Cyrus v. Commissioner of Social Security

Filing 24

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Timothy Cyrus: that the decision of the Commissioner be REVERSED and REMANDED under sentence four; and this case be CLOSED. Objections to R&R due by 7/23/2012. Signed by Magistrate Judge Stephanie K. Bowman on 7/5/12. (jl1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

TIMOTHY CYRUS,

Case No. 1:11-cv-234

Plaintiff,

Barrett, J.
Bowman, M.J.

v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
Plaintiff Timothy Cyrus filed this Social Security appeal in order to challenge the
Defendant’s finding that he is not disabled.

See 42 U.S.C. §405(g).

Proceeding

through counsel, Plaintiff presents three claims of error. The Commissioner has filed a
response in opposition to Plaintiff’s statement of errors, to which Plaintiff has filed no
reply.1

As explained below, I conclude that the finding of non-disability should be

REVERSED, because it is based upon clear legal error and is not supported by
substantial evidence in the administrative record.
I. Summary of Administrative Record
This judicial appeal concerns Plaintiff’s second application for disability benefits.
Plaintiff made an initial application for Disability Insurance Benefits (DIB) on May 4,

1

Although Plaintiff com m enced this action in April 2011, proceedings were delayed when the
Com m issioner inadvertently filed the wrong adm inistrative record, and Plaintiff initially failed to file
a tim ely statem ent of errors. These errors were rem edied by both parties, with Plaintiff filing his
statem ent of errors on February 21, 2012. Both parties were subsequently granted further
extensions of tim e in which to brief the issues, with Plaintiff’s last extension of tim e (to file a reply
brief) having expired on July 2, 2012.

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2004, alleging a disability onset date of June 8, 2003 based upon physical impairments
that included severe hypertension, diabetes, and vision problems, as well as several
physical conditions determined to be non-severe.

(Tr. 60). When Plaintiff’s initial

application and request for reconsideration were denied, he requested a hearing de
novo before an administrative law judge (“ALJ”). After an evidentiary hearing held on
April 13, 2006, ALJ Gilbert A. Sheard denied Plaintiff’s application in a written decision
dated June 22, 2006.2 (Tr. 59-63). ALJ Sheard specifically found that Plaintiff retained
the residual functional capacity (“RFC”) for a “full range of [sedentary] work” except that:
[t]he job must be either alternate sit/stand at will, or must have the
opportunity to stand and stretch briefly frequently, or must have a
significant amount of the work done standing up. Keep him away from
unprotected heights, dangerous moving machinery, automotive
equipment, ladders, open water, and open flame. He can lift 16 pounds
occasionally, and can stand one hour and sit eight hours per workday. He
has some trouble with depth perception with his eyes, all as set out in
Exhibit 13E
(Tr. 61-62). There is no record of further appeal of ALJ Sheard’s decision.
Instead, in April 2008, Plaintiff filed new applications for both Disability Insurance
Benefits (DIB) and for Supplemental Security Income (SSI), alleging the same disability
onset date of June 8, 2003, and roughly the same physical impairments, including
severe hypertension and diabetes.

(Tr. 41).

This time, however, his applications

included a new impairment of stroke. After Plaintiff’s claims were again denied initially
and upon reconsideration, he again requested a hearing de novo before an
Administrative Law Judge (“ALJ”). On January 6, 2010, ALJ Geraldine H. Page held a
hearing at which Plaintiff was represented by counsel. (Tr. 8-28). At the hearing, ALJ

2

The copy of the decision in the adm inistrative record is undated and unsigned, but Defendant
represents that the decision was dated in “June 2006," (Doc. 21 at 4), and no one has challenged
its authenticity.

2

Page heard testimony from Plaintiff and from a vocational expert. On February 17,
2010, ALJ Page denied Plaintiff’s applications for benefits in a written decision. (Tr. 3852). The Appeals Council denied Plaintiff’s request for further review. Therefore, the
ALJ’s decision stands as the Defendant’s final determination. It is from this more recent
decision that Plaintiff now appeals to this Court.
Plaintiff is a high school graduate, and was 39 years old on his alleged disability
onset date. (Tr. 51). In her “Findings,” which represent the rationale of the decision, the
ALJ determined that the claimant has not engaged in substantial gainful activity since
June 8, 2003, his alleged onset date, and that he has the following severe impairments:
“hypertension, diabetes mellitus, obesity, and history of cerebrovascular accident.” (Tr.
43). After determining that Plaintiff “does not have an impairment or combination of
impairments that meets or medically equals one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1,” the ALJ found that Plaintiff retains the residual
functional capacity (“RFC”) to perform a range of light work, with the following
restrictions:
The claimant would be capable of standing/walking for 6 hours in a normal
8 hour work day; sitting for 6 hours in a normal 8 hour work day;
occasional climbing of ramps or stairs, balancing, kneeling, crawling,
stooping, or crouching. The claimant would require work that allows the
worker to alternate between sitting and standing; did not require exposure
to hazardous machinery, unprotected heights, climbing ladders, ropes, or
scaffolds, or vibrating surfaces; and does not expose the worked [sic] to
loud background noise.
(Tr. 44). Based upon these restrictions, the ALJ determined that Plaintiff was unable to
perform his past relevant work as a construction laborer, installer, crane operator, or
construction truck driver.

(Tr. 50). Nevertheless, the ALJ found that based upon

Plaintiff’s age, education, work experience, and residual functional capacity, “there are
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jobs that exist in significant numbers in the national economy that the claimant can
perform.” (Tr. 51). Therefore, the ALJ concluded that Plaintiff was not under a disability
and was not entitled to either DIB or SSI benefits.
In his appeal to this Court, Plaintiff argues that the ALJ erred: (1) by improperly
relying upon the opinion of a non-examining state agency physician; (2) by violating the
rule of Drummond v. Commissioner, 126 F.3d 837 (6th Cir. 1997); and (3) by improperly
evaluating Plaintiff’s credibility.
II. Analysis
A. Judicial Standard of Review
To be eligible for DIB or SSI benefits, a claimant must be under a “disability”
within the definition of the Social Security Act. See 42 U.S.C. §1382c(a). Narrowed to
its statutory meaning,3 a “disability” includes only physical or mental impairments that
are both “medically determinable” and severe enough to prevent the applicant from (1)
performing his or her past job and (2) engaging in “substantial gainful activity” that is
available in the regional or national economies. See Bowen v. City of New York, 476
U.S. 467, 469-70 (1986).
When a court is asked to review the Commissioner’s denial of benefits, the
court’s first inquiry is to determine whether the ALJ’s non-disability finding is supported
by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (additional citation and internal
quotation omitted). In conducting this review, the court should consider the record as a

3

The definition of the term “disability” is essentially the sam e for both DIB and SSI. See Bowen v.
City of New York, 476 U.S. 467, 469-70 (1986).

4

whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence
supports the ALJ’s denial of benefits, then that finding must be affirmed, even if
substantial evidence also exists in the record to support a finding of disability. Felisky v.
Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994). As the Sixth Circuit has explained:
The Secretary’s findings are not subject to reversal merely because
substantial evidence exists in the record to support a different conclusion .
. . . The substantial evidence standard presupposes that there is a ‘zone
of choice’ within which the Secretary may proceed without interference
from the courts. If the Secretary’s decision is supported by substantial
evidence, a reviewing court must affirm.
Id. (citations omitted).
In considering an application for disability benefits, the Social Security Agency is
guided by the following sequential benefits analysis: at Step 1, the Commissioner asks if
the claimant is still performing substantial gainful activity; at Step 2, the Commissioner
determines if one or more of the claimant’s impairments are “severe;” at Step 3, the
Commissioner analyzes whether the claimant’s impairments, singly or in combination,
meet or equal a Listing in the Listing of Impairments; at Step 4, the Commissioner
determines whether or not the claimant can still perform his or her past relevant work;
and finally, at Step 5, if it is established that claimant can no longer perform his past
relevant work, the burden of proof shifts to the agency to determine whether a
significant number of other jobs which the claimant can perform exist in the national
economy. See Combs v. Commissioner of Soc. Sec., 459 F.3d 640, 643 (6th Cir.
2006); 20 C.F.R. §§404.1520, 416.920.
A plaintiff bears the ultimate burden to prove by sufficient evidence that he or she
is entitled to disability benefits. 20 C.F.R. § 404.1512(a). A claimant seeking benefits
must present sufficient evidence to show that, during the relevant time period, he or she
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suffered an impairment, or combination of impairments, expected to last at least twelve
months, that left him or her unable to perform any job in the national economy. 42
U.S.C. § 423(d)(1)(A).
In this case, Plaintiff alleges that the three previously referenced errors at the fifth
step of the sequential analysis require remand back to the Commissioner. Upon review,
it is clear that the ALJ erred as a matter of law in failing to follow Drummond, and in
overly relying upon a non-examining physician in determining Plaintiff’s RFC. Those
errors require this Court to remand for further proceedings.
B. Plaintiff’s Claims of Error
1. Drummond Error
In response to Plaintiff’s first application for benefits, the ALJ determined that
Plaintiff was limited to sedentary work, with additional postural and other limitations
specified in the RFC finding. (Tr. 59-63). In Drummond v. Comm’r of Soc. Sec., 126
F.3d 837, 842 (6th Cir. 1997), the Sixth Circuit held that “[a]bsent evidence of an
improvement in a claimant’s condition, a subsequent ALJ is bound by the findings of a
previous ALJ.” (Emphasis added). In this case, ALJ Page did not reference the prior
RFC found by ALJ Sheard in 2006. Plaintiff argues that ALJ Page erred by failing to
reference Plaintiff’s stroke, frequent headaches, uncontrolled diabetes, low potassium
and uncontrolled hypertension and blurry vision, or how those conditions have actually
“improved” since 2006, such that ALJ Page was not bound by the prior RFC
determination.
As Defendant now concedes, ALJ Page clearly erred by failing to reference the
prior determination that Plaintiff is limited to a restricted range of sedentary work. Stuck
with the legal error, Defendant argues instead that the error was harmless because
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“ALJ Page’s RFC finding was substantial [sic] similar or more restrictive than the 2006
RFC determination.” (Doc. 21 at 4). Finding the error was not harmless, I recommend
remand for further review.
In determining Plaintiff’s RFC, ALJ Page wholly adopted the RFC found by Dr.
Rebecca Neiger, a non-examining consultant.

In her review of Plaintiff’s medical

records in August 2008, Dr. Neiger briefly noted the existence of the 2006 ALJ decision
denying Plaintiff’s prior claim, and that a prior records review conducted by an “out-ofstate reviewing physician” -who also completed an RFC form - “did not address the ALJ
[opinion] in file.” (Tr. 332, referencing RFC at Tr. 296-303). On August 4, 2008, Dr.
Neiger stated that she would not adopt the 2006 RFC determination “because of new
and material change (stroke)” - namely, that Plaintiff had suffered a mild stroke on
February 29, 2008. (Tr. 232; see also Tr. 235, 241-43, 252-254). Dr. Neiger opined
that, in light of the evidence of a stroke in 2008, the agency should obtain either three
months of treatment notes following the stroke, “or a current CE [consulting
examination] to make sure he has no lingering deficits and/or new stroke-related
issues.” (Tr. 332).
Nine days later on August 13, 2008, Dr. Neiger completed a new RFC form,
which was subsequently adopted by ALJ Page. No consulting examination was ever
completed, but the RFC form reflects that Dr. Neiger reviewed 3 months’ worth of
follow-up treatment records post-dating Plaintiff’s stroke.

Defendant argues that

because those records after his stroke showed “minimal” abnormalities and no “residual

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deficits,” (Tr. 255, 282-283, 332, 372-373), it was permissible for ALJ Page to adopt Dr.
Neiger’s RFC opinions,4 without reference to the prior, more restrictive RFC findings.
Several problems exist with the Defendant’s “harmless error” analysis. First,
evidence that the claimant has suffered a stroke, no matter how minor, cannot be
considered evidence of “medical improvement” as is specifically required by
Drummond. Defendant offers no other evidence of “medical improvement,” nor is such
evidence likely to exist, given that even Dr. Neiger first suggested that a consulting
examination might be required to assess the additional impact of Plaintiff’s stroke.
Second, this Court cannot agree that ALJ Page’s RFC finding was “substantially
similar” to the prior RFC determined by ALJ Sheard. ALJ Sheard restricted Plaintiff to a
partial range of sedentary work, including lifting not more than 16 pounds, whereas ALJ
Page found Plaintiff capable of a range of light work, lifting and carrying up to 20 pounds
occasionally and 10 pounds frequently. (Tr. 334-336). ALJ Sheard held that Plaintiff
must be able to “sit or stand at will” or alternatively, to be able to “stand and stretch
briefly frequently.” (Tr. 61-62). ALJ Sheard also limited Plaintiff to standing no more
than one hour per day. (Id.). Although ALJ Page included a restriction that Plaintiff be
permitted to alternate sitting and standing, she did not require that alteration be
permitted “at will.” More importantly, instead of limiting Plaintiff to just one hour of
standing per day, she expressly found Plaintiff “capable of standing/walking for 6 hours
in a normal 8 hour work day.” These differences alone suggest that ALJ Page’s RFC

4

A second reviewing consultant, Dr. W illa Caldwell, concurred in Dr. Neiger’s assessm ent without
further com m ent. (Tr. 374).

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findings would have permitted a much greater range of work than the RFC
determination previously made by ALJ Sheard.
Defendant argues that, despite an RFC finding by ALJ Page that Plaintiff could
perform “light” work, the vocational expert testified at the 2010 hearing that due to the
sit/stand option, Plaintiff would be restricted to sedentary jobs, which by definition
requires lifting no more than 10 pounds at a time. (Tr. 24-25, 51). All of the jobs
suggested by the VE were at the sedentary level. Based on that testimony, Defendant
argues that ALJ Page’s RFC finding - at least as applied in this case through the VE’s
testimony- was more restrictive than that found by ALJ Sheard. However, based on the
hypothetical provided by the ALJ, some ambiguity remains as to Plaintiff’s lifting
capacity.

Similarly, the “sedentary” jobs could at least theoretically require greater

standing/walking than permitted by the 2006 RFC determination. Relevant regulations
specify that “[j]obs are sedentary if walking and standing are required occasionally and
other sedentary criteria are met.” 20 C.F.R. §404.1567(a); 20 C.F.R. §416.967(a). The
word “occasionally” can mean up to one third of the time, or about two hours of an eighthour work day.

See Social Security Ruling (SSR) 96-9p, 1996 WL 374185.

That

amount of walking and standing would exceed the time limits proscribed by the prior
ALJ’s opinion. Based upon clear legal error under Drummond, and ambiguity as to
whether the error could be considered harmless, I conclude that the error requires
remand for further evaluation.

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2.

Adoption of Non-examining Consultant over
Treating Physician’s Opinion in Formulating RFC

The conclusion that remand is required in this case is bolstered by Plaintiff’s
second claim of error: the adoption of Dr. Neiger’s RFC opinion over the contrary
opinions of Plaintiff’s long-term treating physician, Dr. Suzanne Bonzo. The Social
Security regulation pertinent to evaluation of a treating physician’s opinion states: “If we
find that a treating source's opinion on the issue(s) of the nature and severity of your
impairment(s) is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in your
case record, we will give it controlling weight.” 20 C.F.R. § 404.1527(c)(2).

In

determining the weight to give to any medical source opinion, an ALJ must also
consider: 1) the examining relationship between the medical source and claimant; 2) the
treatment relationship, including the length of treatment, frequency of examination, and
nature and extent of relationship; 3) support by medical evidence; 4) consistency of the
opinion with the record as a whole; 5) the source’s area of specialization; and 6) any
other factors which support or contradict the opinion. Id.
Ultimately the determination of a claimant’s residual functional capacity is
“reserved to the Commissioner.” 20 C.F.R. §404.1527(e)(2). There is no doubt that
where conclusions regarding a claimant’s functional capacity are not substantiated by
objective evidence, the ALJ is not required to credit those conclusions.

Cutlip v.

Secretary of Health and Human Services, 25 F.3d 284, 287 (6th Cir. 1994). Similarly,
although “[g]enerally the opinions of treating physicians are given substantial, if not
controlling, deference,” they are only given such deference when the opinions are

10

supported by objective medical evidence. See Warner v. Comm’r of Soc. Sec., 375
F.3d 387, 390 (6th Cir. 2004). Thus, “if the treating physician’s opinion is not supported
by objective medical evidence, the ALJ is entitled to discredit the opinion as long as he
sets forth a reasoned basis for his rejection.” Jones v. Comm’r of Soc. Sec., 336 F.3d
469, 477 (6th Cir. 2003); see also 20 C.F.R. § 1527(d)(2).
In this case, the agency elected not to proceed with any type of consultative
examination, instead relying upon a records review by a non-examining consultant, Dr.
Neiger, and the concurrence with her opinion expressed by a second non-examining
consultant, Dr. Willa Caldwell. (Tr. 374). As stated, ALJ Page adopted wholesale the
RFC opinions of Dr. Neiger, while rejecting the much more restrictive RFC opinions of
Dr. Bonzo.
An ALJ’s decision to accord greater weight to state agency physicians over a
plaintiff’s treating physicians is not, by itself, reversible error, because there may well be
appropriate reasons for that decision. Blakley v. Commissioner of Social Security, 581
F.3d 399, 409 (6th Cir. 2009). For example, if the consulting physician’s opinion is
based upon more complete information than was available to the physician’s treating
source, then the ALJ may give greater weight to that opinion. Id. (citing Soc. Sec. Rul
96-6p, 1996 WL 374180, at *3 (July 2, 1996)).
On the record presented, however, the ALJ’s adoption of an RFC based
exclusively upon the report of Dr. Neiger is problematic. As noted, Dr. Neiger initially
recommended a consultative examination on August 4, 2008 based upon Plaintiff’s
February 2008 stroke and a record dating from March 2008 that suggested continuing
“TIA symptoms.”

(Tr. 332).

Although Dr. Neiger determined a week later that a

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consultative examination was unnecessary, based upon her review of post-stroke
records, her August 13, 2008 RFC opinions were expressed without the benefit of
Plaintiff’s most recent medical records from 2009 and 2010, (see generally Tr. 375-416),
and without benefit of the opinions of Plaintiff’s long-term treating physician, Dr. Bonzo.
On December 14, 2009, Dr. Bonzo completed an RFC form and opined that Plaintiff had
extremely severe physical limitations resulting from his severe hypertension.

For

example, Dr. Bonzo stated that Plaintiff should not (even occasionally) lift more than 5
pounds, that he could stand and walk for not more than 1 hour, or 1/2 hour without
interruption, and that he could sit for not more than 5 hours. (Tr. 408-410; Tr. 48).
In adopting the RFC determined by Dr. Neiger, the ALJ misstated the record
when she wrote: “The record does not contain any opinions from treating or examining
physicians that Claimant has limitations greater than those determined in this decision.”
(Tr. 49, emphasis added). Clearly, Dr. Bonzo’s opinions included limitations far more
restrictive than those determined by Dr. Neiger and ALJ Page.
In fact, within a page of her misstatement concerning the absence of opinions
from treating physicians, ALJ Page refers to records from Dr. Bonzo dating from 2006
through 2010, thereby recognizing Dr. Bonzo as a treating physician whose opinions
ordinarily would be entitled to “controlling” weight over the opinions of the nonexamining consultants.

However, ALJ Page specifically rejects Dr. Bonzo’s RFC

opinions, based upon internal “inconsistencies” within Dr. Bonzo’s report and the ALJ’s
belief that the limitations suggested by Dr. Bonzo were inconsistent “with what one
would expect” based upon Dr. Bonzo’s relatively conservative course of treatment. (Tr.
48).

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In Blakley, the Sixth Circuit remanded where the non-reviewing consultant had
failed to review the most recent medical records, and the ALJ failed to indicate that he
had “at least considered [that] fact before giving greater weight” to the consulting
physician’s opinions. Blakley, 581 F.3d at 409 (quoting Fisk v. Astrue, 253 Fed.Appx.
580, 585 (6th Cir. 2007)). Under Blakley, then, an ALJ may choose to credit the opinion
of even a non-examining consultant who has failed to review a complete record, but he
should articulate his reasons for doing so. If he fails to provide sufficient reasons, his
opinion still may be affirmed if substantial evidence supports the opinion and any error
is deemed to be harmless or de minimis.
In this case, Dr. Neiger did not have access to either Dr. Bonzo’s RFC opinions
or Plaintiff’s relevant 2009 and 2010 records. While Blakley does not forbid adoption of
Dr. Neiger’s opinions in these circumstances, it does require the exercise of caution and
greater explanatory analysis. Here as in Blakley, the ALJ did not acknowledge the
incomplete records review by Dr. Neiger, including the fact that Dr. Neiger was unable
to review the contrary opinions of Plaintiff’s treating physician. The ALJ also did not
articulate most of the relevant factors (i.e., the length of relationship or frequency of
examination, etc.) before dismissing Dr. Bonzo’s opinions. On the other hand, the ALJ
did appropriately note two internal inconsistencies in Dr. Bonzo’s RFC report as a basis
for rejecting Dr. Bonzo’s opinion. However, considering both the prior Drummond error
and the dictates of Blakley, I conclude it was error for the ALJ to adopt the opinions of
the non-examining consultant over the opinions of Plaintiff’s long-time treating physician
without additional analysis and explanation.

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3. Credibility Analysis
In a third claim, Plaintiff additionally challenges the ALJ’s evaluation of his
credibility, but I find no error in this respect. An ALJ’s assessment of credibility must be
supported by substantial evidence, but is generally entitled to great deference. Walters
v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997).
As one of several factors negatively impacting her assessment of Plaintiff’s
credibility, the ALJ referenced evidence that Plaintiff “admitted to not taking prescribed
medications as directed and not seeking assistance when he ran out of his
medications.” (Tr. 49). Plaintiff argues that because the record reflects that Plaintiff
was unemployed and without health care insurance, remand is required “to inquire into
the availability of insurance...and the Claimant’s ability to pay for treatment or to obtain
free samples...before allowing the adverse credibility finding...to stand.” (Doc. 17 at 6).
However, Plaintiff’s argument ignores records that reflect that Plaintiff was offered free
samples and counseled on methods of obtaining low-cost or free medications. (See
e.g. Tr. 225, declining recommended treatment to remain in hospital for blood pressure
management; Tr. 305-306, 362-363, hospital records noting that Plaintiff ran out of
medications, but “did not call anyone to get samples or did not contact his family for
financial help,” with additional notes re counseling Plaintiff “about ways of getting
medications and gave him patient assistance forms for some drug companies....”; Tr.
308, 364, additional hospital records re Plaintiff failing to ask for samples; Tr. 312,
notation that samples provided).
In addition, the ALJ pointed out several other facts that negatively reflected upon
Plaintiff’s credibility, such as inconsistencies concerning the reason for leaving his last

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employment and other inconsistencies in his testimony concerning his daily activities
and physical abilities.

(Tr. 49).

Most of those additional reasons for discounting

Plaintiff’s credibility are not challenged by Plaintiff in this appeal. In a fleeting challenge
to the ALJ’s reference to daily activities, Plaintiff notes that intermittently performed daily
activities cannot be used as evidence that he can perform substantial gainful activity.
While a correct statement of the law, there is no evidence in the record that Plaintiff
endures such substantial pain that his activities are severely limited and/or intermittently
performed. In addition, it is generally appropriate for an ALJ to consider Plaintiff’s
activity level and inconsistencies in evaluating Plaintiff’s credibility. See e.g., Warner v.
Comm’r of Soc. Sec., 375 F.3d at 392 (“The administrative law judge justifiably
considered Warner’s ability to conduct daily life activities in the face of his claim of
disabling pain.”); Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 536 (6th Cir. 2001)(ALJ
may consider claimant’s testimony of limitations in light of other evidence of claimant’s
ability to perform tasks such as walking, going to church, going on vacation, cooking,
vacuuming and making beds).
4. Decision Not to Order Consulting Examination
Although not set forth as a separate claim of error by Plaintiff, Defendant
addresses the issue of the ALJ’s failure to order a consultative examination. Social
Security proceedings are inquisitorial rather than adversarial,” such that an ALJ has a
duty “to investigate the facts and develop the arguments both for and against granting
benefits.” Sims v. Apfel, 530 U.S. 103, 111 (2000)(citation omitted). Whether or not to
order a consultative examination is a discretionary decision made by an ALJ upon a

15

finding that the record is not sufficiently developed to evaluate a claim. See Foster v.
Halter, 279 F.3d 348, 355 (6th Cir. 2001).
As Defendant notes, in this case Plaintiff made no formal request to expand the
record through a consultative examination at any point during the administrative
proceedings, including at the evidentiary hearing when he was represented by counsel.
For that reason, the Court agrees that Plaintiff appears to have waived this issue for
purposes of this appeal. The Sixth Circuit has made clear that “[t]he duty to develop the
record...is balanced with the fact that ‘[t]he burden of providing a complete record,
defined as evidence complete and detailed enough to enable the Secretary to make a
disability determination, rests with the claimant.’” Landsaw v. Sec’y of Health & Human
Servs., 803 F2d 211, 213 (6th Cir. 1986)(citing 20 C.F.R. §§416.912, 416.913(d)); see
also Her v. Comm’r of Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999)(claimant’s burden to
prove disability); Wright-Hines v. Comm’r of Soc. Sec., 597 F.3d 392 (6th Cir.
2010)(claimant and her counsel bear the burden of introducing record evidence to
support a finding that benefits should be awarded).
In any event, the record does not appear to have been so seriously
underdeveloped in this case at the time of the last evidentiary hearing that it was an
abuse of discretion for the ALJ to fail to order a consultative examination at taxpayer
expense. Of course, the fact that it was not reversible error for the ALJ to fail to order a
consultative exam at the last evidentiary hearing does not mean that the ALJ would be
precluded from making a different decision on remand. Such a decision remains within
the discretion of the ALJ.

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III. Conclusion and Recommendation
For the reasons stated herein, IT IS RECOMMENDED THAT:
1. The decision of the Commissioner to deny Plaintiff DIB and SSI benefits be
REVERSED and this matter be REMANDED under sentence four of 42 U.S.C. §405(g);
2. On remand, the ALJ be instructed to: (1) remedy the errors identified in this
Report and Recommendation concerning the weight to be given to the opinions of
Plaintiff’s treating physician, as well as the weight given to the opinions of nonexamining consulting physicians; and (2) remedy the Drummond error;
3. As no further matters remain pending for the Court’s review, this case be
CLOSED.

/s Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

TIMOTHY CYRUS,

Case No. 1:11-cv-234

Plaintiff,

Barrett, J.
Bowman, M.J.

v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of
the filing date of this R&R. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s)
of the R&R objected to, and shall be accompanied by a memorandum of law in support
of the objections. A party shall respond to an opponent’s objections within FOURTEEN
(14) DAYS after being served with a copy of those objections.

Failure to make

objections in accordance with this procedure may forfeit rights on appeal. See Thomas
v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

18