Smith v. Commissioner of Social Security

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATIONS re 16 Report and Recommendation in its entirety. The Court REVERSES the decision of the Commissioner to deny Plaintiff DIB and SSI benefits, and REMANDS this matter under sentence four of 42 U.S.C. § 405(g) consistent with the Magistrate Judge's Report and Recommendation. This case is CLOSED on the Courts docket. Signed by Judge S Arthur Spiegel on 9/18/2013. (km1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

MARK J. SMITH,

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Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,

NO. 1:12-CV-00225

OPINION AND ORDER

Defendant.

This matter is before the Court on the Magistrate Judge’s
Report and Recommendation, (doc. 16), and Defendant’s Objections
(doc. 17), and Plaintiff’s Response (doc. 18).

In her Report and

Recommendation, the Magistrate Judge recommended that the decision
of

the

Administrative

Law

Judge

(“ALJ”)

denying

Plaintiff

Disability Insurance Benefits (“DBI”) and Supplemental Security
Income (“SSI”) be reversed and this matter be remanded under
sentence four of 42 U.S.C. § 405(g) for further proceedings (doc.
16).

For the reasons indicated herein, the Court ADOPTS the

Magistrate Judge’s Report and Recommendation in its entirety.
I.

Background
Plaintiff filed an application for DIB and SSI in July

2007, alleging a disability onset date of January 1988, due to
physical and mental impairments (doc. 16).

Defendant denied such

claims

initially

and

upon

reconsideration

(Id.).

Plaintiff

subsequently requested a hearing before an ALJ, which he obtained,
and at which he was represented by counsel (Id.).

The ALJ denied

Plaintiff’s application, following which Plaintiff requested review
by

the

Appeals

Council

(Id.).

The

Appeals

Council

denied

Plaintiff’s request for review, thus making the ALJ’s decision the
final determination of the Commissioner (Id.).
On appeal to this Court, Plaintiff contends the nondisability determination should be reversed for three reasons
(Id.).

First, he argues the ALJ erred by failing to properly

explain the rationale for his residual functional capacity (“RFC”)
finding, 2) improperly weighing the medical opinions, and 3)
failing to properly evaluate Plaintiff’s learning disabilities and
elbow impairments.
II. The Magistrate Judge’s Report and Recommendation
In her Report and Recommendation the Magistrate Judge
reviewed the applicable standard of review, the relevant evidence,
and the ALJ’s decision (doc. 16).

Having done so, the Magistrate

Judge concluded the ALJ’s evaluation of Plaintiff’s mental and
physical impairments was not supported by substantial evidence
(Id.).

Specifically, as to Plaintiff’s mental impairments, the

Magistrate Judge agreed with Plaintiff that the ALJ improperly
relied on the testimony of the medical expert Dr. Schwartz, which
was vague and inconsistent with the record, as opposed to the

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opinion of Plaintiff’s treating psychiatrist, Dr. Cheng (Id.).
Citing 20 C.F.R § 404.1527(d)(1) and (2), the Magistrate Judge
noted that more weight is generally given to a medical source who
examined a claimant over one who has not, and that the length of
treatment relationship and nature of such relationship are relevant
factors (Id.).

Here, the Magistrate Judge found, the ALJ’s

decision failed to provide additional rationale beyond two general
statements to justify the weight assigned to the findings of Drs.
Schwartz and Cheng (Id.). Notably, the Magistrate Judge found, the
ALJ’s

analysis

of

Dr.

Cheng’s

opinion

was

included

in

the

evaluation of whether Plaintiff’s impairments met or equaled any of
the Listings for mental health impairments, but was not included
during the RFC analysis (Id.).

The Magistrate Judge further noted

the ALJ’s decision provides no indication that he applied the
factors set out in Section 404.1527(c)–supportability, consistency,
specialization–when weighing the consultative doctors’ opinions
(Id.).

Thus, the Magistrate Judge concluded the ALJ failed to

fully articulate his rationale for the weight given to the opinion
evidence,

and

such

failure

necessitates

remand

for

proper

evaluation of the medical evidence of record in accordance with
agency regulations and controlling law (Id.).
The

Magistrate

Judge

next

considered

Plaintiff’s

cognitive impairments, similarly concluding the ALJ failed to
properly evaluate Plaintiff’s memory problems, his measures of

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cognition, and his limited ability to read (Id.).

The Magistrate

Judge found therefore the ALJ should revisit his evaluation of
Plaintiff’s cognitive limitations.
As for Plaintiff’s right elbow impairment, the Magistrate
Judge found further fact-finding necessary due to the complicated
nature of his limitation in flexion contracture and Plaintiff’s
complaints of pain and weakness (Id.).

The Magistrate Judge noted

the ALJ admitted Plaintiff’s right elbow flexion contracture is
severe,

and

that

Plaintiff’s

orthopedic

specialist

Dr.

Cross

documented the fact that Plaintiff is unable to fully bend or
extend his arm, and that Plaintiff has significant pain in his
right elbow (Id.).

The Magistrate Judge recommended the services

of a medical advisor should be obtained on remand in order to
reevaluate whether Plaintiff’s impairments are disabling (Id.).
In conclusion, the Magistrate Judge found that for all of
the above reasons this matter should be remanded pursuant to
sentence

four

for

further

proceedings

(Id.).

She

therefore

recommended the Court reverse the ALJ consistent with her opinion
(Id.).
III.

The Parties’ Responses
Defendant objected to the Magistrate Judge’s Report and

Recommendation, contending the ALJ properly evaluated the evidence
and substantial evidence supports a finding of non-disability (doc.
17).

Defendant contends the Magistrate Judge failed to consider

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the entire record showing the ALJ considered the treating physician
Dr. Cheng’s opinion at Step Three, even if the ALJ did not consider
such

opinion

in

his

Step

Five

analysis

(Id.).

Defendant

specifically argues the ALJ properly gave little weight to the Dr.
Cheng’s opinion in favor of the opinions of several other mental
health professionals, and that Dr. Cheng’s opinion of severe
limitations

was

evaluation (Id.).

actually

inconsistent

with

Dr.

Cheng’s

own

Defendant notes that Plaintiff’s borderline

intellectual functioning did not preclude him from working a
variety

of

previous

disability onset (Id.).

jobs,

including

work

after

his

alleged

Defendant contends the Magistrate Judge’s

recommended remand for further fact-finding as to Plaintiff’s elbow
impairment is not necessary, as there are two medical opinions in
the record already about Plaintiff’s physical limiations (Id.).
Plaintiff responds by noting the Magistrate Judge clearly
addressed that the ALJ considered Dr. Cheng’s opinion at Step
Three, but found the ALJ failed to provide discussion of such
opinion in his RFC analysis (doc. 18).

Plaintiff contends the

Magistrate Judge, in relying on Wilson v. Comm’r of Soc. Sec., 378
F.3d 541, 544-46 (6th Cir. 2004), properly concluded the ALJ failed
to articulate with specificity the reasons for the weight accorded
to Dr. Cheng’s opinion (Id.).

Plaintiff contends Dr. Cheng’s

opinion was not internally inconsistent because the combination of
so many “moderate” limitations can create a “serious” limitation

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overall (Id.).

Moreover, Plaintiff argues his work history shows

he can perform competitive work for short periods but he cannot
sustain competitive work (Id.).

As for Plaintiff’s cognitive

impairment, the Magistrate Judge noted the ALJ failed to account
for Plaintiff’s limited ability to read or for Plaintiff’s memory
problems (Id.).

And finally, as for Plaintiff’s flexion problems,

Plaintiff contends the ALJ’s limitation to medium exertion is
legally insufficient (Id.).

Plaintiff contends Defendant fails to

consider that the two medical opinions regarding his physical
limiations did not properly address this issue of his right elbow
(Id.).

The Magistrate Judge pointed out that Plaintiff has a

contracture of thirty degrees in either direction (extending or
flexing) in his right elbow, that requires evaluation as to the
functional impact on Plaintiff’s ability to reach and handle very
large

objects

(Id.).

Plaintiff

contends

this

is

a

logical

recommendation given that remand is ordered anyway and because
common sense makes it clear that neither reviewing physician
opinion properly addressed such impairment (Id.).
IV.

Discussion
The Court, having reviewed this matter de novo pursuant

to 28 U.S.C. §636(b) finds the Magistrate Judge’s Report and
Recommendation well-reasoned, thorough, and correct.
finds

the

ALJ’s

non-disability

substantial evidence.

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determination

The Court

unsupported

by

The Court agrees with Plaintiff that the ALJ failed to
properly weigh the opinion of the treating physician, Dr. Cheng,
and that Dr. Cheng’s opinion, taken in its entirety, is not
internally inconsistent.

Wilson, 378 F.3d 541, 544-46 (6th Cir.

2004). The Court further agrees that Dr. Cheng’s opinion should be
evaluated when considering Plaintiff’s RFC.

Finally, the Court

agrees that upon remand, a further evaluation of Plaintiff’s elbow
impairment by a medical advisor will ensure a complete record.

A

sentence four remand is appropriate as all factual issues have not
been resolved and the current record does not establish Plaintiff’s
entitlement to benefits as of his alleged onset date.

Faucher v.

Secretary of Health and Human Services, 17 F.3d 171, 176 (6th Cir.
1994).
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.

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

Cir. 1981).
Accordingly, having reviewed this matter de novo pursuant
to 28 U.S.C. §636(b), the Court ADOPTS the Magistrate Judge’s
Report and Recommendation in its entirety (doc. 16), REVERSES the
decision

of

the

Commissioner

to

deny

Plaintiff

DIB

and

SSI

benefits, and REMANDS this matter under sentence four of 42 U.S.C.
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§

405(g)

consistent

Recommendation.

with

the

Magistrate

Judge’s

Report

and

This case is CLOSED on the Court’s docket.

SO ORDERED.
Dated: September 18, 2013

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

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