Patterson v. Commissioner of Social Security Administration
Filing
16
Memorandum Opinion and Order reversing the Commissioner's decision and remanding for further proceedings consistent with this opinion. Related document(s) 1 . Magistrate Judge James R. Knepp, II on 1/19/2018. (D,TM)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
CHAD PATTERSON,
Case No. 3:16 CV 2345
Plaintiff,
v.
Magistrate Judge James R. Knepp, II
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
MEMORANDUM OPINION AND ORDER
INTRODUCTION
Plaintiff Chad Patterson (“Plaintiff”) filed a Complaint against the Commissioner of Social
Security (“Commissioner”) seeking judicial review of the Commissioner’s decision to deny
disability insurance benefits (“DIB”). (Doc. 1). The district court has jurisdiction under 42 U.S.C.
§§ 1383(c) and 405(g). The parties consented to the undersigned’s exercise of jurisdiction in
accordance with 28 U.S.C. § 636(c) and Civil Rule 73. (Doc. 12). For the reasons stated below,
the undersigned reverses the decision of the Commissioner and remands for further proceedings.
PROCEDURAL BACKGROUND
Plaintiff filed for DIB in March 2014, alleging a disability onset date of August 19, 2009.
(Tr. 192). His claims were denied initially and upon reconsideration. (Tr. 114, 125). Plaintiff then
requested a hearing before an administrative law judge (“ALJ”). (Tr. 132). Plaintiff (represented
by counsel), and a vocational expert (“VE”) testified at a hearing before the ALJ on August 19,
2015. (Tr. 37-76). On October 6, 2015, the ALJ found Plaintiff not disabled in a written decision.
(Tr. 19-32). The Appeals Council denied Plaintiff’s request for review, making the hearing
decision the final decision of the Commissioner. (Tr. 1-4); see 20 C.F.R. §§ 404.955, 404.981.
Plaintiff timely filed the instant action on September 22, 2016. (Doc. 1).
FACTUAL BACKGROUND
Personal Background and Testimony
Plaintiff was born in August 1979, making him 30 years old on his alleged disability date,
and 35 years old on his date last insured. (Tr. 31). He was married, and lived with his wife and
children. (Tr. 45, 52-53).
Plaintiff testified he was last employed in 2009, working as a non-commercial truck driver.
(Tr. 47). Plaintiff stopped working when he suffered a back injury on the job. (Tr. 42, 47).
Subsequent to his injury, Petitioner worked for short periods in 2012 and 2013. (Tr. 42-44). He
got the jobs through a workers’ compensation vocational rehabilitation program. (Tr. 48-49). He
left one job because it required heavy lifting which he could not do, and left another because he
“had to drive [his] own truck and that was very difficult for [him] to do as well”. (Tr. 43). He
worked a third job, but stopped because “walking for [him] [was] very difficult” and he “end[ed]
up telling them that [he] couldn’t do it.” (Tr. 43-44); see also Tr. 44 (“And on my way home . . . a
deer had hit my car and I couldn’t get my car back on the road. So they end up . . . letting me go
from that job too”.).
Plaintiff testified his back pain had “stayed the same even after [his] surgery.” (Tr. 48). He
explained he “always” had lower back pain, and had shooting pains down his legs with sitting or
standing. Id. Plaintiff testified he had difficulty with the vocational rehabilitation program because
it required standing for long periods of time, and sitting for two-hour classes was too difficult. (Tr.
49-50).
Plaintiff estimated he could stand in one position for “[n]ot even a minute”. (Tr. 50). He
estimated he could walk three to four steps without having to stop to rest. Id. He spent most of his
day in a recliner. Id. Plaintiff’s medications helped with his back pain “because they just, they all
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make me go to sleep”. (Tr. 51). Plaintiff testified he would not be able to work because his
medication put him to sleep. (Tr. 60-61).
On a typical day, Plaintiff got up, his wife made breakfast, and he went back to sleep for
several hours after taking his medication. (Tr. 51-52). He then got up, ate lunch his wife had
prepared (or put something in the microwave), and then went back to sleep until dinner. (Tr. 52).
His wife made dinner; Plaintiff would talk to her, and then “go right back to bed.” Id. When he
was not sleeping, he would watch television or play video games with his children. (Tr. 53). One
of his children played basketball, and Plaintiff testified he attended games, but could not even
make it through the first quarter before he would return home. (Tr. 54-55).
Plaintiff drove only if he had to; he drove to doctors’ appointments. (Tr. 55). His brother
had driven him the ninety minutes to the hearing, stopping “[a]t least three times” so he could get
out for five to ten minutes. (Tr. 55-56). He did not do any household chores. (Tr. 52).
Plaintiff’s treating physician was Dr. Lehman; he was not undergoing treatment with any
other physicians at the time of the hearing. (Tr. 58). Plaintiff had aquatic therapy in the past, which
helped only during the sessions itself, with no lasting effects. (Tr. 59). Injections and surgery were
similarly unhelpful. Id. Plaintiff did not have health insurance and was paying for his doctor and
medications out of pocket. (Tr. 59-60).
Relevant Medical Evidence1
Plaintiff’s back problems began with a workplace injury in August 2009. See Tr. 382. In
November 2009, Keith Lehman, M.D., Plaintiff’s treating physician ordered an MRI. (Tr. 419). It
revealed “[d]egenerative disc changes at the L4-L5 level where there is a broad based posterior
1. Plaintiff challenges only the ALJ’s determination of his physical impairments. Plaintiff has
waived argument on issues not raised in his opening brief. Kennedy v. Comm’r of Soc. Sec., 87 F.
App’x 464, 466 (6th Cir. 2003). Thus, the undersigned summarizes only the relevant records.
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central disc protrusion measuring 5 mm thickness indenting the thecal sac but not critically
narrowing the canal” and “[b]ilateral hypertrophic degenerative facet changes at L4-L5 as well
along with a tiny diffuse disc bulge causing moderate left sided foraminal stenosis and only mild
right sided foraminal narrowing.” Id.
Plaintiff reported underwent physical therapy, which he “felt . . . was only making his
symptoms worse”, and used a TENS unit, but “did not feel it was significantly beneficial for pain
control.” (Tr. 383).
In September, October, and November 2010, Plaintiff underwent lumbar epidural steroid
injection for “[l]umbar radiculopathy with degenerative lumbar disc disease.” (Tr. 402-04). Notes
indicate Plaintiff “developed the pain after he lifted heavy weight” and “[s]ince then the patient’s
pain is progressively getting worse”. (Tr. 404). He underwent the injections because he was “not
responding well to conservative treatment”. Id. Plaintiff reported “minimal” improvement after the
injections. (Tr. 402-03).
In September 2011, Plaintiff underwent another MRI which showed:
Small, broad-based posterior disc protrusion, L4-5, measuring only about 4 mm in
thickness, smaller than it was on the previous exam. There is a small posterior focal
tear of the annulus at this level. Mild degenerative facet changes are present at this
level as well.
(Tr. 417). The MRI was compared to the November 2009 MRI, and the reading physician
explained:
At L4-5, chronic degenerative changes are present with low signal of the disc and
a broad-based posterior disc protrusion, smaller than it was on the previous exam.
This is likely recurrent disc protrusion. A small posterior focal tear of the annulus
is present at this level. This protrusion slightly indents the thecal sac but does not
critically compromise overall canal or foraminal dimensions. Bilateral degenerative
facet changes are present.
Id.
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Plaintiff underwent lumbar epidural steroid injections again in November and December
2011. (Tr. 393-96). Notes indicated worsening pain and “not responding well to conservative
treatment.” (Tr. 395). In December, Plaintiff reported no improvement in pain levels after the
November injection. (Tr. 393).
In February 2012, Plaintiff underwent lumbar decompression surgery. (Tr. 369-70). The
operative report notes Plaintiff had “radicular left-sided leg symptoms with positive physical
findings in our office but with rotatory symptoms sometimes on the right and sometimes on the
left but more frequently on the left than right” and “[m]ore recently he has been having a little bit
more trouble with the right.” (Tr. 369). During the surgery, Edmund Lawrence, Jr., M.D.,
“removed disk material” and “opened the lateral recess”. Id. After surgery Plaintiff reported he no
longer had symptoms in his right leg, but new numbness and tingling in his left toes. (Tr. 367); see
also Tr. 446 (July 2013 note: “He states the back surgery did relieve his right leg symptoms.”).
Plaintiff reported continued back pain that felt “different”. (Tr. 367). Plaintiff was referred for
physical therapy after surgery, but it caused a worsening of pain, and Dr. Lehman instructed
Plaintiff to discontinue. (Tr. 383).
In July 2013, Dr. Lehman’s treatment notes indicate Plaintiff had “reached maximum
medical improvement” and advised him “that these are going to be permanent limitations. (Tr.
443). On examination, he noted Plaintiff had back pain, but no radiation to the legs, and no leg
weakness, tingling, or weakness. (Tr. 442). His gait and stance were normal. (Tr. 443). Dr. Lehman
noted Plaintiff continued to have “discomfort in his low back if he is over active with lifting and
bending” and “also has discomfort in his low back if he sits for prolonged periods of time.” Id. He
advised Plaintiff that he needed “a nonproduction type employment as he cannot tolerate repetitive
lifting, bending, or twisting”. Id.
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That same month, Larry Kennedy, M.D., examined Plaintiff (at the request of Dr. Lehman)
and found “some tenderness over the lumbosacral paraspinals”, and “severely” limited range of
motion in the back, “limited by 75 to 90% in all planes including forward flexion, extension, and
right and left side bending.” (Tr. 446-47). He had pain on straight leg raising bilaterally, “but no
radicular type symptoms.” (Tr. 447). Dr. Kennedy noted he could not accurately perform a motor
exam “because of give/go weakness with pain.” Id. Dr. Kennedy assessed “a lumbar sprain/strain
displacement of the lumbar disc without myclopathy and lumbar radiculopathy” and “chronic pain
syndrome.” Id. He recommended “an interdisciplinary comprehensive pain program” and water
exercises. Id.
In January 2014, Plaintiff reported his back pain was unchanged and he was not able to sit
or stand for any length of time “without changing positions” and unable to lift or bend. (Tr. 437).
On examination, Dr. Lehman found lower back tenderness on palpation, abnormal range of motion
in the lumbosacral spine, a negative straight leg test, and no lower extremity weakness. (Tr. 438).
Dr. Lehman noted to continue medication, and work restrictions. Id.
In March 2014, Plaintiff reported worsening back pain. (Tr. 435). Dr. Lehman noted
Plaintiff’s gait and stance were abnormal, instructed Plaintiff to continue medications, and noted:
“[w]e will continue his present restrictions as these are permanent and . . . nothing has changed.”
(Tr. 436).
In April 2014, Plaintiff started physical therapy. (Tr. 458-61). Also in April 2014, Plaintiff
returned to Dr. Lehman, reporting continued low back pain “with occasional radiation to his legs”.
(Tr. 432). He reported being unable to sit or stand more than fifteen minutes without needing to
change position. Id. Dr. Lehman noted Plaintiff had tried to work, but had been unable, and that
he “had difficulty sitting for classes for vocational rehabilitation.” Id. On examination, Dr. Lehman
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noted lower back tenderness, no muscle spasms, abnormal lumbosacral spine range of motion, and
a negative straight leg raising test. (Tr. 433). He had no lower extremity weakness, but gait and
stance were abnormal. Id. Dr. Lehman instructed Plaintiff to “continue his present restrictions”, as
well as continue medications and water therapy. Id. In May 2014, Plaintiff, having undergone five
aquatic therapy treatments, was discharged because “he stated nothing is helping and doctor
recommended he is to stop treatment.” (Tr. 457).
In September 2014, Plaintiff reported his chronic low back pain “[s]ometimes . . . radiates
down into his legs”, and that it was aggravated by prolonged sitting, standing, bending, twisting,
or lifting. (Tr. 474). He reported his medication made him “feel somewhat sleepy or drowsy” and
was “only partially effective in controlling his pain.” Id. Dr. Lehman also noted Plaintiff’s
medications “do seem to be fairly effective at [sic] least controlling his symptoms.” Id. On
examination, Dr. Lehman noted Plaintiff “had decreased range of motion of his lumbar spine”,
“did walk with somewhat of a bent gait”, had full muscle strength and reflexes, and “[s]traight leg
raising test aggravated his back pain but did not give him pain down his legs.” Id. Dr. Lehman
advised Plaintiff to continue his medications; that he needed “to continue the previous limitations
on his prolonged sitting and standing”; and that “[h]e cannot bend, twist, or lift.” (Tr. 475).
In December 2014, Plaintiff reported continued low back pain that “radiate[d] into his legs
more on the left than the right”, “limit[ed] his ability to sit or stand for any significant period of
time.” (Tr. 477). He was “not able to do any walking”, “not able to do any lifting” and his
medications made him “a bit sleepy.” Id.2 On examination, Plaintiff had decreased range of motion
2. The Commissioner notes, regarding this visit: “However, he was doing well, with normal
strength, despite range of motion deficits.” (Doc. 15, at 5) (emphasis added). The undersigned
points out that the “doing well” in this record refers to Plaintiff’s efforts to cease smoking, not to
anything related to his back pain. See Tr. 477 (“Patient did stop smoking about 4 weeks ago. He
initially used nicotine patches but they made him nauseated so he has done this cold turkey. He
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in his lumbar spine, a straight leg raising test caused “discomfort in the back”, but his muscle
strength and reflexes were normal. Id.
In May 2015, Plaintiff reported “continued chronic low back pain that limits his activities”
and Dr. Lehman noted Plaintiff took “about 2 Flexeril a day and about 4 tramadol a day which
fairly well-controlled his pain.” (Tr. 491). He did not take his medication if he planned “to be
driving or out.” Id. Dr. Lehman continued Plaintiff’s medications. (Tr. 492).
Opinion Evidence
Treating Physician
In July 2013, as noted above, Dr. Lehman opined Plaintiff had reached maximum medical
improvement and needed “nonproduction type employment as he cannot tolerate repetitive lifting,
bending, or twisting. (Tr. 443). Dr. Lehman continued these restrictions in November 2013; and
January, March, and April 2014. See Tr. 433 (“He needs to continue his present restrictions”); Tr.
436 (“We will continue his present restrictions as these are permanent and . . . nothing has
changed”); Tr. 438 (“Continue his work restrictions.”); Tr. 440 (“I advised he needed to continue
his restrictions.”).
In April 2014, Dr. Lehman assessed Plaintiff’s physical capacity. (Tr. 425-26). He opined
Plaintiff’s ability to lift and carry were affected, but did not specify how many pounds Plaintiff
could lift or carry. (Tr. 425). He opined Plaintiff could stand or walk for four hours in an eighthour workday, fifteen minutes at a time. Id. Dr. Lehman also noted sitting was affected, but did
not specify for how many hours Plaintiff could sit. Id. (“Has pain with prolonged sitting.”). He
stated Plaintiff could rarely perform most postural activities (climb, stoop, crouch, kneel, and
feels he is doing well so far.”). The ALJ seemingly similarly misconstrued this record, noting that
Plaintiff “reported that he was doing well so far” in the context of discussing records about
Plaintiff’s back impairment. (Tr. 26).
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crawl), but could occasionally balance. Id. Plaintiff could occasionally reach, frequently perform
fine and gross manipulations, but rarely push and pull. (Tr. 426). Dr. Lehman thought Plaintiff
should avoid temperature extremes as it “would cause more spasm in back”, and noted Plaintiff
needed to be able to alternate positions (between sitting, standing, and walking) at will. Id. Finally,
Dr. Lehman opined Plaintiff experienced moderate pain which would take him off task and cause
absenteeism, and Plaintiff would need an additional two hours of unscheduled rest time during an
eight-hour workday. Id.
As noted above, in September 2014, Dr. Lehman noted he continued his prior limitations
on prolonged sitting and standing, and noted Plaintiff could not bend, twist, or lift. (Tr. 475).
In June 2015, Dr. Lehman again assessed Plaintiff’s physical capacity. (Tr. 496-97). He
opined Plaintiff could occasionally lift or carry ten pounds, but never frequently carry any amount.
(Tr. 496). He opined Plaintiff could sit, stand, or walk for three hours in an eight-hour workday,
thirty minutes at one time. Id. He opined Plaintiff could rarely perform any postural activity (climb,
balance, stoop, crouch, kneel, or crawl). Id. Plaintiff could occasionally reach, frequently perform
fine or gross manipulations, but rarely push or pull. (Tr. 497). He noted Plaintiff should not be
exposed to heights or moving machinery because of a “decreased ability to move quickly”. Id.
Plaintiff needed to be able to alternate positions at will, and had moderate pain that would with
concentration, take him off task, and cause absenteeism. Id. Finally, Dr. Lehman opined Plaintiff
would need four hours of unscheduled rest time during an eight-hour workday. Id.
Consultative Examiners
In August 2012, Plaintiff underwent a physical capacity evaluation with physical therapist
Jessye Hartman. (Tr. 382-92). Plaintiff reported back pain, which he rated as 8/10, which increased
“especially with forward trunk flexion or activities that promote a forward flexed posture.” (Tr.
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383). He also reported he was “able to stand or ambulate approximately five minutes prior to
increased pain.” (Tr. 384). He also reported an inability to drive long distances “due to inability to
maintain sitting comfortably.” Id. Mr. Hartman noted abnormal lumbar range of motion on flexion,
extension, left and right side bending. (Tr. 385). After testing, Mr. Hartman offered the following
recommendation:
Based upon the strength classification as established by the Dictionary of
Occupational Titles, Mr. Patterson is capable of assuming light work for
pushing/pulling, lifting and carrying. The light work level entails exerting up to 20
lbs of force occasionally and/or up to 10# of force frequently, and/or a negligible
amount of force constantly to move objects. Mr. Patterson demonstrates safe
material handling of 10+ pounds (occasionally) and declines lifting additional
weight based upon subjective maximum safe lifting ability. Additionally light work
entails walking or standing to a significant degree. Today, the patient demonstrates
the ability to sit for 30 minutes, stand for 30 minutes and ambulate 11.5 minutes
without significant increase in pain.
Mr. Patterson demonstrates the ability to push/pull, lift, and carry from 12
inches to waist height within the light work classification. The patient would be
most appropriate for employment in which he was able to change position from sit
to stand as needed and lift no more than 20 pounds occasionally, and 10 lbs
frequently from 12 inches to waist height only; for a maximum of 8 hrs/day up to
40hrs/week. Mr. Patterson falls into the sedentary work category for labor that
requires lifting form the floor or overhead heights as he only demonstrates the
ability to occasionally lift more than 10 lbs at these levels. It is this therapist’s
opinion that Mr. Patterson would likely benefit from VOC rehab and/or work reconditioning to allow the patient to safely return to appropriate employment.
(Tr. 390-91).
As noted above, in July 2013, Dr. Lehman asked Larry Kennedy, M.D., for a second
opinion regarding Plaintiff’s condition. (Tr. 446-48). Plaintiff reported his back surgery had
relieved his right leg symptoms, but his back pain had continued. (Tr. 446). Dr. Kennedy found
Plaintiff’s range of motion in his back “limited severely and limited by 75 to 90% in all planes
including forward flexion, extension, and right and left side bending.” (Tr. 447). His “[s]traight
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leg raise bilaterally caused some back pain, but no radicular type symptoms. Id. Dr. Kennedy did
not offer specific limitations, but regarding work restrictions, noted:
I will leave that to Dr. Lehman and I typically follow recommendations given based
on a functional capacity evaluation. If there is any question about what his true
work restrictions should be, if these were not based on a functional capacity
evaluation in the past, then I would do a functional capacity evaluation. He may
well have already had one prior to work restrictions being given.
(Tr. 447).
State Agency Physicians
In June 2014, Gerald Klyop, M.D., reviewed Plaintiff’s records at the request of the state
agency. (Tr. 85-86). Dr. Klyop opined Plaintiff could occasionally lift or carry twenty pounds, and
frequently lift or carry 10 pounds. (Tr. 85). He could stand or walk for four hours, and sit for six
in an eight-hour workday. Id. He limited Plaintiff to occasional climbing of ramps and stairs,
stooping, kneeling, crouching, and crawling; opined he should never climb ladders, ropes, or
scaffolds; but thought Plaintiff ability to balance was unlimited. (Tr. 86). Dr. Klyop noted Dr.
Lehman’s April 2014 opinion, and stated he did not give it controlling weight “as the MD provides
no objective findings to support the opinions”. (Tr. 85).
In September 2014, William Bolz, M.D., reviewed Plaintiff’s records at the request of the
state agency. (Tr. 100-02). He opined Plaintiff was limited in the same ways as Dr. Klyop had, but
added an environmental limitation regarding avoiding hazardous heights. (Tr. 102). He provided
the same comment as Dr. Klyop regarding Dr. Lehman’s April 2014 opinion. (Tr. 100).
VE Testimony
A VE appeared and testified at the hearing before the ALJ. (Tr. 62-75). The ALJ first asked
the VE to consider a hypothetical individual of Plaintiff’s age, education, and work experience
who could: lift and carry 10 pounds frequently, and 20 pounds occasionally; stand and walk for
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four hours, and sit for up to six hours in an eight-hour workday; occasionally climb ramps and
stairs, but never ladders, ropes, or scaffolds; occasionally stoop kneel, crouch, or crawl;
occasionally push or pull with the right lower extremity; and who must: avoid concentrated
exposure to hazards such as heights and moving machinery. (Tr. 63).3 The VE testified that such
an individual could not perform any past work. Id. He then testified that he was “going to interpret
the standing and walking, sitting with the light category, provided this was done with a sit stand
option”, and that such an individual could perform other work.
The ALJ then asked the VE to take the same hypothetical, but change it “so that the person
could perform straight sedentary level work, and everything else stays the same”. (Tr. 64). The VE
testified such an individual could not perform past work, but could perform other jobs. (Tr. 65).
The ALJ then asked the VE to consider an opinion from Dr. Lehman with the following
limitations:
This person can lift and carry 10 pounds occasionally, none on a frequent basis.
They can stand and walk for three hours, and sit for three hours in a workday which
of course is less than an eight hour workday.
They need a sit stand option to change position every 30 minutes. They can rarely
climb, balance, stoop, crouch, kneel and crawl. They can occasionally reach. They
can rarely push or pull. They must avoid concentrated exposure to heights and
moving machinery.
(Tr. 66). The VE responded such a person could not perform past work or any other jobs. Id. The
VE also stated that a person who required an extra one-hour break per day, or who would be absent
three days per month would not be able to find employment. Id.
3. The hypothetical also contained mental limitations, which are not at issue here. (Tr. 63).
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ALJ Decision
In her decision, the ALJ noted Plaintiff last met the insured status requirements for DIB on
December 31, 2014, and had not engaged in substantial gainful activity from the alleged onset date
through the date last insured. (Tr. 21). The ALJ found Plaintiff had severe impairments of lumbar
disc disease status post surgery and borderline intellectual functioning, but he did not have an
impairment or combination of impairments that met or medically equaled one a listed impairment.
(Tr. 22). The ALJ then concluded Plaintiff had the residual functional capacity
to perform sedentary work as defined in 20 CFR 404.1567(a) with the following
additional limitations: the claimant is limited to no more than occasional climbing
of ramps and stairs. He must never climb ladders, ropes, or scaffolds. He can
occasionally stoop, kneel, crouch, or crawl. He can occasionally push or pull with
his right lower extremity. He must avoid concentrated exposure to hazards such as
heights and moving machinery.
(Tr. 25).4 The ALJ found Plaintiff was unable to perform any past relevant work, was a “younger
individual” under the regulations, and had at least a high school education and the ability to
communicate in English. (Tr. 30-31). Based on the testimony from the VE, the ALJ found there
were other jobs in the national economy Plaintiff could perform. (Tr. 31-32). Therefore, the ALJ
concluded Plaintiff was not disabled. (Tr. 32).
STANDARD OF REVIEW
In reviewing the denial of Social Security benefits, the Court “must affirm the
Commissioner’s conclusions absent a determination that the Commissioner has failed to apply the
correct legal standards or has made findings of fact unsupported by substantial evidence in the
record.” Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). “Substantial evidence
is more than a scintilla of evidence but less than a preponderance and is such relevant evidence as
4. The RFC also included mental imitations, which are not at issue here. See Tr. 25.
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a reasonable mind might accept as adequate to support a conclusion.” Besaw v. Sec’y of Health &
Human Servs., 966 F.2d 1028, 1030 (6th Cir. 1992). The Commissioner’s findings “as to any fact
if supported by substantial evidence shall be conclusive.” McClanahan v. Comm’r of Soc. Sec.,
474 F.3d 830, 833 (6th Cir. 2006) (citing 42 U.S.C. § 405(g)). Even if substantial evidence or
indeed a preponderance of the evidence supports a claimant’s position, the court cannot overturn
“so long as substantial evidence also supports the conclusion reached by the ALJ.” Jones v.
Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003).
STANDARD FOR DISABILITY
Eligibility for benefits is predicated on the existence of a disability. 42 U.S.C. §§ 423(a),
1382(a). “Disability” is defined as the “inability to engage in any 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. § 404.1505(a); see also 42 U.S.C. § 1382c(a)(3)(A). The
Commissioner follows a five-step evaluation process—found at 20 C.F.R. § 404.1520—to
determine if a claimant is disabled:
1.
Was claimant engaged in a substantial gainful activity?
2.
Did claimant have a medically determinable impairment, or a combination
of impairments, that is “severe,” which is defined as one which substantially
limits an individual’s ability to perform basic work activities?
3.
Does the severe impairment meet one of the listed impairments?
4.
What is claimant’s residual functional capacity and can claimant perform
past relevant work?
5.
Can claimant do any other work considering his residual functional
capacity, age, education, and work experience?
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Under this five-step sequential analysis, the claimant has the burden of proof in Steps One
through Four. Walters, 127 F.3d at 529. The burden shifts to the Commissioner at Step Five to
establish whether the claimant has the residual functional capacity to perform available work in
the national economy. Id. The ALJ considers the claimant’s residual functional capacity, age,
education, and past work experience to determine if the claimant could perform other work. Id.
Only if a claimant satisfies each element of the analysis, including inability to do other work, and
meets the duration requirements, is he determined to be disabled. 20 C.F.R. §§ 404.1520(b)-(f);
see also Walters, 127 F.3d at 529.
DISCUSSION
Plaintiff alleges the ALJ erred in her treatment of Dr. Lehman’s treating source opinions,
and her analysis of physical therapist Mr. Hartman’s opinions. The Commissioner responds that
there was no error, and the ALJ’s decision is supported by substantial evidence. For the reasons
discussed below, the undersigned finds the ALJ erred in evaluating Dr. Lehman’s opinions—and
remand is required; but the ALJ did not err in her analysis of Mr. Hartman’s opinion.
Treating Physician
Plaintiff contends the ALJ erred in her analysis of Dr. Lehman’s opinions; specifically, he
contends that her rationale “was not specific, factually in error, and not supported by the substance
of the evidence.” (Doc. 14, at 8-9). The Commissioner responds that the ALJ “thoughtfully and
extensively addressed the medical opinions . . . in determining the limitations for the RFC finding.”
(Doc. 15, at 8). For the reasons discussed below, the undersigned agrees with Plaintiff that remand
is required.
Generally, the medical opinions of treating physicians are afforded greater deference than
those of non-treating physicians. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007);
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see also SSR 96-2p, 1996 WL 374188.5 “Because treating physicians are ‘the medical
professionals most able to provide a detailed, longitudinal picture of [a plaintiff’s] medical
impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained
from the objective medical findings alone,’ their opinions are generally accorded more weight than
those of non-treating physicians.” Rogers, 486 F.3d at 242 (quoting 20 C.F.R. § 416.927(d)(2)).
A treating physician’s opinion is given “controlling weight” if it is supported by: 1)
medically acceptable clinical and laboratory diagnostic techniques; and 2) is not inconsistent with
other substantial evidence in the case record. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544
(6th Cir. 2004). The requirement to give controlling weight to a treating source is presumptive; if
the ALJ decides not to do so, he must provide evidentiary support for such a finding. Id. at 546;
Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376-77 (6th Cir. 2013). When the physician’s
medical opinion is not granted controlling weight, the ALJ must give “good reasons” for the weight
given to the opinion. Rogers, 486 F.3d at 242 (quoting 20 C.F.R. § 416.927(d)(2)). “Good reasons”
are reasons “sufficiently specific to make clear to any subsequent reviewers the weight given to
the treating physician’s opinion and the reasons for that weight.” Wilson, 378 F.3d at 544.
When determining weight and articulating good reasons, the ALJ “must apply certain
factors” to the opinion. Rabbers v. Comm’r Soc. Sec. Admin., 582 F.3d 647, 660 (6th Cir. 2009)
(citing 20 C.F.R. § 404.1527(d)(2)). These factors include the length of treatment relationship, the
frequency of examination, the nature and extent of the treatment relationship, the supportability of
the opinion, the consistency of the opinion with the record as a whole, and the specialization of
5. Although recent revisions to the CFR have eliminated the treating physician rule, such changes
were effective March 27, 2017, and do not apply to decisions issued prior to that date. See Social
Sec. Admin., Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg.
5852-53, 2017 WL 168819.
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the treating source. Id. While an ALJ is required to delineate good reasons, he is not required to
enter into an in-depth or “exhaustive factor-by-factor analysis” to satisfy the requirement. Francis
v. Comm’r of Soc. Sec. Admin., 414 F. App’x 802, 804-05 (6th Cir. 2011).
An ALJ’s brief explanation may satisfy the good reasons requirement, if that brief analysis
touches on the required factors. See Allen v. Comm’r of Soc. Sec., 561 F.3d 646, 651 (6th Cir.
2009). However, a conclusory statement that a treating physician’s opinion is inconsistent with the
record is insufficient to satisfy the rule. See Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 551
(6th Cir. 2010). “Put simply, it is not enough to dismiss a treating physician’s opinion as
‘incompatible’ with other evidence of record; there must be some effort to identify the specific
discrepancies and to explain why it is the treating physician’s conclusion that gets the short end of
the stick.” Id. at 552.
The purpose of the treating physician rule is two-fold. First, the explanation “‘let[s]
claimants understand the disposition of their cases,’ particularly where a claimant knows that his
physician has deemed him disabled and therefore ‘might be bewildered when told by an
administrative bureaucracy that she is not, unless some reason for the agency’s decision is
supplied.’” Wilson, 378 F.3d at 544 (quoting Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999)).
Second, requiring an explanation “ensures that the ALJ applies the treating physician rule and
permits meaningful appellate review of the ALJ's application of the rule.” Id.
Dr. Lehman offered two physical capacity assessments—one in April 2014, and one in
June 2015. See Tr. 425-26; 496-97.6 With regard to Dr. Lehman’s April 2014 opinion, the ALJ
explained:
6. Dr. Lehman also offered other comments regarding Plaintiff’s ability to work in July and
November 2013; and January, March, April, and September 2014. See Tr. 433, 436, 438, 440, 443,
475. The ALJ gave these limitations “limited weight” because they “fail[e]d to give specific
17
Although from a treating source, this opinion is given limited weight as such severe
restrictions are not supported by Dr. Lehman’s findings on examination of the
claimant nor are they supported by the entirety of the treatment record.
(Tr. 27).7 The ALJ used identical wording regarding Dr. Lehman’s June 2015 opinion, but added:
“Moreover, there is nothing in the record reflecting a worsening of claimant’s condition from Dr.
Lehman’s prior opinion in April 2014.” (Tr. 28). Other than summarizing Dr. Lehman’s opined
restrictions, this is the entirety of the ALJ’s analysis of this treating source’s opinion.
Although the ALJ states Dr. Lehman’s restrictions are not “supported by the entirety of the
treatment record”, seemingly addressing the “consistency” factor in 20 C.F.R. § 404.1527(d)(2)—
she provides no citation to any record she contends is inconsistent with Dr. Lehman’s restrictions.
This deprives this Court of the ability to meaningfully review her decision. The ALJ “cannot
simply invoke the criteria set forth in the regulations if doing so would not be ‘sufficiently specific’
to meet the goals of the ‘good reason’ rule.” Friend, 375 F. App’x at 551. As another court
explained:
This reminds the Court of the criticized phrasing in Gayheart v. Comm’r of Soc.
Sec., 710 F.3d 65, 377 (6th Cir. 2013), where the Sixth Circuit rejected as
ambiguous and inapt to the standard an ALJ’s characterization of an opinion as “not
well-supported by any objective findings.” The ALJ here does not declare the other
evidence substantial and does not particularize what contra evidence she views as
objective but worthier of credence. This makes review nearly impossible.
Tarter v. Colvin, 2015 WL 4972933, at *5 (E.D. Ky.). Here, the ALJ fails to explain what in the
“entirety of the treatment record” undermines Dr. Lehman’s opinions. And the regulations require
limitations of functions and therefore . . . [were] of limited use . . . in determining the residual
functional capacity.” (Tr. 27). Plaintiff does not, however, explicitly challenge the ALJ’s treatment
of these notes. See Doc. 14, at 8-13.
7. Although the ALJ does not specifically state, the “severe restrictions” she references appear to
be Dr. Lehman’s opinion that Plaintiff would: require two hours of extra unscheduled rest periods
during an eight-hour workday; need to alternate positions between sitting, standing, and walking
at will; and that Plaintiff’s pain would cause him to be off-task and cause absenteeism. See Tr.
426.
18
more—“some effort to identify the specific discrepancies and to explain why it is the treating
physician’s conclusion that gets the short end of the stick.” Friend, 375 F. App’x at 552.
Similarly, while the ALJ’s opinion purportedly speaks to the “supportability” factor, in
stating that “such severe restrictions are not supported by Dr. Lehman’s findings on examination
of the claimant” (Tr. 27), the ALJ again provides no further explanation, or citation to any records.
Thus, the undersigned cannot determine what “findings on examination” the ALJ found
inconsistent with Dr. Lehman’s opinion.
The Commissioner, in argument, references the prior page of the opinion, in which—in
one lengthy paragraph—the ALJ summarized the medical record. See Doc. 15, at 10 (“However,
in looking at the treatment notes, the ALJ observed that . . .”). In so doing, the Commissioner puts
a gloss on the ALJ’s opinion that is not apparent upon reading. And, the undersigned may not
accept post hoc justifications for that decision. See Williams v. Comm’r of Soc. Sec., 227 F. App’x
463, 464 (6th Cir. 2007) (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)) (a reviewing
court, in assessing the decision of an administrative agency, must judge its propriety solely by the
grounds invoked by the agency); see also Jones v. Astrue, 647 F.3d 350, 356 (D.C. Cir. 2011)
(“The treating physician rule requires an explanation by the SSA, not the court.”).8 Although the
ALJ’s record evidence summary indicates that in January 2014, Dr. Lehman found no muscle
spasms and negative straight leg raising test (Tr. 26) (citing Tr. 437-38), that same record shows
lower back tenderness on palpation, and an abnormal range of motion in the lumbosacral spine, as
well as abnormal gait and station. Id. Moreover, in the same record, Dr. Lehman noted Plaintiff’s
8. Additionally, the Commissioner now correctly points out that the state agency reviewing
physicians concluded Dr. Lehman’s opinion was not supported by objective clinical findings, see
Doc. 15, at 11 (citing Tr. 85, 100), but this again is a post-hoc rationale. The ALJ did not make
any note of this particular finding.
19
back pain “remain[ed] unchanged” and that he was unable “to sit [or] stand[] [f]or any length of
time without changing positions” and was “not able to lift or bend.” (Tr. 437). Similarly, the ALJ
summarized the records from March and April 2014, which had similar findings of abnormal range
of motion, abnormal gait and stance, and tenderness in the lower back, as well as negative straight
leg raising tests, and no muscle spasms. See Tr. 26 (citing Tr. 432-33, 435-36). In April, as the
ALJ recognized, Plaintiff reported occasional radiation of the low back pain to his legs. (Tr. 26)
(citing Tr. 432). The ALJ summarized these records in a neutral manner, but made no effort—in
this summary, or in his later discussion of the opinion evidence—to compare the objective findings
made with the restrictions imposed by Dr. Lehman or to analyze why she found those findings
inconsistent with the restrictions given. Compare, e.g., Daniels v. Comm’r of Soc. Sec., 2014 WL
1304940, *12 (N.D. Ohio) (“The ALJ’s discussion of the medical evidence was not merely a rote
recitation of Plaintiff’s longitudinal history; rather the ALJ analyzed the medical evidence and
explained how it supported his ultimate RFC determination.”).
The Commissioner also points to the state agency physicians’ opinions that Plaintiff could
perform light exertional work with additional restrictions. (Doc. 15, at 10-11). That other nontreating physicians found Plaintiff capable of more than a treating physician cannot alone serve as
a “good reason” for discounting the treating physician’s opinion. See Hensley v. Astrue, 573 F.3d
263, 266-67 (6th Cir. 2009) (finding that another physician reached the opposite conclusion is “not
an adequate basis for rejecting” a treating physician’s opinion). Moreover, the ALJ did not provide
this as a reason for discounting Dr. Lehman’s opinions.
Finally, as to Dr. Lehman’s June 2015 opinion, the ALJ offered an additional reason—that
“there is nothing in the record reflecting a worsening of claimant’s condition from Dr. Lehman’s
prior opinion in April 2014.” (Tr. 27). Dr. Lehman’s June 2015 opinion differed from his April
20
2014 opinion in that it contained specific lifting and carrying restrictions; found Plaintiff more
limited in his ability to sit, stand, or walk; added restriction to avoid heights or moving machinery;
and concluded Plaintiff could rarely (rather than occasionally) balance. Compare Tr. 496-97 with
Tr. 425-26. As Plaintiff points out, Dr. Lehman’s records between these two opinions, however,
show increasing radiation of Plaintiff’s back pain to his legs, and straight leg raising tests that
caused back pain. Compare Tr. 474 (September 2014 notation “[s]traight leg raising test
aggravated his back pain but did not give him pain down his legs”); Tr. 477 (“His straight leg
raising test cause[ed] discomfort in the back”) with Tr. 433, 438 (negative straight leg raising tests
in January and April 2014); see also Tr. 474 (September 2014 notation that Plaintiff reported low
back pain that “[s]ometimes radiates down into his legs”); Tr. 477 (December 2014 notation that
Plaintiff reported low back pain that “radiate[d] into his legs more on the left than on the right”).
Whether this evidence sufficiently supports Dr. Lehman’s June 2015 opinion, and entitles it to
controlling weight, or more weight than the ALJ afforded it is not for the undersigned to determine.
What the undersigned can determine, as set forth above, is that the ALJ failed to provide the
required good reasons for discounting Dr. Lehman’s opinions, and this failure deprives this Court
the ability to meaningfully review her decision. Wilson, 378 F.3d at 544
In conclusion, the undersigned finds the ALJ failed to give “good reasons”—that is, reasons
“sufficiently specific to make clear to any subsequent reviewers the weight given to the treating
physician’s opinion and the reasons for that weight,” Wilson, 378 F.3d at 544—for discounting
Dr. Lehman’s April 2014 and June 2015 opinions. Dr. Lehman treated Plaintiff for an extended
period of time and offered multiple opinions that he was more limited than ultimately found by the
ALJ. While “[i]t may be true that, on remand, the Commissioner reaches the same conclusion as
to [Plaintiff’s] disability while complying with the treating physician rule and the good reasons
21
requirement; however, [Plaintiff] will then be able to understand the Commissioner’s rationale and
the procedure through which the decision was reached.” Cole v. Astrue, 661 F.3d 931, 940 (6th
Cir. 2011). The undersigned offers no opinion on whether Plaintiff is disabled within the meaning
of the statute and regulations, however, the Sixth Circuit “do[es] not hesitate to remand when the
Commissioner has not provided ‘good reasons’ for the weight given to a treating physician’s
opinion and . . . will continue remanding when [they] encounter opinions from ALJ’s that do not
comprehensively set forth the reasons for the weight assigned to a treating physician’s opinion.”
Id. at 545 (internal quotation omitted). Such a remand is required here.
Physical Therapist
Plaintiff secondly contends that the ALJ failed to properly evaluate the opinion of Mr.
Hartman, the physical therapist who performed a consultative examination. The Commissioner
responds that the ALJ provided the required analysis of this “other source” opinion. For the reasons
discussed below, the undersigned agrees with the Commissioner.
The regulations provide specific criteria for evaluating medical opinions from “acceptable
medical sources”; however, they do not explicitly address how to consider opinions and evidence
from “other sources”, including “non-medical sources” listed in 20 C.F.R. § 404.1513(d). SSR 063p clarifies opinions from other sources “are important and should be evaluated on key issues such
as impairment severity and functional effects.” SSR 06-3p, 2006 WL 2329939, at *3. Further, SSR
06-3p also states other sources should be evaluated under the factors applicable to opinions from
“acceptable medical sources” – i.e., how long the source has known and how frequently the source
has seen the individual; consistency with the record evidence; specialty or area of expertise; how
well the source explains the opinion; supportability; and any other factors that tend to support or
refute the opinion. 2006 WL 2329939, at *4-5; 20 C.F.R. § 404.1527(d)(2).
22
In the Sixth Circuit, “an ALJ has discretion to determine the proper weight to accord
opinions from ‘other sources’”. Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 541 (6th Cir. 2007).
While the ALJ “does not have a heightened duty of articulation when addressing opinions issued
by ‘other sources’, the ALJ must nevertheless “consider” those opinions. Hatley v. Comm’r of Soc.
Sec., 2014 WL 3670078 (N.D. Ohio); see also Brewer v. Astrue, 2012 WL 262632, at *10 (N.D.
Ohio 2012) (“SSR 06-3p does not include an express requirement for a certain level of analysis
that must be included in the decision of the ALJ regarding the weight or credibility of opinion
evidence from ‘other sources.’”).
The ALJ here explained his consideration of Mr. Hartman’s opinion:
As a physical therapist, Jessye Hartman, is not an acceptable medical source and
the opinion, standing alone, cannot constitute documentation of severe or disabling
limitations. The opinion, however, has been considered with respect to severity and
effect on function (Social Security Ruling 06-3p). The undersigned considers the
opinion but as it is a one-time evaluation, it is not given significant weight.
(Tr. 28).
Although Plaintiff disagrees with the weight the ALJ assigned to Mr. Hartman’s opinion,
the undersigned finds he has shown no error in this regard. An ALJ is not required to provide the
same “good reasons” for discounting an “other source” opinion, as she is for a treating source. See
York v. Comm’r of Soc. Sec., 2014 WL 1213240, at *5 (S.D. Ohio) (“SSR 06–03p . . . does not
require that an adjudicator articulate ‘good reasons’ for the rejecting of an ‘other source’s’ opinion
[,]” as the ALJ must do when discounting an opinion by a treating source). (citations omitted);
For the reasons explained above, the undersigned finds the ALJ’s discussion of Mr.
Hartman’s opinion—though brief—satisfies the requirement that she “should explain the weight
given to [such] opinions . . . or otherwise ensure that the discussion of the evidence in the
determination or decision allows a claimant or subsequent reviewer to follow the adjudicator’s
23
reasoning, when such opinions may have an effect on the outcome of the case.” SSR 06–03p, 2006
WL 2329939, at *6; see also Cruse, 502 F.3d at 541. As such, the ALJ did not err in her analysis
of Mr. Hartman’s opinion. Although Plaintiff contends that the ALJ’s analysis takes the axiom of
giving “more weight to the opinions of non-treating sources who have at least examined a claimant
than non-examining non-treating sources”, and “uses it when convenient and discards it when it
seeks support for a pre-determined result”, (Doc. 14, at 15)9, having reviewed the record, the
undersigned disagrees.
Because remand is required to provide further analysis of treating physician Dr. Lehman’s
opinion, and, as Plaintiff points out, some of Mr. Hartman’s findings are supportive of Dr.
Lehman’s opinions (e.g., limited range of motion), the ALJ may further consider Mr. Hartman’s
opinion and examination on remand in evaluating the record as a whole and the analysis of Dr.
Lehman’s opinion. However, the undersigned finds no error in the ALJ’s treatment of Mr.
Hartman’s within the decision.
CONCLUSION
Following review of the arguments presented, the record, and the applicable law, the
undersigned finds the Commissioner’s decision denying DIB not supported by substantial
evidence and reverses that decision, and remands for further proceedings consistent with this
opinion.
s/James R. Knepp II
United States Magistrate Judge
9. Plaintiff specifically objects to the ALJ’s decision to discount Mr. Hartman’s opinion as a onetime examination, while also giving “great weight” to state agency psychological consultants who
never examined Plaintiff. See Doc. 14, at 14. As the Commissioner points out, however, these
reviewing physicians had the benefit of reviewing Plaintiff’s records as a whole.
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