Mitchell v. Commissioner of Social Security

Filing 25

Memorandum Opinion and Order that the decision of the Commissioner is reversed and the matter remanded for further administrative proceedings (Related Doc # 1 ). Signed by Magistrate Judge William H. Baughman, Jr. on 5/29/2015. (S,G)

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

DEBORAH MITCHELL,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CASE NO. 1:14 CV 1573

MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.

MEMORANDUM OPINION AND
ORDER

Introduction
A.

Nature of the case and proceedings
Before me1 is an action by Deborah Mitchell under 42 U.S.C. § 405(g) for judicial

review of the final decision of the Commissioner of Social Security denying her applications
for disability insurance benefits and supplemental security income.2 The Commissioner has
answered3 and filed the transcript of the administrative record.4 Under my initial5 and

1

ECF # 15. The parties have consented to my exercise of jurisdiction.

2

ECF # 1.

3

ECF # 11.

4

ECF # 12.

5

ECF # 6.

procedural6 orders, the parties have briefed their positions7 and filed supplemental charts8 and
the fact sheet.9 After review of the briefs, the issues presented, and the record, it was
determined that this case can be decided without oral argument.
B.

Background facts and decision of the Administrative Law Judge (“ALJ”)
Mitchell, who was 51 years old at the time of the hearing,10 has a high school

education and has taken university-level business classes.11 She only recently moved from
Texas to Cleveland with her youngest daughter to live with Mitchell’s uncle.12
The ALJ, whose decision became the final decision of the Commissioner, found that
Mitchell had the following severe impairments: cervical degenerative disc disease with
spondylosis, congenital stenosis, and radiculopathy, status post C5-C7 fusion; and major
depressive disorder.13
After concluding that the relevant impairments did not meet or equal a listing, the ALJ
made the following finding regarding Mitchell’s residual functional capacity (“RFC”):

6

ECF # 14.

7

ECF # 19 (Mitchell’s brief); ECF # 24 (Commissioner’s brief).

8

ECF # 19-1 (Mitchell’s charts); ECF # 24-1 (Commissioner’s charts).

9

ECF # 18 (Mitchell’s fact sheet).

10

Id. at 1.

11

Transcript (“Tr.”) at 48.

12

Id. at 20.

13

Id. at 17.
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After careful consideration of the entire record, the undersigned finds that the
claimant retains the residual functional capacity to perform a reduced range of
light work with the following limitations (see generally 20 CFR 404.1567(b)
and 416.967(b)). She cannot lift more than 20 pounds occasionally and 10
pounds frequently. She can stand and/or walk for approximately six hours in
an eight-hour workday. She can sit for approximately six hours in an
eight-hour workday. She can occasionally push and/or pull with the
non-dominant left upper extremity. She should never climb ladders, ropes, or
scaffolds. She can occasionally stoop, kneel, crouch, and crawl. She can
frequently climb ramps or stairs. She can occasionally perform overhead
reaching with the left upper extremity. She can perform frequent grasping and
handling with the left upper extremity. She is limited to simple to moderately
complex tasks with no fast-paced work, no strict production quotas, and
minimal changes in the work setting. Further, she is limited to frequent contact
with the public, coworkers, and supervisors.14
The ALJ decided that this residual functional capacity precluded Mitchell from performing
her past relevant work as an insurance benefits clerk and a debt collector.15
Based on an answer to a hypothetical question posed to the vocational expert at the
hearing setting forth the residual functional capacity finding quoted above, the ALJ
determined that a significant number of jobs existed locally and nationally that Mitchell
could perform.16 The ALJ, therefore, found Mitchell not under a disability.17

14

Id. at 23.

15

Id. at 28.

16

Id. at 29.

17

Id. at 30.
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C.

Issues on judicial review and decision
Mitchell 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,
Mitchell presents the following issues for judicial review:
•

The ALJ’s residual functional capacity assessment finding Ms. Mitchell
capable of performing a limited range of light work activity is
unsupported by substantial evidence because the ALJ failed to give
controlling weight to the opinion of Ms. Mitchell’s treating physician,
Dr. Hsai.

•

The ALJ’s residual functional capacity assessment is unsupported by
substantial evidence because the ALJ failed to properly evaluate
Ms. Mitchell’s credible complaints of disabling pain.

For the reasons that follow, I will conclude that the ALJ’s finding of no disability is
not supported by substantial evidence and, therefore, the decision here must be reversed, with
the matter remanded for further administrative proceedings.

Analysis
A.

Standards of review

1.

Substantial 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
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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.18
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.19 The court may not disturb the Commissioner’s
findings, even if the preponderance of the evidence favors the claimant.20
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
18

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

19

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).
20

Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
-5-

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.21
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.22
The ALJ has the ultimate responsibility for determining whether a claimant is
disabled.23 Conclusory statements by the treating source that the claimant is disabled are not
entitled to deference under the regulation.24
The regulation does cover treating source opinions as to a claimant’s exertional
limitations and work-related capacity in light of those limitations.25 Although the treating
source’s report need not contain all the supporting evidence to warrant the assignment of
controlling weight to it,26 nevertheless, it must be “well-supported by medically acceptable
clinical and laboratory diagnostic techniques” to receive such weight.27 In deciding if such

21

20 C.F.R. § 404.1527(d)(2).

22

Id.

23

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

24

Id.

25

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).
26

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

27

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

supporting evidence exists, the Court will review the administrative record as a whole and
may rely on evidence not cited by the ALJ.28
In Wilson v. Commissioner of Social Security,29 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.30 The court noted that the regulation expressly
contains a “good reasons” requirement.31 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:
•

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.32

The court went on to hold that the failure to articulate good reasons for discounting
the treating source’s opinion is not harmless error.33 It drew a distinction between a

28

Id. at 535.

29

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

30

Id. at 544.

31

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

32

Id. at 546.

33

Id.
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regulation that bestows procedural benefits upon a party and one promulgated for the orderly
transaction of the agency’s business.34 The former confers a substantial, procedural right on
the party invoking it that cannot be set aside for harmless error.35 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.36
The Sixth Circuit in Gayheart v. Commissioner of Social Security37 recently
emphasized that the regulations require two distinct analyses, applying two separate
standards, in assessing the opinions of treating sources.38 This does not represent a new
interpretation of the treating physician rule. Rather it reinforces and underscores what that
court had previously said in cases such as Rogers v. Commissioner of Social Security,39
Blakley v. Commissioner of Social Security,40 and Hensley v. Astrue.41

34

Id.

35

Id.

36

Id.

37

Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365 (6th Cir. 2013).

38

Id. at 375-76.

39

Rogers, 486 F.3d at 242.

40

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

41

Hensley v. Astrue, 573 F.3d 263, 266 (6th Cir. 2009).
-8-

As explained in Gayheart, the ALJ must first consider if the treating source’s opinion
should receive controlling weight.42 The opinion must receive controlling weight if
(1) well-supported by clinical and laboratory diagnostic techniques and (2) not inconsistent
with other substantial evidence in the administrative record.43 These factors are expressly set
out in 20 C.F.R. §§ 404.1527(d)(2) and 416.927(d)(2). Only if the ALJ decides not to give
the treating source’s opinion controlling weight will the analysis proceed to what weight the
opinion should receive based on the factors set forth in 20 C.F.R. §§ 404.1527(d)(2)(i)-(ii),
(3)-(6) and §§ 416.927(d)(2)(i)-(ii), (3)-(6).44 The treating source’s non-controlling status
notwithstanding, “there remains a presumption, albeit a rebuttable one, that the treating
physician is entitled to great deference.”45
The court in Gayheart cautioned against collapsing these two distinct analyses into
one.46 The ALJ in Gayheart made no finding as to controlling weight and did not apply the
standards for controlling weight set out in the regulation.47 Rather, the ALJ merely assigned
the opinion of the treating physician little weight and explained that finding by the secondary

42

Gayheart, 710 F.3d at 376.

43

Id.

44

Id.

45

Rogers, 486 F.3d at 242.

46

Gayheart, 710 F.3d at 376.

47

Id.
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criteria set out in §§ 1527(d)(i)-(ii), (3)-(6) of the regulations,48 specifically the frequency of
the psychiatrist’s treatment of the claimant and internal inconsistencies between the opinions
and the treatment reports.49 The court concluded that the ALJ failed to provide “good
reasons” for not giving the treating source’s opinion controlling weight.50
But the ALJ did not provide “good reasons” for why Dr. Onady’s opinions fail
to meet either prong of this test.
To be sure, the ALJ discusses the frequency and nature of Dr. Onady’s
treatment relationship with Gayheart, as well as alleged internal
inconsistencies between the doctor’s opinions and portions of her reports. But
these factors are properly applied only after the ALJ has determined that a
treating-source opinion will not be given controlling weight.51
In a nutshell, the Wilson/Gayheart line of cases interpreting the Commissioner’s
regulations recognizes a rebuttable presumption that a treating source’s opinion should
receive controlling weight.52 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.53 In articulating good reasons for assigning weight
other than controlling, the ALJ must do more than state that the opinion of the treating

48

Id.

49

Id.

50

Id.

51

Id.

52

Rogers, 486 F.3d 234 at 242.

53

Blakley, 581 F.3d at 406-07.
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physician disagrees with the opinion of a non-treating physician54 or that objective medical
evidence does not support that opinion.55
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.56 The Commissioner’s post hoc arguments on judicial review are immaterial.57
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:

54

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

55

Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 551-52 (6th Cir. 2010).

56

Blakley, 581 F.3d at 407.

57

Wooten v. Astrue, No. 1:09-cv-981, 2010 WL 184147, at *8 (N.D. Ohio Jan. 14,

2010).
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•

the failure to mention and consider the opinion of a treating source,58

•

the rejection or discounting of the weight of a treating source without
assigning weight,59

•

the failure to explain how the opinion of a source properly considered
as a treating source is weighed (i.e., treating v. examining),60

•

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,61

•

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,62 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.”63

The Sixth Circuit in Blakley64 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.65 Specifically, Blakley concluded that “even if we were to agree

58

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

59

Id. at 408.

60

Id.

61

Id. at 409.

62

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

63

Friend, 375 F. App’x at 551-52.

64

Blakley, 581 F.3d 399.

65

Id. at 409-10.
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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.”66
In Cole v. Astrue,67 the Sixth Circuit 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.68
B.

Application of standards
This case presents yet another challenge to the reasoning given for discounting the

opinion of a treating physician. For the reasons set out below, I will find that the ALJ’s
reasons are not “good reasons” as that term is understood in the relevant case authority and
so the matter must be remanded. Because this decision alone compels a remand, I will not
here address Mitchell’s other basis for judicial review – the ALJ’s assessment of her
credibility as to pain – but note that this issue may be considered afresh on remand.
Before reviewing the details of how the physician in this instance dealt with the
claimant, the foundational question of whether this physician was a treating source must be
addressed.
66

Id. at 410.

67

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

68

Id. at 940.
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As I recently discussed in Montanez v. Commissioner of Social Security:69
The regulations define a treating source as “an acceptable medical
source” who provides the claimant with treatment or evaluations and who has
or had “an ongoing treatment relationship” with the claimant.FN79 The
regulations further state an ongoing treatment is demonstrated when the
“medical evidence establishes that you see, or have seen, the source with a
frequency consistent with accepted medical practice for the type of treatment
and/or evaluation required for your medical condition.”FN80 The regulation
itself further precludes finding that an ongoing treating relationship can be
created by a claimant seeing the source “solely on your need to obtain a report
in support of your claim for disability.”FN81
FN79

20 C.F.R. §§ 416.902, 404.1502.
Id. at § 404.1502
FN81
Id.
FN80

But beyond that, the regulations, as noted, look to the accepted medical
practice for the type of treatment involved or the type of evaluation sought as
these pertain to the claimant’s medical condition as the means for determining
whether the contact between a claimant and the medical source is sufficient to
make that source a treating source....
[In sum], the Ninth Circuit has stated that the regulations defining a
treating source “neither explicitly forbid[] or require” assigning that status to
a physician who actually sees the claimant “a few times” or “as little as twice
a year.” Rather, as the text of the regulation itself explicitly states, the test is
whether the source has seen the claimant with the frequency medically
required by the treatment or evaluation at issue in the context of the claimant’s
impairment. Thus, merely taking note of the number of visits by itself is not
enough to show either that the contacts are sufficient to establish a treating
relationship or that conclusively they are not.70

69

Montanez v. Comm’r of Soc. Sec., No. 1:13 CV 614, 2013 WL 6903764 (N.D. Ohio
Dec. 31, 2013) (report and recommendation adopted by the district court).
70

Id., at *8.
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Although the precise words of the regulations make clear that a determination of
whether a source is a “treating source” may not be reduced to simply calculating the number
of visits the claimant made to the source, courts have suggested some guidelines in that
regard. First, the Supreme Court in Black & Decker Disability Plan v. Nord 71 observed in
general terms that “the assumption that the opinion of a treating physician warrants greater
credit than the opinions of [other sources] may make scant sense when, for example, the
relationship between the claimant and the treating physician has been of short duration.”72
The Sixth Circuit in Helm v. Commissioner of Social Security73 also expressed a similar
observation in a slightly different context when it noted that “it is questionable whether a
physician who examines a patient only three times over a four-month period is a treating
source – as opposed to a non-treating but examining source.”74 In a somewhat more definitive
statement, the Sixth Circuit in Yamin v. Commissioner of Social Security75 found that a doctor
who examined the claimant on only two occasions did not have a long-term overview of the
claimant’s condition and so was not a treating source.76

71

Black & Decker Disability Plan v. Nord, 538 U.S. 822 (2003).

72

Id. at 832.

73

Helm v. Comm’r of Soc. Sec., 405 F. App’x 997 (6th Cir. 2011).

74

Id. at 1000 n.3.

75

Yamin v. Comm’r of Soc. Sec., 67 F. App’x 883 (6th Cir. 2003).

76

Id.
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Here, Augusto Hsai, M.D., is a physician specializing in the cervical spine who
examined and treated Mitchell four times over six months in 2013 before offering a medical
opinion as to her functional limitations.77 As such, Dr. Hsai saw Mitchell more often than the
two or three visits that have been seen as just below the acceptable limit for a treating source,
and at least one other district court has found a pain management specialist to be a treating
source after four visits with the claimant.78
In sum, the evidence is that Dr. Hsai is a treating source and thus his opinion should
be evaluated as such.
That said, I turn to consider Dr. Hsai’s opinion itself. That opinion states that because
Mitchell experiences daily neck and arm pain, and daily hand weakness and daily lower back
pain, she would be capable of sitting only four hours a day, standing for only 30 minutes per
day, and would require a 15-minute break every hour, and would be expected to be absent
from work 2 to 4 times a month.79
The ALJ initially discusses Dr. Hsai in the section of his opinion describing Mitchell’s
medical history. There, the ALJ introduces Dr. Hsai with the comment that Mitchell went to
77

Tr. at 399-402, 407-409, 427-429, 432-434, 456-457.

78

See, e.g., West v. Comm’r of Soc. Sec., No. 1:14-CV-00672, 2015 WL 691313, at
* 7 (N.D. Ohio Feb. 18, 2015) (Gwin, J. adopting the report and recommendation of Knepp,
M.J.) (physician who saw claimant once and other physician who saw claimant three times
were not treating sources); see also, Trimm v. Colvin, No. 7:13-CV-00961 MAD, 2015 WL
1400516, at * 8 (N.D.N.Y. Mar. 26, 2015) (four visits to a pain management specialist over
15 months supported viewing source as a treating source, but also factored into decision to
accord the source opinion no weight).
79

Tr. at 456-57.
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see him – a “spine specialist” – for “another opinion regarding her pain symptoms.”80 While
this comment of itself may possibly be understood as describing a one-time consultative
examination, and, as noted, the ALJ makes no reference to Dr. Hsai as a treating source, the
facts as set forth above clearly show that Dr. Hsai is both a treating physician and a specialist
in the area for which he treated Mitchell. In addition, also set forth above, Dr. Hsai was not
simply a “second opinion” on the question of pain, but was the last physician Mitchell saw
– a final effort to find relief from pain that had resisted prior attempts to manage.
The ALJ’s failure to recognize Dr. Hsai as a treating source is consequential.
Although the current judicial understanding of Gayheart permits ALJs considerable leeway
in how rigorously they adhere to the analytical path outlined in the regulations and
highlighted in the Gayheart decision,81 the ALJ’s failure in this case to explicitly recognized
Dr. Hsai as a treating source, and the related failure to include a discussion of his specialty
in the weight analysis, where Gayheart places it in matters where the treating source opinion

80

Id. at 20.

81

The Commissioner extensively cites to these opinions. ECF # 24 at 13-14 (citing

cases).
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is to be given less than controlling weight, both greatly diminish the thoroughness and
persuasiveness of the ALJ’s ultimate reasoning as to the weight given to Dr. Hsai’s opinion.82
In the analysis of why Dr. Hsai’s functional opinion was given only “little weight,”
the ALJ began his analysis with the comment that Dr. Hsai’s opinion was inconsistent with
“his” – i.e., Dr. Hsai’s – “objective findings,” and inconsistent with Dr. Hsai’s conservative
treatment recommendations over the course of his six-month treatment history with
Mitchell.83 Further, the ALJ found Dr. Hsai’s opinion inconsistent with Mitchell’s own
“limited” use of prescribed treatment for pain.84
I begin now with a brief review of Dr. Hsai’s treatment notes. After his initial
examination, where Dr. Hsai diagnosed Mitchell as having “cervical post laminectomy
syndrome and myofacial pain,” his subsequent treatment notes all present his consistent

82

The Commissioner in his brief notes that the ALJ identified the fact that Dr. Hsai’s
treatment relationship with Mitchell was only six months – which the Commissioner argues
makes it less strong than other, longer relationships. ECF # 24 at 15. While the length of the
treating relationship, as noted above, is a component of the weight analysis, it must also be
noted that the ALJ made no mention of Dr. Hsai’s status as a specialist, which is also one of
the weight analysis factors, nor of the fact that he was seen as a final option after many other
treatment options had been tried. Thus, in this case whether the length of the relationship is
a good reason for reducing the weight given to Dr. Hsai’s opinion has to be reviewed in the
particular context of whether that time was sufficient for a treating relationship to be
established between the claimant and a specialist working in his area of expertise. No such
analysis was done by the ALJ here.
83

Id. at 27.

84

Id.
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finding that Mitchell has decreased mobility in the cervical spine,85 as well as decreased
strength and pain in her left arm.86 As Mitchell observes,87 these notes show that Dr. Hsai was
aware of significant reasons for Mitchell to be in pain, understood that Mitchell’s prior
surgery was unsuccessful in that regard, and was attempting to find something that had not
been tried before that would work.
Mitchell also notes, and the record supports, that she has undergone treatment for her
pain that is not conservative, such as the diskectomy and spinal fusion that relieved the pain
for only a short time, and Dr. Hsai was addressing a situation where the more aggressive pain
therapies had already been tried, but were less than successful.88 To suggest, as a reason for
discounting Dr. Hsai’s functional opinion, that Dr. Hsai’s treatments were conservative
because Mitchell’s pain was less than serious and so at variance with the functional opinion,
ignores the reality, plainly present in the record, that Dr. Hsai could not recommend more
aggressive treatments because they had already been tried without significant success.89

85

Id. at 407-09 (“decreased range of motion in the cervical spine” - notes of June 19,
2013); 427-29 (“decreased range of motion in the cervical spine” – notes of July 17, 2013);
432-34 (“decreased range of motion in the cervical spine” – notes of August 15, 2013).
86

Id. at 407-09 (June 19, 2013 notes are that Mitchell reported increased tingling in
her arm); 427-429 (July 17, 2013 exam found decreased reflexes in the bilateral biceps,
bilateral elbow tenderness in the left biceps); 432-34 (August 15, 2013 examination found
decreased bilateral biceps, decreased strength in left bicep).
87

ECF # 19 at 14.

88

Id.

89

I note that the record shows that Mitchell actually wanted additional surgery. Tr. at
25. The doctors, however, did not recommend that course. Id.
-19-

Moreover, the ALJ’s second reason for discounting Dr. Hsai’s opinion – that is was
inconsistent with Mitchell’s own record of being irregular in her use of prescribed treatments
for pain – is also not a “good reason.” First, as noted earlier, Mitchell is on record as wanting
more aggressive therapies, such as additional surgery, but her wishes in that regard were
overruled by her physicians.90 This desire for additional surgery is not consistent with the
picture presented by the ALJ of a person whose pain is not really that severe, and so regularly
neglects prescribed treatments.
Next, and more importantly, these alleged inconsistencies all occurred prior to
Dr. Hsai’s involvement in Mitchell’s treatment. Even if Mitchell had previous episodes
before she saw Dr. Hsai where she was irregular in her use of pain medications or other
treatments, it is fully consistent with prolonged, consistent pain that what was once tolerable
later becomes intolerable. Further, while it cannot be said that all observations in the record
prior to Dr. Hsai’s opinion have no relevance to the weight given to his opinion, it must also
be said that any weight analysis that relies on Mitchell’s past use of previous pain therapies
must plainly take into account that these therapies were ultimately not successful or even
counterproductive91 and that Dr. Hsai was fully aware of those prior failures. The reasoning
of the ALJ in this instance does not set forth a good reason for rejecting the opinion of a
treating source.

90

Id. at 27.

91

See, id. at 407. Mitchell told Dr. Hsai that she had discontinued using Neurontin due
to increased tingling in her arm.
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Accordingly, for the reasons stated above, I find that the reasons given by the ALJ for
according less than controlling weight to Dr. Hsai’s opinion are not “good reasons.” Thus,
the decision of the Commissioner in this case is not supported by substantial evidence, and
so the matter must be remanded.
Moreover, as noted earlier, although this holding is sufficient to warrant the remand,
and so does not require any discussion here of the issue of Mitchell’s credibility, the issue
of credibility remains to be considered on remand, if necessary.

Conclusion
For the reasons stated, substantial evidence does not support the finding of the
Commissioner that Mitchell had no disability. The denial of Mitchell’s applications is,
therefore, reversed and the matter remanded for further administrative proceedings consistent
with this opinion.
IT IS SO ORDERED.

Dated: May 29, 2015

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

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