Mercer v. Commissioner of Social Security

Filing 15

REPORT AND RECOMMENDATIONS that 10 Statement of Specific Errors be sustained to the extent that this case be remanded to the Commissioner for further proceedings pursuant to 42 USC §405(g), sentence four. Objections due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 6/27/2013. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
William Tilton Mercer,

:

Plaintiff,

:

v.

:
:

Commissioner of Social
Security,

Case No. 2:12-cv-0607
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

:
Defendant.
REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, William Tilton Mercer, 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 January 26, 2009, and alleged that
plaintiff became disabled on January 1, 2009.
After initial administrative denials of his applications,
plaintiff was given a hearing before an Administrative Law Judge
on January 31, 2011.
denied benefits.

In a decision dated March 14, 2011, the ALJ

That became the Commissioner’s final decision

on May 16, 2012, when the Appeals Council denied review.
After plaintiff filed this case, the Commissioner filed the
administrative record on December 17, 2012.

Plaintiff filed his

statement of specific errors on January 16, 2013.
Commissioner filed a response on March 21, 2013.

The
Plaintiff filed

a reply on April 5, 2013, and the case is now ready to decide.
II.

Plaintiff’s Testimony at the Administrative Hearing

Plaintiff, who was 45 years old at the time of the
administrative hearing and who completed the eleventh grade,
testified as follows.

His testimony appears at pages 44-65 of

the administrative record.

Plaintiff testified that he last worked full-time in 1997.
He had medical problems while working, including issues with his
back, stomach and shoulders.

He described continuous pain and an

inability to get along well with people.

He also had side

effects from medication and problems remembering things.
Plaintiff stated that he had pain from his shoulders to his
ankles.

He also said his shoulders dislocate easily and that his

hips and knees went “in and out.”

Activity of any sort hurts

after fifteen or twenty minutes.

His sleeping was affected by

pain as well.

He also suffered from difficulty concentrating.

In a typical day, plaintiff would take his medications as
soon as he got up, and would wait two to three hours prior to
their taking effect.

Afterwards, he might do some household

chores and watch television.

He was unable to pursue his former

hobbies, which included hunting and working on cars.

He could do

chores such as vacuuming or laundry on a sporadic basis but could
not do any yard work.

Lifting over five pounds stretches his

shoulders to the point they might dislocate.
Plaintiff believed he could stand for an hour, after which
he would need to sit for at least 45 minutes.

He could walk 20

to 30 yards and sit for half an hour or 45 minutes, but not
comfortably.
slowly.

He could not bend and could climb stairs only

He also had a problem with dropping objects.

He did not

often leave his house and did not socialize with friends.
Additionally, he suffered anxiety attacks several times each day.
III.

The Medical Records

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

The Court summarizes the

pertinent records as follows.
Office notes from plaintiff’s treating physician, Dr.
Stephen Ulrich, and his wife, Dr. Theresa Ulrich, show that they
had treated plaintiff since at least 2006.

A January, 2006 note

shows diagnoses of pleurisy, abnormal weight gain, and bipolar
affect.

At that time, plaintiff was taking Zyprexa and Effexor.
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Plaintiff was later treated for back sprain and arthritis as well
as bipolar disorder, asthma, and anxiety.

He had reported

symptoms of loss of concentration and difficulty sleeping as well
as social withdrawal.

Other medications such as an inhaler,

Vicodin, and Depakote were added over time.

(Tr. 280-309).

Plaintiff was interviewed by Dr. Rowland, a psychologist, on
May 4, 2009.

Plaintiff told Dr. Rowland he suffered from

fibromyalgia, joint problems, bipolar disorder and chronic
bronchitis.

He reported life-long mood difficulties including

both rage and depression, trouble sleeping, lack of interest, and
sadness.

His symptoms were somewhat controlled by medication but

he tended to decompensate under stress.
anxiety attacks.

He also described daily

Dr. Rowland noted that plaintiff appeared to

have a low energy level and showed some signs of anxiety.

His

performance on the mental status examination showed “severe
difficulties with attention and concentration.”

Dr. Rowland

rated plaintiff’s GAF at 55 and thought he had moderate
impairments in his ability to remember and follow instructions
and to maintain attention, concentration, persistence and pace to
perform routine tasks.

He had a marked impairment in his ability

to relate to others and to withstand the stress of daily work.
(Tr. 316-25).

Dr. Goldsmith, a state agency reviewer, agreed

generally with Dr. Rowland’s diagnoses, but viewed plaintiff’s
impairment in the areas of concentration, persistence and pace
and in dealing with work pressure as only moderate.

(Tr. 326-

43).
Plaintiff was also examined with respect to his physical
impairments.
2009.

That examination was done by Dr. Weaver on May 11,

Dr. Weaver reported that plaintiff had been diagnosed with

fibromyalgia in 1995 and had been treated by Dr. Ulrich since
then.

He also was diagnosed with COPD and was being treated with

inhalers.

Both conditions affected his stamina.
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He told Dr.

Weaver about his bipolar disorder as well.

On examination,

plaintiff walked with a normal gait and did not exhibit any
shortness of breath.

He did exhibit tenderness at various

trigger points and he had some restrictions in his range of
motion in the shoulders and hips.
extremes of motion testing.

His back was painful at the

Dr. Weaver thought plaintiff was

capable of occasional light lifting and carrying, handling
objects, hearing, speaking, following directions, and travel.
(Tr. 344-52).
Dr. Neiger, a state agency reviewer, also commented on
plaintiff’s physical residual functional capacity.

She thought

that he could lift and carry twenty pounds occasionally and ten
pounds frequently, could stand or walk for up to six hours in a
workday, and could never climb ropes, ladders or scaffolds.

She

commented that based on the fact that plaintiff had a normal gait
and did not become short of breath at the examination conducted
by Dr. Weaver, his statements about disabling pain were only
partially credible.

She did, however, note that he had more than

11 of the 18 trigger points for fibromyalgia.

(Tr. 361-69).

The file contains additional office notes from Dr. Ulrich.
One of the new diagnoses in 2009 was restless leg syndrome.
433).

(Tr.

Otherwise, the notes indicate the same diagnoses and

continuation of medication for plaintiff’s various conditions.
Dr. Ulrich did refer plaintiff for a sleep study.

The report of

that study shows that plaintiff described a long history of
difficulty sleeping or interrupted sleep, with restless leg
syndrome having worsened over the past two years.

His medication

was changed in an effort to reduce his restless leg syndrome.
(Tr. 500-03).
Dr. Ulrich completed a mental residual functional capacity
form on February 20, 2010, and a physical residual functional
capacity report on February 25, 2010.
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On the former, he

indicated that plaintiff had extreme limitations in the areas of
activities of daily living and maintaining social functioning,
also had severe problems with concentration, persistence and pace
and with decompensation, and, among other things, that he could
not complete a workday or workweek without interruption from
psychologically-based symptoms.

On the latter, Dr. Ulrich

described plaintiff’s capabilities as being limited to lifting at
the sedentary level, but he also said that plaintiff could sit
less than six hours in the workday, was limited in his ability to
push and pull, could never climb, balance, kneel or crawl, and
could reach only occasionally.

He did not think plaintiff could

do sedentary work on a sustained basis.

(Tr. 520-27).

Dr.

Ulrich expressed much the same opinion in an office note from
February 5, 2010.

(Tr. 529-30).
IV.

The Vocational Testimony

A vocational expert, Dr. Oestreich, also testified at the
administrative hearing.

His testimony begins at page 65 of the

record.
Dr. Oestreich classified plaintiff’s past work as a muffler
mechanic as semi-skilled and medium.

Plaintiff had also worked

as a molder, which was unskilled and medium.
Dr. Oestreich was asked questions about someone who could
work at the light exertional level who could never climb ladders,
ropes and scaffolds.

He responded that such a person could not

do plaintiff’s past work but could do about 90 percent of the
light jobs in the economy.

If the person were limited to simple

routine and repetitive tasks which allowed only brief and
superficial interaction with the public, coworkers and
supervisors, the percentage of light jobs the person could do
would be slightly reduced.

If, however, that same person were

limited to a range of sedentary work and could not do fine
manipulation, there would not be any jobs the person could

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perform.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 25
through 34 of the administrative record.

The important findings

in that decision are as follows.
The Administrative Law Judge found, first, that plaintiff
had not engaged in substantial gainful activity from his
application date of January 26, 2009 through the date of the
decision.

As far as plaintiff’s impairments are concerned, the

ALJ found that plaintiff had severe impairments including
degenerative disc disease, osteoarthritis, asthma, fibromyalgia,
and bipolar 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 light
exertional level except that he could never climb ladders, ropes
or scaffolds.

Also, he was limited to simple, routine and

repetitive work with involved only brief and superficial
interaction with the public, coworkers, and supervisors.

The ALJ

found that, with these restrictions, plaintiff could not perform
his past relevant work but he could perform jobs identified by
the vocational expert, such as housekeeper, assembler, and
inspector.
economy.

There were almost 400,000 such jobs in the national

Consequently, the ALJ concluded that plaintiff was not

entitled to benefits.
VI.

Plaintiff’s Statement of Specific Errors

In his statement of specific errors, plaintiff raises two
general issues.

He contends (1) that the ALJ should have found

his insomnia and restless leg syndrome to be severe impairments;
and (2) that the ALJ improperly evaluated the medical evidence,
particularly the treating and examining physicians’ opinions.
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The Court generally reviews these contentions under this legal
standard:
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).
Turning to the first claimed error, it is true that the ALJ
did not recognize either insomnia or restless leg syndrome as
severe impairments, meaning impairments which would be expected
to interfere with a Plaintiff's ability to work regardless of
“whether the claimant was sixty-years old or only twenty-five,
whether the claimant had a sixth grade education or a master's

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degree, whether the claimant was a brain surgeon, a factory
worker, or a secretary.”

Salmi v. Secretary of H.H.S., 774 F.2d

685, 691-92 (6th Cir. 1985).

It is equally true, however, that

the failure to recognize certain impairments as severe is, at
most, harmless error if the ALJ takes any limitations caused by
those impairments into account when assessing a claimant’s
residual functional capacity.

See, e.g., Taylor v. Astrue, 2012

WL 870770, *5 (S.D. Ohio March 14, 2012), adopted and affirmed,
2012 WL 1268178 (S.D. Ohio April 13, 2012), citing Maziarz v.
Sec’y of HHS, 837 F.2d 240, 244 (6th Cir. 1987).

As the Court of

Appeals said in Maziarz, “[s]ince the Secretary properly could
consider claimant's cervical condition in determining whether
claimant retained sufficient residual functional capacity to
allow him to perform substantial gainful activity, the
Secretary's failure to find that claimant's cervical condition
constituted a severe impairment could not constitute reversible
error.”

Id.

Plaintiff has not identified any limitations posed

by those conditions beyond what is contained in Dr. Ulrich’s
opinions about the combined effect of his impairments.

If the

Commissioner had good reason to reject those opinions, this issue
is moot.

The Court therefore turns to the second claimed error.

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.

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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
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, on the subject of plaintiff’s physical limitations,
the ALJ commented that “there is little medical evidence to
support the claimant’s allegations of completely disabling
symptoms.”

(Tr. 30).

She noted that he “was able to walk forty

feet and perform physical activities at his physical consultative
examination ... without an issue.”

Id.

She also interpreted

Dr. Weaver’s report as supporting a finding that plaintiff could
do light work, which she saw as both compatible with his
performance at the physical examination and “with his active
lifestyle playing with his pet and hunting.”

Id.

She gave

little weight to Dr. Ulrich’s “broad statement of disability...
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because it is contrary to the objective medical evidence and the
treatment notes as a whole.”

(Tr. 31).

The only specific

portion of the evidence she cited was Dr. Weaver’s report, which
she interpreted as having “found no such significant
limitations.”

Id.

She concluded that “Dr. Ulrich’s assessment

of disability and the claimant’s inability to work are
unsupported and involve an issue reserved for the Commissioner.
Thus, no significant weight is accorded to his opinion that the
claimant was totally incapacitated.”

Conversely, she stated that

she found Dr. Weaver’s opinion “quite persuasive” and gave it
“great weight ....”

Id.

The opinion of the state agency

reviewer, Dr. Neiger, is not mentioned in this section (or,
indeed, in any section) of the administrative decision.
The Court finds this reasoning seriously flawed in several
respects.

First, the ALJ appears not to have reasonably

interpreted Dr. Weaver’s report.

Although he stated that

plaintiff could engage in occasional light lifting and carrying,
he ruled out, or placed significant limits on, plaintiff’s
ability to perform “physical activities involving sustained
sitting, standing, walking [and] climbing ....”

(Tr. 348).

A

full range of work at the light exertional level, however,
involves up to six hours of walking or standing in an eight-hour
day, which seems to be sustained activity.

It is also not clear

how much weight, if any, Dr. Weaver believed plaintiff could lift
or carry on a frequent basis - his report restricted plaintiff in
performing repetitive (as well as moderate to heavy) lifting and
carrying activities, and Dr. Weaver said plaintiff could do only
“occasional” light lifting and carrying.

Again, however, light

work involves the frequent lifting and carrying of up to ten
pounds, and the ALJ found that plaintiff could do that.

The ALJ

clearly adopted Dr. Neiger’s evaluation down to the last detail,
but never explained why.

This misinterpretation of, or failure

to explain the ambiguities in, Dr. Weaver’s report substantially
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undercuts the ALJ’s rationale for rejecting Dr. Ulrich’s
opinions, since the strongest reason given for that rejection was
the great weight assigned to Dr. Weaver’s evaluation.
This is not the only problem with the administrative
decision, however.

It is simply not reasonable to equate the

ability to walk forty feet up and down a hallway without getting
short of breath with the ability to walk for six hours during a
workday.

Additionally, although the ALJ referred to plaintiff’s

“active lifestyle,” apparently relying on isolated statements
from a report filled out by plaintiff (Tr. 192-99) about his
ability to hunt and play with his dog, a fair reading of that
report indicates a very restricted lifestyle, with pain and
shortness of breath affecting all of plaintiff’s activities,
including hunting, which he said he does by sitting only - he
cannot walk - and which still causes pain.

These reasons

articulated by the ALJ do not provide a substantial basis for
rejecting Dr. Ulrich’s opinions in their entirety or assigning
them little or no weight.
The only other reasons advanced by the ALJ for disregarding
Dr. Ulrich’s opinions are that his opinions are not supported by
his own treatment notes and that he has expressed an opinion on
an issue reserved to the Commissioner.

The former reason fails

Wilson’s articulation requirement because the administrative
decision does not identify any specific portion of any treatment
note (and there are many such notes in the file, reflecting years
of a treating relationship) which contain the supposed
inconsistencies, nor what those inconsistencies are.

In fact,

the notes generally reflect that plaintiff was constantly
reporting disabling pain, shortness of breath, or psychological
symptoms, and that Dr. Ulrich was generally in agreement with
plaintiff’s own assessment of his abilities.

There is just not

enough explanation of this basis for the ALJ’s decision to permit
the type of “meaningful review” contemplated by Wilson.
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The latter reason also fails.

It is true that, at various

points, Dr. Ulrich expressed a “broad” opinion of disability.
However, in his physical capacity assessment form, he expressed
very specific views about plaintiff’s ability to perform various
work-related functions, including sitting, standing, walking,
lifting, pushing, pulling, climbing, and other matters pertinent
to a residual functional capacity finding.

The ALJ made no

mention of these findings, nor did she provide any reasoned basis
for rejecting them apart from the ones mentioned previously.
These findings cannot be sloughed off as a statement of
disability of the type reserved to the Commissioner; they are the
quintessential type of conclusions reached by both treating and
non-treating sources about physical abilities, made without
reference to vocational factors, and the Commissioner has an
obligation to confront them directly.

That did not happen here.

What the ALJ must do in a case like this is to set forth
adequate and well-supported reasons for giving less than
controlling weight to the opinion of a treating source - which
did not occur on this record - and then, if the treating source
opinion is not deemed controlling, to continue to weigh that
opinion in light of the other factors set forth in 20 C.F.R.
§404.1527 in order to determine the proper weight to give that
opinion.

As the Court of Appeals has stated, “[i]f the ALJ does

not accord controlling weight to a treating physician, 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, supra, at 406.

Because the administrative decision does

not reflect this approach, the case must be remanded for further
proceedings.
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The Court also offers these comments on the way in which
plaintiff’s mental impairment was evaluated.

Dr. Ulrich also

expressed an opinion as to that aspect of plaintiff’s ability to
work.

The ALJ rejected this opinion because Dr. Ulrich is not a

mental health specialist - a valid reason - and because his
assessment was inconsistent with “what the claimant reported to
others, and with the other medical evidence.”

(Tr. 32).

Again,

this bare-bones rationale does not seem to satisfy Wilson’s
articulation requirement because no details of these claimed
inconsistencies were supplied.

The same level of vagueness

occurs in the ALJ’s rejection of Dr. Rowland’s opinion, making it
difficult for the Court to understand exactly how the ALJ reached
her conclusions about the plaintiff’s mental residual functional
capacity.

On remand, the evidence concerning plaintiff’s mental

impairments should be reviewed, and any new decision must contain
a more thorough explanation of the ALJ’s conclusions on this
issue.
VII.

Recommended Decision

Based on the above discussion, it is recommended that the
plaintiff’s statement of errors be sustained to the extent that
the case be remanded to the Commissioner for further proceedings
pursuant to 42 U.S.C. §405(g), sentence four.
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,
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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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