Rodriguez v. Commissioner of Social Security
Memorandum of Opinion and . The Court reverses the opinion of the Commissioner and remands the case for further proceedings consistent with this opinion. Magistrate Judge Nancy A. Vecchiarelli on 2/6/2012. (G,W) Modified text on 2/6/2012 (B,B).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
MIGUEL J. RODRIGUEZ,
COMMISSIONER OF SOCIAL
MAGISTRATE JUDGE VECCHIARELLI
MEMORANDUM OF OPINION
This case is before the magistrate judge by consent. Plaintiff, Miguel J.
Rodriguez (“Rodriguez”), challenges the final decision of the Commissioner of Social
Security, Michael J. Astrue (“Commissioner”), denying Rodriguez’s application for a
period of Disability Insurance Benefits ("DIB") under Title II of the Social Security Act, 42
U.S.C. §§ 416(i), and for Supplemental Security Income ("SSI") under Title XVI of the
Social Security Act (“Act”), 42 U.S.C. §§ 423 and 1381(a). This court has jurisdiction
pursuant to 42 U.S.C. § 405(g).
For the reasons set forth below, the court REVERSES the opinion of the
Commissioner and REMANDS the case for further proceedings.
I. Procedural History
Rodriguez filed applications for DIB and SSI on March 30, 2006, alleging
disability as of August 22, 2004. His applications were denied initially and upon
reconsideration. Rodriguez timely requested an administrative hearing.
Administrative Law Judge Kelly Davis (“ALJ”) held a hearing on April 9, 2009.
Rodriguez, represented by counsel, testified on his own behalf at the hearing. Joseph
Havranek testified as a vocational expert (“VE”). The ALJ issued a decision on May 14,
2009, in which he determined that Rodriguez is not disabled. Rodriguez requested a
review of the ALJ’s decision by the Appeals Council. When the Appeals Council
declined further review on December 23, 2010, the ALJ’s decision became the final
decision of the Commissioner.
Rodriguez filed an appeal to this court on February 24, 2011. Rodriguez alleges
that the ALJ erred because substantial evidence does not support the ALJ’s evaluation
of the opinions of (1) Rodriguez’s treating cardiologist regarding Rodriguez’s functional
limitations; (2) the non-examining state agency psychologist; and (3) the examining
state agency psychologist. The Commissioner denies that the ALJ erred.
Personal and Vocational Evidence
Rodriguez was born on July 6, 1958 and was 50 years old on the date of the
hearing. He has completed tenth grade. His past relevant work includes truck driver,
dishwasher, short order cook, factory laborer, shipping and receiving clerk, cleaning
supervisor, and mail clerk.
On August 22, 2004, Rodriguez reported to the emergency center of St. Charles
Mercy Hospital in Oregon, Ohio (“St. Charles”), complaining of chest pain radiating
around the left side to his back. Transcript (“Tr.”), pp. 375-78. According to Rodriguez,
he had been suffering from chest pain on and off for about a month. Rodriguez said
that he had been using marijuana and cocaine the night before, that he had a history of
cocaine and heroin abuse, and that he was a pack a day smoker. Rodriguez had
previously undergone a left lung lobectomy due to abscesses on his lungs. A chest xray, an EKG, and other tests were normal, but blood sugar was high. Rodriguez was
eventually diagnosed as having suffered an acute myocardial infarction and was
suffering from cocaine abuse. Rodriguez was given Dilaudid, Phenergan, Rocephin,
Biaxin, Darvocet, and Ultram. The following day, he underwent cardiac catheterization
and placement of a stent.
On August 6, 2004, T. Welch, M.D., a cardiologist, examined Rodriguez and
completed a physical functional capacity assessment of his capabilities. Tr. at 379. Dr.
Welch opined that Rodriguez was not limited in his ability to stand, walk, or sit; could lift
or carry 11-20 pounds occasionally or frequently; was moderately limited in his abilities
to push/pull, bend, reach, and handle; and was not significantly limited in his abilities to
engage in repetitive foot movements, see, hear, or speak. Dr. Welch further opined that
Rodriguez was unemployable and that his limitations would last for 12 months or more.
On November 10, 2004, Rodriguez underwent an MRI of his lumbar spine. Tr. at
205-08. Rodriguez stated that he had been experiencing pains in his lower back
radiating into his buttocks, describing the pain as about 6 on a scale of 10 when resting
and 10 out of 10 when active. He stated that he had suffered a number of falls, but he
was unable to pinpoint any particular fall as the source of his back problems. According
to Rodriguez, the pain was worsened by sitting, lying on his stomach, weather changes,
standing, walking, sleeping, and driving. There were no bladder problems or problems
with numbness, tingling, or weakness in his lower extremities. His then-current
medications included Plavix, Zocor, Amaryl, Aspirin, nitroglycerin, and Metoprolol. The
MRI revealed disc deterioration with mild degenerative narrowing, a shallow disc bulge
at L3-L4, mildly thickened ligaments, and facets at L3-L4, L4-L5, and L5-S1.
On December 28, 2004, one of Rodriguez’s treating physicians, Michael J.
Barrett, M.D., noted that Rodriguez suffered from radiating back pain and experienced
pain upon straight leg raises and back extension. Tr. at 209. He also noted non-insulin
dependent diabetes and hypertension. He recommended a series of epidural steroid
injections for Rodriguez’s back pain. On January 1 and February 8, 2005, Rodriguez
received epidural blocks to help relieve his back pain. Tr. at 209-13.
Rodriguez suffered a second heart attack on March 31, 2005. Tr. at 215-24. He
was treated at the St. Vincent Mercy Medical Center emergency room and was admitted
to the medical facility for treatment. The following day, Rodriguez was catheterized. He
was diagnosed with coronary heart disease characterized by 40% proximal stenosis of
the circumflex coronary, with a stent mid segment and 30% stenosis of the right
Rodriguez was admitted to St. Charles on April 18, 2005 with chest pain. Tr. at
226. He was treated with nitroglycerin and morphine and released on April 22, 2005.
He was admitted to St. Charles again on May 4, 2005 suffering from abdominal pain.
Tr. at 225. He was diagnosed as suffering from acute pancreatitus, treated, and
released the following day.
Rodriguez reported again to St. Charles complaining of chest pains radiating into
his left arm on February 6, 2006. Tr. at 228-57. He stated that his cocaine abuse had
relapsed and that he had been injecting, snorting, and smoking $300-$400 worth of
cocaine a day for the past two months, drinking at least a case of beer a day, and taking
Percocet, Vicodin, and Darvocet. He was depressed and tearful, stating that he wanted
to commit suicide by taking his girlfriend’s medications because “I just can’t take what
I’m doing to myself anymore.” Tr. at 228. He told the treating physician that he had
been smoking 2-3 packs of cigarettes a day for the past 34 years. Rodriguez said that
had lost 20 pounds in the past two months. He was producing black phlegm and had
bright red blood in his stool. He also complained of chronic fatigue and sleeplessness.
The treating physician recommended admission for rehabilitation.
While Rodriguez was in St. Charles, he underwent a series of physical and
mental tests. Tr. at 234-57. Rodriguez reported a family history of heart disease,
diabetes, drug abuse, and alcohol abuse. He had begun using drugs at age 12 or 13
and had been using a variety of drugs off and on since, with three years being his
longest period of sobriety. Marsha L. Elliott, L.S.W., diagnosed Rodriguez as suffering
from an unspecified depressive disorder, an unspecified anxiety disorder, cocaine
dependence, cannabis dependence, and alcohol dependence, and assigned him a
current Global Assessment of Functioning (“GAF”) of 50.1
On April 18, 2006, Arun Patel, M.D., Rodriguez’s treating psychiatrist, completed
an initial psychiatric evaluation of Rodriguez. Tr. at 262-63. Rodriguez reported chronic
depression, chronic use of multiple drugs, and chronic alcohol use. Rodriguez was
currently taking Zoloft, metformin, Seroquel, Plavix, Zocor, Lopressor, and Amaryl.
He stated that he had never had any psychiatric counseling or other mental therapy
A GAF of 41 to 50 indicates serious symptoms or a serious impairment in social,
occupational, or school functioning.
except some treatment for drug addiction. Rodriguez reported that he had not used
drugs since leaving the hospital. Dr. Patel assessed his concentration as adequate,
judgment as fair, and insight as good. Dr. Patel diagnosed Rodriguez as suffering from
dysthymia, major depression in partial remission, polysubstance dependence, diabetes,
mellitus, hypertension, and coronary heart disease. He assessed Rodriguez’s GAF as
from 50-65. Dr. Patel noted that Rodriguez intended to attend supportive
psychotherapy and medication management.
James C. Tanley, Ph.D., a clinical psychologist, conducted a clinical interview
with Rodriguez on September 12, 2006 and completed a Disability Assessment Report
describing his evaluation. Tr. at 301-03. Rodriguez reported currently taking Zoloft,
Seroquel, Amaryl, Atrivan, Zocor, Plavix, Metformin, Prevacid, nitroglycerin, and
Docusate. He said that he had not used drugs or alcohol for eight months and that he
“did it myself.” Tr. at 301. He also reported that he had stopped smoking. Dr. Tanley
reported Rodriguez as being obese, clean, and cooperative. Dr. Tanley opined that
Rodriguez did not seem to exaggerate or minimize his symptoms. Rodriguez’s thoughts
were coherent, relevant, and goal-oriented. Affect was appropriate to thought content.
Recent and remote memory were poor, and intellectual functioning was no higher than
borderline. Otherwise, there were no abnormalities of thought or affect. Rodriguez
reported panic attacks and anger since he had stopped using drugs and alcohol, stating
that “since I’ve been clean, my emotions are uneven. All of a sudden, I’ll feel closed in.
It’s hard to breathe ‘n [sic] be around people.” Tr. at 304. He reported sleep
disturbance, feelings of helplessness, and mood problems. Dr. Tanley opined that
Rodriguez was unimpaired in his ability to relate to others, mildly impaired in his ability
to understand and follow simple instructions, mildly impaired in his ability to maintain
attention to perform simple repetitive tasks, and moderately impaired in his ability to
withstand the stress and pressure of daily work. He diagnosed Rodriguez as suffering
from a chronic adjustment disorder with mixed anxiety and depression, drug abuse in
remission, borderline intelligence, obesity, diabetes, high blood pressure, diverticulitis,
high cholesterol, acid reflex, constipation due to medication, and status post heart
attack. He assigned Rodriguez a GAF of 60.2
In late September 2006, William D. Padamadan, M.D., examined Rodriguez,
reviewed laboratory tests, and completed an Internal Medicine Evaluation. Tr. at 30508. Dr. Padamadan noted that Rodriguez was currently undergoing psychiatric and
psychological management for drug abuse through the local community psychiatric
center. The doctor recited Rodriguez’s medical history and added that his diabetes was
currently being managed by Metformin and Amaryl. Rodriguez said that he had
suffered from back pain for many years, but he denied paresthesias, foot drops, falls, or
bladder incontinence. Gait was normal, and there was no outward manifestation of
chronic illness. Vision was 20/30 right and 20/70 left, and blood pressure was 154/86.
Examination of the neck, chest, lungs, heart, abdomen, and extremities produced
normal results. Supine single leg raising was to 40N and sitting single leg raising was to
80N. Otherwise, examination of the spine and back was unremarkable. Speech,
ambulation, sensorium, motor abilities, muscle tone, and reflexes were normal. Dr.
A GAF of 51-60 indicates moderate symptoms or moderate impairment in social,
occupational, or school functioning.
His hearing, speech, and sight were within normal limits. Communication skills
were normal. He was able to sit, stand, and walk. His upper extremity functions
for reaching, handling, fine, and gross movements were intact. His mental status
was normal without any overt signs of anxiety or depression. Based upon this
clinical evaluation, he would need psychological restrictions for a 48-year old
diabetic with coronary artery disease. He has no contraindication for stress
Tr. at 308.
On October 25, 2006, Charles Derrow, M.D., reviewed Rodriguez’s file and
completed a Physical Residual Functional Capacity Assessment of Rodriguez. Tr. at
332-39. Dr. Derrow opined that Rodriguez could lift up to 50 pounds occasionally, 25
pounds frequently, stand or walk about six hours in an eight-hour workday, sit about six
hours in an eight-hour workday, and push or pull without limitation. In explaining why he
reached these conclusions, Dr, Derrow wrote:
clmt alleges diabetes, back pain, heart disease, breathing problems, depatitis C,
and diverticulitis. His diabetes is stable with medication. An Ls MRI in 2004
showed mild DDD and a shallow disc bulge L3-4. At the CE, he had a normal
gait, no ambulatory aid, normal strength, and full ROM. He did have a heart
attack and stenting in 2004, possibly related to cocaine use. Repeat cath 2005
showed no changes. He seems to get chest pain when he uses cocaine as he
last complained of it 8 months ago with drug use. He had a lobectomy a few
years ago due to a lesion from inhaling cocaine. He does have hepatitis C with
no complications. His f/p was waiting for abstinence from drugs before he
referred him for tx. He has mild diverticulitis . . . He does not complain of
problems with this currently.
Tr. at 334 (capitalization and abbreviations in the original). Dr. Derrow further opined
that Rodriguez could frequently climb ramps and stairs, balance, stoop, kneel, and
crouch and could occasionally climb ladders/ropes/ scaffolds and crawl. He did not find
that Rodriguez had any manipulative, visual, communicative, or environmental
limitations. Dr. Derrow concluded that Rodriguez’s symptoms were attributable to a
determinable medical impairment, that the severity or duration fo the symptoms were
not disproportionate to the impairment, and that most of Rodriguez’s problems were
related to drug use. With abstinence, according to Dr. Derrow, Rodriguez was stable.
He found Rodriguez’s allegations of disability to be partially credible. Dr. Derrow noted
that no treating or examining source statements regarding Rodriguez’s physical
capabilities was in the file. On February 8, 2007, Lynne Torello, M.D., reviewed and
affirmed Dr. Derrow’s assessment.
On October 23, 2006, Karen Stailey-Steiger, Ph.D., reviewed Rodriguez’s file
and completed a Mental Residual Functional Capacity Assessment and Psychiatric
Review Technique. Tr. at 314-31. Dr. Stailey-Steiger opined that Rodriguez was
moderately limited in his ability to remember locations and work-like procedures; ability
to maintain attention and concentration for extended periods; ability to perform activities
within a schedule, maintain regular attendance, and be punctual within customary
tolerances; and ability to complete a normal workday and workweek without
interruptions from psychologically-based symptoms and to perform at a consistent pace
without an unreasonable number and length of rest periods. She also opined that he
was markedly limited in his ability to understand and remember detailed instructions and
his ability to carry out detailed instructions. She did not find any other significant
psychological limitations. She summarized her assessment as follows:
clmt alleges depression. Has a history of polysubstance abuse currently in
remission for 8 months. He is receiving medication and counseling which has
improved his conditions. He is attending meetings to help with his sobriety. He
alleges panic attacks and anxiety. Claimant attended a psych CE, His
intelligence is estimated to be borderline. Daignoses [sic] included BIF and
Adjustment DO. GAF was estimated at 60. He is able to perform ADL’s. He has
no social limitations. He is best suited for 1-2 step tasks with no pace or
production requirements. Allegation of depression is reported by CE findings.
Limitations are mild to moderate in severity.
Tr. at 316 (capitalization and abbreviations in the original). Dr. Stailey-Steiger
diagnosed Rodriguez as suffering from dysthemia, major depression in remission,
borderline intellectual functioning, and polysubstance abuse in partial remission. She
opined that Rodriguez had mild restriction of activities of daily living; mild difficulties in
maintaining social functioning; moderate difficulties in maintaining concentration,
persistence, or pace; and one or two episodes of decompensation of extended duration.
On February 6, 2007, Vicki Casterline, Ph.D., reviewed and affirmed Dr. StaileySteiger’s assessment. Tr. at 351.
On November 13, 2008, Alamdar Kazmi, M.D., a psychiatrist, completed a
Mental Functional Capacity Assessment of Rodriguez. Tr. at 380-81. Dr. Kazmi opined
that Rodriguez was moderately limited in the ability to understand and remember
detailed instructions; the ability to carry out detailed instructions; the ability to maintain
attention and concentration for extended periods ; the ability to perform activities within
a schedule, maintain regular attendance, and be punctual within customary tolerances;
the ability to work in coordination with or proximity to others without being distracted by
them; the ability to complete a normal workday and workweek without interruptions from
psychologically-based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods; the ability to accept instructions and
respond appropriately to criticism from superiors; the ability to get along with coworkers
or peers without distracting them or exhibiting behavioral extremes; the ability to
respond appropriately to changes in the work setting; the ability to travel to unfamiliar
places or use public transportation; and the ability to set realistic goals or make plans
independently of others. Dr. Kazmi found no other significant limitations.
John A. Pella, M.D., a medical expert, reviewed Rodriguez’s file and completed a
Testimony by Affirmation of Medical Expert on November 22, 2008. Tr. 371-73. Dr.
Pella opined that Rodriguez did not meet or medically equal an impairment listed in 20
CFR Part 404, Subpart P, Appendix 1. Dr. Pella found that Rodriguez could frequently
lift 10 pounds, occasionally lift 20 pounds, could stand or walk about six hours in an
eight-hour workday, could sit for six hours in an eight-hour workday, and was not limited
in his ability to push, pull, bend, stoop, or crouch. He also found that Rodriguez had
slight limitations in his ability to understand and remember simple instructions, carry out
simple instructions, interact appropriately with the public, interact appropriately with
supervisors, interact appropriately with co-workers, and respond appropriately to
changes in routine and work setting. Dr. Pella further opined that Rodriguez had
moderate limitations in his ability to understand and remember detailed instructions,
carry out detailed instructions, make judgments on simple work-related decisions, and
respond appropriately to pressures in the usual work setting.
On January 28, 2009, Mehmet Sungurlu, M.D., Rodriguez’s treating physician,
completed a medical report of Rodriguez’s condition. Tr. at 382-83. According to Dr.
Sungerlu, who reported Rodriguez suffered from depression, chronic back pain,
hyperlipidemia, and addictive disorders, and his condition was good to stable with his
medications. Dr. Sungurlu also reported that Rodriguez had just had another stent
installed in the past two weeks and would benefit from a smoking cessation program.
Dr. Sungurlu opined that Rodriguez’s conditions limited his abilities to lift and carry,
limiting him to about five pounds. Rodriguez’s abilities to stand or walk, sit, push or pull,
bend, reach, handle, engage in repetitive foot movements, see, hear, or speak were not
significantly limited or were not limited at all. Dr. Sungurlu added that Rodriguez was
employable with restrictions.
The ALJ held a hearing on April 9, 2009 at which Rodriguez and a VE testified.
Tr. at 23-54. Rodriguez testified that he was disabled because of chronic back pain,
which limited his ability to sit, stand, and walk. Tr. at 27-28. According to Rodriguez, he
was able to stand for about a half hour, walk comfortably for about two blocks, and sit
for only a few minutes before experiencing pain. Tr. at 28-29. Rodriguez also testified
that he ran out of breath with any kind of exertion because of his heart condition. Tr. at
28. He also said that his heart condition caused him chest pains as well as shortness of
breath and required the use of nitroglycerin and Seroquel. Tr. at 29-30. His most
recent heart attack had occurred the previous January after spending five minutes
shoveling snow around his car. Tr. at 31. Rodriguez reported attending Unison to help
him stay sober. Tr. at 31. When asked whether his medications caused any side
effects, Rodriguez testified that they caused diarrhea, runny nose, dizziness,
drowsiness, and impaired short-term memory. Tr. at 31-32. Rodriguez also said that
he experienced frequent panic attacks. Tr. at 32-33. He reported taking insulin twice
daily for his diabetes and having occasional hypoglycemic episodes, body aches, and
loss of feeling in his extremities. Tr. at 33-35. Rodriguez also told the court that he
suffered from cataracts. Tr. at 42.
Rodriguez described his typical day as spent largely in his apartment because he
tries to avoid crowds. Tr. at 37-38. He is able to do housework as long as he does it
slowly. Tr. at 38. He rarely socializes, although he attends church and is sometimes
visited by church members. Tr. at 38. Rodriguez also reported that he had good days
and bad days and that he experienced bad days two or three times a week. Tr. at 4345.
The ALJ posed several hypothetical questions to the VE. First, he asked the VE
to assume an individual capable of light work and limited to lifting and carrying no more
than 20 pounds occasionally and 10 pounds frequently; limited to standing/walking six
hours in an eight-hour day and sitting for six hours in an eight-hour day; having an
unlimited ability to push or pull; able to frequently climb ramps and stairs, balance,
stoop, kneel, crouch; and able to occasionally climb ladders, ropes, or scaffolds, and
crawl. In addition, the VE was asked to assume that the individual could perform
simple, routine tasks involving simple, short instructions and simple work-related
decisions with few workplace changes and no pace or production requirements. The
VE opined that such an individual could not perform Rodriguez’s past work but could
perform a range of unskilled work, including laundry folder, microfilm processor, and
The ALJ then asked the VE to assume an individual as previously described by
limited to less than sedentary work because unable to lift more than five pounds. The
VE testified that such an individual could perform such work as hand mounter of
photographic products, table worker, or microfilm document preparer.
Finally, the ALJ asked the VE if there would be work for the described individual
if that individual would be absent four days a month. The VE said that there would not
be any work for such an individual.
Rodriguez’s attorney asked the VE to assume an individual with moderate
limitations in his ability to work within a regular schedule, maintain regular attendance
be punctual within customary tolerances, complete a normal work day or work week
without interruptions from psychological symptoms, and moderate limitations in his
ability to perform at a consistent pace without an unreasonable number and length of
rest periods. When asked whether there were jobs for such an individual, the VE
testified that there were not.
III. Standard for Disability
A claimant is entitled to receive benefits under the Act when he establishes
disability within the meaning of the Act. 20 C.F.R. § 416.905; Kirk v. Sec’y of Health &
Human Servs., 667 F.2d 524 (6th Cir. 1981). A claimant is considered disabled when
he cannot perform “substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less than 12 months.”
20 C.F.R. § 416.905(a). To receive SSI benefits, a recipient must also meet certain
income and resource limitations. 20 C.F.R. §§ 416.1100 and 416.1201.
The Commissioner reaches a determination as to whether a claimant is disabled
by way of a five-stage process. First, the claimant must demonstrate that he is not
currently engaged in “substantial gainful activity” at the time he seeks disability benefits.
Second, the claimant must show that he suffers from a “severe impairment” in order to
warrant a finding of disability. A “severe impairment” is one which “significantly limits . .
. physical or mental ability to do basic work activities.” Third, if the claimant is not
performing substantial gainful activity, has a severe impairment that is expected to last
for at least twelve months, and the impairment meets a listed impairment, the claimant
is presumed to be disabled regardless of age, education or work experience. 20 C.F.R.
§§ 404.1520(d) and 416.920(d)(2000). Fourth, if the claimant’s impairment does not
prevent his from doing his past relevant work, the claimant is not disabled. For the fifth
and final step, even if the claimant’s impairment does prevent his from doing his past
relevant work, if other work exists in the national economy that the claimant can
perform, the claimant is not disabled. Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir.
IV. Summary of Commissioner’s Decision
In determining that Rodriguez was not disabled, the ALJ made the following
The claimant has the following severe impairments: low back pain;
diabetes mellitus; coronary artery disease; bipolar disorder; borderline
intellectual functioning; and history of polysubstance dependence.
The claimant does not have an impairment or combination of impairments
that meets or medically equals one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.
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
C.F.R. §§ 404.1567(b) and 416.967(b). With normal breaks, he can stand
and walk for about 6 hours in an 8 hour workday. He is also able to
frequently climb ramps and stairs, balance, stoop, kneel, and crouch and
has the occasional ability to climb ropes, scaffolds, ladders, and crawl.
From a mental health perspective, the claimant is able to perform simple,
routine tasks involving no more than simple, short instructions and simple,
work-related decisions with few workplace changes. However, he is
unable to work in occupations that require pace or production
The claimant is unable to perform any past relevant work.
The claimant was born on July 6, 1958, which is defined as a younger
individual age 18-49, on the alleged disability onset date. The claimant
subsequently changed age category to closely approaching advanced
The claimant has a limited education and is able to communicate in
Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a
finding that the claimant is “not disabled,” whether or not the claimant has
transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P,
Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform.
The claimant has not been under a disability, as defined in the Social
Security Act, from August 22, 2004 through the date of this decision.
Tr. at 14-22.
V. Standard of Review
This Court’s review is limited to determining whether there is substantial evidence
in the record to support the administrative law judge’s findings of fact and whether the
correct legal standards were applied. See Elam v. Comm’r of Soc. Sec., 348 F.3d 124,
125 (6th Cir. 2003) (“decision must be affirmed if the administrative law judge’s findings
and inferences are reasonably drawn from the record or supported by substantial
evidence, even if that evidence could support a contrary decision.”); Kinsella v.
Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983). Substantial evidence has been
defined as “[e]vidence which a reasoning mind would accept as sufficient to support a
particular conclusion. It consists of more than a mere scintilla of evidence but may be
somewhat less than a preponderance.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th
Cir. 1966); see also Richardson v. Perales, 402 U.S. 389 (1971).
Rodriguez alleges that the ALJ erred because substantial evidence does not
support the ALJ’s evaluation of the opinions of (1) Rodriguez’s treating cardiologist
regarding Rodriguez’s functional limitations; (2) the non-examining state agency
psychologist; and (3) the examining state agency psychologist. The Commissioner
denies that the ALJ erred.
Whether substantial evidence supports the ALJ’s evaluation of the opinions of
Rodriguez’s treating cardiologist regarding Rodriguez’s functional limitations
Rodriguez argues that the ALJ erred in his characterization of the opinion of
Rodriguez’s treating physician, Dr. Welch, as consistent with the opinion of the nonexamining agency doctor, Dr. Pella. The Commissioner asserts that substantial
evidence supports the ALJ’s assessment of Dr. Welch’s opinion because any limitations
in Dr. Welch’s opinion that were not included in Dr. Pella’s opinion were not significant.
The opinion of treating physicians should be given greater weight than those of
physicians hired by the Commissioner. Lashley v. Secretary of Health and Human
Servs., 708 F.2d 1048 (6th Cir. 1983). This is true, however, only when the treating
physician's opinion is based on sufficient objective medical data and is not contradicted
by other evidence in the record. 20 C.F.R. §§ 404.1527(d)(3), 416.927(d)(3); Jones v.
Secretary of Health and Human Services, 945 F.2d 1365, 1370 & n.7 (6th Cir. 1991);
Sizemore v. Secretary of Health and Human Services, 865 F.2d 709, 711-12 (6th Cir.
1988). Where there is insufficient objective data supporting the opinion and there is no
explanation of a nexus between the conclusion of disability and physical findings, the
factfinder may choose to disregard the treating physician's opinion. Landsaw v.
Secretary of Health and Human Servs., 803 F.2d 211, 212 (6th Cir. 1986).
Nevertheless, the ALJ must provide “good reasons” for the weight assigned to treating
physicians. Failure to do so does not constitute harmless error and requires remand.
Wilson v. Commissioner of Social Security, 378, F.3d, 541, 544 (6th. Cir. 2004).
Dr. Welch, a treating cardiologist, opined that Rodriguez was moderately limited
in his abilities to push/pull, bend, reach, and handle. Dr. Pella, an agency physician
who did not examine Rodriguez, found that Rodriguez was not limited in his ability to
push, pull, or bend and did not make any finding regarding Rodriguez’s ability to reach
or handle. In giving greater weight to Dr. Pella’s opinion than to the opinions of other
treating and examining physicians, the ALJ stated, “I give greater wight to Dr. Pella’s
opinion as he had the opportunity to evaluate a majority of the medical evidence and his
opinion is consistent with the claimant’s treating source, T.G. Welch, M.D., who also
indicated the claimant was capable of light work.” Tr. at 20. The ALJ did not explain
why he ignored Dr. Welch’s opinions regarding Rodriguez’s abilities to push/pull, bend,
reach, and handle. In the hypothetical question given to the VE, the ALJ asked the VE
to assume an individual whose ability to push/pull was unlimited and did not ask the VE
to assume any limitations with respect to bending, reaching, or handling.
The Commissioner responds that the failure to explain why the ALJ ignored
portions of Dr. Welch’s opinion and failure to include limitations in Rodriguez’s abilities
to push, pull, bend, reach, or handle was harmless because these limitations would not
significantly limit one’s ability to do light work. The Commissioner argues:
The Social Security Rulings at 83-14 and 85-15 indicate that light jobs require
bending/stooping only occasionally (from very little to one-third of the time).
Likewise, these Social Security Rulings explain that sedentary work requires
good use of the hands and fingers for fine manual dexterity, but light jobs would
not require fine use of the fingers for handling or fingering, thus accommodating
a moderate limitation on handling. Social Security Ruling 85-15 states that
significant limitations of reaching might eliminate large numbers of jobs at all
exertion levels, but Dr. Welch did not place a significant limitation on reaching,
only a moderate one. Moreover, pushing and pulling weights up to twenty
pounds, consistent with light work, could also be reasonably equated with a
moderate restriction in this area. As the doctor assessed only moderate
restrictions in these four areas, not significant limitations, the ALJ reasonably
concluded that Dr. Welch’s opinion was consistent with light work, and accepted
it as supporting Dr. Pella’s conclusions as well as his decision.
Defendant’s Brief on the MNerits, p. 14.
Plaintiff, quite rightly, takes issue with nearly every assertion in the
Commissioner’s argument. First, the ALJ is required to give good reasons for the
weight he assigned to the opinions of treating physicians, not attorneys arguing after the
fact. In the case of Dr. Welch’s opinion with respect to limitations regarding pushing,
pulling, bending, reaching, or handling, the ALJ failed to give any explanation
whatsoever as to why he did not give that opinion controlling weight. As the Sixth
Circuit held in Wilson, that failure by itself requires remand.
Second, the Commissioner’s attempt to equate “moderate” restrictions with “not
significant” restrictions is inexplicable. The form Dr. Welch used to indicate the degree
to which Rodriguez was limited in various abilities provided five possible categories of
limitation: “none,” “not significantly limited,” “moderately limited,” “markedly limited,” and
“extremely limited.” Dr. Welch checked “moderately limited” for pushing/pulling,
bending, reaching, and handling. To argue that “moderately limited” means “not
significantly limited” is unsupportable.
Third, the Commissioner’s argument confuses manipulation with handling. As
plaintiff notes, “handling” is a form of gross manipulation and consists of “seizing,
holding, grasping, turning or otherwise working primarily with the whole hand or hands.”
Plaintiff’s Brief on the Merits, p. 4 (quoting SSR 85-15). “Fingering” is a form of fine
manipulation and consists of “picking, pinching, or otherwise working primarily with the
fingers.” Plaintiff’s Brief at 4 (quoting SSR 85-15). According to SSR 83-14:
Unlike unskilled sedentary work, many unskilled light jobs do not entail fine use of
the fingers. Rather, they require gross use of the hands to grasp, hold, and turn
objects. Any limitation of these functional abilities must be considered very
carefully to determine its impact on the size of the remaining occupational base
of a person who is otherwise found functionally capable of light work.
(Unnumbered pages). The Commissioner’s argument that “light jobs would not require
fine use of the fingers for handling or fingering, thus accommodating a moderate
limitation on handling” confuses two distinct limitations, and it ignores the limitation that
must be “considered very carefully” in the present case.
Plaintiff also argues that the ALJ’s failure to include Dr. Welch’s limitations in his
hypothetical questions prejudiced Rodriguez. Plaintiff cites the Dictionary of
Occupational Titles (“DOT”) as listing laundry folder, microfilm processor, and collator
operator, the three jobs the VE testified Rodriguez could perform at the light exertional
level, as requiring frequent reaching. See Plaintiff’s Brief at 10. Frequent reaching is at
odds with Dr. Welch’s assessment that Rodriguez was moderately limited in his ability
Because the ALJ failed to explain why he failed to give Dr. Welch’s opinion
regarding Rodriguez’s functional limitations controlling weight, the ALJ’s decision is not
supported by substantial evidence. For this reason, the case must be remanded to the
ALJ for a more careful examination of Dr. Welch’s opinion and, if the ALJ decides not to
give portions of that opinion controlling weight, a complete explanation of why the ALJ
has reached that conclusion.
Whether substantial evidence supports the ALJ’s evaluation of the opinions of
the non-examining state agency psychologist
Plaintiff contends that the ALJ stated that he gave substantial weight to Dr.
Stailey-Steiger’s opinion then failed to apply that opinion in giving a proper hypothetical
question. The ALJ found that Dr. Stailey-Steiger’s opinion was “not inconsistent with
the medical evidence as a whole, and [is] therefore accorded substantial weight in
determining the claimant’s residual functional capacity.” Tr. at 21. Part of StaileySteiger’s opinion, as the ALJ noted, was that Rodriguez was limited to performing “1 to
2 step tasks with no pace or production requirements.” Tr. at 20. Plaintiff argues that
the failure to include this limitation in any hypothetical question prejudiced Rodriguez:
The DOT shows that the ALJ’s error with respect to Dr. Stailey-Steiger’s opinion
at issue was harmful. Each DOT occupation has a General Educational
Development (GED), which has three elements: Reasoning, Math, and
Language. DOT, App. C. Each DOT occupation has a Reasoning Level
between 1 and 6. Id. Appendix C of the DOT defines Reasoning Levels 1, 2, and
01 LEVEL REASONING DEVELOPMENT
Apply commonsense understanding to carry out simple one- or two-step
instructions. Deal with standardized situations with occasional or no
variables in or from these situations encountered on the job.
02 LEVEL REASONING DEVELOPMENT
Apply commonsense understanding to carry out detailed but uninvolved
written or oral instructions. Deal with problems involving a few concrete
variables in or from standardized situations.
03 LEVEL REASONING DEVELOPMENT
Apply commonsense understanding to carry out instructions furnished in
written, oral, or diagrammatic form. Deal with problems involving several
concrete variables. Id. (emphasis added).3
In light of those definitions, only Reasoning Level 1 is consistent with Dr. Stailey3
Steiger’s opinion about one-step and two-step tasks. (R. at 316.) All three DOT
occupations underlying the ALJ’s step-five decision have Reasoning Levels
higher than 1:
laundry folder 369.687-018
microfilm processor 976.385-010
collator operator 208.685-010
DOT Reasoning Level
2 (Ex. A at 6)
3 (Ex. A at 11)
2 (Ex. A at 2)
(R. at 22, 51.) See also Hulsey v. Astrue, 622 F.3d 917, 923 (8th Cir. 2010)
(“Only occupations with a reasoning development level of one necessarily involve
only simple instructions”); Lucy v. Chater, 113 F.3d 905, 908-09 (8th Cir. 1997)
(Reasoning Level 1 is consistent with the performance of “simple” duties and
borderline intellectual functioning) . . . .
Plaintiff’s Brief at 14-15.
Plaintiff overstates Dr. Stailey-Steiger’s opinion with respect to one- and two-step
instructions. Dr. Stailey-Steiger did not opine that Rodriguez could only follow one- or
two-step instructions. Rather she opined, “He is best suited for 1-2 step tasks with no
pace or production requirements.” Tr. at 316 (emphasis added). Nevertheless, Dr.
Stailey-Steiger’s opinion clearly limits Rodriguez to 01 Reasoning Level Development.
That level permits carrying out “simple one- or two-step instructions.” The next level, 02
Level Reasoning Development, requires carrying out “detailed . . . written or oral
instructions.” Dr. Stailey-Steiger opined that Rodriguez is markedly limited in his ability
to understand and remember detailed instructions and his ability to carry out detailed
instructions. Thus, finding that Rodriguez could perform jobs categorized as requiring
Level 2 or Level 3 reasoning directly conflicts with Dr. Stailey-Steiger’s opinion, an
opinion the ALJ said that he gave “substantial weight.” The ALJ does not explain this
Again, the ALJ’s failure to explain his reasoning fully leaves the court not knowing
why the ALJ formed his hypothetical questions as he did. Consequently, it cannot be
said that the ALJ’s decision based on the answers to those questions is supported by
substantial evidence. For this reason, the case must be remanded to the ALJ to
examine Dr. Stailey-Steiger’s opinion more carefully and better explain how he used
that opinion in reaching his decision.
Whether substantial evidence supports the ALJ’s evaluation of the opinions of
the examining state agency psychologist
Plaintiff’s argument regarding the opinions of the examining state agency
psychologist, Dr. Tanley, is not entirely clear. The case must be remanded, however,
for the reasons described above. Consequently, the court need not examine
Rodriguez’s third argument.
Because the ALJ failed to explain why he failed to give Dr. Welch’s opinion regarding
Rodriguez’s functional limitations controlling weight and failed adequately to explain how
he used Dr. Dr. Stailey-Steiger’s opinion in reaching his decision, the ALJ’s decision is not
supported by substantial evidence. For these reasons, the court REVERSES the opinion
of the Commissioner and REMANDS the case for further proceedings consistent with this
It is unclear whether the problem lies in the way the ALJ phrased the hypothetical
or in the VE’s opinion regarding which jobs Rodriguez could perform. The ALJ’s
hypothetical included a limitation to “simple, routine tasks involving no more than simple,
short instructions and simple work-related decisions,” tr. at 50, would seem to limit the
hypothetical individual to tasks at 01 Reasoning Level Development.
IT IS SO ORDERED.
Date: February 6, 2012
s/ Nancy A. Vecchiarelli
Nancy A. Vecchiarelli
U.S. Magistrate Judge
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