Kempf v. Commissioner Social Security Administration

Filing 24

Memorandum Opinion and Order that the decision of the Commissioner denying Kempf's application for disability insurance benefits be reversed and the matter remanded for further administrative proceedings. (Related Docs. # 1 , 8 ). Signed by Magistrate Judge William H. Baughman, Jr., on 09/22/2017. (S,MD)

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

COLLEEN KEMPF,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CASE NO. 1:16 CV 644

MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.

MEMORANDUM OPINION AND
ORDER

Introduction
Before me1 is an action by Colleen Kempf under 42 U.S.C. § 405(g) for judicial
review of the final decision of the Commissioner of Social Security denying her application
for disability insurance benefits.2 The Commissioner has answered3 and filed the transcript
of the administrative record.4 Under my initial5 and procedural6 orders, the parties have

1

ECF # 8. The parties have consented to my exercise of jurisdiction.

2

ECF # 1.

3

ECF # 9.

4

ECF # 10.

5

ECF # 5.

6

ECF # 11.

briefed their positions7 and filed supplemental charts8 and the fact sheet.9 A telephonic oral
argument was scheduled for June 7, 2017, but was cancelled.10 After review of the briefs,
the issues presented, and the record, it was determined that this case can be decided without
oral argument, and, therefore, the telephonic oral argument was not rescheduled.

Facts
A.

Background facts and decision of the Administrative Law Judge (“ALJ”)
Kempf who was fifty-four years old at the time of the administrative hearing,11 has a

high school education with some college.12 She lives with her husband, adult daughter, and
granddaughter.13 Her past relevant employment history includes work as a financial
manager.14

7

ECF # 21 (Commissioner’s brief); ECF # 16-1 (Kempf’s brief).

8

ECF # 21-1 (Commissioner’s charts); ECF # 16, Attachments 2-5 (Kempf’s charts).

9

ECF # 16 (Kempf’s fact sheet).

10

ECF #’s 22, 23.

11

ECF # 10, Transcript (“Tr.”) at 39.

12

Id. at 41.

13

Id. at 39.

14

Id. at 43.
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The ALJ, whose decision became the final decision of the Commissioner, found that
Kempf had the following severe impairments: depression and bipolar disorder (20CFR
404.1520©).15
After concluding that the relevant impairments did not meet or equal a listing, the ALJ
made the following finding regarding Kempf’s residual functional capacity (“RFC”):
After careful consideration of the entire record, I find that the claimant,
through the date last insured, had the residual functional capacity to perform
a full range of work at all exertional levels but with the following
nonexertional limitations: the claimant could never have exposure to
unprotected heights, moving mechanical parts, operating a motor vehicle; she
must avoid concentrated exposure to humidity, wetness, extreme cold, extreme
heat, vibration, dust, odors, fumes and pulmonary irritants and she could have
exposure to noise found in a normal office setting. She is limited to simple,
routine tasks; simple work-related decisions; occasional interaction with
supervisors and coworkers and no interaction with the public.16
Given that residual functional capacity, the ALJ found Kempf incapable of performing her
past relevant work as financial manager.17
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

15

Id. at 20.

16

Id. at 22.

17

Id. at 26.
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determined that a significant number of jobs existed locally and nationally that Kempf could
perform.18 The ALJ, therefore, found Kempf not under a disability.19
B.

Issues on judicial review
Kempf 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, Kempf
presents the following issues for judicial review:
•

Whether the ALJ erred in rejecting the opinions of plaintiff’s treating
physicians.20

•

Whether the ALJ’s credibility analysis is supported by substantial
evidence.21

For the reasons that follow, I conclude that the ALJ’s finding of no disability is not
supported by substantial evidence and, therefore, must be reversed and remanded.

Analysis
A.

Standard of review - substantial evidence
The Sixth Circuit in Buxton v. Halter reemphasized the standard of review applicable

to decisions of the ALJs in disability cases:
Congress has provided for federal court review of Social Security
administrative decisions. 42 U.S.C. § 405(g). However, the scope of review is
18

Id. at 27.

19

Id. at 28.

20

ECF #16-1, at 1.

21

Id.
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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.22
Viewed in the context of a jury trial, all that is necessary to affirm is that reasonable minds
could reach different conclusions on the evidence. If such is the case, the Commissioner
survives “a directed verdict” and wins.23 The court may not disturb the Commissioner’s
findings, even if the preponderance of the evidence favors the claimant.24
I will review the findings of the ALJ at issue here consistent with that deferential
standard.

22

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

23

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).
24

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

Application of legal standards

1.

The assignment of little weight to the opinion of the treating psychiatrist, Dr.
Heather, does not have the support of substantial evidence.
In determining the weight assigned to Kempf’s treating psychiatrist, Dr. Heather, the

ALJ assigned “little weight.”25 The ALJ sets out the reasons for the weight assigned in the
paragraph in which he assigns that weight.26
I have set out in great detail the legal standards applicable to judicial review of the
weight assigned by ALJs to opinions of treating sources in a number of my prior decisions,
and in particular in Smith v. Commissioner of Social Security,27 which in relevant part I
incorporate by reference here.
Without question, if given controlling or substantial weight, the opinion of Dr.
Heather would have required a finding of disability as of November or December of 2011,
before the date of last insured. Dr. Heather provided a detailed RFC, which included specific
limitations with narratives.28 He had a treating relationship from November 17, 2011 to at
least May 30, 2013, the date of his RFC opinion, which involve office visits at least

25

Tr. at 26.

26

Id.

27

Smith v. Comm’n of Soc. Sec., 5:13 CV 870, 2014WL1944247, at **2-8 (N.D.Ohio
May 14, 2014).
28

Tr. at 1154-56.
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monthly.29 He opined that Kempf’s limitations existed as of the date of the first visit, and her
disabilities were established as of December 2011.30
The Commissioner does not and cannot maintain that the onset of Kempf’s disability
in close proximity to the date of last insured disqualifies her from eligibility for benefits. As
the Sixth Circuit held in Garner v. Heckler,31 a claimant “must establish ‘the onset of
disability prior to the expiration of his insured status.’”32 He need not prove, however, that
he was disabled for a full twelve months before the date of last insured.33
Beyond question the ALJ’s articulation as to the weight assigned to Dr. Heather’s
opinion does not meet the two tier analysis requirements provided for by the regulations and
explained in the Sixth Circuit’s decision in Gayheart v. Commissioner of Social Security.34
Although it may be arguable that unreported decision of the Circuit provide for some lenity
where the ALJ provides some good reasons for the weight assigned, if those reasons are
comprehensive enough to include the criteria provided for in each tier of the Gayheart
analysis, the ALJ’s effort her does not qualify for that lenity.

29

Id. at 1154.

30

Id. at 1163.

31

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

32

Id. at 390. Also Mousa v. Comm’n of Soc. Sec., 1:16 CV 352, 2017WL191435, at
*3 (W.D. Mich. Jan. 18, 2017).
33

Id.

34

Gayheart v. Comm’n of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013).
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Essentially the ALJ gives one over-arching reason for the weight assigned - conflict
with the medical evidence before the onset of Kempf’s treating relationship with Dr. Heather.
Although this may be a fair observation, requiring the finding of an onset date in November
or December of 2011, it does not provide sufficient reason to discount Dr. Heather’s opinion.
In fact the ALJ’s statements acknowledge that Kempf experienced “highs and lows”35 and
“exacerbation periods.”36 This is not inconsistent with Dr. Heather’s opinion that Kempf
experienced exacerbation in November of 2011 that continued at least into mid-2013.37 The
ALJ made no reference to the credentials of the treating source -a psychiatrist and the
Director of the University Hospitals of Cleveland Mood Disorder Intensive Outpatient
Program - which is a significant factor under Gayheart’s Tier 2 analysis.
The ALJ did not give good reasons for refusing to give Dr. Heather’s opinion
controlling or substantial weight or for giving that opinion only little weight.

The

Commissioner’s decision to deny benefits must be reversed and remanded.
2.

Instructions on remand
The ALJ’s error here does not necessarily require a finding of disability and an award

of benefits on remand. As my analysis above states, the substantial evidence does support
the ALJ’s RFC finding until approximately November of 2011. At best, if the opinion of Dr.
35

Tr.at 26.

36

Id.

37

Acceptance of Dr. Heather’s opinion “as of the date it was signed,” as assumed
arguendo by the ALJ (Tr.at 26), would further support that Kempf’s disability met the 12month durational requirement,
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Heather receives increased weight, it would support an onset date in November or December
of 2011. The ALJ, therefore, may need to make a finding as to this onset date, which may
require the testimony of a medical expert. Accordingly, if the ALJ gives increased weight
to Dr. Heather’s opinion, the RFC finding must be reconsidered.

As part of this

reconsideration, the credibility of Kemph’s statements as to the intensity, persistence, and
limiting effects of her symptoms must be reevaluated.
The ALJ should properly articulate as to both the weight assigned to Dr. Heather’s
opinion and the Kempf’s credibility consistent with the standards set out in my decisions in
Smith v. Commissioner of Social Security38 and Cross v. Commissioner of Social Security.39

Conclusion
Substantial evidence does not support the finding of the Commissioner that Kempf
had no disability. Accordingly, the decision of the Commissioner denying Kempf disability
insurance benefits is reversed and remanded for further proceedings consistent with this
decision.
IT IS SO ORDERED.

Dated: September 22, 2017

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

38

Smith v. Comm’r Soc. Sec., 2014WL1944247, at *8.

39

Cross v. Comm’r Soc. Sec., 373 F.Supp.2d 724, 732-33 (N.D.Ohio 2005).
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