Wish v. Commissioner Social Security Administration

Filing 23

Memorandum Opinion and Order that the decision of the Commissioner denying Wish's application for disability insurance benefits be reversed and the matter remanded for further administrative proceedings. (Related docs. 1 , 12 ). Signed by Magistrate Judge William H. Baughman, Jr., on 3/24/2016. (S,MD)

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

APRIL M. WISH,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CASE NO. 5:14 CV 2478

MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.

MEMORANDUM OPINION AND
ORDER

Introduction
A.

Nature of the case and proceedings
Before me1 is an action by April M. Wish 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 briefed

1

ECF # 12. The parties have consented to my exercise of jurisdiction.

2

ECF # 1.

3

ECF # 9.

4

ECF # 10.

5

ECF # 5.

6

ECF # 11.

their positions7 and filed supplemental charts8 and the fact sheet.9 After review of the briefs,
the issues presented, and the record, it was determined that this case can be decided without
oral argument.
B.

Background facts and decision of the Administrative Law Judge (“ALJ”)
Wish, who was 33 years old at the time of the administrative hearing,10 graduated high

school and completed a medical assistant course at Remington College in 2006.11 She is
married with three children,12 and has previously worked as a sales clerk, daycare worker,
and veterinary technician.13
The ALJ, whose decision became the final decision of the Commissioner, found that
Wish had the following severe impairments: fibromyalgia, obesity, and a bipolar disorder.14
After concluding that the relevant impairments did not meet or equal a listing, the ALJ
made the following finding regarding Wish’s residual functional capacity (“RFC”):

7

ECF # 13 (Wish’s brief); ECF # 21 (Commissioner’s brief); ECF # 22 (Wish’s reply

8

ECF # 16 (Wish’s charts); ECF # 21-1 (Commissioner’s charts).

9

ECF # 13-1 (Wish’s fact sheet).

brief).

10

Id.

11

Transcript (“Tr.”) at 38 and 40.

12

Id at 38.

13

Id. at 27.

14

Id. at 17.
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After careful consideration of the entire record, I find that the claimant has the
residual functional capacity to perform sedentary work as defined in 20 CFR
404.1567(a), except that the claimant will require a sit/stand option in the
performance of her work. Mentally, the claimant is limited to simple, routine,
repetitive tasks that are not performed at a high production pace. The claimant
cannot perform tasks requiring her to engage in arbitration, mediation, or
negotiation.15
The ALJ decided that this RFC precluded Wish from performing her past relevant work as
a sales clerk, a daycare worker, and a veterinary technician.16
Based on an answer to a hypothetical question posed to the vocational expert at the
hearing setting forth the RFC finding quoted above, the ALJ determined that a significant
number of jobs existed locally and nationally that Wish could perform.17 The ALJ, therefore,
found Wish not under a disability.18
C.

Issues on judicial review and decision
Wish 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, Wish
presents the following issues for judicial review:
•

Whether the ALJ’s finding lacks substantial evidence in that plaintiff’s
impairments did not meet or equal listing section 14.09(D).

•

Whether the ALJ erred in giving “lesser weight” to Dr. Kuchynski’s
November 3, 2011 opinion.

15

Id. at 19.

16

Id. at 27.

17

Id. at 28.

18

Id.
-3-

•

Whether the RFC lacks support of substantial evidence as the ALJ did
not include in the RFC any limitations related to difficulties
maintaining concentration, persistence and pace.

•

Whether the ALJ’s RFC lacks the support of substantial evidence, as
the RFC does not contain important functional limitations set forth in
the treating physician’s report.

•

Whether the ALJ’s hypothetical question that forms the basis for the
denial of the claim does not accurately portray the plaintiff’s limitations
is deficient as a matter of law, and is not based on substantial evidence.

For the reasons that follow, I will conclude that the ALJ’s finding is hereby reversed
and the matter remanded for further proceedings consistent with this opinion.

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.
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
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conclusion. This is so because there is a “zone of choice” within which the
Commissioner can act, without the fear of court interference.19

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.20 The court may not disturb the Commissioner’s
findings, even if the preponderance of the evidence favors the claimant.21
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
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.22

19

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

20

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).
21

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

22

20 C.F.R. § 404.1527(d)(2).
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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.23
The ALJ has the ultimate responsibility for determining whether a claimant is
disabled.24 Conclusory statements by the treating source that the claimant is disabled are not
entitled to deference under the regulation.25
The regulation does cover treating source opinions as to a claimant’s exertional
limitations and work-related capacity in light of those limitations.26 Although the treating
source’s report need not contain all the supporting evidence to warrant the assignment of
controlling weight to it,27 nevertheless, it must be “well-supported by medically acceptable
clinical and laboratory diagnostic techniques” to receive such weight.28 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.29

23

Id.

24

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

25

Id.

26

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).
27

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

28

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

29

Id. at 535.
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In Wilson v. Commissioner of Social Security,30 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.31 The court noted that the regulation expressly
contains a “good reasons” requirement.32 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.33

The court went on to hold that the failure to articulate good reasons for discounting
the treating source’s opinion is not harmless error.34 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.35 The former confers a substantial, procedural right on

30

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

31

Id. at 544.

32

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

33

Id. at 546.

34

Id.

35

Id.
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the party invoking it that cannot be set aside for harmless error.36 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.37
The Sixth Circuit in Gayheart v. Commissioner of Social Security38 recently
emphasized that the regulations require two distinct analyses, applying two separate
standards, in assessing the opinions of treating sources.39 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,40
Blakley v. Commissioner of Social Security,41 and Hensley v. Astrue.42
As explained in Gayheart, the ALJ must first consider if the treating source’s opinion
should receive controlling weight.43 The opinion must receive controlling weight if
(1) well-supported by clinical and laboratory diagnostic techniques and (2) not inconsistent

36

Id.

37

Id.

38

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

39

Id. at 375-76.

40

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

41

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

42

Hensley v. Astrue, 573 F.3d 263, 266 (6th Cir. 2009).

43

Gayheart, 710 F.3d at 376.
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with other substantial evidence in the administrative record.44 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).45 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.”46
The court in Gayheart cautioned against collapsing these two distinct analyses into
one.47 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.48 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,49 specifically the frequency of
the psychiatrist’s treatment of the claimant and internal inconsistencies between the opinions

44

Id.

45

Id.

46

Rogers, 486 F.3d at 242.

47

Gayheart, 710 F.3d at 376.

48

Id.

49

Id.
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and the treatment reports.50 The court concluded that the ALJ failed to provide “good
reasons” for not giving the treating source’s opinion controlling weight.51
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.52
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.53 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.54 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 physician55 or that objective medical
evidence does not support that opinion.56
50

Id.

51

Id.

52

Id.

53

Rogers, 486 F.3d 234 at 242.

54

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

55

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

56

Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 551-52 (6th Cir. 2010).
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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.57 The Commissioner’s post hoc arguments on judicial review are immaterial.58
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).
B.

Application of standard
This case once again involves the well-established rule concerning the treatment of

treating source opinions.
Essentially, Wish contends first that the ALJ erred in assigning “little weight” to the
November 3, 2011 opinion of Dr. Marie Kuchynski, MD, Wish’s treating rheumatologist,
because it was purportedly inconsistent with her December 19, 2011 answer to a state agency

57

Blakley, 581 F.3d at 407.

58

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

2010).
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questionnaire.59 Wish further argues that the ALJ also erred in not sufficiently articulating
his reasons for finding that Wish’s fibromyalgia does not meet or equal the listing at Section
14.09 addressing inflammatory arthritis.60 Wish also raises two additional points going to
the hypothetical questions posed to the VE.61
However, because for the reasons stated below the decision in this matter will be
reversed upon consideration of the first ground set out above, it will not be necessary to here
address either the other major argument or the secondary issues in great depth.
Initially I note that Wish’s treatment relationship with Dr. Kuchynski was
acknowledged by the ALJ to be a treating relationship.62 Further, there does not appear to be
any dispute over Dr. Kuchynski’s diagnosis of Wish as having fibromyalgia. Indeed, the
ALJ’s opinion, in its chronological review of the medical evidence, explicitly cites to Dr.
Kuchynski’s treatment notes from December 3, 2010;63 February 21, 2011;64 October, 2011;65

59

ECF # 13 at 16-18.

60

Id. at 19-20.

61

Id. at 20-22.

62

Tr. at 26.

63

Id. at 22 (citing record).

64

Id. at 22-23 (citing record).

65

Id. at 24 (citing record).
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December 19, 2011;66 and September 28, 2012;67 all of which notes either document that Dr.
Kuchynski made specific fibromyalgia trigger points findings in examining Wish, or offered
opinions as to limitations imposed by “claimant’s fibromyalgia impairment.”68
In that context, the ALJ noted that within a one-month period in 2011 Dr. Kuchynski
gave two medical opinions as to how Wish’s fibromyalgia effected her ability to function at
work.
First, in a medical opinion on November 3, 2011, Dr. Kuchynski stated that Wish’s
fibromyalgia functionally limited her to walking one block at a time; to sitting or standing/
walking for 1.25 hours at a time, and to less than two hours in total, apiece, in an eight-hour
work day; to requiring unscheduled breaks; to being limited to occasionally lifting 10
pounds, and to limited manipulative activities; to never being able to perform postural
activities or engage in even low-stress work; and to needing over 4 absences from work per
month.69
But, next month, on December 6, 2011, Dr. Kuchynski received a form from the state
Rehabilitation Services Commission asking Dr. Kuchynski, among other things, to “please
describe any limitations [Wish’s] impairment imposes on the ability to perform sustained

66

Id. (citing record).

67

Id. at 26 (citing record).

68

Id. at 24, 26.

69

Id. at 456-59.
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work activities.”70 In her answer, which was signed on December 19, 2011, Dr. Kuchynski
answered this question as follows: “No lifting, > 10 lbs., no bending, stooping, kneeling.”71
The ALJ began the analysis of these two opinions by initially commenting that in the
later December opinion Dr. Kuchynski gave only the few limitations stated above, “with no
further limitations in the claimant’s work-related functioning,”and noting further that in the
later opinion Dr. Kuchynski “did not restate those limitations she had provided in a medical
source statement of November 3, 2011....”72 He then proceeded to assign weight to the two
opinions, giving the more extensive limitation of the November opinion “little weight” and
the December opinion “some weight” for two reasons:
(1) those November limitations were “lacking in record and other credible support”
and Dr. Kuchynski did not later reiterate them one month later in December;73 and,
(2) the December limitations were “consistent with the substantial evidence of record
and consistent with a residual functional capacity for sedentary work, as determined
herein.”74
In that last regard, the ALJ accorded “great weight” to Dr. Kuchynski’s December
opinion, which the ALJ characterized as consistent with an RFC for sedentary work, and

70

Id. at 397.

71

Id.

72

Id. at 24.

73

Id.

74

Id. at 25.
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“lesser weight” to Dr. Kuchynski’s “other opinions” and to “the State agency opinions.”75
To that point, the ALJ found that the two non-examining State agency consultants opined that
Wish “retains the ability to perform at least light work.”76 Of significance here, one of the
two State agency consultants referenced by the ALJ, Dr. Gary Hinzman, M.D., gave his
opinion in February 2012 that Wish was capable of light work.77 Accordingly, Dr. Hinzman’s
opinion came after the two opinions from Dr. Kuchynski at issue here, but in giving this
opinion Dr. Hinzman, who did note Wish’s fibromyalgia in his report,78 also plainly noted
that his functional opinion did not consider any of Dr. Kuchynski’s functional opinions.79
The Commissioner argues that the ALJ gave a good reason for not according Dr.
Kuchynski’s earlier, more detailed November functional capacity opinion controlling weight
- namely, that the November opinion was inconsistent with “her own opinion one month”
later.80 The Commissioner further argues that, contrary to Wish’s assertion, Gayheart doesn’t
require the ALJ to “explicitly and separately” articulate on whether at the first level of
analysis the treating source opinion is entitled to controlling weight, before then proceeding
to the next level and determining what weight should be given to an opinion not assigned

75

Id. at 26.

76

Id.

77

Tr. at 501-08.

78

Id. at 501, 502, 506.

79

Id. at 507.

80

ECF # 21 at 19.
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controlling weight.81 Rather, the Commissioner contends, Gayheart mandates only the simple
rule that good reasons be given for whatever weight that is ultimately assigned.82
While the Commissioner is unfortunately correct that a significant number of postGayheart cases excuse the failure of ALJ’s to strictly adhere to the two-step analysis
mandated by that decision as essentially harmless error, it would be a fundamental
misreading of Gayheart to state that Gayheart does not require a distinct two-step analytical
approach. The case authority cited above makes that clear.
That said, however, even if this case is considered under the more lenient rubric that
requires no more than a statement of good reasons to support the assignment of less than
controlling weight to a treating source opinion, the decision here nonetheless still falls short
of that requirement in that the reason given by the Commissioner is not a “good reason.”
Specifically, while there are clearly differences in specificity between Dr. Kuchynski’s
detailed opinion in November and her less-detailed opinion a month later, the ALJ assumes,
without any reasoned explanation for such an assumption, that this difference is obviously
and solely due to a fundamentally changed and radically different view of Wish’s functional
capacity all within the span of one month, and all without any intervening medical event.
At best, such a significant unexplained assumption cannot be accepted as a good
reason sufficient to justify to a reviewing court, and by extension to the claimant, why the
highly detailed functional capacity opinion of a well-qualified treating source, trained in the
81

Id.

82

Id.
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discipline at issue and supported by extensive treatment notes, should essentially be ignored
in fashioning that claimant’s RFC. At worst, seizing on the mere difference in specificity in
the two opinions, without more, as grounds for marginalizing the functional capacity opinion
of a recognized specialist in the relevant field looks to be uncomfortably close to simply
saying “gotcha” as the reason why a treating source opinion was handled the way it was
here.83

Conclusion
In sum, I find that the reason given for not affording the detailed November opinion
controlling weight is not a “good reason” sufficient to support the assignment of significantly
lesser weight to that opinion. Thus, the decision of the Commissioner is hereby reversed and
the matter remanded for further proceedings consistent with this opinion. Further, the fact
that the additional issues raised by Wish were not addressed here should not be understood
as any judgment as to their merits.

IT IS SO ORDERED.

Dated: March 24, 2016

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

83

The strength of the ALJ’s reason is also weakened by the fact that the ALJ’s attempt
to bolster the validity of the later, less-detailed opinion by linking it with the opinions of the
State agency reviewing sources fails to mention that one of those reviewers offered his
opinion prior to the detailed November functional opinion and the other, as noted above,
gave the opinion after November but did so in admitted ignorance of that opinion from the
treating source. As such, the opinions of the State agency reviewers are not, of themselves
and on this record, entitled to outweigh the opinion of a treating source.
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