Humberson v. Commissioner of Social Security

Filing 21

Memorandum Opinion and Order: The Commissioner's decision is REVERSED and REMANDED for further proceedings consistent with this opinion. Magistrate Judge Kathleen B. Burke on 11/6/2015. (D,I)

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

LYNDSEY L. HUMBERSON,
Plaintiff,
v.

COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

CASE NO. 1:15CV106

MAGISTRATE JUDGE
KATHLEEN B. BURKE

MEMORANDUM OPINION & ORDER

Plaintiff Lyndsey L. Humberson (“Humberson”) seeks judicial review of the final
decision of Defendant Commissioner of Social Security (“Commissioner”) denying her
application for Supplemental Security Income (“SSI”). Doc. 1. This Court has jurisdiction
pursuant to 42 U.S.C. § 405(g). This case is before the undersigned Magistrate Judge pursuant to
the consent of the parties. Doc. 16.
As set forth more fully below, the Administrative Law Judge (“ALJ”) failed to adhere to
the treating physician rule when rendering his decision in that he did not articulate reasons for
discounting the opinion of Humberson’s treating physician that are sufficiently specific to afford
an adequate basis for review. Accordingly, the Commissioner’s decision is REVERSED and
REMANDED .
I. Procedural History
Humberson filed an application for SSI and Disability Insurance Benefits (“DIB”) on
July 6, 2012, alleging a disability onset date of January 1, 2006. Tr. 15, 189, 191, 217. She
alleged disability based on the following: posttraumatic stress disorder; major depressive
1

disorder; anxiety; sleep disorder; and severed radial nerve on left forearm due to injury. Tr. 221.
After denials by the state agency initially (Tr. 85, 86) and on reconsideration (Tr. 112, 113),
Humberson requested an administrative hearing. Tr. 158. A hearing was held before
Administrative Law Judge (“ALJ”) Eric Westly on June 5, 2013. Tr. 34-73. At the hearing,
Humberson amended her alleged onset date to the date she filed her application and dropped her
appeal of her DIB claim. Tr. 38. In his June 27, 2014, decision (Tr. 15-27), the ALJ determined
that there are jobs that exist in significant numbers in the national economy that Humberson can
perform, i.e., she is not disabled. Tr. 26. Humberson requested review of the ALJ’s decision by
the Appeals Council (Tr. 10) and, on November 26, 2014, the Appeals Council denied review,
making the ALJ’s decision the final decision of the Commissioner. Tr. 1-4.
II. Evidence
A. Personal and Vocational Evidence
Humberson was born in 1982 and was 29 years old on the date her application was filed.
Tr. 217. She graduated from high school in 2001 and completed cosmetology training in 2002.
Tr. 222. She previously worked in a salon as a hair stylist and as a home health aide. Tr. 222.
She also cleaned hotel rooms. Tr. 47. She last worked in 2012. Tr. 222.
B. Relevant Medical Evidence
Mental: On December 23, 2008, Humberson saw Kathryn S. Muzina, M.D., for a
psychiatric evaluation. Tr. 547-551. Humberson complained of depression and anxiety. Tr.
550. She reported panic attacks several times a week lasting 30-60 minutes. Tr. 550. She had
suffered attacks since childhood but, recently, they were becoming more frequent and more
severe. Tr. 550. She also had insomnia, a poor appetite, and weight loss. Tr. 550. She had
begun to avoid public places for fear of having a panic attack and complained of anhedonia,

2

anergia, and some difficulties with memory and concentration. Tr. 550. Upon examination, her
mood was mildly anxious and her affect mildly constricted. Tr. 550. Her concentration and
memory were intact, her insight and judgment good, and she was pleasant and cooperative with
good eye contact, normal speech, and a logical thought process. Tr. 550. Dr. Muzina diagnosed
her with panic disorder with agoraphobia and depression, not otherwise specified. Tr. 551. She
assessed a Global Assessment of Functioning (“GAF”) score of 51-60.1 Tr. 551. She prescribed
Xanax and Paxil. Tr. 551.
On January 12, 2009, Humberson saw Dr. Muzina again; she reported feeling better and
sleeping better. Tr. 551. Dr. Muzina observed the same examination findings as her previous
visit. Tr. 551. On March 5, 2009, Humberson reported to Dr. Muzina that she was doing well
and that her mild anxiety responded well to the Xanax. Tr. 552.
From December 2010 to August 2011, Humberson saw Thomas Svete, M.D., for
management of her medications. Tr. 707, 705, 703, 701, 700.
On April 13, 2011, Humberson was admitted to the hospital after suffering a deep
laceration on her left arm from a knife, distal to her left antecubital fossa. Tr. 280. She reported
that she was having an argument with a family member when she accidentally lost control of the
knife. Tr. 280. She initially had wrist drop and numbness in her hand between her thumb and
index finger and was presumed to have radial nerve damage. Tr. 325.
On April 15, 2011, Humberson underwent complex wound repair surgery, “including the
muscles of the mobile wide and skin” and repair of her radial nerve in her left forearm. Tr. 265.
On May 26, 2011, she reported no pain, had a full range of motion in her elbow, and was
1

GAF (Global Assessment of Functioning) considers psychological, social and occupational functioning on a
hypothetical continuum of mental health illnesses. See American Psychiatric Association: Diagnostic & Statistical
Manual of Mental Health Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric
Association, 2000 (“DSM-IV-TR”), at 34. A GAF score between 51 and 60 indicates moderate symptoms or
moderate difficulty in social, occupational, or school functioning. Id.
3

performing her occupational therapy. Tr. 265. She noted no identifiable return of motor
function or sensory function. Tr. 265. She had a positive Tinel’s sign distal to the scar over the
radial nerve, no
active radial nerve function, and no radial nerve distribution. Tr. 265.
In May 2011, Humberson was evaluated at the Lake County Sheriff’s Office after being
incarcerated on a charge of driving under the influence. Tr. 371, 373. She reported that her
injury in April 2011 was a suicide attempt. Tr. 371. On May 14, 2011, she expressed suicidal
comments and was placed on suicide precautions. Tr. 371. She was also placed in isolation
because of her recent surgery and reported having a hard time being in isolation. Tr. 373. She
was diagnosed with depression, anxiety, alcohol dependence, and a rule out for bipolar disorder.
Tr. 375. She was prescribed medication and released from jail on June 28, 2011. Tr. 368.
On October 28, 2011, Humberson visited Pathways for an Adult Diagnostic Assessment
for treatment of depression, anxiety with panic attacks, sleep disturbance, appetite disturbance,
and cognitive issues. Tr. 471. She admitted that she last took her medication in August 2011
and that she had not been taking her medication “enough” or as directed. Tr. 471. She stated
that she did not want to be on medication but that she now felt that she needed it. Tr. 479. She
reported decreased activities of daily living, decreased performance of household chores, and
decreased motivation caused by lack of sleep and depression. Tr. 472. Humberson returned for
an Initial Psychiatric Evaluation on November 2, 2011, and was diagnosed with posttraumatic
stress disorder and depressive disorder and assigned a GAF score of 45.2 Tr. 511.
On November 15, 2011, Humberson was admitted to Windsor-Laurelwood Center for
Behavioral Medicine due to feeling acutely suicidal. Tr. 380. She reported that she had not
2

A GAF score between 41 and 50 indicates “serious symptoms (e.g., suicidal ideation, severe obsessional rituals,
frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., few friends,
unable to keep a job).” DSM-IV-TR, at 34.
4

been taking her medications. Tr. 380. She was re-prescribed Celexa, Ambien, and Xanax, and
attended group therapy. Tr. 380. She was discharged on November 22, 2011, with a GAF score
of 60. Tr. 381.
On September 20, 2012, Humberson saw Dr. Muzina for medication management and to
request a change in her antidepressant. Tr. 547. She complained of increased symptoms of
anxiety and depression since November 2011 and cited a number of recent stressors, including
financial strain, a finalization of her divorce and problems with her ex-husband, an exboyfriend’s serious medical condition, and having had an abortion. Tr. 547. Humberson denied
symptoms of attention deficit hyperactivity disorder (“ADHD”). Tr. 548. She complained of
feeling “keyed up,” having fatigue, irritability, trouble concentrating, sleep disturbance, and
panic attacks. Tr. 547. Upon examination, Humberson had a depressed mood and constricted
affect. Tr. 549. Her insight was adequate, judgment good, and she had good eye contact, normal
speech, and was cooperative. Tr. 549. Dr. Muzina diagnosed her with panic disorder, depressive
disorder, and rule out bipolar affective disorder. Tr. 549. She assessed a GAF score of 51-60
and prescribed Cymbalta. Tr. 549.
On November 29, 2012, Humberson reported to Dr. Muzina that she had no significant
change since her last visit and was not “clearly responding” to Cymbalta. Tr. 555. Dr. Muzina
increased her dosage of Cymbalta. Tr. 556.
On February 7, 2013, Dr. Muzina noted that Humberson had stopped taking Cymbalta
weeks prior for “unclear reasons—does say that she doesn’t want to be on medications forever.”
Tr. 559. Humberson complained of increased anxiety and depression, reduced frustration
tolerance, and mood lability. Tr. 559. She had recently dyed her hair brown after being blonde
for years. Tr. 559. She told Dr. Muzina that she was moving to Arizona with her boyfriend and

5

that they planned to leave that weekend. Tr. 559. She explained that her boyfriend has family
there, including someone who was ill and required help with care, and that she “needs to get
away from all the negativity in the Cleveland area.” Tr. 559. Dr. Muzina advised that she
follow-up with a psychiatrist in Arizona as soon as possible. Tr. 560.
On August 15, 2013, Humberson saw Dr. Muzina again after returning from Arizona. Tr.
580. She had not followed up with treatment in Arizona and had been off her medications for 68 months. Tr. 580. She reported that she was in Arizona for six months and left after having
been raped. Tr. 580. She stated that being home had only increased her stress level because she
was staying with her mother with whom she did not get on well. Tr. 580. She advised that she
hoped to return to Arizona in a few weeks. Tr. 580. She complained of increased symptoms of
anxiety and depression since the assault. Tr. 580. She had been working a part-time job in
Arizona and wanted to get back to it. Tr. 581. Upon examination, Dr. Muzina observed that
Humberson’s concentration was scattered, her mood was anxious/depressed, and her affect was
restricted. Tr. 581. Dr. Muzina diagnosed her with adjustment disorder with mixed anxiety and
depressed mood; panic disorder, without agoraphobia; acute posttraumatic stress disorder; and
depressive disorder. Tr. 581.
Humberson saw Dr. Muzina again on September 25, 2013, reporting that she was leaving
the next day to move to Oregon and had a job lined up as a caregiver. Tr. 660. She complained
of struggling with poor concentration and distractibility. Tr. 660. She stated that she had been
taking her medications but was not sure that they had “kicked in.” Tr. 660. She was sleeping
better with Ambien. Tr. 660. Dr. Muzina mentioned a trial of a stimulant to treat Humberson’s
previously diagnosed ADHD but Dr. Muzina was uncomfortable starting a stimulant if

6

Humberson was leaving town the next day. Tr. 660-661. Dr. Muzina suggesting increasing
Humberson’s Cymbalta dosage but Humberson was hesitant. Tr. 661.
On October 29, 2013, Humberson saw Dr. Muzina again. Tr. 656. She reported that she
went to Oregon but that the job there did not work out. Tr. 656. She indicated that she was
interested in trying a stimulant. Tr. 656. Her mood was dysphoric and anxious and her affect
was mood-congruent and appropriate to topic. Tr. 657. Dr. Muzina prescribed Adderall. Tr.
657.
On January 22, 2014, Humberson returned to Dr. Muzina reporting that she did well on
Adderall but that she was no longer on Medicaid and lost her prescription benefits. Tr. 696. She
was no longer living with her mother; she had moved in with her boyfriend. Tr. 969. On March
17, 2014, Humberson told Dr. Murzina that she was pregnant and that her pregnancy was going
well. Tr. 709. Due to her pregnancy, she was no longer taking Xanax but requested medication
for her ADHD. Tr. 709. Upon examination, her concentration was normal, her mood was
mildly anxious, and her affect was full and appropriate to topic. Tr. 709. She was excited about
her pregnancy and was feeling well physically. Tr. 710. Dr. Murzina assessed a GAF score of
61-70.3 Tr. 710.
Physical: After surgery on her left arm, Humberson saw Charmaine Gutjarh, M.D., on
March 31, 2012, complaining of left arm pain. Tr. 516. She had a fair grip with her left hand
and impaired thumb extension. Tr. 516. Dr. Gutjarh assessed her with chronic pain and possible
reflex sympathetic dystrophy. Tr. 516. She prescribed an increased dosage of Neurontin and
trial Toradol injection. Tr. 516.

3

A GAF score between 61 and 70 indicates “some mild symptoms (e.g., depressed mood and mild insomnia) or
some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the
household), but generally functioning pretty well, has some meaningful interpersonal relationships.” DSM-IV-TR,
at 34.
7

On April 25, 2012, Humberson went for an initial evaluation for occupational therapy.
Tr. 539. She reported that her pain was worse in cold and wet weather and that she had been
undergoing pain management and had received her first epidural injection. Tr. 539. She did not
have pain at the time of her visit, but complained of some pain at varying levels when
performing tasks such as heavy lifting and repetitive activities such as styling hair. Tr. 540.
Upon examination, she had increased pain, decreased radial abduction and palmer abduction of
her right thumb, and her left arm and hand were mildly atrophied compared to the right. Tr. 540.
She held her left arm next to her body in a mildly guarded/protected position. Tr. 540. Left hand
strength and pinch strength were impaired. Tr. 540.
On September 12, 2012, Humberson complained of persistent left arm pain, painful to
light touch at times. Tr. 575. Upon examination, her left arm showed muscular weakness,
muscle atrophy, decreased sensation to light touch from her scar line down to her fingertips, and
decreased left grip strength. Tr. 576.
On January 22, 2013, Humberson saw pain management physician Fady Nageeb, M.D.,
complaining of consistent left arm pain, burning, 10/10. Tr. 589. Her Percocet was helping but
was only lasting four hours. Tr. 590. Upon examination, she had mild to moderate tenderness
over her left hand. Tr. 589. Dr. Nageeb increased Humberson’s Percocet and referred her for a
neurological consultation. Tr. 590.
On August 7, 2013, Humberson returned to Dr. Nageeb with the same complaints of arm
pain in addition to back and knee pain. Tr. 601. Upon examination, palpation revealed
allodynia of her left thumb and wrist. Tr. 602. Dr. Nageeb prescribed Oxycodone, Alprazolam,
and a Fentanyl transdermal patch. Tr. 602. Humberson returned for a follow-up on August 27
with the same arm complaints; Dr. Nageeb increased her Lyrica. Tr. 687.

8

On March 20, 2013, Humberson went to Rehab Arizona for an initial pain management
and rehabilitation evaluation. Tr. 638. Her pain level was 6/10. Tr. 638. Upon examination,
she had 4/5 motor strength in her left biceps, triceps, wrist extensors, grip, and hand intrinsics.
Tr. 630. She displayed diminished sensation to pinprick in her left forearm and hand, pain to
palpation generally below her left elbow, and a limited range of motion in her left wrist
secondary to pain and weakness. Tr. 630. She was diagnosed with causalgia of upper limb,
mononeuritis arm unspecified, injury to radial nerve, and pain in limb. Tr. 630. She was
prescribed Oxycodone and MS Contin. Tr. 631.
On May 29, 2013, Humberson complained of pain in her arm that had been worse than
usual and stated that she felt she was under-medicating herself. Tr. 616. She received a radial
nerve block on her left arm. Tr. 619. She returned on June 26 reporting that the radial nerve
block did not help her pain. Tr. 612.
On October 18, 2013, Humberson saw Emad Mikhail, M.D. Tr. 669-674. She
complained of pain in her left arm, right knee, and neck. Tr. 669. She described her left arm
pain as numbness, burning, and pins and needles and described aggravating factors as prolonged
keyboard activity, repetitive grasping, repetitive lifting, and left wrist flexion, extension, grip,
pincer grip, and finger opposition. Tr. 669. She could not work or perform chores, and reported
limitations in bathing, dressing, housekeeping, lifting or carrying, preparing meals, and
shopping. Tr. 671. Upon examination, she had, in her left arm: tenderness; a positive resistive
tennis elbow test; moderate allodynia in her forearm and hand; moderate trophic changes in her
forearm; mild coldness; and mild hand erythema. Tr. 673. Dr. Mikhail assessed chronic pain
syndrome and reflex sympathetic dystrophy of upper limb. Tr. 674.
D. Medical Opinion Evidence

9

1. Treating Source Opinion
On January 30, 2013, Dr. Muzina completed a questionnaire regarding Humberson. Tr.
544-546. She indicated she first saw Humberson on September 18, 2012, and last saw her on
November 29, 2012, and summarized her findings. Tr. 545-546. When asked to describe
limitations that Humberson’s impairments imposed on her ability to perform sustained work
activity, Dr. Muzina wrote, “concentration is impaired[;] frustration tolerance is very low[; and]
her physical symptoms interfere with her ability to take care of her personal needs/function
independently.” Tr. 546.
On August 26, 2013, Dr. Muzina completed a Mental Assessment of Ability to do WorkRelated Activities on Humberson’s behalf. Tr. 585-586. Dr. Muzina opined that Humberson
had extreme limitations in her ability to maintain concentration and attention for extended
periods and in her ability to respond to customary work pressures; marked limitations in ten
other areas identified on the form; and moderate limitations in three areas—use good judgment,
follow simple instructions, and estimated degree of deterioration in personal habits. Tr. 585-586.
She would be absent more than three times a month. Tr. 586.
2. State Agency Reviewers
On October 15, 2012, state agency reviewing psychologist Caroline Lewin, Ph.D.,
reviewed Humberson’s file. Tr. 91, 95-96. Dr. Lewin opined that, due to Humberson’s anxiety
and depression, she was capable of maintaining attention and concentration for tasks that are
simple and routine in nature; can cope with ordinary and routine changes in a work setting that
are not fast paced or of high demand; is limited to infrequent contact with the general public and
can interact occasionally and superficially and receive instructions and ask questions
appropriately in a work setting; can interact occasionally in situations that do not require

10

resolving conflict or persuading others to follow demands; and is limited to job duties that are
static in nature. Tr. 96.
On February 19, 2013, state agency reviewing psychologist Kristen Haskins, Psy.D.,
reviewed Humberson’s file and affirmed Dr. Lewin’s opinion. Tr. 124-125.
E. Testimonial Evidence
1. Humberson’s Testimony
Humberson was represented by counsel and testified at the administrative hearings. Tr.
36-67. She was 23 weeks pregnant at the time of the hearing. Tr. 42. She lives with her mother
at her mother’s house and is not currently working. Tr. 42. She was receiving spousal support
from a previous marriage but it had run out. Tr. 42.
Previously she worked at salons as a hairdresser. Tr. 42-43. Her hairdressing license is
currently inactive. Tr. 42. She worked at a number of salons because she had a hard time
keeping focused and staying in one place for an extended period of time and would quit because
she felt inadequate compared to her coworkers. Tr. 43-44. She never had problems at work and
got along great with her coworkers. Tr. 44. After her injury to her arm, she tried working in
home healthcare but she was unable to lift people as required. Tr. 45-46. She quit because of the
physical aspect of that job and had no other problems other than she worked the third shift and
had issues with sleep. Tr. 46. In Arizona, she worked in the food industry serving and
bartending but could not lift the trays and kegs. Tr. 49-50.
Humberson stated that she has battled with depression, anxiety, and ADHD her whole
life. Tr. 51. The biggest factor in her ability to work is her arm; a “huge contributing factor as to
why I can’t stick with something” is her ADHD. Tr. 51. She has been on Adderall for three
months. Tr. 52. It helps her focus but she feels like it needs some adjusting because she still has

11

a hard time. Tr. 52. She will start a project at home and not finish it. Tr. 53. When asked how
she ever completed a head of hair, she explained, “I would complete whatever I had on my book,
and then I would say I got sick or something, and leave.” Tr. 53. She enjoyed working with hair
but can no longer do so because she lacks the manual dexterity in her left hand and fingers. Tr.
54. Her pointer finger and her thumb do not extend beyond a certain position. Tr. 39, 59.
She has good days and bad days with her arm. Tr. 55. On a bad day “its dropping me
down to my knees and, you know, it’s completely debilitating.” Tr. 55. Currently, she is unable
to take her pain medications because she is pregnant. Tr. 40. Thus, she tries to do everything
with her right hand. Tr. 40. Without her medication she has flare-ups ten times a month. Tr. 55.
She previously was able to control the flare-ups with pain medication and would have flare-ups
three to four times a month. Tr. 56. She would take her medication “as needed” but she was
taking it almost every day when she would feel “it just coming on slightly.” Tr. 57.
Humberson testified that she has problems getting dressed, such as doing up buttons. Tr.
59. When she washes her hair she tries to use her right hand as much as possible. Tr. 59. She
cannot cut food to cook because she is unable to grasp the food hard enough with her left hand.
Tr. 60. She no longer drives because she does not have a license and does not believe “it’s very
smart to drive” while taking medication for anxiety and pain. Tr. 61. She previously was able to
drive using one hand. Tr. 61.
2. Vocational Expert’s Testimony
Vocational Expert Deborah Lee (“VE”) testified at the hearing. Tr. 61-72. The ALJ
discussed with the VE Humberson’s past work as a hair stylist, home health aide, and cleaner.
Tr. 62-63. The ALJ asked the VE to determine whether a hypothetical individual with
Humberson’s work experience could perform her past work if that person had the following

12

characteristics: can lift/carry 20 pounds occasionally and 10 pounds frequently; stand or walk for
six hours in an eight-hour workday; sit six hours in an eight-hour workday; can occasionally
handle and finger, but never operate hand controls with her left hand; can never climb ladders,
ropes, or scaffolds; can frequently reach in all directions with her left upper extremity; must
avoid all exposure to hazards; can perform simple tasks in a setting with no fast pace, no strict
production demands, and no more than infrequent changes; and can occasionally, i.e. rarely,
interact with supervisors and co-workers and infrequently interact with the public, if the
interaction with everyone is limited to speaking and signaling. Tr. 63-64. The VE answered that
such an individual could not perform Humberson’s past relevant work as a hair stylist or home
health aide, but could perform work as a cleaner/housekeeper. Tr. 66. The ALJ asked if there
were other jobs the hypothetical individual could perform, and the VE replied that such an
individual could perform work as a mail clerk (1,000 northeast Ohio jobs; 3,000 Ohio jobs;
68,800 national jobs). Tr. 67-68. The ALJ asked the VE if the hypothetical individual could
perform the job of bakery worker, conveyor line. Tr. 68. The VE discussed with the ALJ the
requirements of bakery worker, conveyor line and concluded that the hypothetical individual
could perform this job. Tr. 69. The ALJ asked the VE if the hypothetical individual could
perform the job of counter clerk. Tr. 69. The VE stated that the job of counter clerk is obsolete
and that she does not see it often. Tr. 69-70. The ALJ asked about a counter clerk for radio or
television broadcasts and the VE answered that the hypothetical individual could not perform
that job. Tr. 70.
Next, the ALJ asked the VE whether her answer would change if the hypothetical
individual described was further limited to no handling and fingering with the left hand. Tr. 71.

13

The VE answered that the previously identified jobs of cleaner and mail clerk would not be
available and that no other jobs would be available. Tr. 71.
Humberson’s attorney asked the VE whether the hypothetical individual could perform
work if she would be absent more than three times a month or off task more than 20% of the
time. Tr. 72. The VE stated that there would be no work for such an individual. Tr. 72.
III. Standard for Disability
Under the Act, 42 U.S.C. § 423(a), eligibility for benefit payments depends on the
existence of a disability. “Disability” is defined as the “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). Furthermore:
[A]n individual shall be determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he is not only unable
to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in
the national economy . . . .
42 U.S.C. § 423(d)(2).
In making a determination as to disability under this definition, an ALJ is required to
follow a five-step sequential analysis set out in agency regulations. The five steps can be
summarized as follows:
1.

If the claimant is doing substantial gainful activity, he is not disabled.

2.

If claimant is not doing substantial gainful activity, his impairment must
be severe before he can be found to be disabled.

3.

If claimant is not doing substantial gainful activity, is suffering from a
severe impairment that has lasted or is expected to last for a continuous
period of at least twelve months, and his impairment meets or equals a
listed impairment, claimant is presumed disabled without further inquiry.

14

4.

If the impairment does not meet or equal a listed impairment, the ALJ
must assess the claimant’s residual functional capacity and use it to
determine if claimant’s impairment prevents him from doing past relevant
work. If claimant’s impairment does not prevent him from doing his past
relevant work, he is not disabled.

5.

If claimant is unable to perform past relevant work, he is not disabled if,
based on his vocational factors and residual functional capacity, he is
capable of performing other work that exists in significant numbers in the
national economy.

20 C.F.R. §§ 404.1520, 416.920;4 see also Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987).
Under this sequential analysis, the claimant has the burden of proof at Steps One through Four.
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). The burden shifts to the
Commissioner at Step Five to establish whether the claimant has the vocational factors to
perform work available in the national economy. Id.
IV. The ALJ’s Decision
In his June 27, 2014, decision, the ALJ made the following findings:
1.

The claimant met the insured status requirements of the Social Security
Act through December 31, 2006. Tr. 17.

2.

The claimant has not engaged in substantial gainful activity since August
13, 2012, the alleged onset date. Tr. 18.

3.

The claimant has the following severe impairments: other and
unspecified arthropathies (left arm nerve damage, right knee pain),
affective disorders, and anxiety. Tr. 18.

4.

The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. Tr. 18.

5.

The claimant has the residual functional capacity to perform light work
as defined in 20 CFR 416.967(b), limited to lifting or carrying 20 pounds

4

The DIB and SSI regulations cited herein are generally identical. Accordingly, for convenience, further citations
to the DIB and SSI regulations regarding disability determinations will be made to the DIB regulations found at 20
C.F.R. § 404.1501 et seq. The analogous SSI regulations are found at 20 C.F.R. § 416.901 et seq., corresponding to
the last two digits of the DIB cite (i.e., 20 C.F.R. § 404.1520 corresponds to 20 C.F.R. § 416.920).

15

occasionally and 10 pounds frequently; standing or walking 6 hours out
of 8; sit 6 hours out of 8; further limited to occasional handling and
fingering but precluded from the operation of hand controls with the left
hand; precluded from climbing ladders, ropes or scaffolds; limited to
frequent reaching in all directions with the left upper extremity;
precluded from all exposure to hazards; with the ability to perform simple
tasks in a setting with no fast pace, no strict production demands, and no
more than infrequent changes; limited to occasional interaction with
supervisors and coworkers and infrequent interaction with the public if
that interaction is limited to speaking and signaling. Tr. 20.
6.

The claimant is capable of performing past relevant work as a cleaner.
This work does not require the performance of work-related activities
precluded by the claimant’s residual functional capacity. Tr. 26.

7.

The claimant has not been under a disability, as defined in the Social
Security Act, from August 13, 2012, through the date of this decision.
Tr. 26.

V. Parties’ Arguments
Humberson objects to the ALJ’s decision on two grounds. She argues that the ALJ did
not follow the treating physician rule when considering the opinion of Humberson’s treating
psychiatrist, Dr. Muzina, and that the ALJ’s finding that Humberson was not entirely credible
was not supported by substantial evidence. Doc. 17, p. 18. In response, the Commissioner
submits that substantial evidence supports the ALJ’s decision with respect to Dr. Muzina’s
opinion and Humberson’s credibility. Doc. 19, pp. 7-11.
VI. Law & Analysis
A reviewing court must affirm the Commissioner’s conclusions absent a determination
that the Commissioner has failed to apply the correct legal standards or has made findings of fact
unsupported by substantial evidence in the record. 42 U.S.C. § 405(g); Wright v. Massanari, 321
F.3d 611, 614 (6th Cir. 2003). “Substantial evidence is more than a scintilla of evidence but less
than a preponderance and is such relevant evidence as a reasonable mind might accept as

16

adequate to support a conclusion.” Besaw v. Sec’y of Health & Human Servs., 966 F.2d 1028,
1030 (6th Cir. 1992) (quoting Brainard v. Sec’y of Health and Human Servs., 889 F.2d 679, 681
(6th Cir. 1989) (per curiam) (citations omitted)). A court “may not try the case de novo, nor
resolve conflicts in evidence, nor decide questions of credibility.” Garner v. Heckler, 745 F.2d
383, 387 (6th Cir. 1984).
A. The ALJ did not follow the treating physician rule
Humberson argues that the ALJ failing to follow the treating physician rule when she
evaluated the opinion of her treating psychiatrist, Dr. Muzina. Doc. 17, p. 19. Under the treating
physician rule, “[a]n ALJ must give the opinion of a treating source controlling weight if he finds
the opinion well supported by medically acceptable clinical and laboratory diagnostic techniques
and not inconsistent with the other substantial evidence in the case record.” Wilson v. Comm’r of
Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004); 20 C.F.R. § 404.1527(c)(2). If an ALJ decides to
give a treating source’s opinion less than controlling weight, she must give “good reasons” for
doing so that are sufficiently specific to make clear to any subsequent reviewers the weight given
to the treating physician’s opinion and the reasons for that weight. Wilson, 378 F.3d at 544. In
deciding the weight given, the ALJ must consider factors such as the length, nature, and extent of
the treatment relationship; specialization of the physician; the supportability of the opinion; and
the consistency of the opinion with the record as a whole. See 20 C.F.R. § 416.927(a)-(d);
Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 747 (6th Cir. 2007).
With respect to Dr. Muzina’s opinion, the ALJ referred to the August 2013 mental
assessment form completed by Dr. Muzina. Tr. 22. He recited the thirteen “marked” and
“extreme” limitations assessed by Dr. Muzina. Tr. 22. He noted Dr. Muzina’s diagnoses and her

17

belief that Humberson’s limitations would cause Humberson to be absent from work more than
three times per month. Tr. 22. The ALJ concluded,
The undersigned gives some weight to this assessment. However, it is not supported by
the evidence. The record does not support the marked and extreme limitations suggested
by Dr. Muzina.
Tr. 22.
The ALJ failed to comply with the treating physician rule. The sole reason he offered for
giving Dr. Muzina’s opinion less than controlling weight, that it is “not supported by the
evidence,” without citing any evidence, is not sufficiently specific to make clear to any
subsequent reviewer the weight given to the opinion and the reasons for that weight. See Wilson,
378 F.3d at 544; Friend v. Comm’r of Soc. Sec., 375 Fed. App’x 543, 551 (6th Cir. 2010) (“while
it is true that a lack of compatibility with other record evidence is germane to the weight of a
treating physician’s opinion, an ALJ cannot simply invoke the criteria set forth in the regulations
if doing so would not be ‘sufficiently specific’ to meet the goals of the ‘good reason’ rule.”). In
the only other portion of the ALJ’s decision that appears to be a relevant analysis of
Humberson’s mental limitations, the ALJ states, without citing to the record, that Humberson’s
mental impairments “appear to be relatively well controlled with medication and treatment.” Tr.
24. He observes that the record “indicate[s] a period of even being off her medications 6-8
months.” Tr. 24. He notes that Humberson “is capable of dating, making an out of state move,
and making a return move.” Tr. 24. The aforesaid, however, do not make clear to the Court
what portion of Dr. Muzina’s opinion the ALJ gave “some” weight to and his reasons for doing
so. See 20 C.F.R. § 416.927(c)(2)(the ALJ considers the length of the treatment relationship and
the nature and extent of that relationship; the supportability and consistency of the opinion; the
specialization of the physician; and other factors).

18

Tellingly, the Commissioner does not take the position that the ALJ complied with the
treating physician rule. Instead, the Commissioner cites to evidence in the record that, she
argues, supports the ALJ’s decision. Doc. 19, pp. 8-9 (citing to the following: at the time Dr.
Muzina rendered her opinion she had only seen Humberson once in the past six months; there
were inconsistent reports by Humberson to Muzina about her medication use; mistaken notes in
Dr. Muzina’s records regarding Humberson’s history; Dr. Muzina’s opinion was a “check-mark”
form with no narratives; and that extreme and marked limitations were inconsistent with
Humberson’s activities of moving out of state twice and back again and working two jobs in
Arizona and finding a job in Oregon prior to moving there). However, such post-hoc
rationalizing is not permitted by the court on review. See S.E.C. v. Chenery, 332 U.S. 194, 196
(1947) (a reviewing court must judge the propriety of agency action “solely by the grounds
invoked by the agency”). Because the ALJ did not explain his reasons for giving only “some”
weight to Dr. Muzina’s opinion, his decision runs afoul of the treating physician rule and must,
therefore, be reversed. See Wilson, 378 F.3d at 544 (reversal required when the agency fails to
follow its procedure, even if substantial evidence otherwise supports the ALJ’s decision).
B. On remand, the ALJ will have an opportunity to reevaluate Humberson’s
credibility
Humberson asserts that the ALJ’s credibility determination is not supported by
substantial evidence. Doc. 17, p. 21. Again, the Commissioner does not discuss the ALJ’s
decision but, instead, identifies evidence in the record that she believes supports the ALJ’s
finding that Humberson’s allegations of extreme limitations are not fully credible. The Court
does not address Humberson’s credibility argument because, on remand, the ALJ’s evaluation of
Dr. Muzina’s opinion may impact and clarify his findings with respect to Humberson’s
credibility. Regarding physical limitations, the Court notes that the ALJ’s reasons for finding
19

Humberson’s left arm impairments not as severe as alleged—that Humberson became pregnant,
dyed her hair once, and reported doing regular cardio-vascular exercises—are not persuasive in
that they do not, on their face, indicate that Humberson can use her left hand for handling and
fingering.5 Tr. 25. On remand, the Commissioner will have an opportunity to consider
Humberson’s credibility regarding her mental and physical limitations further. See Gresham v.
Comm’r of Soc. Sec., 2014 WL 3749375, at *11 (N.D.Ohio July 30, 2014) (declining to address
the plaintiff’s remaining assertion of error because remand was already required and, on remand,
the ALJ’s determination might impact her findings).
VII. Conclusion
For the reasons set forth herein, the Commissioner’s decision is REVERSED and
REMANDED for further proceedings consistent with this opinion.

Dated: November 6, 2015
Kathleen B. Burke
United States Magistrate Judge

5

For example, all cardio-vascular exercise does not require the ability to use the left arm. Nor does dying one’s
hair; assuming that Humberson dyed her own hair, she could have done so using her right hand in the same manner
she washes her hair, as she testified (see Tr. 59, “when I shampoo and condition my hair, I try to just use my right
hand as much as possible.”).
20