McFarland v. Commissioner of Social Security Administration

Filing 21

Memorandum Opinion and Order that the decision of the Commissioner denying McFarland's application for supplemental security income is reversed and remanded for further administrative proceedings. (Related Docs. 1 , 7 ). Signed by Magistrate Judge William H. Baughman, Jr., on 03/29/2018. (S,MD)

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

ANDRE McFARLAND,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CASE NO. 1:17 CV 518

MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.

MEMORANDUM OPINION AND
ORDER

Introduction
Before me1 is an action by Andre McFarland under 42 U.S.C. § 405(g) for judicial
review of the final decision of the Commissioner of Social Security denying his application
for supplemental security income.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 # 7. The parties have consented to my exercise of jurisdiction.

2

ECF # 1.

3

ECF # 9.

4

ECF # 10.

5

ECF # 5.

6

ECF # 13.

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”)
McFarland who was 48 years old at the time of the administrative hearing,11 has an

11th grade education.12 His past relevant employment experience includes work as a
dishwasher/kitchen worker, and security guard.13
The ALJ, whose decision became the final decision of the Commissioner, found that
McFarland had the following severe impairments: HIV, post-traumatic stress disorder
(PTSD), depression, degenerative disc disease and cervical spondylosis without myelopathy,
and diabetes with right arm neuropathy (20 CFR 404.1520(c) and 416.920(c).14
After concluding that the relevant impairments did not meet or equal a listing, the ALJ
made the following finding regarding McFarland’s residual functional capacity (“RFC”):
7

ECF # 18 (Commissioner’s brief); ECF # 17 (McFarland’s brief).

8

ECF # 18-1 (Commissioner’s charts); ECF # 17-1 (McFarland’s charts).

9

ECF # 16 (McFarland’s fact sheet).

10

ECF # 20.

11

ECF # 16 at 1.

12

Id.

13

Id.

14

Transcript (“Tr.”) at 16.
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After careful consideration of the entire record, I find that the claimant has the
residual functional capacity to perform light work as defined in 20 CFR
404.1567 (b) and 416.967(b) except that he can lift and/or carry up to 20
pounds occasionally and 10 pounds frequently. He is able to sit for a total of
6 hours and stand and/or walk fora total of 6 hours out of an 8-hour workday.
The claimant can occasionally push/pull and occasionally operate foot controls
with bilateral lower extremities. The claimant can frequently reach overhead
bilaterally and frequently handle, finger, and feel bilaterally. The claimant can
occasionally climb ramps and stairs, but he can never climb ladders, ropes, and
scaffolds. The claimant can occasionally balance, frequently stoop, and
occasionally kneel, crouch, and crawl. The claimant can have no more than
occasional exposure to unprotected heights and moving mechanical parts. He
can perform no commercial driving. The claimant is limited to performing
simple, routine, and repetitive tasks but not at a production rate pace (e.g.,
assembly line work). He can have occasional interaction with coworkers,
supervisor and the general public. The claimant can tolerate occasional
changes in the workplace that can be easily explained. In addition to normal
breaks, the claimant would be off task 10 percent of the time in an 8-hour
workday.15
The ALJ decided that this residual functional capacity precluded McFarland from
performing his past relevant work as a dishwasher/kitchen worker and security guard.16
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 that McFarland
could perform.17 The ALJ, therefore, found McFarland not under a disability.18

15

Id. at 18.

16

Id. at 22.

17

Id. at 23.

18

Id. at 24.
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B.

Issues on judicial review
McFarland 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,
McFarland presents the following issue for judicial review:
•

Whether the ALJ’s violated the treating physician rule resulting in an
improper assessment of plaintiff’s residual functional capacity.19

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

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.’ ”

19

ECF # 17 at 1.
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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.20
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.21 The court may not disturb the Commissioner’s
findings, even if the preponderance of the evidence favors the claimant.22
I will review the findings of the ALJ at issue here consistent with that deferential
standard.
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.23

20

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

21

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).
22

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

23

20 C.F.R. § 404.1527(d)(2).
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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.24
The ALJ has the ultimate responsibility for determining whether a claimant is
disabled.25 Conclusory statements by the treating source that the claimant is disabled are not
entitled to deference under the regulation.26
The regulation does cover treating source opinions as to a claimant’s exertional
limitations and work-related capacity in light of those limitations.27 Although the treating
source’s report need not contain all the supporting evidence to warrant the assignment of
controlling weight to it,28 nevertheless, it must be “well-supported by medically acceptable
clinical and laboratory diagnostic techniques” to receive such weight.29 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.30

24

Id.

25

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

26

Id.

27

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).
28

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

29

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

30

Id. at 535.
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In Wilson v. Commissioner of Social Security,31 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.32 The court noted that the regulation expressly
contains a “good reasons” requirement.33 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.34

The court went on to hold that the failure to articulate good reasons for discounting
the treating source’s opinion is not harmless error.35 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.36 The former confers a substantial, procedural right on

31

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

32

Id. at 544.

33

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

34

Id. at 546.

35

Id.

36

Id.
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the party invoking it that cannot be set aside for harmless error.37 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.38
The Sixth Circuit in Gayheart v. Commissioner of Social Security39 recently
emphasized that the regulations require two distinct analyses, applying two separate
standards, in assessing the opinions of treating sources.40 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,41
Blakley v. Commissioner of Social Security,42 and Hensley v. Astrue.43
As explained in Gayheart, the ALJ must first consider if the treating source’s opinion
should receive controlling weight.44 The opinion must receive controlling weight if
(1) well-supported by clinical and laboratory diagnostic techniques and (2) not inconsistent

37

Id.

38

Id.

39

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

40

Id. at 375-76.

41

Rogers, 486 F.3d at 242.

42

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

43

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

44

Gayheart, 710 F.3d at 376.
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with other substantial evidence in the administrative record.45 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).46 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.”47
The court in Gayheart cautioned against collapsing these two distinct analyses into
one.48 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.49 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,50 specifically the frequency of
the psychiatrist’s treatment of the claimant and internal inconsistencies between the opinions

45

Id.

46

Id.

47

Rogers, 486 F.3d at 242.

48

Gayheart, 710 F.3d at 376.

49

Id.

50

Id.
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and the treatment reports.51 The court concluded that the ALJ failed to provide “good
reasons” for not giving the treating source’s opinion controlling weight.52
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.53
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.54 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.55 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 physician56 or that objective medical
evidence does not support that opinion.57
51

Id.

52

Id.

53

Id.

54

Rogers, 486 F.3d 234 at 242.

55

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

56

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

57

Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 551-52 (6th Cir. 2010).
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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
a lack of substantial evidence even if the decision of the ALJ may be justified based on the
record.58 The Commissioner’s post hoc arguments on judicial review are immaterial.59
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,60

•

the rejection or discounting of the weight of a treating source without
assigning weight,61

58

Blakley, 581 F.3d at 407.

59

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

60

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

61

Id. at 408.

2010).

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•

the failure to explain how the opinion of a source properly considered
as a treating source is weighed (i.e., treating v. examining),62

•

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,63

•

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,64 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.”65

The Sixth Circuit in Blakley66 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.67 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.”68

62

Id.

63

Id. at 409.

64

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

65

Friend, 375 F. App’x at 551-52.

66

Blakley, 581 F.3d 399.

67

Id. at 409-10.

68

Id. at 410.
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In Cole v. Astrue,69 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
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.70
B.

Application of standards
The single issue for decision in this case is the weight given to the RFC opinion of Dr.

Robert Kalayjian, M.D., McFarland’s treating physician.71
The ALJ initially recognized Dr. Kalayjian as a treating source.72

He then

summarized Dr. Kalayjian’s functional opinion as stating that McFarland could “only
occasionally lift five pounds due to myelopathy of the upper extremities, and he could stand
or walk for a total of one hour out of an 8-hour workday due to peripheral neuropathy and
could rarely perform postural and manipulative activities.”73 But then, without assigning a
specific weight to this opinion,74 the ALJ stated that “[t]he medical evidence of record,

69

Cole v. Astrue, 661 F.3d 931 (6th Cir. 2011).

70

Id. at 940.

71

ECF # 17 at 9.

72

Tr. at 21.

73

Id. (citing transcript).

74

The ALJ assigned “less weight” to Dr. Kalayjian’s opinion than the “moderate
weight” that was given to the opinions of Dr. Leanne Bertani, M.D., and Dr. Esberdado
Villanueva, M.D., state agency reviewing physicians. Id. at 21.
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including the doctor’s own treatment notes showing full strength of the bilateral upper and
lower extremities, does not support the extent of the limitations given.”75
In fashioning the RFC, the ALJ here relied to some degree, as noted, on the opinions
of Dr. Bertani and Dr. Villanueva, but then stated that McFarland “has additional limitations
especially with respect to handling, reaching, and fingering due to neuropathic symptoms of
his upper right hand discussed above.”76 That limitation, as outlined by the ALJ, was that
McFarland “has symptoms of decreased sensation of the right hand, but full strength of his
bilateral upper extremities.”77
It is noted initially that although the ALJ’s reason for affording “less weight” to Dr.
Kalayjian’s opinion is not extensive, it contains one specific statement that Dr. Kalayjian’s
own treatment notes show full strength of McFarland’s bilateral upper and lower extremities.
Such a finding, without more, could be inconsistent with Dr. Kalayjian’s RFC opinion that
McFarland could only lift five pounds occasionally due to myelopathy of his upper and lower
extremities.
In that regard, I observe that in reviewing Dr. Kalayjian’s treatment notes they show:
(1)

complaints in October 2014 about “worsening numbness involving R hand”
together with “hand and arm numbness” that had existed for a month, although

75

Id. at 21-22 (citing transcript).

76

Id. at 21.

77

Id. at 20.
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the physical exam that date showed “strength is symetric [sic] at 5/5 both ue
[sic] including grip, biceps and deltoid;”78
(2)

the next visit, in February 2015,79 discloses no complaints about numbness and
no evaluation for strength;

(3)

a June 2015 consult with a neurologist, ordered by Dr. Kalayjian, showed that
McFarland told the physician that he is experiencing arm pain in his right arm
extending to the hand; that he is “dropping things” and his grip is “less
strong;” the summary was weakness on the right side, with numbness in the
hand and feet; an examination showed strength readings of 5 for all upper and
lower extremities, but a sensory examination found “decreased right hand
entire and both feet distally;”further examination showed “moderately severe
degenerative diseases”of the spine;80

(4)

a June 2015 visit with Dr. Kalayjian includes notes of “R arm neuropathy with
intermittent weakness in the R hand. Works as a dishwasher - dropping;”
again, a strength test showed 5/5 strength bilaterally in the hands and
shoulders, but noted that there was “reduced sensation of R dorsal hand vs L;
81
the final summary included a reference to “hand weakness;”82

(5)

an office visit in March 2016 contains notes of “hand weakness/numbness,
cervical spine xray with degenerative disease;”83

(6)

Dr. Kalayjian submitted his medical source statement on April 4, 2016.84

78

Id. at 1324.

79

Id. at 1334-37.

80

Id. at 1359-67.

81

Id. at 1370.

82

Id. at 1372.

83

Id. at 1383.

84

Id. at 1377-79.
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As this foregoing review of the treatment notes makes clear, the fact that McFarland
retained strength in his upper extremities is not inconsistent with him having reduced
sensation in his hands, which numbness restricts his ability to grip and lift. Indeed, the ALJ
himself, as discussed above, noted that same restriction in adopting an RFC with greater
limitations than those recognized by the state agency reviewers.
In short, there appears to be no internal inconsistencies between Dr. Kalayjian’s
treatment notes and his functional opinion, at least as it concerns McFarland’s ability to use
his hand and arms. As noted, that portion of the opinion is also similar to that of the RFC as
adopted.
Where Dr. Kalayjian’s opinion differs significantly from the RFC, and where the ALJ
provided no reason to discount Dr. Kalayjian’s opinion, is his conclusion that McFarland’s
pain was such that could stand or walk for just one hour in an 8 hour day, that he required
a sit/stand option and extra work breaks.85 He stated that the pain would interfere with
concentration, take McFarland off task and cause absences.86 As McFarland notes here,
these portions of Dr. Kalayjian’s opinion are inconsistent with the current RFC’s finding that
McFarland can do light work and sit for 6 hours and walk or stand for 6 hours in an 8 hour
workday.87

85

Id. at 1379.

86

Id.

87

Id. at 18.
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In light of the foregoing, I find that the sole purported inconsistency cited by the ALJ
was not evidence of an inconsistency at all, and was certainly not a good reason to
downgrade the weight assigned to Dr. Kalayjian’s opinion. Moreover, there is no stated
reason to reduce the weight given to Dr. Kalayjian’s opinion that applies to that portion of
his opinion which does not support the RFC and is inconsistent with the opinions of the state
agency reviewers. It is further noted that these state agency reviewers gave their opinions
well before Dr. Kalayjian gave his medical source statement, and so could not have
considered either his opinion or the bulk of his treatment notes. As such, substantial
evidence does not support elevating the opinions of the state agency reviewers over that of
Dr. Kalayjian.

Conclusion
For the reasons stated, I find that substantial evidence does not support the decision
of the Commissioner denying benefits to Andre McFarland. Therefore, that decision is
hereby reversed, and the matter remanded for further proceedings consistent with this
opinion.
IT IS SO ORDERED.

Dated: March 29, 2018

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

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