Hornback v. Commissioner of Social Security

Filing 12

OPINION reversing the Commissioner's decision and remanding under sentence four of 42 U.S.C. § 405(g); signed by Magistrate Judge Ellen S. Carmody (Magistrate Judge Ellen S. Carmody, jal)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOYCE ANN HORNBACK,
Plaintiff,

Case No. 1:16-CV-298

v.
HON. ELLEN S. CARMODY
COMMISSIONER OF SOCIAL
SECURITY,
Defendant,
/
OPINION
This is an action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. §
405(g), to review a final decision of the Commissioner of Social Security denying Plaintiff’s claim
for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) under Titles II and
XVI of the Social Security Act. The parties have agreed to proceed in this Court for all further
proceedings, including an order of final judgment. (ECF No. 9.)
Section 405(g) limits the Court to a review of the administrative record and provides
that if the Commissioner’s decision is supported by substantial evidence it shall be conclusive. The
Commissioner has found that Plaintiff is not disabled within the meaning of the Act.
STANDARD OF REVIEW
The Court’s jurisdiction is confined to a review of the Commissioner’s decision and
of the record made in the administrative hearing process. See Willbanks v. Sec’y of Health & Human
Servs., 847 F.2d 301, 303 (6th Cir. 1988). The scope of judicial review in a social security case is
limited to determining whether the Commissioner applied the proper legal standards in making her

decision and whether there exists in the record substantial evidence supporting that decision. See
Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989). The Court may
not conduct a de novo review of the case, resolve evidentiary conflicts, or decide questions of
credibility. See Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). It is the Commissioner who
is charged with finding the facts relevant to an application for disability benefits, and her findings
are conclusive provided they are supported by substantial evidence. See 42 U.S.C. § 405(g).
Substantial evidence is more than a scintilla, but less than a preponderance. See
Cohen v. Sec’y of Health & Human Servs., 964 F.2d 524, 528 (6th Cir. 1992) (citations omitted).
It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
See Richardson v. Perales, 402 U.S. 389, 401 (1971); Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir.
1993). In determining the substantiality of the evidence, the Court must consider the evidence on
the record as a whole and take into account whatever evidence in the record fairly detracts from its
weight. See Richardson v. Sec’y of Health & Human Servs., 735 F.2d 962, 963 (6th Cir. 1984). The
substantial evidence standard presupposes the existence of a zone within which the decision maker
can properly rule either way, without judicial interference. See Mullen v. Bowen, 800 F.2d 535, 545
(6th Cir. 1986) (citation omitted). This standard affords to the administrative decision maker
considerable latitude, and indicates that a decision supported by substantial evidence will not be
reversed simply because the evidence would have supported a contrary decision. See Bogle, 998
F.2d at 347; Mullen, 800 F.2d at 545.
PROCEDURAL POSTURE
Plaintiff was forty-eight years of age on the date of the ALJ’s decision. (PageID.34,
189.) She completed her formal education after the tenth grade, and was previously employed as

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a cashier / checker. (PageID.171–172, 310.) Plaintiff applied for benefits on October 9, 2012,
alleging disability beginning September 22, 2012, due to a thyroid disorder, double vision, and
depression. (PageID.189, 297, 306.) Plaintiff’s applications were denied on January 25, 2013, after
which time she requested a hearing before an administrative law judge (ALJ). (PageID.275–285.)
On November 12, 2013, Plaintiff appeared with her counsel before ALJ William Reamon for an
administrative hearing at which time Plaintiff and a vocational expert (VE) testified.
(PageID.54–116.) A supplemental hearing was held on August 14, 2014, with additional testimony
offered by Plaintiff, a VE, and Dr. Jeffrey Horwitz, M.D., a non-examining medical expert.
(PageID.117–185.) In a written decision dated August 29, 2014, the ALJ determined that Plaintiff
was not disabled. (PageID.34–53.) On February 2, 2016, the Appeals Council declined to review
the ALJ’s decision, making it the Commissioner’s final decision in the matter. (PageID.24–27.)
Plaintiff subsequently initiated this action under 42 U.S.C. § 405(g).
ALJ’S DECISION
The social security regulations articulate a five-step sequential process for evaluating
disability. See 20 C.F.R. §§ 404.1520(a-f), 416.920(a-f).1 If the Commissioner can make a
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1.

An individual who is working and engaging in substantial gainful activity will not be found to be
“disabled” regardless of medical findings (20 C.F.R. §§ 404.1520(b), 416.920(b));

2.

An individual who does not have a “severe impairment” will not be found “disabled” (20 C.F.R. §§
404.1520(c), 416.920(c));

3.

If an individual is not working and is suffering from a severe impairment which meets the duration
requirement and which “meets or equals” a listed impairment in Appendix 1 of Subpart P of
Regulations No. 4, a finding of “disabled” will be made without consideration of vocational factors
(20 C.F.R. §§ 404.1520(d), 416.920(d));

4.

If an individual is capable of performing work he or she has done in the past, a finding of “not
disabled” must be made (20 C.F.R. §§ 404.1520(e), 416.920(e));

5.

If an individual’s impairment is so severe as to preclude the performance of past work, other factors
including age, education, past work experience, and residual functional capacity must be considered

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dispositive finding at any point in the review, no further finding is required. See 20 C.F.R. §§
404.1520(a), 416.920(a).

The regulations also provide that if a claimant suffers from a

nonexertional impairment as well as an exertional impairment, both are considered in determining
the claimant’s residual functional capacity (RFC). See 20 C.F.R. §§ 404.1545, 416.945.
The burden of establishing the right to benefits rests squarely on Plaintiff’s shoulders,
and she can satisfy her burden by demonstrating that her impairments are so severe that she is unable
to perform her previous work and cannot, considering her age, education, and work experience,
perform any other substantial gainful employment existing in significant numbers in the national
economy. See 42 U.S.C. § 423(d)(2)(A); Cohen. 964 F.2d at 528. While the burden of proof shifts
to the Commissioner at step five, Plaintiff bears the burden of proof through step four of the
procedure, the point at which her residual functional capacity (RFC) is determined. See Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987); Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir.
1997) (noting that the ALJ determines RFC at step four, at which point the claimant bears the burden
of proof).
The ALJ determined that Plaintiff’s claim failed at step five. At step one, the ALJ
found that Plaintiff had not engaged in substantial gainful activity since her alleged disability onset
date of September 22, 2012. (PageID.39.) At step two, the ALJ found that Plaintiff suffered from
the following severe impairments: (1) Graves’ disease; (2) visual impairment; (3) affective disorder;
and (4) anxiety disorder. (PageID.39–41.) At step three, the ALJ found that Plaintiff did not have
an impairment or combination of impairments that met or equaled the requirements of the Listing
of Impairments found in 20 C.F.R. Pt. 404, Subpt. P, App. 1. (PageID.41–43.) At step four, the ALJ

to determine if other work can be performed. (20 C.F.R. §§ 404.1520(f), 416.920(f)).

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determined Plaintiff retained the RFC based on all the impairments:
to perform a full range of work at all exertional levels but with the
following nonexertional limitations: the claimant must be allowed to
wear one eye patch, and she cannot be required to perform work
presented from the side of her eye patch. Moreover, the claimant
cannot be required to perform reading, such as reading numbers on
a screen or a paper, as a basic part of her work functioning. The
claimant cannot perform commercial driving, perform hilo driving,
or climb ladders, ropes, or scaffolds. The claimant must also avoid
exposure to dangerous moving machinery and unprotected heights.
Additionally, the claimant is limited to understanding, remembering,
and carrying out simple instructions. The claimant can have no more
than occasional interaction with supervisors, coworkers, and the
general public.
(PageID.43.) Continuing with the fourth step, the ALJ found that Plaintiff was unable to perform
her past relevant work. (PageID.51.) At the fifth step, the ALJ questioned the VE to determine
whether a significant number of jobs exist in the economy that Plaintiff could perform given her
limitations. See Richardson, 735 F.2d at 964. The expert testified that Plaintiff could perform other
work as a light assembler (14,000 regional jobs), packager (6,300 regional jobs), and sorter (3,100
regional jobs). (PageID.174–179.) Based on this record, the ALJ found that Plaintiff was capable
of making a successful adjustment to work that exists in significant numbers in the national
economy. (PageID.53.)
Accordingly, the ALJ concluded that Plaintiff was not disabled from September 22,
2012, the alleged disability onset date, through August 29, 2014, the date of decision. (PageID.53.)
DISCUSSION
1.

The ALJ’s Evaluation of the Medical Opinions Concerning Plaintiff’s
Visual Impairments.

The Listing of Impairments (Listings), detailed in 20 C.F.R., Part 404, Subpart P,
Appendix 1, identifies various impairments which, if present to the severity detailed therein, result
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in a finding that the claimant is disabled. At issue here are Listings 2.02 and 2.03:
2.02

Loss of Visual Acuity. Remaining vision in the better eye after best correction
is 20/200 or less.

2.03

Contraction of the visual field in the better eye, with:
A.

The widest diameter subtending an angle around the point of fixation
no greater than 20 degrees; or

B.

A mean deviation of –22 or worse, determined by automated static
threshold perimetry as described in 2.00A6a(v); or

C.

A visual field efficiency of 20 percent or less as determined by
kinetic perimetry (see 2.00A7b).

20 C.F.R. Pt. 404, Subpt. P, App. 1 §§ 2.02, 2.03. The thrust of Plaintiff’s first argument is that the
ALJ’s step three determination is faulty. The Court agrees.
The record demonstrates that Plaintiff suffers from Graves’ disease. Among other
things, this impairment causes Plaintiff’s eyes to become misaligned. Consequently, Plaintiff
experiences double vision. She was treated for this problem with a prescription for a prism over her
eye glasses. She testified that this cured the double vision when looking straight ahead, but she
continued to experience double vision in her peripheral vision. (PageID.122.) In order to read,
she’d have to hold things up as close as twelve inches from her face. (PageID.123.) Given these
limitations, Dr. Jeffery Horwitz, a non-examining medical expert, testified at the hearing that
Plaintiff equaled the requirements of Section 2.02. He noted this remained so even after Plaintiff
received the prism, as she continued to experience double vision in her peripheral vision.
(PageID.132.) He did note that Plaintiff’s double vision could be eliminated by covering one eye
with a patch. (PageID.132.) Plaintiff’s optometrist, Dr. Amanda Hodge, also indicated that Plaintiff
met the requirements of Listing 2.03A. (PageID.589)

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Despite all this, the ALJ’s step three discussion regarding these listings consists only
of a recitation of the listings’ elements and a conclusory sentence stating that the medical evidence
does not establish she meets the listings’ requirements. (PageID.41.) No discussion is given to
whether Plaintiff might equal the listings. It is unclear, therefore, why the ALJ found Plaintiff did
not meet or equal either Listing 2.02 or 2.03. An ALJ “must articulate, at some minimum level, his
analysis of the evidence to allow the appellate court to trace the path of his reasoning.” Diaz v.
Chater, 55 F.3d 300, 307 (7th Cir.1995). Here, the ALJ did not provide an analysis of the visual
listings sufficient to allow this Court to trace the path of her reasoning, and this matter will be
reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g).
In doing so, the Court acknowledges the Sixth Circuit has concluded that the failure
by an ALJ to provide extensive reasoning at step three is not, by itself, grounds for relief. See
Forrest v. Comm’r of Soc. Sec., 591 F. App’x 359, 365 (6th Cir., Nov. 17, 2014). But that does not
compel a different result in this case. Here, the ALJ did discuss Dr. Horowitz and Dr. Hodge’s
opinions regarding the listings later in the opinion. Both were discounted based largely on the
premise that they were inconsistent with the findings of neuro-ophthalmological specialist Dr.
Glisson. Here it appears that the specialist examined Plaintiff on two occasions, and only once after
the use of the prism. While the specialist does make findings that are not of listing level severity,
(PageID.686) he did indicate that it was his impression that there was a non-localizing visual field
constriction in both eyes. (PageID.689.) It is not clear such is inconsistent with Dr. Horowitz’s
findings. Accordingly this matter will be remanded to reevaluate whether Plaintiff’s impairments
meet or equal Listings 2.02 and 2.03.

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2.

The ALJ’s Evaluation of the Medical Opinions Concerning Plaintiff’s
Mental Impairments.

Next Plaintiff contends the ALJ erred by assigning too little weight to the opinion of
Dr. Stephen Newman, Ed.D., a consultative examiner. (PageID.717–719.) She further claims the
ALJ should have given more weight to the opinions of Ms. Elizabeth Oppewal, a limited licensed
psychologist.2 Both opinions find Plaintiff’s mental impairments limit her to an extent much greater
than that found by the ALJ. Plaintiff claims that because the two opinions were consistent with each
other, the ALJ should have given them more weight. The Court discerns no error.
As a consultative examiner, Dr. Newman’s opinions were not entitled to any
particular weight. See Karger v. Comm’r of Soc. Sec., 414. F. App’x 739, 744 (6th Cir. 2011).
Similarly, Ms. Oppewal’s opinion, given after her first examination of Plaintiff was not entitled to
any particular deference. See, e.g., Kornecky, 167 F. App’x at 506–07. Plaintiff is correct that
consistency is one of the factors that an ALJ should consider when weighing medical opinions.
“Generally, the more consistent an opinion is with the record as a whole, the more weight we will
give to that opinion.” 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4).3 The ALJ found that Dr.
Newman’s and Ms. Oppewal’s opinions were inconsistent with the record as a whole. This
determination is supported by substantial evidence.

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Plaintiff incorrectly refers to Ms. Oppewal as Ms. Capewar. Ms. Oppewal’s opinion was also signed by Dr.
Nilanjan Gajare, M.D., several months later. The Court does not find the addition of Dr. Gajare transforms this opinion
into one from a treating source. The record only contains one treatment note from Dr. Gajare prior to the addition of his
signature. (PageID.507.)
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Plaintiff’s argument that the two opinions are consistent with each other thus misses the point. Even though
Dr. Newman and Ms. Oppewal both found Plaintiff to be impaired to a greater degree than that found by the ALJ, as will
be shown the ALJ’s conclusion that both opinions were inconsistent with the record as a whole is supported by
substantial evidence.

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A.

Dr. Newman.

The restrictions that Dr. Newman suggested were undermined by his own
observations as well as Plaintiff’s activities of daily living. (PageID.49.) After his examination of
Plaintiff, Dr. Newman reported that Plaintiff had a poor prognosis as well as significant attention
difficulties that and would impose a certain amount of difficulty in understanding, retaining, and
following simple instructions. (PageID.478–479.) But while his examination revealed she had
difficulty with math and recalling some facts, she was not overly anxious during the examination
even though she reported social anxiety. (PageID.477.) She was oriented to person, place and time,
was able to identify her age, date of birth, the current and former president of the United States, and
several large cities. (PageID.478.) Dr. Newman further stated she was capable of learning and
asking appropriate questions. (PageID.478.) The ALJ reasonably concluded these findings were
inconsistent with the doctor’s conclusions.
The ALJ also reasonably found Dr. Newman’s opinion was inconsistent with
Plaintiff’s daily activities. On her function report, for example, Plaintiff stated she would do daily
chores such as laundry and cleaning, as well as watch television. (PageID.364.) She could crochet
and do large print word search puzzles, although she reported doing them for longer periods before
the onset of her impairments. (PageID.367.) She reported no changes in her social activities prior
to her onset as she reported she always had problems with others. (PageID.367.) Still, she would
go out at least once a day, and could go shopping. (PageID.366.) She followed written instructions
“not very well” but was “usually good” following spoken instructions. (PageID.368.) She got along
“very well” with authority figures. (PageID.369.) It was not unreasonable for the ALJ to find these
activities required abilities in excess of the limitations provided by Dr. Newman. The ALJ’s

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decision to assign little weight to this opinion is supported by substantial evidence and complies
with the regulations for considering medical opinions.
B.

Ms. Oppewal.

The ALJ also found Ms. Oppewal’s opinion to be inconsistent with the record as a
whole. After an initial ninety minute evaluation in June 2013, Ms. Oppewal assigned Plaintiff a
GAF score of 41. Plaintiff’s prognosis was “fair.” (PageID.495.) Ms. Oppewal also evaluated
Plaintiff in seventeen different categories encompassing the areas of mental abilities and aptitudes
needed to do unskilled work, semiskilled and skilled work, and work for particular types of jobs.
(PageID.497–498.) Among other things, she found that Plaintiff was unable to meet competitive
standards in areas such as remembering work-like procedures, maintaining attention for two hour
segments, getting along with co-workers or peers without unduly distracting them, and interacting
appropriately with the public. (PageID.497–498.) Furthermore, were she to work, Ms. Oppewal
indicated that Plaintiff could be expected to be absent from work more than four days a month.
(PageID.499.) She indicated these limits were due to PTSD that limited Plaintiff’s active working
memory, but admitted these limits were based on the diagnosis and the clinical interview, not on any
testing. (PageID.497–498.)
The ALJ assigned “minimal weight” to the opinion and provided several reasons in
support of this decision. He noted, for example, that the opinion was offered on a checkbox form,
after no testing, and after only a single evaluation. (PageID.50.) These were all appropriate
considerations to make. The ALJ also referenced the January 2013, opinion of state agency
physician Dr. Jung Kim, who concluded that Plaintiff was capable of performing simple, routine
work. (PageID.197–198.) The ALJ gave the opinion “great weight,” finding it was consistent with

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the record as a whole. (PageID.48.)

The record also shows that soon after Ms. Oppewal’s

evaluation, Plaintiff began individual therapy. By all accounts this therapy, and related medication
adjustments, led to a continued improvement in Plaintiff’s functioning such that she had soon
resolved many of the issues with her family that had been troubling her, and had begun to spend
more time with them. (PageID.523, 653.) Less than a year later she ended therapy and agreed with
her therapist that she had accomplished her goals for treatment. (PageID.643.) Thus the ALJ noted
that neither the record before, or the record after, Ms. Oppewal’s evaluation supported the severity
of her opinions.
Accordingly, the ALJ correctly applied the factors for evaluating medical opinions
and his decision to assign minimal weight to the opinion is supported by substantial evidence. The
Court does not doubt that Plaintiff has a certain amount of limitation in following directions and
relating with others, however such limitations are adequately accounted for in the RFC. Plaintiff’s
claim of error is denied.
CONCLUSION
For the reasons set forth herein, the Commissioner’s decision will be REVERSED
and REMANDED under sentence four of 42 U.S.C. § 405(g). This matter is remanded for further
factual findings, including but not necessarily limited to, reconsideration of Listing 2.02 and 2.03.
Date: March 30, 2017

/s/ Ellen S. Carmody
ELLEN S. CARMODY
United States Magistrate Judge

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