Wilberger v. Commissioner of Social Security

Filing 21

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 5/22/2015. (S,G)

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

PERRY WILBERGER,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CASE NO. 1:14 CV 1631

MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.

MEMORANDUM OPINION AND
ORDER

Introduction
A.

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

review of the final decision of the Commissioner of Social Security denying his application
for disability insurance benefits.2 The Commissioner has answered3 and filed the transcript

1

ECF # 13. The parties have consented to my exercise of jurisdiction.

2

ECF # 1.

3

ECF # 9.

of the administrative record.4 Under my initial5 and procedural6 orders, the parties have
briefed their positions7 and filed supplemental charts8 and the fact sheet.9
B.

Background facts and decision of the Administrative Law Judge (“ALJ”)
Wilberger, who was 46 years old at the time of the administrative hearing,10 is

married11 and a high school graduate.12
The ALJ, whose decision became the final decision of the Commissioner, found that
Wilberger had the following severe impairments: degenerative disc disease, anxiety, and
depression.13
After concluding that the relevant impairments did not meet or equal a listing, the ALJ
made the following finding regarding Wilberger’s residual functional capacity (“RFC”):

4

ECF # 10.

5

ECF # 6.

6

ECF # 11.

7

ECF # 16 (Wilberger’s brief); ECF # 19 (Commissioner’s brief); ECF # 20
(Wilberger’s reply brief).
8

ECF # 16-2 (Wilberger’s charts); ECF # 19-1 (Commissioner’s charts).

9

ECF # 16-1 (Wilberger’s fact sheet).

10

Transcript (“Tr.”) at 37.

11

Id. at 19.

12

Id. at 140-41.

13

Id. at 13.
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After careful consideration of the entire record, the undersigned finds that,
through the date last insured, the claimant has the residual functional capacity
to perform light work as defined in 20 CFR 404.1567(b) except the claimant
could occasionally lift 20 pounds and frequently lift 10 pounds. The claimant
could stand and walk for six hours out of an eight-hour workday. The claimant
could sit for six hours out of an eight-hour workday. The claimant would
require a sit/stand option, every hour for five minutes, not leaving his
workstation. The claimant could occasionally climb ramps and stairs. The
claimant could occasionally balance and stoop, but never kneel or crawl. The
claimant could frequently reach in all directions, and handle, finger and feel.
The claimant should have no exposure to hazardous conditions. The claimant
could perform simple routine tasks, with simple short instructions. The
claimant could make simple work decisions and have few workplace changes.
The claimant could have superficial interaction with the public, meaning no
lengthy discussions, no negotiations or confrontation. The claimant could have
occasional interaction with co-workers and supervisors..14
The ALJ decided that this residual functional capacity precluded Wilberger from performing
his past relevant work as a truck driver, warehouse worker/delivery driver, and a delivery
truck driver.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 Wilberger
could perform.16 The ALJ, therefore, found Wilberger not under a disability.17

14

Id. at 16.

15

Id. at 20.

16

Id. at 20-21.

17

Id. at 21.
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C.

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

The ALJ failed to properly evaluate pain and credibility.

•

The ALJ failed to properly evaluate the opinions of the treating
physicians and other sources.

•

The ALJ failed to provide a proper retrospective analysis of the
evidence as required by SSR 893-20 and failed to have a medical expert
at the hearing to interpret the record.

•

The ALJ failed to fully and fairly develop the record.

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 matter must be remanded.

Analysis
A.

Standards of review - 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
this court is whether the decision is supported by substantial evidence.
Substantial evidence is “ ‘more than a mere scintilla. It means such relevant

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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.
B.

Application of standard
This case presents the situation of an ALJ providing a lengthy and detailed RFC, but

offering no reviewable evidence in the record to support that finding.
Indeed, as noted by Wilberger, there is not one opinion from any medical source
attesting to his ability to functionally perform at the level specified in the RFC, and the state
agency reviewers were unanimous in finding that there was insufficient evidence of any

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).
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disability prior to the alleged onset date.21 This lacunae in the record is also apparent, but not
articulated, in the ALJ’s decision to accord no weight at all to the opinions of two of
Wilberger’s treating physicians,22 whose views are arguably unclear as to whether they relate
back to the relevant time period in this matter.23
In this situation, the ALJ provided no basis for meaningful review of his conclusions.
As to the state agency reviewing sources, the ALJ notes their position that there is
insufficient evidence of disability on any date before the date last insured but then states that
evidence submitted after the date of the agency reviews establishes the existence of “severe
impairments,” as does the testimony of the claimant.24 Yet, if there is such evidence, the ALJ
does not cite it here, and so there is no opportunity for any meaningful judicial review.

21

ECF # 16 at 12.

22

Norman Lefkovitz, M.D., is a neurologist who regularly treated Wilberger (Tr. at
17), and James Bressi, M.D., is a colleague of Dr. Lefkovitz. Id. at 479-83. Opinions from
Dr. Fajobi and Dr. Pahlajani were not directly addressed by the ALJ in his decision. In that
regard, the Commissioner argues that: (1) Wilberger concedes that Dr. Fajobi’s opinion did
not relate back to the relevant time period (ECF # 16 at 18); and (2) Dr. Pahlajani only saw
Wilberger once before offering a functional opinion, and so is not a treating source. See, Tr.
at 593. However, even if not a treating source, Dr. Pahlajani’s opinion would, nevertheless,
be entitled to consideration.
23

That is, the time between the alleged onset of disability and the date Wilberger was
last insured. While a treating physician’s retrospective diagnosis is entitled to controlling
weight as a treating source opinion where it is clear that the opinion relates back to the
insured period, where there is no evidence of that retrospective relationship, the treating
source opinion is not entitled to controlling weight, and the ALJ does not err in discounting
that opinion. Koutrakos v. Colvin, No. 3:13 CV 1290 JGM, 2015 WL 1190100, at *17
(D. Conn. Mar. 16, 2015) (citation omitted) (report and recommendation).
24

Tr. at 18.
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Further, on the specific matter of the RFC, the ALJ states that this late-submitted evidence
also “would limit [Wilberger] to work at the light exertional level during the adjudicated
period.”25 Again, if this evidence is to be the support for the RFC, it is difficult to review that
decision without knowing the evidence.
That said, however, this is not a situation where SSR 83-20, cited by Wilberger,26 is
applicable. That provision, as the Sixth Circuit has stated, applies only where a disability has
been found and the relevant question is when that disability began.27 Thus, where there has
been no finding of disability, “no inquiry into the onset date is required.”28
Rather, the issue here is that the ALJ has not given a reviewable reason why the
opinion of the state agency consultant of no disability during the relevant period was
modified to a finding that Wilberger’s impairments were nonetheless “severe during the
period at issue.”29 By failing to specify the evidence relied upon in making that decision, the
ALJ has made it impossible to adjudicate whether substantial evidence supports his ultimate
finding that, though “severe,” Wilberger’s impairments were not disabling. Further, since this
evidence is support for the particular elements of the RFC, it is equally difficult to review

25

Id.

26

ECF # 20 at 3.

27

Seely v. Comm’r of Soc. Sec., No. 14-5463, __ F. App’x __, 2015 WL 305322, at
*5 (6th Cir. Jan. 23, 2015) (citation omitted).
28

Id.

29

Tr. at 18.
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whether the RFC is supported by sufficient evidence if the evidence has not been identified
by the ALJ.
Therefore, for the reasons stated, the matter must be remanded for further proceedings
consistent with this opinion.

Conclusion
Substantial evidence does not support the finding of the Commissioner that Wilberger
had no disability. Therefore, the denial of Wilberger’s application is reversed and the matter
remanded for further proceedings consistent with this opinion.
IT IS SO ORDERED.

Dated: May 22, 2015

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

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