Hannon v. Commissioner of Social Security

Filing 24

REPORT AND RECOMMENDATIONS that Plaintiff's 19 STATEMENT OF SPECIFIC ERRORS & 23 MOTION for Summary Judgment be overruled & that judgment be entered in favor of the Commissioner. Objections due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 7/11/2013. (kk2)

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

James Hannon,

:

Plaintiff,

:

v.

:

:
Commissioner of Social Security,
Defendant.

Case No. 2:12-cv-463
JUDGE GREGORY L. FROST
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, James Hannon, filed this action seeking review of
a decision of the Commissioner of Social Security denying his
application for supplemental security income.

That application

was filed on June 19, 2007, and alleged that plaintiff became
disabled on June 4, 2004.
After initial administrative denials of his application,
plaintiff was given a hearing before an Administrative Law Judge
on September 10, 2009.
denied benefits.

In a decision dated May 3, 2010, the ALJ

That became the Commissioner’s final decision

on October 13, 2011, when the Appeals Council denied review.
After plaintiff filed this case (he obtained an extension
from the Appeals Council to file it on or before May 31, 2012,
and he filed it before that date), the Commissioner filed the
administrative record on December 17, 2012.

Plaintiff filed his

statement of specific errors on February 15, 2013.
Commissioner filed a response on March 31, 2013.

The

Plaintiff filed

a “Motion for Summary Judgment,” which the Court will treat as a
reply brief, on April 12, 2013, and the case is now ready to
decide.
II.

Plaintiff’s Testimony at the Administrative Hearing

Plaintiff, who was 37 years old at the time of the
administrative hearing and who has an Associates Degree as a
paralegal, testified as follows.

His testimony appears at pages

45-86 of the administrative record.
Plaintiff testified that he last worked for any length of
time in 2006, when he spent three months managing a Subway
restaurant.

He was having trouble getting to work but was not

fired for any reason relating to his back problems.
was employed as a chopgun operator.
job.

In 2004, he

He was injured while on that

The job involved standing and lifting up to 100 pounds.

Prior to that, he had done other laboring jobs, including working
as a roofer’s assistant.

He and his children also watched the

neighbor’s dog for an extended period of time.
In terms of his disability, plaintiff said that in his
middle or lower back, he has constant pain, and has had since the
injury.

He also experiences pain in his arms and legs, gets

headaches, and is sick from his medication.

He sometimes drops

things, and may get back spasms just walking upstairs.

His

stomach problems had gotten worse in the last year, and they are
aggravated by stress.

Additionally, he experienced muscle spasms

in other parts of his body which he attributed to physical abuse
he received as a child.
Plaintiff thought he could sit only for a few minutes before
his back, stomach or legs began to bother him.

He could stand

for about the same amount of time and walk only twenty or thirty
yards.

He could lift less than ten pounds.

had existed for at least two years.

Those limitations

He also was restricted in

the use of his right arm.
On a daily basis, plaintiff was able to attend to his
personal needs, make the bed, do some ironing, dust, and shop for
groceries.

He has many friends and attends church on occasion.
III.

The Medical Records

The medical records in this case are found beginning on page
219 of the administrative record.
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The Court summarizes the

pertinent records as follows.
In 2006, plaintiff was evaluated for his parasthesia
(numbness) in both his legs.

He described his symptoms as

variable and he also had general complaint of aches and pains in
his bones and joints.

He showed some slight sensory deficits in

his left arm and his lower legs.

An EMG showed some mild

bilateral ulnar neuropathies at the elbows.

(Tr. 219-23).

On January 5, 2007. Plaintiff underwent a consultative
psychological evaluation which was done by Dr. Yee.

Dr. Yee

noted that plaintiff reported some depression and a long history
of behavioral problems as well as a family history of mental
illness.

He also had served four years in prison for bank

robbery.

Dr. Yee diagnosed a mood disorder and rated plaintiff’s

GAF at 62, indicative of mild symptoms.

Dr. Yee thought

plaintiff could do simple to moderate tasks and that he might be
able to work in a low stress position involving “very low people
contact.”

(Tr. 228-35).

Dr. Lewin, a state agency reviewer,

later agreed with that assessment.

(Tr. 271-89).

Plaintiff was also evaluated by Dr. Woskobnick for his
physical complaints.

Dr. Woskobnick performed a physical

examination and noted some stiffness with range of motion in the
cervical spine and a decreased range of motion of the dorsolumbar
spine and left shoulder.
knee bend.

Plaintiff also had trouble doing a deep

The diagnoses included chronic neck and low back

pain, shoulder pain, headaches, depression and hypertension.

Dr.

Woskobnick did not actually assess plaintiff’s ability to do
work-related functions but thought that “[i]t would be beneficial
to have input from a physical medicine rehabilitation doctor or
orthopedist” regarding plaintiff’s various complaints of pain.
(Tr.

236-38).
On June 4, 2007, Dr. Cristales wrote a note stating that

plaintiff had herniated cervical and thoracic discs, anxiety and
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depression, acid reflux disease, and chronic neck and back
sprain.

He said that secondary to these conditions, plaintiff

was disabled.

(Tr. 257).

He expressed much the same opinion a

year later, (Tr. 318), and filled out a questionnaire in December
of 2008 indicating that plaintiff could only sit, stand and walk
for less than two hours during a workday, would miss more than
four days a month due to medical issues, and could work only at
the sedentary exertional level.

(Tr. 348-53).

Dr. Ratliff,

another treating source, recommended on October 28, 2008 that
plaintiff “does not work at the present time” due to various
medical conditions.

(Tr. 387).

Dr. Cristales also referred plaintiff to the Ohio State
University Comprehensive Spine Center for an evaluation of his
neck and back pain.

The impression given by that facility was a

combination of lumbar strain, myofascial pain, lumbar facet joint
spondylosis, and mild protrusion and disc displacement at the S1
level.

Plaintiff had been sent to physical therapy but it did

not help him.

Various procedures or surgeries were discussed by

Dr. Soveryn, the examiner.

(Tr. 301-02).

A lumbar facet joint

diagnostic block was done on January 15, 2008, but it provided no
relief.

(Tr. 340-41).

injections in 2009.

Dr. Soveryn administered trigger point

(Tr. 376).

Plaintiff saw Dr. Bishop for complaints of right shoulder
and right ankle pain.

She found some tenderness on examination

over the AC joint and mild pain on range of motion.

His right

ankle appeared normal but plaintiff reported tenderness on
palpation.

She diagnosed right acromioclavicular joint arthritis

and status post right anterior talofibular lateral ankle sprain.
He was injected with lidocaine and given a splint for his ankle.
(Tr. 333-36).

He also underwent a CT of the abdomen and pelvis

in 2009, the results of which showed minimal diverticulosis of
the sigmoid colon.

(Tr. 428).

The balance of the medical
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records show various emergency room visits for back pain or for
stomach pain, as well as a diagnosis of kidney stones.
IV.

The Vocational Testimony

A vocational expert, Mr. Brown, also testified at the
administrative hearing.

His testimony begins at page 87 of the

record.
Mr. Brown classified plaintiff’s past work as house sitter
as light and unskilled.

The food service manager job was light

and skilled, and the fiberglass machine operator position was
medium and semi-skilled, although as plaintiff performed it, it
was heavy and unskilled.

Finally, the job of roofer helper is a

very heavy, unskilled job.
Mr. Brown was asked questions about someone who could work
at the medium exertional level, who could only occasionally reach
overhead on the right, and who was limited to simple to moderate
tasks that are not fast-paced and do not require frequent
interpersonal interaction.

He responded that such a person could

do plaintiff’s past work as a house sitter, but not the other
past jobs.

If the person were also limited in his ability to

bend, in addition to the other limitations stated, that person
could do about 30 percent of all unskilled medium and light jobs,
and 50 percent of all unskilled sedentary jobs.

Examples of

these jobs included assembler, inspector and machine tender.

If,

however, that same person were limited either as described by
plaintiff’s treating doctors or as indicated in his testimony,
the person could not work.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 14
through 32 of the administrative record.

The important findings

in that decision are as follows.
The Administrative Law Judge found, first, that plaintiff
had engaged in substantial gainful activity after his alleged

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onset date, working in both 2006 and 2007.

As far as plaintiff’s

impairments are concerned, the ALJ found that plaintiff had
severe impairments including degenerative disc disease, mild
generalized osteoarthritis, right AC joint cystic changes and
arthritis, mild bilateral ulnar neuropathies, gastroesophageal
reflux disease, minimal diverticulosis of the sigmoid colon,
anemia, hypertension, high cholesterol, and an affective
disorder.

The ALJ also found that plaintiff’s impairments did

not, at any time, meet or equal the requirements of any section
of the Listing of Impairments (20 C.F.R. Part 404, Subpart P,
Appendix 1).
Moving to the next step of the sequential evaluation
process, the ALJ found that plaintiff could work at the medium
exertional level except that he could only occasionally bend and
reach overhead on the right.

Also, he was limited to low stress

work, defined as doing simple to moderate tasks which are not
fast-paced and do not require frequent interpersonal interaction
with the public, coworkers, and supervisors.

The ALJ found that,

with these restrictions, plaintiff could perform his past
relevant work as a dog/house sitter and that he could also
perform jobs identified by the vocational expert such as
assembler, inspector and machine tender.

Consequently, the ALJ

concluded that plaintiff was not entitled to benefits.

The ALJ

also denied plaintiff’s request, made orally at the
administrative hearing, for a supplemental hearing with a medical
expert and for a psychological consultative examination.
VI.

Plaintiff’s Statement of Specific Errors

In his statement of specific errors, plaintiff does not
actually point to any way in which he believes the administrative
decision is wrong.

He did attach some documents, one of which

was before the ALJ, and a number of which were not.

The Court

will comment on these documents after it reviews the ALJ’s

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decision using the appropriate legal standard, which is stated as
follows:
Standard of Review.

Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary [now the
Commissioner] as to any fact, if supported by substantial
evidence, shall be conclusive. . . ."

Substantial evidence is

"'such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion'"

Richardson v. Perales, 402

U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.
NLRB, 305 U.S. 197, 229 (1938)).
scintilla.'" Id.
Cir. 1976).

It is "'more than a mere

LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

The Commissioner's findings of fact must be based

upon the record as a whole.

Harris v. Heckler, 756 F.2d 431, 435

(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th
Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.
1984).

In determining whether the Commissioner's decision is

supported by substantial evidence, the Court must "'take into
account whatever in the record fairly detracts from its weight.'"
Beavers v. Secretary of Health, Education and Welfare, 577 F.2d
383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human
Services, 755 F.2d 495, 497 (6th Cir. 1985).

Even if this Court

would reach contrary conclusions of fact, the Commissioner's
decision must be affirmed so long as that determination is
supported by substantial evidence.

Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).
Because plaintiff did not identify specific errors in the
ALJ’s decision, the Court will examine it in light of the
arguments raised by the Commissioner in support of that decision.
As the Court reads the Commissioner’s memorandum, the key
determinations made by the ALJ were (1) refusing to give
controlling weight to the opinions of plaintiff’s treating

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doctors, and (2) finding that, from a physical standpoint, he
could do a reduced range of medium work.

The Court will discuss

these points in that order.
It has long been the law in social security disability cases
that a treating physician's opinion is entitled to weight
substantially greater than that of a nonexamining medical
advisor or a physician who saw plaintiff only once.

20 C.F.R.

§404.1527(d); see also Lashley v. Secretary of H.H.S., 708 F.2d
1048, 1054 (6th Cir. 1983); Estes v. Harris, 512 F.Supp. 1106,
1113 (S.D. Ohio 1981).

However, in evaluating a treating

physician’s opinion, the Commissioner may consider the extent to
which that physician’s own objective findings support or
contradict that opinion.

Moon v. Sullivan, 923 F.2d 1175 (6th

Cir. 1990); Loy v. Secretary of HHS, 901 F.2d 1306 (6th Cir.
1990).

The Commissioner may also evaluate other objective

medical evidence, including the results of tests or examinations
performed by non-treating medical sources, and may consider the
claimant’s activities of daily living.
HHS, 25 F.3d 284 (6th Cir. 1994).

Cutlip v. Secretary of

No matter how the issue of the

weight to be given to a treating physician’s opinion is finally
resolved, the ALJ is required to provide a reasoned explanation
so that both the claimant and a reviewing Court can determine why
the opinion was rejected (if it was) and whether the ALJ
considered only appropriate factors in making that decision.
Wilson v. Comm’r of Social Security, 378 F.3d 541, 544 (6th Cir.
2004).
The starting point of this analysis is always the rationale
provided by the ALJ, since the Court must rely on the ALJ’s
statement of reasons why a treating source opinion was rejected
and may not attribute reasons to the ALJ which are not stated in
the administrative decision.

See, e.g., Williams v. Astrue, 2009

WL 2148625, *8 (S.D. Ohio July 14, 2009) (“It is highly doubtful

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that the Commissioner's post-hoc rationalizations can be the sole
basis to affirm an ALJ's decision when the ALJ has failed to
weigh a treating medical source opinion as required by the
Regulations”).

Here, the ALJ explained her reasoning as follows.

First, the ALJ noted that there were several opinions from
treating sources which did not agree with her assessment of
plaintiff’s residual functional capacity.

However, she found

that these opinions were not well-supported.

They came from

family physicians with no special expertise in disability and she
viewed them as based primarily on plaintiff’s own report of
symptoms.

She also concluded that the opinions did not actually

cover any 12-month period and that most did not provide the type
of function-by-function analysis required by law.

Further, some

of them appeared to be based on conditions, such a herniated
disc, which could not be documented in the record.

Lastly, it

appeared that “emotional” factors were taken into account
although none of the treating sources was a mental health
professional.

(Tr. 24-25).

These are all valid reasons for discounting a treating
source’s opinions.

It is, however, somewhat troubling that the

ALJ did not explain how much weight she actually gave to these
opinions given the fact that she clearly did not accept them as
controlling under 20 C.F.R. §416.927(d).

Even if justified in

rejecting a treating source opinion “the ALJ must still determine
how much weight is appropriate by considering a number of
factors, including the length of the treatment relationship and
the frequency of examination, the nature and extent of the
treatment relationship, supportability of the opinion,
consistency of the opinion with the record as a whole, and any
specialization of the treating physician.”

Blakley v. Comm’r of

Social Security, 581 F.3d 399, 406 (6th Cir. 2009).

While the

ALJ did cite to most of these factors, the fact remains that she
did not indicate if the treating source opinions from Drs.
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Ratliff and Cristales were given reduced weight, little weight,
or no weight at all.

Further, there was no other opinion to

which she gave greater weight; Dr. Woskobnick did not express any
opinion about plaintiff’s functional capacity, and the ALJ also
rejected the Bureau of Disability Development’s determination
that plaintiff did not have any severe physical impairments at
all.

She also appears to have declined both Dr. Woskobnick’s

invitation, and plaintiff’s counsel’s invitation, to obtain
further medical review of plaintiff’s pain and other symptoms
relating to his neck, back and joints.

It is therefore difficult

to know exactly how the ALJ came up with her very specific
residual functional capacity findings, although an ALJ does have
the ultimate decision-making authority as to the residual
functional capacity finding and “a precise match between the
ALJ's residual functional capacity assessment and a medical
source opinion of record is not required.”

McCoy v. Astrue, 2008

WL 565782, *6 (S.D. Ohio Feb. 29, 2008).
The Court is not entirely persuaded that the ALJ’s decision
completely comports with Blakley or that there was a substantial
basis for finding that plaintiff could work at the medium
exertional level with only slight restrictions.

At the same

time, however, the ALJ found that plaintiff could still perform a
significant number of jobs even at the sedentary level.

The only

opinion indicating that plaintiff could not work even at that
exertional level was one of the forms completed by Dr. Cristales,
and the ALJ did articulate valid reasons, supported by the
record, for viewing that opinion as too restrictive and as
inconsistent with the medical records.

The ALJ also stated a

number of valid reasons for finding plaintiff’s testimony about
not being able to do even sedentary work as less than credible.
The question then becomes one of harmless error; that is, even if
the ALJ did not have a solid basis for finding that plaintiff
could work at the medium exertional level, or did not provide an
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adequate explanation for such a finding, does her finding that he
could also do a number of sedentary jobs mean that any error in
her decision made no difference in the way she decided the case?
The Court concludes that this is a case where harmless error
exists and that it prevents the Court from reversing the ALJ’s
decision.
In a similar situation where, as here, the ALJ found that a
claimant could do medium work, but “also found he could perform a
range of light and sedentary work,” in order to obtain reversal
of that decision,”plaintiff would need to demonstrate that he
could not perform a limited range of light work or sedentary
work.”

See McGuire v. Comm’r of Social Security, 178 F.3d 1295,

*9 (6th Cir. March 25, 1999).

It is helpful to contrast this

case with McCoy v. Astrue, supra, where the Commissioner also
made a harmless error argument in the face of an RFC
determination for medium work which did not have any evidentiary
support.

There, this Court said that if the record supported a

finding that the claimant could also do a limited range of light
work, because the vocational expert testified that someone with
those limitations could work, any error in the ALJ’s residual
functional capacity finding would be harmless.

That case was

reversed, however, because the evidence also supported a finding
that plaintiff could do only a limited range of sedentary work,
and the vocational expert was not asked to testify about such a
person.

Here, on the other hand, Mr. Brown was asked exactly

that question and identified jobs that someone that limited could
perform.
Ultimately, although it would have been preferable for the
ALJ in this case to state more explicitly how much weight, if
any, was given to Dr. Ratliff’s and Dr. Cristales’s opinions, and
to provide additional support for finding that plaintiff had the
ability to work at the medium level, any errors are harmless
because they did not affect the ALJ’s final determination.
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The

record does support a finding that the plaintiff could do at
least sedentary work - any opinions to the contrary simply do not
enjoy the support of medical test results showing conditions
severe enough to preclude such work - and the vocational expert
said that someone of plaintiff’s age with his work experience and
education could do a significant number of jobs even if limited
to sedentary work with other restrictions.

That is enough to

support a finding of no disability, and there is no chance that
if the Court remanded the case for a more complete explanation of
the decision-making process, the outcome would be different.
Turning briefly to the evidence plaintiff submitted with his
statement of errors, the Commissioner is correct that none of
this evidence would change the result in this case.

Some of it

is dated well after the ALJ made her decision, and none of it
adds much of significance to the record.

Although one of

plaintiff’s new items of evidence - that he has been relieved of
his student loan repayment obligation due to disability - might
seem to relate to the same question presented here, 20 C.F.R.
§416.904 provides that “[a] decision by any nongovernmental
agency or any other governmental agency about whether you are
disabled or blind is based on its rules and is not our decision
about whether you are disabled or blind.”

Although, if that

decision is made before an ALJ decides the social security case,
the ALJ must consider it as part of all the evidence, see Social
Security Ruling 06-3p, that is not what happened here.

The ALJ

in this case did not know about the other disability decision
because it was made several months after the ALJ’s May, 2010
decision.

Nothing in that later decision suggests to the Court

that if the ALJ were now asked to take it into account she would
change her mind.

Consequently, there is nothing in any of the

documents which plaintiff attached to his statement of errors
which would justify sending this case back to the ALJ to have her
take another look at the issue.

See, e.g., Martin v. Astrue,

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2012 WL 668814, *7 (S.D. Ohio Feb. 29, 2012)(“[n]ew evidence on
an issue already fully considered is cumulative, and is not
sufficient to warrant remand of the matter”), adopted and
affirmed 2012 WL 1123233 (S.D. Ohio Apr. 3, 2012).
VII.

Recommended Decision

Based on the above discussion, it is recommended that the
plaintiff’s statement of errors and his motion for summary
judgment be overruled and that the Court enter judgment in favor
of the defendant Commissioner of Social Security.
VIII.

Procedure on Objections

If any party objects to this Report and Recommendation,
that party may, within fourteen (14) days of the date of this
Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection
is made, together with supporting authority for the objection(s).
A judge of this Court shall make a de novo determination of those
portions

of the report or specified proposed findings or

recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to
object to the Report and Recommendation will result in a
waiver of the right to have the district judge review the
Report and Recommendation de novo, and also operates as a
waiver of the right to appeal the decision of the District
Court adopting the Report and Recommendation.

See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).
/s/ Terence P. Kemp
United States Magistrate Judge
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