Swooger v. Commissioner of Social Security

Filing 17

Memorandum Opinion and Order sustaining Plaintiff's objection to the report and recommendation. The Report and Recommendation (Doc. # 14 ) is rejected and the judgment of the Commissioner is REVERSED and this matter is REMANDED for further consideration. Judge John R. Adams on 3/21/17. (K,C)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

ERNEST R. SWOOGER,

Plaintiff,

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CASE NO.: 5:16CV178

JUDGE JOHN ADAMS

MEMORANDUM OF OPINION AND
ORDER

This matter comes before the Court on objections filed by Plaintiff Ernest Swooger to the
Report and Recommendation (“R&R”) of the Magistrate Judge. This action was referred to the
Magistrate Judge for an R&R on Swooger’s appeal of the Social Security Administration’s
decision to deny his claim for supplemental security income.
For the reasons stated below, the objection is SUSTAINED. The R&R is rejected. This
matter is hereby REMANDED to the Commissioner for further consideration of the weight to be
given to the treating physician.
I.

Standard of Review

District courts conduct de novo review of those portions of a magistrate judge’s R & R to
which specific objections are made. 28 U.S.C. § 636(b)(1). However, in social security cases,
judicial review of a decision by the Commissioner is limited to determining whether the decision

is supported by substantial evidence based upon the record as a whole. Longworth v. Comm’r of
Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005). The substantial evidence standard is met if “a
reasonable mind might accept the relevant evidence as adequate to support a conclusion.” Warner
v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004). If substantial evidence supports the
Commissioner’s decision, this Court will defer to that finding “even if there is substantial evidence
in the record that would have supported an opposite conclusion.” Id.
II.

Swooger’s Objections

In his first objection, Swooger contends that the ALJ erred when he discounted the weight
of the opinion of his treating physician. Swooger contends that the R&R erred when it found that
the ALJ had given good reasons for discounting the opinion. This Court agrees.
The Sixth Circuit has thoroughly detailed the law surrounding the weight to be given to the
opinion of a treating physician.
The source of the opinion therefore dictates the process by which the Commissioner
accords it weight. Treating-source opinions must be given “controlling weight” if
two conditions are met: (1) the opinion “is well-supported by medically acceptable
clinical and laboratory diagnostic techniques”; and (2) the opinion “is not
inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. §
404.1527(c)(2). If the Commissioner does not give a treating-source opinion
controlling weight, then the opinion is weighed based on the length, frequency,
nature, and extent of the treatment relationship, id., as well as the treating source’s
area of specialty and the degree to which the opinion is consistent with the record
as a whole and is supported by relevant evidence, id. § 404.1527(c)(2)-(6).
The Commissioner is required to provide “good reasons” for discounting the weight
given to a treating-source opinion. Id. § 404.1527(c)(2). These reasons must be
“supported by the evidence in the case record, and must be sufficiently specific to
make clear to any subsequent reviewers the weight the adjudicator gave to the
treating source’s medical opinion and the reasons for that weight.” Soc. Sec. Rul.
No. 96–2p, 1996 WL 374188, at *5 (Soc. Sec. Admin. July 2, 1996). This
procedural requirement “ensures that the ALJ applies the treating physician rule
and permits meaningful review of the ALJ’s application of the rule.” Wilson v.
Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).
Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013). An ALJ, however, is not

required to provide an “exhaustive factor-by-factor analysis” in order to decline to give the treating
source opinion controlling weight. Francis v. Comm’r of Soc. Sec., 414 Fed. Appx. 802, 804 (6th
Cir. 2011). So long as the decision “permits the claimant and a reviewing court a clear
understanding of the reasons for the weight given a treating physician’s opinion,” we look past
such procedural errors. Id. at 805 (citation omitted).
Herein, the ALJ stated as follows with respect to the opinion of the treating physician:
As for the opinion evidence, the claimant’s treating doctor, JR Ziegler, Jr. MD filled
out a “Multiple Impairment Questionnaire” dated February 18, 2013. He opined
the claimant could sit one hour and stand/walk two hours in an eight-hour workday,
and needs to get up and move around every hour. Dr. Ziegler indicated to “see
functional capacity evaluation” with regard to the claimant’s lifting and carrying
(9F). This statement is given some weight. The noted “functional capacity
evaluation” is not included in the medical evidence of record. However, many
limitations noted in the questionnaire were noted as “per the patient,” rather than
the doctor’s own opinion. Further, the evidence does not support such extreme
limitations, nor does it support that he would miss work two to three times a month.
Dr. Ziegler’s own examination findings are mild. The claimant has a normal gait
and full strength.
Doc. 9 at 23.
Contrary to the R&R and the position taken by the Commissioner, the ALJ’s opinion does
not provide the claimant and this Court a clear understanding of the reasons that Dr. Ziegler’s
opinion was discounted.
This Court will assume for the purposes of this opinion that the ALJ properly discounted
Dr. Ziegler’s opinions where they appear to rely exclusively on subjective reports from Swooger.
The record, however, indicates that only a small subset of the limitations expressed by Dr. Ziegler
were “per patient.” Specifically, Dr. Ziegler indicated “moderate” limitations on Swooger’s
“[g]rasping turning, twisting objects,” “[u]sing fingers/hands for fine manipulations,” and “[u]sing
arms for reaching (including overhead}.” Doc. 9 at 527-28. The ALJ’s next statement following
mention of these “per patient” limitations asserts that “the evidence does not support such extreme

limitations.”

As noted, however, Dr. Ziegler only found “moderate” limitations in these limited

areas, so it is unclear what “extreme” limitations are referenced by the ALJ.
Moreover, the ALJ’s statement that “the evidence does not support such extreme
limitations, nor does it support that he would miss work two to three times a month” contains no
explanation. The ALJ does not reference any of the clinical testing or any other objective medical
evidence that undermines the opinion given by Dr. Ziegler. In fact, it is wholly unclear which
portions of Dr. Ziegler’s opinion are even being referenced by the ALJ. Further, while the ALJ
need not give a factor by factor review, the decision herein does not reference any of the factors
contained in 20 C.F.R. § 404.1527(c)(2)-(6).

As such, this Court cannot say that the reasons

given are “sufficiently specific” to allow for meaningful review.
In reaching its decision herein, the Court is mindful of the daunting tasks that must be
performed by administrative law judges in the Social Security Administration. As such, the Court
reiterates that an ALJ need not use any “magic words” or risk reversal.

However, in the instant

matter, the ALJ’s decision contains insufficient specificity to allow for a meaningful review to
determine whether the record supports discounting the treating physician’s opinion. As such,
remand is necessary. 1
As this Court has determined that there was error in the application of the treating physician
rule and that there is no indication that the error was harmless, the Court need not review
Swooger’s contentions regarding error in the ALJ’s creation of his RFC.
III.

Conclusion

Swooger’s objection to the R&R’s resolution of his claimed error regarding the opinion of
his treating physician is SUSTAINED. The Magistrate Judge’s Report and Recommendation is

1 The R&R engages in a lengthy discussion of why the record supports discounting Dr. Ziegler’s opinion. Such a
review, however, was never conducted by the ALJ.

REJECTED. The judgment of the Commissioner is REVERSED and this matter is REMANDED
for further consideration.
IT IS SO ORDERED.

Dated: March 21, 2017

/s/ John R. Adams
JUDGE JOHN R. ADAMS
UNITED STATES DISTRICT JUDGE