Risner v. Commissioner of Social Security

Filing 19

OPINION AND ORDER rejecting 15 Magistrate Judge's Report and Recommendation. The Court REMANDS this case for further consideration. Upon remand, the ALJ should (i) assess whether the evidence put forth by Plaintiff shows she has an impairment that meets or equals a Listing; (ii) explain his conclusion and (iii) review Plaintiffs treating source opinion and credit it with the weight such treating source opinions deserve. Signed by Judge S Arthur Spiegel on 3/14/2012. (km1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
LINDA RISNER,

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Plaintiff,
VS.
Commissioner of Social
Security,
Defendant.

No. 1:11-cv-036
OPINION AND ORDER

This matter is before the Court on the Magistrate Judge’s
January 25, 2012 Report and Recommendation (doc. 15), Plaintiff’s
Objections (doc. 17), and Defendant’s Response (doc. 18).

For the

reasons indicated herein, the Court REJECTS the Magistrate Judge’s
Report

and

Recommendation

and

REMANDS

this

case

for

further

consideration.
I. Background
Plaintiff applied for both Disability Insurance Benefits
(“DIB”) on October 26, 2006, alleging an onset date of disability
of September 4, 2006, based on a combination of physical and mental
impairments (doc. 15).

Her application was denied both initially

and on reconsideration, and she was given a hearing before an
Administrative Law Judge (“ALJ”), where she was represented by
counsel (Id.).

The ALJ denied Plaintiff’s application (Id.).

Plaintiff appealed to the Appeals Council, which denied review;
Plaintiff then sought review from this Court, and by general order

of reference the matter was referred to the Magistrate Judge (Id.).
The Magistrate Judge reviewed the record and in her
Report and Recommendation concluded that the ALJ’s decision should
be affirmed and the case closed (Id.).

Plaintiff timely objected

to the Magistrate Judge’s Report and Recommendation (doc. 17),
Defendant replied (doc. 18), and the matter is now ripe for the
Court’s consideration.
II. The Magistrate Judge’s Report and Recommendation
The

Magistrate

Judge’s

Report

and

Recommendation

thoroughly lays out the facts and procedure of this case, and the
Court will not reiterate them here except as needed for this
Opinion.

In brief, the ALJ determined that Plaintiff suffers from

coronary artery disease with residuals of bypass surgery, chronic
obstructive
anxiety

pulmonary

disorder

but

disease,
that

major

none

of

depressive
these

disorder

impairments,

and

nor

a

combination thereof, met or medically equaled one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1, meaning
that Plaintiff was not entitled to a presumption of disability.
The ALJ further found that Plaintiff was capable of performing a
limited range of light work with certain additional limitations and
that she could perform a significant number of jobs in the national
economy.
In her statement of errors, Plaintiff argued that the ALJ
erred when he failed to specify why she did not meet or equal one

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of the listed impairments (a “Listing”), when he failed to give
adequate weight to her treating physician’s assessment, and when he
improperly assessed Plaintiff’s credibility.
rejected each of these contentions.

The Magistrate Judge

Specifically, with respect to

Plaintiff’s contention that the ALJ erred when he failed to explain
why Plaintiff did not meet or equal a Listing, the Magistrate Judge
determined that, to the extent this argument was not waived by
Plaintiff, any error committed by the ALJ was harmless because,
even though the ALJ did not reference a particular Listing, the
Magistrate Judge found substantial evidence to support the ALJ’s
determination that Plaintiff did not meet or equal the Listing
requirements.
Regarding Plaintiff’s contention that the ALJ erred when
he failed to properly weigh Plaintiff’s treating source medical
opinion, the Magistrate Judge concluded that the ALJ’s rejection of
Plaintiff’s

treating

physician’s

recommendation

regarding

disability was supported by substantial evidence that it was
inconsistent with all other medical record of evidence.

In

addition, the Magistrate Judge found that Plaintiff’s treating
physician’s opinion “contains so little explanation that it comes
close to being ‘so patently deficient that the Commissioner could
not possibly credit it’” (Id., quoting Blakely v. Comm’r of Soc.
Sec., 581 F.3d 399, 409 (6th Cir. 2009)).

Consequently, the

Magistrate Judge found no merit to Plaintiff’s claim of error.

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Finally,

the

Magistrate

Judge

rejected

Plaintiff’s

contention that the ALJ erred when he found her testimony that she
could

not

sustain

full-time

employment

“less

than

credible,”

finding that the ALJ’s decision was supported by substantial
evidence (Id.).
III. Plaintiff’s Objections
As an initial matter, Plaintiff contends both that the
Magistrate Judge failed to address the arguments she made in her
statement of errors and, instead, simply “echoes the arguments made
in the ALJ’s decision and in Defendant’s brief” and that the report
includes some misapplications of case law (doc. 17).
With respect to her first assignment of error regarding
the ALJ’s failure to give an “explained conclusion” about his
decision that she failed to meet or equal a Listing, Plaintiff
argues that the Magistrate Judge incorrectly analyzed Reynolds v.
Comm’r of Soc. Sec., when she determined that any error in failing
to explain his rationale was harmless (Id., citing Reynolds v.
Comm’r of Soc. Sec., 424 Fed. Appx. 411 (6th Cir. April 1, 2011)).
Plaintiff argues that remand is required here, irrespective of the
fact that Plaintiff generally bears the burden of proof with
respect to whether an impairment meets or equals a Listing, because
the ALJ’s failure to discuss what evidence was presented and how it
did or did not support any specific Listing was legal error (Id.).
Plaintiff asserts that her second assignment of error has

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two parts, which, she contends, the Magistrate Judge failed to
recognize.

Specifically, she argues that (i) the ALJ erred by

failing

assign

to

sufficient

weight

to

Plaintiff’s

treating

physician’s opinion and (ii) the ALJ erred by failing to provide
sufficient limitations for Plaintiff’s psychological impairments
(Id.).

According to Plaintiff, the Magistrate Judge failed to

understand that this assignment of error was in two parts, and she
misunderstood the opinion provided by the treating physician
(Id.).
With respect to her third assignment of error, that the
ALJ erred in his assessment of Plaintiff’s credibility, Plaintiff
contends that the Magistrate Judge failed to address her arguments
and argues that her recommendation should be disregarded for that
reason
IV.

(Id.).

Discussion & Conclusion
The Court finds Plaintiff’s objections to the Magistrate

Judge’s Report and Recommendation persuasive.

Specifically, with

respect to Plaintiff’s first assignment of error, the Court finds
that the manner in which the ALJ dealt with Plaintiff’s application
at Step 3 was insufficient when he failed to explain how and why he
determined that Plaintiff failed to meet or equal a Listing.
The ALJ was required to engage in a five-step process in
assessing Plaintiff’s application.
whether

the

claimant

is

still

At Step 1, the question is

performing

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substantial

gainful

activity; at Step 2, the Commissioner determines if one or more of
the claimant's impairments is “severe”; at Step 3, the Commissioner
analyzes

whether

the

claimant's

impairments,

singly

or

in

combination, meet or equal a Listing; at Step 4, the Commissioner
determines whether or not the claimant can still perform her past
relevant work; and, finally, at Step 5, once it is established that
the claimant can no longer perform her past relevant work, the
burden shifts to the agency to determine whether significant
numbers of other jobs exist in the national economy which the
claimant can perform.

See Combs v. Comm’r of Soc. Sec., 459 F.3d

640, 643 (6th Cir. 2006).
The Magistrate Judge noted that both the Third and Fifth
Circuits require something more at Step 3 than a blanket statement
that the claimant does not meet or equal a Listing (doc. 15, citing
Audler v. Astrue, 501 F.3d 446, 448 (5 Cir. 2007); Burnett v.
Comm’r of Soc. Sec., 220 F.3d 112, 119-120 (3rd Cir. 2000)).
However, the Magistrate Judge contends that the Sixth Circuit
requires only minimal articulation at Step 3, citing Price v.
Heckler,

767

F.2d

281,

284

(6th

Cir.

1985).

Further,

the

Magistrate Judge cites Hurst v. Sec’y of Health & Human Servs., 753
F.2d 517, 519 (6th Cir. 1985) for the proposition that “[s]o long
as the ALJ’s decision as a whole articulates the basis for his or
her conclusion, it may be affirmed” (doc. 15).
With all due respect, the Court does not find these cases

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to be supportive of the propositions for which they are put forth.
First, the Court assumes that the Magistrate Judge cites Price for
the idea that “only minimal articulation” is required based on the
statement that “[a]lthough the ALJ’s findings of fact could have
been stated with more particularity, we are not persuaded that his
findings are legally insufficient.”

See Price, 767 F.2d at 284.

This, of course, is a far cry from an assertion that the case
stands for the proposition that only minimal articulation is
required at Step 3 of the disability analysis.

Notably, the court

did not rest either its analysis or its decision on a Step 3
question.

On the contrary, the question of disability clearly

hinged on whether the claimant was able to engage in any gainful
activity, not whether the ALJ had engaged in a thorough enough
discussion about whether or not she met or equaled the Listings.
Price dealt with the application for widow’s disability benefits,
and the court was careful to note, just following the statement
relied on by the Magistrate Judge, that the standard for widow’s
disability benefits was stricter than the standard used for wageearner disability benefits and stated, “Our conclusion as to the
adequacy of the findings and as to disability might well be
different if claimant were a wage earner....”
284.

Price, 767 F.2d at

The case before the Court deals with the application of

benefits of a wage earner, and the specific issue before the Court
is whether or not the ALJ’s failure to give any explanation

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regarding his decision that Plaintiff failed to meet or equal a
Listing.

Price is, simply put, entirely irrelevant.
Hurst is no more availing.

First, as noted above, the

Magistrate Judge cites Hurst for the proposition that “[s]o long as
the ALJ’s decision as a whole articulates the basis for his or her
conclusion, it may be affirmed.”

However, the Sixth Circuit in

Hurst reversed the district court and the ALJ and remanded the case
for an award of benefits, finding that the Commissioner’s decision
was not supported by substantial evidence, so the Court cannot
understand the citation to Hurst as used by the Magistrate Judge.
Indeed, the Sixth Circuit took the Commissioner to task for failing
to address and assess the credibility of the claimant’s treating
physician, noting that “failure to consider the record as a whole
undermines the [Commissioner’s] conclusion.”

Hurst at 519.

Interestingly, Hurst arguably supports Plaintiff’s position, as the
court positively quotes a Seventh Circuit case in its discussion
about the Commissioner’s failure to address and discuss evidence:
In the absence of an explicit and reasoned rejection of an
entire line of evidence, the remaining evidence is
“substantial” only when considered in isolation. It is more
than merely “helpful” for the ALJ to articulate reasons ...
for crediting or rejecting particular sources of evidence. It
is absolutely essential for meaningful appellate review.
Id., quoting Zblewski v. Schweiker, 732 F.2d 75, 78 (7th Cir.
1984). Here, the Court finds that it is more than merely “helpful”
for the ALJ to articulate his reasons for why Plaintiff failed to

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meet or equal a listing.

Indeed, the Court finds it “absolutely

essential for meaningful...review.”
Given that Price and Hurst, the two published Sixth
Circuit cases upon which the Magistrate Judge relied, are unhelpful
Reynolds,

the

unpublished Sixth Circuit case upon which Plaintiff relies.

In

to

the

Court’s

analysis,

the

Court

turns

to

Reynolds, the ALJ began by concluding that the claimant did not
have an impairment or combination of impairments that met “sections
1.00 or 12.00 of the Listings.”

424 Fed.Appx. at 415.

While the

ALJ then did engage in a discussion and analysis as to why he found
that the claimant’s mental impairment did not meet or equal a
Listing, he failed to do so with respect to the claimant’s physical
impairment and simply went on to the next step in the five-step
analysis.

Id.

The court found that the ALJ erred when he failed

to analyze the claimant’s physical condition in relation to the
Listings, noting that “he skipped an entire [required] step of the
necessary analysis.”

Id. at 416.

The court further determined

that the “ALJ’s error was not harmless, for the regulations
indicate that if a person is found to meet a Listed Impairment,
they are disabled within the meaning of the regulations and are
entitled to benefits....” Id. Without an “explained conclusion”as
to the Listings, the court found it “impossible to say that the
ALJ’s

decision

at

Step

Three

was

supported

by

substantial

evidence.” Id., quoting with approval the Third Circuit’s decision

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in Burnett v. Comm’r of Soc. Sec., 220 F.3d 112.
The Magistrate Judge dismissed Plaintiff’s reliance on
Reynolds, finding that any error committed by the ALJ was harmless
because Plaintiff failed to present evidence supporting a finding
of meeting or equaling a Listing (doc. 15).

However, the Court

finds that where, as here, the ALJ fails to complete a required
step in the five-step analysis, the proper course is to remand the
case for him to complete his task.

Requiring a reasoned and

explained conclusion is not merely a formalistic requirement.

On

the contrary, as noted by the Sixth Circuit, it is a necessary
component for this Court to ascertain whether the ALJ’s decision
was

supported

by

substantial

evidence.

It

is

not

for

the

Magistrate Judge to step into the shoes of the ALJ and complete his
job for him. The ALJ should, in the first analysis, assess whether
the evidence put forth shows that Plaintiff meets or equals a
Listing.

Should he determine she does not, the ALJ must explain

his decision with a discussion and analysis of the evidence.
Plaintiff’s objections to the Magistrate Judge’s Report
and Recommendation as to her first assignment of error are welltaken, and the Court finds that remand is proper. Having so found,
the Court need not engage in a thorough discussion of Plaintiff’s
other assignments of error, but in the interest of judicial
economy, the Court notes that it does find merit in Plaintiff’s
objections with respect to her second assignment of error.

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Upon

remand, therefore, the ALJ should (i) assess whether the evidence
put forth by Plaintiff shows she has an impairment that meets or
equals a Listing; (ii) explain his conclusion and (iii) review
Plaintiff’s treating source opinion and credit it with the weight
such treating source opinions deserve.
SO ORDERED.
Dated: March 14, 2012

s/S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge

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