Dickerson v. Commissioner of Social Security

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATIONS, The Commissioners Objection, Doc. No. 19, is DENIED. The decision of the Commissioner is REVERSED and this action is REMANDED to the Commissioner of Social Security for further consideration of plaintiffs complaints of disabling fatigue. The Clerk shall enter FINAL JUDGMENT pursuant to Sentence 4 of 42 U.S.C. §405(g). Signed by Judge Algenon L. Marbley on 9/7/2011. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

RONDA S. DICKERSON,
Plaintiff,

vs.

Civil Action 2:10-CV-776
Judge Marbley
Magistrate Judge

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff in this action seeks review of the denial by the
Commissioner of Social Security of her applications for disability
insurance benefits and supplemental security income.

On August 16,

2011, the United States Magistrate Judge recommended that the decision
of the Commissioner be reversed and that this action be remanded for
further proceedings.

Report and Recommendation, Doc. No. 18.

This

matter is now before the court on the Commissioner’s objections to
that Report and Recommendation.
will consider the matter de novo.

Objection, Doc. No. 19.

The Court

28 U.S.C. §636(b); Fed. R. Civ. P.

72(b).
The administrative law judge rejected the opinions of disabling
fatigue1 articulated by plaintiff’s treating providers, Drs. Roth and

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It is true, as the Commissioner points out in the Objection, that the
administrative law judge partially credited the opinions of plaintiff’s
treating providers. A.R., 24, 25. However, the administrative law judge
rejected their opinions of disabling fatigue.

Grant, and credited instead the opinions of the consultative medical
examiner, Dr. Tripathi, and the reviewing state agency physician, both
of whom rendered their opinions prior to the diagnosis of hepatitis C.
The administrative law judge also rejected plaintiff’s subjective
complaints of fatigue as inconsistent with the medical record and with
her activities of daily living.

The Magistrate Judge concluded that

the matter should be remanded for further consideration of plaintiff’s
subjective complaints of fatigue caused by her documented hepatitis C:
This Court concludes that, in rejecting
plaintiff’s subjective complaints of fatigue and
her treating physicians’ notations of fatigue, the
administrative law judge mischaracterized the
record. Dr. Grant’s assessments of plaintiff’s
ability to engage in work-related functions have
been based primarily on fatigue.
Although the
administrative
law
judge
found
that
such
assessments were contrary to even Dr. Grant’s own
treatment notes, the fact is that Dr. Grant’s notes
are replete with references to plaintiff’s fatigue.
Although the administrative law judge rejected Dr.
Roth’s assessment as inconsistent with the
successful treatment of plaintiff’s hepatitis C,
the fact remains that, notwithstanding that
treatment, both Dr. Roth and Dr. Grant noted
persistent complaints of fatigue.
This Court
therefore concludes that the matter must be
remanded for further consideration of plaintiff’s
subjective complaints of disabling fatigue in light
of the entire record.[fn]
_________
[fn]At a minimum, it may be that plaintiff’s fatigue
resulted in a closed period of disability during
treatment for hepatitis C.

Report and Recommendation, at 8.

In the Objections, the Commissioner

argues that, because treatment of plaintiff’s hepatitis C was
apparently successful and because plaintiff did not complain of
extreme fatigue at every appointment with her treating providers, the
administrative law judge’s evaluation of the medical evidence and

2

plaintiff’s credibility enjoys substantial support in the record and
must be affirmed.
This Court agrees with the reasoning of the Report and
Recommendation.

In determining plaintiff’s residual functional

capacity, and, implicitly, in his evaluation plaintiff’s complaints of
fatigue, the administrative law judge expressly relied on the opinions
of the non-examining state agency physicians and, to a lesser extent,
the consultative examiner Dr. Tripathi.

A.R. 25. However, the record

is clear that, at the time those physicians rendered their opinions,
they did not have before them documents reflecting the diagnosis of
hepatitis C, which is the basis of plaintiff’s claimed disabling
fatigue.

Under these circumstances, the Court agrees that the matter

must be remanded for further consideration of plaintiff’s complaints
of disabling fatigue.
The Commissioner’s Objection, Doc. No. 19, is DENIED.
and Recommendation, Doc. No. 18, is ADOPTED and AFFIRMED.

The Report
The

decision of the Commissioner is REVERSED and this action is REMANDED
to the Commissioner of Social Security for further consideration of
plaintiff’s complaints of disabling fatigue.
The Clerk shall enter FINAL JUDGMENT pursuant to Sentence 4 of 42
U.S.C. §405(g).

s/Algenon L. Marbley
Algenon L. Marbley
United States District Judge

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