Foxx v. Commissioner of Social Security

Filing 20

ORDER ADOPTING 17 Report and Recommendation reversing and remanding for further proceedings. Signed by Judge Michael R. Barrett on 8/1/12. (ba1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
THOMAS FOXX,
Plaintiff,

Case No. 1:11-cv-209

v.

Judge Michael R. Barrett

COMMISSIONER OF SOCIAL SECURITY
Defendant.
ORDER
This action is a Social Security appeal brought under 42 U.S.C. § 405(g). Before
the Court is the Magistrate Judge’s April 18, 2012 Report and Recommendation (“R&R”)
(Doc. 17). The Magistrate Judge recommends that the Commissioner’s decision to
deny Plaintiff’s applications for disability insurance benefits (“DIB”) and supplemental
insurance income (“SSI”) be reversed and remanded. (Doc. 17, 32.)
The parties were given proper notice under Rule 72(b) of the Federal Rules of
Civil Procedure, including notice that the parties would waive further appeal if they failed
to file objections to the R&R in a timely manner. (Doc. 17, 33); see United States v.
Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).

The Commissioner filed timely

Objections to the R&R (Doc. 18), and Plaintiff filed a Response to those Objections
(Doc. 19).
For the reasons stated below, the Court overrules the Commissioner’s
Objections, and the R&R is ADOPTED. Accordingly, the Commissioner’s decision is
REVERSED and REMANDED pursuant to Sentence Four of 42 U.S.C. § 405(g).

I. Background
On November 2, 2005, Plaintiff filed applications for DIB and SSI alleging a
disability onset date of May 1, 2003, due to chronic neuropathy, reflex syndrome
disorder, anxiety, depression, and sleep disorder. (Tr. 18; Doc. 17, 1.) After Plaintiff’s
applications were denied initially and upon reconsideration, he appeared for an
evidentiary hearing before an Administrative Law Judge (“ALJ”) on February 24, 2009.
(Tr. 18.) The hearing was continued in order to further develop the medical evidence,
and Plaintiff appeared for a supplemental hearing on August 11, 2009. (Tr. 18.) On
September 1, 2009, the ALJ denied Plaintiff’s applications in a written decision. (Tr. 1832.) The ALJ concluded that Plaintiff did not have a disability within the meaning of the
Social Security Act. (Tr. 19.) The Appeals Council denied Plaintiff’s request for review
and, therefore, the ALJ’s decision stands as the Commissioner’s final decision. (Doc. 2
¶¶ 2, 3; Doc. 17, 1.)
The R&R accurately describes the medical evidence provided and the remainder
of the procedural history of this case. (See Doc. 17, 1-13.) There is no need to repeat
them here.

Accordingly, the R&R’s procedural history and statement of medical

evidence are adopted in full.
The Magistrate Judge recommends that this Court reverse and remand this
matter for further proceedings. (Doc. 17, 32.) The Magistrate Judge found that the ALJ
erred in formulating Plaintiff’s residual function capacity (“RFC”) by giving considerable
weight to the opinion of Dr. Brahms, a nonexamining medical expert, who testified at the
hearing.

(Doc. 17, 17.)

The Magistrate Judge explained that Dr. Brahms did not

explain why he disagreed with the opinion of Dr. Magnusen, a consultative examiner.
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The Magistrate Judge also explained that Dr. Brahms did not explain how his opinion
was grounded in the objective evidence on record. (Doc. 17, 23-25.) The Magistrate
Judge recommends that on remand, the ALJ should properly evaluate the weight
afforded to Dr. Magnusen and Dr. Brahms as set forth in the R&R, and formulate
Plaintiff’s RFC assessment accordingly. (Doc. 17, 31.) The Magistrate Judge also
recommends that if necessary, the ALJ should elicit additional medical testimony and
vocational evidence. (Id.)
The Commissioner objects to the R&R based on the following: (1) Dr. Brahms did
explain why his opinion differed from Dr. Magnusen’s opinion, and (2) even if Brahms’
explanation was not detailed enough, he was not asked to give an explanation during
the proceeding, nor does he have a duty to explain why he disagrees with another
doctor’s opinion. (Doc. 18, 2.)
II.

Analysis
A. Standards of Review
When

objections

are

received

to

a

magistrate

judge’s

report

and

recommendation on a dispositive matter, the district judge “must determine de novo any
part of the magistrate judge’s disposition that has been properly objected to.” Fed. R.
Civ. P. 72(b)(3).

After review, the district judge “may accept, reject, or modify the

recommended disposition; receive further evidence; or return the matter to the
magistrate judge with instructions.”

Id.; see also 28 U.S.C. § 636(b)(1).

General

objections are insufficient to preserve issues for review; “[a] general objection to the
entirety of the magistrate’s report has the same effects as would a failure to object.”
Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).
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A court’s review of the Social Security Commissioner’s decision is limited to
determining whether the findings are supported by substantial evidence. 42 U.S.C. §
405(g).

“Substantial evidence is more than a scintilla of evidence but less than a

preponderance; it is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” McGlothin v. Comm’r of Soc. Sec., 299 F. App’x
516, 521 (6th Cir. 2008) (internal quotations omitted).

The substantial evidence

standard presupposes that “there is a zone of choice within which the [ALJ] may
proceed without interference from the courts.” Felisky v. Bowen, 35 F.3d 1027, 1035
(6th Cir. 1994) (internal citations omitted) (quoting Mullen v. Bowen, 800 F.2d 535, 545
(6th Cir. 1986)). This “zone of choice” includes resolving conflicts in the evidence and
deciding questions of credibility. Gaffney v. Bowen, 825 F.2d 98, 100 (6th Cir. 1987).
Consequently, this Court should defer heavily to such findings. See Barker v. Shalala,
40 F.3d 789, 795 (6th Cir. 1994).
B. Standards for Weighing Medical Opinions
Generally, more weight is afforded to the opinion of an examining source than a
non-examining source. 20 C.F.R. §§ 404.1527(c)(1), 416.927(c)(1). The weight to be
afforded to a medical opinion is based on the extent to which the opinion is supported
by evidence, consistent with the record on the whole, offered by a specialist, and
supported or contradicted by other factors brought to the ALJ’s attention. 20 C.F.R. §§
404.1527(c)(3)-(6), 416.927(c)(3)-(6). As to supportability, the regulations provide:
The more a medical source presents relevant evidence to support an
opinion, particularly medical signs and laboratory findings, the more
weight we will give that opinion. The better an explanation a source
provides for an opinion, the more weight we will give that opinion.
Furthermore, because nonexamining sources have no examining or
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treating relationship with you, the weight we will give their opinions will
depend on the degree to which they provide supporting explanations for
their opinions. We will evaluate the degree to which these opinions
consider all of the pertinent evidence in your claim, including opinions of
treating and other examining sources.
20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3).
Accordingly, the Sixth Circuit has explained that “[a] non-examining physician's
opinion may be accepted over that of an examining physician when the non-examining
physician clearly states the reasons that his opinions differ from those of the examining
physicians.” Lyons v. Social Security Administration, 19 F.App’x 294, 302 (6th Cir.
2001) (citing Barker, 40 F. 3d at 794) (finding that substantial evidence supported the
ALJ’s RFC determination, which was based on the opinion of a nonexamining medical
expert who explained that he discounted a treating physician’s test results because the
results were miscalculated and the physician did not employ appropriate testing
techniques); see also Ealy v. Comm'r of Soc. Sec., 594 F.3d 504, 514 (6th Cir. 2010)
(affirming ALJ's decision to afford more weight to opinion of nonexamining source where
examining doctor’s “conclusion was not fully supported by her own materials or the
record as a whole.”).
C. Medical opinions bearing on Plaintiff’s RFC
Dr. Magnusen’s opinion was based upon a physical exam, as well as testing
results in the record, including a 2007 MRI, a 2006 EMG, and a CT scan. (Tr. 641.) Dr.
Magnusen concluded that Plaintiff could stand and/or walk for fifteen minutes at a time
for a total of one to two hours in an eight-hour workday and sit for up to thirty minutes at
a time for a total of six hours in an eight-hour work day. (Tr. 644.) Dr. Magnusen also
opined that Plaintiff should avoid lifting below his knees, lift no more than ten pounds
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and carry no more than twenty pounds.

(Id.)

Dr. Magnusen found that Plaintiff’s

capacity for fingering and feeling were impaired on the right hand, but that Plaintiff could
use his right hand to engage in handling activities.

(Id.)

Finally, Dr. Magnusen

recommended that while Plaintiff could climb stairs or a ramp on an occasional basis
and could stoop, kneel and crawl on an occasional basis, he should be restricted from
climbing ladders and scaffolding and working near moving parts because of his use of
narcotics and other sedating medications. (Tr. 644-45.)
At the hearing before the ALJ, Dr. Brahms opined that Plaintiff could perform light
work with the following limitations: repetitive lifting below waist level on an occasional
basis only, and avoidance of stairs, ramps, ropes, scaffolds, hazardous machinery and
heights. (Tr. 768) 1 Dr. Brahms also explained “Insofar as his right hand is concerned to
the, avoid the need for fine manipulations, it does not limit him as far as gross activities
of the hands are concerned, it does not limit him as far as gross activities of the hands
are concerned. They don’t need the fine manipulation.” (Tr. 768.) ` The ALJ then
asked: “Doctor, with that fine manipulation with that right hand you would limit that to
some extent?” (Tr. 768.) Dr. Brahms responded, “Yes, I think that it’s limited, he should
have limited use, however the ulnar nerve effective point is his fingers and obviously
you develop some flexion to quantity as well because of that problem with his ulnar
nerve, However the thumb and the first finger are generally not involved with the ulnar
nerve.” (Tr. 768-69.)

1

By definition, light work ordinarily requires the capacity to lift ten pounds frequently, to lift
twenty pounds occasionally, and to engage in a good deal of sitting, standing, or walking. (Tr.
26.)
6

Plaintiff’s attorney then questioned Dr. Brahms about Dr. Magnusen’s
recommendations regarding lifting and fingering, and time spent standing, walking, and
sitting. (Tr. 774-75.) Dr. Brahms stated that he disagreed with each of these limitations:
Q:
Okay. [Dr. Magnusen] has indicated that it’s his opinion that the
claimant could tolerate standing and walking up to 15 minutes at a time
and only one to two hours in a standard eight-hour workday. Would you
agree with that?
A;

Would not.

Q:
Okay. He has indicated that he believes that claimant could
tolerate sitting only 30 minutes at a time and up to eight, up to six hours of
an eight-hour workday, would you agree with that?
A:

Would not.

Q:
Okay. He has indicated that he feels the claimant could lift only
occasionally up to 10 pounds and 11 to 20 pounds or more never. Would
you agree with that?
A:

Obviously I don’t.

Q:
Okay. He has also indicated the claimant is limited to fingering and
feeling to occasional, would you agree with that?
A:

No, absolutely not.

(Tr. 774-75.)
D. ALJ’s determination of Plaintiff’s Functional Capacity
The ALJ explained that he gave considerable weight to the opinion of Dr. Brahms
based on Dr. Brahms’ expertise in orthopedic medicine and because Dr. Brahms’
assessment was “well-supported by a detailed analysis of the medical history and
pertinent medical findings.” (Tr. 27.) The ALJ also found that Dr. Brahms’ opinion was
“more consistent” with Plaintiff’s “functioning in daily activities.” (Id.) The ALJ adopted

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an RFC that “essentially follows the well-supported medical record and the
recommendations of Dr. Brahms.” (Id.)2
The Court notes that while Dr. Brahms flatly rejected Dr. Magnusen’s opinion as
to Plaintiff’s limitations, Dr. Brahms does not dispute the objective medical findings or
diagnoses of Dr. Magnusen.

For instance, Dr. Brahms confirmed the evidence of

neuropathy of the right ulnar nerve (Tr. 767) and bilateral L4-5 stenosis and multi-level
degenerative disk disease (Tr. 769). Dr. Brahms also noted that Plaintiff’s examination
by Dr. Magnusen showed limitation of motion and evidence of pain. (Tr. 771.) As to the
evidence of pain, Dr. Brahms acknowledged that (1) spasms would be consistent with
someone reporting rather significant pain; (2) it was not unreasonable to expect Plaintiff
to have spasms at various times; and (3) he would expect someone in spasm to have a
level of pain that would make it difficult to function until the spasm releases. (Tr. 770).
Moreover, when asked by Plaintiff’s counsel, “[i]f you had a patient who reported the
level of symptoms that are reported in this case and noted in the records, for which he’s
had injections, would you question your patient’s report of those symptoms as being
truly perceived,” Dr. Brahms replied, “[n]o, absolutely not.” (Tr. 774.)

2

As part of the RFC, the ALJ determined that Plaintiff was capable of a modified light work
range, which included 1) alternation of sitting and standing at thirty-minute intervals; 2) standing
and/or walking no more than three hours per eight-hour workday; 3) no work on uneven
surfaces; 4) occasional stooping, kneeling, crouching, and balancing and no crawling; 5)
occasional climbing of stairs and no climbing of ropes; 6) occasional fingering (fine
manipulation); 7) no exposure to hazards; 8) no exposure to vibrations; and 9) no requirement
to maintain concentration on a single task for longer than fifteen minutes at a time. (Tr. 26.)
8

The ALJ noted that the two doctor’s findings were consistent and even used that
consistency to support the weight given to Dr. Brahms’ opinion.

In discussing Dr.

Magnusen’s report, the ALJ explained:
As acknowledged by the Medical Expert’s testimony, the medical evidence
is sufficient to establish severe physical impairments affecting the
claimant’s lower back and right upper extremity. The claimant’s chronic
lower back pain (with underlying medical evidence of degenerative disc
disease and spinal stenosis) and chronic right ulnar neuropathy would be
expected to significantly impact on his general strength, flexibility, and
effective use of his right upper extremity.
(Tr. 23.) In making the RFC determination, the ALJ explained that Dr. Brahms’ opinion
was:
entitled to considerable weight in view of his expertise in orthopedic
medicine and inasmuch as his assessment is well-supported by a detailed
analysis of the medical history and pertinent medical findings. His opinion
is compatible with evidence of the claimant’s spinal stenosis and some
sensory loss in the thigh but with the claimant retaining fairly good
strength in the legs. Notably, Dr. Magnusen did not see any evidence of
L5 radiculopathy and also stated that the claimant’s use of a cane was
non-obligatory.
(Tr. 27.)
The Court finds that this case presents a close call as to whether the ALJ
properly relied on Dr. Brahms’ opinion in formulating Plaintiff’s RFC. The ALJ may use
a non-examining physician to make sense of a record that contains conflicting medical
opinions and conflicting accounts by the claimant. Buxton v. Halter, 246 F.3d 762, 775
(6th Cir. 2001). However, more weight is “generally” given to an examining physician.
20 C.F.R. §§ 404.1527(c)(1), 416.927(c)(1) (“Generally, we give more weight to the
opinion of a source who has examined you than to the opinion of a source who has not
examined you.”). At the same time, more weight is “generally” given to the opinion of a
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specialist. 20 C.F.R. §§ 404.1527(c)(5), 416.927(c)(5) (“We generally give more weight
to the opinion of a specialist about medical issues related to his or her area of specialty
than to the opinion of a source who is not a specialist.”).

Because Dr. Magnusen

examined Plaintiff, but Dr. Brahms was an orthopedic specialist, the Court finds that this
case boils down to the issue of supportability.
With regards to supportability, the regulations provide that “[t]he more a medical
source presents relevant evidence to support an opinion, particularly medical signs and
laboratory findings, the more weight we will give that opinion.”

20 C.F.R. §§

404.1527(c)(3), 416.927(c)(3). Here, Dr. Brahms and Dr. Magnusen relied on the same
relevant evidence to support their opinions. In fact, Dr. Brahms relied heavily on the
findings by Dr. Magnusen. However, Dr. Brahms did not explain why he departed from
Dr. Magnusen with regards to the specific limitations which became the basis for the
ALJ’s RFC determination. As detailed above, Dr. Brahms responded to the questions
posed by Plaintiff’s attorney by stating: “Would not,” “Obviously I don’t” and “No,
absolutely not.” According to the regulations, this lack of explanation diminishes the
weight to be given to Dr. Brahms’ opinion:
The better an explanation a source provides for an opinion, the more
weight we will give that opinion. Furthermore, because nonexamining
sources have no examining or treating relationship with you, the weight we
will give their opinions will depend on the degree to which they provide
supporting explanations for their opinions.
20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3). Therefore, while Dr. Brahms may not have
a duty to explain his answers, his conclusory answers affect the weight to be given to
his opinion. See White v. Comm'r of Soc. Sec., 572 F.3d 272, 286 (6th Cir. 2009)
10

(“Conclusory statements from physicians are properly discounted by ALJs.”).
Moreover, as the Magistrate Judge pointed out, Dr. Brahms’ only briefly
discussed Plaintiff’s medical history and the pertinent medical findings. In addition, the
Court notes that there is some question as to whether Dr. Brahms’ opinion was indeed
more consistent with Plaintiff’s functioning in daily activities.

Therefore, the Court

concludes that the ALJ did not properly weigh the opinion of Dr. Brahms.
E. Conclusion
Based on the foregoing, the Court OVERRULES the Commissioner’s Objection
(Doc. 18) and the R & R (Doc. 17) is ADOPTED in full. Accordingly, this matter is
REVERSED and REMANDED pursuant to Sentence Four of § 405(g) for further
proceedings. On remand, the ALJ shall properly evaluate the weight afforded to Dr.
Brahms’ opinion and formulate the RFC accordingly. If necessary, the ALJ shall elicit
testimony from an additional medical expert with regard to Plaintiff’s RFC.
IT IS SO ORDERED.

/s/ Michael R. Barrett________________
United States District Judge

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