Stanley v. Commissioner of Social Security

Filing 11

OPINION AND ORDER rejecting 9 Report and Recommendation. The Court REMANDS this case for further proceedings pursuant to Sentence Four of 42 U.S.C. Section 405(g), consistent with this decision and the Plaintiff's objections. Signed by Judge S Arthur Spiegel on 9/28/2011. (km1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
KIMBERLY BUNGER-STANLEY,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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NO. 1:10-CV-00507
OPINION AND ORDER

This matter is before the Court on the Magistrate Judge’s
May 23, 2011 Report and Recommendation (doc. 9), and Plaintiff’s
Objections (doc. 10).

For the reasons indicated herein, the Court

REVERSES the Magistrate Judge’s Report and Recommendation, and
REMANDS this matter for further proceedings consistent with this
decision.
I.

Background
Plaintiff, who has suffered a combination of physical and

mental impairments, including a herniated lumbar disc, anxiety and
depression, applied for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”) in May 2005, alleging a
disability onset date of June 1, 2004 (doc. 9).

Her applications

were denied initially and upon reconsideration (Id.).

After

Defendant denied her applications, she requested a hearing before
an administrative law judge (“ALJ”), who rejected her applications
in October, 2008 (Id.).

Plaintiff requested review with the

Social Security Appeals Council, which denied further review (Id.).
Plaintiff then appealed to this Court in July 2010 (Id.).
Plaintiff contends the ALJ erred by 1) failing to explain
in narrative form how he arrived at Plaintiff’s residual functional
capacity (“RFC”), which doctors he gave the most weight to, and why
he assigned the doctors the weight he did; 2) failing to give the
most weight to the opinion of the treating physician, Dr. Slattery,
and in fact giving her opinion no weight; 3) failing to give “good
reasons” for discounting Dr. Slattery’s finding of disability; 4)
rendering a credibility finding not supported by the record; and 5)
posing hypothetical questions to the vocational expert (“VE”) which
ommitted limitations supported by the testimony of Dr. Slattery and
Plaintiff, and the limitation of “occasional” contact with the
public, and by including among the unskilled jobs Plaintiff could
perform, jobs which are in fact skilled (Id.).
In her Report and Recommendation, the Magistrate Judge
reviewed the ALJ’s findings, the medical evidence in the record,
the

hearing

testimony,

and

Plaintiff’s

Statements

of

Error,

concluding that the ALJ’s decision that Plaintiff can perform a
range of sedentary work was supported by substantial evidence
(Id.).

Accordingly, the Magistrate Judge recommended that such

decision be affirmed (Id.).
10),

such

that

this

Plaintiff filed her objections (doc.

matter

is

consideration.

2

now

ripe

for

the

Court’s

II.

Discussion
The Court reviews this matter de novo because Defendant

filed

objections

Recommendation.

to

the

Magistrate

Fed. R. Civ. P. 72(b).

Judge’s

Report

and

Rule 72(b) states that

“[t]he district judge to whom the case is assigned shall make a de
novo determination upon the record, or after additional evidence,
of any portion of the magistrate judge’s disposition to which
specific written objection has been made in accordance with this
rule.”

Id.

The Rule further indicates that “[t]he district judge

may accept, reject, or modify the recommended decision, receive
further evidence, or recommit the matter to the magistrate judge
with instructions.”

Id.

Judicial review of the Commissioner’s decision, being
that of the ALJ in this case, is limited to determining whether
there is substantial evidence in the record to support the factual
findings.

42 U.S.C. § 405(g); Smith v. Sec’y of Health & Human

Servs., 893 F.2d 106, 108 (6th Cir. 1989).

“Substantial evidence

exists when a reasonable mind could accept the evidence as adequate
to support the challenged conclusion, even if that evidence could
support a decision the other way.”

Casey v. Sec’y of Health &

Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993).

The claimant

has the burden of proving by sufficient evidence that he is
entitled to disability benefits. 20 C.F.R. § 404.1512(a). To show
that claimant is so entitled, she must be under 65 years old, have

3

filed an application for benefits, and be under a disability.
U.S.C. § 423(a)(1).

42

The only issue in this case is whether

Plaintiff is disabled, as defined in Section 423(d)
A.

The Magistrate Judge’s Report and Recommendation (doc. 9)
In the Report and Recommendation the Magistrate Judge

thoroughly reviewed the medical evidence in the record, including
Plaintiff’s hearing testimony, the vocational expert’s (“VE”)
answers, and the decision of the ALJ (doc. 9).

The Magistrate

Judge then reviewed Plaintiff’s assignments of error (Id.).

The

Magistrate Judge found the first three assignments of error were
essentially the same, as all related to the weight accorded to the
opinion

of

Plaintiff’s

treating

Plaintiff is disabled (Id.).

physician,

Dr.

Slattery

that

The Magistrate Judge found the ALJ

gave good reasons for failing to give controlling weight to Dr.
Slattery’s opinion, he adequately explained the weight he gave to
other medical sources, and he reasonably determined the weight to
afford the opinions of those sources (Id.).

The Magistrate Judge

noted that though Dr. Slattery had been Plaintiff’s primary care
physician from November 20, 1998 to the time of the ALJ’s decision,
the ALJ found the assessments of Dr. Hughes, who treated Plaintiff
from October 29, 2004 to May 24, 2005, entitled to great weight, as
Dr. Hughes is a specialist in neurology (Id.).

The Magistrate

Judge noted that the ALJ found that Dr. Slattery did not elaborate
on her finding of positive straight leg raising in July 2004, nor

4

did

an

MRI

at

such

time

show

nerve

impingment

(Id.).

The

Magistrate Judge further noted that although Plaintiff continued to
regularly see Dr. Slattery, Dr. Slattery did not document any type
of back examination during the three years between March 4, 2005
and February 1, 2008 (Id.).

Moreover, although Dr. Slattery

diagnosed Plaintiff with fibromyalgia on June 12, 2006, the ALJ
noted no documentation of any tender or trigger point examinations
(Id.).

As such, the Magistrate Judge found the ALJ was reasonable

in finding Dr. Slattery’s conclusion of total disability not wellsupported by the clinical and objective findings (Id.).
As for Plaintiff’s fourth assignment of error that the
ALJ’s credibility determination is not supported by the record, the
Magistrate Judge noted that such determination is entitled to
deference

and

should

not

be

discarded

lightly

(Id.).

The

Magistrate Judge noted the ALJ credited Plaintiff’s allegations of
severe lower back pain, but found her partially but not fully
credible

(Id.).

Specifically,

the

ALJ

found

Plaintiff’s

allegations inconsistent with the “generally mild to moderate
laboratory and clinical signs,” that Plaintiff “has an unimpressive
work record and no inference can be made that she would work if she
could,” and that although Plaintiff alleged severe side effects
from medication, none were documented in the record (Id.).

In

fact, noted the Magistrate Judge, Dr. Slattery noted on December
12, 2005 that Plaintiff denied any side effects (Id.).

5

Plaintiff’s fifth assignment of error is premised on the
theory

that

the

ALJ

omitted

certain

limitations

hypothetical he posed to the VE (Id.).

from

the

The Magistrate Judge,

however, found that the hypothetical posed to the VE accurately
conveyed Plaintiff’s mental limiations (Id.). The Magistrate Judge
found that Plaintiff has failed to point to evidence showing her
limitations are more severe than those found by the ALJ (Id.). The
Magistrate

Judge

rejected

Plaintiff’s

proffer

of

“O*NET”

job

listings from the Department of Labor, finding that her failure to
proffer such information at the administrative level precludes the
Court from considering it for the first time as a part of its
review (Id.).

The Magistrate Judge further found such information

is not new, so that there is no basis for a remand based on such
information (Id.).
B.

Plaintiff’s Objections
Plaintiff objects to the Magistrate Judge’s Report and

Recommendation, contending that the weight accorded to the opinions
of

Dr.

Hughes

and

Dr.

Slattery

is

in

error

(doc.

10).

Specifically, Plaintiff signals that Dr. Hughes last saw her in May
2005, and thus ceased to be a treating physician after such time
(Id.).

Moreover, Plaintiff contends Dr. Hughes never expressed an

opinion about Plaintiff’s ability to work (Id.).

Plaintiff argues

that Dr. Slattery saw Plaintiff seven months after Dr. Hughes last
saw her, and stated that Plaintiff had restricted motion of the low

6

back, positive straight leg raising at twenty degrees, and other
findings (Id.).

In addition, on later exams in 2008, Dr. Slattery

found decreased sensation over the left leg (Id.).

Such findings,

contends Plaintiff are worse than Dr. Hughes found, and support Dr.
Slattery’s limitations (Id.). Plaintiff contends the ALJ failed to
note these latter findings, which is erroneous as a matter of law
(Id.).

Plaintiff

argues

the

ALJ

was

silent

and

offered

no

evaluation regarding her positive straight leg raising at twenty
degrees (Id.).

Plaintiff further argues the ALJ offered no basis

to doubt Dr. Slattery’s February and June 2008 findings regarding
decreased sensation in her left leg (Id.).

For all of these

reasons, Plaintiff contends the ALJ erred to give more weight to
the findings of Dr. Hughes and to use them to craft a sedentary
work RFC (Id.).
Plaintiff further argues that the ALJ failed to give the
requisite “good reasons,” in discounting a finding of disability by
treating

physician

Slattery

(Id.).

Plaintiff

notes

the

ALJ

remembered Dr. Hughes as a former medical advisor at hearings, but
such fact does not consitute a “good reason” (Id. citing Friend v.
Commissioner, 375 Fed. Appx. 543, 551-552 (6th Cir. 2010)).
Plaintiff reiterates her view that the ALJ did not comment on some
of Dr. Slattery’s findings, particularly the positive straight leg
raising at twenty degrees, so it is impossible to know how much
weight he gave to such findings (Id.).

7

In Plaintiff’s view, the

ALJ’s discussion of why he chose to give Dr. Slattery’s opinion no
weight is simply not supported by the record (Id.).
With regards to her credibility, Plaintiff contends that
findings in the record including restricted motion of the low back,
positive straight leg raising at twenty degrees, tenderness, and
decreased sensation in the left leg on exams, are all reliable
indicators of significant pain (Id. citing Jones v. Secretary, 945
F.2d 1365, 1370 (6th Cir. 1992)).

Plaintiff further contends her

work record was good until 1999 when she injured her back (Id.).
As such, she contends the ALJ erred in discounting her earnings
prior to her re-injury of her back in 2004 (Id.).

Finally,

Plaintiff contends the only other ground for discounting her
subjective complaints pertains to side-effects, and such ground is
small in relation to the other evidence supporting her testimony
(Id.).
As a final matter, Plaintiff argues there were vocational
errors

in

arriving

at

the

finding

of

nondisability

(Id.).

Specifically, Plaintiff contends the ALJ erred in leaving out the
walking around on jobs noted by Dr. Slattery and the number of days
Plaintiff would miss in trying to work 40 hours a week on a job
(Id.).

Second, Plaintiff contends the ALJ should consult the

updated job publication O*NET instead of the outdated Dictionary of
Occupational Titles (Id.).
For all of the above reasons, Plaintiff requests the

8

Court reject the Magistrate Judge’s Report and Recommendation,
reverse the denial decision, and grant benefits (Id.).

In the

alternative, Plaintiff requests a sentence four remand for further
proceedings (Id.).
C.

Analysis
Having reviewed and considered this matter de novo, the

Court finds Plaintiff’s position correct that the ALJ failed to
offer an adequate justification for rejecting the opinion of Dr.
Slattery, the treating physician.

It is clear to the Court that

the ALJ relied on findings of Dr. Hughes, who did not have a longterm treating relationship with Plaintiff, and who never rendered
an opinion regarding Plaintiff’s ability to work.

Moreover,

Plaintiff has proffered consistent evidence from Dr. Slattery,
post-dating that of Dr. Hughes, which supports a finding of
disability.

For these reasons a remand is approriate for further

proceedings.

On remand, the ALJ should use the updated O*NET jobs

listings.
III.

Cunningham, 360 Fed. Appx. 606, 615-616 (6th Cir. 2010).

Conclusion
The Court REJECTS the Magistrate Judge’s Report and

Recommendation

(doc.

9),

and

REMANDS

this

case

for

further

proceedings pursuant to Sentence Four of 42 U.S.C. § 405(g),
consistent with this decision and the Plaintiff’s Objections.
SO ORDERED.
Date: September 27, 2011 /s/ S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge
9