Allums v. Commissioner of Social Security

Filing 32

Memorandum Opinion and Order that the decision of the Commissioner denying Allums supplemental security income is reversed and the matter remanded for further proceedings (Related Doc # 1 ). Signed by Magistrate Judge William H. Baughman, Jr. on 3/26/2013. (S,G)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

DEIDRE ALLUMS,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CASE NO. 1:12 CV 291

MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.

MEMORANDUM OPINION AND
ORDER

Introduction
Before me1 is an action by plaintiff Deidre Allums seeking judicial review of the final
decision of the Commissioner of Social Security denying her application for supplemental
security income.2 The Commissioner has filed an answer3 and a transcript of the
administrative record.4 Pursuant to the terms of my initial order5 and procedural order,6 the

1

ECF # 19. The parties have consented to my exercise of jurisdiction.

2

ECF # 1.

3

ECF # 11.

4

ECF # 12.

5

ECF # 7.

6

ECF # 14.

parties have briefed their positions7 and filed a supporting fact sheet8 and charts.9 The parties
have participated in a telephonic oral argument.10
For the reasons stated below, I will find that the decision of the Commissioner is not
supported by substantial evidence and so will be reversed, with the matter remanded for
further proceedings.

Facts
A.

Decision of the Administrative Law Judge
Allums, who was born in 1971,11 testified that she lives upstairs in a double house she

shares with her children and their father.12 She stated that she had past difficulties with crack
cocaine and marijuana and that her current medications cause her to sleep all day.13 In
addition, she claimed that mood swings, depression, and anger issues led her to not go back
to previous jobs, which, accordingly, were mostly short-lived.14

7

ECF # 17 (Allums’s brief); ECF # 22 (Commissioner’s brief).

8

ECF # 13 (Allums’s fact sheet).

9

ECF # 23 (Commissioner’s charts); ECF # 17, Attachment (Allums’s charts).

10

ECF # 31.

11

Transcript (“Tr.”) at 16.

12

Id. at 43.

13

Id. at 48-49.

14

Id. at 46-47.
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The Administrative Law Judge (“ALJ”), whose decision became the final decision of
the Commissioner, found that Allums had severe impairments consisting of hypertension;
asthma; anemia; gastroesophageal reflux disease; bipolar affective disorder, type II with
psychotic features; personality disorder; borderline intellectual functioning, and a history of
polysubstance dependence.15 With the substance abuse, the ALJ found at step three that
Allums’s impairments met the listings at sections 12.04 and 12.09, thus rendering her
disabled.16
However, without the substance abuse the ALJ concluded that Allums would not meet
or equal a listing, but would have the underlying conditions of bipolar disorder and
personality disorder as well as borderline intellectual functioning.17 The ALJ then made the
following finding regarding Allums’s residual functional capacity with those impairments:
If the claimant stopped the substance use, the claimant would have the residual
functional capacity to perform light work as defined in 20 CFR 416.967(b)
except the claimant is to avoid climbing ladders, ropes and scaffolds. In
connection with environmental limitations, the claimant is to avoid
concentrated exposure to dusts, fumes, gases, and poor ventilation. In
consideration of her mental impairments, the claimant is able to understand,
remember and carry out short and simple instructions and is limited to routine,
repetitive tasks. The claimant can maintain attention and concentration for
extended periods on simple tasks. Additionally, she is capable of low stress
with occasional decision-making and with occasional changes in the work

15

Id. at 15.

16

Id. at 15-17.

17

Id. at 17.
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setting. The claimant is limited to superficial contact with the general public;
and no more than occasional contact with coworkers and supervisors.18
Given that residual functional capacity, the ALJ found Allums incapable of
performing her past relevant work as a dispatcher, customer service complaint - clerk, and
home health aide if she stopped her substance abuse.19 Nonetheless, relying on the testimony
of a vocational expert (VE), the ALJ determined that if Allums stopped her substance abuse
she would be able to successfully adjust to light skilled jobs existing in sufficient numbers
in the national economy.20Thus, the ALJ concluded that Allums was not disabled and rejected
her application for benefits.21
B.

Allums arguments for reversal
Allums asks for reversal of the Commissioner’s decision based on three grounds:
•

The ALJ made two findings at Step 3 of the sequential evaluation
process, namely that the claimant’s impairments, including substance
use disorders, met sections 12.04 and 12.09 of 20 CFR Part 404,
Subpart P, Appendix 1 (20 CFR § 416.920(d) and if the claimant
stopped substance use, the claimant would not have an impairment or
combination of impairments that met or medically equaled any
impairment listed above. This finding lacks the support of substantial
evidence because the ALJ failed to separate the evidence from before
her application of August 18, 2008 from the evidence after that date;
The ALJ improperly relied upon the testimony of Dr. Kushalani; failed
to give controlling weight to treating psychiatrist Dr. Ramirez. The ALJ

18

Id. at 19.

19

Id. at 16.

20

Id. at 17.

21

Id. at 17-18.
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also failed to properly evaluate the opinions of other medical sources
according to SSR 06-3p (TR.15 & 17).22
•

The ALJ determined that the claimant’s statements concerning the
intensity, persistence and limiting effects of her symptoms were not
credible to the extent that they are inconsistent with the RFC
assessment. This finding lacks support for the reason that the ALJ
failed to properly evaluate credibility according to 20 CFR 416.930 &
SSR 96-7p. The ALJ also impermissibly used evidence that pre-dated
the application to discredit Ms. Allums’ credibility during the pendency
of the claim. The ALJ lacked substantial evidence because the ALJ
failed to properly evaluate the statements of all witnesses according to
SSR 06-3 and impermissibly concluded without evidence that the
witnesses would benefit financially from the determination of disability
as they reside with the claimant.23

•

The ALJ found at Step 5 that the claimant had the residual functional
capacity to perform light work as defined in 20 CFR 416.967(b) except
the claimant is to avoid climbing ladders, ropes, and scaffolds. In
connection with environmental limitations, the claimant is to avoid
concentrated exposure to dusts, fumes, gases, and poor ventilation. In
consideration of her mental impairments, the claimant is able to
understand, remember, and carry out short and simple instructions and
is limited to routine, repetitive tasks. The claimant can maintain
attention and concentration for extended periods on simple tasks.
Additionally, she is capable of low stress with occasional decisionmaking and with occasional changes in the work setting. The claimant
is limited to superficial contact with the general public; and no more
than occasional contact with coworkers and supervisors. This finding
lacks the support of substantial evidence because the ALJ failed to give
controlling weight to the treating psychiatrist; failed to properly
evaluate the opinions of the three other treating sources, failed to
properly evaluate the claimant’s credibility and failed to base the
residual functional capacity upon the record as a whole.24

22

ECF # 17 at 3.

23

Id.

24

ECF # 17 at 4.
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Analysis
A.

Standards of review

1.

Sufficiency of the evidence
The Sixth Circuit in Buxton v. Halter reemphasized the standard of review applicable

to decisions of the ALJs in disability cases:
Congress has provided for federal court review of Social Security
administrative decisions. 42 U.S.C. § 405(g). However, the scope of review is
limited under 42 U.S.C. § 405(g): “The findings of the Secretary as to any fact,
if supported by substantial evidence, shall be conclusive....” In other words, on
review of the Commissioner’s decision that claimant is not totally disabled
within the meaning of the Social Security Act, the only issue reviewable by
this court is whether the decision is supported by substantial evidence.
Substantial evidence is “ ‘more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.’ ”
The findings of the Commissioner are not subject to reversal merely
because there exists in the record substantial evidence to support a different
conclusion. This is so because there is a “zone of choice” within which the
Commissioner can act, without the fear of court interference.25
Viewed in the context of a jury trial, all that is necessary to affirm is that reasonable minds
could reach different conclusions on the evidence. If such is the case, the Commissioner
survives “a directed verdict” and wins.26 The court may not disturb the Commissioner’s
findings, even if the preponderance of the evidence favors the claimant.27
25

Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (citations omitted).

26

LeMaster v. Sec’y of Health & Human Servs., 802 F.2d 839, 840 (6th Cir. 1986);
Tucker v. Comm’r of Soc. Sec., No. 3:06cv403, 2008 WL 399573, at *6 (S.D. Ohio Feb. 12,
2008).
27

Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
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I will review the findings of the ALJ at issue here consistent with that deferential
standard.
2.

Treating physician rule and good reasons requirement
The regulations of the Social Security Administration require the Commissioner to

give more weight to opinions of treating sources than to those of non-treating sources under
appropriate circumstances.
Generally, we give more weight to opinions from your treating sources, since
these sources are likely to be the medical professionals most able to provide
a detailed, longitudinal picture of your medical impairment(s) and may bring
a unique perspective to the medical evidence that cannot be obtained from
objective medical findings alone or from reports of individual examinations,
such as consultative examinations or brief hospitalizations.28
If such opinions are “well-supported by medically acceptable clinical and laboratory
diagnostic techniques” and “not inconsistent with the other substantial evidence in [the] case
record,” then they must receive “controlling” weight.29
The ALJ has the ultimate responsibility for determining whether a claimant is
disabled.30 Conclusory statements by the treating source that the claimant is disabled are not
entitled to deference under the regulation.31

28

20 C.F.R. § 404.1527(d)(2).

29

Id.

30

Schuler v. Comm’r of Soc. Sec., 109 F. App’x 97, 101 (6th Cir. 2004).

31

Id.
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The regulation does cover treating source opinions as to a claimant’s exertional
limitations and work-related capacity in light of those limitations.32 Although the treating
source’s report need not contain all the supporting evidence to warrant the assignment of
controlling weight to it,33 nevertheless, it must be “well-supported by medically acceptable
clinical and laboratory diagnostic techniques” to receive such weight.34 In deciding if such
supporting evidence exists, the Court will review the administrative record as a whole and
may rely on evidence not cited by the ALJ.35
In Wilson v. Commissioner of Social Security,36 the Sixth Circuit discussed the treating
source rule in the regulations with particular emphasis on the requirement that the agency
“give good reasons” for not affording controlling weight to a treating physician’s opinion in
the context of a disability determination.37 The court noted that the regulation expressly
contains a “good reasons” requirement.38 The court stated that to meet this obligation to give
good reasons for discounting a treating source’s opinion, the ALJ must do the following:

32

Swain v. Comm’r of Soc. Sec., 297 F. Supp. 2d 986, 991 (N.D. Ohio 2003), citing
Green-Younger v. Barnhart, 335 F.3d 99, 106-07 (2nd Cir. 2003).
33

Garner v. Heckler, 745 F.2d 383, 391 (6th Cir. 1984).

34

Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 536 (6th Cir. 2001).

35

Id. at 535.

36

Wilson v. Comm’r of Soc. Sec., 378 F.3d 541 (6th Cir. 2004).

37

Id. at 544.

38

Id., citing and quoting 20 C.F.R. § 404.1527(d)(2).
-8-

•

State that the opinion is not supported by medically acceptable clinical
and laboratory techniques or is inconsistent with other evidence in the
case record.

•

Identify evidence supporting such finding.

•

Explain the application of the factors listed in 20 C.F.R.
§ 404.1527(d)(2) to determine the weight that should be given to the
treating source’s opinion.39

The court went on to hold that the failure to articulate good reasons for discounting
the treating source’s opinion is not harmless error.40 It drew a distinction between a
regulation that bestows procedural benefits upon a party and one promulgated for the orderly
transaction of the agency’s business.41 The former confers a substantial, procedural right on
the party invoking it that cannot be set aside for harmless error.42 It concluded that the
requirement in § 1527(d)(2) for articulation of good reasons for not giving controlling weight
to a treating physician’s opinion created a substantial right exempt from the harmless error
rule.43
The opinion in Wilson sets up a three-part requirement for articulation against which
an ALJ’s opinion failing to assign controlling weight to a treating physician’s opinion must
be measured. First, the ALJ must find that the treating source’s opinion is not being given

39

Id. at 546.

40

Id.

41

Id.

42

Id.

43

Id.
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controlling weight and state the reason(s) therefor in terms of the regulation – the absence
of support by medically acceptable clinical and laboratory techniques and/or inconsistency
with other evidence in the case record.44 Second, the ALJ must identify for the record
evidence supporting that finding.”45 Third, the ALJ must determine what weight, if any, to
give the treating source’s opinion in light of the factors listed in 20 C.F.R.
§ 404.1527(d)(2).46
In a nutshell, the Wilson line of cases interpreting the Commissioner’s regulations
recognizes a rebuttable presumption that a treating source’s opinion should receive
controlling weight.47 The ALJ must assign specific weight to the opinion of each treating
source and, if the weight assigned is not controlling, then give good reasons for not giving
those opinions controlling weight.48 In articulating good reasons for assigning weight other
than controlling, the ALJ must do more than state that the opinion of the treating physician
disagrees with the opinion of a non-treating physician49 or that objective medical evidence
does not support that opinion.50

44

Wilson, 378 F.3d at 546.

45

Id.

46

Id.

47

Rogers, 486 F.3d at 242.

48

Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406-07 (6th Cir. 2009).

49

Hensley v. Astrue, 573 F.3d 263, 266-67 (6th Cir. 2009).

50

Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 551-52 (6th Cir. 2010).
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The failure of an ALJ to follow the procedural rules for assigning weight to the
opinions of treating sources and the giving of good reason for the weight assigned denotes
a lack of substantial evidence even if the decision of the ALJ may be justified based on the
record.51 The Commissioner’s post hoc arguments on judicial review are immaterial.52
Given the significant implications of a failure to properly articulate (i.e., remand)
mandated by the Wilson decision, an ALJ should structure the decision to remove any doubt
as to the weight given the treating source’s opinion and the reasons for assigning such
weight. In a single paragraph the ALJ should state what weight he or she assigns to the
treating source’s opinion and then discuss the evidence of record supporting that assignment.
Where the treating source’s opinion does not receive controlling weight, the decision must
justify the assignment given in light of the factors set out in §§ 1527(d)(1)-(6).
The Sixth Circuit has identified certain breaches of the Wilson rules as grounds for
reversal and remand:
•

the failure to mention and consider the opinion of a treating source,53

•

the rejection or discounting of the weight of a treating source without
assigning weight,54

51

Blakley, 581 F.3d at 407.

52

Wooten v. Astrue, No. 1:09-cv-981, 2010 WL 184147 (N.D. Ohio Jan. 14, 2010).

53

Blakley, 581 F.3d at 407-08.

54

Id. at 408.
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•

the failure to explain how the opinion of a source properly considered
as a treating source is weighed (i.e., treating v. examining),55

•

the elevation of the opinion of a nonexamining source over that of a
treating source if the nonexamining source has not reviewed the
opinion of the treating source,56

•

the rejection of the opinion of a treating source because it conflicts with
the opinion of another medical source without an explanation of the
reason therefor,57 and

•

the rejection of the opinion of a treating source for inconsistency with
other evidence in the record without an explanation of why “the treating
physician’s conclusion gets the short end of the stick.”58

The Sixth Circuit in Blakley v. Commissioner of Social Security59 expressed
skepticism as to the Commissioner’s argument that the error should be viewed as harmless
since substantial evidence exists to support the ultimate finding.60 Specifically, Blakley
concluded that “even if we were to agree that substantial evidence supports the ALJ’s
weighing of each of these doctors’ opinions, substantial evidence alone does not excuse
non-compliance with 20 C.F.R. § 404.1527(d)(2) as harmless error.”61

55

Id.

56

Id. at 409.

57

Hensley, 573 F.3d at 266-67.

58

Friend, 375 F. App’x at 551-52.

59

Blakley, 581 F.3d 399.

60

Id. at 409-10.

61

Id. at 410.
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In Cole v. Astrue,62 the Sixth Circuit recently reemphasized that harmless error
sufficient to excuse the breach of the treating source rule only exists if the opinion it issues
is so patently deficient as to make it incredible, if the Commissioner implicitly adopts the
source’s opinion or makes findings consistent with it, or if the goal of the treating source
regulation is satisfied despite non-compliance.63
B.

Application of standards – The decision that Allums was not disabled absent
substance abuse is not supported by substantial evidence.
The issue here involves two related components: (a) whether the opinion of

L.F. Ramirez, M.D. – a psychiatrist who treated Allums at the Murtis Taylor Center – was
properly addressed; and (b) whether the ALJ correctly analyzed the other evidence of record
from other sources also arising from Allums’s treatment at Murtis Taylor.
Essentially, as to the first element, Allums maintains that the ALJ’s determination to
discount the RFC findings of Dr. Ramirez, a treating source, in favor of the opinion of
Ashok Khushalani, M.D., a psychiatrist and the medical expert, was not proper because
Dr. Khushalani’s opinion was not well-founded in that he did not review the Murtis Taylor
records.64 The Commissioner, in turn, argues that the ALJ properly considered varied
opinions about Allums’s ability to function if she were not abusing drugs and alcohol, and,
after acknowledging and weighing the different opinions, assigned greater weight to those

62

Cole v. Astrue, 661 F.3d 931 (6th Cir. 2011).

63

Id. at 940.

64

ECF # 17 at 6.
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opinions more supported by the evidence as a whole.65 Moreover, the Commissioner asserts
that Dr. Ramirez did not provide any medical or clinical basis for his conclusion.66
I note first that the ALJ did explicitly acknowledge Dr. Ramirez as a treating source,
and assigned “some” weight to her opinion.67 Further, the ALJ stated that his reasons for
assigning reduced weight to Dr. Ramirez was because the record as a whole does not support
her RFC limitations.68 Thus, because the treating physician rule is followed, at least in form,
the issue is whether the good reasons requirement is met.
Here, Allums contends that the RFC opinion of Dr. Ramirez is consistent with the
functional limitation opinions of nurses, therapists, and social workers who treated Allums
at Murtis Taylor for mental illness,69 and so is better supported by the record than is the
opinion of Dr. Khushalani who “did not review the 101 pages of the Murtis Taylor medical
records.”70 Thus, Allums argues, because “Dr. Khushalani’s opinion is based on only a partial
reading of the medical record – most of which is irrelevant [for pre-dating her claim], his

65

ECF # 22 at 13.

66

Id. at 14.

67

Tr. at 24. The opinion here appears to contain a draftsman’s error in that it
references “Dr. Pickholtz,” a state examining psychologist, when citing to a portion of the
RFC opinion of Dr. Ramirez.
68

Id.

69

See, id. at 464-70 (nurses’ notes from 2006 at Murtis Taylor); 268-72 (social worker
opinions); 310, 314, 316, 328, 330, 334, 369, 370-71, 379-82 (social worker treatment notes).
70

ECF # 17 at 6.
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opinion cannot serve as substantial evidence to support the ALJ’s conclusion that Ms. Allums
is not disabled.”71
The Commissioner, for his part, maintains that it was reasonable for the ALJ to give
great weight to Dr. Khushalani’s opinion, despite the fact that he acknowledged not having
seen all the Murtis Taylor records, because “although Dr. Khushalani may not have reviewed
the progress notes from Murtis Taylor, the ALJ did.”72 Therefore, “any shortcoming with
Dr. Khushalani’s testimony was remedied by the ALJ’s thorough review of the record.”73
Unfortunately, despite a fairly lengthy opinion of 16 pages from the ALJ, and
notwithstanding the resolution of the arguments related above, the “good reasons” actually
articulated in the opinion by the ALJ for discounting the RFC opinion of Dr. Ramirez is little
more than a fragmentary declaration that “the record does not support many of the
restrictions [listed by Dr. Ramirez].”74 As the Commissioner candidly acknowledged at the
oral argument, such a cursory statement of reasons does not comply with the good reasons
requirement as taught by the Sixth Circuit and as detailed earlier. No matter how well done,
the reasons in the Commissioner’s brief cannot replace the reasons that are absent from the
ALJ’s opinion.

71

Id. at 7; see also, ECF # 26 at 2.

72

ECF # 22 at 16.

73

Id. at 16-17.

74

Tr. at 24.
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Because the Sixth Circuit is clear that a reviewing court should not hesitate to remand
a case where there is a deficiency in articulating the reasons for discounting an opinion of a
treating source, the present matter must be remanded.
Because of the remand ordered on this issue, it is not necessary to address the
remaining issues presented for judicial review. In particular, any change to the RFC
occasioned by different treatment of RFC opinions will then necessarily affect how credible
Allums is viewed and any final RFC finding.
On remand, the ALJ must reconsider the weight assigned to the opinion of the treating
physician, L.F. Ramirez, M.D., and fully and adequately articulate good reasons for the
weight assigned.

Conclusion
For the reasons given above, I find that substantial evidence does not support the
finding of the Commissioner that Allums had no disability. Accordingly, the decision of the
Commissioner denying Allums supplemental security income is reversed and the matter
remanded for further proceedings consistent with this opinion.
IT IS SO ORDERED.

Dated: March 26, 2013

s/ William H. Baughman, Jr.
United States Magistrate Judge

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