Fithen v. Commissioner of Social Security

Filing 23

REPORT AND RECOMMENDATION that the decision of the Commissioner be Reversed and the matter be Remanded for further proceedings pursuant to Sentence Four of 42 USC 405(g). Objections to R&R due by 4/25/2016. Signed by Magistrate Judge Karen L. Litkovitz on 4/6/2016. (art)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

RALPH EDWARD FITHEN,
Plaintiff,

Case No. I: 15-cv-213
Dlott, J.
Litkovitz, M.J.

vs.

COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

REPORT AND
RECOMMENDATION

Plaintiffbrings 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. 14), the Commissioner's response in opposition (Doc. 21), and plaintiffs reply
(Doc. 22).
I. Procedural Background

Plaintiff protectively filed his application for DIB in February 20 12, alleging disability
since September 30, 2008, due to degenerative disc disease and depression. The application was
denied initially and upon reconsideration. Plaintiff, through counsel, requested and was granted
a de novo hearing before administrative law judge (AU) Vincent Misenti. Plaintiff and a
vocational expert (VE) appeared and testified at the AU hearing. On November 22, 2013, the
ALJ issued a decision denying plaintiff's DIB application. Plaintiffs request for review by the
Appeals Council was denied, making the decision of the AU 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). 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) If the 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. , 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. !d. ; Wilson v. Comm 'r ofSoc. Sec., 378 F.3d 541 , 548
2

(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. Apf 168 F.3d 289, 291 (6th
el,
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 met] the insured status requirements of the Social Security Act
through December 31, 2013.
2. The [plaintiff] has not engaged in substantial gainful activity since September
30, 2008, the alleged onset date (20 CFR 404.1571 et seq.) .
3. The [plaintiff] has the following severe impairments: lumbar degenerative disc
disease and affective disorder (20 CFR 404.1520(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 1 (20 CFR 404.1520(d), 404.1525, 404.1526).
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) with the following: He can occasionally climb
ramps and stairs, balance, stoop, kneel, crouch and crawl; no climbing ropes,
ladders or scaffolds; no working around unprotected heights or moving
mechanical parts; no commercial driving; and no concentrated exposure to fumes,
dusts, gases, odors, poorly vented areas and chemicals. He is capable and limited
to understanding, remembering and carrying out simple, routine and repetitive
tasks; not able to perform at a production rate pace, but can perform goal oriented
work; is capable of using judgment limited to simple work-related decisions; is
capable of social interaction with supervisors, coworkers, and the public
occasionally; and is limited to tolerating few changes in a routine work setting,
defined as working in a static environment.

3

6. The [plaintiff] is unable to perform any past relevant work (20 CFR 404.1565). 1
7. The [plaintiff] was born [in] ... 1960 and was 47 years old, which is defined as
a younger individual age 18-49, on the alleged disability onset date. The
[plaintiff] subsequently changed age category to closely approaching advanced
age (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 [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)). 2
11. The [plaintiff] has not been under a disability, as defined in the Social
Security Act, from September 30, 2008, through the date of [the AU's] decision
(20 CFR 404.1520(g)).
(Tr. 17-28).

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 ofthe ALJ are supported by
substantial evidence, and (2) whether the ALJ applied the correct legal standards. See Blakley v.
Comm 'r of Soc. 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).

1

Piaintiffs past relevant work was as a heating and air conditioning servicer/installer, a medium, skilled position which
plaintiff performed at the medium to heavy exertionallevel, and heating and air conditioning mechanic helper, a heavy,
skilled position which plaintiff performed at the light exertional level. (Tr. 27).
2

The ALJ relied on the VE's testimony to find that plaintiff would be able to perfonn the requirements of representative light
occupations such as housekeeping cleaner (385,000 jobs nationally) and stock clerk (215 ,000 jobs nationally). (Tr. 28).

4

The Commissioner' s findings must stand ifthey 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. 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 Commissio ner'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 AU ' 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
Plaintiff alleges that the ALJ erred by: (1) failing to properly weigh the psychological
opinion evidence; (2) failing to consider the results of a functional capacity evaluation (FCE)
performed by a physical therapist in September 2011; and (3) finding that plaintiff did not have
an impairment or combination of impairments that met or medically equaled Listing 1.04(A) for
disorders of the spine.

5

1. Weight to the psychological opinion evidence
Plaintiff alleges that the ALJ erred by failing to give sufficient weight to the April and
May 2012 opinions ofhis treating psychologist, Dr. George Lester, Psy.D. (Doc. 14 at 6-1 2;
Doc. 22 at 1-3).
It is well-established that the findings and opinions of treating physicians (and
psychologists) 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 of Soc. 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 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. 201 1). If the 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

6

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 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 (citation omitted). See also 20 C.F.R. §
404.1527(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 ofthe rule." Gay heart, 710 F.3d at 376 (quoting Wilson, 378 F.3d at 544).
In his decision, the ALJ evaluated two opinions issued by plaintiffs treating
psychologist, Dr. Lester. Dr. Lester completed a medical questionnaire dated April 30, 2012.
{Tr. 463-465). Dr. Lester reported that he had first seen plaintiff on August 2, 2010, and had last
seen him on April 26, 2012. {Tr. 466). Dr. Lester reported that plaintiff was "oriented x 3," he
was focused on hi s pain, and his mood was "improved on Cymbalta but stress tolerance remains
brittle." (Tr. 464). Dr. Lester assessed plaintiffs IQ as "borderline" and he reported that
7

plaintiff had difficulties with pace "due to pain." (!d.). Dr. Lester described plaintiff as
" (s]ometimes confused, overwhelmed [and] anxious," which affected his concentration, and at
times indecisive. (!d.) . He reported that pain affected plaintiffs ability to carry out chores such
as "weed-eating" and "walking distances," and that sleep remained a problem at times. (!d.) .
Dr. Lester reported that plaintiffhad "very few interests," he "[s]ocializes with family," and he
maintained his hygiene. (!d.). Dr. Lester reported that plaintiff was "anxious [and] eager to
please." (!d.). Dr. Lester stated that plaintiff "was severely depressed up until a few months
ago- tearful, confused, agitated." (!d.). He reported that pain management had "improved [his]
quality oflife but remains limited." (Jd. ). Dr. Lester reported that plaintiffs symptoms had
"definitely improved" over the course of two years and his ability to tolerate stress was
" [b]etter," but his stress tolerance remained "brittle," "weak," and "fair to poor." (Tr. 464-65).
Dr. Lester reported that at times plaintiff was overwhelmed and confused and asked for much
guidance and support to make seemingly obvious decisions. (Tr. 465).
Dr. Lester completed a Medical Source Statement two weeks later on May 14, 2012. (Tr.
503-07). He diagnosed plaintiff with a depressive disorder and assigned him a GAF score of 5055.3 (Tr. 503). Dr. Lester reported that he had seen plaintiff one to two times per month since
August 2, 2010. (!d.) . He reported that plaintiff recalled 3 of 5 objects after 5 minutes; he was
"oriented x 3"; and his concentration was affected by pain, depression and anxiety. (Tr.

3

GAF is a clinician' s subjective rating, on a scale of 0 to I 00, of an individual's overall psychological functioning.
Kornecky v. Comm 'r ofSoc. Sec., 167 F. App'x 496, 503 n. 7 (6th Cir. 2006). The Diagnostic and Statistical
Manual ofMental Disorders categorizes individuals with scores of 41 to 50 as having "serious" symptoms. DSM-IV
at 34. A GAF of 51-60 indicates "moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic
attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers
or co-workers)." !d.

8

504). He opined that plaintiff's impairments or treatment would cause him to be absent from
work more than 3 times each month. (ld.). Dr. Lester answered "no" to the general question of
whether plaintiff's ability to understand, remember and carry out instructions was affected by the
impairment. {Tr. 505). Although instructed by the form to skip the next portion of the question
if the answer to the first part was "no," Dr. Lester answered the remainder of the question which
asked him to rate the individual 's degree of limitation in this area. Dr. Lester rated plaintiff's
degree of impairment as follows:
•

no/mild to moderate loss of ability to remember locations and work-like
procedures

•

no/mild loss of ability to understand and remember very short, simple instructions

•

no/mild to moderate loss of ability to carry out very short, simple instructions

•

moderate loss of ability to understand and remember detailed instructions

•

marked loss of ability to carry out detailed instructions

•

moderate loss of ability to maintain attention and concentration for extended
periods (2 hour segments)

•

marked loss of ability to maintain regular attendance and be punctual

•

moderate to marked loss of ability to sustain an ordinary routine without special
supervision

•

moderate loss of ability to deal with the stress of semi-skilled and skilled work

•

moderate loss of ability to work in coordination with or proximity to others
without being unduly distracted

•

no/mild loss of ability to make simple work-related decisions

•

moderate to marked loss of ability to complete a normal workday or workweek
without interruptions from psychologically based symptoms

9

• marked loss of ability to perform at a consistent pace without an unreasonable
number and length of rest periods
Dr. Lester also reported that plaintiffs ability to respond appropriately to supervision,
coworkers and work pressure in a work setting was affected by plaintiffs impairment as
follows:
• no/mild loss of ability to interact appropriately with the public and ask simple
questions or request assistance
• no/mild loss of ability to maintain socially appropriate behavior
• moderate loss of ability to accept instructions and respond appropriately to
criticism from supervisors
• moderate loss of ability to respond appropriately to changes in a routine work
setting
• moderate loss of ability to get along with coworkers and peers without unduly
distracting them or exhibiting behavioral extremes
• moderate loss of ability to set realistic goals or make plans independently of
others
(Tr. 505-06). Dr. Lester opined that plaintiff had slight restriction of activities of daily living; no
difficulties in maintaining social functioning; frequent deficiencies of concentration, persistence
or pace resulting in failure to complete tasks in a timely manner; and one or two episodes of
deterioration or decompensation in a work or work-like setting causing the individual to
withdraw from the setting or experience an exacerbation of symptoms. (Tr. 506-07).
The ALJ accorded "great weight" to Dr. Lester's April2012 opinion that plaintiffhad
been "severely depressed up until a few months ago," pain management had improved his
quality oflife, and his symptoms had improved but his stress tolerance "remain[ed] weak." (Tr.
24). The ALJ found that as plaintiffs treating source for his mental impairment, Dr. Lester was
10

"familiar with [plaintiffs] condition and limitations." (!d.). The ALJ assigned "little weight" to
Dr. Lester's assessment issued on May 14, 2012. (Tr. 25). The AU found that Dr. Lester's
assessment was internally contradictory and was inconsistent with Dr. Lester's opinion of two
weeks earlier that plaintiff"was improving." (!d.). In addition to these two assessments, the
AU noted that Dr. Lester had completed several workers compensation forms in which he stated
that plaintiff had been disabled due to his work-related injury/disease since May 2010 and
provided return to work dates. (!d., citing Tr. 478, 479, 500). The AU gave the opinion stated
in those forms "little weight" because Dr. Lester provided no functional limitations. (!d.).
Plaintiff alleges that the AU ' s decision to give less than "great weight" to Dr. Lester's
May 2012 opinion is not substantially supported. Plaintiff alleges that Dr. Lester was equally
familiar with plaintiffs psychological condition and the limitations it imposed in April and May
2012, but the ALJ improperly credited only the April 2012 opinion on this ground; Dr. Lester' s
May 2012 opinion is consistent with his treatment notes; and Dr. Lester's opinion is consistent
with the opinion of one-time examining psychologists Dr. Roberto Madrigal, Ph.D. {Tr. 437-40)
and Dr. Kennth Manges, Ph.D. {Tr. 518-23).
The AU 's decision to give less than controlling weight to the May 2012 opinion of
plaintiffs treating psychologist is not supported by substantial evidence. The ALJ did not apply
the treating physician rule to determine whether Dr. Lester's opinion was entitled to controlling
weight. First, the AU did not consider whether Dr. Lester's opinion was supported by his
treatment notes and findings. See Gayheart, 710 F.3d at 376. Those treatment notes generated
over a two-year period consistently report moderate to severe symptoms of depression (Tr. 473,
477, 480, 482, 486, 498); concentration problems (Tr. 473, 477, 484, 485, 486); sleep problems
11

(Tr. 473, 477, 480, 484, 485, 486, 499); memory difficulties (Tr. 473, 477, 484, 485, 486);
feelings ofhopelessness/helplessness (Tr. 473, 477, 484, 486); feelings ofbeing
exhausted/overwhelmed (Tr. 473, 477, 480, 482, 484, 485, 486, 498); chronic worry (Tr. 473,
477, 480, 483, 484, 485, 486, 498, 499); feeling apprehensive/vigilant (Tr. 480, 482, 498); and
ruminations (Tr. 499). The treatment notes also consistently report mild to severe panic attacks
(Tr. 480, 482, 483, 498, 499) and crying spells (Tr. 473, 483, 499). The AU gave no
consideration to Dr. Lester's treatment notes and the symptoms they repeatedly documented
when evaluating the weight to give his opinion.
The second prong of the treating physician rule requires the AU to evaluate whether the
treating provider's opinion "is not inconsistent with the other substantial evidence in [the] case
record." Gayheart, 710 F.3d at 376 (citing 20 C.F.R. § 404.1527(c)(2)). Dr. Lester's findings
appear to be consistent with many of the findings and reports of the examining psychologists of
record who evaluated plaintiff on behalf of the Bureau of Workers Compensation: Dr. Michael
A. Murphy, Ph.D., Dr. Madrigal, and Dr. Manges. Gayheart, 710 F.3d at 376. Dr. Murphy

evaluated plaintiff in June 2011. (Tr. 339-348). Dr. Murphy conducted a clinical interview and
mental status examination, obtained a psychosocial history, administered the Millon Clinical
Multiaxial Inventory-III (MCMI-Ill), and performed a file review. Dr. Murphy opined that
plaintiff was approaching maximum medical improvement and should be referred to vocational
rehabilitation, continue treatment, and be re-examined for extent of disability in 90-120 days.

12

(Tr. 347). Dr. Murphy further opined that a functional capacities exam should be considered.
(!d.). He listed plaintiffs functional limitations as dysphoric mood and reduced concentration.
(!d.).

Dr. Madrigal evaluated plaintiff on April 2, 2012. (Tr. 43 7-40). Dr. Madrigal reviewed
records which spanned a nearly three-year period consisting of numerous psychological
evaluation and medical examination reports and a psychological treatment summary prepared by
Dr. Lester. (Tr. 437). Dr. Madrigal administered a Minnesota Multiphasic Personality
Inventory-2 (MMPI-2), conducted a clinical interview, and obtained a psychosocial history. (Tr.
439). Dr. Madrigal reported that plaintiffs memory and concentration were "poor." (Tr. 439).
He opined that the results of his evaluation indicated "the presence of 'significant
psychopathology."' (!d.). Dr. Madrigal opined that while plaintiffhad shown "good response to
treatment," he had not reached maximum medical improvement for his allowed psychological
condition; considering only his allowed psychological conditions, he could not return to his
previous employment position or to gainful employment; vocational rehabilitation was not
recommended until his medical condition stabilized; and current treatment was appropriate and
necessary and should continue for at least six more months, after which a reexamination should
be considered. (Tr. 439-40). Dr. Madrigal diagnosed plaintiff with Depressive Disorder NOS
and assigned him a GAF of70. 4 Dr. Madrigal concluded that plaintiff could not return to his
previous position of employment or return to gainful employment based on his allowed
psychological condition. (Tr. 439-40).

4

A GAF score of 6 I to 70 indicates "[s]ome mild symptoms (e.g., depressed mood and mild insomnia)" or "some
difficulty in social, occupational, or school functioning ... but generally functioning pretty well." DSM-!Vat 34.

13

Dr. Manges reviewed the psychological evaluation reports and treatment summaries,
interviewed plaintiff, and administered an MCMI-III on August 9, 2012. (Tr. 518-23). Dr.
Manges opined that plaintiff had reached maximum medical improvement (MMI) with respect to
his depressive disorder. (Tr. 521 ). He rated plaintiff as having a "65% impairment: compatible
with all useful functioning" in the areas of activities of daily living, social functioning,
concentration, and adaptation, and he opined that these areas of functioning were "moderately
affected" overall by plaintiffs workplace injury. (Tr. 521-22). Dr. Manges concluded that
plaintiffhad a 65% whole person impairment as a result of his injury and that he was incapable
of work based solely on his allowed psychological conditions without consideration of his age,
education or work training. (Tr. 522-23).
The ALJ failed to consider whether Dr. Lester's opinion was consistent with the
examining psychologists' findings and opinions as required under the treating physician rule.
This was error. See Gayheart, 710 F.3d at 376.
Even assuming, arguendo, that the ALI's decision to afford less than controlling weight
to Dr. Lester' s opinion is substantially supported, the ALJ ' s decision falls far short of the
Agency' s own procedural requirements. A finding that a treating source medical opinion is not
entitled to "controlling weight" does not mean that the opinion should be rejected. Soc. Sec. Rul.
96-2p, 1996 WL 374188, at *4. "Treating source medical opinions are still entitled to deference
and must be weighed using all ofthe factors provided in 20 C.F.R. § 404.1527 and 416.927."

!d.; Blakley, 581 F.3d at 408. The ALJ did not consider the regulatory factors in deciding the
weight to afford Dr. Lester's May 2012 opinion, including the length, nature and extent ofthe
treatment relationship; the frequency of examination; and whether Dr. Lester' s report was
14

consistent with the record as a whole. Instead, the ALJ discounted the May 2012 opinion on two
grounds: ( 1) it was self-contradictory, and (2) it was at odds with Dr. Lester's April 2012 opinion
that plaintiff "was improving." (Tr. 25). These reasons do not provide substantial support for
the ALl ' s decision. The inconsistency in Dr. Lester's report emphasized by the ALJ in his
written decision appears to be the result of a mistake by Dr. Lester in completing the May 2012
medical form .5 As noted earlier, Dr. Lester answered "no" to the general question of whether
plaintiff's ability to understand, remember and carry out instructions was affected by his mental
impairment. (Tr. 505). However, Dr. Lester did not skip the remainder of the question as the
form instructs the provider to do ifhe has checked the "no" response. (!d.). Instead, Dr. Lester
went on to rate plaintiff's specific degrees of loss of ability to understand, remember and carry
out instructions, which he indicated ranged from no/mild to marked. (!d.). It therefore appears
that Dr. Lester's "no" answer was a clerical error. The ALJ did not explain the other
contradictions he discerned in the report or their significance to the disability analysis.
The only other reason the ALJ gave for discounting Dr. Lester' s May 2012 opinioninconsistency with the April2012 opinion noting improvement in plaintiff's condition- is
likewise unsupported. The Social Security regulations recognize that a claimant's level of
functioning may vary considerably over time and that longitudinal evidence is required in the
case of mental impairments. 20 C.P.R. Pt. 404, Subpt. P, App. 1, 12.00(D)(2). " Improvement"
in the level of mental functioning is a relative concept and is dependent on the base level from
which the improvement is measured:

5

The ALJ noted that Dr. Lester opined that plaintiff's "ability to understand, remember and cany out instructions
was NOT affected by his impairment. ..." (Tr. 24).

15

Even if [a doctor's] use of the word " better" referred to Plaintiff's mood, this
word did not provide the ALJ with substantial evidence from which to find that
Plaintiff's mental impairment had subsided. The ALJ made no inquiry into the
degree of improvement, or from what baseline Plaintiff had improved. Under the
ALJ's logic, any improvement in one's mood, regardless ofhow small and from
what level the individual improved, would defeat a claim of mental impairment.
This cannot be so.
Boulis-Gasche v. Comm 'r ofSoc. Sec. , 451 F. App'x 488, 494 (6th Cir. 2011 ).

The ALJ here applied the reasoning which the Sixth Circuit rejected in Boulis-Gasche.
The ALJ discounted Dr. Lester's May 2012 assessment based on improvement in plaintiff's
mental condition noted in the April 2012 report. (Tr. 25). However, the ALJ did not cite any
findings or evidence to show the baseline from which plaintiff's condition had improved or the
degree of improvement. (ld.). The degree of improvement cannot be gauged from Dr. Lester's
report. Dr. Lester assessed no functional limitations in the April 2012 questionnaire, and his
report provides no other means for measuring the degree of improvement. (Tr. 459-61 ). Dr.
Lester generally reported in April 2012 that plaintiff's mood was " improved" on Cymbalta,
plaintiff had been "severely depressed" until a few months earlier, pain management had
"improved" plaintiff's quality oflife, and his symptoms had "(d]efinitely improved" with
treatment. (Tr. 460-61 ). However, Dr. Lester further indicated that while plaintiff's condition
had improved, plaintiff continued to experience significant mental health symptoms. (Id.). Dr.
Lester reported that plaintiff's stress tolerance remained "brittle," "fair to poor," and "weak," and
that issues with feeling confused, overwhelmed, and anxious affected his concentration. (!d.).
The ALJ did not explain in what way these findings were inconsistent with the May 2012
assessment which, in contrast to the April 2012 questionnaire, imposed specific functional
limitations. Although Dr. Lester assessed plaintiff's depression as less severe in April 2012 than
16

it had been a few months earlier, Dr. Lester's finding of improvement in April 2012 does not
support the ALJ's finding that plaintiffs depression was not sufficiently severe to impose the
limitations assessed by Dr. Lester in May 2012 and his decision to discount the May 2012
assessment on that ground.
Finally, the ALJ's reasons for the weight he assigned Dr. Lester' s April and May 2012
assessments are not consistent. Dr. Lester issued his April and May 2012 opinions less than one
month apart. The ALJ gave "great weight" to Dr. Lester' s April 2012 opinion on the sole ground
that as plaintiffs treating psychologist, Dr. Lester was familiar with plaintiffs "condition and
limitations." (Tr. 24). Yet, despite the continued relevance of this factor, the ALJ gave no
consideration to Dr. Lester' s treating relationship with plaintiff when weighing the May 2012
evaluation.
Thus, the reasons the ALJ gave for discounting Dr. Lester's opinion are not "supported
by the evidence in the case record, and [are not] 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." Gayheart, 710 F.3d at 376 (citing SSR 96-2p, 1996 WL
374188, at *5). The ALJ did not apply the treating physician rule in a manner that permits
meaningful review of the ALJ's application of the rule. Wilson, 378 F.3d at 544.
Instead of crediting Dr. Lester' s May 2012 assessment, the ALJ adopted the assessments
of state agency reviewing psychologists Dr. Vickie Warren, Ph.D., who reviewed the record on
June 13, 2012 (Tr. 78-82, 84-86), and Dr. Mel Zwissler, Ph.D., who affirmed Dr. Warren ' s
assessment on reconsideration on September 11 , 2012 (Tr. 96-97, I 00-02). Dr. Warren opined
that plaintiff had mild restrictions in his activities of daily living; moderate difficulties in
17

maintaining social functioning; moderate difficulties in maintaining concentration, persistence or
pace; and no repeated episodes of decompensation of extended duration. (Tr. 80). Dr. Warren
found that plaintiffs allegations related to his psychological symptoms were generally supported
by the medical evidence of record but noted that his mental status findings had reportedly
improved with pain management treatment. (Tr. 81). Dr. Warren concluded that plaintiff was
capable of at least 3-4 step activity based on his past work history; work activity that does not
require close attention to detail; work activity in settings where social demands are no more than
superficial in nature; and no work in settings where change occurs frequently. (Tr. 84-86). The
ALJ gave "great weight" to the opinions of the reviewing psychologists because: (I) they
"reviewed the entire record at that time," and (2) they are knowledgeable about the disability
program and its rules and requirements. (Tr. 26).
The ALJ's decision to credit the state agency psychologists' opinions over those of the
treating and examining psychologists was not, in itself, reversible error. Blakley , 581 F.3d at
409. "In appropriate circumstances, opinions from State agency medical ... consultants ... may
be entitled to greater weight than the opinions of treating or examining sources. Soc. Sec. Rul.
96-6p, 1996 WL 374180, at *3 (July 2, 1996). One such circumstance may occur, for example,
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." ' !d. Such circumstances are not present here. Dr. Lester
treated plaintiff beginning August 2010 and saw him just days before completing his April 2012
assessment. (Tr. 466). Like the reviewing psychologists, the one-time examining psychologists
also reviewed the entire record available as of the date of their examinations and, in the case of
18

Dr. Manges, had a more extensive record available to review than did Dr. Warren. (Tr. 518-23).
Thus, the ALJ did not reasonably credit the state agency psychologists' opinions on the ground
they reviewed the record in connection with their assessments. The only other reason the ALJ
gave for crediting the reviewing psychologists' opinions- familiarity with the Social Security
rules and regulations - is one factor the ALJ may consider in evaluating a medical source opinion
but it is not a sufficient basis for crediting a reviewing source's opinion. The ALJ is bound to
consider the remaining regulatory factors. See 20 C.F.R. § 404.1527(e)(ii) ("When an [ALJ]
considers findings of a State agency medical or psychological consultant or other program .. .
psychologist ... , the [ALJ] will evaluate the findings using the relevant factors in paragraphs (a)
through (d) of this section, such as the consultant's medical specialty and expertise in our rules,
the supporting evidence in the case record, supporting explanations the medical or psychological
consultant provides, and any other factors relevant to the weighing of the opinions. Unless a
treating source's opinion is given controlling weight, the [ALJ] must explain in the decision the
weight given to the opinions of a State agency . .. psychological consultant or other program ...
psychologist . .. , as the [ALJ] must do for any opinions from treating sources, nontreating
sources, and other nonexamining sources who do not work for us. "). The ALJ erroneously failed
to balance the regulatory factors in deciding the weight to afford the reviewing psychologists'
opinions in this case.
The ALJ erred by discounting the opinions of plaintiffs treating psychologist, Dr. Lester,
and instead crediting the opinions of the non-examining state agency psychologists on grounds
that do not substantially support his decision. Plaintiffs first assignment of error should be
sustained.
19

2. The ALJ's failure to consider the physical therapist's Functional Capacity
Evaluation (FCE)
Plaintiff alleges that the ALJ erred by failing to consider an FCE completed by physical
therapist Suzie Dorma in September 2011. (Doc. 14 at 12-14, citing Tr. 555-59; Doc. 22 at 3-4).
In support ofhis argument, plaintiff relies on Bowen, 478 F.3d 742, which held that the ALJ's
failure to mention the RFC opinion of a treating psychologist violated 20 C.F.R. §
404.1527(c)(2)6 and was not harmless error. Plaintiff alleges that the ALJ should have given this
evaluation limiting him to sedentary work substantial weight. Plaintiff alleges that had the ALJ
properly credited the FCE, he would necessarily be found disabled under Grid Rule 201.14 as of
October 15, 2010, the date he turned 50 years old.
Defendant responds that the ALJ was not required to discuss all of the evidence
submitted, and the ALJ 's failure to cite the FCE does not indicate that the ALJ failed to consider
the evidence. (Doc. 21 at 11-14, citing Simons v. Barnhart, 114 F. App'x 727, 733 (6th Cir.
2004)). Defendant further argues that any error the ALJ committed by failing to consider the
evidence was harmless because a physical therapist is not an acceptable medical source whose
opinion is entitled to controlling weight under the regulations; the ALJ discussed in detail the
results of physical assessments performed around the time of the FCE by plaintiffs treating pain
specialist, Dr. Mitchel E. Simons, M.D.; and the ALJ's physical RFC finding is supported by the
state agency reviewing physicians' assessments.
In determining whether the ALJ's decision is supported by substantial evidence, the
administrative record must be considered as a whole. Morgan v. Astrue, No. 2:08-cv-11 08, 20 I 0

6

This provision was formerly found at§ 404.1527(d)(2).

20

WL 547489, at *2 (S.D. Ohio Feb. 11 , 2010) (citingKirkv. Sec'yofHealth & Human Servs.,
667 F.2d 524,536 (6th Cir. I98I)). "Although required to develop the record fully and fairly, an
ALJ is not required to discuss all the evidence submitted, and an ALI ' s failure to cite specific
evidence does not indicate that it was not considered." Simons, 114 F. App ' x at 733 (quoting
Craig v. Apfel, 2I2 F.3d 433, 436 (8th Cir. 2000)). But see 20 C.F.R. § 404.I527(c)

("Regardless of its source, we will evaluate every medical opinion we receive.").
Plaintiff has not shown that the ALJ erred by failing to discuss the physical therapist's
FCE. Physical therapists are not "acceptable medical sources" under the Social Security
regulations. See 20 C.F.R. § 404.I513(a); SSR 06-03p, 2006 WL 2329939, at *2. Only an
"acceptable medical source" can give a medical opinion. SSR 06-03p, 2006 WL 2329939, at *2.
Because a physical therapist is not considered an "acceptable medical source" under the
regulations, an ALJ is not required to give any special deference to a physical therapist's report.
Nierzwick v. Comm 'r of Soc. Sec., 7 F. App'x 358, 363 (6th Cir. 2001) (physical therapist' s

report not afforded significant weight because therapist not recognized as an acceptable medical
source); Jamison v. Comm 'r, No. I :07-cv-I52, 2008 WL 2795740, at* I 0 (S.D. Ohio July 18,
2008) (same)). Thus, the ALJ was not required to give any special deference or weight to Ms.
Derma's FCE. The ALJ did not err by omitting mention of the FCE in the written decision.
Plaintiffs second assignment of error should be overruled.

3. The ALJ's Step Three analysis
Plaintiff alleges that the ALJ erred by finding that his severe back impairment does not
meet or equal Listing 1.04(A) for disorders of the spine, 20 C.F.R. Pt. 404, Subpt. P, App. 1, §
I.04. (Doc. 14 at 14-22; Doc. 22 at 4-5). Listing 1.04(A) provides:
2I

1.04 Disorders ofthe spine (e.g., herniated nucleus pulposus, spinal arachnoiditis,
spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral
fracture), resulting in compromise of a nerve root (including the cauda equina) or
the spinal cord. With:
A. Evidence of nerve root compression characterized by neuro-anatomic
distribution of pain, limitation of motion of the spine, motor loss (atrophy with
associated muscle weakness or muscle weakness) accompanied by sensory or
reflex loss and, if there is involvement of the lower back, positive straight-leg
raising test (sitting and supine)[.]
(!d.). Thus, to satisfy Listing 1.04(A), plaintiff must demonstrate: (1) neuro-anatomic

distribution of pain; (2) limitation of motion of the spine; (3) motor loss (atrophy with associated
muscle weakness or muscle weakness); (4) sensory or reflex loss; and ( 5) positive straight leg
raise test, in both the sitting and supine positions. In addition, the regulations require that the
abnormal findings must be established over a period of time: "Because abnormal physical
findings may be intermittent, their presence over a period of time must be established by a record
of ongoing management and evaluation." 20 C.F.R. Part 404, Subpart P, Appendix 1, § 1.000.
The ALJ found that Listing 1.04(A) was not met here because the record did not
demonstrate "compromise of a nerve root (including the cauda equina) or the spinal cord" with
"(A) Evidence of nerve root compression characterized by neuro-anatomic distribution of pain,
limitation of motion of the spine, or motor loss (atrophy with associated muscle weakness or
muscle weakness) accompanied by sensory or reflex loss and positive straight-leg raising." (Tr.
18). Plaintiff alleges that the ALJ' s finding is not substantially supported because the ALJ failed
to consider relevant objective findings. Plaintiff alleges that the following diagnostic tests show
compromise of a nerve root resulting from a disorder of the spine: ( 1) a March 31 , 2003 lumbar
spine MRI showing "L5-S 1 shallow leftward disc displacement resulting in effacement of the
descending S 1 nerve rootlet without evidence of posterior displacement" and " L4-L5 disc
22

displacement resulting in minimal asymmetric left preforaminal and left lateral canal
encroachment" (Tr. 546); and (2) a November 13, 2009 MRI showing a "mild disc bulge L4-5
with borderline contact of exiting left L4 nerve root." (Tr. 326, 33 7).
Plaintiff is required to produce evidence that all of the criteria of Listing 1.04(A) are
satisfied, which he failed to do. Plaintiff points to no evidence of nerve root compression in the
record. The MRI reports do not include a diagnosis of nerve root compression. (Tr. 326-27,
337, 546-47). In fact, Dr. Ian P. Rodway, M.D., who evaluated plaintiff for back and right lower
extremity pain on January 6, 2010, reported that plaintiffs 2009 MRI "show[ed] no obvious
nerve compression." (Tr. 326). Dr. Rodway's report, the 2003 and 2009 MRI results, and
December 2008 MRI results showing "non-compressive disc degeneration with broad based disc
displacement at L3-4" and "disc degeneration with a shallow disc protrusion causing borderline
central stenosis and mild bilateral foramina! narrowing without nerve root compression" at L4-5
(Tr. 321), substantially support the ALJ's finding that plaintiffs back impairment did not satisfy
Listing 1.04(A).
Plaintiff has not shown that the ALJ erred by failing to properly evaluate his severe back
impairment under the criteria applicable to a spinal disorder. The ALI ' s finding that plaintiff
does not satisfy Listing 1.04(A) for disorders of the spine is supported by substantial evidence.
Plaintiffs third assignment of error should be overruled.

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 plaintiffs entitlement to
23

benefits as ofhis alleged onset date. Faucher v. Secretary ofH.H.S., 17 F.3d 171, 176 (6th Cir.
1994). This matter should be remanded for further proceedings, including reweighing of the
medical opinion of treating psychologist Dr. Lester in accordance with the treating physician rule
and eliciting of additional vocational evidence as warranted.
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).

&~_.__,& -----/t =

Date: ____.'-+-___
'i!t

United States Magistrate Judge

24

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Case No. 1: 15-cv-213
Dlott, J.
Litkovitz, M.J.

RALPH EDWARD FITHEN,
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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