Hunter v. Commissioner of Social Security

Filing 40

Order. The court declines to adopt the Report and Recommendation (re 34 ). The ALJ's decision is reversed and the instant matter remanded for further proceedings consistent with this Order. Specifically, upon remand, the ALJ should fully evaluate the record evidence and properly determine whether Plaintiff's severe back impairment meets or equals the relevant Listing. Furthermore, should the ALJ find it necessary to do so, the ALJ should provide a clearer analysis concerning Plaintiff's credibility. Signed by Judge Solomon Oliver, Jr on 12/20/2011. (D,M)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

ANTHONY L. HUNTER,
Plaintiff
v.
MICHAEL ASTRUE, COMMISSIONER
OF SOCIAL SECURITY,
Defendant

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Case No.: 1:09 CV 2790
JUDGE SOLOMON OLIVER, JR.

ORDER

The Commissioner of Social Security (the “Commissioner” or “Defendant”) denied disability
benefits to the claimant, Anthony L. Hunter (“Plaintiff” or “Hunter”) in the above-captioned case.
Hunter sought judicial review of the Commissioner’s decision, and this court referred the case to
Magistrate Judge William H. Baughman, Jr. (“Judge Baughman”), for preparation of a Report and
Recommendation (“R&R”). Both parties submitted briefs on the merits. Hunter sought an order
reversing the Administrative Law Judge’s (“ALJ”) decision and finding Plaintiff is entitled to
benefits, or in the alternative, remanding the case. The Commissioner sought final judgment
upholding the decision below. Judge Baughman submitted his R&R on September 7, 2011,
recommending that the Commissioner’s decision be affirmed (ECF No. 34). For the following
reasons, the court declines to adopt Judge Baughman’s R&R, and remands the case for further
proceedings consistent with this Order.

I. BACKGROUND
Hunter filed a Social Security Income (“SSI”) application on July 9, 2004, claiming that he
became unable to work on January 15, 1996, because of anxiety, hepatitis B, depression, and back
problems, including degenerative disc disease. (Tr. 62, 101.) His application was denied initially
and on reconsideration; and by an ALJ after a hearing at which Plaintiff, who was represented by
an attorney, and a vocational expert (“VE”), testified. (Tr. 10, 43, 47, 553).
The ALJ considered the case de novo and on August 30, 2007, found, in relevant part, that:
(1) Plaintiff had not engaged in substantial activity since April 30, 20061; (2) Plaintiff suffered from
severe impairments including degenerative disc disease of the lumbar spine, a generalized anxiety
disorder, a major depressive disorder, an antisocial personality, and a substance addiction disorder
in remission (Tr. 15); (3) Plaintiff’s several impairments did not meet or equal any of the qualifying
impairments for SSI purposes (Tr. 16); (4) Plaintiff retained the residual functional capacity (“RFC”)
to perform a range of light work (Tr. 17); and (5) in light of Plaintiff’s age, education, work
experience, and RFC, there was a significant number of jobs in the national economy that Plaintiff
can perform. (Tr. 23.)
The ALJ’s decision became the final decision of the agency when the Appeals Council
denied review of that decision. (Tr. 5). On December 1, 2009, Plaintiff commenced a civil action
for judicial review of the ALJ’s decision pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3).
(Compl., ECF No. 1.) Plaintiff filed his Brief on the Merits on July 16, 2010. (ECF No. 20.) The
Commissioner filed his Brief on September 14, 2010. (ECF No. 21.) Plaintiff challenged three

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Plaintiff amended his alleged onset date to April 30, 2006, because he worked in
2005 and received unemployment benefits in 2006 (Tr. 558, 562).
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separate aspects of the ALJ’s decision in his case. First, he argued that the ALJ’s finding that
Hunter’s back impairment does not meet or equal an impairment contained in the SSA’s Listings
of Impairments was not supported by substantial evidence. (Pl.’s Merits Br. 13–16.) Second, with
respect to the ALJ’s RFC determination, Hunter argued that the ALJ erred in his assessment of
Hunter’s credibility, and in his failure to consider the statements of Hunter’s niece and mother
regarding the severity of Hunter’s impairments and his ability to function. (Id. at 17–18.) Third,
Hunter challenged the ALJ’s RFC determination with respect to Hunter’s mental impairments,
arguing that the ALJ erred in evaluating the opinions of various psychologists and psychiatrists by
failing to identify the weight assigned to each. (Id. at 18–19.)
On September 23, 2010, this court referred Hunter’s Complaint to Judge Baughman for the
preparation of an R&R. Judge Baughman issued his R&R on September 7, 2011. (ECF No. 34.)
Judge Baughman concluded that the ALJ’s finding that Hunter’s back and spine impairments do not
meet or equal one of the impairments in § 1.04C of the SSA’s Listing of Impairments was supported
by substantial evidence because Hunter’s “medical evidence with respect to stenosis is minimal” and
further, given the “paucity of evidence of lumbar spinal stenosis, the ALJ did not need to provide
more articulation” in his determination. (R&R at 5.) Judge Baughman also concluded that although
the ALJ “gave a conclusory assessment that Hunter was credible ‘only to the extent of the
limitations of his residual functional capacity,’” and did not provide a “‘model’ articulation,”
substantial evidence supports the ALJ’s credibility finding concerning Hunter’s RFC. (Id. at 5–6.)
Lastly, Judge Baughman concluded that the ALJ did not err in his assessment of conflicting medical
opinions concerning Plaintiff’s mental limitations. (Id. at 7–8.)

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Plaintiff filed his Objections to the R&R on October 6, 2011. (Pl.’s Objs., ECF No. 37.)
Plaintiff objects to Judge Baughman’s determinations concerning the three issues presented in his
Complaint. The Commissioner filed his Response on October 26, 2011. (ECF No. 39.)
II. LEGAL STANDARDS
Judicial review of an ALJ’s decision denying SSI benefits is limited to determining whether
substantial evidence supports the ALJ’s decision and whether the ALJ applied the correct legal
standards in reaching her conclusion. Brainard v. Sec’y of Health and Human Servs., 889 F.2d 679,
681 (6th Cir. 1989).

Under 42 U.S.C. § 405(g), the “findings of the Commissioner of Social

Security as to any fact, if supported by substantial evidence, shall be conclusive.” The Sixth Circuit
has defined “substantial evidence” as “more than a scintilla of evidence but less than a
preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.” Cutlip v. Sec’y of Health and Human Servs., 25 F.3d 284, 286 (6th Cir. 1994).
Because, here, Plaintiff filed Objections to the R&R, the court undertakes a de novo review pursuant
to Federal Rule of Civil Procedure 72(b), and must “weigh the evidence for itself and make an
independent determination of the dispositive issues.” United States v. Shami, 754 F.2d 670, 672 (6th
Cir. 1985).
In order to be entitled to SSI, Plaintiff must establish the existence of a medically
determinable physical or mental impairment that can be expected to result in death or that has lasted
or can be expected to last for a continuous period of not less than twelve months, and that the
impairment renders him unable to engage in any substantial gainful employment. 42 U.S.C. §
423(d)(1)(A); Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). Under the Social Security Act,
the Secretary must follow a “five-step sequential process” in evaluating disability claims. Heston

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v. Comm’r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001); see also 20 C.F.R. §§ 404.1520, 416.920.
First, plaintiff must demonstrate that she is not currently engaged in substantial gainful activity at
the time that she seeks SSI. Heston, 245 F.3d at 534. Second, the ALJ considers the medical
severity of the applicant’s impairments or combination of impairments. Id. Third, if the applicant
has a severe impairment, the ALJ determines whether the impairment (or combinations thereof)
meets or equals one of the SSA’s listed impairments. Id. If so, the applicant is presumed to be
disabled under the Act. Id. Fourth, the ALJ determines whether the applicant’s RFC permits the
performance of past relevant work. Id. Fifth, even if plaintiff’s impairment or impairments prevent
her from doing past relevant work, plaintiff is not disabled within the meaning of the Act if other
jobs exists in the national economy that plaintiff can perform. Id.; see also 20 C.F.R. §§
404.1520(a)(4)(I)-(v) (setting forth five-step process), 416.920(a)(4)(I)-(v) (same).
III. LAW AND ANALYSIS
A. The ALJ’s Step-Three Finding
At step three of the five-step evaluation process, the ALJ considered whether any of the
Plaintiff’s severe impairments–degenerative disc disease of the lumbar spine, generalized anxiety
disorder, major depressive disorder, antisocial personality, and substance addiction disorder in
remission–met or equaled an impairment in the SSA’s Listing of Impairments. (Tr. 16.) The ALJ
stated, with respect to Plaintiff’s degenerative disc disease, only that “Mr. Hunter’s degenerative
disc disease does not meet or equal listing 1.04. There is no evidence of a compromised nerve root,
atrophy, spinal arachnoiditis, or stenosis manifesting symptoms required by the listing.” (Tr. 16.)
He did not discuss the record evidence concerning Plaintiff’s severe impairment–his degenerative
disc disease–in relation to the criteria for meeting the Listed Impairment or medical equivalency.

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The ALJ also concluded that Plaintiff’s mental impairments, “considered singly and in combination,
do not meet or medically equal the criteria of listings 12.04, 12.06, or 12.08.” (Tr. 16.) In so
holding, the ALJ considered record evidence and evaluated whether the requisite medical criteria
were satisfied. (Tr. 16.)
Judge Baughman concluded that the ALJ’s determination concerning Hunter’s degenerative
disc disease was supported by substantial evidence, and moreover, noted that “the Sixth Circuit
[has] held that ‘there is no heightened articulation standard where the ALJ’s findings are supported
by substantial evidence.’” (R&R at 5 (quoting Bledsoe v. Barnhart, 165 Fed. App’x 408, 411 (6th
Cir. 2006).) Further, even though the Listing at issue sets forth various disorders of the spine, 20
C.F.R. Pt. 404, Subpt. P, App 1, Listing 1.04, and the regulations expressly permit an evaluation of
equivalency, Judge Baughman noted that in this case “medical evidence with respect to stenosis [one
qualifying impairment] is minimal.” (R&R at 4.)
Plaintiff objects to Judge Baughman’s application of Bledsoe, and argues that the facts of that
case “are significantly different.” (Pl.’s Obj.’s at 2–3.) This court agrees, and accordingly declines
to adopt Judge Baughman’s conclusion. In Bledsoe, the ALJ did not “spell[] out every consideration
that went into the step three determination;” however, the ALJ “described evidence pertaining to all
impairments, both severe and non-severe, for five pages earlier in his opinion and made factual
findings.” 165 Fed. App’x at 411 (emphasis added). Under these facts, the court declined to require
“a heightened articulation standard” and held that the ALJ did not err in failing to articulate, at
length, the analysis of the medical equivalency issue. Id.
In this case, by contrast, the record reflects that the ALJ failed to evaluate the medical
evidence and compare it to the requirements for the listed impairment. In this regard, the instant

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case is analogous to Reynolds v. Comm’r of Soc. Sec., 424 Fed. App’x 411 (6th Cir. 2011), wherein
the Sixth Circuit held that the ALJ erred in “failing to analyze Reynolds’ physical condition in
relation to the Listed Impairments.” Id. at 416. Notably, in that case, the ALJ also began his stepthree determination with a conclusory statement concerning the applicant’s back impairment, but
proceeded with a “thorough analysis” and a “full-page assessment of Reynolds’ mental impairment.”
Id. at 415.

There, the court held that the ALJ’s error in failing to evaluate evidence of the

applicant’s back impairment was not harmless because “the regulations indicate that if a person is
found to meet a Listed Impairment, they are disabled within the meaning of the regulations and are
entitled to benefits; no more analysis is necessary.”

Id. at 416 (citing 20 C.F.R. §

404.1520(a)(4)(iii)). The court explained that the ALJ “ needed to actually evaluate the evidence,
compare it to . . . the Listing, and give an explained conclusion, in order to facilitate meaningful
judicial review.” Id.
While the Defendant’s Response contains some discussion of the record evidence of
Plaintiff’s back impairment, including evidence showing only “mild degenerative changes in the
lumbar spine” (Def.’s Resp. to Pl.’s Obj.’s at 2, ECF No. 39 (citing Tr. 292)), this court cannot
engage in post-hoc rationalizations. See S.E.C. v. Chenery, 332 U.S. 194, 196 (1947) (a reviewing
court must judge propriety of agency action “solely by the grounds invoked by the agency”).
Because the ALJ failed to conduct a meaningful review of the record evidence of Plaintiff’s severe
back impairment in relation to the relevant Listed Impairment, the court declines to adopt Judge
Baughman’s recommendation as to this issue and remands for a more thorough step three
determination. See, e.g., May v. Astrue, No. 4:10-CV-1533, 2011 WL 3490186, *9 (N.D. Ohio June
1, 2011) (remanding where ALJ provided conclusory evaluation of claimant’s physical impairment
yet thoroughly analyzed the mental impairment); Marok v. Astrue, No. 5:08-CV-1832, 2010 WL
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2294056, *5 (N.D. Ohio June 3, 2010) (distinguishing Bledsoe and noting that though “ALJ's written
decision states that he considered ‘all symptoms’ and ‘opinion evidence’ . . . he does not describe
that evidence or his findings relative to it, making the ALJ's written decision ambiguous or otherwise
incomplete”).
B. The ALJ’s Credibility Determination
At step-four of the evaluation process, the ALJ evaluated Plaintiff’s RFC to perform work,
and therein evaluated Plaintiff’s credibility. (Tr. 17.) The ALJ held:
After considering the evidence, I find that Mr. Hunter’s medically determinable
impairments could reasonably be expected to produce the alleged symptoms, but that
his statements concerning the intensity, persistence and limiting effects of these
symptoms are credible only to the extent of the limitations of his residual functional
capacity.
(Tr. 18.) Judge Baughman noted that the ALJ “gave a conclusory assessment” concerning Plaintiff’s
credibility and failed to provide “a ‘model’ articulation” of his finding, but nevertheless held that
“reasonable evidence exists sufficient to support the credibility finding.” (R&R at 6.) The court
agrees with Judge Baughman that the ALJ failed to provide a clear statement concerning his
credibility finding, but unlike Judge Baughman, the court finds that the ALJ’s failure to do so
constitutes reversible error.
In evaluating a claimant’s complaints of pain and symptoms, an ALJ may properly consider
the claimant’s credibility. Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 532 (6th Cir. 1997). The
Sixth Circuit has noted that an “ALJ is in the best position to observe witnesses’ demeanor and to
make an appropriate evaluation as to their credibility.” Reynolds, 424 Fed. App’x at 416–17 (citing
Walters, 127 F.3d at 531). Therefore, an ALJ’s credibility assessment should not be disturbed
“‘absent compelling reason.’” Id. at 417 (quoting Smith v. Halter, 307 F.3d 377, 379 (6th Cir.
2001)). In assessing credibility, however, the ALJ must consider the record as a whole; the
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claimant’s statements concerning her symptoms; statements or other information provided by the
treating or examining physicians and other persons about the conditions and their effect on the
claimant; and other relevant evidence. Id.; see also SSR 96–7P, 1996 WL 374186, **1–2 (S.S.A.).
In this case, the ALJ recognized the factors that he was required to consider in evaluating
Plaintiff’s credibility. (Tr. 17 (citing 20 C.F.R. § 416.929(c)).) Although he discussed the record
evidence bearing on some of the relevant factors, including record evidence of his treatment history,
daily activities, and medication history (Tr. 18–22), the ALJ provided no explanation for why the
record evidence militated in favor of his finding that the Plaintiff is less than fully credible. See
also Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 247–49 (6th Cir. 2007) (holding ALJ erred in
credibility determination where ALJ failed to provide specific reasons for finding on credibility in
relation to the entire case record). The ALJ’s statement that Plaintiff is credible “only to the extent
of the limitations of his residual functional capacity” is vague, and impedes full meaningful review.
See Rogers, 486 F.3d at 248 n.5 (“The requirement that the Commissioner fully explain his
determinations of the claimant’s credibility is grounded, at least in part, upon the need for clarity in
later proceedings.”)
Further, the ALJ failed to discuss and consider statements from Plaintiff’s family members
concerning his symptoms and their effects on his daily activities. Judge Baughman cited to Social
Security Ruling 06-03P, in holding that the ALJ “did not commit reversible error by not discussing
evidence from . . . non-medical sources in his decision” (R&R at 7 (citing SSR 06-03P, 2006 WL
2329939 (Aug. 9, 2006)), but that is not the relevant Ruling for the purposes of assessing credibility.
Under SSR 96-7P, “the adjudicator must consider . . . other information provided by treating or
examining physicians or psychologists and other persons about the symptoms and how they affect
the individual.” 1996 WL 374186 at *1 (emphasis added); see also Walker v. Astrue, No. CIV-09-9-

405-SPS, 2011 WL 1233384, *4 (E.D. Ok. Mar. 30, 2011) (remanding for consideration of thirdparty witness statements in assessment of credibility); Kha Xiong ex rel. Pha Yang v. Astrue, No.
CIV S-07-0202 DAD, 2008 WL 4196823, *10 (E.D. Cal. Sept. 10, 2008) (holding ALJ erred in not
considering third-party statements from claimant’s mother in credibility determination).
Accordingly, the court declines to adopt Judge Baughman’s Recommendation concerning Plaintiff’s
second claim of error. On remand, should the ALJ find it necessary to discuss Plaintiff’s credibility,
the ALJ should provide a clearer explanation for his credibility finding in relation to the entire
record, which includes potentially corroborating statements from family members.
C. The ALJ’s RFC Determination Concerning Plaintiff’s Mental Impairments
Finally, the court turns to Plaintiff’s objection that “the ALJ failed to articulate the weight
[he] assigned to the opinions of the mental health sources in the record and thus, it is unclear exactly
how he formulated the RFC that he found.” (Pl.’s Obj.’s at 12.) Plaintiff argues that the ALJ’s RFC
finding is legally insufficient and not based on substantial evidence because the ALJ failed to assign
weight to all the mental health opinions in the record. (Id. at 12–13.) Judge Baughman noted that
the ALJ had conflicting evidence before him, and that the ALJ ultimately concluded to give minimal
weight to a June 2007 mental assessment done by a psychiatrist, Dr. Nora McNamara, in which she
opined that Plaintiff was extremely limited in all areas of mental functioning and would likely
deteriorate under stress. (R&R at 7–8; see also Tr. 21.) Judge Baughman concluded that the ALJ
“gave good reasons” for his decision to afford Dr. McNamara’s minimal weight. (R&R at 8.)
Specifically, the ALJ noted that Dr. McNamara’s opinion was “not based on previous treatment or
longevity” and that it was internally inconsistent in that it adopted extreme limitations yet also
indicated that Plaintiff had “no limitation in his ability to understand, carry out and remember
instructions, he was moderately limited in responding appropriately to supervision, coworkers and
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changes in the work setting and he only had mild limitations in using good judgment and performing
complex repetitive or varied tasks.” (Tr. 22.) It is the ALJ’s duty to decide conflicts in evidence
from medical sources. Books v. Chater, 91 F.3d 972, 979 (7th Cir. 1996). The ALJ properly
considered the factors relevant to deciding conflicts in medical opinions, including longevity of
treatment. See 20 C.F.R. §§ 404.1527 (considerations for evaluating opinion evidence), 416.927
(same). Thus, the court finds no reason to disturb the ALJ’s consideration of medical evidence
concerning Plaintiff’s mental limitations. However, in light of the court’s holdings with respect to
Plaintiff’s first two claims of error, the instant matter is remanded to the ALJ for the reasons stated
herein.
IV. CONCLUSION
For the foregoing reasons, the court declines to adopt Judge Baughman’s Report and
Recommendation in its entirety. (ECF No. 34.) The ALJ’s decision is hereby reversed and the
instant matter remanded for further proceedings consistent with this Order. Specifically, upon
remand, the ALJ should fully evaluate the record evidence and properly determine whether
Plaintiff’s severe back impairment meets or equals the relevant Listing. Furthermore, should the
ALJ find it necessary to do so, the ALJ should provide a clearer analysis concerning Plaintiff’s
credibility.
IT IS SO ORDERED.
/s/ SOLOMON OLIVER, JR.
CHIEF JUDGE
UNITED STATES DISTRICT COURT

December 19, 2011

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