Harrison v. Commissioner of Social Security

Filing 20

Memorandum Opinion and Order that the Magistrate Judge finds that the decision of the Commissioner is not supported by substantial evidence and the Court VACATES the decision of the Commissioner and REMANDS the case to the Social Security Administration. Signed by Magistrate Judge Kenneth S. McHargh on 3/7/16. (M,De)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOSEPH HARRISON,
Plaintiff,
v.

COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.

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CASE NO. 3:14-cv-2661
MAGISTRATE JUDGE
KENNETH S. McHARGH

MEMORANDUM OPINION &
ORDER

This case is before the Magistrate Judge pursuant to the consent of the parties. (Doc. 13).
The issue before the undersigned is whether the final decision of the Commissioner of Social
Security (“Commissioner”) denying Plaintiff Joseph Harrison’s (“Plaintiff” or “Harrison”)
applications for Supplemental Security Income benefits under Title XVI of the Social Security
Act, 42 U.S.C. § 1381 et seq., and for a Period of Disability and Disability Insurance benefits
under Title II of the Social Security Act, 42 U.S.C. §§ 416(i) and 423, is supported by substantial
evidence and, therefore, conclusive.
For the reasons set forth below, the Court VACATES the Commissioner’s decision and
REMANDS the case back to the Social Security Administration.
I. PROCEDURAL HISTORY
On January 27, 2012, Plaintiff filed applications for Supplemental Security Income
benefits and Disability Insurance benefits, alleging disability as of November 29, 2011 due to
spinal neuropathy and degenerative disc disease. (Tr. 13, 59).

The Social Security

Administration denied his claim initially and upon reconsideration. (Tr. 59, 67-68, 70, 85). On
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July 17, 2012, an ALJ convened an administrative video hearing where Plaintiff, represented by
counsel, appeared and testified. (Tr. 27-58). A vocational expert (“VE”), George Coleman, also
appeared and testified. (Id.).
On June 27, 2013, the ALJ issued an unfavorable decision, finding Plaintiff was not
disabled. (Tr. 13-22). After applying the five-step sequential analysis,1 the ALJ determined that
there are jobs that exist in significant numbers in the national economy that Plaintiff can perform.
(Id.). The Appeals Counsel denied Plaintiff’s request for review on October 10, 2014. (Tr. 1-3),
making the ALJ’s June 27, 2013 determination the final decision of the Commissioner. (Tr. 1-3,
13-22). Plaintiff now seeks judicial review of the ALJ’s final decision pursuant to 42 U.S.C. §§
405(g) and 1383(c).

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The Social Security Administration regulations require an ALJ to follow a five-step sequential analysis
in making a determination as to “disability.” See 20 C.F.R. §§ 404.1520(a), 416.920(a). The Sixth Circuit
has summarized the five steps as follows:
(1)

If a claimant is doing substantial gainful activity–i.e., working for profit–she is not
disabled.

(2)

If a claimant is not doing substantial gainful activity, her impairment must be severe
before she can be found to be disabled.

(3)

If a claimant is not doing substantial gainful activity and is suffering from a severe
impairment that has lasted or is expected to last for a continuous period of at least twelve
months, and her impairment meets or equals a listed impairment, claimant is presumed
disabled without further inquiry.

(4)

If a claimant’s impairment does not prevent her from doing her past relevant work, she is
not disabled.

(5)

Even if a claimant’s impairment does prevent her from doing her past relevant work, if
other work exists in the national economy that accommodates her residual functional
capacity and vocational factors (age, education, skills, etc.), she is not disabled.

Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990); Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534
(6th Cir. 2001).

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II. EVIDENCE
A. Personal Background Information
Plaintiff was born on July 5, 1976, making him 35 years old as of the alleged date of
disability, and 36 years old on the date of the hearing. (Tr. 31, 59). As a result, Plaintiff was
considered a “younger person” for Social Security purposes. 20 C.F.R. §§ 404.1563(c),
416.963(c). Plaintiff graduated from high school and took engineering courses from a two year
technical college, but did not receive a degree. (Tr. 32-33). He has past relevant work as a
maintenance worker, maintenance data coordinator, and a mechanic. (Tr. 66-67, 84).
B. Medical Evidence2
Sudesh S. Reddy, M.D.
Prior to the alleged onset date, Plaintiff presented to his primary care physician, Sudesh
S. Reddy, M.D., on multiple occasions since 2008 complaining of severe lower back pain (Tr.
417-19). On order from Dr. Reddy, Plaintiff underwent an MRI of his lumbar spine on June 10,
2008, showing shallow bulging at the L5-S1 and L4-L5 levels, and associated mild bilateral facet
arthrosis at L5-S1. (Tr. 430). Treatment notes from October 13, 2009 indicated a referral to Dr.
Bonasso for a surgical consultation. (Tr. 417). On October 27, 2009, Plaintiff requested more
Vicodin and Flexeril for two collapsed discs in his back, saying he needed to take them every
two hours to function. (Tr. 416). Examination notes dated February 1, 2010, showed Plaintiff
stated he had been in pain and had not taken Vicodin since October of 2009, and requested more
pain medication, although Dr. Reddy explained he would not prescribe Vicodin for chronic pain.
(Tr. 414). Examination showed tenderness at the L4-L5 level, 4/5 strength bilaterally, and
The following recital is an overview of the medical evidence pertinent to Plaintiff’s appeal. It is not
intended to reflect all of the medical evidence of record. Plaintiff’s challenges to the ALJ’s findings
relate primarily to his physical impairments. Accordingly, this summary focuses on medical evidence
relating to Plaintiff’s physical condition during the relevant period, although the record includes evidence
pertaining to Plaintiff’s physical and mental impairments.
2

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spasms along the L3-L5 paraspinals. (Id.). On February 10, 2010, Plaintiff was diagnosed with
L-S spine chronic pain, and Dr. Reddy noted negative findings/no acute changes shown in an xray of Plaintiff’s L/S spine, dated February 15, 2010. (Tr. 412-13, 427).
Following back surgery with Dr. Bonasso, performed June 11, 2010, Plaintiff had a
follow-up examination with Dr. Reddy on June 21, 2010. (Tr. 411). Examination notes showed
Plaintiff was doing well, and had no pain in his back or legs. (Id.). Dr. Reddy’s notes dated
January 3, 2012, stated Plaintiff had gone back to work following his surgery in September of
2010, but that he had not worked since problems with his legs caused him to fall into a machine
at work.

(Tr. 406).

After reviewing Plaintiff’s functional capacity assessment performed

Janaury 3, 2012, Dr. Reddy noted it said Plaintiff could not be gainfully employed. (Id.). Dr.
Reddy extended Plaintiff’s time off work until May of 2012, and encouraged him to apply for
disability. (Id.).
Plaintiff continued to complain of back pain in July and August of 2012, and Dr. Reddy
referred him to pain management, although Plaintiff stated he could not afford it. (Tr. 404-05).
Dr. Reddy also issued Plaintiff a slip to obtain a handicapped parking permit in May of 2012.
(Tr. 405).
Christian Bonasso, M.D.
Plaintiff presented at the Marion Clinic for a surgical consultation with Christian
Bonasso, M.D., on October 21, 2009. (Tr. 317). Plaintiff informed Dr. Bonasso that he had
suffered from lower back pain for years, with no relief from medications, therapy, or injections.
(Id.). Examination showed Plaintiff had 5/5 strength in both upper and lower extremities, and
after review of an MRI scan, Dr. Bonasso diagnosed Plaintiff with degenerative disc disease with
biforaminal encroachment at L4-L5 and L5-S1. (Id.). Noting his age and work history as a

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mechanic, Dr. Bonasso informed Plaintiff an interbody fusion at L4-L5 and S1 may limit his
abilities as a mechanic. (Tr. 317-18). On April 6, 2010, following a positive discography at L4L5 and L5-S1, Dr. Bonasso documented that conservative treatment had failed, and Plaintiff
would undergo a surgical procedure including decompression, fusion and fixation with interbody
grafting at L4-L5 and L5-S1, which was performed on June 11, 2010. (Tr. 319, 343-45).
After the surgery, Plaintiff had a follow-up appointment on July 7, 2010, at which time
Dr. Bonasso reported Plaintiff was doing well, could now feel his leg, and that postoperative
films looked good. (Tr. 321). Dr. Bonasso directed Plaintiff to stay off work until September of
2010. (Id.). Plaintiff was reported as stable and off all pain medication two months after the
operation, in treatment notes dated September 1, 2010, where Dr. Bonasso further noted Plaintiff
would be returning to work the following week. (Tr. 322). On November 29, 2011, Plaintiff
returned to Dr. Bonasso with complaints for dysesthetic pain down both his legs. (Tr. 324). Dr.
Bonasso reviewed MRI, X-rays, and Plaintiff’s EMG, finding completely normal results, but
nonetheless started Plaintiff back on Neurontin and provided him with a two week off-work slip,
noting he believed Plaintiff’s job may be aggravating his condition.

(Tr. 323-24). When

questioned as to whether Plaintiff should apply for disability, Dr. Bonasso did not give Plaintiff
an opinion, but referred him for an occupational medicine exam (which was performed on
December 12, 2011, described in detail below), and noted he would not recommend further
surgery at that point. (323).
On December 12, 2011, Plaintiff presented for a functional capacity evaluation at
Physiotherapy Associates, and was evaluated by Scott Secrest, MS, OT/L.

(Tr. 389-403).

Based on review of client reports and provided medical documentation, Mr. Secrest noted
Plaintiff had a history of back pain, having been diagnosed on 1998 with degenerative disc

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disease. (Tr. 389). Noting a rapid progression of symptoms, Mr. Secrest stated Plaintiff had
periods when he could not work due to increased pain and functional limitations, and that his
diagnosis was treated conservatively with medication, physical therapy, and injections, until
undergoing surgery in June of 2010. (Id.). Mr. Secrest further remarked that, while Plaintiff
initially showed marked improvement following surgery, his symptoms gradually returned and
progressed, currently managed again with physical therapy, injections, and medication. (Id.).
Mr. Secrest further noted Dr. Bonasso had recently restricted Plaintiff from work due to
increased safety risk with work related activities. (Id.).
Mr. Secrest noted during the intake interview that Plaintiff’s functional movements
including transitions from sitting/standing and walking were extremely guarded, and that he
reported a pain level of 8 out of 10.

(Tr. 389).

Examination showed Plaintiff exhibited

significant limitations in all components of work, including material handling, positional tasks,
and mobility tasks. (Tr. 386). Lumbar testing showed positive results bilaterally, and lumbar
range of motion was at 25% of normal results. (Tr. 393). Mr. Secrest further concluded that,
based on statistical and clinical indicators, Plaintiff provided a sincere effort throughout the
evaluation, and the results were an accurate representation of his abilities, with 14 of 14
consistency measures within expected limits. (Tr. 390, 394, 396).
Mr. Secrest concluded, based on his evaluation, Plaintiff’s movement patterns, and his
subjective reports, that Plaintiff’s feasibility for returning to competitive employment was
marginal at best. (Tr. 387). In so finding, Mr. Secrest opined that Plaintiff had insufficient
functional range of motion to perform any lifting from floor level, and required frequent, at-will
opportunities to make transitions between sitting and standing. (Id). Further, even with such
transitional opportunities, Mr. Secrest stated Plaintiff’s pace of movement and frequent pain

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behaviors would not be acceptable within competitive vocational environments, and therefore he
could not confidently recommend Plaintiff return to work. (Id.).
On January 16, 2012, a Nurse Case Manager for disability case management at Liberty
Mutual Insurance requested answers to specific questions regarding Plaintiff’s functioning
capacity evaluation performed by Mr. Secrest. (Tr. 376). Dr. Bonasso stated he agreed with Mr.
Secrest’s conclusion that Plaintiff’s return to competitive employment was marginal at best.
(Id.). He further expressed that Plaintiff was limited to no repetitive bending, no lifting greater
than 20 pounds, and that he needed to change position every 15 minutes. (Id.). Dr. Bonasso also
stated he found these limitations to be permanent, and indicated Plaintiff’s current treatment plan
included Neurontin and was considering a possible spinal cord stimulator (SCS) trial. (Id.).
David McGue, P.A.-C
Plaintiff presented at the Veteran’s Administration on October 16, 2012, with a chief
complaint of low back pain. (Tr. 457). Plaintiff was seen by David McGue, P.A.-C, who noted
his surgical history and reports of chronic low back pain and a limited range of motion. (Id.).
P.A. McGue noted that examination showed Plaintiff exhibited stable station and gait, but could
flex only to above the waist with pain, and extensions only 0-5 degrees with pain bilaterally at
the paraspinal muscle groups. (Tr. 459). Further examination of his lumbar spine showed
positive results for midline, facet tenderness, as well as increased pain with deep palpitation of
the paraspinal muscle, and with flexion, extension, side-bending and rotation. (Tr. 460). P.A.
McGue also noted positive pain in the paraspinal muscle groups in all range of motion of the
back, increased his Neurontin dosage, and added a prescription for meloxicam to help control the
pain. (Id.).

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At a follow-up visit with P.A. McGue on February 11, 2013, Plaintiff reported he had
loss of sensation in the urinary tract, and recent increase of pain, reported as 8/10 on the pain
scale, and worse with almost any movement. (Tr. 519). On examination, P.A. McGue found
low back area pain on the right and left-sided paraspinal muscle group, and positive patella deep
tendon reflexes bilaterally, noting Plaintiff had difficulty with range of motion due to lower back
pain. (Tr. 520). Plaintiff also was documented as having a labored gait, and P.A. McGue again
increased his Neurontin dosage. (Tr. 519-20).
On February 22, 2013, Plaintiff reported to a VA nurse that he experienced dizziness due
to his pain medications, which were of poor effect. (Tr. 517-18). On February 20, 2013,
Plaintiff again presented at the Veteran’s Administration for physical therapy, equipment fitting,
and training consultation related to his chronic low back pain. (Tr. 516). At this time, Plaintiff
was fitted for, and issued, a straight cane for use as an ambulatory aid. (Tr. 516-17). Plaintiff
was referred to Mehr Siddiqui, M.D., for a neurology consultation on April 4, 2013. (Tr. 51112). Plaintiff stated his pain was unchanged since his last visit, was worse with sitting and
standing, and that medication helped a little, but had side effects of irritability, sleeplessness, and
losing blocks of time. (Tr. 509, 512). Dr. Siddiqui noted Plaintiff had a normal gait, but
indicated Plaintiff tested positive when he performed a Romberg test. (Tr. 511). Plaintiff was
diagnosed with paraesthesias of the lower limbs and L5-S1 radiculopathy, but concluded there
was no evidence of a spinal cord lesion. (Id.).
State Agency
On May 22, 2012, state agency doctor Khozema Rajkotwala, M.D., conducted a
consultative examination on Plaintiff. (Tr. 442-48). Notes stated Plaintiff arrived alone, and he
did not need any ambulatory aide. (Tr. 446). Plaintiff reported a history of leg numbness, but

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that he was not currently experiencing any numbness because he had been resting his legs. (Id.).
He further reported that he had difficulty sitting, standing, and walking for more than 10-15
minutes, and Dr. Rajkotwala’s examination notes showed that Plaintiff had difficulty sitting in
his chair then moving to the examination table, although he opined that “[t]he patient can sit,
stand, and walk with no difficulty.” (Tr. 446, 448). On examination, Plaintiff showed 5/5 motor
function in his upper and lower extremities, and generally intact range of motion, except he
exhibited limited range of motion at his dorsolumbar spine. (Tr. 442-45, 447). Dr. Rajkotwala
further opined that Plaintiff had the ability to lift and carry five to ten pounds frequently, and
fifteen to twenty pounds occasionally. (Tr. 448).
On June 4, 2012, state agency reviewing physician, William Bolz, M.D., reviewed the
medical evidence of record and formulated an opinion as to Plaintiff’s exertional limitations.
(Tr. 64-66). Dr. Bolz found Plaintiff was able to occasionally lift or carry twenty pounds, and
frequently lift or carry ten pounds, in an eight hour work day. (Tr. 65). Further, Dr. Bolz opined
Plaintiff could stand or walk for a total of four hours, sit for six hours, and had no limitations in
his ability to push or pull, but could frequently climb ladders, ropes, and scaffolds, and
frequently stoop. (Id.). Dr. Bolz did not provide any specific evidence to explain his exertional
limitations other than to again state he is able to stand and walk for four hours. (Id.).
State agency reviewer Maureen Gallagher, D.O., provided an opinion on December 3,
2012. (Tr. 79-81).

Dr. Gallagher found Plaintiff was capable of carrying twenty pounds

occasionally and ten pounds frequently, and could stand or walk and sit for four hours in an eight
hour day. (Tr. 80). However, Dr. Gallagher opined that Plaintiff could only walk for thirty
minutes at a time, and that he must periodically alternate sitting and standing, at will, to relieve
pain and discomfort, noting at his examination Plaintiff had difficulty sitting and moving to the

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examination table, as well as forward flex to waist only with pain.

(Id.).

Further, Dr.

Gallagher’s opinion stated Plaintiff could occasionally climb ramps and stairs, balance, stoop,
kneel, and crouch, and could never crawl or climb ladders, ropes, or scaffolds. (Id.).
C. Plaintiff’s Testimony
During the hearing, Plaintiff requested permission from the ALJ to stand up for a minute
during his testimony, which the ALJ granted, stating Plaintiff was free to stand up whenever he
needed to. (Tr. 34). Plaintiff testified he is unable to work because of his back pain, which will
cause his feet and legs to go numb, as well as his not being able to stay sitting or standing for
very long. (Tr. 36). He stated he underwent multiple injections and therapy for his spine, and
that he was able to return to work following surgery. (Id.). However, Plaintiff further testified
that in November of 2011, following increased pain and incidences of his legs not working right,
his legs gave out and he fell into a machine at work. (Tr. 36-37). Regarding his medication,
Plaintiff testified that he takes Meloxicam to alleviate swelling in his spine, and takes the
maximum allowed dosage of Neurontin for the pain, but that it only helps for the first hour after
he takes it, and he believes he is building up a tolerance for it. (Tr. 37). Plaintiff testified he gets
some relief when lying down, but that a hot, spiking pain returns within minutes of standing back
up, and he experiences excruciating pain and hot tingling numbness in his legs if he sits up in a
chair (Tr. 38-39). According to his testimony, walking is the most painful for Plaintiff, with
pain shooting down his legs with each step. (Tr. 40).
Plaintiff presented at the hearing with a cane, and testified that he had been using the
cane ninety-five percent of the time for the past few months. (Tr. 40). Plaintiff stated P.A.
MaGue from the VA sent him to a physical therapy specialist in Columbus, and that it was
recommended he use the cane for stabilization and to take the pressure off nerves when he

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walked. (Id.). Plaintiff testified his wife drove him to the hearing, and they had to stop every
fifteen to twenty minutes and he rode with the seat reclined all the way down. (Tr. 41). Further,
Plaintiff testified he is able to drive sometimes for very short distances, with an example of to the
store two miles from his house. (Tr. 41-42). Relating to his surgery, Plaintiff expressed that Dr.
Bonasso was of the opinion that there were no more surgeries he could perform at that time that
would provide any benefit to Plaintiff, but that the VA neurosurgeon suggested they may have to
eventually remove scar tissue from the nerves and spinal cord. (Tr. 47).
III. SUMMARY OF THE ALJ’S DECISION
The ALJ made the following findings of fact and conclusions of law:
1. The claimant meets the insured status requirements of the Social Security Act through
December 31, 2015.
2. The claimant did not engage in substantial gainful activity since November 29, 2011, the
alleged onset date.
3. The claimant has the following severe impairments: disorders of the back, urinary
incontinence, cholelithiasis, an anxiety disorder, depression, and post-traumatic stress
disorder.
4. The claimant does not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1.
5. After careful consideration of the entire record, the undersigned finds that the claimant
has the residual functional capacity to perform sedentary work, as defined in 20 CFR
404.1567(a), except that he should never crawl or climb ladders, ropes and scaffolds, and
can only occasionally stoop, kneel, crouch and balance. The claimant also requires the
ability to change from a sitting position to a standing position (and vice-versa) at least
every thirty minutes. Furthermore, the claimant should avoid all exposure to the use of
hazardous machinery, operational control of moving machinery, and unprotected heights.
Finally, the claimant is limited to the performance of simple, routine and repetitive tasks,
in a work environment where changes occur on no more than an occasional basis, and
where there is no greater than occasional interaction with coworkers or the public.
6. The claimant is unable to perform any past relevant work.
7. The claimant was born on July 5, 1976 and was 35 years old, which is defined as a
younger individual age 18-44, on the alleged disability onset date.
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8. The claimant has at least a high school education and is able to communicate in English.
9. 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.
10. 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.
(Tr. 385-95) (internal citations omitted).
IV. DISABILITY STANDARD
A claimant is entitled to receive Disability Insurance and/or Supplemental Security
Income benefits only when she establishes disability within the meaning of the Social Security
Act. See 42 U.S.C. §§ 423, 1381. A claimant is considered disabled when she cannot perform
“substantial gainful employment by reason of any medically determinable physical or mental
impairment that can be expected to result in death or that has lasted or can be expected to last for
a continuous period of not less than twelve (12) months.” See 20 C.F.R. §§ 404.1505, 416.905.
V. STANDARD OF REVIEW
Judicial review of the Commissioner’s benefits decision is limited to a determination of
whether, based on the record as a whole, the Commissioner’s decision is supported by substantial
evidence, and whether, in making that decision, the Commissioner employed the proper legal
standards. See Cunningham v. Apfel, 12 F. App’x 361, 362 (6th Cir. 2001); Garner v. Heckler,
745 F.2d 383, 387 (6th Cir. 1984); Richardson v. Perales, 402 U.S. 389, 401 (1971).
“Substantial evidence” has been defined as more than a scintilla of evidence but less than a
preponderance of the evidence. See Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 535
(6th Cir. 1981). Thus, if the record evidence is of such a nature that a reasonable mind might

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accept it as adequate support for the Commissioner’s final benefits determination, then that
determination must be affirmed. Id.
The Commissioner’s determination must stand if supported by substantial evidence,
regardless of whether this Court would resolve the issues of fact in dispute differently or
substantial evidence also supports the opposite conclusion. See Mullen v. Bowen, 800 F.2d 535,
545 (6th Cir. 1986); Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983). This Court may
not try the case de novo, resolve conflicts in the evidence, or decide questions of credibility. See
Garner, 745 F.2d at 387. However, it may examine all the evidence in the record in making its
decision, regardless of whether such evidence was cited in the Commissioner’s final decision.
See Walker v. Sec’y of Health & Human Servs., 884 F.2d 241, 245 (6th Cir. 1989).
VI. ANALYSIS
A. Medical Opinion Evaluation - Treating Source Analysis
Plaintiff first alleges that the ALJ erred in his analysis and attribution of weight to the
opinion of his treating specialist, Christian Bonasso, M.D. (including the FCE performed at his
direction). Plaintiff asserts the ALJ did not articulate valid reasons for the weight assigned to the
treating source’s opinion, or otherwise adhere to the treating source rule in general. It is wellestablished that an ALJ must give special attention to the findings of a claimant’s treating
sources. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). This doctrine,
referred to as the “treating source rule,” recognizes that physicians who have a long-standing
relationship with an individual are best-equipped to provide a complete picture of the person’s
health and treatment history. Id; 20 C.F.R. § 416.927(c)(2). Opinions from treating physicians
are entitled to controlling weight only if the opinion is (1) “well-supported by medically
acceptable clinical and laboratory diagnostic techniques” and (2) “not inconsistent with the other
substantial evidence in the case record.” Id.
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When an ALJ determines a treating physician’s opinion is not entitled to controlling
weight, the ALJ must consider the following factors in deciding what weight is appropriate: (1)
the length of the treatment relationship and the frequency of examination, (2) the nature and
extent of the treatment relationship, (3) supportability of the opinion, (4) consistency of the
opinion with the record as a whole, (5) the specialization of the treating source, and (6) any other
factors which tend to support or contradict the opinion. Id. Moreover, the regulations require
the ALJ to provide “good reasons” for the weight ultimately assigned to the treating source’s
opinions. Id.; Friend v. Comm’r of Soc. Sec., 375 Fed. App’x 543, 550 (6th Cir. 2010) (“The
ALJ’s decision as to how much weight to accord a medical opinion must be accompanied by
‘good reasons’ that are ‘supported by the evidence in the case record, and must be sufficiently
specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating
source’s medical opinion and the reasons for that weight.’”) (quoting S.S.R. 96-2p, 1996 WL
374188, at *5 (July 2, 1996)). “This procedural ‘good reason’ rule serves both to ensure
adequacy of review and to permit the claimant to understand the disposition of his case.” Id. at
551-52 (citing Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007)) (internal page
numbers omitted).
At the outset, Dr. Bonasso was clearly a “treating physician” requiring application of
treating source analysis. A physician may be deemed a “treating source” if the claimant sees her
“with a frequency consistent with accepted medical practice for the type of treatment and/or
evaluation required for [the] medical condition.” Smith v. Comm’r of Soc. Sec., 482 F.3d 873,
876 (6th Cir. 2007) (alteration in original) (quoting 20 C.F.R. § 404.1502). Records show
Plaintiff sought treatment from Dr. Bonasso for his back pain beginning in October of 2009, and
continuing through at least January of 2012 (although the record reflected the possibility of

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treatment past that date). (Tr. 317-18, 376). Treatment notes showed Plaintiff had multiple
office visits, surgery, diagnostic testing, and medication management through Dr. Bonasso over
the years, as well as a referral for, and review of, a functional capacity evaluation performed in
December of 2011. (Id.). Nothing indicates this is not of a standard frequency for treatment by a
surgical specialist so as to avoid classification as a treating source. As a result, the ALJ was
required to apply the treating source rule in his analysis, and give “good reasons” for discounting
Dr. Banasso’s assessment.
After providing a brief description of Dr. Bonasso’s treatment records, as well as the FCE
(performed by a physical therapist at his direction), the ALJ found the opinion that Plaintiff was
limited to sedentary or less than sedentary work, along with “other limitations” was only
“partially credible.” (Tr. 19-20). In support, the ALJ reasoned the opinion was in contrast to
those of the state agency doctors who found Plaintiff could perform a sedentary to light range of
work with additional postural and environmental limitations. (Tr. 20). He continued to explain:
[T]here was little support within the claimant’s broader treatment
record or in other evidence to indicate that he was quite as limited
as indicated in the functional capacity assessment or to corroborate
Dr. Bonasso’s assessment that the claimant had marginal ability to
re-enter the workplace. …Overall, the weight of the evidence
indicated that the claimant was somewhat more limited than
indicated by the State agency doctors…but not quite as limited as
identified by the therapist and Dr. Bonasso.
(Tr. 20-21) (no internal citations). The ALJ further discredited the FCE specifically, by pointing
out that the report “noted several times that many of the limiting factors of the test were the
claimant’s reports of pain,” and made the generalized statement that the limitations in the FCE
were not supported by “his broader record.” (Tr. 20).
Recently, a District Judge in the Northern District of Ohio found an ALJ’s analysis of a
treating psychologist’s opinion was not sufficiently specific to satisfy the “good reasons”
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requirement of the treating source rule. In Fumich v. Comm’r of Soc. Sec., after previously
giving a brief analysis of his treatment records, the ALJ gave “little weight” to the opinion of a
claimant’s treating psychologist, Dr. Bruce Sampsel. No. 5:14-CV-2307, 2016 WL 796094, at
*4-5 (N.D. Ohio Feb. 29, 2016). Citing generally to the record and noting that Dr. Sampsel’s
notes indicated the claimant had marked impairment in mental functioning due to his diagnosis
of mood disorder and difficulties with anger and impulsiveness, the ALJ determined:
These opinions are given little weight as they are inconsistent with
Dr. Sampsel’s treatment records, especially more recent records,
which demonstrate improvement with medications. Further, the
claimant’s activities of daily living do not support marked
limitations. Marked limitations are also inconsistent with the
claimant’s prior consultative examination, which noted very mild
limitations (14F).
Fumich, 2016 WL 796094 at *4 (internal page numbers omitted). The District Judge concluded
that this analysis, along with the brief earlier analysis of Dr. Sampsel’s treatment records, was
insufficient for the following reasons: (1) the ALJ did not identify Dr. Sampsel as the claimant’s
treating psychologist; (2) the ALJ failed to explicitly state that he was not giving Dr. Sampsel’s
opinion controlling weight; and (3) the “ALJ did not identify or provide citations to the evidence
he relied upon, other than to narrow it down to ‘more recent records…[and] claimant’s prior
consultative examination, which noted very mild limitations (14F).’” Id.
Here, the ALJ’s analysis of Dr. Bonasso and the medical evidence of record suffer from
similar flaws. First, nowhere in the opinion does the ALJ refer to Dr. Bonasso as a “treating
source.” Next, the ALJ never specified the weight accorded to Dr. Bonasso’s opinion, and rather
found it, along with the opinions of state agency consultants, was only “partially credible.” (Tr.
20). Finally, and most detrimental, is the ALJ’s overwhelming failure to identify the specific
evidence relied on, or provide citations to the record for the majority of his medical source

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analysis (as well as the credibility analysis) relating to limitations caused by Plaintiff’s back
problems, as discussed more fully below.
The ALJ repeatedly supported his determination to not fully credit Dr. Bonasso’s opinion
based on a lack of support in the “broader record.” (Id.). However, nowhere in this part of the
analysis did the ALJ point to specific findings or limiting factors in the “broader record” that he
considered, other than the level of work at which Plaintiff could perform. (Id.). Nor is it clear
where the evidence to which he generally alludes could be found in the broader record, as the
ALJ did not cite to specific reports or page numbers in the record. (Id.).

Further, the ALJ’s

apparent directive to refer to other relevant discussions in the decision does not save his analysis,
as review of the decision as a whole shows the ALJ’s previous discussions of the record evidence
relating to Plaintiff’s back impairments, predominantly found in his credibility analysis, suffer
from the same failure on the part of the ALJ to clearly articulate the evidence relied upon, or to
properly cite to the record.
The undersigned further finds that the ALJ’s treating source analysis fails because it is
not clear whether the ALJ actually considered all the relevant evidence of record. It is wellestablished that for an ALJ’s decision to stand, the ALJ is not required to discuss every piece of
evidence in the record. See, e.g., Thacker v. Comm’r of Soc. Sec., 99 F. App’x 661, 665 (6th Cir.
2004). However, “[i]n rendering his RFC decision, the ALJ must give some indication of the
evidence upon which he is relying, and he may not ignore evidence that does not support his
decision, especially when that evidence, if accepted, would change his analysis.” Fleischer v.
Astrue, 774 F. Supp. 2d 875, 881 (citing Bryan v. Comm’r of Soc. Sec., 383 Fed. App’x 140, 148
(3d Cir. 2010) (quoting Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000) (“The
ALJ has an obligation to ‘consider all evidence before him’ when he ‘mak[es] a residual

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functional capacity determination,’ and must also ‘mention or refute […] contradictory, objective
medical evidence’ presented to him.”)). Although it is up to the ALJ to weigh the evidence, he
cannot merely disregard evidence that is contrary to his view. Id. Rather, the ALJ must explain
the evidence considered in a way that allows a subsequent reviewer to know why evidence was
valued or rejected. See id. Here, due to the decision’s lack of specificity throughout the opinion,
both in the medical source opinion analysis and elsewhere, it is not clear what evidence the ALJ
considered to reach this determination, or whether certain evidence was considered at all.
First, Plaintiff maintains that the ALJ failed to account for the validity of effort
provisions of the FCE testing. While the ALJ makes a general statement that the “therapist felt
that the claimant gave a valid effort,” the ALJ’s decision provided reference only to two specific
pages of the FCE report, neither of which included the validity testing provisions, leaving it
unclear whether this was considered by the ALJ.

(Tr. 20, 387, 391).

Second, despite

acknowledging “some positive physical findings including reduced spinal range of motion,
postural limitations, and other findings consistent with ongoing back and lower extremity
impairments,” the ALJ then went on to determine these findings were not consistent with severe
or profound impairments due to “multiple records” showing intact balance, full strength in his
extremities, and stable gate and station. (Tr. 17) (emphasis added). As Plaintiff points out in his
brief, the ALJ failed to cite to the record, or even mention which doctors’ treatment records were
evaluated at this step of analysis, to support his determination. (Id.). Additionally, Plaintiff
points to evidence that calls into question the ALJ’s finding that the evidence did not support
Plaintiff’s allegation that he required the use of a cane for ambulation and balance, or that any of
his providers indicated he needed a cane. Specifically, Plaintiff points to: (1) records of a
physical medicine rehabilitation consultation with the VA where he was fitted for a full weight

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bearing cane, following a provisional diagnoses of chronic low back pain;3 (2) treatment notes
showing a labored gait when examined by P.A. McGue in February of 2013; and (3) a positive
Romberg test when examined by Dr. Siddiqui in April of 2013. (Tr. 509-11, 516-17, 520).
Although such evidence is not conclusive and is subject to the ALJ’s discretionary analysis, the
decision nonetheless does not make clear whether it was even considered, or wholly omitted,
from the ALJ’s analysis.
The ALJ further buttressed his rejection of more severe physical limitations by reasoning
that “treatment providers did not consistently opine that they felt he had severe and profound
limitations or that the claimant was unable to return to work,” and that the record was devoid of
diagnostic notes validating the limitations. However, once more, these generalized statements
are not supported by citation to the record. Arguing against this assertion, Plaintiff points out
that the treatment notes of his primary care physician, Dr. Reddy, showed he encouraged
Plaintiff to apply for disability in January of 2012, and noted that his FCE indicated Plaintiff
could not be gainfully employed. (Tr. 406). Further, Dr. Bonasso agreed with the findings of the
FCE, which stated Plaintiff’s ability to return to competitive employment was marginal at best,
and that the restrictions as to Plaintiff’s work-related abilities as expressed by Dr. Bonasso were
permanent. (Tr. 376). Although the ALJ could have properly considered this evidence and
determined it did not support more substantial limitations, the record does not reveal whether this
evidence was actually considered, or if considered, specifically why it was rejected.

3

The regulations require medical documentation establishing the need for an ambulatory device, and
describing the circumstances for which it is needed. Robinson v. Comm’r of Soc. Sec., No. 5:14-CV-291,
2015 WL 1119751, at *14 (N.D. Ohio Mar. 11, 2015) (citing S.S.R. 96-9p, 1996 WL 374185, at *7 (July
2, 1996)). “A recent case noted that: ‘A cane would be medically necessary if the record reflects more
than just a subjective desire on the part of the plaintiff as to the use of a cane.’” Id. at *15 (quoting
Murphy v. Astrue, No. 2:11-CV-114, 2013 WL 829316, at *10 (M.D. Tenn. Mar. 6, 2013) (Report and
Recommendation, adopted by Murphy v. Colvin, No. 2:11-CV-114, WL 4501416 (M.D. Tenn. Aug. 22,
2013)).

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The government provides some explanations that suggest how the ALJ might have
viewed the evidence that could lead to the conclusions found in the decision. For example, the
government asserted Dr. Bonasso’s statement that he could not answer Plaintiff’s inquiry as to
whether he should apply for disability showed Dr. Bonasso did not believe Plaintiff was
disabled. (Def. Brief p. 6).

Further, the government stated the ALJ’s decision not to assign

complete deference to Dr. Bonasso was supported because his treatment records showed a rapid
change in position—specifically, that he provided an off-work slip for only two weeks from a
physically demanding job, then two months later opined Plaintiff had only a marginal chance of
performing any job. However, these explanations are not found in the decision itself, and it is
improper for the Court to affirm an ALJ’s decision based on post hoc rationalizations submitted
by the Commissioner. See Simpson v. Comm’r of Soc. Sec., 344 F. App’x 181, 192 (6th Cir.
2009); Martinez v. Comm’r of Soc. Sec., 692 F. Supp.2d 822, 826 (N.D. Ohio 2010).
The Court will reverse and remand the decision of the ALJ for failing to give good
reasons on the record for according less than controlling weight to a treating source, unless the
error constitutes a harmless, de minimus procedural violation. Blakely v. Comm’r of Soc. Sec.,
581 F.3d 399, 409 (6th Cir. 2009). The error may be considered harmless where: (1) the opinion
of the treating source is so patently deficient that the ALJ could not possibly credit it; (2) the
treating source opinion is adopted or the ALJ makes findings consistent with that opinion; or (3)
the goal of 20 C.F.R. § 404.1527(d)(2) which provides for the “good reasons” procedural
safeguards has been met even though the ALJ has not complied with the terms of the regulation.
Nelson v. Comm’r of Soc. Sec., 195 Fed. App’x 462, 470 (6th Cir. 2006) (citing Wilson, 378 F.3d
at 547). “In the last of these circumstances, the procedural protections at the heart of the rule
may be met when the ‘supportability’ of a doctor’s opinion, or its consistency with other

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evidence in the record, is indirectly attacked via an ALJ’s analysis of a physician’s other
opinions or his analysis of the claimant’s ailments.” Friend, 375 Fed. App’x 543, 551 (6th Cir.
2010) (citing Nelson, 195 Fed. App’x at 470-72; citing Hall v. Comm’r of Soc. Sec., 148 F.
App’x 456, 464 (6th Cir. 2006))
The ALJ’s treating source analysis of Dr. Bonasso’s opinion is not harmless error. The
undersigned does not find Dr. Bonasso’s opinion to be patently deficient. Nor did the ALJ fully
adopt his opinion with respect to Plaintiff’s limitations stemming from his back impairments.
Moreover, the ALJ did not make clear the basis on which Dr. Bonasso’s opinion was discredited
through an indirect analysis.

As stated above, the ALJ discussed the medical evidence

pertaining to Plaintiff’s back impairments prior to his medical source opinion analysis, when
assessing Plaintiff’s credibility. (Tr. 17-18). Although the ALJ acknowledged medical evidence,
such as medical notes from treatment by Plaintiff’s primary care doctor and specialists (notably
not referred to by name) that showed stable station and gait, reduced spinal range of motion and
postural limitations, and unremarkable test results, the opinion failed to point to specific evidence
or cite to the record. (Tr. 17-20). Further, in finding Plaintiff’s subjective complaints of pain
inconsistent with the medical evidence, the majority of the ALJ’s credibility analysis relating to
Plaintiff’s back injury and pain did not cite to the record beyond a blanket reference to treatment
notes and records, and does not allow a reviewer to determine the specific basis for the ALJ’s
ultimate determination. (Id.); Fumich, 2016 WL 796094 at *4-5; see generally Burbridge v.
Comm’r of Soc. Sec., 572 Fed. App’x 412, 216 (6th Cir. 2014) (finding non-specific cites to
exhibits are insufficient to show the “reasons or basis” for an ALJ’s findings where the evidence
could also support a different conclusion). Accordingly, because the ALJ did not provide a
sufficient discussion of the medical evidence pertaining to Plaintiff’s back impairments

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elsewhere in the opinion, he failed to “implicitly provide[] sufficient reasons for the rejection of
[Dr. Bonasso’s] opinion,” so as to enable this Court to find the ALJ’s inadequate treating source
analysis amounted to harmless error. Friend, 375 Fed. App’x at 552 (quoting Hall, 148 F. App’x
at 464).
Accordingly, Plaintiff’s argument that the ALJ did not provide a proper analysis of his
treating source, Dr. Bonasso, is well-taken. The Court finds that the ALJ did not follow its own
regulations in evaluating the opinion of Dr. Bonasso in consideration of the record evidence, and
failed to explain the weight ultimately assigned, supported by good reasons. As Dr. Bonasso’s
opinion was not patently deficient, was not adopted by the ALJ, and the ALJ did not provide a
sufficient indirect explanation that accounted for the discrediting of the opinion elsewhere in his
opinion, this was not harmless error.

Thus, the Court must remand the case back to the

Commissioner for a full and proper analysis of the medical evidence, including Plaintiff’s
treating source(s).
Because remand is appropriate to address the deficiencies of the medical opinion
evidence analysis—most specifically the treating source analysis—it is not necessary for this
Court to reach the merits of Plaintiff’s assignments of error relating to the ALJ’s credibility
analysis and his findings at Step Five.
VII. DECISION
For the foregoing reasons, the Magistrate Judge finds that the decision of the
Commissioner is not supported by substantial evidence. Accordingly, the Court VACATES the
decision of the Commissioner and REMANDS the case to the Social Security Administration.
IT IS SO ORDERED.
s/ Kenneth S. McHargh
Kenneth S. McHargh
United States Magistrate Judge
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Date: March 7, 2016.

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