Snell v. Commissioner of Social Security

Filing 22

REPORT AND RECOMMENDATION that the decision of the Commissioner be Reversed and Remanded for further proceedings pursuant to Sentence Four of 42 USC 405(g). Objections to R&R due by 2/12/2016. Signed by Magistrate Judge Karen L. Litkovitz on 1/26/2016. (art)

UNITED STATES DISTRICT COURT
SOUTHE RN DISTRICT OF OHIO
WESTER N DIVISION
WESLEY L. SNELL,
Plaintiff,

Case No. 1: 14-cv-947
Beckwith, J.
Litkovitz , M.J.

vs.

COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

REPORT AND
RECOM MENDA TION

Plaintiffb rings this action pursuant to 42 U.S.C. §§ 405(g) and l383(c)(3) for judicial
review of the final decision of the Commissioner of Social Security (Commissioner) denying
plaintiffs applications for disability insurance benefits (DIB) and supplemental security income
(SSI). This matter is before the Court on plaintiffs Statement of Errors (Doc. 15), the
Commiss ioner's response in opposition (Doc. 20), and plaintiffs reply (Doc. 21 ).
I. Procedural Background

Plaintiff protectively filed his applications for DIB and SSI in December 2011 , alleging
disability since November 19, 2011, due to "spinal stenosis (bulging and herniated discs)" and
arthritis. These applications were denied initially and upon reconsideration. Following initial
denial of his claims, plaintiff also alleged disability due to depression. Plaintiff, through
counsel, requested and was granted a de novo hearing before administrative law judge (ALJ)
Anne Shaughnessy. Plaintiff and a vocational expert (VE) appeared and testified at the ALJ
hearing. On August 16, 2013, the ALJ issued a decision denying plaintiffs DJB and SSI
applications. Plaintiff s 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)(l)(A)
(DIB), 1382c(a)(3)(A) (SSI). 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), 1382c(a)(3)(B).
Regulations promulgated by the Commissione r establish a five-step sequential evaluation
process for disability determinations:
1) Ifthe 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 hjs 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. , 582 F.3d 647, 652 (6th Cir. 2009) (citing 20 C.F.R. §§
404.1520(a)(4)(i)-(v), 404.1520(b)-(g)). The claimant has the burden of proof at the first four
steps of the sequential evaluation process. ld. ,· Wilson v. Comm 'r of Soc. Sec., 378 F.3d 541 ,

2

548 (6th Cir. 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. Apfel, 168 F.3d 289, 291 (6th
Cir. 1999).

B.

The Administrative Law Judge's Findings

The AU applied the sequential evaluation process and made the following findings of
fact and conclusions oflaw:
1. The [plaintiff] meets the insured status requirements of the Social Security Act
through December 31,2016.
2. The [plaintiff] has not engaged in substantial gainful activity since November
19, 2011 , the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The [plaintiff] has the following severe impairments: status post lumbar
laminectomy and depression (20 CFR 404.1520(c) and 416.920(c)).
4. The [plaintiff] does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix I (20 CFR 404.1520(d), 404.1525 , 404.1526,
416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, [the ALJ] finds that the
[plaintiff] has the residual functional capacity (" RFC") to perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b) except that he can only
occasionally stoop, kneel, crouch, crawl, and climb ladders, ropes, and scaffolds.
The [plaintiff] can frequently balance and climb ramps and stairs. He is capable
of completing only simple routine tasks in which instructions can be repeated as
necessary, and of completing only tasks which are relatively static in nature and in
which changes are infrequent and can be explained.
6. The [plaintiff] is unable to perform any past relevant work (20 CFR 404.1565
and 416.965). 1
1

Plaintiffs past relevant work was as a butcher, meat cutter, and die cast operator, all of which required
"more than light physical exertion." (Tr. 21 ).

3

7. The [plaintiff] was born [in] ... 1963 and was 4 7 years old, which is defined as
a younger individual age 18-49, on the alleged disability onset date (20 CFR
404.1563 and 416.963).
8. The [plaintiff] has at least a high school education and is able to communicate
in English (20 CFR 404.1564 and 416.964).
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 [plaintiff]'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, 404.1569(a),
416.969, and 416.969(a)).2
11 . The [plaintiff] has not been under a disability, as defined in the Social Security
Act, from November 19, 2011, through the date of [the ALl 's] decision (20 CFR
404.1520(g) and 416.920(g)).
(Tr. 16-23).

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 ALl are supported by
substantial evidence, and (2) whether the ALl applied the correct legal standards. See Blakley v.
Comm 'r ofSoc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see also Bowen v. Comm 'r ofSoc. Sec. ,
478 F.3d 742, 745-46 (6th Cir. 2007).
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,

2

The ALJ relied on the VE's testimony to find that plaintiff would be able to perform the requirements of
representative light unskilled occupations such as cleaner (1 , 700 jobs regionally and 275,000 jobs nationally),
packaging machine operator/tender ( 1,600 jobs regionally and 168,600 jobs nationally), and packer/hand packager
(2,500 jobs regionally and 260,000 jobs nationally). (Tr. 22).

4

402 U.S. 389, 401 (1971) (citing Consolidated Edison Co. v. N L.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., 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 contends that the ALJ erred by: (1) declining to afford controlling
weight to the mental and physical evaluations of his treating physician, Dr. Leelmohan
Ravikumar, M.D., and (2) failing to evaluate and assign weight to the opinion of consulting
examining psychologist Dr. Taylor Groneck, Psy.D. (Docs. 15, 21 ).
1.

Weight to the treating physician

Plaintiff alleges that the ALJ erred in evaluating the opinions of his treating physician, Dr.
Ravikumar. Plaintiff alleges that the ALJ did not set out in her written decision the treating
source rule, the factors to be considered in evaluating a medical opinion under the Social Security

5

regulations, and the requirement that the ALJ provide "good reasons" for failing to give
controlling weight to a treating source opinion and for the ultimate weight given that opinion.
(Doc. 15 at 8-9). Plaintiff further alleges that the ALJ improperly rejected Dr. Ravikumar' s
opinion as to his mental limitations on the sole ground Dr. Ravikumar is a family medicine
physician, not a specialist in the area of mental health. (Id. at 9). Finally, plaintiff alleges that
the ALJ erred by relying on the non-examining state agency medical source opinions because the
Social Security regulations require the ALJ to perform a longitudinal evaluation of the evidence
and those sources did not have a complete record of plaintiffs physical impairments to review,
lacking among other records those from the Clinton Family Health Center where Dr. Ravikumar
practiced. (!d. at 10-11 ).

In response, the Commissioner alleges that the law does not require the ALJ to recite the
treating physician rule in the administrative decision; the ALJ gave "good reasons" for
discounting Dr. Ravikumar's opinions as to plaintiffs physical and mental impairments; and the
ALJ properly weighed the opinions of the non-examining state agency medical sources. (Doc.

20).
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.,
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

6

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. "' Gayheart v. Comm 'r ofSoc. Sec. , 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
treating source's opinion is not well supported by such techniques or is inconsistent with the
other substantial record evidence, it is not entitled to controlling weight. Karger v. Comm 'r of

Soc. Sec., 414 F. App' x 739, 751 (6th Cir. 2011). lfthe 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), 416.927(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), 416.927( c)(2)(i)(ii); Wilson, 378 F.3d at 544. Other factors to be
considered are the 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), 416.927(c)(3)-(6);

Gayheart, 710 F.3d at 376; Wilson, 378 F.3d at 544.

7

"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 (citation omitted). See also 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2); Wilson, 378 F.3d at 544 (ALJ must give "good reasons" for the
ultimate weight afforded the treating physician opinion). 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." Cole, 661 F.3d at 937 (citing SSR 96-2p). This procedural
requirement "ensures that the ALJ applies the treating physician rule and permits meaningful
review of the ALJ's application of the rule." Gayheart, 710 F.3d at 376 (quoting Wilson, 378
F.3d at 544).
The ALJ 's fai lure to follow agency rules and regulations "denotes a lack of substantial
evidence, even where the conclusion of the ALJ may be justified based upon the record. "

Blakley, 581 F.3d at 407. However, a violation of the good reasons rule can be deemed to be
"harmless error" if "a treating source's opinion is so patently deficient that the Commissioner
could not possibly credit it. ... " Wilson, 378 F.3d at 547. See also Friend v. Comm 'r of Soc.

Sec., 375 F. App' x 543,551 (6th Cir. 2010); Cole, 661 F.3d at 940.

A. The ALJ's failure to state the governing law
Plaintiff alleges that the ALJ did not set out in her written decision the treating source
rule, the factors to be considered in evaluating a medical opinion under the Social Security
regulations, and the requirement that the ALJ provide "good reasons" for failing to give

8

controlling weight to a treating source opinion and for the ultimate weight given that opinion.
(Doc. 15 at 8-9).
The governing rules and regulations require the ALJ to analyze the evidence of record in
accordance with the governing rules and regulations in order to comply with the treating source
rule. Plaintiff does not cite any authority for the proposition that an ALJ must go beyond this
and set out the governing law in her written decision in order to comply with the treating source
rule. Plaintiffs allegation that the ALJ erred by fai ling to state the governing law in her written
decision is not well-taken.

B. Plaintifrs mental impairments
Dr. Ravikumar completed both a mental RFC assessment and a physical capacity
evaluation on May 14, 2013. (Tr. 542-46). Dr. Ravikumar opined that plaintiff had mild
limitations (defined as an inability to function less than 10% of the work day or work week in
that particular area) in the following areas: ability to accept instruction from or respond
appropriately to criticism from supervisors or superiors; ability to perform and complete work
tasks in a normal work day or work week at a consistent pace; ability to maintain attention and
concentration for more than brief periods of time; and ability to tolerate customary work
pressures. (Tr. 542-44). Dr. Ravikumar opined that plaintiff had no impairment in any other
area of work functioning. (Tr. 542-43). Dr. Ravikumar indicated that plaintiff's condition was
not likely to deteriorate if he was placed under stress, including the stress of a regular full-time
job. (Tr. 544). Dr. Ravikumar concluded that plaintiff was "likely to have partial or full day
unscheduled absences from work occurring 5 or more days per month due to the diagnosed
conditions and/or side effects of medication." (!d.).

9

The ALJ did not comply with the treating physician rule in evaluating Dr. Ravikumar' s
opinion of plaintiffs mental limitations. The ALJ gave Dr. Ravikumar's opinion " little weight"
on the sole ground the records showed he is "a medical doctor with expertise in the area of
physical conditions and is not qualified to comment upon limitations due to mental health[.]"
(Tr. 21 ). While specialization is one factor to be considered in determining the weight to afford
a treating physician' s opinion, it is one of only several factors to be weighed. 20 C.F.R. §§
404.1527(c)(3)-(6), 416.927(c)(3)-(6). The ALJ did not consider any of the remaining factors
and did not determine whether Dr. Ravikumar' s assessment of plaintiffs mental limitations was
well-supported by his own findings and whether it was not inconsistent with the other substantial
evidence in the case record. See Gayheart, 710 F.3d at 376 (citing 20 C.F.R. § 404.1527(c)(2)).
Thus, the ALJ violated the "good reasons" rule in weighing Dr. Ravikumar's assessment of
plaintiffs mental limitations.
Nonetheless, the ALl' s procedural error does not require reversal of her decision.
Rather, Dr. Ravikumar' s mental RFC assessment is so "patently deficient" that the
Commissioner could not possibly credit it. Wilson, 378 F.3d at 547. Dr. Ravikumar reported
largely normal mental findings, finding only mild limitations in 4 of 16 areas of mental
functioning and no limitations in the remaining areas of functioning. Moreover, Dr. Ravikumar
did not list any diagnosed psychological conditions or side effects of medications in either the
mental RFC assessment or the physical capacity evaluation. Yet, despite these benign mental
functioning findings, Dr. Ravikumar opined in the mental RFC assessment that plaintiff would
miss five or more unscheduled partial or full days of work per month due to his diagnosed
conditions and the side effects of his medications. Dr. Ravikumar did not link plaintiffs mild

10

mental limitations with the likelihood of significant unscheduled absences from work, and he
provided no support in either ofhis assessments for his conclusion that plaintiff would have
unscheduled absences from work due to his mental impairments. Nor has plaintiff pointed to
evidence in the record that supports Dr. Ravikumar's conclusion that he is likely to miss a
significant number of days of work due to his mental impairments and side effects from his
medications. For these reasons, Dr. Ravikumar' s mental RFC assessment is "patently
deficient." Wilson, 378 F.3d at 547. The ALJ's failure to weigh Dr. Ravikumar's assessment
of plaintiff's mental impairments in accordance with the treating physician rule is therefore
harmless error and does not warrant reversal of the ALJ's decision.
C. Plaintiff's physical impairments

Plaintiff alleges that the ALJ erred by crediting the opinions of the non-examining state
agency physicians over Dr. Ravikumar' s assessment of his physical impairments. Dr.
Ravikumar assessed plaintiff's physical functional capabilities in May 2013 as follows: In an
8-hour workday, plaintiff can stand and walk a total of 4 hours each and 30 minutes at one time,
sit a total of 2 hours and 15 minutes at one time, and lift up to I 0 pounds rarely (defined as "once
in a while, not in work setting, such as

~

gal[lon] milk, shoes, small pan"); he cannot use his feet

for repetitive movements as in operating foot controls; he can occasionally squat and can never
bend, crawl, and climb steps or ladders; and he is likely to have partial or full-day unscheduled
absences from work occurring five or more days per month due to his diagnosed conditions, pain,
and/or the side effects of medication. (Tr. 545-46). Dr. Ravikumar noted that plaintiff had
undergone lower lumbar, lumbar spine, and cervical spine surgery and had chronic radiation to
the right lower leg; he had decreased strength in the right hip with numbness that was improved

II

with medication; and his pain management specialist noted pain in the lumbar area and bilateral
radiation that was worse with bending and repetitive leg movements. (Tr. 546).
The ALJ gave " little weight" to Dr. Ravikumar's physical capacities evaluation because
she found it was not supported by the evidence of record, including Dr. Ravikumar' s own
treatment notes . (Tr. 21 ). The ALJ noted that Dr. Ravikumar reported in February 2013 that
plaintiff had no " focal deficits" (Tr. 628) and in March 2013 he reported there was "no loss of
sensation" (Tr. 630).
The ALJ noted that aside from Dr. Ravikumar's opinion, which was accorded little
weight, there were no other assessments of plaintiffs functional capacity from a treating or
examining source. (Tr. 21 ). Based on the absence of any other assessments of plaintiffs
functional capacity by a treating or examining source and plaintiffs " lack of credibility," the ALJ
relied on the assessments of the non-examining state agency physicians in assessing an RFC for
light work. 1 (Tr. 21 ). State agency physician Dr. Maria Congbalay, M.D. , reviewed the record
and issued an assessment dated January 17, 2012, finding that plaintiff could lift/carry up to 20
pounds occasionally and 10 pounds frequently; stand/walk and sit about six hours each in an
8-hour workday; frequently climb ramps and stairs; and occasionally climb
ladders/ropes/scaffolds, stoop, kneel, crouch and crawl. (Tr. 60). On reconsideration in May
2012, Dr. Sarah Long, M.D., affirmed Dr. Congbalay's assessment as written. (Tr. 81-82).
"Although the opinion of a treating physician generally is given more weight, [the Sixth

1

The ALJ discounted plaintiffs credibility based on his treating neurosurgeon's report in January 20 II that plaintiff
could return to work without any functional restrictions three months post status a lumbar laminectomy (Tr. 272);
plaintiff's return to heavy duty work until November 20 I I , until he was discharged for violating a workplace policy
(Tr. 206, 504, 518); and plaintiff's conviction for buying and selling Sudafed for a profit in April 20 I 2 (Tr. 572).
Tr. 19-20). Plaintiff does not challenge the ALJ's credibility finding.

12

Circuit] has recognized that consultative opinions may be credited where they are supported by
the record." Price v. Comm 'r Soc. Sec. Admin. , 342 F. App'x 172, 177 (6th Cir. 2009) (citing
Casey v. Sec 'y ofHealth & Human Servs., 987 F.2d 1230, 1234 (6th Cir. 1993); Shavers v. Sec'y
ofHealth & Human Servs., 839 F.2d 232, 235 (6th Cir. 1987)). A state agency reviewing
doctor's opinion may be entitled to greater weight than that of a treating or examining doctor
when the "State agency medical ... consultant's opinion is based on a review of a complete case
record that . . . provides more detailed and comprehensive information than what was available to
the individual's treating source." Blakley, 581 F.3d at 409 (quoting SSR 96-6p, 1996 WL
374180, at *3). However, Blakley does not impose a "blanket prohibition" against an ALJ
adopting a non-examining source' s opinion when the source has not reviewed the entire record.
Kepke v. Comm 'r ofSocial Security, No. 15-1315,2016 WL 124140, at *7 (6th Cir. Jan. 16,
20 16). Blakley requires "only that before an ALJ accords significant weight to the opinion of a
non-examining source who has not reviewed the entire record, the ALJ must give 'some
indication' that he 'at least considered' that the source did not review the entire record." !d.
(citing Blakley, 581 F.3d at 409). "In other words, the record must give some indication that the
ALJ subjected such an opinion to scrutiny." !d.
Plaintiff has failed to show that the ALJ erred by crediting the state agency reviewing
physicians' opinions over the physical capacity evaluation of Dr. Ravikumar. Plaintiff alleges
that the reviewing physicians' opinions in this case were not based on a review of the complete
case record as required under SSR 96-6p. (Doc. 15 at 11 ). Plaintiff alleges that the reviewing
physicians did not have before them for their review records from the Clinton Family Health
Center and other sources "covering the period at issue and helping to form the basis for Dr.

13

Ravikumar' s opinion." (!d.). However, once the ALJ weighed the treating physician's opinion
and gave it little weight, the ALJ was not precluded from crediting the non-examining
physicians' opinions simply because they did not have all of the medical evidence of record
before them at the time of their review. Kepke, 2016 WL 124140, at *7. The ALl
acknowledged that the state agency physicians issued their opinions in January and June 2012.
(Tr. 21). Plaintiffhas not directed the Court to any specific treatment notes, clinical findings, or
other evidence in the record that post-dates these assessments which would undermine the
opinions of the state agency doctors and dictate a different conclusion. In the absence of any
argument or showing by plaintiff that Dr. Ravikumar' s assessment is well-supported by
medically acceptable clinical and laboratory diagnostic techniques contained in the treatment
records from the Clinton County Health Center or other evidence post-dating the state agency
physicians' assessments, the Court cannot conclude the ALJ erred by relying on the state agency
doctors.
Plaintiff further alleges that the ALJ violated her duty to fully and fairly develop the
record by failing to request a consultative physical examination or to obtain a medical expert to
testify at the ALJ hearing. (Doc. 15 at 10-11 ). Plaintiff appears to argue that the ALJ
considered herself bound to accept the reviewing physicians' opinion when in fact she could have
pursued these other options to expand the record. (Doc. 15 at 10-11 , citing Tr. 21- ALJ stated
that "great reliance must be placed" on the reviewing physicians' assessments). The Social
Security regulations provide that the ALJ may need to take additional action before issuing a
decision if the evidence in the claimant's case record is insufficient or inconsistent. 20 C.F.R.
§§ 404.1520b, 416.920b. If the evidence is inconsistent, the ALJ will weigh the relevant

14

evidence and make a determination as to whether the individual is disabled based on the
evidence of record if possible. !d. If the evidence of record is insufficient for the ALJ to
determine whether the claimant is disabled or the ALJ is otherwise unable to reach a decision
after weighing the evidence, the ALJ may request additional existing records or request that the
claimant undergo a consultative examination in order to reach a decision. !d. Here, the ALJ
clearly indicated in her opinion that she was accepting the reviewing physicians' opinions and the
limitations they assessed because she rejected Dr. Ravikumar's assessment as unsupported by the
other evidence of record and by his own treatment notes; there were no other physical functional
assessments in the record that conflicted with the non-examining physicians' assessments; and
plaintiff lacked credibility. (Tr. 21 ). The ALJ reasonably credited the physical capacity
assessments of Drs. Congbalay and Long over the assessment of Dr. Ravikumar for the reasons
the ALJ stated. Plaintiff has not cited any authority or evidence to show that the ALJ was
required to obtain an additional medical assessment or the opinion of a medical expert given the
record before the ALJ and her evaluation of the evidence.

D. Conclusion
The ALJ did not err in weighing the medical opinion evidence provided by plaintiffs
treating physician and the non-examining state agency physicians. The ALJ's decision to reject
the opinions of plaintiffs treating physician and to credit the latter opinions is supported by
substantial evidence. Plaintiffs first assignment of error should be overruled.

2. The consultative examining psychologist's opinion
Plaintiff alleges that the ALJ erred by failing to evaluate and assign weight to the opinion
of consultative examining psychologist Dr. Groneck. (Doc. 15 at 12-13; Doc. 21 at 3-4). Dr.

15

Groneck evaluated plaintiff on May 26, 2012. (Tr. 516-21 ). Plaintiffs chief complaints were
solely physical in nature. (Tr. 516). Plaintiff reported he had started seeing a psychiatrist, Dr.
Fred Luten, one month earlier and was seeing him twice a month. (Tr. 517). Plaintiff reported
he had never attempted suicide or engaged in self-harming behaviors. (Tr. 518). Plaintiff
described his recent mood as "edgy because I can't do what I want to do physically. Otherwise,
I'm okay. I get disappointed with myself sometimes." (/d.). Plaintiff reported "feeling down
on himself' for periods which lasted a few hours, and he described his energy level as adequate.

(!d.). Plaintiff denied crying spells, mania, delusions, hallucinations, PTSD, or panic. (/d.).
Plaintiff reported that he had been fired from his last job for violating company policy and he
denied a history of problems with understanding or remembering job instructions, focusing at
work, or getting along with others at work. (Id.). He described himself as a "people person"
who "get[s] along with everybody." (!d.). On mental status examination, Dr. Groneck did not
find any abnormalities in appearance and behavior, flow of conversation and thought, mood and
affect, anxiety level, mental content, and insight and judgment. (Tr. 519). Dr. Groneck
reported that plaintiffs recent and remote recall appeared adequate but that his short-term
memory and working memory were poor. (/d.). Dr. Groneck stated that plaintiffs attention
and concentration were limited as he "seemed to be in pain and had difficulty focusing." (/d.).
Dr. Groneck assessed plaintiffs general level of intelligence as falling in the low average range.
(/d.).

Dr. Groneck diagnosed plaintiff with Adjustment Disorder with Depressed Mood and

16

assigned a GAF score of 68. 2 {Tr. 520). Dr. Groneck assessed plaintiff as ( I) likely to have
difficulty with multi-step job instructions as a result of impaired focus, and (2) likely to "work at
a slower pace as a result of concentration difficulties, secondary to his reported pain level" and to
"show work pace slower than other work peers." (Tr. 521 ). Dr. Groneck assessed no
limitations in plaintiffs ability to conform to social expectations in a work setting and no
limitations in his ability to respond appropriately to work pressures in a work setting. (/d.).
The ALJ summarized Dr. Groneck's findings in her written decision, stating that Dr.
Groneck diagnosed adjustment disorder with depressed mood and concluded that plaintiff would
have difficulty with multi-step instructions; he "may show work pace slower than other work
peers"; and he has no limitations in his ability to conform to social expectations in a work setting
or in his ability to respond appropriately to work pressures in a work setting. 3 (Tr. 20, citing Tr.
516-23). The ALJ did not evaluate and assign weight to Dr. Groneck's opinion. The ALJ
evaluated only the remaining mental health assessments of record. The ALJ rejected the mental
limitations imposed by treating physician Dr. Ravikumar and credited the mental limitations
assessed by the state agency reviewing psychologist, who found that plaintiff is able to complete
simple, routine tasks for which instructions can be repeated as necessary; he is limited due to
difficulty focusing and concentrating as a result of pain symptoms; and he is capable of

2

A GAF score represents "the clinician's judgment ofthe individual' s overall level of functioning. " American
Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed., text rev. 2000). The
GAF score is taken from the GAF scale, which " is to be rated with respect only to psychological, social, and
occupational functioning." !d. The GAF scale ranges from 100 (superior functioning) to I (persistent danger of
severely hurting self or others, persistent inability to maintain minimal personal hygiene, or serious suicidal act with
clear expectation of death). !d. at 34. The DSM-IV categorizes individuals with scores ranging from 6 1-70 as
having " [s]ome symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or
school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has
some meaningful interpersonal relationships.") !d.
3

The ALJ mistakenly wrote that Dr. Groneck assigned a GAF score of 48 rather than 68 to plaintiff. (Tr. 20).

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completing tasks that are relatively static in nature, involving infrequent changes, which can be
explained. (Tr. 21, citing Tr. 82-83, 95-96).
The Commissioner argues that it was not error for the ALI to fail to specifically state the
"weight" she assigned to Dr. Groneck' s opinion. (Doc. 20 at 19). The Commissioner alleges
that despite the ALI ' s omission, it is " implicit and obvious" from her decision that she gave great
weight to non-examining psychologist Dr. Rivera' s opinion, which forms the basis for the mental
RFC, and less weight to Dr. Groneck's opinion. The Commissioner further contends that even
if the ALJ erred by failing to use the term "weight" when assessing Dr. Groneck's opinion, the
error was harmless because "the ALJ 's reasoning is apparent from a reading of the decision as a
whole"; therefore, plaintiff was not prejudiced on the merits or deprived of a substantial right as a
result of the ALJ's procedural lapse. !d. (citing Rabbers, 582 F.3d at 654).
The ALJ is required to evaluate all of the medical opinions of record. See 20 C.F.R. §§
404.1527(c), 416.927(c) ("Regardless of its source, we will evaluate every medical opinion we
receive."). See also 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3) (" We will assess your residual
functional capacity based on all of the relevant medical and other evidence."). Unless a treating
source's opinion is given controlling weight, Social Security regulations provide that every
medical opinion will be evaluated and weighed considering the following factors: the length and
nature of the treatment relationship, the evidence that the source offered in support of his
opinion, the consistency of the opinion with the record as a whole, and whether the source was
practicing a specialty. See 20 C.F.R. §§ 404.1527(c), 416.927(c); Ealy, 594 F.3d at 514. When
an ALI completely ignores the evidence from non-treating sources that is inconsistent with the
ALJ 's RFC assessment, a remand may be required . Nolan v. Comm 'r ofSoc. Sec., No.

18

2:12-cv-477, 2013 WL 4831029, at *4 (S.D. Ohio Sept. 10, 2013). A remand will not be
required when the ALJ's omission is harmless error. Rabbers, 582 F.3d at 654 ("[I]f an agency
has failed to adhere to its own procedures, we will not remand for further administrative
proceedings unless ' the claimant has been prejudiced on the merits or deprived of substantial
rights because ofthe agency's procedural lapses."') (quoting Connor v. U.S. Civil Serv. Comm 'n,
721 F.2d 1054, 1056 (6th Cir. 1983)); Rudd v. Comm 'r ofSoc. Sec. , 531 F. App 'x 719,730 (6th
Cir. 2013) (finding perceived omission from hypothetical to the VEto be harmless error and
citing Rabbers for the proposition that an administrative agency's failure to follow its own
procedures is reviewed for hannless error).
Here, the ALJ erred by failing to evaluate Dr. Groneck' s mental health assessment and
assign weight to his opinion. The ALJ's decision includes no analysis of the factors in 20
C.F.R. §§ 404.1527(c) and 416.927(c) as they apply to Dr. Groneck' s opinion, such as whether
his conclusions are supported by his examination findings or are consistent with the record as a
whole. The ALJ simply summarized Dr. Groneck's conclusions in her written decision and did
not further consider his findings and opinions. (Tr. 20). The ALJ' s failure to comply with the
Social Security regulations by not weighing this opinion evidence was error. See Spurlock v.
Comm 'r of Soc. Sec., No. I : 14-cv-990, 2015 WL 7423621 , at *8 (S.D. Ohio Nov. 23, 2015)

(Report and Recommendation) , adopted, 2015 WL 9460471 (Dec. 28, 20 15).
Further, the ALJ's failure to evaluate and weigh the examining psychologist's opinion is
not harmless error. Dr. Groneck assessed limitations in the following areas: ( 1) plaintiff is likely
to have difficulty with multi-step job instructions, and (2) plaintiff is likely to work at a slower
pace than his peers. (Tr. 521 ). The ALJ included the following restrictions in the RFC to

19

account for plaintiffs difficulty with multi-step instructions: plaintiff"is capable of completing
only simple routine tasks in which instructions can be repeated as necessary, and of completing
only tasks which are relatively static in nature and in which changes are infrequent and can be
explained." (Tr. 19). These restrictions are insufficient to accommodate plaintiffs difficulties
with pace. See Spurlock, 2015 WL 7423621 , at *8 (limiting the plaintiffto work involving
simple instructions and simple tasks did not account for the consultative examining
psychologist' s assessment that plaintiff "may show work pace slower to that of his work peers"
on "tasks requiring rapid timed performance") (citing Ealy, 594 F .3d at 516-17). The ALJ did
not include any additional restrictions in the RFC to account for pace-based restrictions. Thus,
the RFC is inconsistent with Dr. Groneck' s assessment. It is impossible to discern from the
ALJ ' s written decision why the ALJ rejected Or. Groneck' s assessment of limitations in this area
and to determine whether her reasons are substantially supported by the evidence. Because Dr.
Groneck assessed additional pace-based mental limitations that the ALJ did not include in the
RFC, the ALJ's failure to analyze Dr. Groneck's opinion in accordance with the factors in 20

C.F.R. §§ 404.1527(c) and 416.927(c) is not harmless error.
The hypothetical the ALJ relied upon to find plaintiff is able to perform a significant
number of jobs in the national economy is also inconsistent with Dr. Groneck's opinion. The
VE who testified at the ALJ hearing could not definitively state whether a hypothetical individual

with the limitations proposed by the ALJ could maintain competitive, unskilled employment on a
sustained basis if the individual consistently worked at a slower pace than other work peers as
assessed by Dr. Groneck. (Tr. 51-52). The VE testified only that it " is possible" the individual
could do so, even if he was the slowest member of the crew, so long as the individual were

20

meeting "some base line." (Tr. 52). The VE did not specify the base line the individual would
have to meet. The VE' s equivocal testimony is insufficient to support a finding that an
individual with the pace-based restrictions assessed by Dr. Groneck would be able to perform a
significant number of jobs in the national economy. See Sias v. Sec y ofHealth & Human
Servs., 861 F.2d 475,481-82 (6th Cir. 1988) ("[I]fthe vocational ... expert is unable to testify

without qualification about the jobs a claimant can perform, the ALJ may not rely on his
opinion.") (citing Hall v. Bowen, 837 F.2d 272, 274 (6th Cir. 1988); Graves v. Secretary of
Health, Education and Welfare, 473 F.2d 807 (6th Cir. 1973); Vasquez v. Schweiker, 701 F.2d

733 (8th Cir. I 983)). Because the ALJ failed to evaluate Dr. Groneck's opinion and the
pace-based restrictions he assessed as required under the Social Security regulations, the ALJ
was not entitled to rely on the VE's testimony at step five of the sequential evaluation process to
five plaintiff is not disabled.
For these reasons, the ALI erred by failing to evaluate the functional mental limitations
assessed by Dr. Groneck and to assign weight to Dr. Groneck' s opinion. The ALI's omission is
not harmless error. Dr. Groneck's opinion is inconsistent with both the RFC formulated by the
ALJ and the ALJ' s finding that there are a significant number of jobs in the national economy
plaintiff is able to perform. Plaintiff's second assignment of error should therefore be sustained.
III. This matter should be reversed and remanded
In determining whether this matter should be reversed outright for an award of benefits or
remanded for further proceedings, the Court notes that all essential factual issues have not been
resolved in this matter, nor does the current record adequately establish plaintiff's entitlement to
benefits as of his alleged onset date. Faucher v. Secretary ofH.H.S., 17 F.3d 171, 176 (6th Cir.

21

1994). This matter should be remanded for further proceedings, including the evaluation and

-

weighing of the medical opinion of consultative examining psychologist Dr. Oro neck.

IT IS THEREFORE RECOMMENDED THAT:
The decision of the Commissioner be REVERSED and the matter be REMANDED for
further proceedings pursuant to Sentence Four of 42 U.S.C. § 405(g) ..

~L~

Karen L. Litkovitz
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Case No. I: 14-cv-947
Beckwith, J.
Litkovitz, M.J.

WESLEY L. SNELL,
Plaintiff,
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 ofthe 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).

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