Young v. Commissioner of Social Security Administration
Filing
22
Memorandum Opinion and Order that the decision of the Commissioner denying Young's applications for disability insurance benefits and supplemental security income is reversed and the matter remanded for further administrative proceedings (Related Doc # 1 ). Signed by Magistrate Judge William H. Baughman, Jr. on 9/12/2014. (S,G)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JUDY LYNN YOUNG,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
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CASE NO. 5:13 CV 1377
MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.
MEMORANDUM OPINION AND
ORDER
Introduction
A.
Nature of the case and proceedings
Before me1 is an action by Judy Lynn Young under 42 U.S.C. § 405(g) for judicial
review of the final decision of the Commissioner of Social Security denying her applications
for disability insurance benefits and supplemental security income.2 The Commissioner has
answered3 and filed the transcript of the administrative record.4 Under my initial5 and
1
ECF # 19. The parties have consented to my exercise of jurisdiction.
2
ECF # 1.
3
ECF # 11.
4
ECF # 12.
5
ECF # 5.
procedural6 orders, the parties have briefed their positions7 and filed supplemental charts8 and
the fact sheet.9 They have participated in a telephonic oral argument.10
B.
Background facts and decision of the Administrative Law Judge (“ALJ”)
Young, who was 50 years old at the time of the administrative hearing,11 shared a
home with her former husband and largely spent her time preparing meals and tending to
household chores.12 She is a high school graduate and previously worked as a cook, in cook
prep, as a cleaner, and as a waitress.13
The ALJ, whose decision became the final decision of the Commissioner, found that
Young had the following severe impairments: degenerative disc disease with lumbar
spondylosis, obesity, major depression with bipolar features, bipolar disorder with psychotic
features, anxiety disorder, and personality disorder.14
6
ECF # 13.
7
ECF # 14 (Young’s brief); ECF # 16 (Commissioner’s brief); ECF # 17 (Young’s
reply brief).
8
ECF # 16-1 (Commissioner’s charts); ECF # 15-2 (Young’s charts).
9
ECF # 15-1 (Young’s fact sheet).
10
ECF # 21.
11
Transcript (“Tr.”) at 39.
12
Id. at 32, 38.
13
Id. at 38.
14
Id. at 30.
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After concluding that the relevant impairments did not meet or equal a listing, the ALJ
made the following finding regarding Young’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 light work as defined
in 20 CFR 404.1567(b) and 416.967(b) except the claimant can stand and walk
up to four hours during and [sic] eight hour workday, but only one hour at a
time; can sit up to six hours during an eight hour workday, but only one hour
at a time; can never climb, kneel or crawl; can only occasionally balance, stoop
and crouch; must be able to alternate between sitting, standing and/or walking
every hour; can maintain attention and concentration to perform simple,
routine and repetitive work in an environment free of fast paced production
requirements or quotas; can have only superficial contact with co-workers,
supervisors and the general public; and can work in an environment with only
occasional changes to the work setting and occasional work-related decision
making.15
The ALJ decided that this RFC precluded Young from performing her past relevant work.16
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,17 the ALJ
determined that a significant number of jobs existed locally and nationally that Young could
perform.18 The ALJ, therefore, found Young not under a disability.19
15
Id. at 33.
16
Id. at 38-39.
17
Id. at 40.
18
Id. at 39-40.
19
Id. at 40.
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C.
Issues on judicial review and decision
Young 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, Young
presents the following issues for judicial review:
•
The ALJ gave significant weight to the opinion of Young’s treating
physician, Dr. Dhyanchand, regarding Young’s physical limitations.
The ALJ gave no weight, however, to Dr. Dhyanchand’s opinion
regarding anticipated absence from work and time off task. Did the ALJ
properly apply the treating source rule in discounting Dr. Dhyanchand’s
opinion as to mental limitations?
•
In deciding that a substantial number of jobs existed at step five, the
ALJ relied upon the VE’s answer to the hypothetical that did not
include limitations on Young’s anticipated absences from work or time
spent off task. When such limitations were added to the hypothetical,
the VE testified that no jobs would exist. Does substantial evidence
support the decision at step five?
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.
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
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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.
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.20
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.21 The court may not disturb the Commissioner’s
findings, even if the preponderance of the evidence favors the claimant.22
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.
20
Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (citations omitted).
21
LeMaster v. Sec’y of Health & Human Servs., 802 F.2d 839, 840 (6th Cir. 1986);
Tucker v. Comm’r of Soc. Sec., No. 3:06cv403, 2008 WL 399573, at *6 (S.D. Ohio Feb. 12,
2008).
22
Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
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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.23
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.24
The ALJ has the ultimate responsibility for determining whether a claimant is
disabled.25 Conclusory statements by the treating source that the claimant is disabled are not
entitled to deference under the regulation.26
The regulation does cover treating source opinions as to a claimant’s exertional
limitations and work-related capacity in light of those limitations.27 Although the treating
source’s report need not contain all the supporting evidence to warrant the assignment of
controlling weight to it,28 nevertheless, it must be “well-supported by medically acceptable
23
20 C.F.R. § 404.1527(d)(2).
24
Id.
25
Schuler v. Comm’r of Soc. Sec., 109 F. App’x 97, 101 (6th Cir. 2004).
26
Id.
27
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).
28
Garner v. Heckler, 745 F.2d 383, 391 (6th Cir. 1984).
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clinical and laboratory diagnostic techniques” to receive such weight.29 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.30
In Wilson v. Commissioner of Social Security,31 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.32 The court noted that the regulation expressly
contains a “good reasons” requirement.33 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.34
29
Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 536 (6th Cir. 2001).
30
Id. at 535.
31
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541 (6th Cir. 2004).
32
Id. at 544.
33
Id., citing and quoting 20 C.F.R. § 404.1527(d)(2).
34
Id. at 546.
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The court went on to hold that the failure to articulate good reasons for discounting
the treating source’s opinion is not harmless error.35 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.36 The former confers a substantial, procedural right on
the party invoking it that cannot be set aside for harmless error.37 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.38
The Sixth Circuit in Gayheart v. Commissioner of Social Security39 recently
emphasized that the regulations require two distinct analyses, applying two separate
standards, in assessing the opinions of treating sources.40 This does not represent a new
interpretation of the treating physician rule. Rather it reinforces and underscores what that
35
Id.
36
Id.
37
Id.
38
Id.
39
Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365 (6th Cir. 2013).
40
Id. at 375-76.
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court had previously said in cases such as Rogers v. Commissioner of Social Security,41
Blakley v. Commissioner of Social Security,42 and Hensley v. Astrue.43
As explained in Gayheart, the ALJ must first consider if the treating source’s opinion
should receive controlling weight.44 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.45 These factors are expressly set
out in 20 C.F.R. §§ 404.1527(d)(2) and 416.927(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) and §§ 416.927(d)(2)(i)-(ii), (3)-(6).46 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.”47
41
Rogers, 486 F.3d at 242.
42
Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406-07 (6th Cir. 2009).
43
Hensley v. Astrue, 573 F.3d 263, 266 (6th Cir. 2009).
44
Gayheart, 710 F.3d at 376.
45
Id.
46
Id.
47
Rogers, 486 F.3d at 242.
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The court in Gayheart cautioned against collapsing these two distinct analyses into
one.48 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.49 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,50 specifically the frequency of
the psychiatrist’s treatment of the claimant and internal inconsistencies between the opinions
and the treatment reports.51 The court concluded that the ALJ failed to provide “good
reasons” for not giving the treating source’s opinion controlling weight.52
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.53
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
48
Gayheart, 710 F.3d at 376.
49
Id.
50
Id.
51
Id.
52
Id.
53
Id.
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receive controlling weight.54 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.55 In articulating good reasons for assigning weight
other than controlling, the ALJ must do more than state that the opinion of the treating
physician disagrees with the opinion of a non-treating physician56 or that objective medical
evidence does not support that opinion.57
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.58 The Commissioner’s post hoc arguments on judicial review are immaterial.59
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
54
Rogers, 486 F.3d 234 at 242.
55
Blakley, 581 F.3d at 406-07.
56
Hensley, 573 F.3d at 266-67.
57
Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 551-52 (6th Cir. 2010).
58
Blakley, 581 F.3d at 407.
59
Wooten v. Astrue, No. 1:09-cv-981, 2010 WL 184147, at *8 (N.D. Ohio Jan. 14,
2010).
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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:
•
the failure to mention and consider the opinion of a treating source,60
•
the rejection or discounting of the weight of a treating source without
assigning weight,61
•
the failure to explain how the opinion of a source properly considered
as a treating source is weighed (i.e., treating v. examining),62
•
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,63
•
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,64 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.”65
60
Blakley, 581 F.3d at 407-08.
61
Id. at 408.
62
Id.
63
Id. at 409.
64
Hensley, 573 F.3d at 266-67.
65
Friend, 375 F. App’x at 551-52.
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The Sixth Circuit in Blakley66 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.67 Specifically, Blakley concluded that “even if we were to agree
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.”68
In Cole v. Astrue,69 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.70
B.
Application of standards
Each counsel affirmed at oral argument that if the present RFC is found to be
supported by substantial evidence, then the decision at step five about the existence of a
significant numbers of jobs that could be done by a person with that RFC must also be
affirmed. Thus, the critical issue before me is whether the RFC is unsupportable because it
66
Blakley, 581 F.3d 399.
67
Id. at 409-10.
68
Id. at 410.
69
Cole v. Astrue, 661 F.3d 931 (6th Cir. 2011).
70
Id. at 940.
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does not account for certain functional limitations expressed in the opinion of Young’s
treating physician, Charles Dhyanchand, M.D., which opinion, Young contends, was
improperly discounted.
In this case, Dr. Dhyanchand, who was Young’s primary care physician from 2009
through 2011, gave both an opinion as to Young’s physical work-related limitations and a
separate opinion as to her mental restrictions on December 5, 2011.71 As categorized by the
ALJ, Dr. Dhyanchand’s physical limitations opinion was that Young had pain and decreased
range of motion such that she could only stand for one hour at a time and sit for one hour at a
time, and would further be off task for twenty percent of the time and miss four or more days
of work per month due to her physical limitations.72 The ALJ found that Dr. Dhyanchand’s
opinion as to Young’s mental capabilities was that Young would have “noticeable
difficulties” in performing work-related functions for eleven to twenty percent of the
workday or workweek, and would be absent for more than four days per month due to her
mental impairments.73
The ALJ gave these opinions “significant weight,” because, “with the exception
of [the] determination regarding claimant’s anticipated absences and time spent off task,
[Dr. Dhyanchand’s opinions were] somewhat consistent with the medical evidence.”74 The
71
Tr. at 36.
72
Id.
73
Id. at 36-37.
74
Id. at 37.
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ALJ, in turn, gave no weight to Dr. Dhyanchand’s opinions as to Young’s anticipated
absences or time spent off task, citing as the reason for the complete absence of weight as to
these portions of the opinion the determination that these sections were “not supported by
[Dr. Dhyanchand’s] own treatment notes, and [are] inconsistent with the medical evidence
of record.”75
In addressing the ALJ’s treatment of the opinions of Dr. Dhyanchand I note first that
the ALJ’s decision does not strictly conform to the two-step analytical process set forth in
Gayheart. The ALJ here collapses that analysis into a single step and bases the conclusion
to afford no weight at all to Dr. Dhyanchand’s opinions on Young’s limitations on work
hours on the brief remark quoted above.76 Moreover, and perhaps more importantly, the ALJ
by contrast granted significant weight to the mental functional limitation opinion of the state
reviewing psychologist, Paul Tangeman, Ph.D., and to the opinion of state reviewer Carl
Tishler, Ph.D., who reviewed the Tangeman opinion along with Young’s medical records and
affirmed Tangeman’s findings.77
The situation here, at its core, is complicated by the fact that the Tangeman opinion,
which the ALJ stated was done after reviewing Young’s medical records,78 was completed
75
Id.
76
Id.
77
Id. at 37-38.
78
Id. at 37.
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on July 29, 2010.79 But both opinions by Dr. Dhyanchand, Young’s treating physician, were
not done until nearly a year and a half later, on December 5, 2011.80 As the Sixth Circuit
stated in Blakley, it is certainly possible for an ALJ to accord greater weight to the opinion
of a reviewing source over that of a treating source, such as when the reviewer had access
to a more complete medical record than did the treating source.81 But where the earlier
reviewer’s opinion was given greater weight without the ALJ explicitly referring to later
treatments and opinions by the treating source, and then explaining why the earlier reviewing
opinion is nevertheless entitled to greater weight, Blakley teaches that the ALJ’s decision is
not supported by substantial evidence.82
In such a situation, Blakley makes clear, “the ALJ’s incomplete weighing of [the
claimant’s] treating sources is not an excusable de minimis procedural violation.”83 Thus,
because without a stated reason for why later treatment records and opinions of the treating
source that were not considered by the reviewer nonetheless do not alter the granting of
79
Id.
80
Id. at 36.
81
Blakley, 581 F.3d at 409.
82
Id. (citing Fisk v. Astrue, 253 F. App’x 580, 585 (6th Cir. 2007) (internal quotation
omitted).
83
Id.
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greater weight to the reviewer’s opinion, there is no meaningful way to judicially review the
decision to assign weight.84
Here, in the time between when the state reviewer considered the record in July, 2010,
and when Young’s treating physician gave his opinion at the end of 2011, Young was seen
five times by Dr. Dhyanchand in 2010 and ten more time by him in 2011, with every visit
documented by treatment notes.85 It is simply not possible to conclude, with no analysis by
the ALJ, that these 15 separate, documented treatment visits, which were not seen or
considered by the state agency reviewer in formulating his opinion, are completely irrelevant
to the decision to assign greater weight to the reviewer’s opinion over that of the treating
source.
Although the Commissioner here, as always, has done a thorough and competent job
in seeking on her own to locate substantial evidence in the record to support the ALJ’s
ultimate decision to afford less weight to the opinion of Dr. Dhyanchand, the failure by the
ALJ to follow due process by clearly noting the later evidence not addressed by the reviewer
and plainly explaining why that later evidence does not weaken the reviewer’s weight
“prevents this Court from finding that the Commissioner’s decision is supported by
substantial weight.”86
84
Id.
85
See, ECF # 15-2 (Young’s chart) at 4-6 (citing transcript).
86
Blakley, 581 F.3d at 410.
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Conclusion
Therefore, for the reasons stated, substantial evidence does not support the finding of
the Commissioner that Young had no disability. The denial of Young’s applications is
reversed and the matter remanded for further proceedings consistent with this opinion.
IT IS SO ORDERED.
Dated: September 12, 2014
s/ William H. Baughman, Jr.
United States Magistrate Judge
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