Johnson v. Commissioner of Social Security
Filing
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Memorandum Opinion and Order that the decision of the Commissioner is reversed and the matter remanded for further proceedings (Related Doc # 1 ). Signed by Magistrate Judge William H. Baughman, Jr. on 5/14/2014. (S,G)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ADAM T. JOHNSON,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
CASE NO. 1:13 CV 688
MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.
MEMORANDUM OPINION AND
ORDER
Introduction
A.
Nature of the case and proceedings
This is an action by Adam T. Johnson under 42 U.S.C. § 405(g) for judicial review
of the final decision of the Commissioner of Social Security denying his application for
supplemental security income (“SSI”).1
The parties have consented to my jurisdiction.2 The Commissioner has answered3 and
filed the transcript of the administrative record.4
1
ECF # 1.
2
ECF # 18.
3
ECF # 14.
4
ECF # 15.
Under the requirements of my initial5 and procedural6 orders, the parties have briefed
their positions7 and filed supplemental charts8 and the fact sheet.9 They have participated in
a telephonic oral argument.10
B.
The Commissioner’s decision
Johnson, who was 47 years old at the time of the hearing,11 has an eleventh grade
education and has not worked full-time in the past fifteen years.12
The Administrative Law Judge (“ALJ”) found that Johnson had the following severe
impairments: obesity, osteoarthritis in both knees, gouty arthritis, an adjustment disorder, and
a substance abuse disorder, in reported remission.13 The ALJ decided that the relevant
impairments did not meet or equal a listing.14 The ALJ then made the following finding
regarding Johnson’s residual functional capacity:
5
ECF # 7.
6
ECF # 16.
7
ECF # 22 (Johnson’s brief), ECF # 23 (Commissioner’s brief).
8
ECF # 22-1 (Johnson’s charts), ECF # 24 (Commissioner’s charts).
9
ECF # 21 (Johnson’s fact sheet).
10
ECF # 26.
11
ECF # 15, Transcript of Proceedings (“Tr.”) at 63.
12
Id. at 833.
13
Id. at 20.
14
Id. at 21.
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After careful consideration of the entire record, I find that the claimant has the
residual functional capacity to perform sedentary work as defined in 20 CFR
416.967(a) except for the following limitations. The claimant can lift, carry,
push and/or pull 10 pounds maximum. He can sit for six hours and stand and
walk for 2 hours in an 8-hour workday with normal breaks. He must use a cane
in his right, dominant hand. He is limited to no ladders, ropes, and scaffolds.
He can occasionally climb stairs and ramps. He can occasionally stoop, kneel,
crouch, and crawl. He is precluded from workplace hazards, such as
unprotected heights and unprotected moving machinery. He is limited to
low-stress tasks, and is precluded from tasks with strict time requirements or
high production demand, which precludes fast-paced moving assembly lines
and work paid at piece rate. He is precluded from tasks that require arbitration,
negotiation, confrontation, directing the work of others or being responsible
for the safety of others.15
The ALJ found that Johnson had no past relevant work16 and, therefore, transferability of job
skills was not an issue.
Based on an answer to a hypothetical question posed to the vocational expert at the
hearing incorporating the RFC finding quoted above, the ALJ determined that a significant
number of jobs existed locally and nationally that Johnson could perform.17 The ALJ,
therefore, found Johnson not under a disability.18
15
Id. at 23.
16
Id. at 26.
17
Id. at 26-27.
18
Id. at 27.
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The Appeals Council denied Johnson’s request for review of the ALJ’s decision.19
With this denial, the ALJ’s decision became the final decision of the Commissioner.20
C.
Issues presented
Johnson asks for reversal of the Commissioner’s decision on the ground that it does
not have the support of substantial evidence in the administrative record. Specifically,
Johnson presents the following two issues for judicial review:
•
•
D.
The ALJ adopted an RFC providing for sedentary work with the
capability to sit for six hours and stand and walk for two hours in an
eight-hour workday with normal breaks. The RFC also provides for
Johnson to use a cane in his right dominant hand. Does substantial
evidence support this RFC without further limitations caused by
Johnson’s severe impairment of osteoarthritis of both knees?
The RFC contains a limitation precluding Johnson from work requiring
arbitration, negotiation, confrontation, or directing the work of others.
The ALJ incorporated that limitation into his hypothetical to the VE.
The VE identified three jobs that Johnson could perform with that RFC
– front desk receptionist, credit reference clerk, and call center operator.
Does substantial evidence support a finding that Johnson could perform
those jobs even with the limitation precluding him from work involving
confrontation?
Disposition
For the reasons that follow, I will conclude that the ALJ’s no-disability finding does
not have the support of substantial evidence. The denial of Johnson’s application will,
therefore, be reversed and the matter remanded.
19
Id. at 10-16.
20
Johnson v. Comm’r of Soc. Sec., 652 F.3d 646, 648 (6th Cir. 2011); 20 C.F.R.
§ 416.1481.
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Analysis
A.
The evaluation of Johnson’s mental impairments
After review of the arguments of the parties (both in the briefs and at the oral
argument), the ALJ’s decision, and the evidence of record, I have determined that the
outcome here turns on whether the ALJ properly applied the treating source opinion
regulations, as interpreted by the Sixth Circuit, in evaluating Johnson’s mental impairments
and the limitations caused thereby.
The Sixth Circuit recently re-stated the responsibilities of the ALJ in assessing
medical evidence in the record in light of the treating source rule:
An ALJ is bound to adhere to certain governing standards when assessing the
medical evidence in support of a disability claim. Wilson v. Comm’r of Soc.
Sec., 378 F.3d 541, 545 (6th Cir.2004). Chief among these is the rule that the
ALJ must consider all evidence in the record when making a determination,
including all objective medical evidence, medical signs, and laboratory
findings. 20 C.F.R. § 404.1520(a)(3); 20 C.F.R. § 404.1512(b); 20 C.F.R.
§ 404.1513. The second is known as the “treating physician rule,” See Rogers,
486 F.3d at 242, requiring the ALJ to give controlling weight to a treating
physician’s opinion as to the nature and severity of the claimant’s condition as
long as it “is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial
evidence in [the] case record.” 20 C.F.R. § 404.1527(d)(2) (language moved
to 20 C.F.R. § 404.1527(c)(2) on March 26, 2012). The premise of the rule is
that treating physicians have the best detailed and longitudinal perspective on
a claimant’s condition and impairments and this perspective “cannot be
obtained from objective medical findings alone.” 20 C.F.R. § 416.927(d)(2)
(language moved to 20 C.F.R. § 416.927(c)(2) on March 26, 2012). Even
when not controlling, however, the ALJ must consider certain factors,
including the length, frequency, nature, and extent of the treatment
relationship; the supportability of the physician’s conclusions; the
specialization of the physician; and any other relevant factors. Rogers, 486
F.3d at 242. In all cases, the treating physician’s opinion is entitled to great
deference even if not controlling. Id. The failure to comply with the agency’s
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rules warrants a remand unless it is harmless error. See Wilson, 378 F.3d at
545–46.21
In that regard, Gentry v. Commissioner of Social Security was also clear that while an
ALJ is not required in determining an RFC to address limitations that have been previously
found to be not credible or without support in the record,22 an ALJ may also not arrive at an
RFC by simply failing to address certain portions of the medical record, or by selectively
parsing – i.e., “cherry-picking” – the record to avoid doing a proper analysis of all the
relevant medical reports.23 This is particularly the case where the evidence ignored is medical
evidence from a treating physician. Ignoring medical evidence from a treating source in
fashioning an RFC, without undertaking the required analysis appropriate to treating sources,
cannot be harmless error because it “undermines [the ALJ’s] decision” by disregarding
evidence that could have supported a more restrictive RFC and thus potentially a finding of
disability.24
That said, however, the ALJ here mentioned the eight pages of treatment notes from
Johnson’s two sessions with a psychiatrist in October and November of 201025 and then
21
Gentry v. Comm’r of Soc. Sec., 741 F.3d 708, 723 (6th Cir. 2014).
22
See, Lee v. Comm’r of Soc. Sec., 529 F. App’x 706, 715 (6th Cir. 2013).
23
Gentry, 741 F.3d at 724 (citations omitted).
24
Id. at 729 (citations omitted); Grubbs v. Comm’r of Soc. Sec., No. 12-14621, 2014
WL 1304716, at *2 (E.D. Mich. March 31, 2014) (“The absence of a review of treatment
records from a treating source and the lack of analysis of such made it impossible for the ALJ
to properly assess whether the Plaintiff was disabled and/or whether Plaintiff had the residual
functional capacity to do any work.”).
25
Tr. at 25.
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stated that Johnson’s adjustment disorder (with depressed features), which was diagnosed at
this psychiatric evaluation, “has affected his mental functional capacity assessment.”26 The
ALJ concluded that this effect resulted in Johnson’s RFC being limited to “low-stress tasks”
and other limitations.27 In doing this, the ALJ never identified the psychiatric professional
by name, or as a treating source. Consequently, there was no analysis of whether the
functional opinions of this source should be given controlling weight and, if not, what weight
should be assigned.
Just as important, Johnson argues, is that the “ALJ fails to offer any rationale” for how
that treating source’s opinion that Johnson is limited by his “chronic poor attention” – a point
made twice by this source at two separate evaluations28 – is fully addressed by the limitations
of the RFC.29
Although it is clear that the ALJ knew of this treating source and of the limitations
reflected in the treatment notes, the ALJ never conducted the required analysis that could
now permit a reviewing court to determine if substantial evidence actually supports the RFC
finding. The process of articulating the weight assigned to this source alone could have given
the limitation of “chronic poor attention” controlling weight and so arguably have resulted
in a more restrictive RFC, with all its consequences on a final decision of disability.
26
Id.
27
Id.
28
Id. at 707, 711.
29
ECF # 22 at 13.
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As the Sixth Circuit has repeatedly stated, where there is a violation of the treating
source rule or the good reasons requirement, without harmless error, the matter must be
remanded.30 This is true even when the conclusion of the ALJ may be otherwise justified
based on a review of the record.31
Regarding credibility, the weight afforded to a treating source’s opinion as to the
extent of a claimant’s limitations will factor into an ALJ’s assessment of the credibility of
the claimant’s statements about those limitations.32
B.
Step five – jobs identified
Johnson finally argues that, even with the RFC as it was, the jobs identified by the VE
as being suitable for him do not “fit within the parameters” of the RFC.33 Johnson contends
that all the specified jobs of front door receptionist, call center operator, and credit reference
clerk deal with the public and have the potential for confrontation, thus making them
unsuitable for someone with his RFC.34
30
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 545-46 (6th Cir.2004). The ALJ’s
evaluation of Dr. Misak’s treating source opinion also deficiently analyzes Johnson’s
physical impairment of osteoarthritis of both knees and the limitations caused thereby. Since
this case is being remanded, the ALJ should do a proper analysis of Dr. Misak’s opinion, in
accordance with the regulations as interpreted by the Sixth Circuit’s precedents such as
Gentry, discussed above, rather than force the Commissioner’s counsel to fall back on a
harmless error argument and the Court to purse its way through that murky standard.
31
Gentry, 741 F.3d at 15 (citations omitted).
32
Swain v. Comm’r of Soc. Sec., 297 F. Supp. 2d 986, 990 (N.D. Ohio 2003).
33
ECF # 13 at 14.
34
Id.
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It seems clear that since both a front door receptionist and call center operator by
definition deal with interacting with members of the public, and interaction inherently has
the potential for conflict, both jobs would present difficulties for someone restricted from
jobs involving confrontation. While that is less clear as to the credit reference clerk, because
the matter is being remanded for other reasons, any new step five analysis on remand should
consider the observations made here.
Conclusion
For the reasons stated, substantial evidence does not support the finding of the
Commissioner that Johnson had no disability. Accordingly, the decision of the Commissioner
denying Johnson supplemental security income is reversed and the matter remanded for
further proceedings consistent with this opinion.
IT IS SO ORDERED.
Dated: May 14, 2014
s/ William H. Baughman, Jr.
United States Magistrate Judge
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