Martin v. Commissioner of Social Security Administration

Filing 26

Memorandum Opinion and Order that the decision of the Commissioner denying Martin's applications for disability insurance benefits and supplemental security income be reversed and remanded for further administrative proceedings. (Related Docs. # 1 , 12 ). Signed by Magistrate Judge William H. Baughman, Jr., on 09/20/2017. (S,MD)

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

THERESA MARTIN,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CASE NO. 1:16 CV 654

MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.

MEMORANDUM OPINION AND
ORDER

Introduction
Before me1 is an action by Theresa L. Martin under 42 U.S.C. § 405(g) for judicial
review of the final decision of the Commissioner of Social Security denying her applications
for disability insurance benefits and supplemental security income.2 The Commissioner has
answered3 and filed the transcript of the administrative record.4 Under my initial5 and

1

ECF # 12. The parties have consented to my exercise of jurisdiction.

2

ECF # 1.

3

ECF # 8.

4

ECF # 9.

5

ECF # 5.

procedural6 orders, the parties have briefed their positions7 and filed supplemental charts8 and
the fact sheet.9 They have participated in a telephonic oral argument.10

Facts
A.

Background facts and decision of the Administrative Law Judge (“ALJ”)
Martin who was 46 years old at the time of the administrative hearing,11 graduated

high school and completed one year of college.12 She is not married and lives alone in an
apartment.13 Martin’s past relevant employment experience includes work as a housekeeper,
and a data entry clerk.14
The ALJ, whose decision became the final decision of the Commissioner, found that
Martin had the following severe impairments: depression, anxiety, degenerative disc disease

6

ECF # 10.

7

ECF # 23 (Commissioner’s brief); ECF # 16 (Martin’s brief).

8

ECF # 23-1 (Commissioner’s charts); ECF # 16-1 (Martin’s charts).

9

ECF # 15 (Martin’s fact sheet).

10

ECF # 25.

11

ECF # 9, Transcript (“Tr.”) at 41.

12

Id. at 43.

13

Id. at 42.

14

Id. at 28.
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of the lumbar spine with disc spurring, degenerative joint disease, cervical spine; sclerosis,
and anterolisthesis and obesity 20 CFR 404.1520(c) and 416.920(c)).15
After concluding that the relevant impairments did not meet or equal a listing, the ALJ
made the following finding regarding Martin’s residual functional capacity (“RFC”):
After careful consideration of the entire record, I find that the claimant has the
residual functional capacity to perform sedentary work as defined in 20 CFR
404.1567(a) and 416.967(a) with the following additional limitations. The
claimant must be allowed to alternate between sitting and standing for brief
periods every hour, but will remain on task while doing so. The claimant can
occasionally push and pull with foot controls; occasionally balance, stoop,
kneel, crouch, crawl, and climb ramps and stairs but cannot climb ladders,
ropes, or scaffolds. The claimant is limited to unskilled work involving
simple, routine, repetitive tasks with only simple decision making; no work
requiring fast or strict production rate pace and quotas; occasional and
superficial interactions with coworkers and the public in a static environment
without conflict resolution, arbitration, or negotiation and no more than
infrequent changed in work tasks.16
Given that residual functional capacity,

the ALJ found Martin incapable of

performing her past relevant work as a housekeeper and data entry clerk.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 21.

16

Id. at 24.

17

Id. at 28.
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determined that a significant number of jobs existed locally and nationally that Martin could
perform.18 The ALJ, therefore, found Martin not under a disability.19
B.

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

Whether the ALJ erred in weighing the opinions of Ms. Martin’s
treating sources and finding that she retained the residual functional
capacity to perform substantial gainful activity.

•

Whether the ALJ erred in not including Ms. Martin’s need for a cane
in the hypothetical posed to the vocational expert.20

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

Analysis
A.

Legal Standards

1.

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

to decisions of the ALJs in disability cases:

18

Id. at 29.

19

Id.

20

ECF # 16 at 1.
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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.21

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.22 The court may not disturb the Commissioner’s
findings, even if the preponderance of the evidence favors the claimant.23
I will review the findings of the ALJ at issue here consistent with that deferential
standard.

21

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

22

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).
23

Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
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2.

Treating physician rule and good reasons requirement
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.24
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.25
The ALJ has the ultimate responsibility for determining whether a claimant is
disabled.26 Conclusory statements by the treating source that the claimant is disabled are not
entitled to deference under the regulation.27
The regulation does cover treating source opinions as to a claimant’s exertional
limitations and work-related capacity in light of those limitations.28 Although the treating

24

20 C.F.R. § 404.1527(d)(2).

25

Id.

26

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

27

Id.

28

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).
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source’s report need not contain all the supporting evidence to warrant the assignment of
controlling weight to it,29 nevertheless, it must be “well-supported by medically acceptable
clinical and laboratory diagnostic techniques” to receive such weight.30 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.31
In Wilson v. Commissioner of Social Security,32 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
the context of a disability determination.33 The court noted that the regulation expressly
contains a “good reasons” requirement.34 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.

29

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

30

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

31

Id. at 535.

32

Wilson v. Comm’r of Soc. Sec., 378 F.3d 541 (6th Cir. 2004).

33

Id. at 544.

34

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

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.35

The court went on to hold that the failure to articulate good reasons for discounting
the treating source’s opinion is not harmless error.36 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.37 The former confers a substantial, procedural right on
the party invoking it that cannot be set aside for harmless error.38 It concluded that the
requirement in § 1527(d)(2) for articulation of good reasons for not giving controlling weight
to a treating physician’s opinion created a substantial right exempt from the harmless error
rule.39
The Sixth Circuit in Gayheart v. Commissioner of Social Security40 recently
emphasized that the regulations require two distinct analyses, applying two separate
standards, in assessing the opinions of treating sources.41 This does not represent a new
interpretation of the treating physician rule. Rather it reinforces and underscores what that

35

Id. at 546.

36

Id.

37

Id.

38

Id.

39

Id.

40

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

41

Id. at 375-76.
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court had previously said in cases such as Rogers v. Commissioner of Social Security,42
Blakley v. Commissioner of Social Security,43 and Hensley v. Astrue.44
As explained in Gayheart, the ALJ must first consider if the treating source’s opinion
should receive controlling weight.45 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.46 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
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).47 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.”48

42

Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007).

43

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

44

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

45

Gayheart, 710 F.3d at 376.

46

Id.

47

Id.

48

Rogers, 486 F.3d at 242.
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The court in Gayheart cautioned against collapsing these two distinct analyses into
one.49 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.50 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,51 specifically the frequency of
the psychiatrist’s treatment of the claimant and internal inconsistencies between the opinions
and the treatment reports.52 The court concluded that the ALJ failed to provide “good
reasons” for not giving the treating source’s opinion controlling weight.53
But the ALJ did not provide “good reasons” for why Dr. Onady’s opinions fail
to meet either prong of this test.
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.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

49

Gayheart, 710 F.3d at 376.

50

Id.

51

Id.

52

Id.

53

Id.

54

Id.
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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

B.

Application of standards
The ALJ found at Step Two that Martin had severe impairments consisting of

degeneration of the lumbar and sacral spine, and depression/anxiety. The ALJ adopted a
fairly restrictive RFC that includes limiting her to sedentary work with a sit/ stand option,
and imposing mental limitations to simple, repetitive tasks. But the RFC does not mandate
the use of a cane, nor does it require a provision for unscheduled breaks or being absent.
Martin here argues that the opinions of her treating physician and treating psychiatrist
support the need for her to use a cane. Further, these opinions provide that she will require
frequent breaks and often be absent, prevent her from sustaining an 8 hour workday over a
40-hour workweek. The Commissioner, in turn, maintains that the ALJ gave good reasons
for discounting the opinions of these two medical sources, and that substantial evidence
supports the RFC.
As to the first issue of whether the ALJ properly weighed and evaluated the opinions
of the two treating sources, the ALJ gave both opinions “little weight.”57

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

Tr. at 27.

2010).

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As to the opinion of Dr. Sangnil, Martin’s treating physician, the ALJ observed that
opinions of treating sources are to be given “controlling or great weight” if they are well
supported by medically acceptable evidence and not inconsistent with the other substantial
medical evidence.58 But the ALJ then concluded that Dr. Sangnil’s opinion was “based
primarily” on Martin’s subjective complaints and was “wholly at odds” with the single x-ray
in the record, which shows “only some mild to moderate degenerative changes in the lumbar
spine,” and at odds with the “signs of negative straight leg raise testing” and a “relatively
stable gait and station.”59 In addition to these factors, the ALJ also observed that Dr.
Sangnil’s opinion was based “on two office visits.”60
In addressing the opinion of Dr. Schweid, the treating psychiatrist, the ALJ similarly
found that this opinion was at odds with the evidence showing Martin’s ability to live
independently and her “numerous GAF scores above 50.”61 The ALJ also observed that
“there is no evidence including treatment notes to support marked limitations in functioning
as well as 1-2 episodes of decompensation as defined by the agency.”62
Although the ALJ largely set forth his reasons for discounting these opinions within
a single section of the opinion, he also discussed the functional consequences of Martin’s

58

Id.

59

Id.

60

Id.

61

Id.

62

Id.
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impairments at some length in an earlier portion of the opinion, where he discussed and
weighed the opinions of state agency consulting examiners.63 Martin properly observes that
Dr. Sangnil’s treatment notes, as well as records from MetroHealth’s pain management
clinic, provide some support for Dr. Sangnil’s opinion beyond Martin’s own complaints,64
But the Commissioner correctly points out that Dr. Sangnil’s records show that Martin’s
straight leg raising test did not show any objective abnormality and that her trace reflexes
were essentially normal.65 Moreover, the records of the physical therapists at MetroHealth
include observations that Martin’s motor strength was reduced, while Dr. Sangnil
characterized it as full, and further indicated that Martin’s back pain left her restricted to bed,
or was exaggerated66 - in both instances being evidence that was inconsistent with Dr.
Sangnil’s findings.
In sum, while it may be argued that there is substantial evidence in the record to
support the giving of greater weight to Dr. Sangnil’s opinion, so too substantial evidence
exists for the weight ultimately assigned by the ALJ. In such a situation, the reviewing court
must affirm the decision of the Commissioner.
As to the weight given to Dr. Schweid, the ALJ specifically cited to multiple GAF
scores above 50, which indicate only moderate symptoms that produce no more than

63

Id. at 25-27.

64

ECF # 16 at 18-20 (citing record).

65

ECF # 23 at 13-14.

66

Id. at 16-17.
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moderate difficulties.67 As the Commissioner states, this element of the record, specifically
cited by the ALJ, is in marked contrast to Dr. Schweid’s opinion that Martin had “no useful
ability to function” in all ten categories of the area of sustained concentration and
persistence, four of five categories of social interaction, and all four categories of
adaptation.68
Significantly, the ALJ also observed that Dr. Schweid’s records do not support a
finding that Martin had one or more episodes of decompensation as defined in the
regulations.69 Martin has not contested this observation.70
Accordingly, as with the opinion of Dr. Sangnil, substantial evidence supports the
weight assigned to Dr. Schweid’s opinion.
The issue as to the use of a cane is a different matter. Here, the need for a cane is
well-documented in the record.71 The Commissioner presents several arguments on this
point: (1) the ALJ could observe Martin’s actual balance and gait and this opinion should be
deferred to; (2) other records characterized her gait as normal; (3) the advice to use a cane
only occurred three weeks before the hearing.72

67

Id. at 18-19.

68

Id. at 19.

69

Id. at 21.

70

Id. at 21-22.

71

See, e.g., tr. at 366 (Dr. Sangnil); 535-541 (physical therapist).

72

ECF # 23 at 17.
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While the ALJ’s observation of the claimant is entitled to deference, the hearing
record does not indicate that any sort of walking demonstration took place to show - one way
or the other - that Martin needed assistance with walking or balance. Observation of a seated
claimant has little bearing on the question of a need for a cane. Further, although gait may
well be normal, the matter of maintaining balance, particularly over time, is not necessarily
addressed in assessing gait.73 The use of a cane was not explicitly addressed by the ALJ
here.
As Martin points out, SSR 96-9p details circumstances where a hand-held assistive
device such as a cane may affect the relevant employment base for sedentary work.74 Here,
the VE was not given a hypothetical where the use of a cane was a factor. Because that
factor was not specifically addressed, despite numerous references to a cane in the record,
I must remand so that the ALJ may make a finding as to whether a cane is medically
necessary or merely helpful, particularly with reference to maintaining balance over an eighthour workday. Further, if it is medically necessary, the hypothetical to the VE must include
that finding.

Conclusion
Therefore, for the reasons stated, the matter is remanded for further proceedings
consistent with this opinion.

73

Unsteadiness on her feet, imbalance and risk of falling are mentioned in the
comments addressing the need for a cane. See, ECF # 16 at 23 (citing record).
74

Id. at 23-24.
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IT IS SO ORDERED.

Dated: September 20, 2017

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

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