Burlinghaus v. Commissioner of Social Security

Filing 23

Memorandum Opinion and Order that the decision of the Commissioner is reversed and the matter remanded for further proceedings. Signed by Magistrate Judge William H. Baughman, Jr., on 3/31/21. (D,Ky)

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

JAMES BURLINGHAUS,
Plaintiff,
v.
COMMISSIONER
SECURITY,

OF

SOCIAL

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)
)
)
)
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)
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)
)

CASE NO.1:19-CV-02713

MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.
MEMORANDUM
ORDER

OPINION

AND

Defendant.

Introduction
Before me1 is an action by James Burlinghaus under 42 U.S.C. §402(g) seeking
judicial review of the 2018 decision of the Commissioner of Social Security that denied
Burlinghaus’s 2016 application for disability insurance benefits.2 The Commissioner has
answered3 and filed the transcript of the administrative proceedings.4 Pursuant to my

1

The parties have consented to my exercise of jurisdiction and the matter was transferred
to me by United States District Judge Solomon Oliver, Jr. ECF No. 12.
2
ECF No. 1.
3
ECF No. 8.
4
ECF No. 9.
1

initial5 and procedural6 orders, the parties have filed briefs,7 along with supporting charts8
and fact sheets.9 They have met and conferred with the objective of narrowing and/or
clarifying the issues10 and have participated in a telephonic oral argument.11
For the reasons that follow, the decision of the Commissioner will be reversed and
the matter remanded.
Facts
The ALJ’s Decision
Burlinghaus was born in November 1962 and was 55 years old at the time of the
hearing.12 He is a high school graduate with past work experience as a carpenter.13
He was found to have the following severe impairments:
Mild degenerative joint disease of the lumbar spine, mild osteoarthritis of the right
hand, mild to moderate degenerative osteoarthritis of the left hand, Raynaud’s
syndrome, mild acromioclavicular and glenohumeral arthropathy in the right
shoulder, chronic obstructive pulmonary disease, and hyperlipidemia.14

5

ECF No. 5.
ECF No. 11.
7
ECF Nos. 16 (Burlinghaus), 19 (Commissioner).
8
ECF No. 16, Attachment (Burlinghaus), 19, Attachment (Commissioner).
9
ECF No. 15 (Burlinghaus).
10
ECF No. 20.
11
ECF No. 22.
12
Tr. at 39.
13
Id. at 42.
14
Id. at 17.
6

2

The ALJ then concluded that Burlinghaus did not have an impairment or
combination of impairments that met or equaled a listing.15The ALJ found that Burlinghaus
had the residual functional capacity (RFC) for medium work, with the following
restrictions:
He can frequently operate right hand controls, he can frequently reach overhead
with the right, he can frequently reach in all other directions with the right, he can
frequently handle with the right and the left, he can frequently finger with the right
and the left, he can frequently climb ramps and stairs, he can occasionally climb
ladders, ropes or scaffolds, he can frequently balance, stoop, kneel, crouch and
crawl, he can occasionally be exposed to unprotected heights, moving mechanical
parts, or operate a motor vehicle, and he can frequently be exposed to humidity and
wetness, dust, odors, fumes, and pulmonary irritants, extreme cold and extreme
heat.16
The ALJ then discussed the 2017 consultative physical examination,17 the
examinations of August 2018, plus x-rays of the chest and thumb,18 and the two
examinations of September 2018.19 The ALJ then gave no weight to the opinions of the
state agency reviewers, citing that the functional limitations were not supported by the
consultative examination that showed normal muscle tone and strength, normal gait and
range of motion, as well as only mild degenerative disc disease and normal musculoskeletal
range of motion.20 Moreover, the ALJ stated that the limitations in these opinion “are
unsupported by the claimant’s sporadic and conservative treatment.”21

15

Id. at 20.
Id. at 21.
17
Id. at 23.
18
Id. at 23-24.
19
Id. at 24.
20
Id. at 26.
21
Id.
16

3

The ALJ then addressed the opinion from Dr. Saghafi, the 2017 consultative
examiner. The ALJ again gave this opinion no weight, asserting, as before, that it “is
unsupported by the claimant’s sporadic and conservative treatment.”22
Next, after determining that Burlighaus could not perform his past relevant work as
a carpenter,23 the ALJ, with the testimony of a vocational expert (VE), found that a person
with Burlinghaus’s age, education, work experience and RFC could perform the jobs of
dishwasher, janitor and cleaner, and these jobs are available in significant numbers in the
national economy.24 Then, the ALJ found Burlighaus not disabled.25
Burlinghaus’s Position
Burlinghaus raises two issues:
1.
The ALJ committed reversible error when he made a residual
functional capacity finding in conflict with all the medical opinions of record.26
2.
The ALJ’s assessment of Burlinghaus’s manipulative abilities is not
supported by substantial evidence which requires a remand for further review.27

The Commissioner’s Position

22

Id.
Id. at 27.
24
Id. at 28.
25
Id.
26
ECF No. 16 at 8-11.
27
Id. at 11-14.
23

4

The Commissioner argues that the ALJ reviewed “sparse” treatment notes and then
provided a thorough explanation for his findings.28 He further argues that the ALJ properly
considered that Burlinghaus had only conservative treatment, was not compliant with his
treatment, and “disliked” doctors.29 He also maintains that the ALJ gave good reasons,
including the sporadic nature of treatment, for giving no weight to any functional opinion.30
The Commissioner further asserts that, rather than “playing doctor,” the ALJ
analyzed the four examinations plus imaging that occurred after the opinions were
submitted and, acting within the zone of choice, arrived at the RFC.31
Analysis
This case presents the situation of:
]\’
(1) a claimant who didn’t begin treatment until three years after the alleged onset date;32
(2) the ALJ assigning no weight to the only physical functional opinions in the
record, those of two reviewing and one consulting physician;33 and

28

ECF No. 19 at 1.
Id. at 5.
30
Id. at 6-7.
31
Id. at 11-12.
32
Tr. at 22, 42.
33
Id. at 26.
29

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(3) the ALJ fashioning an RFC from only four treatment notes plus imaging that
were produced during a period of just two months in August and September of 2018 after
the claimant finally saw a physician on the advice of his disability attorney.34
With these facts, Burlinghaus now contends that the ALJ erred when he fashioned
an RFC in conflict with the only functional opinions35 and further erred by finding, upon
the ALJ’s own interpretation of the clinical data, that Burlinghaus can frequently use his
upper extremities for operating hand controls, reaching, handling and fingering.36
He claims, as to the first argument, that the ALJ erred by grounding his rejection of
the functional opinions, in part, in a belief that these opinions were not consistent with the
“sporadic” and “conservative” course of treatment.37 Burlinghaus contends that the reason
he had so little treatment was that he could not afford more and that he should not be
penalized for his poverty.38 Further, as to the second issue related to the ALJ’s use of raw
data to fashion functional limitations, Burlinghaus asserts that the treatment notes from
2018, none of which were seen by doctors who gave opinions, all describe problems with
arthritis and with shoulder and joint pain.39 He argues that a remand is needed for a
functional evaluation of this data.40

34

Id. at 43.
ECF No. 16 at 8-10.
36
Id. at 11-14.
37
Id. at 10.
38
Id. at 10-11.
39
Id. at 13.
40
Id.
35

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This last point is decisive. As I noted in Kizys v. Commissioner,41 which was
recently applied by Magistrate Judge Parker in Falkosky v. Commissioner,42 when none of
the treatment notes discussed functional abilities, but only recorded diagnoses or
symptoms, the ALJ may, without a medical opinion, make a common sense functional
assessment if there are no severe impairments.43 But, here (and in Falkosky), there are
severe impairments and yet the ALJ, with no functional opinion, then “inferred from his
limited treatment record that [the claimant] was able to perform work” at a given exertional
level.44 As is stated in Falkosky, such a finding could only have been based on the ALJ’s
own functional interpretation of the raw clinical data rather than upon substantial
evidence.45 Accordingly, because the ALJ failed to follow the proper standard in fashioning
the RFC, the matter must be remanded.46
Moreover, Falkosky also notes that it is likely error to downgrade the weight
assigned to a functional opinion simply because the claimant pursued conservative
treatment. “A physician may have the expertise to opine that [a claimant’] decision to
pursue conservative treatment is indicative of [his not being disabled,] [b]ut the ALJ did
not have such expertise.”47

41

2011 WL 5024866 (N.D. Ohio Mar. 27, 2013).
2020 WL 5423967 (N.D. Ohio Sept.10, 2020).
43
Id. at *5 (citation omitted).
44
Id. at *8.
45
Id.
46
Id. at *9.
47
Id. at *7.
42

7

Conclusion
Therefore, for the reason stated, the decision of the Commissioner is reversed and
the matter remanded for further proceedings consistent with this opinion.
IT IS SO ORDERED.
Dated: March 31, 2021

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

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