Miller v. Commissioner of Social Security Administration

Filing 29

Memorandum Opinion and Order that the decsion of the Commissioner denying Miller disability insurance benefits and supplemental security income is reversed and the case remanded for further administrative proceedings (Related Doc # 1 ). Signed by Magistrate Judge William H. Baughman, Jr. on 9/27/2013. (S,G)

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

SYLVIA F. MILLER,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CASE NO. 5:12 CV 1512

MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.

MEMORANDUM OPINION AND
ORDER

Introduction
This is an action for judicial review of the final decision of the Commissioner of
Social Security denying the applications of the plaintiff, Sylvia F. Miller, for disability
insurance benefits and supplemental security income. The parties have consented to
magistrate judge’s jurisdiction.
The Administrative Law Judge (“ALJ”), whose decision became the final decision of
the Commissioner, found that Miller had severe impairments consisting of right
epicondylitis, obesity, affective disorder, and degenerative disc disease of the lumbar and
cervical spines.1 The ALJ made the following finding regarding Miller’s residual functional
capacity (“RFC”):
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) and 416.967(a) except she cannot work at

1

Transcript (“Tr.”) at 15.

heights, with ladders, around hazardous or dangerous machinery; she can only
occasionally climb, stoop, bend, balance, twist, kneel and crawl. She must
avoid repetitive use of the dominant upper extremity, with no more than
occasional overhead work or overhead reaching. She is limited to simple,
routine, unskilled tasks, which require limited concentration.2
The ALJ decided that this RFC precluded Miller from performing her past relevant work.3
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 Miller could
perform.4 The ALJ, therefore, found Miller not under a disability.5
Miller 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. She presents three
issues for judicial review:
•

Did the ALJ err in rejecting the opinion of treating physician Rekha
Pawar, M.D.?

•

Did the ALJ err in rejecting the opinion of treating counselor LaDonna
Gleisinger?

•

Did the ALJ err in his analysis of Plaintiff’s pain and credibility?6

2

Id. at 17.

3

Id. at 21.

4

Id. at 22.

5

Id. at 23.

6

ECF # 12.
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The Court concludes that the ALJ’s finding of no disability is not supported by
substantial evidence and, therefore, must be remanded.

Analysis
1.

The ALJ’s application of the treating source rule
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
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.7
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.8
The ALJ has the ultimate responsibility for determining whether a claimant is
disabled.9 Conclusory statements by the treating source that the claimant is disabled are not
entitled to deference under the regulation.10
7

20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2).

8

Id.

9

Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009).

10

20 C.F.R. §§ 404.1527(d)(1) and (3), 416.927(d)(1) and (3).
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The regulation does cover treating source opinions as to a claimant’s exertional
limitations and work-related capacity in light of those limitations.11 Although the treating
source’s report need not contain all the supporting evidence to warrant the assignment of
controlling weight to it,12 nevertheless, it must be “well-supported by medically acceptable
clinical and laboratory diagnostic techniques” to receive such weight.13 In deciding if such
supporting evidence exists, the Court will review the administrative record as a whole and
may rely on evidence not cited by the ALJ.14
In Wilson v. Commissioner of Social Security,15 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.16 The court noted that the regulation expressly
contains a “good reasons” requirement.17 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:

11

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).
12

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

13

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

14

Id. at 535.

15

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

16

Id. at 544.

17

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

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.18

The court went on to hold that the failure to articulate good reasons for discounting
the treating source’s opinion is not harmless error.19 It drew a distinction between a
regulation that bestows procedural benefits upon a party and one promulgated for the orderly
transaction of the agency’s business.20 The former confers a substantial, procedural right on
the party invoking it that cannot be set aside for harmless error.21 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.22
The opinion in Wilson sets up a three-part requirement for articulation against which
an ALJ’s opinion failing to assign controlling weight to a treating physician’s opinion must
be measured. First, the ALJ must find that the treating source’s opinion is not being given

18

Id. at 546.

19

Id.

20

Id.

21

Id.

22

Id.
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controlling weight and state the reason(s) therefor in terms of the regulation – the absence
of support by medically acceptable clinical and laboratory techniques and/or inconsistency
with other evidence in the case record.23 Second, the ALJ must identify for the record
evidence supporting that finding.”24 Third, the ALJ must determine what weight, if any, to
give the treating source’s opinion in light of the factors listed in 20 C.F.R. § 404.1527(d)(2)
and give good reasons for that weight.25
The Sixth Circuit in Gayheart v. Commissioner of Social Security26 recently
emphasized that the regulations require two distinct analyses, applying two separate
standards, in assessing the opinions of treating sources.27 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,28
Blakley v. Commissioner of Social Security,29 and Hensley v. Astrue.30

23

Wilson, 378 F.3d at 546.

24

Id.

25

Id.

26

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

27

Id. at 375-76.

28

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

29

Blakley, 581 F.3d at 406-07.

30

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.31 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.32 These factors are expressly set
out in 20 C.F.R. §§ 404.1527(c)(2) and 416.926(c)(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(c)(2)(i)-(ii),
(3)-(6) and §§ 416.926(c)(2)(i)-(ii), (3)-(6).33 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.”34
The court in Gayheart cautioned against collapsing these two distinct analyses into
one.35 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.36 Rather, the ALJ merely assigned
the opinion of the treating physician little weight and explained that finding by the secondary

31

Gayheart, 710 F.3d at 376.

32

Id.

33

Id.

34

Rogers, 486 F.3d at 242.

35

Gayheart, 710 F.3d at 376.

36

Id.
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criteria set out in §§ 1527(c)(i)-(ii), (3)-(6) of the regulations,37 specifically the frequency of
the psychiatrist’s treatment of the claimant and internal inconsistencies between the opinions
and the treatment reports.38 The court concluded that the ALJ failed to provide “good
reasons” for not giving the treating source’s opinion controlling weight.39
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.40
The ALJ here came up short for the same reason. She made no finding about
controlling weight.41 The ALJ here failed to comply with the requirements of the treating
physician rule in the regulations as developed by the Sixth Circuit in Wilson42 and its
progeny. The ALJ did not identify Dr. Pawar as a treating physician, did not make an express
finding regarding controlling weight of her opinion, did not assign specific weight to

37

Id.

38

Id.

39

Id.

40

Id.

41

Tr. at 20.

42

Wilson v. Comm’r of Soc. Sec., 378 F.3d 541 (6th Cir. 2004).
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Dr. Pawar’s opinion, and gave cursory reasons for not assigning “significant weight” to that
opinion.43
Specifically, the ALJ barely acknowledged the existence of that opinion, stating “I do
not give significant weight to Dr. Rekha Pawar’s medical source statement, since the
objective record indicates improvement in pain level with medications.”44 Counsel for the
Commissioner maintained at the oral argument that to affirm this case, I would have to
assume that the ALJ did not assign controlling weight, be satisfied with the ALJ’s statement
that the weight assigned was something less than significant (without further specification),
and look to the opinion as a whole as the statement of reasons for not giving Dr. Pawar’s
opinion controlling weight. To do so would require de novo review of the record and resort
to post hoc rationalization.
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 not giving controlling weight
constitutes a lack of substantial evidence even if the decision of the ALJ may be justified

43

Tr. at 20.

44

Id.
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based on the record.45 This failure hinders meaningful judicial review.46 The Commissioner’s
post hoc arguments on judicial review are immaterial.47
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 whether or not controlling weight is being given to the treating source’s opinion. If not,
the ALJ must articulate “good reasons” for not assigning such weight, applying the factors
set out in 20 C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2). When the treating source’s opinion
does not receive controlling weight, the decision must make an assignment of lesser weight,
justified by “good reasons” in terms of the factors set out in §§ 1527(c)(2)(i)-(ii), (3)-(6) and
927(c)(2)(i)-(ii), (3)-(6).
This case should be remanded for reconsideration of the RFC finding consistent with
the proper application of the treating source rule as made clear in the recent Gayheart
decision of the Sixth Circuit.48

45

Blakley, 581 F.3d at 407.

46

Gayheart, 710 F.3d at 377.

47

E.g., Bushor v. Comm’r of Soc. Sec., No. 1:09-CV-320, 2010 WL 2262337, at *8
(S.D. Ohio Apr. 15, 2010); Wooten v. Astrue, No. 1:09 CV 981, 2010 WL 184147
(N.D. Ohio Jan. 14, 2010).
48

Gayheart, 710 F.3d 375-77.
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2.

The ALJ’s credibility finding
The ALJ found Miller not credible to the extent that his statements were inconsistent

with the RFC finding.49
Arguably Miller’s subjective experience of pain exceeds her objective medical
findings. This, however, requires analysis giving proper weight to the opinions of the treating
physician and the treating counselor and performing the credibility analysis called for by the
regulations, which I discussed in great detail in my Cross v. Commissioner of Social
Security50 opinion.
As explained above, the RFC finding should be reconsidered on remand. To the extent
that the ALJ incorporates additional limitations into the RFC, that will dictate reconsideration
of the credibility finding as well.51

Conclusion
Based on the foregoing analysis, the decision of the Commissioner denying Miller’s
applications for DIB and SSI is reversed and this case is remanded for reconsideration of the
ALJ’s findings at steps four and five of the sequential evaluation process.
As discussed above, the ALJ on remand should determine if the opinions of the
treating physician, Rekha Pawar, M.D., should receive controlling weight and explain the

49

Tr. at 18-19.

50

Cross v. Comm’r of Soc. Sec., 373 F. Supp. 2d 724 (N.D. Ohio 2005).

51

Swain, 297 F. Supp. 2d at 994.
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reasons for that determination based on the criteria set forth in the applicable regulations. If
the ALJ does not give those opinions controlling weight, then he should weigh them based
on the factors identified in the applicable regulations and give good reasons for the weight
assigned. After reevaluating the weight assigned to the treating physician’s opinions, he
should reconsider the credibility finding in light of that reevaluation.
IT IS SO ORDERED.

Dated: September 27, 2013

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

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