Donges v. Commissioner of Social Security

Filing 18

REPORT AND RECOMMENDATION that the decision of the Commissioner be Reversed and Remanded for an award of benefits pursuant to Sentence Fourt of 42 USC 405(g). Objections to R&R due by 7/8/2013. Signed by Magistrate Judge Karen L. Litkovitz on 6/19/2013. (art)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
KAREN DONGES,
Plaintiff,

Case No. 1:12-cv-314
Dlott, J.
Litkovitz, M.J.

vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

REPORT AND
RECOMMENDATION

Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final
decision of the Commissioner of Social Security (Commissioner) denying plaintiffs application
for disability insurance benefits (DIB). This matter is before the Court on plaintiffs Statement
of Errors (Doc. 11), the Commissioner's response in opposition (Doc. 16), and plaintiffs reply
memorandum. (Doc. 17).

I. Procedural Background
Plaintiff filed an application for DIB in June 2008, alleging disability since April 11,
2007, due to fatigue, back pain, Epstein-Barr virus, and depression. Plaintiffs application was
denied initially and upon reconsideration. Plaintiff, through counsel, requested and was granted
a de novo hearing before administrative law judge (ALJ) Gregory G. Kenyon. Plaintiff and a
vocational expert (VE) appeared and testified at the ALJ hearing. On November 22,2010, the
ALJ issued a decision denying plaintiffs DIB application. Plaintiffs request for review by the
Appeals Council was denied, making the decision of the ALJ the final administrative decision of
the Commissioner.

II. Analysis
A. Legal Framework for Disability Determinations
To qualify for disability benefits, a claimant must suffer from a medically determinable
physical or mental impairment that can be expected to result in death or that has lasted or can be
expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 423(d)(1)(A).
The impairment must render the claimant unable to engage in the work previously performed or
in any other substantial gainful employment that exists in the national economy. 42 U.S.C. §
423(d)(2).
Regulations promulgated by the Commissioner establish a five-step sequential evaluation
process for disability determinations:
1) lfthe claimant is doing substantial gainful activity, the claimant is not disabled.
2) If the claimant does not have a severe medically determinable physical or
mental impairment - i.e., an impairment that significantly limits his or her
physical or mental ability to do basic work activities - the claimant is not
disabled.
3) If the claimant has a severe impairment( s) that meets or equals one of the
listings in Appendix 1 to Subpart P of the regulations and meets the duration
requirement, the claimant is disabled.
4) If the claimant's impairment does not prevent him or her from doing his or her
past relevant work, the claimant is not disabled.
5) If the claimant can make an adjustment to other work, the claimant is not
disabled. If the claimant cannot make an adjustment to other work, the claimant
is disabled.
Rabbers v. Comm'r ofSoc. Sec'y, 582 F.3d 647,652 (6th Cir. 2009) (citing§§ 404.1520(a)
(4)(i)-(v), 404.1520(b)-(g)). The claimant has the burden of proof at the first four steps ofthe
sequential evaluation process. Id.; Wilson v. Comm 'r ofSoc. Sec 'y, 378 F.3d 541, 548 (6th Cir.
2

2004). Once the claimant establishes a prima facie case by showing an inability to perform the
relevant previous employment, the burden shifts to the Commissioner to show that the claimant
can perform other substantial gainful employment and that such employment exists in the
national economy. Rabbers, 582 F.3d at 652; Harmon v. Apftl, 168 F.3d 289, 291 (6th Cir.
1999).

B.

The Administrative Law Judge's Findings

The ALJ applied the sequential evaluation process and made the following findings of
fact and conclusions of law:
1. The [plaintiff] meets the insured status requirements of the Social Security Act
through December 31,2012.
2. The [plaintiff] has not engaged in substantial gainful activity since April 11,
2007, the alleged onset date (20 C.F.R. 404.1571 et seq.).
3. The [plaintiff] has the following severe impairments: fibromyalgia, mild lumbar
degenerative disc disease, cervical degenerative disc disease, Epstein-Barr virus,
asthma, depression, and anxiety (20 CFR 404.1520(c)).
4. The [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 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the [ALJ] finds that the
[plaintiff] has the residual functional capacity to perform sedentary work as
defined in 20 CFR 404.1567(a) with the following limitations: she can
occasionally crouch, crawl, stoop, kneel, and climb ramps and stairs. She can
never climb ladders, ropes, or scaffolds. She can never work around hazards,
such as unprotected heights or dangerous machinery, and she can have no
concentrated exposure to temperature extremes, or pulmonary irritants, such as
smoke, dust, fumes, noxious gasses or odors, or poorly ventilated areas.
Mentally, she is limited to simple, repetitive tasks. She can have only occasional
contact with coworkers and supervisors, and no contact with the general public.
She cannot engage in rapid production pace work and she is limited to jobs
involving very little, if any, adaptation to change.

3

6. The [plaintiff]
404.1565).

IS

unable to perform any past relevant work

1

(20 CFR

7. The [plaintiff] was born [in] ... 1971 and was 35 years old, which is defined as
a younger individual age 18-44 on the alleged disability onset date (20 CFR
404.1563).
8. The [plaintiff] has at least a high school education and is able to communicate
in English (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a finding
that the [plaintiff] is "not disabled," whether or not the [plaintiff] has transferable
job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the [plaintift]'s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the national
economy that the [plaintiff] can perform (20 CFR 404.1569 and 404.1569(a))_2
11. The [plaintiff] has not been under a disability, as defined in the Social Security
Act, from April11, 2007, through the date of this decision (20 CFR 404.1520(g)).
(Tr. 14-21).
C. Judicial Standard of Review
Judicial review of the Commissioner's determination is limited in scope by 42 U.S.C. §
405(g) and involves a twofold inquiry: (1) whether the findings of the ALJ are supported by
substantial evidence, and (2) whether the ALJ applied the correct legal standards. See Blakley v.

Comm 'r ofSoc. Sec y, 581 F.3d 399, 406 (6th Cir. 2009); see also Bowen v. Comm 'r ofSoc.
Secy, 478 F.3d 742, 745-46 (6th Cir. 2007).

1

Plaintiff has past relevant work as a consultant, employee development manager, human resource advisor, and
college instructor. (Tr. 20, 159, 170, 264).
2

The ALJ relied on the VE's testimony to find that plaintiff would be able to perform 1,152 unskilled, sedentary jobs
in the regional economy, citing as examples of such jobs a courier/messenger, document preparer or hand packager.
(Tr. 21, 56-57).

4

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The Commissioner's findings must stand if they are supported by "such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales,
402 U.S. 389,401 (1971) (citing Consolidated Edison Co. v. NL.R.B., 305 U.S. 197,229
(1938)). Substantial evidence consists of "more than a scintilla of evidence but less than a
preponderance .... " Rogers v. Comm'r ofSoc. Sec'y, 486 F.3d 234,241 (6th Cir. 2007). In
deciding whether the Commissioner's findings are supported by substantial evidence, the Court
considers the record as a whole. Hephner v. Mathews, 574 F.2d 359 (6th Cir. 1978).
The Court must also determine whether the ALJ applied the correct legal standards in the
disability determination. Even if substantial evidence supports the ALJ's conclusion that the
plaintiff is not disabled, "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, 582 F.3d at 651 (quoting Bowen, 478 F.3d at 746).

See also Wilson, 378 F.3d at 545-46 (reversal required even though ALJ' s decision was
otherwise supported by substantial evidence where ALJ failed to give good reasons for not giving
weight to treating physician's opinion, thereby violating the agency's own regulations).

D. Specific Errors
On appeal, plaintiff argues that: (1) the ALJ failed to give weight and deference to the
opinions of plaintiffs treating physician, Dr. Nadal; (2) the ALJ failed to properly consider all of
plaintiffs physical and psychological impairments and the combined impact thereof; and (3) the
ALJ erred in assessing plaintiffs pain, credibility, and subjective complaints.

5

1. The ALJ's decision to afford Dr. Nadal's opinion "little weight" is not supported
by substantial evidence and should be reversed.
It is well-established that the findings and opinions of treating physicians are entitled to
substantial weight. "In general, the opinions of treating physicians are accorded greater weight
than those of physicians who examine claimants only once." Walters v. Comm 'r ofSoc. Sec y,
127 F.3d 525, 530-31 (6th Cir. 1997). See also Harris v. Heckler, 756 F.2d 431,435 (6th Cir.
1985) ("The medical opinions and diagnoses of treating physicians are generally accorded
substantial deference, and if the opinions are uncontradicted, complete deference."). "The
treating physician doctrine is based on the assumption that a medical professional who has dealt
with a claimant and his maladies over a long period of time will have a deeper insight into the
medical condition of the claimant than will a person who has examined a claimant but once, or
who has only seen the claimant's medical records." Barker v. Shalala, 40 F.3d 789, 794 (6th
Cir. 1994).
"Treating-source opinions must be given 'controlling weight' if two conditions are met:
(1) the opinion 'is well-supported by medically acceptable clinical and laboratory diagnostic
techniques'; and (2) the opinion 'is not inconsistent with the other substantial evidence in [the]
case record."' Gayheartv. Comm'r ofSoc. Secy, 710 F.3d 365,376 (6th Cir. 2013) (citing 20
C.F.R. § 404.1527(c)(2)). See also Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011). Ifthe
ALJ declines to give a treating source's opinion controlling weight, the ALJ must balance the
factors set forth in 20 C.F .R. § 404.1527(c)(2)-( 6) in determining what weight to give the
opinion. See Gayheart, 710 F.3d at 376; Wilson, 378 F.3d at 544. These factors include the
length, nature and extent of the treatment relationship and the frequency of examination. 20
C.F.R. § 404.1527(c)(2)(i)(ii); Wilson, 378 F.3d at 544. In addition, the ALJ must consider the
6

medical specialty of the source, how well-supported by evidence the opinion is, how consistent
the opinion is with the record as a whole, and other factors which tend to support or contradict
the opinion. 20 C.F.R. § 404.1527(c)(3)-(6); Gayheart, 710 F.3d at 376; Wilson, 378 F.3d at
544.
"Importantly, the Commissioner imposes on its decision makers a clear duty to 'always
give good reasons in [the] notice of determination or decision for the weight [given a] treating
source's opinion."' Cole, 661 F.3d at 937 (citing former 20 C.F.R. § 404.1527(d)(2i). Those
reasons must be "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 treating source's
medical opinion and the reasons for that weight." !d. (citing SSR 96-2p).
Plaintiff asserts the ALJ erred in weighing the medical opinion of Dr. Fara Nadal,
plaintiffs treating physician from November 5, 2005 through June 23, 2008. Dr. Nadal opined
that plaintiff could frequently lift and carry up to ten pounds; could occasionally lift and carry up
to twenty pounds; could occasionally climb, twist, bend, stoop and reach above shoulder level;
but could not sit for more than two hours in an eight-hour workday, and could not stand or walk
for more than one hour in an eight-hour workday. (Tr. 633-34). The ALJ gave Dr. Nadal's
opinion "some weight," and reduced plaintiffs RFC from light- as a more recent state agency
physician had assessed (Tr. 623-30)- to sedentary. (Tr. 19). However, the ALJ gave "little
weight" to Dr. Nadal's assessment to the extent that Dr. Nadal opined that plaintiff"could not do
sedentary work. ... " (Tr. 19). The ALJ enumerated the following reasons for his decision:
First, the undersigned notes that the [plaintiffs] most significant musculoskeletal
problem is her cervical degenerative disc disease. Although the annular tearing
3

Title 20 C.F.R. § 404.1527 was amended effective March 26, 2012. The provision governing the weight to be
afforded a medical opinion that was previously found at § 404.1527( d) is now found at § 404.1527( c).

7

may limit her to lifting consistent with sedentary level work, it does not
significantly diminish her ability to stand/walk or sit as Dr. Nadal suggests.
Second, the [plaintiffs] documented level of treatment is not consistent with total
disability. As discussed above, she has received entirely conservative measures
for her complaints of neck and other diffuse musculoskeletal pain. Third, Dr.
Nadal's assessment indicates that all objective data in this case has been negative
except for the elevated Epstein Barr titer (!d. at 1 ). By itself, however, Epstein
Barr titer does not justify a less than sedentary RFC assessment.
(Tr. 19).
The ALJ's decision giving little weight to the opinion of Dr. Nadal is not supported by
substantial evidence and his justifications are not "good reasons" under Sixth Circuit precedent
for discounting Dr. Nadal's opinion. First, the ALJ stated the "annular tearing" associated with
plaintiffs cervical disc disease (Tr. 561) does not significantly limit plaintiffs ability to stand,
walk or sit. (Tr. 19). The ALJ failed to cite any medical evidence in support of his decision to
discount Dr. Nadal's opinion based on plaintiffs cervical disc disease, and the ALJ's stated
reason appears to be based on his own lay opinion of the evidence. More importantly, the ALJ's
stated reason ignores the primary basis for Dr. Nadal's opinion: chronic fatigue. (Tr. 633). Dr.
Nadal identified "chronic fatigue" as the primary diagnosis that prevents plaintiff from working
(Tr. 633) and noted that plaintiff experienced "constant severe fatigue." (Tr. 634). Dr. Nadal
reported that plaintiffs secondary diagnoses included chronic back pain and depression, noting
plaintiff suffered constant upper back pain and chronic low mood and insomnia. !d. Dr. Nadal
did not release plaintiff for return to work because of her inability to sustain prolonged standing,
walking and sitting, and she limited plaintiffs exposure to stressful situations. (Tr. 634).
The chronic fatigue identified by Dr. Nadal -the primary basis for her opinion- is amply
supported by Dr. Nadal's records and is consistent with the other substantial evidence of record.
Throughout Dr. Nadal's nearly three-year treatment of plaintiff, during which she examined
8

plaintiff on at least 21 occasions, Dr. Nadal noted plaintiffs persistent symptoms of chronic
fatigue, insomnia, exhaustion, depression, anxiety, back pain and spasms, and fibromyalgia.
(Tr. 445-467, 632). The treatment records of treating and examining physicians subsequent to
Dr. Nadal confirm plaintiff continued to suffer from chronic fatigue syndrome, chronic
Epstein-Barr virus (EBV) infection4 , sleep apnea, fibromyalgia, depression, and myofascial pain
involving the thoracic and lumbar musculature on an ongoing basis. (Tr. 368-87, 427, 439,
645-654; 747-756). Instead of addressing the consistency of this evidence with Dr. Nadal's
opinion regarding chronic fatigue syndrome and plaintiffs attendant limitations, the ALJ focused
on a single clinical finding unrelated to plaintiffs chronic fatigue. The ALJ' s reasoning in this
regard does not provide good support for discounting Dr. Nadal's opinion.
Second, the ALJ cited to the lack of"objective data" except for the elevated Epstein-Barr
titer (Tr. 19) as a reason to discount Dr. Nadal's opinion. The ALI's rationale is unsupported for
several reasons. It is undisputed that plaintiffs chronic fatigue is associated with her elevated
EBV titer. Dr. Nadal's report and treatment records reflect the association between plaintiffs
chronic fatigue and elevated EBV (Tr. 633, 450, 455) and the ALJ himself acknowledged that
plaintiff experiences fatigue or malaise from her positive EBV titer. (Tr. 18). However, the
ALJ concluded that plaintiffs fatigue and malaise are "certainly more than adequately
accommodated by sedentary level limitations" (Tr. 18) and that the Epstein-Barr titer "by itself'
does not justify a less than sedentary RFC. (Tr. 19). Yet, the evidentiary basis for the ALI's
conclusion is not at all clear. The ALJ cited no medical evidence supporting his conclusion

4

"Due to the close association and suspected causal relationship between the chronic Epstein-Barr virus and chronic
fatigue syndrome, the two are sometimes referred to synonymously." Cohen v. Sec y ofHHS, 964 F.2d 524, 529
(6th Cir. 1992).

9

about the relationship between plaintiffs fatigue, malaise, and EBV titer and her functional
capacity. Cole, 661 F.3d at 937 (ALJ's reasons must be "supported by the evidence in the case
record").
In addition, Dr. Nadal's findings of chronic fatigue and attendant limitations are
consistent with plaintiffs diagnosis of fibromyalgia, for which she received treatment by Dr.
Nadal and her subsequent medical providers. By focusing on the lack of objective medical data
in assessing the weight to the treating physician and, by extension, plaintiffs RFC, the ALJ
failed to evaluate plaintiffs fibromyalgia in accordance with Sixth Circuit precedent.
Fibromyalgia is a condition that "causes severe musculoskeletal pain which is
accompanied by stiffness andfatigue due to sleep disturbances." Preston v. Sec'y HHS, 854
F.2d 815, 817-820 (6th Cir. 1988) (emphasis added). 5 In the context of social security disability
cases, fibromyalgia presents particularly challenging issues in determining credibility, RFC, and
disability because its symptoms are entirely subjective. See Rogers, 486 F.3d at 243 n. 3.
Similar to chronic fatigue syndrome, Cohen v. Sec 'y of HHS, 964 F.2d 524, 529 (6th Cir. 1992),
fibromyalgia is not amenable to objective diagnosis and standard clinical tests are "not highly
relevant" in diagnosing or assessing fibromyalgia or its severity. Preston, 854 F.2d at 820. See
also Rogers, 486 F.3d at 243-44 ("in light of the unique evidentiary difficulties associated with

the diagnosis and treatment of fibromyalgia, opinions that focus solely upon objective evidence
are not particularly relevant"); Swain v. Comm 'r ofSoc. Sec 'y, 297 F. Supp.2d 986, 990 (N.D.
Ohio 2003) ("[f]ibromyalgia is an 'elusive' and 'mysterious' disease. It has no known cause and

5

1n Preston, the term "fibrositis" was used instead of"fibromyalgia." Currently, the preferred term is fibromyalgia,
rather than the older terms fibrositis and fibromyositis. See Merck Manual Online, http://www.merckmanuals.com/
home/bone joint_and_muscle_disorders/muscle_bursa_and_tendon_disorders/fibromyalgia.html?qt=fibromyalgia&
alt=sh (last visited June 17, 2013).

10

no known cure. Its symptoms include severe musculoskeletal pain, stiffness, fatigue, and
multiple acute tender spots at various fixed locations on the body.") (footnotes and citations
omitted). As the Preston Court explained:
[F]ibrositis [the term previously used for fibromyalgia] causes severe
musculoskeletal pain which is accompanied by stiffness and fatigue due to sleep
disturbances. In stark contrast to the unremitting pain of which fibrositis patients
complain, physical examinations will usually yield normal results-a full range of
motion, no joint swelling, as well as normal muscle strength and neurological
reactions. There are no objective tests which can conclusively confirm the
disease; rather it is a process of diagnosis by exclusion and testing of certain
'focal tender points' on the body for acute tenderness which is characteristic in
fibrositis patients. The medical literature also indicates that fibrositis patients
may also have psychological disorders. The disease commonly strikes between
the ages of 3 5 and 60 and affects women nine times more than men.
854 F.2d at 817-18. In accord Rogers, 486 F.3d at 244.
It is undisputed that plaintiff suffers from fibromyalgia. The ALJ made a factual finding
at Step 2 of the sequential evaluation process that plaintiff's fibromyalgia is a severe impairment
under the Social Security regulations. (Tr. 14, Finding# 3, citing 20 C.F.R. § 404.1520(c)).
Once the ALJ made a factual finding that plaintiff suffers from the severe impairment of
fibromyalgia, it was incumbent upon the ALJ to apply the correct legal standard for evaluating
this impairment and to not discount the opinion of plaintiff's treating physician based on the lack
of "objective" evidence. Dr. Nadal's progress notes document consistent complaints of pain,
achiness, sleep problems, chronic fatigue and depression, and tenderness in the lumbar and
cervical spine- all classic symptoms associated with fibromyalgia. (Tr. 445-467). See
Rogers, 486 F.3d at 244; Preston, 854 F.2d at 820. The evidence from plaintiff's other treating

and examining physicians is likewise consistent for fibromyalgia, chronic fatigue, and diffuse
pain. See Tr. 368-378 (1/08-2/08: Dr. Hofmann, pain rehabilitation specialist, diagnosed

11

chronic fatigue syndrome and chronic pain syndrome, noting an inability to participate in
full-time pain program due to excessive fatigue); Tr. 419-424 (4/08-6/08: Dr. Dewey,
neurologist, noted normal neurological exam and suspected symptoms of memory loss and poor
concentration were related to depression and chronic fatigue syndrome); Tr. 645-654
(10/08-2/09: Fairfield Primary Care assessed fibromyalgia, sleep apnea, chronic fatigue
syndrome, depression, chronic EBV infection); Tr. 715 (3/09: Dr. Simpson diagnosed chronic
fatigue syndrome and noted likely fibromyalgia); Tr. 797-802 (7/09-10/09: Dr. Schertzinger
diagnosed myofascial pain syndrome, fibromyalgia, chronic fatigue syndrome); Tr. 747-56
(3/10-9/10: Dr. Maxwell diagnosed fibromyalgia and complaints of fatigue). The ALI's reliance
on the lack of"objective" evidence to discount Dr. Nadal's functional capacity assessment is
inconsistent with plaintiffs diagnosis of fibromyalgia, as well as her chronic fatigue syndrome.
Rogers, 486 F.3d at 243. The ALJ's decision in this regard is not supported by substantial
evidence.
Third, the ALJ discounted Dr. Nadal's opinion because he believed that plaintiffs level
of treatment was not consistent with "total disability," noting she received "conservative"
treatment for her neck and musculoskeletal pain. (Tr. 19). The ALJ stated that plaintiff
underwent physical therapy, massage, pain medications, and use of a TENS unit, but there was
no indication of "a need for surgical intervention, epidural injections, or other more aggressive
measures." !d. The ALI's decision implies that in the absence of surgery or more aggressive
forms of treatment such as surgery, Dr. Nadal's opinion is not supported. Again, the reason
posited by the ALJ ignores the primary basis for Dr. Nadal's functional assessment- chronic
fatigue. Nor is it apparent that more aggressive modes of treatment, such as surgery, would be

12

appropriate to treat plaintiffs chronic fatigue, chronic back pain/fibromyalgia, and depression.
The record shows that throughout the three years (and documented twenty-one visits) that Dr.
Nadal treated plaintiff for persistent symptoms of chronic fatigue, insomnia, exhaustion,
depression, anxiety, back pain and spasms, and fibromyalgia, she frequently adjusted plaintiffs
pain and depression medications, prescribed a TENS unit, and referred plaintiff to physical
therapy, a pain rehabilitation program, and psychotherapy in an attempt to treat plaintiffs pain,
chronic fatigue syndrome, and depression. There is no indication in the record that more
aggressive forms of treatment existed for these conditions in addition to the ones plaintiff was
already prescribed. Under the circumstances, the ALJ's stated reason for discounting Dr.
Nadal's opinion is without substantial support in the record.
Finally, there is no indication in the ALJ's decision that he considered the§ 404.1527(c)
factors when weighing Dr. Nadal's opinion. Under the Social Security regulations, when the
ALJ declines to give controlling weight to a treating physician's assessment, "the ALJ must still
determine how much weight is appropriate by considering a number of factors, including the
length of 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. The ALJ's
failure to consider the regulatory factors is particularly troubling here in light of Dr. Nadal's
lengthy treatment relationship with plaintiff, number and frequency of examinations, and
consistency of her opinion with the other record evidence.
The ALJ's reasons for discounting Dr. Nadal's functional capacity assessment and
for affording Dr. Nadal's opinion "little weight" lack substantial evidentiary support.

13

The evidence relied on by the ALJ does not demonstrate that the treating physician's
functional limitations were inconsistent with the substantial evidence of record or that Dr.
Nadal's opinion was unsupported. The ALJ failed to consider the length of treatment
and supportability of Dr. Nadal's opinion in assessing the weight to give her opinion. In
this case, Dr. Nadal's assessment that plaintiffs has the functional capacity for less than
sedentary work is based on a well-documented and lengthy treatment history, and was not
contradicted by any substantial evidence to the contrary. Based on the foregoing, the
undersigned finds the ALJ erred in rejecting the treating physician's opinion. The ALJ's
decision is not supported by substantial evidence and should be reversed. 6

2. This matter should be reversed and remanded for an award of benefits.
This matter should be remanded for an award ofbenefits. "[A]ll essential factual
issues have been resolved and the record adequately establishes ... plaintiffs entitlement
to benefits." Faucherv. Sec'yofHHS, 17F.3d 171, 176(6thCir.1994). See also
Abbott v. Sullivan, 905 F.2d 918, 927 (6th Cir. 1990); Varley v. Sec 'y of HHS, 820 F.2d

777, 782 (6th Cir. 1987). Based on the residual functional capacity assessment of Dr.
Nadal, plaintiffwould be unable to perform even a limited range of sedentary work for a
full 8-hour workday. Dr. Nadal assessed that plaintiff was not capable of sitting,
standing and walking in combination for a total of at least eight hours in a work-day.
This would preclude plaintiff from performing work on a "regular and continuing" basis
for a 40-hour work week as required by Social Security Ruling 96-8p. The medical
evidence subsequent to Dr. Nadal's functional capacity assessment consistently shows

6

In view of the above analysis, the Court need not reach the other assignments of error raised by plaintiff.

14

plaintiff continued to suffer from and was substantially limited by persistent and chronic
fatigue and pain. 7 Thus, the proof of disability is strong and opposing evidence is
lacking in substance. A remand in this matter would merely involve the presentation of
cumulative evidence and would serve no useful purpose. Faucher, 17 F.3d at 176. See
also Felisky v. Bowen, 35 F.3d 1027, 1041 (6th Cir. 1994); Mowery v. Heckler, 771 F.2d

966, 973 (6th Cir. 1985). Accordingly, this matter should be remanded for an award of
benefits.
IT IS THEREFORE RECOMMENDED THAT:
The decision of the Commissioner be REVERSED and REMANDED for an award of
benefits pursuant to Sentence Four of 42 U.S.C. § 405(g).

~£,/~

Karen L. Litkovitz
United States Magistrate Judge

7

The only other RFC assessments in the record are from the state agency non-examining physicians, who opined that
plaintiff could perform "medium" and "light" work, but these were rejected by the ALJ who determined plaintiff
could perform only a "limited range of sedentary work." {Tr. 19).

15

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

KAREN DONGES,
Plaintiff,

Case No. 1: 12-cv-314
Dlott, J.
Litkovitz, M.J.

vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

NOTICE TO THE PARTIES REGARDING THE FILING OF OBJECTIONS TO R&R
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the
Report and Recommendation is based in whole or in part upon matters occurring on the record at
an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or
such portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless
the assigned District Judge otherwise directs. A party may respond to another party's objections
WITHIN 14 DAYS after being served with a copy thereof. 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).

16