Sito v. Commissioner of Social Security

Filing 33

Memorandum Opinion and Order that the decision of the Commissioner denying Sito's application for disability insurance benefits be reversed and the matter remanded for further administrative proceedings. (Related Docs. # 1 , 32 ). Signed by Magistrate Judge William H. Baughman, Jr., on 1/17/2017. (S,MD)

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

DENISE R. SITO,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CASE NO. 3:15 CV 2551

MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.

MEMORANDUM OPINION AND
ORDER

Introduction
Before me1 is an action by Denise Renee Sito under 42 U.S.C. § 405(g) for judicial
review of the final decision of the Commissioner of Social Security denying her application
for disability insurance benefits.2 The Commissioner has answered3 and filed the transcript
of the administrative record.4 Under my initial5 and procedural6 orders, the parties have

1

ECF # 32. The parties have consented to my exercise of jurisdiction.

2

ECF # 1.

3

ECF # 11.

4

ECF # 12.

5

ECF # 7.

6

ECF # 13.

briefed their positions7 and filed supplemental charts8 and the fact sheet.9 They have
participated in a telephonic oral argument.10

Facts
A.

Background facts and decision of the Administrative Law Judge (“ALJ”)
Sito who was 48 years old at the time of the administrative hearing,11 is a high school

graduate12 who lives with her husband and his two children.13 Her past relevant work history
includes employment as a cashier, waitress, bartender, small parts assembler, janitor and
machine operator.14
The ALJ, whose decision became the final decision of the Commissioner, found that
Sito had the following severe impairments: depression/dysthymic disorder (20 CFR
404.1520(C)).15

7

ECF # 26 (Commissioner’s brief); ECF # 20 (Sito’s brief).

8

ECF # 26-1 (Commissioner’s charts); ECF # 21 at 3-7 (Sito’s charts).

9

ECF # 21 at 1-2 (Sito’s fact sheet).

10

ECF # 30.

11

ECF # 21 at 1.

12

Id.

13

ECF # 12, Transcript (“Tr.”) at 33.

14

ECF # 21 at 1.

15

Tr. at 15.
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After concluding that the relevant impairments did not meet or equal a listing, the ALJ
made the following finding regarding Sito’s residual functional capacity (“RFC”):
After careful consideration of the entire record, the undersigned finds that,
through the date last insured, the claimant had the residual functional capacity
to perform a full range of work at all exertional levels but with the following
non-exertional limitations: no climbing ladders and the like and no exposure
to obvious hazards. The claimant could also: understand, carry out and
remember simple instructions where the pace of productivity is not dictated by
an external source over which the claimant has no control such as an assembly
line or conveyor belt; make judgments on simple work, and respond
appropriately to usual work situations and changes in a routine work setting
that is repetitive from day to day with few and expected changes; and respond
appropriately to supervision, the general public and coworkers.16
Based on that residual functional capacity, the ALJ found Sito capable of her past relevant
work as a small parts assembler and, therefore, not under a disability.17
Based on an answer to a hypothetical question posed to the vocational expert at the
hearing setting forth the residual functional capacity finding quoted above, the ALJ
determined that a significant number of jobs existed locally and nationally that Sito could
perform.18 The ALJ, therefore, found Sito not under a disability.19

16

Id. at 19.

17

Id. at 21.

18

Id. at 22.

19

Id. at 23.
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B.

Issues on judicial review
Sito asks for reversal of the Commissioner’s decision on the ground that it does not

have the support of substantial evidence in the administrative record. Specifically, Sito
presents the following issues for judicial review:
•

Whether the final agency decision is not supported by substantial
evidence because there were two separate administrative hearings but
no explanation for if or why plaintiff’s case may have been reassigned
to a different ALJ after the first hearing. Thereby, the agency decision
erred by failing to address plaintiff’s testimony at the first hearing and
the agency also violated plaintiff’s constitutional due process rights.20

•

Whether the ALJ found at Step 2 that plaintiff’s physical impairments
were non-medially determinable impairments. This finding lacks the
support of substantial evidence because the ALJ failed to properly
consider plaintiff’s physical impairments.21

•

Whether the ALJ found at Step 3 that plaintiff has the RFC to perform
a full range of work at all exertional levels with some non-exertional
limitations. This finding lacks support of substantial evidence because
the ALJ failed to properly consider the opinion evidence of record and
failed to consider the combined effects of plaintiff’s severe mental
impairment and non-medically determinable physical impairments.22

•

Whether the ALJ found at Step 3 that plaintiff’s statements concerning
the intensity, persistence and limiting effects of her symptoms are not
entirely credible. This finding lacks support of substantial evidence
because the reasons given by the ALJ for the credibility assessment are
not supported by the evidence of the record.23

20

ECF #20 at 1.

21

Id.

22

Id.

23

Id.
-4-

•

Whether the ALJ found at Step 4 that, through the date last insured,
plaintiff was capable of performing past relevant work as a small parts
assembler and at Step 5 that plaintiff was capable of making a
successful adjustment to other work that existed in significant numbers
in the national economy. These findings lack the support of substantial
evidence because the ALJ relied on responses to an incomplete
hypothetical question, plaintiff’s past work and the jobs identified by
the VE are inconsistent with the ALJ’s RFC determination, and the
ALJ’s errors at the previous steps make the Steps 4 and 5 findings
inherently unsupported by substantial evidence.24

•

Whether the Appeals Council erred as a matter of law in failing to
consider new and material evidence.25

For the reasons that follow, I will conclude that the ALJ’s finding of no disability is
not supported by substantial evidence and, therefore, must be reversed and remanded.

Analysis
A.

Standards of review

1.

Substantial evidence
The Sixth Circuit in Buxton v. Halter reemphasized the standard of review applicable

to decisions of the ALJs in disability cases:
Congress has provided for federal court review of Social Security
administrative decisions. 42 U.S.C. § 405(g). However, the scope of review is
limited under 42 U.S.C. § 405(g): “The findings of the Secretary as to any fact,
if supported by substantial evidence, shall be conclusive....” In other words, on
review of the Commissioner’s decision that claimant is not totally disabled
within the meaning of the Social Security Act, the only issue reviewable by
this court is whether the decision is supported by substantial evidence.

24

Id. at 1-2.

25

Id.
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Substantial evidence is “ ‘more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.’ ”
The findings of the Commissioner are not subject to reversal merely
because there exists in the record substantial evidence to support a different
conclusion. This is so because there is a “zone of choice” within which the
Commissioner can act, without the fear of court interference.26

Viewed in the context of a jury trial, all that is necessary to affirm is that reasonable minds
could reach different conclusions on the evidence. If such is the case, the Commissioner
survives “a directed verdict” and wins.27 The court may not disturb the Commissioner’s
findings, even if the preponderance of the evidence favors the claimant.28
I will review the findings of the ALJ at issue here consistent with that deferential
standard.
2.

Treating physician rule and good reasons requirement
The regulations of the Social Security Administration require the Commissioner to

give more weight to opinions of treating sources than to those of non-treating sources under
appropriate circumstances.
Generally, we give more weight to opinions from your treating sources, since
these sources are likely to be the medical professionals most able to provide
a detailed, longitudinal picture of your medical impairment(s) and may bring
26

Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (citations omitted).

27

LeMaster v. Sec’y of Health & Human Servs., 802 F.2d 839, 840 (6th Cir. 1986);
Tucker v. Comm’r of Soc. Sec., No. 3:06-CV-403, 2008 WL 399573, at *6 (S.D. Ohio
Feb. 12, 2008).
28

Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
-6-

a unique perspective to the medical evidence that cannot be obtained from
objective medical findings alone or from reports of individual examinations,
such as consultative examinations or brief hospitalizations.29
If such opinions are “well-supported by medically acceptable clinical and laboratory
diagnostic techniques” and “not inconsistent with the other substantial evidence in [the] case
record,” then they must receive “controlling” weight.30
The ALJ has the ultimate responsibility for determining whether a claimant is
disabled.31 Conclusory statements by the treating source that the claimant is disabled are not
entitled to deference under the regulation.32
The regulation does cover treating source opinions as to a claimant’s exertional
limitations and work-related capacity in light of those limitations.33 Although the treating
source’s report need not contain all the supporting evidence to warrant the assignment of
controlling weight to it,34 nevertheless, it must be “well-supported by medically acceptable
clinical and laboratory diagnostic techniques” to receive such weight.35 In deciding if such

29

20 C.F.R. § 404.1527(d)(2).

30

Id.

31

Schuler v. Comm’r of Soc. Sec., 109 F. App’x 97, 101 (6th Cir. 2004).

32

Id.

33

Swain v. Comm’r of Soc. Sec., 297 F. Supp. 2d 986, 991 (N.D. Ohio 2003), citing
Green-Younger v. Barnhart, 335 F.3d 99, 106-07 (2nd Cir. 2003).
34

Garner v. Heckler, 745 F.2d 383, 391 (6th Cir. 1984).

35

Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 536 (6th Cir. 2001).
-7-

supporting evidence exists, the Court will review the administrative record as a whole and
may rely on evidence not cited by the ALJ.36
In Wilson v. Commissioner of Social Security,37 the Sixth Circuit discussed the treating
source rule in the regulations with particular emphasis on the requirement that the agency
“give good reasons” for not affording controlling weight to a treating physician’s opinion in
the context of a disability determination.38 The court noted that the regulation expressly
contains a “good reasons” requirement.39 The court stated that to meet this obligation to give
good reasons for discounting a treating source’s opinion, the ALJ must do the following:
•

State that the opinion is not supported by medically acceptable clinical
and laboratory techniques or is inconsistent with other evidence in the
case record.

•

Identify evidence supporting such finding.

•

Explain the application of the factors listed in 20 C.F.R.
§ 404.1527(d)(2) to determine the weight that should be given to the
treating source’s opinion.40

The court went on to hold that the failure to articulate good reasons for discounting
the treating source’s opinion is not harmless error.41 It drew a distinction between a

36

Id. at 535.

37

Wilson v. Comm’r of Soc. Sec., 378 F.3d 541 (6th Cir. 2004).

38

Id. at 544.

39

Id., citing and quoting 20 C.F.R. § 404.1527(d)(2).

40

Id. at 546.

41

Id.
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regulation that bestows procedural benefits upon a party and one promulgated for the orderly
transaction of the agency’s business.42 The former confers a substantial, procedural right on
the party invoking it that cannot be set aside for harmless error.43 It concluded that the
requirement in § 1527(d)(2) for articulation of good reasons for not giving controlling weight
to a treating physician’s opinion created a substantial right exempt from the harmless error
rule.44
The Sixth Circuit in Gayheart v. Commissioner of Social Security45 recently
emphasized that the regulations require two distinct analyses, applying two separate
standards, in assessing the opinions of treating sources.46 This does not represent a new
interpretation of the treating physician rule. Rather it reinforces and underscores what that
court had previously said in cases such as Rogers v. Commissioner of Social Security,47
Blakley v. Commissioner of Social Security,48 and Hensley v. Astrue.49

42

Id.

43

Id.

44

Id.

45

Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365 (6th Cir. 2013).

46

Id. at 375-76.

47

Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007).

48

Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406-07 (6th Cir. 2009).

49

Hensley v. Astrue, 573 F.3d 263, 266 (6th Cir. 2009).
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As explained in Gayheart, the ALJ must first consider if the treating source’s opinion
should receive controlling weight.50 The opinion must receive controlling weight if
(1) well-supported by clinical and laboratory diagnostic techniques and (2) not inconsistent
with other substantial evidence in the administrative record.51 These factors are expressly set
out in 20 C.F.R. §§ 404.1527(d)(2). Only if the ALJ decides not to give the treating source’s
opinion controlling weight will the analysis proceed to what weight the opinion should
receive based on the factors set forth in 20 C.F.R. §§ 404.1527(d)(2)(i)-(ii), (3)-(6).52 The
treating source’s non-controlling status notwithstanding, “there remains a presumption, albeit
a rebuttable one, that the treating physician is entitled to great deference.”53
The court in Gayheart cautioned against collapsing these two distinct analyses into
one.54 The ALJ in Gayheart made no finding as to controlling weight and did not apply the
standards for controlling weight set out in the regulation.55 Rather, the ALJ merely assigned
the opinion of the treating physician little weight and explained that finding by the secondary
criteria set out in §§ 1527(d)(i)-(ii), (3)-(6) of the regulations,56 specifically the frequency of

50

Gayheart, 710 F.3d at 376.

51

Id.

52

Id.

53

Rogers, 486 F.3d at 242.

54

Gayheart, 710 F.3d at 376.

55

Id.

56

Id.
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the psychiatrist’s treatment of the claimant and internal inconsistencies between the opinions
and the treatment reports.57 The court concluded that the ALJ failed to provide “good
reasons” for not giving the treating source’s opinion controlling weight.58
But the ALJ did not provide “good reasons” for why Dr. Onady’s opinions fail
to meet either prong of this test.
To be sure, the ALJ discusses the frequency and nature of Dr. Onady’s
treatment relationship with Gayheart, as well as alleged internal
inconsistencies between the doctor’s opinions and portions of her reports. But
these factors are properly applied only after the ALJ has determined that a
treating-source opinion will not be given controlling weight.59
In a nutshell, the Wilson/Gayheart line of cases interpreting the Commissioner’s
regulations recognizes a rebuttable presumption that a treating source’s opinion should
receive controlling weight.60 The ALJ must assign specific weight to the opinion of each
treating source and, if the weight assigned is not controlling, then give good reasons for not
giving those opinions controlling weight.61 In articulating good reasons for assigning weight
other than controlling, the ALJ must do more than state that the opinion of the treating

57

Id.

58

Id.

59

Id.

60

Rogers, 486 F.3d 234 at 242.

61

Blakley, 581 F.3d at 406-07.
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physician disagrees with the opinion of a non-treating physician62 or that objective medical
evidence does not support that opinion.63
The failure of an ALJ to follow the procedural rules for assigning weight to the
opinions of treating sources and the giving of good reason for the weight assigned denotes
a lack of substantial evidence even if the decision of the ALJ may be justified based on the
record.64 The Commissioner’s post hoc arguments on judicial review are immaterial.65
Given the significant implications of a failure to properly articulate (i.e., remand)
mandated by the Wilson decision, an ALJ should structure the decision to remove any doubt
as to the weight given the treating source’s opinion and the reasons for assigning such
weight. In a single paragraph the ALJ should state what weight he or she assigns to the
treating source’s opinion and then discuss the evidence of record supporting that assignment.
Where the treating source’s opinion does not receive controlling weight, the decision must
justify the assignment given in light of the factors set out in §§ 1527(d)(1)-(6).
The Sixth Circuit has identified certain breaches of the Wilson rules as grounds for
reversal and remand:

62

Hensley, 573 F.3d at 266-67.

63

Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 551-52 (6th Cir. 2010).

64

Blakley, 581 F.3d at 407.

65

Wooten v. Astrue, No. 1:09-CV-981, 2010 WL 184147, at *8 (N.D. Ohio Jan. 14,

2010).
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•

the failure to mention and consider the opinion of a treating source,66

•

the rejection or discounting of the weight of a treating source without
assigning weight,67

•

the failure to explain how the opinion of a source properly considered
as a treating source is weighed (i.e., treating v. examining),68

•

the elevation of the opinion of a nonexamining source over that of a
treating source if the nonexamining source has not reviewed the
opinion of the treating source,69

•

the rejection of the opinion of a treating source because it conflicts with
the opinion of another medical source without an explanation of the
reason therefor,70 and

•

the rejection of the opinion of a treating source for inconsistency with
other evidence in the record without an explanation of why “the treating
physician’s conclusion gets the short end of the stick.”71

The Sixth Circuit in Blakley72 expressed skepticism as to the Commissioner’s
argument that the error should be viewed as harmless since substantial evidence exists to
support the ultimate finding.73 Specifically, Blakley concluded that “even if we were to agree

66

Blakley, 581 F.3d at 407-08.

67

Id. at 408.

68

Id.

69

Id. at 409.

70

Hensley, 573 F.3d at 266-67.

71

Friend, 375 F. App’x at 551-52.

72

Blakley, 581 F.3d 399.

73

Id. at 409-10.
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that substantial evidence supports the ALJ’s weighing of each of these doctors’ opinions,
substantial evidence alone does not excuse non-compliance with 20 C.F.R. § 404.1527(d)(2)
as harmless error.”74
In Cole v. Astrue,75 the Sixth Circuit reemphasized that harmless error sufficient to
excuse the breach of the treating source rule only exists if the opinion it issues is so patently
deficient as to make it incredible, if the Commissioner implicitly adopts the source’s opinion
or makes findings consistent with it, or if the goal of the treating source regulation is satisfied
despite non-compliance.76
B.

Application of standards
The Commissioner’s decision in this case occurred after a second ALJ held a second

hearing on the claimant’s application.77 The first hearing did not result in a final decision by
that ALJ, but did contain testimony from a VE that Sito would be unable to perform any
work in the national economy, given a hypothetical specifying a lack of prior relevant work
and a current limitation to less than a full range of light work.78 At the second hearing, in
response to a different hypothetical which indicated an ability to do a full range of work at

74

Id. at 410.

75

Cole v. Astrue, 661 F.3d 931 (6th Cir. 2011).

76

Id. at 940.

77

Tr. at 29-81.

78

Id. at 80.
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all exertional levels and some non-exertional limitations, another VE testified that Sito could
perform her past relevant work.79
Sito here raises several issues on review, of which two will be individually addressed
below.
1.

Due process
Sito asserts that due process, as expressed in the agency’s HALLEX manual,80

requires that the Commissioner provide an explanation as to why the first ALJ did not issue
a decision after conducting a full hearing, and further mandates that the second ALJ fully
consider the evidence of the prior hearing, and conclusively demonstrate that consideration
in the text of the opinion.81
In that regard, I observe that there has been some confusion as to whether this case
represents a “reopening” of the earlier hearing or a “reassignment” of an undecided case to
a new ALJ.82 That said, it seems clear that Sito’s arguments in this respect are essentially
that she should have been informed as to why no decision was rendered after the first hearing

79

Id. at 54-55.

80

HALLEX is the acronym for the Hearing, Appeals, Litigation and Law (LEX)
Manual, and consists of both a procedural guideline and substantive material. Kostyo v.
Colvin, No. 3:14-CV-1238, 2015 WL 4067260, at *7 fn. 3 (N.D. Ohio July 2, 2015).
81

ECF # 20 at 14-15.

82

See, ECF # 29 at 1.
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and should have seen evidence in the text of the ALJ’s opinion that the ALJ fully considered
the record of the first hearing.83
The Supreme Court has stated that the “fundamental requirement of due process is the
opportunity to be heard ‘at a meaningful time and in a meaningful manner.’”84 Additionally,
the Sixth Circuit has held that disability claimants are entitled to due process at the hearing
level because they have a property interest in any potential benefit.85 To that end, an ALJ
must ensure that the hearing is “full and fair.”86
Examining that rubric in the present situation, Sito, as noted, claims that she was
denied due process because the record in this case does not indicate why no decision issued
after the first hearing and because the ALJ’s decision after the second hearing does not
affirmatively reflect that the evidence of the first hearing was considered. In support she
cites to provisions of the Hearings, Appeals and Litigation Law Manual (“HALLEX”) that
address how an ALJ at a second hearing is to consider evidence obtained in the first
hearing.87

83

Id. at 1-3.

84

Mathews v. Eldridge, 424 U.S. 319, 333 (1976)(quoting Armstrong v. Manzo, 380
U.S. 545, 552 (1965)).
85

Flatford v. Chater, 93 F.3d 1296, 1304 (6th Cir. 1996).

86

Id. at 1306.

87

ECF # 20 at 15.
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In that regard, I note first that the Sixth Circuit has characterized HALLEX as a source
of “guiding principles, procedural guidance and information” to ALJs and agency staff.88
That said, it must be understood that “[w]hile the HALLEX procedures are binding on the
Social Security Administration, they are not binding on courts reviewing the administration’s
proceedings.”89 Thus, Sito’s attempt to ground a reversible due process violation solely on
the Commissioner’s purported lack of adherence to some provision of HALLEX must
necessarily fail.90
Similarly, Sito’s argument that it was error for the ALJ here to not explicitly discuss
unspecified portions of the prior record is also unpersuasive. As the Sixth Circuit observed

88

Bowie v. Commissioner of Social Security, 539 F.3d 395,397(6th Cir. 2008)(quoting
HALLEX § 1-1-001)).
89

Kostyo, 2015 WL 4067260, at *7 (quoting Dukes v. Comm’r of Soc. Sec., No. 1:10CV-436, 2011 WL 4374557, at *9 (W.D. Mich. Sept. 19, 2011)(citing Bowie, 539 F.3d at
399)(noting that the procedural guidelines in the HALLEX manual are “not binding on this
court”). I also observe that despite the comment in Bowie quoted above, the Sixth Circuit has
not explicitly addressed the question of whether the failure to follow a provision of the
HALLEx manual is reversible error. As a Kentucky district court found in Caudill v. Astrue,
No. CIV.A. 09-70-GWU, 2010 WL 148806 at *4 (E.D. Ky. Jan. 14, 2010), the Ninth Circuit
has concluded in More v. Apfel, 216 F.3d 864, 868 (9th Cir. 2000) that HALLEX is purely
an internal manual with no legal force in judicial review, while the Fifth Circuit in Newton
v. Apfel, 209 F.3d 448, 459-60 (5th Cir. 2000) has held that although HALLEX does not have
the force of law, an agency must follow its own regulations where individual rights are
concerned.
90

Given the split in the circuits outlined above, and the dicta in Bowie also quoted
above, Caudill concluded, and Magistrate Judge White in Kostyo agreed, that the mere
failure to follow specific procedures in the HALLEX manual is itself not grounds for reversal
absent a convincing showing of prejudice to the plaintiff. See, Kostyo, 2015 WL 4067260 at
*7 fn. 4.
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in Simons v. Barnhart,91 “an ALJ is not required to discuss all the evidence submitted, and
an ALJ’s failure to cite specific evidence does not indicate that it was not considered.”92
Rather, the key for meaningful judicial review is the requirement that an ALJ identify and
discuss only such substantial evidence and good reasons as would support any determination
made.93
Moreover, as the Commissioner notes here, Sito was represented at all stages of the
administrative proceeding in this case and her counsel made no objections to the rehearing
or notice of rehearing, or requests for additional explanations or reasons.94 As the McMurtry
court observed, “[c]onsistent with the policy that represented claimants for Social Security
benefits are presumed to have brought their most persuasive claim for benefits before the
ALJ,”ALJs ordinarily require counsel to identify any issue or issues thought to require
further attention.95 It is again difficult to find a reversible due process violation in actions
taken with full knowledge of counsel but without any objection.
2.

Step 2
Sito argues that it was error for the ALJ to find her foot, back, and neck problems, as

well as her fibromyalgia and diverticulitis are non-medically determinable impairments found

91

Simons v. Barnhart, 114 Fed. Appx. 727 (6th Cir. 2004).

92

Id. at 733 (quoting Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000)).

93

See, e.g., Rogers, 486 F.3d at 242-43.

94

See, ECF # 26 at 7 (citing transcript).

95

McMurtry, 749 F.Supp. 2d at 882 (citation omitted).
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after her date of last insured.96 In particular, Sito claims this finding is contrary to a report
by her treating physician in January 2012 - less than four months after the date last insured reflecting diagnoses of degenerative disc disease, neck, low back and myofascial thorasic
pain, fibromyalgia and depression.97 She also asserts that the ALJ incorrectly rejected her
fibromyalgia impairment because she was improperly focused on a lack of objective evidence
instead of considering the diagnosis of the treating physician.98
The Commissioner responds by noting that even if it was error not to find these
conditions to be severe impairments at Step Two, any error is harmless because the ALJ did
find other conditions to be severe impairments, and proceeded to analyze all of Sito’s
physical and mental impairments - severe and non-severe - in the balance of the opinion.99
The key issue in this regard concerns the treatment of the opinions and diagnoses of
Robert Kanney, M.D., Sito’s treating physician. He lists fibromyalgia as one of Sito’s
diagnosis in his answers to a functional capacity questionnaire completed in January 2012,
wherein he also notes that he had been treating Sito for “7-10 years.”100

96

ECF # 20 at 16-17.

97

Id. at 16.

98

Id. at 17.

99

ECF # 26 at 8-9.

100

Tr. at 436; but see, id. at 650 where Dr. Kanney two years later states that he has
been treating Sito for “over twenty years.”
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The ALJ, however, did not mention this diagnosis by Dr. Kanney, but referenced
Sito’s own reporting of a fibromyalgia diagnosis to Dr. Christina Feser, D.O.,101 a consulting
examining source, whose functional opinion is not discussed by the ALJ. In so doing, the
ALJ also failed to identify Dr. Kanney as a treating source and assigned little weight to his
functional opinions because the opinions were rendered after the date last insured, and
because the opinions themselves did not indicate that the limitations expressed within would
have been needed during the insured period.102
Just as significant, the ALJ dismissed the self-reported diagnosis of fibromyalgia by
stating that a diagnosis of fibromyalgia may not be based solely on the conclusion of a
physician who himself received a report of a history of fibromyalgia from the patient, but
must be supported by evidence that the physician has reviewed the patient’s medical history
and conducted a physical examination which produced findings that the patient “has at least
11 positive trigger points” supportive of a diagnosis of fibromyalgia.103
Yet, however broadly true this may be as to the conclusion of Dr. Feser, who actually
did conduct a physical examination of Sito but merely heard about a prior diagnosis of
fibromyalgia, the ALJ’s remarks are far less probative of Dr. Kanney, who had, as noted, a

101

Id. at 16 (citing id. at 626-31).

102

Id. at 20. The failure of the ALJ to identify a source as a “treating source’ is a
ground for remand. Blakely, 581 F.3d at 408.
103

Id. at 16.
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multi-year treating relationship with Sito and who recorded a fibromyalgia diagnosis which
was not attributed to self-reporting by Sito.
I note in this regard that my own review of the medical records here shows that there
appears to be both a lack of clarity and certainty as to when and how Sito came to be
diagnosed with fibromyalgia. On April 7, 2005 Dr. Tauseef G. Sayed, M.D., submitted a
request to the Ohio Bureau of Workers’ Compensation for authorization to have Sito undergo
four weeks of physical therapy for what Dr. Sayed diagnosed as“myalgia.”104 There are no
clear records as to the basis for that diagnosis.105 More importantly, “myalgia” technically
refers only to pain in the muscles, whereas fibromyalgia concerns pain in the joints, muscles
and fibrous connective tissue.106
Dr. Sayed’s 2005 “myalgia” diagnosis appears to have been reported by Sito in 2006
as a diagnosis of “fibromyalgia” as she gave her medical history to Barbara Florke, a Clinical
Nurse Specialist at Maumee Valley Guidance Center.107 There is no indication from the
record that Dr. Kanney’s diagnosis of fibromyalgia was based on his own examinations of

104

Id. at 437.

105

The two-page supporting document sent to the BWC by Dr. Sayed contains a body
diagram reflecting moderate pain on a scale of 3-6 in Sito’s shoulders and shooting pain on
a scale of 7-8 in her neck and 9-10 in her ankles. Id. at 346.
106

See, http://howshealth/myalgia

107

Id. at 362.
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Sito as her treating physician, or if Dr. Kanney simply recorded Sito as erroneously reporting
Dr. Sayed’s “myalgia” diagnosis as “fibromyalgia.”
Moreover, although the ALJ here stated that to support a diagnosis of fibromyalgia
a patient’s physical examination “must” show eleven positive trigger points,108 the applicable
law does not necessarily contain such a strict, bright line rule. Specifically, in 2012 the
Commissioner issued SSR 12-2P109 which stated that fibromyalgia could be termed a
medically determinable impairment if the evidence met the criteria set forth in either the 1990
classification criteria of the American College of Rheumatology or that organization’s 2010
preliminary diagnostic criteria.110 In that regard, the trigger point analysis exists in only the
1990 classification criteria, but is not part of the 2010 preliminary diagnostic criteria, which
focuses on the presence of widespread pain in connection with other symptoms such as
fatigue, depression and anxiety, in addition to evidence that excludes other causes for these
symptoms.111 Under either standard, SSR 12-2P emphasizes that “longitudinal records” -

108

Id. at 16.

109

2012 WL 3104869

110

Id. at *2.

111

Id. at *3. See also, Foster v. Colvin, No. 3:14-CV-66, 2015 WL 66553 at ** 7-8
(S.D. Ohio Jan. 5, 2015)(extensive discussion of the two diagnostic criteria contained in SSR
12-2P, reversing a decision of an ALJ that failed to consider the non-trigger point tests of
SSR 12-2P).
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such as would be present with a treating physician - are “especially helpful in establishing
both the existence and severity of the impairment.”112
Here, although the ALJ did directly cite to SSR 12-2P in discussing Sito’s
fibromyalgia,113 she mis-characterized that regulation as requiring a clinical finding of eleven
positive trigger points to support a diagnosis of fibromyalgia, thus overlooking entirely the
alternative test set forth in SSR 12-2P which does not contain trigger point testing. That alone
is grounds for a remand.114
Further, and as noted above, the ALJ gave little weight to the functional opinion of
Dr. Kanney,115 a treating source who included fibromyalgia as one of his diagnosis in his
2012 physical impairment questionnaire.116 The reason given for according such little weight
- that the opinion itself was issued after the date last insured and does not indicate that the
limitations apply to the relevant period - are simply not a good reasons.117 As the Sixth
Circuit observed in Wilson, functional limitations expressed by a treating source as the result

112

Id. at * 3.

113

Tr. at 16.

114

Foster, 2015 WL 66553 at *8.

115

Tr. at 20.

116

Id. at 436. It must be noted that Dr. Kanney did not include a diagnosis of
“fibromyalgia” on his 2013 functional capacity questionnaire, although he did list “pain” and
“fatigue” as her symptoms. Tr. at 623. A later functional capacity questionnaire is discussed
below.
117

See, Wilson, 378 F.3d at 545.
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of treating the claimant during the insured period would necessarily be supported by what
was observed during that same period, and so even if the opinion itself were drafted at a date
beyond the date last insured, the functional opinion itself, without more, cannot be
reasonably construed as offering an opinion only as to the period after the date last insured.118
As has also been noted, the opinions of Dr. Kanney themselves are not themselves
entirely consistent or clear as to the length of the treatment relationship, the diagnoses given
or the symptoms recorded, and there are gaps in the record as to supporting treatment notes.
But, these opinions do represent the views of a physician who treated Sito for a considerable
period of time, and who has recorded functional limitations that are more restrictive than
those in the RFC. As such, it is critical that Dr. Kanney’s opinions be properly weighed and
fully analyzed in accordance with the treating physician rubric - something which was not
done here.119 To the degree that the opinions are found to be supported by clinical and
diagnostic tests and to be consistent with the other evidence in the record, Dr. Kanney’s
opinions may provide the kind of “longitudinal records” that are especially helpful in
establishing the existence and severity of an impairment like fibromyalgia, particularly when
it has not been established by means of trigger point tests.120
118

Id. at 545-46. I note also that on June 2, 2014, or the day before the ALJ’s current
opinion issued, Dr. Kanney submitted another functional capacity report for the record. Tr.
at 647. That opinion also does not specifically list fibromyalgia as a diagnosis, and, unlike
prior reports, left blank the space for listing symptoms (Tr. at 648), but does state that Sito
has had the functional limitations expressed since 2001. Tr. at 650.
119

Blakely, 581 F.3d at 408.

120

See, Foster, 2015 WL 66553 at ** 7-8.
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Conclusion
For the reasons stated, I find that the Commissioner’s decision to deny benefits is not
supported by substantial evidence and is therefore reversed. The matter is remanded for
further proceedings consistent with this opinion.

Dated: January 17, 2017

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

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