Sellers v. Commissioner of Social Security

Filing 18

Memorandum Opinion and Order. For the reasons outlined in this Order, the Magistrate Judge finds that the decision of the Commissioner is not supported by substantial evidence. Accordingly, the Court vacates the decision of the Commissioner and REMANDS the case back to the Social Security Administration. Signed by Magistrate Judge Kenneth S. McHargh on 3/28/13. (R,N)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
YVETTE SELLERS,
Plaintiff,
v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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CASE NO. 1:12-CV-228

MAGISTRATE JUDGE
KENNETH S. McHARGH

MEMORANDUM OPINION & ORDER

This case is before the Magistrate Judge pursuant to the consent of the parties. (Doc. 12).
The issue before the undersigned is whether the final decision of the Commissioner of Social
Security (the “Commissioner”) denying Yvette Sellers’ applications for Supplemental Security
Income benefits under Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq., and a
Period of Disability and Disability Insurance benefits under Title II of the Social Security Act, 42
U.S.C. §§ 416(i) and 423, is supported by substantial evidence and therefore, conclusive.
For the reasons that follow, the undersigned VACATES the decision of the
Commissioner and REMANDS the case back to the Social Security Administration.
I. PROCEDURAL HISTORY
On July 17, 2008, Plaintiff Yvette Sellers (“Plaintiff” or “Sellers”) applied for a Period of
Disability and Disability Insurance benefits and Supplemental Security Income benefits. (Tr. 9399). Plaintiff alleged she became disabled on March 7, 2008, due to suffering from bipolar
disorder, diabetes, hypertension, heart problems, knee problems, asthma and blood clots in her
lungs and legs. (Tr. 93, 97, 127).

The Social Security Administration denied Sellers’

applications for benefits initially and upon reconsideration. (Tr. 62-68, 74-87). Thereafter,
Plaintiff requested a hearing before an administrative law judge to contest the denial of her

applications. (Tr. 88-89).
On October 29, 2010, Administrative Law Judge C. Howard Prinsloo (the “ALJ”)
convened a hearing via video to evaluate Plaintiff’s applications. (Tr. 30-57). The ALJ presided
over the hearing from St. Louis, Missouri, while Plaintiff, counsel and the vocational expert
appeared in Cleveland, Ohio. (Tr. 30, 32). During the proceeding, the ALJ heard testimony
from Plaintiff and the vocational expert. (Tr. 30-57).
On November 12, 2010, the ALJ issued an unfavorable decision finding Sellers was not
disabled.

(Tr. 12-23).

The ALJ applied the five-step sequential analysis,1 and concluded

Plaintiff retained the ability to perform work which existed in significant numbers in the national
economy. (Id.). Following the issuance of this decision, Sellers sought review of the ALJ’s

1

The Social Security Administration regulations require an ALJ to follow a five-step sequential
analysis in making a determination as to “disability”. See 20 C.F.R. §§ 404.1520(a), 416.920(a).
The Sixth Circuit has summarized the five steps as follows:
(1)
If a claimant is doing substantial gainful activity – i.e., working for profit – she is
not disabled.
(2)
If a claimant is not doing substantial gainful activity, her impairment must be
severe before she can be found to be disabled.
(3)
If a claimant is not doing substantial gainful activity and is suffering from a
severe impairment that has lasted or is expected to last for a continuous period of at least twelve
months, and her impairment meets or equals a listed impairment, claimant is presumed disabled
without further inquiry.
(4)
If a claimant’s impairment does not prevent her from doing her past relevant
work, she is not disabled.
(5)
Even if a claimant’s impairment does prevent her from doing her past relevant
work, if other work exists in the national economy that accommodates her residual functional
capacity and vocational factors (age, education, skills, etc.), she is not disabled.
Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990); Heston v. Comm’r of Soc. Sec., 245 F.3d
528, 534 (6th Cir. 2001).
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decision from the Appeals Council. (Tr. 8). However, the council denied Plaintiff’s request,
thereby making the ALJ’s ruling the final decision of the Commissioner. (Tr. 1-6). Sellers now
seeks judicial review of the Commissioner’s decision pursuant to 42 U.S.C. §§ 405(g) and
1383(c).
II. PERSONAL BACKGROUND INFORMATION
Sellers was born on July 7, 1961, and was 49 years of age on the date of her hearing
before the ALJ. (Tr. 36, 60). Accordingly, at all relevant times, Sellers was considered as a
“younger person” for Social Security purposes. See 20 C.F.R. §§ 404.1563(c); 416.963(c).
Plaintiff graduated from high school and has past relevant experience working as a food service
worker and nurse’s aide. (Tr. 132, 54).
III. ALJ’s RULING
The ALJ made the following findings of fact and conclusions of law:
1.

The claimant meets the insured status requirements of the Social Security
Act through March 31, 2010.

2.

The claimant has not engaged in substantial gainful activity since March 7,
2008, the alleged onset date.

3.

The claimant has the following severe impairments: bipolar disorder,
diabetes mellitus, degenerative joint disease, a history of diagnoses and/or
treatment for chronic abdominal pain, and deep vein thrombosis on
Coumadin therapy.

4.

The claimant does not have an impairment or combination of impairments
that meets or medically equals one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.

5.

After careful consideration of the entire record, the undersigned finds that
the claimant lacks the residual functional capacity to perform the full
range of light work as defined in 20 CFR 404.1567(b) and 416.967(b) and
must work in occupations that can be learned in a short period of time of
no more than 30 days with an SVP level of 1 or 2. She is limited to
routine, repetitive tasks with no changes in the routine work setting or
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more than occasional interaction with the public and/or co-workers. She is
further limited to work that is not performed at a production rate pace.
6.

The claimant is unable to perform any past relevant work.

...
10.

Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform.

11.

The claimant has not been under a disability, as defined in the Social
Security Act, from March 7, 2008, through the date of this decision.

(Tr. 14-23) (internal citations omitted).
IV. DISABILITY STANDARD
A claimant is entitled to receive Disability Insurance and/or Supplemental Security
Income benefits only when she establishes disability within the meaning of the Social Security
Act. See 42 U.S.C. §§ 423, 1381. A claimant is considered disabled when she cannot perform
“substantial gainful employment by reason of any 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 (12) months.” See 20 C.F.R. §§ 404.1505, 416.905.
V. STANDARD OF REVIEW
Judicial review of the Commissioner’s benefits decision is limited to a determination of
whether, based on the record as a whole, the Commissioner’s decision is supported by substantial
evidence, and whether, in making that decision, the Commissioner employed the proper legal
standards. See Cunningham v. Apfel, 12 F. App’x 361, 362 (6th Cir. 2001); Garner v. Heckler,
745 F.2d 383, 387 (6th Cir. 1984); Richardson v. Perales, 402 U.S. 389, 401 (1971).
“Substantial evidence” has been defined as more than a scintilla of evidence but less than a
preponderance of the evidence. See Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 535
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(6th Cir. 1981). Thus, if the record evidence is of such a nature that a reasonable mind might
accept it as adequate support for the Commissioner’s final benefits determination, then that
determination must be affirmed. Id. The Commissioner’s determination must stand if supported
by substantial evidence, regardless of whether this Court would resolve the issues of fact in
dispute differently or substantial evidence also supports the opposite conclusion. See Mullen v.
Bowen, 800 F.2d 535, 545 (6th Cir. 1986); Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir.
1983). This Court may not try the case de novo, resolve conflicts in the evidence, or decide
questions of credibility. See Garner, 745 F.2d at 387. However, it may examine all the evidence
in the record in making its decision, regardless of whether such evidence was cited in the
Commissioner’s final decision. See Walker v. Sec’y of Health & Human Servs., 884 F.2d 241,
245 (6th Cir. 1989).
VI. ANALYSIS
Plaintiff attacks the ALJ’s decision on two grounds. First, Sellers maintains the ALJ
failed to properly weigh the medical opinions issued by her treating physicians. Plaintiff’s
second assignment of error challenges the ALJ’s reliance upon the vocational expert’s testimony
at step five of the sequential analysis. Plaintiff’s first assignment of error is well-taken.
Sellers maintains the ALJ failed to explain why he discarded the opinions of four of her
treating physicians: Drs. Diandepura, Ryan, Kline and Gardway. It is well-established that an
ALJ must give special attention to the findings of a claimant’s treating source. Wilson v.
Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). This doctrine, often referred to as the
“treating source rule” is a reflection of the Social Security Administration’s awareness that
physicians who have a long-standing treating relationship with an individual are best equipped to
provide a complete picture of the individual’s health and treatment history. Id.; 20 C.F.R. §§
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404.1527(c)(2); 416.927(c)(2).

The treating source rule indicates that opinions from such

physicians are entitled to controlling weight if the opinion is (1) “well-supported by medically
acceptable clinical and laboratory diagnostic techniques” and (2) “not inconsistent with the other
substantial evidence in the case record.” Wilson, 378 F.3d at 544.
When a treating source’s opinion is not entitled to controlling weight under this
framework, the ALJ must determine how much weight to assign to the opinion by applying
specific factors set forth in the governing regulations.

20 C.F.R. §§ 404.1527(c)(2);

416.927(c)(2). These factors include: the length of the treatment relationship and the frequency
of examination; the nature and extent of the treatment relationship; the supportability and
consistency of the opinion; the physician’s specialization; and any other relevant factors. 20
C.F.R. §§ 404.1527(c)(2)(i)-(ii) & (c)(3)-(c)(6); 416.927(c)(2)(i)-(ii) & (c)(3)-(c)(6).
The regulations also require the ALJ to provide “good reasons” for the weight ultimately
assigned to the opinion.

20 C.F.R. §§ 404.1527(c)(2); 416.927(c)(2).

The reasons-giving

requirement serves a two-fold purpose. First, it “let[s] 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 she is not, unless some reason for the agency’s decision is supplied.’” Blakely
v. Comm’r of Soc. Sec., 581 F.3d 399, 407 (6th Cir. 2009) (citing Snell v. Apfel, 177 F.3d 128,
134 (2d Cir. 1999)). Secondly, the requirement “ensures that the ALJ applies the treating
physician rule and permits meaningful review of the ALJ’s application of the rule.” Id. An
ALJ’s failure to adhere to these regulations “denotes a lack of substantial evidence, even where
the conclusion of the ALJ may be justified based upon the record.” Id. (citing Rogers v. Comm’r
of Soc. Sec., 486 F.3d 234, 243 (6th Cir. 2007)) (emphasis omitted).
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Nevertheless, the failure to provide good reasons may be deemed “harmless error” when
(1) the “treating source’s opinion is so patently deficient that the Commissioner could not
possibly credit it;” (2) “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(d)(2) . . . even though she has not complied with the terms of the regulations.”2 Id.
(quoting Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 551 (6th Cir. 2010)).
a. Dr. Gardway
In April 2009, Plaintiff’s treating psychiatrist, Dr. Gretchen Gardway,3 completed a
Medical Source Statement form evaluating Sellers’ mental capacity. (Tr. 593-94). In it, Dr.
Gardway opined Plaintiff retained a “fair” ability to: follow work rules; maintain regular
attendance and be punctual within customary tolerance; function independently without special
supervision; understand, remember and carry out simple job instructions; behave in an
emotionally stable manner; and leave home on her own depending on where she was going.
(Id.). On the other hand, Dr. Gardway concluded Sellers maintained a “poor” ability to: use
judgment; maintain attention and concentration for extended periods of two hour segments;
respond appropriately to changes in routine settings; deal with the public; relate to co-workers;
interact with supervisors; work in coordination with or proximity to others without being unduly
distracted or distracting; deal with work stresses; complete a normal workday and work week
without interruptions from psychologically based symptoms and perform at a consistent pace
without an unreasonable number and length of rest periods; understand, remember and carry out
detailed or complex job instructions; socialize; relate predictably in social situations; and manage
2

Effective March 26, 2012, section 404.1527 of the Code of Federal Regulations was amended.
Paragraph (d) was redesignated as paragraph (c). See 77 F.R. 10651-01, 2011 WL 7404303.
3
Plaintiff incorrectly refers to Dr. Gardway as Dr. Gardner. (See Pl.’s Br. at 12).
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her funds. (Id.). Dr. Gardway further commented that Sellers was “severely limited by her
mental illness”. (Tr. 594).
In April 2010, Dr. Gardway completed a second Medical Source Statement assessing
Sellers’ mental faculties. (Tr. 686-87). The findings contained in this report largely mirrored the
doctor’s 2009 report save a few changes.

Dr. Gardway indicated Plaintiff had somewhat

improved in that she now had a “fair” ability to understand, remember and carry out both
detailed and complex job instructions, and a “good” ability to understand, remember and carry
out simple job instructions. (Tr. 687). However, the doctor noted Plaintiff’s ability to behave in
an emotionally stable manner and leave home on her own worsened to a “poor” rating. (Id.). Dr.
Gardway also commented that Sellers had “significant mood liability, panic attacks, paranoia,
anxiety, low frustration tolerance, affective instability, [and] hallucinations”. (Id.).
The ALJ addressed these two reports completed by Dr. Gardway, but did not give them
controlling weight or otherwise indicate how much weight he assigned to the doctor’s overall
opinion. This was a clear violation of the treating source doctrine. Even if the ALJ determined
that Dr. Gardway’s opinion was not entitled to controlling weight, the ALJ remained under a
duty to give “good reasons” for the weight afforded the opinion.
The undersigned is particularly disturbed by the ALJ’s description of Dr. Gardway’s
opinion. The ALJ highlighted Dr. Gardway’s findings which reflected Plaintiff’s “fair” or
“good” abilities, but made no mention of the numerous “poor” findings contained in the doctor’s
2009 report, and only brief mention of the “poor” findings in the 2010 assessment. (See Tr. 20).
Dr. Gardway’s opinion was particularly important because all of the other medical opinion
evidence regarding Plaintiff’s mental health predated her opinion by as many as two years. (See
Tr. 239-42, 407-14, 415-17).
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The ALJ’s failure here cannot be deemed harmless error. Dr. Gardway’s opinion was not
so patently deficient that it could not be credited. Nor can it be said that the ALJ’s findings were
consistent with the doctor’s opinion, or that the ALJ met the goal of the treating source doctrine
despite failing to follow the strict dictates of the rule. Ultimately, the ALJ failed to explain how
he reconciled Dr. Gardway’s opinion with his RFC assessment.
In both her 2009 and 2010 assessments, Dr. Gardway indicated Sellers had a “poor”
ability to “complete a normal workday and work week without interruptions from
psychologically based symptoms and [to] perform at a consistent pace without an unreasonable
number and length of rest periods.” (Tr. 594, 687). Notably, during the hearing, the ALJ posed
a hypothetical question to the vocational expert describing an individual who was “unable to
engage in sustained work activity for a full eight hour day on a regular or consistent basis.” (Tr.
56). In response, the vocational expert testified that there would be no competitive employment
available for such a person. (Id.). Thus, full acceptance of Dr. Gardway’s findings would have
likely caused the ALJ to conclude that Plaintiff was disabled at step five of the analysis. Without
some explanation from the ALJ, the Court has no way of determining why the ALJ rejected this
portion of Dr. Gardway’s opinion or whether his decision to do so was supported by substantial
evidence. As a result, remand is necessary.
b. Dr. David Ryan
Although remand is proper on other basis, the Court will briefly address the ALJ’s
evaluation of the other treating physicians’ opinions.
On October 16, 2008, Plaintiff presented to Dr. David Ryan for an initial visit. (Tr. 379).
Dr. Ryan noted Plaintiff’s history of abdominal pain and various forms of medication used to
treat the pain. (Id.). The doctor’s notes from the visit also indicate that Sellers was limited to
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standing for 1 hour, sitting for 30 minutes and walking for 15 minutes. (Id.). Although the ALJ
acknowledged other of Dr. Ryan’s findings, the ALJ did not explicitly address this finding or
indicate how much weight he attributed to the doctor’s opinions. (See Tr. 17-18). Defendant
asserts a number of reasons why the ALJ would have been justified in discounting Dr. Ryan’s
opinion of Plaintiff’s ability to stand, sit and walk, but these reasons were not put forward by the
ALJ. On remand, the ALJ will have a second opportunity to assess Dr. Ryan’s opinion and
supply an adequate explanation of the weight given to the opinion and the reasons for that
weight.
c. Dr. Allen Kline
On August 13, 2008, Dr. Allen Kline performed an evaluation of Plaintiff’s mental
faculties. (Tr. 240-42). Dr. Kline diagnosed Sellers with bipolar disorder, diabetes, hypertension
and obesity. (Tr. 241-42). In the evaluation, Dr. Kline indicated Plaintiff suffered from poor
concentration, frequent mood changes, was hospitalized often and did not take care of herself
well. (Tr. 242). The doctor also stated that Sellers’ diabetes, obesity and hypertension limited
her ability to perform any exertional activities. (Id.). The ALJ discussed this assessment but
failed to specify how much weight he gave to these findings. (Tr. 20). Again, the Commissioner
provided several hypothetical reasons why the ALJ could have dismissed Dr. Kline’s opinion –
reasons which the Court may have accepted if stated by the ALJ. However, the ALJ’s omission
of any such explanation limits the undersigned’s ability to evaluate the sufficiency of the ALJ’s
ruling. The ALJ can correct this error on remand.

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d. Dr. Diandepura4
On August 25, 2010, Dr. Diandepura completed a Medical Source Statement assessing
Plaintiff’s physical capacity to perform various tasks. (Tr. 688-89). In the form, Dr. Diandepura
opined Sellers could not lift or carry any amount of weight, nor stand or walk for any length of
time throughout the workday. (Tr. 688). The doctor further indicated that Sellers could only
rarely or never climb, balance, stoop, crouch, kneel, crawl, reach, handle, push or pull. (Tr. 68889). Dr. Diandepura attributed these limitations to Plaintiff’s thoracic neuritis. (Id.).
The ALJ gave little weight to Dr. Diandepura’s opinion. He explained that the doctor’s
findings sharply contrasted with Plaintiff’s statements regarding her abilities and with all of the
other evidence in the record. (Tr. 18-19). The ALJ also noted that it was unclear to him whether
Dr. Diandepura had actually treated Sellers on an ongoing basis and whether the Medical Source
Statement was merely completed to accommodate a request by Sellers. (Id.). These were all
reasonable explanations of why the ALJ chose to discount Dr. Diandepura’s opinion. Notably,
Plaintiff did not present any arguments attacking these reasons.

Consequently, Plaintiff’s

objection to the ALJ’s analysis of this opinion is overruled. Nevertheless, because the ALJ’s
review of the other three treating physicians’ opinions was faulty, remand is proper.

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Plaintiff incorrectly attributes the findings of Dr. Diandepura to Dr. David Ryan. (Compare
Pl.’s Br. at 12 and Tr. 688-89).
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VII. DECISION
For the foregoing reasons, the Magistrate Judge finds that the decision of the
Commissioner is not supported by substantial evidence. Accordingly, the Court VACATES the
decision of the Commissioner and REMANDS the case back to the Social Security
Administration.
IT IS SO ORDERED.

s/ Kenneth S. McHargh
Kenneth S. McHargh
United States Magistrate Judge
Date: March 28, 2013.

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