Tilton v. Commissioner of Social Security

Filing 19

ORDER adopting Report and Recommendations re 16 Report and Recommendations.. Signed by Judge James L Graham on 8/9/13. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Bernard A. Tilton,
Plaintiff,
v.

Case No. 2:12-cv-408

Carolyn W. Colvin,
Acting Commissioner of
Social Security,
Defendant.
ORDER
Plaintiff, Bernard A. Tilton, brings this action under 42
U.S.C. §§ 405(g) for review of a final decision of the Commissioner
of Social Security (“Commissioner”) denying his application for
disability insurance benefits. This matter is before the court for
consideration of defendant’s June 14, 2013, objections to the June
6,

2013,

report

recommending

and

that

recommendation

the

court

remand

of

the

this

magistrate

action

judge,

for

further

proceedings before the administrative law judge (“ALJ”).

For the

reasons stated below, the court overrules defendant’s objections
and adopts the magistrate judge’s report and recommendation.
I. Standard of Review
If a party objects within the allotted time to a report and
recommendation, the court “shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations

to

which

objection

is

made.”

§ 636(b)(1); see also Fed. R. Civ. P. 72(b).

28

U.S.C.

Upon review, the

court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”
U.S.C. § 636(b)(1).

28

The court’s review “is limited to determining whether the
Commissioner’s decision ‘is supported by substantial evidence and
was made pursuant to proper legal standards.’”

Ealy v. Comm’r of

Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quoting Rogers v.
Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also,
42 U.S.C. § 405(g) (“The findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence,
shall be conclusive.”).

Put another way, a decision supported by

substantial evidence is not subject to reversal, even if the
reviewing court might arrive at a different conclusion.
Bowen, 800 F.2d 535, 545 (6th Cir. 1986).

Mullen v.

“Substantial evidence

exists when ‘a reasonable mind could accept the evidence as
adequate to support a conclusion [and] . . . presupposes that there
is a zone of choice within which the decision-makers can go either
way, without interference by the courts.’”

Blakley v. Comm’r of

Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (internal citation
omitted).
decision

Even if supported by substantial evidence, however, “‘a
of

the

Commissioner

will

not

be

upheld

where

the

[Commissioner] 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 v. Comm’r of Soc. Sec., 582 F.3d
647, 651 (6th Cir. 2009) (quoting Bowen v. Comm’r of Soc. Sec., 478
F.3d 742, 746 (6th Cir. 2007).
II. Defendant’s Objections
Defendant objects to the finding of the magistrate judge that
the ALJ did not properly determine the weight to be given the
opinion

of

Dr.

Jeffrey

Williams,

physician.

2

D.O.,

plaintiff’s

treating

The Commissioner has implemented regulations concerning how
medical opinions, including those of a treating physician, are to
be weighed.

The Commissioner has also issued a policy statement,

Social Security Ruling 96-2p, 1996 WL 374188 (Soc. Sec. Admin. July
2, 1996), to guide an ALJ’s assessment of a treating-source
opinion. An opinion from a medical source who has examined a
claimant is generally given more weight than one from a source who
has

not

performed

404.1527(c)(1).

an

examination.

20

C.F.R.

§§404.1502,

An opinion from a medical source who regularly

treats the claimant is afforded more weight than one from a source
who

has

examined

the

claimant

treatment relationship.

but

does

not

have

an

ongoing

20 C.F.R. §§404.1502, 404.1527(c)(2).

Treating-source opinions must be given “controlling weight”
if: (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.”

20 C.F.R. §404.1527(c)(2).

The term “substantial

evidence” denotes a quality of evidence amounting to “such relevant
evidence as a reasonable mind would accept as adequate to support
a conclusion that is contrary to the conclusion expressed in the
medical opinion.”

Soc. Sec. Rul. No. 96-2p, 1996 WL 374188 at *3.

The conflicting substantial evidence “must consist of more than the
medical

opinions

of

nontreating

and

nonexamining

doctors.”

Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 377 (6th Cir. 2013)
Even if the opinion of the treating doctor does not meet these
“controlling weight” criteria, this does not mean that the opinion
must be rejected; rather, it “may still be entitled to deference
and be adopted by the adjudicator.” Soc. Sec. Rul. No. 96-2p, 1996

3

WL 374188 at *1.

If the Commissioner does not give a treating-

source opinion controlling weight, then the opinion is weighed
based on factors such as the length, frequency, nature, and extent
of the treatment relationship, the treating source’s area of
specialty, and the degree to which the opinion is consistent with
the record as a whole and is supported by relevant evidence.
C.F.R. §404.1527(c)(2)-(6); Gayheart, 710 F.3d at 376.

An opinion

which does not warrant controlling weight “still must be weighed as
the regulations prescribe, with no greater scrutiny being applied
to [the treating physician’s] opinions than to those of the
nontreating and nonexamining sources.”

Gayheart, 710 F.3d at 380.

If a treating source opinion is not deemed controlling,
opinions from nontreating and nonexamining sources must be weighed
based

on

the

examining

relationship

or

specialization, consistency and supportability.
Gayheart, 710 F.3d at 376.

lack

thereof,

§404.1527(c);

Policy also requires ALJs to consider

opinions by state agency physicians and consultants and to “explain
the weight given to these opinions in their decisions.”

Soc. Sec.

Rule No. 96-6p, 1996 WL 374180 at *1 (Soc. Sec. Admin. July 2,
1996).
The Commissioner is required to provide “good reasons” for
discounting

the

§404.1527(c)(2).

weight

given

to

a

treating-source

opinion.

These 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.”
Soc. Sec. Rul. No. 96-2p, 1996 WL 374188 at *5; Rogers v. Comm’r of
Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007).

4

This procedural

requirement “ensures that the ALJ applies the treating physician
rule and permits meaningful review of the ALJ’s application of the
rule.”

Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir.

2004).

The Sixth Circuit has stated that it will not hesitate to

remand when the Commissioner has not provided good reasons for the
weight given to a treating physician’s opinion. Gayheart, 710 F.3d
at 380.
As noted by the magistrate judge, documents in the record
reflect that Dr. Williams began treating plaintiff on January 25,
2002.

R. 255-56.

On January 14, 2004, plaintiff complained about

problems sleeping, and on January 5, 2005, Dr. Williams noted that
plaintiff had sleep apnea.

R. 253-54.

On May 8, 2006, and June

14, 2006, plaintiff was seen by Dr. Williams for chronic left wrist
carpal tunnel syndrome and chronic low back pain.

R. 217-218.

On

November 8, 2006, Dr. Williams diagnosed plaintiff as having
chronic

low

osteoarthritis.

back

pain,

R. 216.

sleep

apnea,

hyperlipidemia

and

On March 7, 2008, plaintiff saw Dr.

Williams again for low back and elbow pain.

R. 312.

On May 11,

2009, Dr. Williams diagnosed plaintiff as having sleep apnea,
narcolepsy, chronic low back pain, chronic knee pain, chronic
tenosynovitis of the hands and wrist, and hyperlipidemia. R. 309.
On September 30, 2009, Dr. Williams completed a medical source
statement

documenting

his

opinion

as

to

plaintiff’s

limited

capacity to stand, walk, sit, lift, and use his hands and feet.

R.

328-331.
In his decision issued on May 13, 2010, the ALJ referred to
isolated portions of Dr. Williams’ treatment records.

The ALJ

noted that on May 8, 2006, Dr. Williams, plaintiff’s primary care

5

physician, prescribed Percocet for low back and wrist pain. R. 17.
The ALJ indicated that plaintiff had been prescribed periodic
prescriptions for the narcotic pain reliever Percocet for low back
pain, and that plaintiff “only briefly mentioned this problem to
Dr. Williams in May 2009.”

R. 13.

The ALJ also summarized the

medical source statement completed by Dr. Williams on September 30,
2009.

R. 17-18.
In weighing the opinion evidence, the ALJ noted that
in the present case, the opinion assessed by Dr. Williams
in September 2009 is work prohibitive. This opinion is
not supported by the medical evidence of record and is so
extreme that it is not worthy of belief. The possibility
always exists that a doctor may express an opinion in an
effort to assist a patient with whom he or she
sympathizes for one reason or another. Another reality
which should be mentioned is that patients can be quite
insistent and demanding in seeking supportive notes or
reports from their physicians, who might provide such a
note in order to satisfy their patient’s request and
avoid unnecessary doctor/patient tension. While it is
difficult to confirm the presence of such motives, this
treating source seems to be particularly sympathetic with
the claimant.

R. 19-20.
agency

The ALJ then went on to accept the opinions of the state

nontreating

medical

sources,

noting

that

they

“are

consistent with and are well supported by the objective medical
evidence

and

accepted

claimant’s status.”

as

an

accurate

representation

of

the

R. 20.

In his report and recommendation, the magistrate judge noted:
Here, the administrative law judge failed to provide
“good reasons” for either prong of the test for
controlling weight. The administrative law judge made
conclusory statements without any reference to supporting
evidence.
Although he asserted that Dr. Williams’
[opinion] was not supported by the medical record, he did
not identify what evidence in that record led him to that
conclusion.
6

Doc. 16, p. 20.
The magistrate judge further concluded that the ALJ erred by
ending his evaluation of Dr. Williams’ opinion prematurely, instead
of going on to determine what weight to assign each source,
including Dr. Williams’ opinion, using the factors in §404.1527(c).
Doc. 16, p. 21.

The magistrate judge noted plaintiff’s arguments

that the opinion of Dr. Williams should be controlling because: (1)
Dr. Williams had treated plaintiff for his impairments; (2) Dr.
Williams had access to treatment notes and test results of the
consultative physicians; and (3) his opinion was based on his
lengthy treatment of plaintiff from before the alleged onset of
disability through the hearing before the ALJ, as well as his
personal knowledge of plaintiff.
judge

then

stated,

“The

Doc. 16, p. 21.

administrative

law

The magistrate
judge,

however,

neglected to consider any of these factors when evaluating Dr.
Williams’

opinion.”

Doc.

16,

p.

21.

The

magistrate

judge

recommended that the case should be remanded for the ALJ to
determine if there are good reasons to find that Dr. Williams’
opinion is not controlling, and, if it is not, for the ALJ to
evaluate all the medical source evidence and determine what weight
to assign to each source, including the treating sources. Doc. 16,
p. 21.
Defendant argues that the ALJ was justified in not giving Dr.
Williams’ opinion controlling weight because his opinion was not
supported by clinical observations or objective evidence. Doc. 17,
p. 5.
the

Defendant notes that in an earlier section of the decision,

ALJ

referred

treatment notes.

to

various

information

from

Dr.

Williams’

Defendant then argues that these treatment

7

records did not support Dr. Williams’ opinion, and that Dr.
Williams failed to adequately explain his conclusions regarding
plaintiff’s work restrictions.

Doc. 17, p. 4.

Defendant’s analysis of the record evidence in her objections
cannot satisfy the ALJ’s obligation to conduct his own analysis of
whether

controlling

weight

should

be

accorded

Dr.

Williams’

opinion, and to provide “good reasons” for why the opinion failed
to meet the two prongs of the treating physician controlling weight
test.

See Gayheart, 710 F.3d at 376-77 (noting that the failure to

provide “good reasons” for not giving the treating physician’s
opinions controlling weight “hinders a meaningful review of whether
the ALJ properly applied the treating-physician rule that is at the
heart of this regulation”).
the

treating

medically
techniques.”

source’s

acceptable

The “adjudicator” must decide whether

medical

opinion

clinical

and

is

“well-supported

laboratory

by

diagnostic

20 C.F.R. §404.1527(c)(2); Soc. Sec. Rul. No. 96-2p,

1996 WL 374188 at *2.

Likewise whether a medical opinion “is not

inconsistent with the other substantial evidence in [the] case
record” is “a judgment that adjudicators must make in each case.”
20 C.F.R. §404.1527(c)(2); Soc. Sec. Rul. No. 96-2p, 1996 WL 374188
at *3.
Here, the ALJ simply stated that the opinion of Dr. Williams
“is not supported by the medical evidence of record and is so
extreme that it is not worthy of belief.”

The ALJ did not identify

the “medical evidence of record” on which he was relying.

His

statement says nothing about whether or not Dr. Williams’ opinion
was supported by medically acceptable clinical and laboratory
diagnostic techniques.

It also fails to describe any “substantial

8

evidence” in the record which the ALJ found to be inconsistent with
Dr. Williams’ opinion.

The cursory statements of the ALJ are

insufficient to permit a meaningful review of whether the ALJ
properly applied the controlling weight test.

The court agrees

with the finding of the magistrate judge that the ALJ in this case
failed to adequately explain his findings under the “controlling
weight” test.
The magistrate judge further noted that the ALJ erred because,
after concluding that Dr. Williams’ opinion was not entitled to
controlling weight, he failed to evaluate all of the medical source
evidence or to determine what weight to assign to each source by
applying the factors in §404.1527(c).

Defendant argues that the

ALJ was not required to address each of the §404.1527(c)(2) factors
verbatim, and that the ALJ provided “good reasons” for discounting
Dr. Williams’ opinion. However, any “good reasons” for discounting
the weight given to a treating-source opinion 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.”

Rogers, 486 F.3d at 242.

The ALJ’s discussion of plaintiff’s treatment relationship
with Dr. Williams was cursory at best. The ALJ referred briefly to
the fact that Dr. Williams was plaintiff’s primary care physician,
and

noted

completed

the
by

September
Dr.

30,

Williams

2009,

and

the

medical
fact

source

that

periodically prescribed Percocet for plaintiff.

Dr.

statement
Williams

R. 13, 17-18.

However, the ALJ engaged in no analysis of how this information and
other relevant factors, such as the length of the treatment

9

relationship, the frequency of examination, or Dr. Williams’ area
of specialization, influenced his determination that Dr. Williams’
opinion was entitled to little weight.

The ALJ did not describe

how Dr. Williams’ opinion was inconsistent with the record as a
whole and was not supported by relevant evidence.

He did not

explain why he felt that Dr. Williams’ opinion was “extreme” or why
he concluded that Dr. Williams’ opinion in particular was based
solely on sympathy for the plaintiff as opposed to his clinical
observations over a long course of treatment.
The ALJ also failed to apply the §404.1527(c) factors to the
other medical opinions and did not explain the weight being
assigned to each of these opinions.

He summarily stated that the

opinions of the state agency sources “are consistent with and are
well supported by the objective medical evidence” but did not point
to any specific evidence upon which he relied in arriving at this
conclusion.
The court agrees with the opinion of the magistrate judge that
the ALJ’s decision is inadequate to permit a meaningful review of
how the ALJ assigned weight to all of the medical source evidence
in the record.
III. Conclusion
For

the

reasons

stated

above,

the

court

overrules

the

Commissioner’s objections (Doc. 17), adopts the magistrate judge’s
report and recommendation (Doc. 16), reverses the Commissioner’s
non-disability finding, and remands this case to the Commissioner
under Sentence Four of § 405(g). On remand, the administrative law
judge shall determine if there are good reasons to find that Dr.
Williams’ opinion is not controlling, and if it is not, then the

10

administrative law judge shall evaluate all the medical source
evidence and determine what weight to assign to each source,
including the treating sources.
It is so ordered.

Date: August 9, 2013

s/James L. Graham
James L. Graham
United States District Judge

11