Beulah v. Commissioner of Social Security Administration
Filing
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Memorandum Opinion and Order that the decision of the Commissioner denying Beulah's application for supplemental security income is hereby reversed and remanded for further administrative proceedings. (Related Doc. # 1 ). Signed by Magistrate Judge William H. Baughman, Jr., on 7/30/2018. (S,MD)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
VIRNA BEULAH,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
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CASE NO. 1:17 CV 791
MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR
MEMORANDUM OPINION
AND ORDER
Introduction
Virna Beulah sought supplemental security income benefits because of multiple
mental impairments and osteoarthritis. The Commissioner found her capable of
performing her past relevant work as a housekeeping cleaner as generally performed1
and, alternatively, capable of performing a significant number of jobs existing in the
national economy.2 This decision lacks the support of substantial evidence in the record.
I, therefore, reverse the Commissioner’s decision and remand for further consideration.3
Analysis
The oral argument in this case brought into focus the two issues for decision:
• The ALJ assigned the opinion of treating psychiatrist Gary Wilkes, M.D., little
weight and excluded from the RFC Dr. Wilkes’s quantifiable limitations on the
ability to complete a normal workday and workweek without unreasonable
1
ECF # 10, Transcript (“Tr.”) at 139.
Id.
3
The parties have consented to my jurisdiction. ECF #13.
2
interruptions and breaks. She gave great weight to the opinions of two state
agency reviewing psychologists who offered no quantifiable limitations despite
rating Beulah’s ability to complete a normal workday and workweek
moderately limited. Does substantial evidence support these weight
assignments?
• The ALJ adopted a light exertional RFC. No source opinions support his
finding. The ALJ gave a state agency reviewing physician’s opinion that
Beulah could perform medium work “only some weight” because she did not
review later medical records evidencing greater limitations. Does substantial
evidence support the light exertional RFC?
A.
Treating source
The Sixth Circuit in Gayheart v. Commissioner of Social Security4 emphasized
that the regulations require two distinct analyses in evaluating the opinions of treating
sources.5 The Gayheart decision directed that the ALJ must first determine if the opinion
must receive controlling weight as well-supported by clinical and laboratory techniques
and as not inconsistent with other evidence in the administrative record.6 If the ALJ
decides not to give the opinion controlling weight, then a rebuttable presumption exists
that the treating physician’s opinion should receive great deference.7 This presumption
may be rebutted by application of the factors set forth in 20 C.F.R. §§ 404.1527(c)(2)(i)(ii), (3)-(6).8 The Court cautioned against collapsing these two distinct analyses into
one.9
4
Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365 (6th Cir. 2013).
Id. at 375-76.
6
Id. at 376.
7
Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007).
8
Gayheart, 710 F.3d at 376.
9
Id.
2
5
Despite the seemingly clear mandate of Gayheart, the Sixth Circuit in later
decisions has adopted an approach that permits these two separate analyses to be merged
into one so long as the ALJ states “good reasons” for the weight assigned applying the
regulatory factors governing each analytical step.10 Also, despite the reality that a unified
statement of these “good reasons” greatly enhances meaningful judicial review,11 some
authority exists for looking outside the unified statement for analysis of the weight
assigned to a treating source’s opinion.12 Going beyond the reasons stated in the unified
statement takes the Court in the hazy gray area where the sirens of de novo review and
post hoc rationalization reside. A reviewing district court must avoid both. An ALJ
cannot avoid reversal by merely citing exhibits in the record that might support her
findings without discussing the content of those exhibits and explaining how that content
provides support.13 Nor can counsel for the Commissioner save a decision from reversal
by citing to evidence in the record not cited and adequately discussed by the ALJ.14 It is
for the ALJ, not the court or Commissioner’s counsel, to “build a logical bridge from the
10
E.g., Biestek v. Comm. of Soc. Sec., 880 F.3d 778, 785 (6th Cir. 2017).
Smith v. Comm. of Soc. Sec., No. 5:13cv870, 2104WL1944247, **7-8 (N.D. Ohio May
14, 2014).
12
See, e.g., Heston v. Comm’r of Soc. Sec., 245 F.3d 528 (6th Cir. 2001).
13
Smith, 2104WL1944247, at *7.
14
Sharp v. Comm’r of Soc. Sec., No. 1:14-cv-523, 2015 WL 3545251 (S.D. Ohio June 4,
2015) (citing Keeton v. Comm’r of Soc. Sec., 583 F. App’x 515, 524 (6th Cir. 2014)),
report and recommendation adopted by 2015 WL 3952331 (S.D. Ohio June 29, 2015).
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evidence to the conclusion.”15 “Put simply, . . . there must be some effort . . . to explain
why it is the treating physician’s conclusion that gets the short end of the stick.”16
With these principles in mind, I turn to the treatment of Dr. Wilkes’s opinion.
As context, all sources in the record agree that Beulah’s severe mental
impairments impose at least moderate limitations in the ability to complete a normal
workday and workweek without unreasonable interruptions and breaks.17 Only Dr.
Wilkes quantifies this ability, which he rated as rare.18 The state agency reviewing
sources identified limitations to address Beulah’s diminished capability.19 But the ALJ
must adequately explain why the treating source opinion should not receive controlling
weight, and then may resort to the state agency reviewing sources to explain good
reasons for rebutting the presumption that the source opinion receive great deference.
Critical to the issue of the weight afforded to Dr. Wilkes’s opinion, the vocational expert
(“VE”) in this case testified the requisite number of existing jobs would not exist if
Beulah’s limitations caused absence from the job for more than one day a month or offtask more than 15 percent of the workday.20
Turning first to the unified statement about weight afforded to Dr. Wilkes, the ALJ
provided quantity. Her discussion encompasses a long paragraph stretching over two
15
Hale v. Colvin, No. 3:13cv182, 2014 WL 868124, *8 (S.D. Ohio March 5, 2014).
Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 552 (6th Cir. 2010).
17
Tr. at 215, 230-31, 502-10, and 1497-99.
18
Id. at 1499.
19
Id. at 215, 230-31.
20
Id. at 200-03.
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pages.21 She concedes that Dr. Wilkes opined that Beulah “can only rarely deal with
work stress or complete a normal work day/work week without interruption from
psychologically based symptoms and perform at a consistent pace without an
unreasonable number and length of rest periods.”22 She meets this with the boilerplate
objection that the opinion is void of objective findings and is inconsistent with the
evidence of record. This alone will not cut it, as case law makes clear.23 She makes no
reference in the unified statement to any clinical records other than those of Murtis
Taylor Center, where Dr. Wilkes practices and where Beulah receives treatment, that
indicate some improvement in her mental impairments.24 Assuming arguendo that
Beulah did show improvement from time to time, viewing the records of the Center
longitudinally and holistically, she cycled between stability and instability.25 The records
do not indicate improvement to the point where she could maintain an eight hour work
day, five days a week within the standards set out by the VE.
Dr. Wilkes did use a “check the box” form that did not contain a narrative. The
record does contain, however, his treatment notes and those of the Murtis Taylor Center
where he practices and where Beulah had a treating relationship with Dr. Wilkes and
21
Id. at 136-37.
Id. at 136.
23
Smith, 2104 WL 1944247, at *7.
24
Tr. at 137.
25
Id. at 467-78, 955-69, 1159-1176, and 1500-1511.
5
22
other psychiatrists in his group.26 As such, the use of the “check the box” form does not
per se justify discounting Dr. Wilkes’s opinion.27
The ALJ made the observation that Dr. Wilkes had “recently began treating the
claimant at Murtis Taylor.28 The Commissioner’s brief raises this observation to the
status of a reason given by the ALJ for discounting the weight of the opinion – that he is
not a treating source. The ALJ does not say that. Adopting this argument would require
impermissible reliance on post hoc rationalization.29
The balance of the ALJ’s articulation goes to Beulah’s daily activities. The daily
activities noted do not equate with the ability to maintain sustained employment without
absences and off-task episodes.30 In sum, the unified statement does not contain good
reasons for discounting the weight assigned to Dr. Wilkes’s opinion.
I have also reviewed the ALJ’s discussion of Beulah’s mental impairments and
limitations outside the unified statement. Although this discussion is extensive,31 I find
nothing addressing the issue of her ability to complete a work day or work week without
unacceptable absences or off-task episodes. The analysis centers exclusively on support
26
Id.
E.g., Rueda v. Berryhill, No. 1:17cv1878, 2018 WL 3304626, **17, 20 (N.D. Ohio
June 22, 2018) (discussing Sixth Circuit precedent), report and recommendation adopted
by 2018 WL 3302928 (N.D. Ohio July 5, 2018).
28
Tr. at 136.
29
Wooten v. Astrue, No. 1:09 CV 981, 2010 WL 184147, at *8 (N.D. Ohio Jan. 14, 2010)
(“The Commissioner’s post hoc arguments in support of the ALJ’s decision are
immaterial.”).
30
Gayheart, 710 F.3d at 377-78.
31
Tr. at 132-136, 137-38.
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for the limitations set out in the state agency reviewing sources’ opinions. Beulah takes
no issue with these limitations. Rather, she argues that the RFC should have included
additional limitations on her ability to satisfactorily complete a work day and work week.
The off-unified statement articulation does not address this.
Given the VE’s testimony that the absence and off-task limitations would preclude
past relevant work and the existence of a significant number of jobs in the economy, the
weight assignment given by the ALJ to the opinion of Dr. Wilkes does not have the
support of substantial evidence.
B.
Exertional limitations
The reversal and remand on the treating source issue obviates the need to decide
the second issue challenging the RFC’s light work exertional limitations. The ALJ
should reconsider that finding on remand. To that end, the record contains no source
opinion supporting light exertional limitations. The state agency reviewing physician
opined that Beulah could perform medium work,32 but the ALJ rejected this opinion in
favor of limitations to light work. In doing so, the ALJ cited medical records that the
state agency reviewing physician did not review.33 It may be helpful to have a medical
expert review these records to opine if at some point in the relevant period Beulah could
not perform at the light level or additional limitations beyond light work should be added
to the RFC. This may trigger the need for further testimony of a VE about past relevant
32
33
Id. at 232.
Id. at 131.
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work or the existence of a significant number of existing jobs in the economy that she
could perform.
Conclusion
The RFC adopted by the ALJ lacks the support of substantial evidence because the
ALJ did not properly analyze and articulate as to the opinion of psychiatrist Gary Wilkes,
M.D. I, therefore, reverse the decision of the Commissioner denying the application for
supplement security income benefits and remand for reconsideration with proper analysis
and articulation as to the weight assigned Dr. Wilkes’s opinion. On remand, the ALJ
should also reconsider the RFC’s exertional limitations with the assistance of the opinion
of a medical expert, if appropriate.
IT IS SO ORDERED.
Dated: July 30, 2018
s/ William H. Baughman, Jr.
United States Magistrate Judge
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