Davis v. Commissioner of Social Security Administration
Filing
27
Memorandum Opinion and Order that substantial evidence supports the finding of the Commissioner that Davis had no disability. Accordingly, the decision of the Commissioner denying Davis's disability insurance benefits and supplemental security income is affirmed. (Related docs # 1 , 24 ). Signed by Magistrate Judge William H. Baughman, Jr on 8/27/18. (H,D)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
VERONICA DAVIS,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
)
)
)
)
)
)
)
)
)
)
CASE NO. 5:17 CV 1470
MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.
MEMORANDUM OPINION &
ORDER
Introduction
Before me1 is an action by Veronica K. Davis 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 procedural6 orders, the parties have briefed their positions7 and filed
1
ECF No. 24. The parties have consented to my exercise of jurisdiction.
ECF No. 1.
3
ECF No. 8.
4
ECF No. 9.
5
ECF No. 5.
6
ECF No. 10.
7
ECF No. 23 (Commissioner’s brief); ECF No. 18, Attachment 1 (Davis’s brief).
2
supplemental charts8 and the fact sheet.9 They have participated in a telephonic oral
argument.10
For the reasons set forth below, the decision of the Commissioner will be affirmed
as supported by substantial evidence.
Facts
A.
Background facts and decision of the Administrative Law Judge (“ALJ”)
Davis, who was 28 years old at the time of the administrative hearing,11 has an
eleventh grade education.12 She lives with her fiancé and three minor children.13 Her past
relevant employment history includes work as a kitchen helper and hand packager.14
The ALJ, whose decision became the final decision of the Commissioner, found that
Davis had the following severe impairments: cyclical vomiting syndrome (“CVS”);
irritable bowel syndrome (“IBS”); post-traumatic stress disorder; panic disorder; major
depressive disorder; and anxiety disorder.15
After concluding that the relevant impairments did not meet or equal a listing, the
ALJ found Davis capable of light work with additional limitations.16 The ALJ decided that
8
ECF No. 23, Attachment 1 (Commissioner’s charts); ECF No. 18, Attachment 2 (Davis’s
charts).
9
ECF No. 17 (Davis’s fact sheet).
10
ECF No. 26.
11
ECF No. 9, Transcript (“Tr.”) at 108, 114.
12
Id. at 114.
13
Id.
14
Id. at 20.
15
Id. at 13.
16
Id. at 15.
2
this residual functional capacity (“RFC”) precluded Davis from performing her past
relevant work.17
Based testimony by the vocational expert at the hearing, the ALJ determined that a
significant number of jobs existed nationally that Davis could perform.18 The ALJ,
therefore, found Davis not under a disability.19
B.
Issues on judicial review
Davis 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,
Davis presents the following issues for judicial review:
$
Whether the ALJ failed to properly evaluate and weigh the opinions
of Davis’s treating gastroenterologist, an examining consultant, and
an examining occupational therapist who all agreed that Davis lacked
the capacity to work on a sustained, full-time basis.
$
Whether the ALJ’s RFC assessment fails to account for the symptoms
associated with Davis’s severe CVS and IBS.
$
Whether evidence from Davis’s treating gastroenterologist postdating the ALJ’s decision warrants remand.20
For the reasons that follow, I will conclude that the ALJ=s finding of no disability is
supported by substantial evidence and, therefore, must be affirmed.
17
Id. at 20.
Id. at 21.
19
Id. at 22.
20
ECF No. 18, Attachment 1 at 1.
18
3
Analysis
A.
Applicable law
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. 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 conclusion. This is so because there is a “zone of choice”
within which the Commissioner can act, without the fear of court
interference.21
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.22 The court may not disturb the Commissioner’s
findings, even if the preponderance of the evidence favors the claimant.23
21
Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (citations omitted).
22 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).
23 Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
4
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 Sixth Circuit in Gayheart v. Commissioner of Social Security24 emphasized
that the regulations require two distinct analyses in evaluating the opinions of treating
sources.25 The Gayheart decision directed that the ALJ must first determine if the
opinion must receive controlling weight as well-supported by clinical and laboratory
techniques and as not inconsistent with other evidence in the administrative record.26 If
the ALJ decides not to give the opinion controlling weight, then a rebuttable presumption
exists that the treating physician’s opinion should receive great deference.27 This
presumption may be rebutted by application of the factors set forth in 20 C.F.R. §§
404.1527(c)(2)(i)-(ii), (3)-(6).28 The Court cautioned against collapsing these two
distinct analyses into one.29
Despite the seemingly clear mandate of Gayheart, the Sixth Circuit in later
decisions has adopted an approach that permits these two separate analyses to be merged
into one so long as the ALJ states “good reasons” for the weight assigned applying the
24
Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365 (6th Cir. 2013).
Id. at 375-76.
26
Id. at 376.
27
Rogers, 486 F.3d at 242.
28
Gayheart, 710 F.3d at 376.
29
Id.
5
25
regulatory factors governing each analytical step.30 Also, despite the reality that a unified
statement of these “good reasons” greatly enhances meaningful judicial review,31 some
authority exists for looking outside the unified statement for analysis of the weight
assigned to a treating source’s opinion.32 Going beyond the reasons stated in the unified
statement takes the Court into the hazy gray area of de novo review and post hoc
rationalization. A reviewing district court must avoid both. An ALJ cannot avoid
reversal by merely citing exhibits in the record that might support his findings without
discussing the content of those exhibits and explaining how that content provides
support.33 Nor can counsel for the Commissioner save a decision from reversal by citing
to evidence in the record not cited and adequately discussed by the ALJ.34 It is for the
ALJ, not the court or Commissioner’s counsel, to “build a logical bridge from the
evidence to the conclusion.”35 “Put simply . . . there must be some effort . . . to explain
why it is the treating physician’s conclusion that gets the short end of the stick.”36
30
E.g., Biestek v. Comm. of Soc. Sec., 880 F.3d 778, 785 (6th Cir. 2017).
Smith v. Comm. of Soc. Sec., No. 5:13cv870, 2104WL1944247, **7-8 (N.D. Ohio May
14, 2014).
32
See, e.g., Heston v. Comm’r of Soc. Sec., 245 F.3d 528 (6th Cir. 2001).
33
Smith, 2104WL1944247, at *7.
34
Sharp v. Comm’r of Soc. Sec., No. 1:14-cv-523, 2015 WL 3545251 (S.D. Ohio June 4,
2015) (citing Keeton v. Comm’r of Soc. Sec., 583 F. App’x 515, 524 (6th Cir. 2014)),
report and recommendation adopted by 2015 WL 3952331 (S.D. Ohio June 29, 2015).
35
Hale v. Colvin, No. 3:13cv182, 2014 WL 868124, *8 (S.D. Ohio March 5, 2014).
36
Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 552 (6th Cir. 2010).
6
31
3.
Sentence six remand
Sentence six of 42 U.S.C. ' 405(g) permits a court to order a case remanded for
consideration of additional evidence under certain circumstances. The Sixth Circuit has
interpreted this statute as creating the following requirements for a remand to consider new
evidence: that the evidence be “new”B that is, “not in existence or available to the claimant
at the time of the administrative proceeding”; that the evidence be “material,” which
requires showing a “reasonable probability” that the Commissioner would have reached a
different disposition of the claim if presented with the new evidence; and that “good cause”
exists for not producing the evidence in a prior proceeding, which requires showing “a
reasonable justification for the failure to acquire and present the evidence of inclusion in
the hearing before the ALJ.”37
The Sixth Circuit “has taken a harder line on the good cause test.”38 “This requires
more than just showing evidence did not exist at the time of the ALJ’s decision, but rather
a Plaintiff must ‘give a valid reason for his failure to obtain evidence prior to the
hearing.’”39
37
Foster, 279 F.3d at 357 (citations and internal quotations omitted).
Oliver v. Sec’y of Heath & Human Servs., 804 F.2 964, 966 (6th Cir. 1986) (finding
failure to satisfy good cause requirement where additional medical records were prepared
after final decision and could not have been presented at hearing).
39
Issac v. Comm’r of Soc. Sec., No. 1:16 CV 1345, 2017 WL 3705902, at *10 (N.D. Ohio
Aug. 28, 2017) (citing and quoting Oliver, 804 F.2d at 966)).
7
38
B.
Application of applicable law
1.
Source opinions
This argument is substantially a challenge to the ALJ’s RFC finding. Specifically,
as to the severe impairments of CVS and IBS, the ALJ did not include in the RFC any
limitation for frequent and unscheduled bathroom breaks or for absences from work for
nausea, vomiting, and diarrhea.
The errors are couched in terms of the weight assigned to and the evaluation of the
opinions of three medical sources: (1) Dr. Nicholas Golden, M.D., Davis’s treating
gastroenterologist; (2) Dr. Kashif Anwar, M.D., a consulting examiner; and Michelle
Kunkle, OT, a consulting examiner. While only Kunkle provided a traditional RFC
opinion,40 each make some observations regarding Davis’s limitations:
Golden: IBS necessitates multiple unexpected trips to the bathroom.41
Anwar: Davis should avoid five day a week work and is best suited for flexible
scheduling because of CVS episodes.42
Kunkle: Because of IBS and CVS, Davis would need frequent unscheduled
breaks in a work day and would be absent from work more than four times per
month.43
It appears that despite extensive medical testing, no etiology for the IBS or CVS
40
Tr. at 1060-62.
Id. at 1064.
42
Id. at 790.
43
Id. at 1061.
41
8
has been found. This includes tests done or ordered by treating sources. The CVS seems
to have resolved in 2015.44
During
oral
argument,
Davis’s
counsel
emphasized
Davis’s
frequent
hospitalizations for the effects of her IBS and CVS. In this regard, it should be noted that
the objective medical testing done in connection with these hospitalizations produced no
abnormal findings,45 and the ALJ acknowledged Davis’s multiple hospitalizations.46
The ALJ adequately evaluated and weighed these three medical opinions, and his
articulation is supported by the record.47 First, the ALJ provided “good reasons” for
discounting Dr. Golden’s February 2015 opinion. He specifically noted the following in a
unified statement:
The severity of Davis’s symptoms relating to her IBS and CVS were
unsupported by objective medical testing.
The etiology of Davis’s symptoms remained undetermined despite extensive
testing.
Dr. Golden’s opinion failed to provide any functional limitations.48
Elsewhere in his opinion, the ALJ also emphasized that Davis’s vomiting was now under
control as a result of medication and the objective medical testing reflected normal
findings.49
44
Id. at 1356, 126.
Id. at 16-17.
46
Id.
47
Id. at 19-20.
48
Id. at 20.
49
Id. at 16-17.
45
9
The ALJ likewise considered Dr. Anwar’s opinion and discounted it on the ground
that Dr. Anwar’s findings were not supported by the objective findings of his
examination.50
Regarding Ms. Kunkle’s opinion, the ALJ appropriately acknowledged that she was
not an “acceptable medical source.” The ALJ discounted the opinion because he found no
objective support for the restrictions Ms. Kunkle opined, that it appeared she based her
limitations on Davis’s subjective complaints, and that her opinion was inconsistent with
Davis’s activities of daily living.51
Under the substantial evidence standard, the ALJ’s RFC findings must be affirmed.
2.
General RFC challenge
Davis generally challenges the RFC for not incorporating greater restrictions to
address her IBS and CVS. This is merely a restatement of the first issue. As noted above,
substantial evidence supports the RFC.
3.
Sentence six remand
Finally, Davis argues for a remand to consider a post-decision opinion from Dr.
Golden dated September 15, 2016, five months after the date of decision. This opinion
states that Davis’s IBS is severe and refractory52 and that Davis is unable to be gainfully
50
Id. at 19.
Id. at 19-20.
52
“Refractory” is defined as “resistant to treatment.” DORLAND’S ILLUSTRATED MEDICAL
DICTIONARY 1606 (30th ed. 2003).
10
51
employed.53 Davis presented this evidence to the Appeals Council, which refused to
remand. Although arguably new, Dr. Golden’s September 2016 opinion is not “material”
as it adds nothing. It is repetitive of Dr. Golden’s February 25, 2015 report, which the ALJ
properly considered and weighed. Furthermore, Davis has failed to show good cause for
not presenting this evidence to the ALJ. Therefore, remand under sentence six is not
appropriate.
Conclusion
Substantial evidence supports the finding of the Commissioner that Davis had no
disability. Accordingly, the decision of the Commissioner denying Davis’s disability
insurance benefits and supplemental security income is affirmed.
IT IS SO ORDERED.
Dated: August 27, 2018
53
s/ William H. Baughman, Jr.
United States Magistrate Judge
Tr. at 96.
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?