Withrow v. Commissioner of Social Security
Filing
23
Memorandum Opinion and Order that the finding of the Commissioner that Withrow had no disability lacks substantial evidence. Accordingly, the decision of the Commissioner denying Withrows supplemental security income is reversed and remanded for further administrative proceedings. On remand, the ALJ must properly consider, analyze, and weigh the opinions of Dr. Osorio. It is so ordered. Magistrate Judge William H. Baughman, Jr., on 10/29/18. (D,Ky)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
CINDY WITHROW,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
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)
)
)
)
)
)
)
)
)
CASE NO. 1:17 CV 2168
MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.
MEMORANDUM OPINION &
ORDER
Introduction
Before me1 is an action by Cindy Lee Withrow under 42 U.S.C. § 405(g) for judicial
review of the final decision of the Commissioner of Social Security denying her 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
1
ECF No. 13. The parties have consented to my exercise of jurisdiction.
ECF No. 1.
3
ECF No. 10.
4
ECF No. 11.
5
ECF No. 6.
6
ECF No. 12.
2
parties have briefed their positions7 and filed supplemental charts8 and the fact sheet.9 They
have participated in a telephonic oral argument.10
For the reasons set forth below, the decision of the Commissioner lacks substantial
evidence and must be reversed and remanded for further administrative proceedings
consistent with this order.
Facts
A.
Background facts and decision of the Administrative Law Judge (“ALJ”)
Withrow, who was 54 years old at the time of the administrative hearing,11 has an
eleventh grade education.12 Her past relevant employment history includes work as a
machine feeder and touch-up screener, printed circuit board, assembly.13
The ALJ, whose decision became the final decision of the Commissioner, found that
Withrow had the following severe impairments: status post aortic valve replacement;
cervical degenerative disc disease with radiculopathy; lumbar degenerative disc disease
and spondylosis; fibromyalgia; obesity; and adjustment disorder with mixed anxiety and
depressed mood.14
7
ECF No. 19 (Commissioner’s brief); ECF Nos. 16, 20 (Withrow’s briefs).
ECF No. 19, Attachment 1 (Commissioner’s charts); ECF No. 16, Attachment 2
(Withrow’s charts).
9
ECF No. 16, Attachment 1 (Withrow’s fact sheet).
10
ECF No. 22.
11
ECF No. 16, Attachment 1 at 1.
12
Id.
13
ECF No. 11, Transcript (“Tr.”) at 28.
14
Id. at 22.
2
8
After concluding that the relevant impairments did not meet or equal a listing, the
ALJ found Withrow had the residual functional capacity (“RFC”) to perform sedentary
work as defined in the regulations, with additional limitations.15
Based on that RFC, the ALJ found Withrow capable of her past relevant work as a
touch-up screener, printed circuit board, assembly and, therefore, not under a disability.16
B.
Issues on judicial review
Withrow 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,
Withrow presents the following issues for judicial review:
$
Whether the ALJ failed to state valid reasons for rejecting the opinion
of treating physician Leonor Osorio.
$
Whether the ALJ improperly found that Withrow could return to her
past job as a touch-up screener.17
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. However, the scope of
15
Id. at 24.
Id. at 28.
17
ECF No. 16 at 1.
16
3
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.18
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.19 The court may not disturb the Commissioner’s
findings, even if the preponderance of the evidence favors the claimant.20
I will review the findings of the ALJ at issue here consistent with that deferential
standard.
18
Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (citations omitted).
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).
20
Rogers v. Comm=r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
4
19
2.
Treating physician rule and good reasons requirement
The Sixth Circuit in Gayheart v. Commissioner of Social Security21 emphasized that
the regulations require two distinct analyses in evaluating the opinions of treating sources.22
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.23 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.24 This presumption may be rebutted
by application of the factors set forth in 20 C.F.R. §§ 416.927(c)(2)(i)-(ii), (3)-(6).25 The
Court cautioned against collapsing these two distinct analyses into one.26
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.27 Also, despite the reality that a unified
statement of these “good reasons” greatly enhances meaningful judicial review,28 some
authority exists for looking outside the unified statement for analysis of the weight
21
Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365 (6th Cir. 2013).
Id. at 375-76.
23
Id. at 376.
24
Rogers, 486 F.3d at 242.
25
Gayheart, 710 F.3d at 376.
26
Id.
27
E.g., Biestek v. Comm. of Soc. Sec., 880 F.3d 778, 785 (6th Cir. 2017).
28
Smith v. Comm. of Soc. Sec., No. 5:13cv870, 2104WL1944247, at **7-8 (N.D. Ohio
May 14, 2014).
22
assigned to a treating source’s opinion.29 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.30 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.31 It is
for the ALJ, not the court or Commissioner’s counsel, to “build a logical bridge from the
evidence to the conclusion.”32 “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.”33
B.
Application of standards
This is a narrow issue regarding the weight assigned to the opinions of treating
source Dr. Osorio. The ALJ gave Dr. Osorio’s opinions no weight.34 He gave considerable
weight to the opinion of a consulting examiner, Dr. Assaf.35
29
See, e.g., Heston v. Comm’r of Soc. Sec., 245 F.3d 528 (6th Cir. 2001).
Smith v. Comm’r of Soc. Sec., No. 5:13 CV 870, 2104 WL 1944247, at *7 (N.D. Ohio
May 14, 2014).
31
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 Sharp v Comm’r of Soc. Sec., 2015 WL 3952331
(S.D. Ohio June 29, 2015).
32
Hale v. Colvin, No. 3:13cv182, 2014 WL 868124, at *8 (S.D. Ohio March 5, 2014).
33
Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 552 (6th Cir. 2010).
34
Tr. at 27.
35
Id.
6
30
Dr. Osorio’s treating relationship with Withrow spanned at least two years.36 Dr.
Osorio rendered two opinions, one in 2014 and one in 2015, regarding Withrow’s mental
and physical impairments.37 In both of these opinions, Dr. Osorio specifically translated
Withrow’s impairments into limitations.38
In contrast, Dr. Assaf saw Withrow one time, and he conducted his examination and
rendered his opinion in 2014.39 As with many (if not all) consulting examiners, Dr. Assaf
gave no opinions on limitations caused by Withrow’s severe impairments.40 He merely
opined regarding Withrow’s impairments and assessed their severity.41
Dr. Osorio’s opinions support an additional limitation in the RFC regarding
sustainability.42 She opined that Withrow would be off task 20 percent of the time and
absent more than four days per month.43 Dr. Assaf’s opinion is silent on the sustainability
issue.44 The VE confirmed that the sustainability limitations opined by Dr. Osorio would
preclude employment.45
36
See ECF No. 16, Attachment 2 (Withrow’s charts) at 5.
Tr. at 381-82, 816-17.
38
Id.
39
Id. at 446-57.
40
Id.
41
Id.
42
Id. at 381-82, 817.
43
Id.
44
Id. at 446-57.
45
Id. at 106-07.
7
37
The ALJ cites inconsistency with the overall record as his reason for rejecting Dr.
Osorio’s opinions.46 If the ALJ stated good reasons for the weight assigned to Dr. Osorio’s
opinions, it would have to be in paragraph four on page 27 of the transcript or in paragraphs
one and two on page 26 of the transcript. But the only record evidence cited by the ALJ
addressing sustainability is the opinion of consulting examiner Dr. Davis47 – whose opinion
was given limited weight because the ALJ found that the “mental health evidence,
including the claimant’s depressed effect and reported anxiety, as well as the effects of her
physical impairments, support her being more limited in performing and sustaining
work.”48
The ALJ failed to build a logical bridge from the evidence to his conclusions and
failed to provide good reasons for not just discounting Dr. Osorio’s opinions, but for
rejecting them out of hand. Therefore, the ALJ’s no disability finding must be reversed
and this matter remanded for further administrative proceedings.
Because I find the ALJ committed reversible error on this ground, I do not reach
Withrow’s argument regarding the ALJ’s findings regarding Withrow’s past relevant work.
Conclusion
The finding of the Commissioner that Withrow had no disability lacks substantial
evidence.
Accordingly, the decision of the Commissioner denying Withrow’s
46
Id. at 27.
Id. at 431-37.
48
Id. at 27.
47
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supplemental security income is reversed and remanded for further administrative
proceedings. On remand, the ALJ must properly consider, analyze, and weigh the opinions
of Dr. Osorio.
IT IS SO ORDERED.
Dated: October 29, 2018
s/ William H. Baughman, Jr.
United States Magistrate Judge
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