Gearhart v. Commissioner of Social Security Administration

Filing 22

Memorandum Opinion and Order that the decision of the Commissioner denying Gearhart's applications for disability insurance benefits and supplemental security income is affirmed. (Related Docs. # 1 , 20 ). Signed by Magistrate Judge William H. Baughman, Jr., on 1/31/2017. (S,MD)

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

DENNIS GEARHART,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CASE NO. 1:15 CV 2110

MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.

MEMORANDUM OPINION AND
ORDER

Introduction
Before me1 is an action for judicial review of the final decision of the Commissioner
of Social Security denying the applications of the plaintiff, Dennis Richard Gearhart, for
disability insurance benefits and supplemental security income.2 The Commissioner has
answered3 and filed the transcript of the administrative record.4 Under the initial order5 the
parties have briefed their positions6 They have participated in a telephonic oral argument.7

1

ECF # 20. The parties have consented to my exercise of jurisdiction.

2

ECF # 1.

3

ECF # 9.

4

ECF #10 .

5

ECF # 5.

6

ECF # 17 (Commissioner’s brief); ECF # 14 (Gearhart’s brief).

7

ECF # 21.

Facts
A.

Background facts and decision of the Administrative Law Judge (“ALJ”)
Gearhart who was 52 years old at the time of the administrative hearing,8 has a high

school education and attended Tri-C Community College for one year.9 He lives with his
sister10 and his past relevant employment history includes warehouse worker and furniture
assembler, installer, mover and truck driver.11
The Administrative Law Judge (“ALJ”), whose decision became the final decision of
the Commissioner, found that Gearhart had severe impairments consisting of asthma,
emphysema, affective disorders, and alcohol/substance addiction disorders (20 CFR
404.1520(c) and 416.920(c)).12 The ALJ made the following finding regarding Gearhart’s
residual functional capacity:
The claimant has the residual functional capacity to perform medium work as
defined in 20 CFR 404.1567(c) and 416.967(c) except the claimant must avoid
all exposure to fumes, odors, dusts, gases, poor ventilation, etc. Mentally, the
claimant has the capacity to perform simple and some complex tasks.13

8

ECF # 10, Transcript (“Tr.”) at 590.

9

Id. at 514.

10

Id. at 518.

11

Id. at 500.

12

Id. at 490.

13

Id. at 493.
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Given that residual functional capacity, the ALJ found Gearhart capable of his past
relevant work as warehouse worker and furniture assembler and, therefore, not under a
disability.14
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 Gearhart could
perform.15
B.

Issues on judicial review
Gearhart 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,
Gearhart presents the following for judicial review:16
•

Whether the ALJ erred in her determination of the plaintiff’s residual
functional capacity by excluding all evidence from plaintiff’s treating
physicians.

•

Whether the ALJ erred in her determination of the plaintiff’s residual
functional capacity by devaluing evidence in which she otherwise afforded the
greatest evidentiary weight.

The Court concludes that the ALJ’s finding of no disability is supported by substantial
evidence and, therefore, must be affirmed.

14

Id. at 500.

15

Id. at 501

16

ECF # 14 at 1.
-3-

Analysis
A.

Standards of review

1.

Substantial evidence
The Sixth Circuit in Buxton v. Halter reemphasized the standard of review applicable

to decisions of the ALJs in disability cases:
Congress has provided for federal court review of Social Security
administrative decisions. 42 U.S.C. § 405(g). However, the scope of review is
limited under 42 U.S.C. § 405(g): “The findings of the Secretary as to any fact,
if supported by substantial evidence, shall be conclusive....” In other words, on
review of the Commissioner’s decision that claimant is not totally disabled
within the meaning of the Social Security Act, the only issue reviewable by
this court is whether the decision is supported by substantial evidence.
Substantial evidence is “ ‘more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.’ ”

The findings of the Commissioner are not subject to reversal merely
because there exists in the record substantial evidence to support a different
conclusion. This is so because there is a “zone of choice” within which the
Commissioner can act, without the fear of court interference.17

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

17

Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (citations omitted).
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survives “a directed verdict” and wins.18 The court may not disturb the Commissioner’s
findings, even if the preponderance of the evidence favors the claimant.19
I will review the findings of the ALJ at issue here consistent with that deferential
standard.
2.

The treating source and good reasons rule
The regulations of the Social Security Administration require the Commissioner to

give more weight to opinions of treating sources than to those of non-treating sources under
appropriate circumstances.
Generally, we give more weight to opinions from your treating sources, since
these sources are likely to be the medical professionals most able to provide
a detailed, longitudinal picture of your medical impairment(s) and may bring
a unique perspective to the medical evidence that cannot be obtained from
objective medical findings alone or from reports of individual examinations,
such as consultative examinations or brief hospitalizations.20
If such opinions are “well-supported by medically acceptable clinical and laboratory
diagnostic techniques” and “not inconsistent with the other substantial evidence in [the] case
record,” then they must receive “controlling” weight.21

18

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).
19

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

20

20 C.F.R. § 404.1527(d)(2).

21

Id.
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The ALJ has the ultimate responsibility for determining whether a claimant is
disabled.22 Conclusory statements by the treating source that the claimant is disabled are not
entitled to deference under the regulation.23
The regulation does cover treating source opinions as to a claimant’s exertional
limitations and work-related capacity in light of those limitations.24 Although the treating
source’s report need not contain all the supporting evidence to warrant the assignment of
controlling weight to it,25 nevertheless, it must be “well-supported by medically acceptable
clinical and laboratory diagnostic techniques” to receive such weight.26 In deciding if such
supporting evidence exists, the Court will review the administrative record as a whole and
may rely on evidence not cited by the ALJ.27
In Wilson v. Commissioner of Social Security,28 the Sixth Circuit discussed the treating
source rule in the regulations with particular emphasis on the requirement that the agency
“give good reasons” for not affording controlling weight to a treating physician’s opinion in

22

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

23

Id.

24

Swain v. Comm’r of Soc. Sec., 297 F. Supp. 2d 986, 991 (N.D. Ohio 2003), citing
Green-Younger v. Barnhart, 335 F.3d 99, 106-07 (2nd Cir. 2003).
25

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

26

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

27

Id. at 535.

28

Wilson v. Comm’r of Soc. Sec., 378 F.3d 541 (6th Cir. 2004).
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the context of a disability determination.29 The court noted that the regulation expressly
contains a “good reasons” requirement.30 The court stated that to meet this obligation to give
good reasons for discounting a treating source’s opinion, the ALJ must do the following:
•

State that the opinion is not supported by medically acceptable clinical
and laboratory techniques or is inconsistent with other evidence in the
case record.

•

Identify evidence supporting such finding.

•

Explain the application of the factors listed in 20 C.F.R.
§ 404.1527(d)(2) to determine the weight that should be given to the
treating source’s opinion.31

The court went on to hold that the failure to articulate good reasons for discounting
the treating source’s opinion is not harmless error.32 It drew a distinction between a
regulation that bestows procedural benefits upon a party and one promulgated for the orderly
transaction of the agency’s business.33 The former confers a substantial, procedural right on
the party invoking it that cannot be set aside for harmless error.34 It concluded that the
requirement in § 1527(d)(2) for articulation of good reasons for not giving controlling weight

29

Id. at 544.

30

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

31

Id. at 546.

32

Id.

33

Id.

34

Id.
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to a treating physician’s opinion created a substantial right exempt from the harmless error
rule.35
The Sixth Circuit in Gayheart v. Commissioner of Social Security36 recently
emphasized that the regulations require two distinct analyses, applying two separate
standards, in assessing the opinions of treating sources.37 This does not represent a new
interpretation of the treating physician rule. Rather it reinforces and underscores what that
court had previously said in cases such as Rogers v. Commissioner of Social Security,38
Blakley v. Commissioner of Social Security,39 and Hensley v. Astrue.40
As explained in Gayheart, the ALJ must first consider if the treating source’s opinion
should receive controlling weight.41 The opinion must receive controlling weight if
(1) well-supported by clinical and laboratory diagnostic techniques and (2) not inconsistent
with other substantial evidence in the administrative record.42 These factors are expressly set
out in 20 C.F.R. §§ 404.1527(d)(2) and 416.927(d)(2). Only if the ALJ decides not to give

35

Id.

36

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

37

Id. at 375-76.

38

Rogers 486 F.3d at 242.

39

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

40

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

41

Gayheart, 710 F.3d at 376.

42

Id.
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the treating source’s opinion controlling weight will the analysis proceed to what weight the
opinion should receive based on the factors set forth in 20 C.F.R. §§ 404.1527(d)(2)(i)-(ii),
(3)-(6) and §§ 416.927(d)(2)(i)-(ii), (3)-(6).43 The treating source’s non-controlling status
notwithstanding, “there remains a presumption, albeit a rebuttable one, that the treating
physician is entitled to great deference.”44
The court in Gayheart cautioned against collapsing these two distinct analyses into
one.45 The ALJ in Gayheart made no finding as to controlling weight and did not apply the
standards for controlling weight set out in the regulation.46 Rather, the ALJ merely assigned
the opinion of the treating physician little weight and explained that finding by the secondary
criteria set out in §§ 1527(d)(i)-(ii), (3)-(6) of the regulations,47 specifically the frequency of
the psychiatrist’s treatment of the claimant and internal inconsistencies between the opinions
and the treatment reports.48 The court concluded that the ALJ failed to provide “good
reasons” for not giving the treating source’s opinion controlling weight.49
But the ALJ did not provide “good reasons” for why Dr. Onady’s opinions fail
to meet either prong of this test.
43

Id.

44

Rogers, 486 F.3d at 242.

45

Gayheart, 710 F.3d at 376.

46

Id.

47

Id.

48

Id.

49

Id.
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To be sure, the ALJ discusses the frequency and nature of Dr. Onady’s
treatment relationship with Gayheart, as well as alleged internal
inconsistencies between the doctor’s opinions and portions of her reports. But
these factors are properly applied only after the ALJ has determined that a
treating-source opinion will not be given controlling weight.50
In a nutshell, the Wilson/Gayheart line of cases interpreting the Commissioner’s
regulations recognizes a rebuttable presumption that a treating source’s opinion should
receive controlling weight.51 The ALJ must assign specific weight to the opinion of each
treating source and, if the weight assigned is not controlling, then give good reasons for not
giving those opinions controlling weight.52 In articulating good reasons for assigning weight
other than controlling, the ALJ must do more than state that the opinion of the treating
physician disagrees with the opinion of a non-treating physician53 or that objective medical
evidence does not support that opinion.54
The failure of an ALJ to follow the procedural rules for assigning weight to the
opinions of treating sources and the giving of good reason for the weight assigned denotes

50

Id.

51

Rogers, 486 F.3d 234 at 242.

52

Blakley, 581 F.3d at 406-07.

53

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

54

Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 551-52 (6th Cir. 2010).
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a lack of substantial evidence even if the decision of the ALJ may be justified based on the
record.55 The Commissioner’s post hoc arguments on judicial review are immaterial.56
Given the significant implications of a failure to properly articulate (i.e., remand)
mandated by the Wilson decision, an ALJ should structure the decision to remove any doubt
as to the weight given the treating source’s opinion and the reasons for assigning such
weight. In a single paragraph the ALJ should state what weight he or she assigns to the
treating source’s opinion and then discuss the evidence of record supporting that assignment.
Where the treating source’s opinion does not receive controlling weight, the decision must
justify the assignment given in light of the factors set out in §§ 1527(d)(1)-(6).
The Sixth Circuit has identified certain breaches of the Wilson rules as grounds for
reversal and remand:
•

the failure to mention and consider the opinion of a treating source,57

•

the rejection or discounting of the weight of a treating source without
assigning weight,58

•

the failure to explain how the opinion of a source properly considered
as a treating source is weighed (i.e., treating v. examining),59

55

Blakley, 581 F.3d at 407.

56

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

57

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

58

Id. at 408.

59

Id.

2010).

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•

the elevation of the opinion of a nonexamining source over that of a
treating source if the nonexamining source has not reviewed the
opinion of the treating source,60

•

the rejection of the opinion of a treating source because it conflicts with
the opinion of another medical source without an explanation of the
reason therefor,61 and

•

the rejection of the opinion of a treating source for inconsistency with
other evidence in the record without an explanation of why “the treating
physician’s conclusion gets the short end of the stick.”62

The Sixth Circuit in Blakley63 expressed skepticism as to the Commissioner’s
argument that the error should be viewed as harmless since substantial evidence exists to
support the ultimate finding.64 Specifically, Blakley concluded that “even if we were to agree
that substantial evidence supports the ALJ’s weighing of each of these doctors’ opinions,
substantial evidence alone does not excuse non-compliance with 20 C.F.R. § 404.1527(d)(2)
as harmless error.”65
In Cole v. Astrue,66 the Sixth Circuit reemphasized that harmless error sufficient to
excuse the breach of the treating source rule only exists if the opinion it issues is so patently

60

Id. at 409.

61

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

62

Friend, 375 F. App’x at 551-52.

63

Blakley, 581 F.3d 399.

64

Id. at 409-10.

65

Id. at 410.

66

Cole v. Astrue, 661 F.3d 931 (6th Cir. 2011).
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deficient as to make it incredible, if the Commissioner implicitly adopts the source’s opinion
or makes findings consistent with it, or if the goal of the treating source regulation is satisfied
despite non-compliance.67
B.

Application of standards
Gearhart essentially contends that the RFC in this matter is flawed by not including

additional limitations. In that regard, Gearhart maintains that additional mental limitations
would have been required if the functional capacity opinion of his treating psychiatrist, Dr.
Christian Steiner, was properly analyzed by the ALJ and then given greater weight.68
As noted above, the RFC in this case addresses any mental limitations by stating that
Gearhart has the capacity to perform “simple, and some complex tasks.”69 To support that
conclusion, the ALJ cited the results of a 2012 consultative physical examination by Dr.
Edward Butler, M.D., and a 2012 consultative psychological by Dr. Charles Misja, Ph.D.70
The ALJ noted that Dr. Misja concluded that Gearhart “would have no problems
understanding and implementing instructions, minimal problems with concentration,
persistence and pace, minor to moderate problems responding to supervision and co-workers,
and minor problems related to work stress.”71 The ALJ gave “great weight” to this opinion

67

Id. at 940.

68

ECF # 14 at 10-11.

69

Tr. at 493.

70

Id. at 496-97.

71

Id. at 497.
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from Dr. Misja, stating that it was well supported by clinical findings and by the prior
findings of Dr. Butler.72
By contrast, the ALJ observed that Dr. Steiner had recorded only “mild” symptoms
of anger and poor concentration, and in 2013 had made treatment notes that Gearhart, while
taking his medication, was “calmer,” with normal attention, concentration, recall, good
judgment and insight.73 The ALJ further observed that in 2014 Dr. Steiner had found in an
office visit with Gearhart that his temper was under control, his thought process logical and
organized, and his attention, concentration and recall were within normal limits.74
The ALJ assigned “little weight” to Dr. Steiner’s functional opinion, noting that this
opinion was not supported by the examination findings of Dr. Butler, the opinion and
findings of Dr. Misja, and the previously cited treatment notes of Dr. Steiner himself.75 The
ALJ also observed that these factors also meant that Gearhart’s own complaints of
depression, rage and irritability were not supported by the findings of the medical
professionals.76 Therefore, in the end, the ALJ concluded that the mental limitations of the
RFC were based on the opinions of the state agency consulting psychologist, Dr. Misja.77

72

Id.

73

Id.

74

Id.

75

Id. at 500.

76

Id.

77

Id.
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Although the ALJ does not strictly conform to the analytical framework set forth in
Gayheart, and even fails to explicitly identify Dr. Steiner as a treating source, the ALJ does
extensively discuss both Dr. Misja’s examination and findings, as well as the treatment notes
of Dr. Steiner covering 2013-2014.78 The ALJ then further discusses with some specificity
the differences between Dr. Steiner’s functional opinion and Gearhart’s own assertions,79 and
the areas in which Dr. Steiner’s opinion is inconsistent with his own treatment notes, as well
as the opinion of Dr. Misja.80
Gearhart’s objection to the formulation of the RFC here center first on the allegation
that the ALJ neglected to consider significant objective evidence in support of the opinion
of Dr. Steiner, such as brain MRIs and CT scans.81 In that regard, Gearhart claims that this
objective evidence establishes that he cannot process complex tasks, nor interact with others
without limitation.82 Moreover, Gearhart also asserts that the ALJ “cherry-picked” Dr.
Misja’s findings by discounting the value of a GAF score of 50 assigned by Dr. Maija.83
But, as the Commissioner notes, the mere diagnosis of a medical condition, such as
is found in the MRIs and CT scans, does not of itself provide an indication of the condition’s

78

Id. at 496-97.

79

Id. at 497-98, 500.

80

Id. at 500.

81

ECF # 14 at 11.

82

Id.

83

Id. at 13.
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severity, nor of any functional limitations that may be ascribed to that condition. As
discussed above, the ALJ cited a number of instances where Dr. Steiner’s own treatment
notes from the relevant period showed a logical and ordered thought process with normal
attention, concentration and recall.
Further, and consistent with the principle that mere diagnosis is not as important as
any functional limit that can be shown to arise from the diagnosed condition, the
Commissioner also observes that the mere assessment of a GAF score of 50 is not per se
disabling.84 In addition, the ALJ here specifically noted that Dr. Misja, who assigned the
GAF score, also found that despite his GAF score Gearhart would have only minimal
limitations.85

Conclusion
Accordingly, and for the reasons stated above, I find that the decision of the
Commissioner that Dennis Richard Gearhart is not disabled is supported by substantial
evidence and so is affirmed.

Dated: January 31, 2017

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

84

DeBoard v. Comm’r of Soc. Sec., 211 F. App’x 411, 415 (6th Cir. 2006)(collecting

85

Tr. at 497.

cases).

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