Jackson v. Commissioner of Social Security

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATIONS re 11 Report and Recommendation. The Court REVERSES the decision of the Commissioner to deny Plaintiff DIB benefits and REMANDS this matter under Sentence Four of 42 U.S.C. § 405(g). On remand the AL J is instructed to 1) properly assess and evaluate the opinion evidence; and 2) properly evaluate Plaintiffs mental impairments using the special technique outlined in 20 C.F.R. 404.1520a and provide a clear explanation for the conclusions reached therein. As no further matters remain pending for the Courts review, this case is CLOSED. Signed by Judge S Arthur Spiegel on 2/29/2012. (km1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
CHRISTOPHER JACKSON,
Plaintiff,
v.
MICHAEL ASTRUE,
Commissioner of Social
Security,
Defendant.

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NO. 1:11-CV-00091

OPINION AND ORDER

This matter is before the Court on the Magistrate Judge’s
Report and Recommendation (doc. 11), Defendant’s Objections (doc.
12), and Plaintiff’s Reply (doc. 13).

For the reasons indicated

herein, the Court ADOPTS and AFFIRMS the Magistrate Judge’s Report
and Recommendation and REMANDS this matter under Sentence Four of
42 U.S.C. § 405(g).
I.

Background
Plaintiff filed his application for disability insurance

benefits (“DIB”) alleging a disability onset date of June 17, 2003,
due to both physical and mental impairments (doc. 11).

His

application was denied initially and upon reconsideration (Id.).
Plaintiff then requested a hearing, which he received in December
2006, before the administrative law judge (“ALJ”), who subsequently
also denied benefits (Id.).

The Appeals Council remanded the case

for further development, and a second hearing was held, after which
the ALJ again denied benefits (Id.).

The ALJ found that Plaintiff had the following severe
impairments: “residual back and neck impairments due to injuries
sustained in a motor vehicle accident, also a pain disorder,
depression, anxiety, and alcohol abuse” (Id.).

However, the ALJ

concluded that none of such impairments alone or in combination met
or medically equaled an impairment in the Listings (Id.).

The ALJ

further determined that though Plaintiff could not perform his past
relevant work, there are sedentary jobs he could perform that exist
in significant numbers in the national economy (Id.).

Accordingly

the ALJ determined Plaintiff is not under disability and is not
entitled to DIB (Id.).
Plaintiff timely appealed the ALJ’s decision to this
Court. The Magistrate Judge found well-taken Plaintiff’s Statement
of Errors that the ALJ erred in improperly weighing the evaluations
of two of his treating physicians, Drs. Wander and Downey (doc.
11). The Magistrate Judge further found the ALJ failed to properly
evaluate the evidence in accordance with the regulations and that
the ALJ’s hypothetical question failed to take into account some of
Plaintiff’s moderate limitations (Id.).

As such,

the Magistrate

Judge recommended a remand of this matter for further proceedings
(Id.). Defendant filed its Objections (doc. 12), and Plaintiff his
Reply (doc. 13), such that this matter is ripe for the Court’s
consideration.

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II.

The Magistrate Judge’s Report and Recommendation
Plaintiff contended in his Statement of Errors that the

ALJ erred in improperly weighing the evaluations of two of his
treating

physicians,

Drs.

Wander

and

Downey

(doc.

7).

The

Magistrate Judge found such assignments of error well-taken (doc.
11). The Magistrate Judge found the ALJ purportedly relied instead
on the findings of Drs. Eggerman and Fridman, who each examined
Plaintiff on one occasion (Id.). The Magistrate Judge specifically
noted that “the claimant’s hobby of drawing for hours at a time
suggests he can indeed maintain concentration and attention to
detail” (Id.).

However, the Magistrate Judge noted that Plaintiff

testified at the hearing that he often sits in the woods with a pad
of paper and looks at the paper and simply loses his thought and
has nothing on the paper after several hours (Id.).
circumstances,

the

Magistrate

Judge

found

the

ALJ

Under these
improperly

inserted his non-medical opinion relating to limitations caused by
Plaintiff’s

depression

and

anxiety,

without

providing

“good

reasons” to reject the treating physicians’ opinions (Id.).
The Magistrate Judge further found the ALJ failed to
properly apply the “special technique” for evaluating the severity
of a mental impairment at steps two and three of the analysis, in
accordance with 20 C.F.R. § 404.1520a(a) (Id.).

Accordingly, the

Magistrate Judge recommended that the Court remand this matter for
further proceedings so the ALJ can properly evaluate the medical

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evidence of record in accordance with agency regulations and
controlling law (Id.). In addition, the Magistrate Judge found the
ALJ’s hypothetical question did not clearly identify an individual
with moderate deficiences in concentration, persistence or pace in
light

of

his

mental

impairments

consistent

with

Ealy

v.

Commissioner of Soc. Sec., 594 F.3d 504 (6th Cir. 2012) (Id.).

As

such, the Magistrate Judge instructed the ALJ to be mindful to
insure such limitations are included in the hypothetical question
to the vocational expert (Id.).
III.

Defendant’s Objections
Defendant

objects

to

the

remand

of

this

matter,

contending the ALJ reasonably evaluated the evidence relating to
Plaintiff’s mental impairments (doc. 12).

Defendant contends the

ALJ’s analysis was more robust than simply relying on Plaintiff’s
statement about his artistic efforts, and that the ALJ relied on
more than just the opinions of the consulting physicians (Id.).
Defendant contends the ALJ noted that pyschologist Dr. Farell
evaluated Plaintiff in 2006 and diagnosed him with depressive
disorder, documenting a GAF score of only 65, indicating only mild
symptoms or functional limitations (Id.). Defendant reiterates the
findings of Drs. Eggerman and Fridman, the consulting doctors, and
argues the ALJ was justified in relying on their conclusions (Id.).
In Defendant’s view treating physician Downey’s notes provide no
findings consistent with “her extreme opinions” (Id.). Similarly,

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Defendant contends treating physician Downey was merely a shortterm treating psychologist whose notes did not support his opinion
of Plaintiff’s poor functioning (Id.).

According to Defendant,

the ALJ properly accorded little weight to the “outlying” opinions
of the treating physicians, as three other opinions in the record
were that Plaintiff could function with certain restrictions (Id.).
As such, Defendant contends the ALJ’s analysis is supported by
substantial evidence and should be affirmed (Id.).
IV.

Plaintiff’s Reply
Plaintiff

replies

that

the

opinions

of

treating

physicians Drs. Wander and Eggerman were consistent with one
another and with other substantial evidence in the record (doc.
13).

Plaintiff contends Defendant makes a faulty attempt to show

the ALJ’s decision is supported by substantial evidence (Id.).
First, Plaintiff notes that though Defendant contends Dr. Farrel’s
report is consistent with the ALJ’s decision, such report noted
complaints of difficulties with focus and concentration/memory
(Id.).

Moreover, Plaintiff contends that Dr. Eggerman did not

specifically address concentration/attention while Defendant stated
it was not unreasonable for the ALJ to imply no deficit in
concentration/attention (Id.). Defendant further contended the ALJ
was

entitled

to

conclude

Dr.

Fridman

found

no

deficits

in

Plaintiff’s ability to maintain attention, concentration or pace
given the other conclusions in his report (Id.).

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Plaintiff argues

Defendant essentially asserts the ALJ may imply or is entitled to
find no deficits in concentration/attention from other findings in
the reports, even though the reports never mentioned or addressed
concentration/attention (Id.).
Plaintiff

further

asserts

because

the

non-treating

physicians made no explicit findings as to Plaintiff’s ability to
maintain attention/concentration, persistence or pace, while the
treating physicians found poor to no ability as to ability to
maintain concentration, it is clear that the ALJ substituted her
own non-medical opinion with regards to such limitations (Id.).
Finally,

Plaintiff

contends

the

ALJ’s

decision

is

internally

inconsistent while finding moderate limitations in one portion of
her decision, while affording no limitations for the same in the
RFC (Id.).
for

the

Accordingly, Plaintiff argues a remand is appropriate

ALJ

to

properly

assess

the

severity

of

Plaintiff’s

impairment in attention/concentration and the restrictions in the
RFC (Id.).
V.

Discussion
Having reviewed this matter de novo, the Court finds the

Magistrate

Judge’s

Report

reasoned, and correct.

and

Recommendation

thorough,

well-

Defendant’s objections are unavailing as

it is clear to the Court that the ALJ here relied more on nontreating source opinions than the treating physician opinions,
contrary to well-established law.

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The Court further finds correct

the Magistrate Judge’s observation that the hypothetical question
posed to the VE in this matter lacked inclusion of Plaintiff’s
mental limitations.

Under these circumstances a remand is

appropriate.
VI.

Conclusion
The

Parties

were

served

with

the

Report

and

Recommendation and were therefore afforded proper notice of the
Magistrate Judge’s Report and Recommendation required by 28 U.S.C.
§ 636(b)(1)(C), including that failure to file timely objections to
the Report and Recommendation would result in a waiver of further
appeal.

United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.

1981).

Neither Party filed any objections thereto within the

fourteen days provided for by Fed. R. Civ. P. 72(b) and 28 U.S.C.
§ 636(b)(1)(C).
Having reviewed this matter de novo, pursuant to Title 28
U.S.C. § 636, the Court finds the Magistrate Judge’s Report and
Recommendation well taken in all respects.

Accordingly, the Court

ADOPTS and AFFIRMS such Report and Recommendation (doc. 11),
REVERSES the decision of the Commissioner to deny Plaintiff DIB
benefits and REMANDS this matter under Sentence Four of 42 U.S.C.
§ 405(g).
and

On remand the ALJ is instructed to 1) properly assess

evaluate

the

opinion

evidence;

and

2)

properly

evaluate

Plaintiff’s mental impairments using the special technique outlined
in 20 C.F.R. 404.1520a and provide a clear explanation for the

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conclusions reached therein.

As no further matters remain pending

for the Court’s review, this case is CLOSED.

SO ORDERED.
Date: February 29, 2012

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

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