Herold v. Commissioner of Social Security

Filing 17

ORDER ADOPTING 14 Report and Recommendation REVERSING the decision by the Commissioner and REMANDING for further proceedings. Signed by Judge Michael R. Barrett on 2/10/12. (ba1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Russell Lynn Herold,
Plaintiff,

Case Action No.: 1:11-cv-758

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 Magistrate Judge Karen L. Litkovitz’s December 29, 2011, Report and
Recommendation (“Report”) (Doc. 14). 1 The Report recommends that Defendant’s
decision to deny Plaintiff’s applications for disability insurance benefits (“DIB”) and
supplemental security income (“SSI”) be reversed and remanded. (Doc. 14, 28.)
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 Report in a timely manner. (Doc. 14, 29); see United States v.
Walters, 638 F.2d 947, 949–50 (6th Cir. 1981). Defendant filed timely Objections to the
Report (Doc. 15), and Plaintiff filed a Response (Doc. 16).
For the reasons stated below, the Court overrules Defendant’s Objections, and
the Report is ADOPTED. Accordingly, the Commissioner’s decision is REVERSED and
REMANDED for further proceedings pursuant to Sentence Four of 42 U.S.C. § 405(g).

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All Court document citations are to CM/ECF Docket Entry numbers.

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I.

Background
On March 28, 2007, Plaintiff filed applications for DIB and SSI alleging a disability

onset date of June 2, 2005, due to back and leg injuries sustained in a car accident.
(Doc. 2 ¶¶ 4–6; Tr. 18; Doc. 14, 1.) After Plaintiff’s applications were denied initially and
upon reconsideration, he appeared for an evidentiary hearing before an Administrative
Law Judge (“ALJ”) on August 18, 2009. (Doc. 2 ¶¶ 7, 8; Tr. 18.) On September 25,
2009, ALJ James W. Sherry denied Plaintiff’s applications in a written decision. (Doc. 2
¶ 9; Tr. 15–25.) The ALJ concluded that Plaintiff does not have a disability within the
meaning of the Social Security Act. (Tr. 18.) The Appeals Council of the Social
Security Administration denied Plaintiff’s request for review, and therefore, the ALJ’s
decision stands as Defendant’s final decision. (Doc. 2 ¶ 11; Doc. 14, 1.)
The Report accurately details the remainder of the facts and procedural history of
this case. (See Doc. 14, 1–12.) There is no need to repeat them here. Accordingly,
the Report’s statement of facts and procedural history are adopted in full.
The Report recommends that the Court should reverse and remand this matter
for further proceedings. (Doc. 14, 27.) In reaching this decision, the Report analyzed
Plaintiff’s argument that the ALJ did not properly weigh the medical opinions of record
due to a failure to follow the treating-physician rule. (Doc. 14, 16; Doc. 10, 12.) More
specifically, Plaintiff argued that the ALJ gave improper weight to the opinion of
Plaintiff’s treating physician, Dr. Martinez, and erred by not accounting for the limitations
provided by Dr. Martinez in formulating Plaintiff’s residual functional capacity (“RFC”).
(Doc. 10, 12; Doc. 14, 18.) Rather than rely on the opinion of Dr. Martinez, the ALJ
gave “great weight” to the opinion of the non-examining State agency reviewer, Dr.

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Morton. (Tr. 23.) The entirety of the ALJ’s analysis of Dr. Martinez’s opinion is as
follows:
The undersigned places little weight on the opinion of Dr.
Jose Martinez. Dr. Martinez treated the claimant from
January to August 2009 for back pain. He opined that the
claimant was totally disabled and unable to engage in work
activities and activities of daily living (15F/3, 14). The
question of whether the claimant can maintain employment,
however, is a matter reserved to the Commissioner. SSR
96-5p. Dr. Martinez’s opinion is not well supported by
medically acceptable clinical findings and laboratory
diagnostic techniques. Although the claimant has some mild
to moderate stenosis at L3-4 and L4-5 levels and moderate
to severe stenosis at the L2-3 levels as well as neuropathy,
the undersigned does not consider these findings
justification for Dr. Martinez’s opinion that the claimant could
not sustain an 8-hour workday. Further, Dr. Martinez’s
opinion is inconsistent with the claimant’s activities of daily
living and it is conclusory and inconsistent with treating notes
and exam findings. The undersigned also finds that Dr.
Martinez’s opinion is based heavily on the claimant’s selfreports. As such, his opinion is given little weight.
(Tr. 23.)
Citing the treating-physician rule, the Report agreed with Plaintiff, finding that “the
ALJ’s findings with regard to Dr. Martinez’s opinion are not substantially supported.”
(Doc. 14, 20.) The Report found that Dr. Martinez’s opinion is supported by clinical
findings, the ALJ failed to cite any medical evidence or opinion to the contrary, the ALJ
improperly relied on Plaintiff’s reports of daily activity, and the ALJ was incorrect in
deciding that Dr. Martinez’s opinion was based heavily on Plaintiff’s self-reports. (Doc.
14, 20–22.)
Beyond recommending that this matter should be reversed and remanded, the
Report concludes that on remand, the ALJ should properly evaluate the weight afforded
to Dr. Martinez and Dr. Boyer as set forth in the Report and formulate Plaintiff’s residual
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functional capacity (“RFC”) assessment accordingly. The Report also recommends that
if necessary, the ALJ should elicit testimony from a medical expert with regard to
Plaintiff’s RFC. (Doc. 14, 27–28.)
Defendant’s Objection argues that the ALJ reasonably evaluated the relevant
medical evidence and that his decision should not be reversed. Defendant maintains
one overall objection to the Report’s recommendations: the Report did not properly
weigh the medical opinions of record, particularly the opinion of Dr. Martinez. (Doc. 15,
1.) By this Court’s count, Defendant presents four separate arguments under this
overall objection. (See Doc. 15.) Each is addressed below.
II.

Analysis
A.

Standard 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).
The 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 “‘such relevant evidence as a reasonable mind might

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accept as adequate to support a conclusion.’” Richardson v. Perales, 402 U.S. 389,
401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
“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). If substantial
evidence supports the ALJ’s finding of non-disability, that finding must be affirmed, even
if substantial evidence also exists in the record to support a finding of disability. Felisky,
35 F.3d at 1035 (citing Mullen, 800 F.2d at 545). However, even where there is
substantial evidence, “‘a decision of the Commissioner will not be upheld where the
SSA fails to follow its own regulations and where that error prejudices a claimant on the
merits or deprives the claimant of a substantial right.’” Rabbers v. Comm’r of Soc. Sec.
Admin., 582 F.3d 647, 651 (6th Cir. 2009) (quoting Bowen v. Comm’r of Soc. Sec., 478
F.3d 742, 746 (6th Cir. 2007)).
B.

The Weight of Medical Opinion and the Treating-Physician Rule

Defendant’s overall objection states that the Report did not properly weigh the

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medical opinions of record, particularly the opinion of Dr. Martinez, Plaintiff’s treating
physician. (Doc. 15, 1.) An ALJ is not bound by a treating physician’s conclusory
statement that the claimant is “disabled.” Miller v. Sec’y of Health & Human Servs., 843
F.2d 221, 224 (6th Cir. 1988) (“The determination of disability is the prerogative of the
Secretary and a physician’s opinion is not conclusive of the ultimate fact of disability.”)
However, the treating-physician rule requires an ALJ “to generally give greater
deference to the opinions of treating physicians than to the opinions of non-treating
physicians . . . .” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, at 406 (6th Cir. 2009).
A treating-source opinion must be given controlling weight if it is “‘well-supported by
medically acceptable clinical and laboratory diagnostic techniques’ and is ‘not
inconsistent with the other substantial evidence in the case record.’” Id. (quoting Wilson
v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004)). The regulations require
“good reasons” for any determination of weight given to a treating physician’s opinion.
20 C.F.R. § 404.1527(d)(2). “If the ALJ does not accord controlling weight to a treating
physician, the ALJ must still determine how much weight is appropriate by considering a
number of factors, including the length of the treatment relationship and the frequency
of examination, the nature and extent of the treatment relationship, supportability of the
opinion, consistency of the opinion with the record as a whole, and any specialization of
the treating physician.” Blakley, 581 F.3d at 406 (citing Wilson, 378 F.3d at 544).
Furthermore, if an ALJ decides to discount the treating physician’s medical opinion, the
ALJ must provide, “specific reasons for the weight given to the treating source’s medical
opinion, supported by the evidence in the case record, and must be sufficiently specific
to make clear to any subsequent reviewers the weight the adjudicator gave to the

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treating source’s medical opinion and the reasons for that weight.” Wilson, 378 F.3d at
544 (citing Soc. Sec. Rul. 96-2p). Where an ALJ fails to follow the procedural
requirement of identifying the “good reasons” for discounting the opinion of a treating
source and for explaining precisely how those reasons affected the weight given, this
“denotes a lack of substantial evidence, even where the conclusion of the ALJ may be
justified based on the record.’” Blakley, 581 F.3d at 407 (citing Rogers v. Comm’r of
Soc. Sec., 486 F.3d 234, 243 (6th Cir. 2007)).
In arguing that the Report incorrectly weighed the medical opinions of record,
Defendant presents four separate arguments. (See Doc. 15.) Each is considered.
1.

Defendant’s First Argument—Dr. Griffin

Defendant’s Objection first argues that the Report failed to discuss the opinion of
Dr. Griffin, which contradicted Dr. Martinez’s opinion and provided substantial support
for the ALJ’s decision. (Doc. 15, 1.) In other words, faced with competing—Dr. Griffin’s
and Dr. Martinez’s—the ALJ resolved the differences between them properly by relying
on the opinion of Dr. Griffin because he was a specialist with a longer treating
relationship with Plaintiff whereas Dr. Martinez was a family-practice physician with only
an eight-month treatment relationship. (Doc. 15, 2.) Plaintiff’s Response counters that
Dr. Griffin’s opinion is inconsistent with the RFC found by the ALJ and is consistent with
the limitations found by Dr. Martinez. (Doc. 16, 2.)
The Court first notes that the ALJ discussed Dr. Griffin’s opinions very briefly.
(Tr. 22, 23.) More importantly, Defendant’s argument here, even if correct, fails to
excuse the fact that the ALJ must give a treating physician’s opinion controlling weight,
or give good reasons for failing to do so. See Blakley, 581 F.3d at 407. Even where an

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ALJ’s decision is otherwise supported by substantial evidence in the record, reversal is
still required if the ALJ fails to state good reasons for not giving weight to a treating
physician's opinion. Wilson, 378 F.3d at 545–46. As the Report concluded, “the ALJ
discharged Dr. Martinez’s opinion without identifying the contradicting evidence or
explaining the inconsistencies.” (Doc. 14, 22.) Defendant’s argument here, and where
it argues that other substantial evidence detracted from Dr. Martinez’s opinion, (Doc. 15,
3–4) cannot overcome this flaw in the ALJ’s decision.
Regardless, Defendant’s argument here is not well taken. Dr. Griffin opined in
February 2006 that Plaintiff was temporarily “totally disabled” and was unable to work.
(Tr. 205.) This is consistent with Dr. Martinez’s opinion (Tr. 314–15), and it is
inconsistent with the ALJ’s RFC determination, (compare Tr. 21, with Tr. 205).
Defendant’s objection here is OVERRULED.
2.

Defendant’s Second Argument—Dr. Morton

Defendant next argues that the ALJ properly relied on the State agency reviewer,
Dr. Morton, because he reviewed most of the record and because those records
support the ALJ’s RFC determination. (Doc. 15, 2–3.) Plaintiff contends that this is
incorrect and that Dr. Morton was not provided with any opinions from treating or
examining sources and there is no indication that he reviewed any treatment records.
(Doc. 16, 2.)
Once again, the Court notes that even if Defendant is correct here, that fails to
excuse the ALJ’s lack of good reasons for not giving Dr. Martinez’s opinion controlling
weight. See Blakley, 581 F.3d at 407. But even if this were not the case, the record
support’s Plaintiff’s contention that Dr. Morton was not provided with treating- or

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examining-source statements regarding Plaintiff’s physical capacities. (Tr. 268.) This
contradicts Defendant’s argument that Dr. Morton reviewed most of the record.
Accordingly, Defendant’s objection here is OVERRULED.
3.

Defendant’s Third Argument—Dr. Boyer

Defendant next argues that another physician, occupational medicine specialist
Dr. Boyer, also disagreed with Dr. Martinez and determined that Plaintiff was only
minimally impaired. Defendant faults the Report for not factoring this into the discussion
of the ALJ’s analysis. (Doc. 15, 3.) Plaintiff responds that Dr. Boyer did not offer any
specific opinions regarding Plaintiff’s RFC, but merely opined that he had an 8% wholebody impairment under the AMA guidelines used for rating workers compensation
claims and that those guidelines do not translate to any particular RFC for disability
determination purposes. (Doc. 16, 2.)
Again, the Court notes that Defendant’s argument here fails to excuse the ALJ’s
lack of good reasons for rejecting Dr. Martinez’s opinion. See Blakley, 581 F.3d at 407.
Other evidence in the record does not excuse an ALJ’s failure to state good reasons for
not giving weight to a treating physician’s opinion. Wilson, 378 F.3d at 545–46. Even
so, the opinion Defendants cite in support, Begley v. Sullivan, 909 F.2d 1482, 1990 WL
113557 (6th Cir. Aug. 8, 1990) (unpublished table decision), states that “the AMA
impairment ratings are not correlated in any way with the social security disability
program,” and such evidence is not “outcome determinative.” As such, Dr. Boyer’s
determination of 8% whole-person impairment according to the AMA Guides to the
Evaluation of Permanent Impairment is not a dispositive factor in determining the
existence of a disability. Defendant’s objection here is OVERRULED.

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4.

Defendant’s Fourth Argument—Clinical Documentation

Defendant’s final argument contends that the Report does not address the
problems with Dr. Martinez’s clinical documentation. (Doc. 15, 4.) Defendant argues
that Dr. Martinez’s opinion was not supported by significant clinical and objective
findings. (Doc. 15, 4–5.) Accordingly, “the ALJ was not unreasonable in concluding
that Dr. Martinez’s anomalous opinion was not supported by proper clinical and
diagnostic evidence.” (Doc. 15, 5.) Plaintiff counters that Defendant is viewing the facts
selectively, and that Defendant fails to acknowledge objective x-ray and MRI results and
abnormal clinical examinations that support Dr. Martinez’s opinions. (Doc. 16, 3.)
As with Defendant’s prior arguments, the Court must again point out that the ALJ
must give “good reasons” for any determination of weight given to a treating physician’s
opinion. 20 C.F.R. § 404.1527(d)(2). Where such reasons are lacking, this “denotes a
lack of substantial evidence, even where the conclusion of the ALJ may be justified
based on the record.’” Blakley, 581 F.3d at 407. Furthermore, as the Report found,
“the ALJ’s determination that Dr. Martinez’s opinion is not supported by clinical findings
is contradicted by the objective and clinical evidence of record.” (Doc. 14, 20.) The
Report extensively reviewed this clinical evidence, (Doc. 14, 20–21) and upon de novo
review, the Court finds no error. Defendant’s objection here is OVERRULED.
III.

Conclusion
Based on the foregoing, the Court OVERRULES Defendant’s Objection (Doc.

15) and the Report (Doc. 14) is ADOPTED in full. As the Report recommends, this
matter is REVERSED and REMANDED pursuant to Sentence Four of § 405(g) for
further proceedings. (Doc. 14, 27.) On remand, the ALJ shall properly evaluate the

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weight afforded to Dr. Martinez and Dr. Boyer and formulate Plaintiff’s RFC accordingly.
If necessary, the ALJ shall elicit testimony from a medical expert with regard to
Plaintiff’s RFC. (Doc. 14, 27–28.)
IT IS SO ORDERED.
s/Michael R. Barrett
United States District Judge

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