Brannon v. Commissioner of Social Security
Memorandum Opinion and Order. The Commissioner's final decision is reversed and remanded for proceedings consistent with this Memorandum Opinion and Order. Magistrate Judge Nancy A. Vecchiarelli on 3/8/2016. (G,W)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
TAMMY L. BRANNON,
CAROLYN W. COLVIN,
Acting Commissioner of Social
CASE NO. 1:15-CV-00904
MEMORANDUM OPINION AND
Plaintiff, Tammy L. Brannon (“Plaintiff”), challenges the final decision of
Defendant, Carolyn W. Colvin, Acting Commissioner of Social Security
(“Commissioner”), denying her applications for Period of Disability (“POD”), Disability
Insurance Benefits (“DIB”), and Supplemental Security Income (“SSI”) under Titles II
and XVI of the Social Security Act, 42 U.S.C. §§ 416(i), 423, 1381 et seq. (“Act”). This
case is before the undersigned United States Magistrate Judge pursuant to the consent
of the parties entered under the authority of 28 U.S.C. § 636(c)(2). (Doc. No. 14.) For
the reasons set forth below, the Commissioner’s final decision is REVERSED and
REMANDED for proceedings consistent with this Memorandum Opinion and Order.
On August 29, 2011, Plaintiff filed his applications for POD, DIB, and SSI,
alleging a disability onset date of April 1, 2009. (Transcript (“Tr.”) 15.) The claims were
denied initially and upon reconsideration, and Plaintiff requested a hearing before an
administrative law judge (“ALJ”). (Id.) On July 10, 2013, an ALJ held Plaintiff’s hearing.
(Id.) Plaintiff participated in the hearing, was represented by counsel, and testified. (Id.)
A vocational expert (“VE”) also participated and testified. (Id.) On October 1, 2013, the
ALJ found Plaintiff not disabled. (Tr. 32.) On March 9, 2015, the Appeals Council
declined to review the ALJ’s decision, and the ALJ’s decision became the
Commissioner’s final decision. (Tr. 1.)
On May 7, 2015, Plaintiff filed his complaint to challenge the Commissioner’s
final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc.
Nos. 18, 19, 21.)
Plaintiff asserts the following assignments of error: (1)(A) the ALJ failed to give
good reasons for discounting the opinion of one of her treating physicians; (1)(B) the
ALJ failed to consider Plaintiff’s non-exertional limitations; and (2) the ALJ’s credibility
determination was not supported by substantial evidence and was the product of legal
error. (Doc. No. 18.)
Personal and Vocational Evidence
Plaintiff was born in April 1969 and was nearly 39-years-old on her alleged
disability onset date. (Tr. 30.) She had at least a high school education and was able
to communicate in English. (Id.) She had past relevant work as a dietary cook, home
health aide, food deliverer, cleaner, sales clerk, machine operator, and inspector/quality
control. (Tr. 28-29.)
Relevant Medical Evidence1
Since her April 1, 2009 alleged onset date, Plaintiff has received treatment for
The following recitation of the medical evidence of record is not intended to be
numerous conditions, including the following: morbid obesity (Tr. 531,554); bilateral
knee pain (Tr. 456, 462, 475-76, 481-482, 556); post-arthroscopic surgery to repair a
medial meniscus tear in the left knee (Tr. 479); arthritis of the right shoulder
post-arthroscopic rotator cuff surgery (Tr. 392-93, 399-404); post-surgical intervention
on her left thumb for trigger thumb (T 384-85); lower back pain (Tr. 406-407);
non-malignant ovarian cysts and uterine fibroids (Tr. 649-50); myalgia and myositis
(555-56, 687, 691); depression with anxiety (Tr. 554-56); and restless leg syndrome.
On April 6, 2010, Plaintiff began treatment with her primary care physician,
Sandeep Patel, M.D. (Tr. 554-57.) At this initial visit, Dr. Patel noted that multiple tests
will be performed to rule out secondary reasons for Plaintiff’s chronic pain and that his
diagnosis of fibromyalgia was based on multiple trigger points. (Tr. 555-56.) One
month later, on May 6, 2010, Dr. Patel continued to diagnose fibromyalgia but did not
note the results of the above testing or discuss the number or location of positive trigger
points. (Tr. 551-52.) In July and August of 2010, Dr. Patel mentioned “diffuse trigger
points suggestive of fibromyalgia” and continued to include it among his diagnoses. (Tr.
538, 541.) Dr. Patel continued to diagnose fibromyalgia in December of 2010 and June
of 2011. (Tr. 523, 533.)
On February 22, 2011, Robert Zanotti, M.D., performed arthroscopic surgery of
Plaintiff’s right shoulder to repair her rotator cuff. (Tr. 399-400.) At her first postoperative follow-up two days later, Dr. Zanotti noted “[m]otion was within normal limits
for first post op visit.” (Tr. 390.) On March 17, 2011, Dr. Zanotti noted that Plaintiff
could move her shoulder in a normal fashion without significant change. (Tr. 388.)
On May 3, 2011, Dr. Zanotti performed trigger thumb release surgery, and
Plaintiff had her first follow-up on May 11, 2011 where it was noted that the thumb was
stable and there was no sign of triggering. (Tr. 384-85.) Plaintiff denied the need for
work restrictions and was given Vicodin for pain. (Tr. 384.)
On December 23, 2011, Benjamin Abraham, M.D., noted a primary encounter
diagnosis of myalgia and myositis. (Tr. 432-35.)
On January 18, 2012, Plaintiff was seen by Ronald G. Smith, Ph. D., for a
consultative examination. (Tr. 412-19.) Plaintiff was unkempt in appearance and tearful
throughout the interview; her responses tended to be “somewhat rambling and
tangential.” (Tr. 415.) Dr. Smith observed that Plaintiff had considerable difficulty
differentiating between depression, anger, and anxiety. (Tr. 416.) She was oriented to
time and place. (Tr. 417.) Dr. Smith diagnosed dysthymic disorder and personality
disorder, not otherwise specified, with borderline features. (Tr. 418.) He assessed a
Global Assessment of Functioning (“GAF”) score of 50.2 Dr. Smith concluded that
Plaintiff “should be able to understand and remember job instructions on a mental
basis,” although “[h]er ability to carry them out in a consistent manner may be
questionable due to her emotional instability.” (Tr. 419.) He further concluded that she
would have trouble maintaining attention and concentration, and would likely have
The GAF scale reports a clinician’s assessment of an individual’s overall level
of functioning. Diagnostic & Statistical Manual of Mental Disorders, 32-34
(American Psychiatric Ass’n, 4th ed. revised, 2000) (“DSM-IV”). An individual’s
GAF is rated between 0-100, with lower numbers indicating more severe mental
impairments. A GAF score between 41-50 indicates serious symptoms or any
serious impairment in social, occupational or school functioning. DSM-IV at 34. A recent
update of the DSM eliminated the GAF scale because of “its conceptual lack of clarity . .
. and questionable psychometrics in routine practice.” See Diagnostic and Statistical
Manual of Mental Disorders (DSM-5) at 16 (American Psychiatric Ass’n, 5th ed., 2013).
problems maintaining persistence in the performance of even simple tasks. (Id.) He
believed she may have problems dealing with others in a job situation due to
emotionality and would likely break down and cry in response to criticism or correction.
(Id.) Finally, Plaintiff’s ability to respond appropriately to work pressures would be
“limited by her easily resorting to tearfulness in response to relatively mild stress.” (Tr.
On July 30, 2012, State Agency psychologist Bruce Goldsmith, Ph. D., found that
Plaintiff had no restrictions in activities of daily living; no episodes of decompensation of
an extended duration; moderate difficulties in maintaining social functioning; and
moderate difficulties in maintaining concentration, persistence, or pace. (Tr. 120.)
On August 13, 2012, Plaintiff underwent left knee arthroscopic surgery to repair a
medial meniscal tear. (Tr. 479.) On August 15, 2012, in a follow-up Plaintiff stated that
she was still having some pain and was using a walker for ambulation. (Tr. 473.) She
was prescribed Oxycodone-Acetaminophen every 4-6 hours. (Id.) On August 29, 2012,
Plaintiff was still using one crutch for ambulation and continued to complain of localized
pain in the left knee. (Tr. 471.) It was noted that she had good range of motion and
minimal swelling. (Id.) She was advised to “[c]ontinue to weight bear as tolerated ....
Discontinue the use of the crutch and followup” in a few weeks. (Tr. 472.)
On November 8, 2012, non-examining State Agency physician Anne Prosperi,
D.O., completed a physical RFC assessment finding that Plaintiff could lift 10 pounds
frequently and 20 pounds occasionally, stand/walk for 2 hours and sit for 6 hours in an
8-hour workday. (Tr. 121-124.) Furthermore, Plaintiff could occasionally climb
ramps/stairs, stoop, kneel, and crouch; frequently balance; and never climb ladders
ropes, or scaffolds. (Tr. 122.) As for manipulative restrictions, Plaintiff had no
limitations except for limited reaching overhead with the right arm. (Tr. 123.) Plaintiff
also had no environmental restrictions aside from the need to avoid all exposure to
On February 8, 2013, Dr. Abraham again made a primary encounter diagnosis of
myalgia and myositis. (Tr. 691.)
On May 3, 2013, certified nurse practitioner Katherine Ledyard made a primary
encounter diagnosis of myalgia and myositis, unspecified. (Tr. 687.)
On May 16, 2013, Dr. Patel completed an RFC Questionnaire form, provided by
Plaintiff’s counsel, wherein he indicated that he had treated Plaintiff for more than three
years and diagnosed her with “polyarticular joint pain, rotator cuff tear, gait ataxia ....3
(Tr. 587-588.) Plaintiff’s prognosis was “good” and he identified Plaintiff’s symptoms as
“mostly pain in various joints.” (Tr. 587.) Dr. Patel checked a box indicating that
Plaintiff’s symptoms would constantly interfere with the attention and concentration
required to perform simple work-related tasks. (Id.) Dr. Patel did not identify any side
effects from medications that could impact Plaintiff’s capacity to work. (Id.) He also
checked a box indicating that Plaintiff would need to recline or lie down in excess of
regularly allowed breaks and would also need to take three to four unscheduled breaks
daily lasting at least 20 to 30 minutes. (Id.) Dr. Patel opined that Plaintiff could walk
less than one city block without pain rest or significant pain, could sit for 60 minutes at
one time for three hours total in an 8-hour workday, could stand/walk for 20 minutes at
The remaining diagnoses are illegible.
one time for 1 or 2 hours total in an 8-hour workday, and would require a job that
allowed shifting positions at will from sitting, standing or walking. (Id.) Dr. Patel further
indicated that Plaintiff could lift less than 10 pounds frequently, 10 pounds occasionally,
but could never lift 20 or more pounds. (Tr. 588.) He also believed Plaintiff could
handle 20 percent of an 8-hour workday with the right hand and 70-80 percent with the
left; finger 20-40 percent of a workday with the right hand and 70-80 percent with the
left; and reach 10 percent of the workday with the right arm and 50-60 percent with the
left. (Id.) Finally, Dr. Patel opined that Plaintiff would be absent from work more than
four times per month, was not a malingerer, and was incapable of working 8 hours a
day for five days a week on a sustained basis. (Id.) The questionnaire did not contain
any explanation for the limitations assessed.
Plaintiff’s Hearing Testimony
At the July 10, 2013 hearing, Plaintiff testified as follows:
She left high school after the eleventh grade, but obtained a GED when
she was 23 years old. (Tr. 49.)
She last worked in 2009 as a dietary cook. Her mother was the manager
and Plaintiff’s employment was terminated shortly after her mother was let
go. She had no conflicts with her co-workers. (Tr. 51-52.) She had
physical difficulties performing that job, noting trouble going up and down
stairs. (Tr. 53.)
She attempted to find other work after she was terminated but received no
interviews. (Tr. 53.)
She worked as a sales clerk between 2004 and 2006. She left that
position to take care of her father. At times, she would miss work due to
physical issues or breakdowns. (Tr. 53-54.)
She worked as a machine operator, but that job ended within a year after
the plant shut down. (Tr. 54.)
She also worked as a pizza delivery driver, a home health aide, and a
cleaner. (Tr. 55-56.)
She believed the most serious problems preventing her from working was
her “breathing problem” [asthma], fibromyalgia, and her knees and arms.
She was diagnosed with fibromyalgia a few years earlier and was
prescribed Cymbalta, Lyrica, and a muscle relaxer. (Tr. 58.)
She could walk for 10 minutes before needing to sit and rest. She could
stand in one place for 10 to 15 minutes. She also has problems sitting.
She has fibroids and cysts causing her abdominal pain for which she is
“supposed to have surgery.” (Tr. 59.)
She tries to cook and clean but takes breaks, and needs to sit or lie down.
Since her knee surgery, she received shots in her knee once a week for
three straight weeks. The shots help for a “couple of months or so,” but
she continued to wear a knee brace as it sometimes “goes out” on her.
Her fibromyalgia causes her constant soreness. Her medications take the
edge off, but the aches do not go away. (Tr. 61-62.)
On some days, she experiences swelling in her legs. (Tr. 62.)
With respect to her hips, there have not been any problems detected
aside from the fibroids and cysts. (Tr. 62.)
She is right-handed and experiences pain when using it to peel or cut
something. She thinks she can lift no more than 5 or 10 pounds with her
right arm. (Tr. 63.)
Prior to her trigger thumb surgery, her finger would bend and cause
intense pain. After surgery, she continued to experience “a lot of
problems,” but did not know whether those were attributable to the trigger
finger, her nerves, or her arms falling asleep. (Tr. 63-64.)
Vocational Expert’s Hearing Testimony
The VE testified that Plaintiff’s past jobs would be classified as follows: dietary
aide, which is unskilled and requires medium exertion though Plaintiff performed it at the
light level, Dictionary of Occupational Titles (“DOT”) 319.677-014; home health aide,
semi-skilled and medium, DOT 354.377-014; delivery person, unskilled and medium,
DOT 299.477-010; cleaner, unskilled and medium, DOT 919.687-014; sales clerk, semiskilled and light, DOT 211.462-014; machine operator, semi-skilled and medium, DOT
619.685-062; and quality control, semi-skilled and light, DOT 609.684-010. (Tr. 65-66.)
The ALJ posed the following hypothetical to the VE:
I would like you to assume a hypothetical individual of [Plaintiff’s] age and
education with those past jobs as you described. I would like you to
further assume, and this is a long list. The individual can lift or carry 20
pounds occasionally, and 10 pounds frequently. Can stand or walk two
hours out of eight. Can sit for six hours out of eight. Can occasionally
climb ramps or stairs. Can never climb ladders, ropes or scaffolds. Can
frequently balance. Can occasionally stoop, kneel or crouch. Can never
crawl. Can frequently reach over head with the right upper extremity. And
must avoid all exposures to hazards. And they can occasionally
understand, remember and carry out detailed or complex instructions.
They cannot work at a production pace but can perform goal orientated
[sic] work. Interactions with supervisors, co-workers and the public is
limited to speaking and signaling. They require a relatively static work
setting but can tolerate a few changes.
The VE testified that such an individual could not perform any of Plaintiff’s past
relevant work. (Tr. 68.) However, the VE identified the following jobs as examples that
an individual with the aforementioned limitations could perform: gate guard, semi-skilled
and light, DOT 372.667-030 with 2,796 positions in Ohio and 95,573 nationally; cashier,
semi-skilled and light, DOT 211.462-010 with 10,091 positions in Ohio and 259,201
nationally;4 electrical accessories assembler, unskilled and light, DOT 729.687-010 with
2,507 positions in Ohio and 42,093 nationally; and inspector hand packager, unskilled
and light, DOT 559.687-074 with 3,010 positions in Ohio and 48,681 nationally. (Tr. 6869.) The VE indicated that his testimony was consistent with the DOT. (Tr. 69.) In
response to the ALJ’s inquiry whether all of these jobs could be performed by someone
who could stand/walk for only two hours in an 8-hour workday, the VE testified in the
The ALJ posed a second hypothetical to the VE asking him to assume all the
aforementioned limitations from the first hypothetical, but to also include the following
The person can stand or walk 15 minutes at a time, and one hour out of
eight in a day. The person can sit for 30 minutes at a time, and six hours
out of eight in a day. They will be absent one to two times per month, and
I took that from [Exhibit] 22F.
The VE testified that such an individual could not perform any of the previously
identified jobs and also would be unable to engage in any competitive employment. (Tr.
70.) The VE explained that two unscheduled absences per month were outside the
amount that would be tolerated by employers. (Id.)
STANDARD FOR DISABILITY
A claimant is entitled to receive benefits under the Social Security Act when he
Because all cashier jobs do not give the opportunity sit as often as the
hypothetical demands, the VE indicated that he had adjusted the job numbers to
reflect this fact. (Tr. 68.)
establishes disability within the meaning of the Act. 20 C.F.R. § 416.905; Kirk v. Sec’y
of Health & Human Servs., 667 F.2d 524 (6th Cir. 1981). A claimant is considered
disabled when he cannot perform “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.” 20 C.F.R. § 416.905(a).
The Commissioner reaches a determination as to whether a claimant is disabled
by way of a five-stage process. 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4); Abbott
v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). First, the claimant must demonstrate that
she is not currently engaged in “substantial gainful activity” at the time he seeks
disability benefits. 20 C.F.R. §§ 404.1520(b) and 416.920(b). Second, the claimant
must show that she suffers from a “severe impairment” in order to warrant a finding of
disability. 20 C.F.R. §§ 404.1520(C) and 416.920(C). A “severe impairment” is one that
“significantly limits . . . physical or mental ability to do basic work activities.” Abbot, 905
F.2d at 923. Third, if the claimant is not performing substantial gainful activity, has a
severe impairment that is expected to last for at least twelve months, and the
impairment meets a listed impairment, the claimant is presumed to be disabled
regardless of age, education or work experience. 20 C.F.R. §§ 404.1520(d) and
416.920(d). Fourth, if the claimant’s impairment does not prevent her from doing her
past relevant work, the claimant is not disabled. 20 C.F.R. §§ 404.1520(e)-(f) and
416.920(e)-(f). For the fifth and final step, even if the claimant’s impairment does
prevent her from doing her past relevant work, if other work exists in the national
economy that the claimant can perform, the claimant is not disabled. 20 C.F.R. §§
404.1520(g), 404.1560(C), and 416.920(g).
SUMMARY OF COMMISSIONER’S DECISION
The ALJ made the following findings of fact and conclusions of law:
The claimant meets the insured status requirements of the Social
Security Act through December 31, 2014.
The claimant has not engaged in substantial gainful activity since
April 1, 2009, the alleged onset date (20 CFR 404.1571 et seq.,
and 416.971 et seq.).
The claimant has the following severe impairments: effects from
degenerative changes to C5-C6 and C6-C7 region of the cervical
spine, degenerative changes to the L5-Sl region of the lumbar
spine, residual effects from status-post arthroscopy of the right
shoulder, degenerative joint disease of the knees bilaterally with
status-post arthroscopy, degenerative changes to the hip, ongoing
symptoms of left trigger finger with status-post trigger release,
obesity, and psychological effects from dysthymic disorder and
personality disorder (not otherwise specified) with borderline
features (20 CFR 404.1520(C) and 416.920(C).
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(20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual exertional capacity to lift and
carry up to ten pounds frequently and twenty pounds
occasionally, to stand and walk for two hours total in an eight hour
work day, and to sit for six hours total in an eight hour work day,
with normal breaks. This is consistent with a range of work that
falls between the sedentary and light exertional level with the
following nonexertional limitations (see generally 20 CFR 404.1567
and 416.967; Soc. Sec. Rul. 83-12). She can occasionally climb
ramps or stairs. She can frequently reach overhead with the
right upper extremity. She must avoid all exposures to hazards.
She can occasionally understand, remember, and carryout detailed
or complex instructions. She cannot work at a production pace but
can perform goal-oriented work. The claimant’s ability to interact
with supervisors, coworkers, and the public is limited to speaking
and signaling. She requires a relatively static work setting but
can tolerate a few changes.
The claimant is unable to perform any past relevant work (20 CFR
404.1565 and 416.965).
The claimant was born on April 7, 1969 and was 39 years old,
which is defined as a younger individual age 18-49, on the alleged
disability onset date (20 CFR 404.1563 and 416.963).
The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964).
Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is "not disabled,"
whether or not the claimant has transferable job skills (See SSR
82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
Considering the claimant's age, education, work expe1ience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20
CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
The claimant has not been under a disability, as defined in the
Social Security Act, from April 1, 2009, through the date of this
decision (20 CFR 404.1520(g) and 416.920(g)).
LAW & ANALYSIS
Standard of Review
Judicial review of the Commissioner’s decision is limited to determining whether
the Commissioner's decision is supported by substantial evidence and was made
pursuant to proper legal standards. Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512
(6th Cir. 2010). Review must be based on the record as a whole. Heston v. Comm’r of
Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). The court may look into any evidence in
the record to determine if the ALJ’s decision is supported by substantial evidence,
regardless of whether it has actually been cited by the ALJ. Id. However, the court
does not review the evidence de novo, make credibility determinations, or weigh the
evidence. Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir.
The Commissioner’s conclusions must be affirmed absent a determination that
the ALJ failed to apply the correct legal standards or made findings of fact unsupported
by substantial evidence in the record. White v. Comm’r of Soc. Sec., 572 F.3d 272, 281
(6th Cir. 2009). 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
adequate to support a conclusion. Brainard, 889 F.2d at 681. A decision supported by
substantial evidence will not be overturned even though substantial evidence supports
the opposite conclusion. Ealy, 594 F.3d at 512.
Plaintiff’s Assignments of Error
1. Treating Physician
Plaintiff argues that the ALJ violated the treating physician rule with respect to Dr.
Patel, her primary care physician. (Doc. No. 18 at 21-28.) Though Plaintiff does not
specify which opinion of Dr. Patel the ALJ improperly rejected, the Court presumes
Plaintiff refers to the opinions expressed by Dr. Patel in functional limitations set forth in
the RFC Questionnaire he completed on May 16, 2013. (Tr. 587-588.)
“An 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) (quoting 20
C.F.R. § 404.1527(d)(2)) (internal quotes omitted). 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. See Wilson, 378
F.3d at 544 (quoting S.S.R. 96-2p, 1996 WL 374188, at *5 (S.S.A.)). This “clear
elaboration requirement” is “imposed explicitly by the regulations,” Bowie v. Comm’r of
Soc. Sec., 539 F.3d 395, 400 (6th Cir. 2008), and its purpose is to “let claimants
understand the disposition of their cases” and to allow for “meaningful review” of the
ALJ’s decision, Wilson, 378 F.3d at 544 (internal quotation marks omitted). Where an
ALJ fails to explain her reasons for assigning a treating physician’s opinion less than
controlling weight, the error is not harmless and the appropriate remedy is remand. Id.
The Commissioner, on the other hand, contends that the ALJ properly gave less
weight to Dr. Patel’s opinion, particularly noting the lack of evidentiary support for Dr.
Patel’s opinion. (Doc. No. 20 at 9-12.) The decision contains the following discussion
of Dr. Patel’s opinion:
The undersigned has reviewed treating source statements from the
claimant’s primary care physician Dr. Patel and her gynecologist Dr.
Sharif5 but gives them less weight because there are inherent
inconsistencies in their opinion that reflect a lack of knowledge of the
According to Plaintiff, there is no “Dr. Sharif” in the record and believes this
must be a typographical error instead referring to her gynecologist Ramiz Masri,
M.D. (Doc. No. 21 at 4, n. 1.) The Court agrees with Plaintiff’s contention that
the ALJ surely intended to refer to Dr. Masri, as he is identified earlier in the
decision as Plaintiff’s treating gynecologist. (Tr. 18.) Moreover, Exhibit 22 (Tr. 71315), which the ALJ indicates is the source of “Dr. Sharif’s” opinion actually contains Dr.
Masri’s RFC assessment.
medical-vocational guidelines found in the rules and regulations of Social
Security disability law.
On May 16, 2013, the claimant’s treating physician (board-certified in
internal medicine) Sandeep B. Patel, M.D., prepared a residual functional
capacity assessment for the claimant (Exh. 15F). In this assessment, Dr.
Patel opined that the claimant had polyarticular joint pain from a rotator
cuff tear that caused her gait ataxia but her prognosis with ongoing
treatment was “good” (Exh. 15F, p. 2). The undersigned gives less weight
to his opinion because he opined that the claimant’s pain symptoms would
require special accommodations during the workday, which are
inconsistent the claimant’s post-operative normal physical examination
results and her ameliorative response to longitudinal post-operative
conservative treatment modalities with some chiropractic manipulation
(Exh. 15F, p. 2; but see generally Exhs. 3F; 9F; 20F; see also Exhs.
4F; 13F; see also Soc. Sec. Rul. 96-2p; 96-7p; 06-3p). Similarly, he does
not provide sufficient evidentiary support for the claimant’s exertional and
As stated above, Plaintiff does not specifically identify which of Dr. Patel’s
limitations the ALJ improperly rejected. The ALJ’s finding that Plaintiff could stand/walk
for 2 hours in an 8-hour workday is consistent with Dr. Patel’s opinion. Nevertheless,
the ALJ apparently did reject Dr. Patel’s opinion that Plaintiff could sit for only 3 hours,
Dr. Patel’s lifting restrictions, and the bulk of the manipulative restrictions.6 (Tr. 23, 58788.) The ALJ also did not find credible the need for additional breaks or Dr. Patel’s
predicted absenteeism, as those limitations were not incorporated into the RFC. (Tr.
Plaintiff argues that Dr. Patel’s alleged lack of knowledge of the
The only limitation in the RFC concerning Plaintiff’s upper extremities is a
limitation to only frequent reaching overhead with the right upper extremity. (Tr. 23.)
medical-vocational guidelines was an insufficient reason for rejecting the functional
limitations he assessed. (Doc. No. 18 at 23-24.) Standing alone, this Court agrees that
a treating physician’s lack of familiarity with social security regulations is an insufficient
basis for rejecting an opinion. If such a statement were enough, it could be universally
be invoked to discredit a treating source’s opinion. Furthermore, this is not a case
where a treating source simply opines that a patient is unemployable or disabled.
Rather, Dr. Patel’s opinion contains specific functional limitations.
Plaintiff avers that the ALJ gave less weight to Dr. Patel’s opinion because of its
inconsistencies when compared to the opinion of Plaintiff’s gynecologist, Dr. Masri.
(Doc. No. 18 at 22.) Plaintiff’s reply brief reiterates this line of argument, asserting that
“the ALJ’s decision does not find Dr. Patel’s opinion ‘internally inconsistent’ and instead
finds ‘inherent inconsistencies’ between the opinions of treating sources, Dr. Patel and
Dr. Masri.” (Doc. No. 21 at 3-4.) The Court does not agree with Plaintiff’s dubious
interpretation of the decision. The ALJ plainly found that both physicians’ opinions were
entitled to less weight as they were both inherently inconsistent – not because the two
opinions were inconsistent with one another. Thus, the Commissioner’s assertion – that
the ALJ rejected Dr. Patel’s opinion based partially on internal inconsistencies – is
correct. However, while the ALJ clearly believed such inherent inconsistencies existed,
the decision does not actually identify those inconsistencies.
The ALJ also pointed out that post-operative treatment notes yielded normal
physical examination results and that Plaintiff had a positive response to chiropractic
treatment. (Tr. 27, citing Exhs. 3F, 4F, 9F, 13F & 20F.) Again, the ALJ makes no
meaningful effort to explain how the cited portions of the record undermine Dr. Patel’s
opinion. There is case law supporting the general proposition that an ALJ’s broad
statement rejecting a treating physician's opinion without giving specific reasons for
rejecting it requires remand. See Wilson, 378 F.3d at 545 (finding that the ALJ’s
“summary dismissal” of the opinion of the claimant’s treating physician failed to satisfy
the “good reasons” requirement); Friend v. Comm’r of Soc. Sec., 375 Fed. App’x 543,
552 (6th Cir. 2010) (“Put simply, it is not enough to dismiss the treating physician’s
opinion as incompatible with other evidence of record; there must be some effort to
identify the specific discrepancies and to explain why it is the treating physician's
conclusion that gets the short end of the stick.”) By simply pointing to the medical
records that ostensibly support rejection of Dr. Patel’s opinion without offering a
corresponding explanation or analysis, the ALJ essentially invites a reviewing court to
perform its own de novo review of the record and to flesh out its own rationale as to why
Dr. Patel’s opinion should be rejected.7 Further, this is not a case in which the ALJ’s
discussion of other medical evidence and opinions in the record provides a clear basis
for rejecting the treating physician’s opinion. See, e.g., Nelson v. Comm’r of Soc. Sec.,
195 Fed. App’x 462, 470-71 (6th Cir. 2006) (finding that the ALJ’s discussion of other
medical evidence and opinions made it clear that the opinions of the claimant's treating
physicians were inconsistent with the record evidence as a whole and, thus, “implicitly
provided” sufficient reasons for rejecting their opinions). While the ALJ’s discussion of
other evidence is significant, it does not lend any insight as to why Dr. Patel’s opinion
The medical records identified reveal that, even after surgery, Plaintiff’s pain
was severe enough to require knee injections. (Tr. 454-460, 676-684, Exhs. 9F
was undeserving of significant weight.
Finally, the ALJ found that Dr. Patel’s May 2013 opinion did not provide sufficient
evidentiary support for the exertional and non-exertional limitations assessed. (Tr. 27.)
“Supportability” is one of the factors specifically set forth in the regulation. 20 C.F.R. §
404.1527(c)(3). The regulation states that “[t]he more a medical source presents
relevant evidence to support an opinion, particularly medical signs and laboratory
findings, the more weight we will give that opinion. The better an explanation a source
provides for an opinion, the more weight we will give that opinion.” (Id.) It is true that
Dr. Patel’s May 2013 opinion does not delve into any great detail as what signs or
findings support the severe limitations assessed. It simply sets forth Plaintiff’s
diagnoses and indicates her symptoms cause “pain in various joints.” (Tr. 587-88.) In
her reply brief, Plaintiff asserts that requiring an explanation “elevates form over
substance” because the “copious treatment records” obviate the need for an
explanation. (Doc. No. 21 at 2-3.) The Court does not agree that the supportability
factor is inapplicable because a treating source’s treatment notes have been made part
of the record. Nevertheless, the ALJ’s mere statement that an opinion lacks evidentiary
support, without some attempt at explanation, is insufficient.
Accordingly, the ALJ has not provided a satisfactory explanation for rejecting the
opinion of Dr. Patel, thereby frustrating the dual purposes of the “good reasons”
requirement: It neither sufficiently describes to Plaintiff the basis for the ALJ’s
conclusions concerning his treating doctor, nor provides this Court with adequate
material to conduct a meaningful review. Upon remand, the ALJ should offer an
explanation as to the weight ascribed to Dr. Patel’s opinions, including his diagnosis of
fibromyalgia (see below), that comports with social security regulations.8
2. Fibromyalgia and Non-Exertional Impairments
Plaintiff submits the ALJ erred by failing to account for her fibromyalgia. (Doc.
No. 18 at 28-31.) Plaintiff is correct that the decision does not include fibromyalgia
among Plaintiff’s severe impairments. (Tr. 17.) Nonetheless, that is not itself cause for
remand, as “a diagnosis of fibromyalgia does not automatically entitle [claimant] to
disability benefits.” Torres v. Comm'r of Soc. Sec., 490 Fed. Appx. 748, 754 (6th Cir.
2012) (citing Vance v. Comm'r of Soc. Sec., 260 F. App'x 801, 806 (6th Cir. 2008)
(emphasis in original) (citing Sarchet v. Chater, 78 F.3d 305 (7th Cir. 1996), for the
proposition that “[s]ome people may have a severe case of fibromyalgia as to be totally
disabled from working . . . but most do not and the question is whether [claimant] is one
of the minority.”)). It is also well established that the “mere diagnosis” of a condition
“says nothing” about its severity or its effect on a claimant’s ability to perform work.
Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988).
The Court has serious reservations as to whether Plaintiff has a valid diagnosis
of fibromyalgia.9 On remand, however, the ALJ should at least acknowledge that such a
As a remand is necessary based on Plaintiff’s first assignment of error, the
Court, in the interest of judicial economy, will address Plaintiff’s remaining
arguments only briefly.
Pursuant to Social Security Ruling (“SSR”) 12-2p, 2012 SSR LEXIS 1, “Titles II and
XVI: Evaluation of Fibromyalgia,” to establish fibromyalgia as a “medically determinable
impairment,” certain specific criteria must be satisfied. It is questionable whether Dr.
Patel’s non-specific mention of multiple trigger points is sufficient. But, the ALJ’s failure
to discuss the fibromyalgia diagnosis specifically prevents this Court from reviewing the
ALJ’s reasons for apparently discounting it.
diagnosis exists and explain what, if any, weight is given to such a diagnosis and
whether any limitations are necessary to account for such a condition.
b. Dr. Smith’s Assessment
Plaintiff argues that the ALJ did not properly account for her mental limitations,
specifically the limitations set forth in the opinion of examining but non-treating source
Dr. Smith. It is well established that an ALJ is not required to discuss each and every
piece of evidence in the record. See, e.g., Thacker v. Comm’r of Soc. Sec., 99 F. App’x
661, 665 (6th Cir. 2004). However, where the opinion of a medical source contradicts
his RFC finding, an ALJ must explain why he did not include its limitations in his
determination of a claimant’s RFC. See, e.g., Fleischer v. Astrue, 774 F. Supp. 2d 875,
881 (N.D. Ohio 2011) (Lioi, J.) (“In rendering his RFC decision, the ALJ must give some
indication of the evidence upon which he is relying, and he may not ignore evidence that
does not support his decision, especially when that evidence, if accepted, would change
his analysis.”). Social Security Ruling 96-8p provides, “[t]he RFC assessment must
always consider and address medical source opinions. If the RFC assessment conflicts
with an opinion from a medical source, the adjudicator must explain why the opinion
was not adopted.” SSR 96-8p, 1996 WL 374184, *7 (July 2, 1996).
First, Plaintiff does not accurately quote the ALJ’s opinion, and suggests the ALJ
found there was insufficient evidence of severe mental impairments under Dr. Smith’s
January 2012 assessment. (Doc. No. 18 at 30.) By doing so, Plaintiff incorrectly
suggests that the ALJ discredited Dr. Smith’s opinion in its entirety. To the contrary, the
decision reads that, “despite the claimant’s allegations of disabling limitations since April
1, 2009, there was insufficient evidence to establish severe mental impairments until
Dr. Smith’s assessment on January 28, 2012. (Tr. 27) (emphasis added). Rather than
categorically rejecting Dr. Smith’s opinion, as implied by Plaintiff’s inaccuracy, the
decision essentially states that Dr. Smith’s opinion marked the first point in time where
the presence of severe mental impairments was established.
Nonetheless, it is less than clear from the decision whether the ALJ actually
incorporated the limitations assessed by Dr. Smith into the RFC, or whether those
limitations were rejected due to Plaintiff’s improvement with mental health treatment.
(Tr. 27.) Although an ALJ is not required to provide “good reasons” for rejecting the
opinion of a non-treating source, if the RFC assessment conflicts with an opinion from a
medical source, the decision must provide an explanation.
3. Credibility Assessment
In Plaintiff’s last assignment of error, she challenges the ALJ’s assessment of her
credibility, alleging that it is not supported by substantial evidence. Credibility
determinations regarding a claimant’s subjective complaints rest with the ALJ, are
entitled to considerable deference, and should not be discarded lightly. See Siterlet v.
Sec’y of Health & Human Servs., 823 F.2d 918, 920 (6th Cir. 1987); Villarreal v. Sec’y of
Health & Human Servs., 818 F.2d 461, 463 (6th Cir. 1987). However, the ALJ’s
credibility determinations must be reasonable and based on evidence from the record.
See Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 249 (6th Cir. 2007); Weaver v. Sec’y
of Health & Human Servs., 722 F.2d 313, 312 (6th Cir. 1983). The ALJ also must
provide an adequate explanation for his credibility determination. “It is not sufficient to
make a conclusory statement ‘that an individual’s allegations have been considered’ or
that ‘the allegations are (or are not) credible.’” S.S.R. 96-7p, 1996 WL 374186 at *4
(S.S.A.). Rather, the determination “must contain specific reasons for the finding on
credibility, supported by evidence in the case record, and must be sufficiently specific to
make clear to the individual and to any subsequent reviewers the weight the adjudicator
gave to the individual’s statements and the reason for that weight.” Id.
Plaintiff’s credibility argument centers entirely on her alleged fibromyalgia and her
ensuing pain. (Doc. No. 18 at 31-32.) As the issue of whether Plaintiff suffers from
fibromyalgia will be addressed upon remand in a new decision, the ALJ’s decision on
that issue may very well impact the credibility of Plaintiff’s allegations of disabling pain.
Therefore, the Court deems this argument moot.
For the foregoing reasons, the final decision of the Commissioner is REVERSED
and REMANDED for proceedings consistent with this opinion.
IT IS SO ORDERED.
s/ Nancy A. Vecchiarelli
U.S. Magistrate Judge
Date: March 8, 2016
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