Lemmon v. Commissioner of Social Security

Filing 24

REPORT AND RECOMMENDATIONS re 4 Complaint filed by Vicki L Lemmon. It is RECOMMENDED that the decision of the Commissioner be REVERSED pursuant to Sentence 4 of 42 U.S.C. § 405(g) and that this action be REMANDED for further administrative proceedings. Objections to R&R due by 1/30/2014. Signed by Magistrate Judge Norah McCann King on 1/13/2014. (pes1)

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

VICKI L. LEMMON,
Plaintiff,
vs.

Civil Action 2:13-cv-410
Judge Watson
Magistrate Judge King

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
I.

Background
This is an action instituted under the provisions of 42 U.S.C. §

405(g) for review of a final decision of the Commissioner of Social
Security denying the claimant’s application for a period of disability
and disability insurance benefits.

This matter is now before the

Court on Plaintiff Vicki L. Lemmon’s Statement of Specific Errors
(“Statement of Errors”), Doc. No. 14, the Commissioner’s Opposition to
Plaintiff’s Statement of Errors (“Commissioner’s Response”), Doc. No.
22, and Plaintiff Tracey L. Lemmon’s Reply to Defendant’s Memorandum
in Opposition, Doc. No. 23.1
Vickie L. Lemmon (the “claimant”) filed her application for
benefits on February 12, 2010, alleging that she has been disabled
since June 1, 2008.

PAGEID 124.

The application was denied initially

and upon reconsideration, and the claimant requested a de novo hearing
before an administrative law judge.
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The claimant’s widower, Tracey Lemmon, was substituted as plaintiff
pursuant to Fed. R. Civ. P. 25(a) on July 22, 2013. See Order, Doc. No. 13.

An administrative hearing was held on January 10, 2012, at which
the claimant, represented by counsel, appeared and testified, as did
Lynne Kaufman, who testified as a vocational expert.

PAGEID 74.

In a

decision dated April 18, 2012, the administrative law judge concluded
that the claimant was not disabled from June 1, 2008, the alleged
onset date, through March 31, 2010, the date she was last insured for
disability insurance benefits.

PAGEID 69.

That decision became the

final decision of the Commissioner of Social Security when the Appeals
Council declined review on March 12, 2013.

PAGEID 47.

The claimant was 53 years of age on the date of the
administrative decision.

See PAGEID 47, 124.

She has at least a high

school education, was able to communicate in English, and had past
relevant work as a bartender, waitress, and banquet attendant.
67.

PAGEID

The claimant was last insured for disability insurance purposes

on March 31, 2010.

PAGEID 60.

The claimant did not engage in

substantial gainful activity from her alleged onset date through her
date last insured.
II.

Id.

Administrative Decision
The administrative law judge found that the claimant’s severe

impairments consisted of degenerative disc disease of the lumbar spine
and a history of cirrhosis of the liver.

PAGEID 60.

The

administrative law judge also found that the claimant’s impairments
neither met nor equalled a listed impairment and left the claimant
with the residual functional capacity (“RFC”) to
perform less than the full range of light work as defined
in 20 CFR 404.1567(b).
Specifically, the claimant could
have lifted no more than ten pounds frequently and twenty
pounds occasionally; sat, stood and/or walked at least one
2

hour at a time for a total of six hours in an eight-hour
workday; and occasionally climbed stairs, stooped and
crouched.
PAGEID 60-61.

Although this RFC precluded the claimant’s past

relevant work, the administrative law judge relied on the testimony of
the vocational expert to find that the claimant was left with the
ability to perform a significant number of jobs in the national
economy, including such jobs as product assembler, sorter, and office
helper.

PAGEID 67-68.

Accordingly, the administrative law judge

concluded that the claimant was not disabled within the meaning of the
Social Security Act from June 1, 2008, the alleged disability onset
date, through March 31, 2010, the date she was last insured.

PAGEID

69.
III. Discussion
Pursuant to 42 U.S.C. § 405(g), judicial review of the
Commissioner’s decision is limited to determining whether the findings
of the administrative law judge are supported by substantial evidence
and employed the proper legal standards.

Richardson v. Perales, 402

U.S. 389 (1971); Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595
(6th Cir. 2005).

Substantial evidence is more than a scintilla of

evidence but less than a preponderance; it is such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.
See Buxton v. Haler, 246 F.3d 762, 772 (6th Cir. 2001); Kirk v. Sec’y
of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981).

This

Court does not try the case de novo, nor does it resolve conflicts in
the evidence or questions of credibility.

See Brainard v. Sec’y of

Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v.

3

Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
In determining the existence of substantial evidence, this
Court must examine the administrative record as a whole.
F.2d at 536.

Kirk, 667

If the Commissioner's decision is supported by

substantial evidence, it must be affirmed even if this Court would
decide the matter differently, see Kinsella v. Schweiker, 708 F.2d
1058, 1059 (6th Cir. 1983), and even if substantial evidence also
supports the opposite conclusion.

Longworth, 402 F.3d at 595.

Plaintiff argues, inter alia, that the administrative law judge
erred in evaluating the medical opinions of the claimant’s treating
physician, Dale L. Michalak, M.D.

Statement of Errors, pp. 7-16.

Plaintiff specifically argues that the administrative law judge failed
to provide good reasons for discounting Dr. Michalak’s December 2009
and September 2010 medical opinions and failed to even mention Dr.
Michalak’s July 2010 medical opinion.

Id.

An administrative law judge is required to evaluate every medical
opinion, regardless of its source.

20 C.F.R. § 404. 1527(c).

The

opinion of a treating provider must be given controlling weight if
that opinion is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques” and is “not inconsistent with the
other substantial evidence in [the] case record.”
404.1527(c)(2).

20 C.F.R. §

Even if the opinion of a treating provider is not

entitled to controlling weight, an administrative law judge is
nevertheless required to determine how much weight the opinion is
entitled to by considering such factors as the length, nature and
extent of the treatment relationship, the frequency of examination,

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the medical specialty of the treating physician, the extent to which
the opinion is supported by the evidence, and the consistency of the
opinion with the record as a whole.

20 C.F.R. § 404.1527(c)(2)-(6);

Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009);
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).
Moreover, an administrative law judge must provide “good reasons” for
discounting the opinion of a treating provider, i.e., reasons that are
“‘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 v. Comm’r of Soc. Sec., 486

F.3d 234, 242 (6th Cir. 2007) (quoting SSR 96-2p, 1996 WL 374188, at
*5 (July 2, 1996)).

This special treatment afforded to the opinions

of treating providers recognizes that
“these sources are likely to be the medical professionals
most able to provide a detailed, longitudinal picture of
[the claimant’s] medical impairment(s) and may bring a
unique perspective to the medical evidence that cannot be
obtained from the objective medical findings alone or from
reports of individual examinations, such as consultative
examinations or brief hospitalizations.”
Wilson, 378 F.3d at 544 (quoting 20 C.F.R. § 404.1527(d)(2)).
The claimant began treating with Dr. Michalak in 1995.
247, 452.

PAGEID

On December 7, 2009, Dr. Michalak opined that the

claimant’s ability to stand/walk was limited to one to two hours in an
eight-hour workday, with no more than 30 minutes to an hour without
interruption.

PAGEID 207.

The claimant could sit for three to four

hours in an eight-hour workday without interruption.

Id.

Dr.

Michalak further opined that the claimant could lift/carry up to five
pounds frequently, she was moderately limited in her ability to reach,

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handle, and perform repetitive foot movements, she was markedly
limited in her ability to bend, and she was extremely limited in her
ability to push/pull.

Id.

On July 12, 2011, Dr. Michalak opined that the claimant was
unable to reach above shoulder level, noted that her “liver cirrhosis
causes fatigue,” and commented that she was “likely to have partial or
full day unscheduled absences from work occurring 5 or more days per
month due to the diagnosed conditions, pain and/or side effects of
medication[.]”

PAGEID 445-50.

On September 1, 2011, Dr. Michalak opined that, “as of 3/17/2010
[the claimant] was unable to work due to her back pain.”

PAGEID 452.

The administrative law judge considered Dr. Michalak’s December
2009 and September 2011 opinions but assigned them “very little”
weight.”

PAGEID 63.

However, the administrative law judge made no

mention whatsoever of Dr. Michalak’s July 2011 opinion.

Thus, it

appears that the administrative law judge did not evaluate the July
2011 opinion for controlling weight, nor did he consider the factors
required by Wilson.

Furthermore, although the Commissioner concedes

that Dr. Michalak is a treating source, see Commissioner’s Response,
pp. 4-8, she does not argue that the administrative law judge
considered Dr. Michalak’s July 2011 opinion.

In fact, the

Commissioner’s Response likewise fails to make any reference
whatsoever to Dr. Michalak’s July 2011 opinion.

6

Dr. Michalak’s July 2011 opinion is a “medical opinion”2 within
the meaning of the Commissioner’s regulations.

Cf. West v. Comm’r of

Soc. Sec., 240 F. App’x 692, 697 (6th Cir. 2007) (rejecting a treating
source opinion because it was “not a specific, medically supported
opinion on the nature and severity of [the plaintiff’s] impairments;
rather it is an assessment on the ultimate issue of whether [the
plaintiff] could continue to work with his medical condition”).

It is

not apparent that the administrative law judge even considered Dr.
Michalak’s July 2011 opinion; if he did, the administrative law judge
did not provide reasons “sufficiently specific to make clear to any
subsequent reviewers” the reasons for discounting that opinion.
Rogers, 486 F.3d at 242.

See

Furthermore, it is apparent that the

limitations articulated in Dr. Michalak’s July 2011 opinion are not
adequately reflected in the administrative law judge’s RFC assessment.
The Court therefore concludes that the matter must be remanded
for further consideration of the opinions articulated by the
claimant’s treating provider, Dr. Michalak.
Accordingly, it is RECOMMENDED that the decision of the
Commissioner be REVERSED pursuant to Sentence 4 of 42 U.S.C. § 405(g)
and that this action be REMANDED for further administrative
proceedings consistent with the foregoing.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file

2

“Medical opinions are statements from physicians and psychologists or other
acceptable medical sources that reflect judgments about the nature and
severity of your impairment(s), including your symptoms, diagnosis and
prognosis, what you can still do despite impairment(s), and your physical or
mental restrictions.” 20 C.F.R. § 404.1527(a)(2).
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and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

28

Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right to
de novo review by the District Judge and 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); Smith v. Detroit Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

January 13, 2014

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

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