, using the CM/ECF system, which will send notification to each party.
By: s/A. Chubb
Case Manager
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