Davis v. Commissioner of Social Security

Filing 15

ORDER adopting Report and Recommendation 13 . Plaintiffs objections are SUSTAINED IN PART AND OVERRULED IN PART. The Court does not adopt the Report and Recommendation to the extent that the Mag. Judge concluded the ALJs assessment of Plaintiffs credibility was supported by substantial evidence. The Court adopts the remainder of the Report and Recommendation. The decision of the ALJ finding that Plaintiff is not disabled under the Social Security regulations is REVERSED. This case is REMANDED to the ALJ. Signed by Judge Sandra S Beckwith on 9/2/15. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Betty Davis,
Plaintiff,
vs.
Carolyn W. Colvin, Acting
Commissioner of Social Security,
Defendant.

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ORDER

This matter is before the Court on Magistrate Judge Bowman’s Report and
Recommendation of July 28, 2015 (Doc. No. 13) and Plaintiff Betty Davis’s objections to
the Report and Recommendation (Doc. No. 14). In her Report and Recommendation,
Magistrate Judge Bowman concluded that the Administrative Law Judge’s (“ALJ”)
determination that Plaintiff is not disabled under the Social Security regulations was
supported by substantial evidence. Judge Bowman, therefore, recommended that the
ALJ’s decision be affirmed. Plaintiff objects to the Report and Recommendation. For the
reasons that follow, Plaintiff’s objections to Judge Bowman’s Report and Recommendation
are SUSTAINED IN PART AND OVERRULED IN PART. The Court does not adopt the
Report and Recommendation to the extent that Judge Bowman concluded that the ALJ’s
assessment of Plaintiff’s credibility was supported by substantial evidence. The Court
adopts the remainder of the Report and Recommendation. Nevertheless, the decision of
the ALJ finding that Plaintiff is not disabled under the Social Security regulations is

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REVERSED. This case is REMANDED to the ALJ pursuant to Sentence Four of 42 U.S.C.
§ 405(g) for further proceedings consistent with this order.
I. Background
Plaintiff Betty Davis filed a claim for disability insurance benefits and supplemental
security income based on impairments of, inter alia, fibromyalgia, degenerative joint
disease of the left knee, depression, migraine headaches, low back pain, and anxiety.
Plaintiff’s claim was denied initially and upon reconsideration. She requested and received
an evidentiary hearing before an ALJ, which took place on November 6, 2012.
Proceeding through the five-step disability evaluation process, the ALJ found that
Plaintiff has not engaged in substantial gainful activity since January 9, 2008, which is the
alleged onset date of disability. The ALJ next found that Plaintiff has “severe” impairments
of fibromyalgia, degenerative joint disease of the left knee, and depression. The ALJ
concluded, however, that Plaintiff’s migraine headaches, low back pain, and anxiety are
“non-severe” impairments. The ALJ next determined that none of Plaintiff’s impairments
or combination of impairments meets or equals a listed impairment. The ALJ then found
that Plaintiff has the residual functional capacity (“RFC”) to perform a limited range of light
work. The ALJ limited the range of light work to jobs that require only occasional climbing,
kneeling, crouching, and crawling and only require the performance of simple, routine
tasks. The ALJ found that this RFC would not permit Plaintiff to perform her past relevant
work as a stocker, waitress, restaurant cook, prep cook, nursing home cook, customer
service representative, or machine operator/packager. However, based on the testimony
of the vocational expert, the ALJ concluded that this RFC permits Plaintiff to perform a
number of light and sedentary jobs, including small parts assembler, small products
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assembler, checker, document preparer, callout operator, and hand mounter. Because
those jobs exist in significant numbers in the national economy, the ALJ concluded that
Plaintiff is not disabled according to the Social Security regulations.
In developing Plaintiff’s physical RFC, the ALJ gave “little weight” to the opinion of
one of Plaintiff’s treating physicians, Dr. Armentrout. Dr. Armentrout provide two RFC
opinions, both of which indicated that Plaintiff has significant restrictions in her ability to sit
and stand due to fibromyalgia. The ALJ concluded, however, that Dr. Armentrout failed to
support his opinions with any relevant evidence and that they in fact contradicted each
other. The ALJ also found that Dr. Armentrout’s opinions were not supported by his
treatment notes. The ALJ noted also that Dr. Kejriwal provided an opinion after a recent
examination indicating that Plaintiff has no restrictions at all in standing, sitting, lifting or
carrying due to fibromyalgia. Instead, the ALJ gave “great weight” to the opinions of state
agency medical consultants who reported that Plaintiff has the physical RFC to perform a
limited range of light work.
In developing Plaintiff’s mental RFC, the ALJ gave “little weight” to the opinion of
Plaintiff’s treating psychologist, Dr. Ramirez. Dr. Ramirez provided an opinion indicating
that Plaintiff has marked limitations in activities of daily living, maintaining social functioning,
and concentration, persistence, and pace, and ability to complete a normal workday. The
ALJ determined that Dr. Ramirez’s opinion was not supported by his treatment notes or
other medical evidence. Instead, the ALJ gave “great weight” to the opinion of Dr.
Johnson, a state agency examining psychologist. Dr. Johnson performed a psychological
examination of Plaintiff and provided a report stating that Plaintiff has only moderate mental
limitations affecting her ability to work.
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Finally, the ALJ significantly discounted Plaintiff’s subjective complaints about the
limitations imposed by her impairments. During the evidentiary hearing, Plaintiff indicated
that the pain caused by her impairments renders her incapable of most activities, and that
she spends most of the day alternating between sitting and lying down. The ALJ, however,
gave several grounds for finding that Plaintiff was not credible about the functional
limitations imposed by the pain from her impairments. First, the ALJ cited two emergency
room visits in which Plaintiff reported engaging in activities inconsistent with her claimed
inability to engage in almost all activities. Second, the ALJ cited Plaintiff’s failure to follow
an exercise program as recommended by her physicians to alleviate her fibromyalgia
symptoms. The ALJ stated that Plaintiff’s failure to exercise as recommended showed an
unwillingness to do what is necessary to improve her condition as well as indicating that her
symptoms are not as severe as claimed. Third, the ALJ cited the fact that the Plaintiff only
infrequently and/or inconsistently sought treatment for her pain was inconsistent with her
claim of disabling pain. Fourth, the ALJ took issue with the fact that Plaintiff’s treating
physicians continued to prescribe narcotic pain relievers, such as Vicodin and Percocet,
to treat her symptoms because that these medications did not “appear to be consistent for
treatment of fibromyalgia[.]” Tr. 24. The ALJ also noted that Plaintiff had not returned to
a rheumatologist for treatment and that an emergency room note stated that Plaintiff was
taking Vicodin too often to control her pain and that she should discontinue it. The ALJ also
stated that Plaintiff’s claim that medication does not control her pain was inconsistent with
her reported activities. Finally, the ALJ noted that her treatment providers more often
focused on ailments other than her knee or fibromyalgia pain.

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As stated, the ALJ ultimately concluded that Plaintiff is not disabled under the Social
Security regulations. After the evidentiary hearing concluded, Plaintiff submitted new
evidence to the Appeals Council indicating that she has occipital neuralgia and white matter
disease and an opinion from a new treating physician stating that the white matter disease
could be causing her migraine headaches.

Nevertheless, the Appeals Council denied

Plaintiff’s request for review of the ALJ’s decision, making the ALJ’s decision the final
decision of the Commissioner of Social Security.
Plaintiff then filed a timely complaint for judicial review of the ALJ’s decision. She
raised three specific assignments of error. First, Plaintiff alleged that the ALJ erred by not
finding that her migraine headaches, low back pain, and anxiety constitute “severe”
impairments. Second, Plaintiff alleged that the ALJ erred by not assigning controlling
weight to the opinions of her treating physicians, in particular the opinions of Dr. Armentrout
and Dr. Ramirez. Third, Plaintiff alleged that the ALJ erred in assessing her credibility.
Magistrate Judge Bowman’s Report and Recommendation concluded that the ALJ’s
decision denying Plaintiff’s claim for Social Security disability benefits was supported by
substantial evidence and should be affirmed by the Court. As to Plaintiff’s first assignment
of error, Judge Bowman determined that the ALJ’s decision finding that her migraine
headaches, low back pain, and anxiety are not severe impairments was supported by
substantial evidence because the record does not show that these impairments impose any
functional work limitations. In any event, Judge Bowman concluded, the ALJ’s alleged error
was harmless because the ALJ went on to consider the combined effect of all her
impairments in developing her RFC.

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As to Plaintiff’s second assignment of error, Judge Bowman concluded that the
ALJ’s evaluation of Dr. Armentrout’s and Dr. Ramirez’s opinions was supported by
substantial evidence. Judge Bowman agreed with the ALJ that neither doctor’s opinion was
supported by his office treatment notes. Judge Bowman noted also that Dr. Ramirez’s
opinion as to Plaintiff’s mental RFC was contradicted by other record evidence, including
the opinion of Dr. Johnson, the state agency examining psychologist.
Finally, as to Plaintiff’s third assignment of error, Judge Bowman found that the
ALJ’s adverse credibility determination was supported by substantial evidence. Judge
Bowman rejected Plaintiff’s contention that the ALJ “cherry-picked” the record for evidence
to discount her credibility and concluded that the factors cited by the ALJ were sufficient
to sustain her credibility determination.
Plaintiff filed timely objections to Judge Bowman’s Report and Recommendation.
The Commissioner did not file a memorandum in response to Plaintiff’s objections.
Consequently, Plaintiff’s objections to the Report and Recommendation are ready for
disposition.
II. Standard of Review
The relevant statute provides the standard of review to be applied by this Court in
reviewing decisions by the ALJ. See 42 U.S.C. § 405(g). The Court is to determine only
whether the record as a whole contains substantial evidence to support the ALJ’s decision.
“Substantial evidence means more than a mere scintilla of evidence, such evidence as a
reasonable mind might accept as adequate to support a conclusion.”

LeMaster v.

Secretary of Health & Human Serv., 802 F.2d 839, 840 (6th Cir. 1986) (internal citation
omitted). The evidence must do more than create a suspicion of the existence of the fact
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to be established. Id. Rather, the evidence must be enough to withstand, if it were a trial
to a jury, a motion for a directed verdict when the conclusion sought to be drawn from it is
one of fact for the jury. Id. If the ALJ’s decision is supported by substantial evidence, the
Court must affirm that decision even if it would have arrived at a different conclusion based
on the same evidence. Elkins v. Secretary of Health & Human Serv., 658 F.2d 437, 439
(6th Cir. 1981). The district court reviews de novo a magistrate judge’s report and
recommendation regarding Social Security benefits claims. Ivy v. Secretary of Health &
Human Serv., 976 F.2d 288, 289-90 (6th Cir. 1992).
III. Analysis
A. Plaintiff’s Impairments
Plaintiff first contends that the ALJ should have determined that her migraine
headaches, low back pain, and anxiety are non-severe impairments. Judge Bowman
thought that this decision was supported by substantial evidence but in any event was a
harmless error because the ALJ considered both severe and non-severe impairments in
determining whether Plaintiff is disabled. Plaintiff concedes that the ALJ’s failure to find an
impairment to be severe can be a harmless error, but she contends that the ALJ only paid
“lip service” to the requirement to consider all of her impairments in her disability analysis.
The Court concludes, however, that the ALJ’s alleged error was harmless.
Judge Bowman was correct that an ALJ’s failure to find that an impairment is severe
can be a harmless error. That is because once the ALJ determines that the claimant has
one severe impairment, the Social Security regulations require the ALJ consider the
combined effect of both severe and non-severe impairments in determining whether the
claimant is disabled. Maziarz v. Secretary of Health & Human Serv., 837 F.2d 240, 244
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(6th Cir. 1987). The ALJ, however, does not have a heightened burden of articulation in
explaining how and why each impairment affects the disability determination. Bledsoe v.
Barnhart, 165 Fed. Appx. 408, 411 (6th Cir. 2006). Moreover, in this case, the ALJ’s
decision used language consistent with a finding that she did consider the combined effects
of Plaintiff’s severe and non-severe impairments in her disability analysis. For instance,
the ALJ stated that she “considered the entire record,” referred to Plaintiff’s “impairments”
multiple times, and specifically stated that she took into consideration “all of the claimant’s
medically determinable impairments.” The Sixth Circuit has held that language such as this
is sufficient to demonstrate that the ALJ considered the claimant’s severe and non-severe
impairments in determining whether the claimant is disabled. See Gooch v. Secretary of
Health & Human Serv., 833 F.2d 589, 591-92 (6th Cir. 1987).
Accordingly, Plaintiff’s first objection to the Report and Recommendation is not welltaken and is OVERRULED.
B. Treating Physicians’ Opinions
Plaintiff next contends that the ALJ erred by not giving significant if not controlling
weight to the opinions of Dr. Armentrout and Dr. Ramirez. As indicated above, Dr.
Armentrout indicated that Plaintiff has significant limitations in sitting and standing and Dr.
Ramirez reported that Plaintiff has marked mental limitations. The vocational expert agreed
that, if accepted, these opinions would rule out any competitive employment for Plaintiff.
The ALJ, however, gave little weight to these opinions on the grounds that they were not
supported by the doctors’ office treatment notes.
Under the “treating physician rule,” the opinion of a claimant’s treating physician is
accorded controlling weight if it is “well-supported by medically acceptable clinical and
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laboratory diagnostic techniques and is not inconsistent with other substantial evidence in
[the] case record[.]” Rogers v. Commissioner of Social Sec., 486 F.3d 234, 242 (6th Cir.
2007). If the treating physician’s opinion is not controlling, the ALJ, in determining how
much weight is appropriate, must consider a host of factors, including the length,
frequency, nature, and extent of the treatment relationship; the supportability and
consistency of the physician’s conclusions; the specialization of the physician; and any
other relevant factors. Id. There is a rebuttable presumption that the opinion of a treating
physician is entitled to great deference, its non-controlling status notwithstanding. Id. (citing
Soc. Sec. Rul. 96–2p, 1996 WL 374188, at *4) (“In many cases, a treating physician’s
medical opinion will be entitled to the greatest weight and should be adopted, even if it does
not meet the test for controlling weight.”). Additionally, the ALJ must provide “good
reasons” for discounting a treating physician’s opinion, reasons that are “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. Id. The ALJ may, however,
reject a treating physician’s opinion if it is inconsistent with his earlier opinions and
treatment notes and there is no explanation or findings indicating a change in the claimant’s
condition between the dates of the reports. Hall v. Bowen, 837 F.2d 272, 276 (6th Cir.
1988); Payne v. Commissioner of Social Sec., 402 Fed. Appx. 109, 112-13 (6th Cir. 2010).
In this case, the Court agrees with Judge Bowman that the weight the ALJ gave to the
opinions of Plaintiff’s treating physicians was supported by substantial evidence.
As stated above, Dr. Armentrout issued two RFC opinions, both of which indicate
that Plaintiff is significantly limited in her ability to sit and stand due to fibromyalgia. As a
basis for these opinions, Dr. Armentrout wrote, “Based on physical exam, observation and
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various evaluations to exclude other diagnosis.” Tr. 498. The Court recognizes of course
that fibromyalgia is a disease that defies conventional diagnostic and treatment techniques.
Swain v. Commissioner of Social Sec., 297 F. Supp.2d 986, 991 (N.D. Ohio 2003). The
ALJ, however, is not required to accept the conclusory opinion of a treating physician, nor
is the ALJ required to accept an opinion that does not find support in the doctor’s treatment
notes. Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001).
In this case, while Dr. Armentrout indicated that his opinion was based on physical
examination and observation of Plaintiff, his treatment notes do not document
contemporaneous findings or observations consistent with the extreme functional
restrictions he proffered. For instance, although the treatment notes consistently indicate
a diagnosis of fibromyalgia, and Dr. Armentrout continually prescribed Vicodin for treatment
of Plaintiff’s fibromyalgia, he never documented any complaints from her about difficulties
in sitting, standing, or walking. Moreover, although the standard office note form includes
a “pain score” section, neither Dr. Armentrout nor any of his staff ever recorded a pain
score for Plaintiff. See Tr. 489-497, 504-528, 722-731. Therefore, the ALJ’s determination
that Dr. Armentrout’s opinions were not supported by his office treatment notes is based
on substantial evidence in the record.
Similarly, Dr. Ramirez’s restrictive mental RFC is not supported by his office
treatment notes. Instead, Dr. Ramirez’s office notes actually reflect that Plaintiff’s mental
status improved over the course of his treatment relationship with her. For instance,
whereas in November and December 2011 Dr. Ramirez recorded that Plaintiff was feeling
depressed and anxious, Tr. 868, 870, by August 2012 he wrote that she “reports doing well
on current medications. Mood stable. Anxiety well-controlled. No medication side effects.
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Sleep and appetite good. Coping adequately with life stressors. Denies SI [suicidal
ideation].

No change in functioning.”

Tr. 883.

Consequently, the ALJ reasonably

concluded that Dr. Ramirez’s opinion that Plaintiff has extreme limitations in most areas of
mental functioning was not supported by his treatment notes. Therefore, the weight that
the ALJ gave to Dr. Ramirez’s opinion was supported by substantial evidence.
In summary, the Court finds that the weight the ALJ gave to the opinions of Dr.
Armentrout and Dr. Ramirez was supported by substantial evidence. Plaintiff’s second
objection to the Report and Recommendation is not well-taken and is OVERRULED.
C. Plaintiff’s Credibility
Plaintiff’s third objection contests the ALJ’s credibility determination. An ALJ’s
credibility determinations are entitled to considerable deference. Howard v. Commissioner
of Social Sec., 276 F.3d 235, 242 (6th Cir. 2002). In this case, however, the Court agrees
with Plaintiff that the ALJ’s adverse credibility determination was not supported by
substantial evidence. More specifically, the Court concludes that the ALJ’s analysis of
Plaintiff’s credibility did not comport with Social Security regulations and controlling Sixth
Circuit case law on weighing the credibility of fibromyalgia claimants.
As stated above, Plaintiff testified that pain restricts to her to very little activity during
the day, and that she spends most of the day alternating between sitting and lying down.
The ALJ, however, found that Plaintiff’s credibility was suspect for several reasons which
the Court finds do not constitute substantial evidence.
First, the ALJ cited two emergency room visits in which Plaintiff reported swimming
and doing yard work. The ALJ thought that these two incidents provide a “glimpse” into her
daily activities and indicate that her impairments are not as severe as claimed. Tr. 22. As
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Plaintiff suggests in her objections, however, it was unreasonable for the ALJ to rely on this
microcosm - two days out of over 700 pages of medical records - to conclude that Plaintiff
exaggerated the limitations imposed by her impairments. In other words, the fact that
Plaintiff was able to do yard work on one day and swim on another is not necessarily
indicative of her ability to carry out work activities on a sustained basis. Kalmbach v.
Commissioner of Social Sec., 409 Fed. Appx. 852, 864 (6th Cir. 2011). Moreover,
swimming and even doing yard work is actually consistent with her doctors’
recommendations to exercise to alleviate her fibromyalgia symptoms. In was unfair for the
ALJ on one hand to fault Plaintiff for not carrying through with her doctors’
recommendations to exercise and then on the other hand cite the fact that she engaged
in exercise as evidence that she is not credible about the limitations imposed by pain. See,
e.g., Rogers v. Commission of Social Sec., 486 F.3d 234, 248-49 (6th Cir. 2007) (holding
that ALJ improperly discredited claimant’s subjective complaints of pain based on her
doctors’ recommendation to exercise regularly as treatment for fibromyalgia).
Second, the ALJ faulted Plaintiff for not following through with recommendations to
exercise to treat her fibromyalgia. The ALJ also cited the fact that Plaintiff was inconsistent
about seeking out treatment for her symptoms of fibromyalgia or that she sought treatment
for other ailments but not specifically for fibromyalgia. Tr. 22-24. Social Security Ruling
96-7p certainly permits the ALJ to consider these facts in assessing the claimant’s
credibility, but it also states that the ALJ “must not draw any inferences about an
individual’s symptoms and their functional effects from a failure to seek or pursue regular
medical treatment without first considering any explanations that the individual may provide,
or other information in the case record, that may explain infrequent or irregular medical
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visits or failure to seek medical treatment.” In this case, the ALJ did not give Plaintiff an
opportunity to explain why she did not follow through with exercise programs or why there
are gaps in her treatment records concerning her fibromyalgia. Consequently, the ALJ
violated SSR 96-7p. Additionally, because the ALJ did not give Plaintiff an opportunity to
explain these lapses, it was unreasonable and unfair for the ALJ to conclude that her
noncompliance with treatment recommendations indicate an “unwillingness to do what is
necessary to improve her condition.” Tr. 23.
Third, and finally, the ALJ appeared to discount Plaintiff’s credibility on the grounds
that her doctors elected to treat her fibromyalgia symptoms with narcotic pain medications,
which the ALJ concluded were inappropriate for treatment for fibromyalgia. Tr. 23-24. In
this regard, the ALJ improperly substituted her own medical judgment for that of Plaintiff’s
doctors. Simpson v. Commissioner of Social Sec., 344 Fed. Appx. 181, 194 (6th Cir.
2009).
These errors are sufficient for the Court to conclude that the ALJ’s adverse credibility
determination was not supported by substantial evidence. Accordingly, Plaintiff’s third
objection to the Report and Recommendation is well-taken and is SUSTAINED. Since it
is the ALJ’s duty, and not the Court’s, to judge the claimant’s credibility, the appropriate
remedy is to remand the case so that the ALJ can reassess Plaintiff’s credibility according
to the established standards. Rogers, 486 F.3d at 249-50.
Conclusion
For the reasons stated above, Plaintiff’s objections to Judge Bowman’s Report and
Recommendation are SUSTAINED IN PART AND OVERRULED IN PART. The Court
does not adopt the Report and Recommendation to the extent that Judge Bowman
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concluded the ALJ’s assessment of Plaintiff’s credibility was supported by substantial
evidence.

The Court adopts the remainder of the Report and Recommendation.

Nevertheless, the decision of the ALJ finding that Plaintiff is not disabled under the Social
Security regulations is REVERSED. This case is REMANDED to the ALJ pursuant to
Sentence Four of 42 U.S.C. § 405(g) for further proceedings consistent with this order.

IT IS SO ORDERED

s/Sandra S. Beckwith
Sandra S. Beckwith
Senior United States District Judge

Date September 2, 2015

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