Wilson v. Commissioner of Social Security

Filing 24

REPORT AND RECOMMENDATIONS re 1 Complaint, filed by Teresa Wilson. It is RECOMMENDED that the decision of the Commissioner be reversed and that the matter be remanded to the Commissioner for further consideration of the opinions of plaintiff's treating providers. Objections to R&R due by 7/11/2014. Signed by Magistrate Judge Norah McCann King on 6/24/2014. (nmk0)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
TERESA J. WILSON,
Plaintiff,
vs.

Civil Action 2:13-CV-832
Judge Economus
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), 1383(c), for review of a final decision of the Commissioner of
Social Security denying plaintiff’s application for supplemental security
income. This matter is now before the Court on plaintiff’s Statement of
Specific Errors, Doc. No. 16, and the Commissioner’s Memorandum in
Opposition, Doc. No. 23.
Plaintiff Teresa J. Wilson protectively filed applications for
disability insurance benefits and Supplemental Security Income on May 5,
2010, alleging that she has been disabled since June 1, 2005,1 as a result
of degenerative disc disease, emphysema, Hepatitis C, arthritis, Epstein
Barr syndrome, chronic fatigue syndrome and recurring blistering feet.
PageID

333.

The

applications

were

denied

initially

and

upon

reconsideration, and plaintiff requested a de novo hearing before an
administrative law judge.

1

Plaintiff, who was last insured for disability insurance benefits on June 30, 2008,
later amended her alleged disability onset date to March 1, 2010. PageID 326.
Because her insured status had lapsed by that date, plaintiff could not qualify
for disability insurance benefits. See 20 C.F.R. §§ 404.130, 404.131, and 404.315.

1

Following

an

administrative

hearing,

at

which

plaintiff

was

represented by counsel, the administrative law judge issued a written
decision concluding that plaintiff was not disabled from March 1, 2010,
through the date of the administrative decision. PageID 131-47.

That

decision became the final decision of the Commissioner of Social Security
when the Appeals Council declined review on July 9, 2013.

PageID 55-60.

Plaintiff was 49 years of age on the date of the administrative
decision.

PageID 145, 328.

She has an eighth grade, or “limited,”

education, is able to communicate in English, and has past relevant work
as a forklift operator, food assembly worker and finish carpenter.
145, 332, 334, 335, 343.

PageID

Plaintiff has not engaged in substantial gainful

activity since March 1, 2010, her amended date of onset of disability.
PageID 132.
II.

Evidence of Record2
Plaintiff underwent an MRI of the cervical spine on March 26, 2010,

which

documented

central

disc/osteophyte

protrusion

at

C3-C4

with

associated moderate acquired canal stenosis and slight flattening of the
cord;

moderate acquired canal stenosis at C4-C5 with slight flattening

of the cord; multilevel neural foraminal narrowing from C4-C5, C5-C6, and
on the left at C6-C7; and mild acquired central canal stenosis at C5-C6
due to degenerative changes.

PageID 419.

On April 14, 2010, Emily Johnson, M.D., of FCMH Medical and Surgical
Associates, examined plaintiff for complaints of neck pain.

Dr. Johnson

noted a normal respiratory effort with both lungs normal to auscultation;

2

Plaintiff does not challenge the administrative law judge’s evaluation of her
mental impairments. Accordingly, the Court will focus its review of the medical
evidence on plaintiff’s alleged exertional impairments.

2

plaintiff’s gait and station were normal; both shoulders and elbow joints
were normal to inspection and palpation and had full range of motion. Upper
grip

strength

was 5/5 bilaterally.

Dr. Johnson assessed cervical

degenerative disk disease, referred plaintiff to physical therapy and
prescribed medication. PageID 412-15.
Plaintiff attended physical therapy at Doctor’s Hospital in April and
May 2010 for neck and bilateral shoulder pain. PageID 599-625.

On May 24,

2010, the physical therapist commented that plaintiff was not responding
to treatment. PageID 607.
on June 4, 2010, Scott Reineck, D.O., a family practitioner, saw
plaintiff for complaints of worsening neck pain beginning in 2004. The pain
was aggravated by sitting. Plaintiff also complained of occasional numbness
in her arms and hands. Plaintiff also complained of “knifelike” low back
pain since approximately 2005, which worsened with sitting, sneezing and
coughing and was relieved by lying flat. Plaintiff also complained of sleep
difficulties.

PageID 655. On examination, Dr. Reineck noted difficulty

with range of motion in the neck. Reflexes in the upper extremities were
normal, as was plaintiff’s strength. There was some slight paresthesia with
Phalen’s test in 1st 3 digits, negative Tinel’s test, no tenderness to
palpation in the cervical or lumbar spine. However, Dr. Reineck noted
difficulty in nearly all planes of motion. Straight leg raising in the
supine and seated positions was negative. PageID 657. Given the “uncertain”
etiology of her pain, Dr. Reineck prescribed medication and ordered further
diagnostic testing.

PageID 657-58.

On August 9, 2010, plaintiff presented to Thomas Best, M.D., Ph.D.,
at the OSU Sports Medicine Center, with complaints of chronic back pain
and pain in the left shoulder. She reported problems sitting and standing.

3

Examination of the hips was normal bilaterally. Plaintiff exhibited 18/18
tender points for fibromyalgia.

Dr. Best diagnosed degenerative disc

disease and fibromyalgia and referred plaintiff to the rheumatology
department. PageID 633-35.
On August 18, 2010, the file was reviewed by state agency physician
W. Jerry McCloud, M.D., who found that the record documented
[d]isorders.”

PageID 225.

“[s]pine

According to Dr. McCloud, plaintiff could

occasionally lift/carry twenty pounds, frequently lift/carry ten pounds
and sit, stand or walk up to 6 hours in an 8-hour workday.

PageID 226.

Plaintiff could occasionally climb ramps/stairs, ladders/ropes/scaffolds,
stoop, kneel, crouch and crawl. PageID 226-27.
In September 2010, Dr. Reineck saw plaintiff for complaints of right
hip pain that worsened with walking. She had experienced no recent injuries
and took medication occasionally for back pain.

Plaintiff’s BMI was 32.31.

According to Dr. Reineck, plaintiff was in no acute distress and her lungs
were clear bilaterally; she had positive standing flexion on the left,
tenderness to palpation along right iliac crest and normal active and
passive range of motion.

Dr. Reineck diagnosed right hip pain, somatic

dysfunction, spinal stenosis in the cervical region, degenerative disc
disease of the cervical spine, chronic obstructive pulmonary disease
(“COPD”), obesity and Hepatitis C.

PageID 641-43.

Plaintiff underwent a functional ability screening by a physical
therapist at Ohio Health Neighborhood Care on October 7, 2010. Plaintiff
was found to be functioning at the sedentary level.

Sitting, standing,

or walking were limited to five minutes at a time each, for less than 1-2
hours in an eight hour work day. She could lift 2-8 pounds continuously,
4-6 pounds frequently range and 7.5-15 pounds occasionally. Pushing and

4

pulling ranged from 12.5 to 30 pounds. Plaintiff could not squat to the
floor to lift. She could occasionally bend, squat and reach and could use
both feet for foot controls occasionally. Plaintiff rated her pre-test pain
at a 6 on a 0-10 analog scale; her post-test pain, primarily neck and lower
back pain, was reported at 9. The therapist also noted that plaintiff
exhibited labored breathing.

PageID 682.

Dr. Reineck expressly approved this assessment on October 19, 2010.
PageID 677-81.
Consulting rheumatologist Kevin Hackshaw, M.D., evaluated plaintiff
for fibromyalgia on December 9, 2010.

PageID 684-88.

Plaintiff noted

worsening, diffuse pain since 2004. She experienced tingling in her hands
and morning stiffness for an hour.

Upon examination, Dr. Hackshaw elicited

painful tender points in more than 11 of 18 sites with moderate hypalgesia.
PageID 684.
On December 14, 2010, state agency physician Gerald Klyop, M.D.,
reviewed plaintiff’s records and found documentation of spine disorders,
affective disorders and anxiety disorders.

PageID 240.

Dr. Klyop agreed

with the limitations found by Dr. McCloud. PageID 241-42.
On February 24, 2011, plaintiff was treated by Alex S. Tsai, D.O.,
a family practitioner, for routine follow-up. Plaintiff complained of right
upper quadrant pain. On examination, Dr. Tsai found 12/18 tender points.
He recommended daily low impact exercise.

PageID 897-900.

Family practitioner Christopher Nixon, D.O., saw plaintiff on May 5,
2011, and found “[d]eteriorat[ing]” back and joint pain.

Referring to

imaging that showed degenerative joint disease with moderate canal stenosis
and degenerative disc disease of the lumbar spine, Dr. Nixon commented that
“there seems to be real pathology.”

5

According to Dr. Nixon, plaintiff

seems to have true pain with a legitimate source. With her
history of drug abuse and also Hep C - narcotics with APAP
(acetaminophen) seem like a poor choice. On the other hand, the
patient proclaims that she cannot tolerate diclofenac,
meloxicam, and now, tramadol. [Plaintiff] does not have
insurance so there are limited drug choices. Other options would
be TCA- which she has been on without benefit, topical which may
be costly, prednisone or Lyrica or Cymbalta.
PageID 904. Dr. Nixon discussed knee injections, but plaintiff “defers at
this time.”

Id.

A June 2011 MRI of plaintiff’s left knee showed a tear of the posterial
horn of the medial meniscus, moderate to severe degenerative changes in
the medial compartment, grade II-III, chondromalacia of the patella and
a Baker’s cyst. PageID 912.
Plaintiff was treated by family practitioner Mark Hagen, D.O., on July
6, 2011 for follow-up of her COPD, left knee pain and back pain.

He

continued plaintiff's medications and referred her to an orthopedic
specialist for her knee and to a neurosurgeon for her back pain. He also
recommended a pulmonary evaluation.

PageID 914-16.

On July 7, 2011, Dr. Hagen completed three residual functional
capacity questionnaires as to pulmonary issues, fibromyalgia and Hepatitis
C. PageID 707-16. Dr. Hagen noted that plaintiff’s symptoms of COPD included
shortness of breath, wheezing, bronchitis, and cough. In evaluating
plaintiff’s fibromyalgia, Dr. Hagen stated that plaintiff was capable of
“low stress jobs.” PageID 713. He also opined that plaintiff could sit or
stand for five minutes at a time for no more than two hours in an eight
hour work day, and could stand/walk less than two hours in an eight hour
work day; she could lift/carry no weight; she required unscheduled breaks
every one-two hours for thirty to sixty minutes at a time to sit quietly;
she should avoid even moderate exposure to pulmonary irritants. PageID

6

707-10. Plaintiff’s pain was precipitated by weather changes, fatigue and
movement/use. PageID 713. Plaintiff required a job that permitted a shift
in position at will; she had “significant limitations” in performing
repetitive reaching, handling, or fingering.

PageID 711-15.

She would

have good days and bad days, and would be absent from work more than four
days per month.

PageID 715.

In July 2011, plaintiff was examined by spine specialist Mini B.
Goddard, M.D., on referral from Dr. Reineck.

On clinical examination, Dr.

Goddard noted a normal range of motion of the lumbar spine, but with
complaints of pain on flexion.

Sensation of the legs was intact and

symmetric and deep tendon reflexes were 2+/4 symmetrically to the knees
and ankles.

Motor strength testing was 5/5.

Range of motion of the

cervical spine was mildly decreased on rotation to the left.
raising was negative bilaterally.
extremities.

Straight leg

There was no atrophy of the lower

PageID 881.

On July 28, 2011, Dr. Hagen saw plaintiff for preoperative testing
in connection with arthroscopic surgery for a left knee meniscal/cartilage
tear. PageID 918-31.

According to Dr. Hagen, plaintiff was at moderate

risk due to her respiratory status, but she was nevertheless an acceptable
surgical candidate.

PageID 922-23.

Plaintiff underwent left knee arthroscopic surgery to remove two
meniscal tears and osteoarthritis on August 3, 2011.

PageID 932-57.

On February 2, 2012, Thomas Kovack, D.O., an orthopaedic specialist,
examined plaintiff for complaints of right knee pain over the prior year.
PageID 1029-32.

A January 2012 MRI of the right knee showed Grade 2-3

chondromalicia of the patella and mild tricompartmental arthritis with no

7

obvious meniscal tear. PageID 1032.
arthroscopy on February 15, 2012.

Plaintiff underwent a right knee

PageID 1036-38.

On June 5, 2012, plaintiff’s treating neurosurgeon, James Elder,
M.D., reported that plaintiff suffers from progressive degenerative disc
disease and severe spinal canal stenosis in her cervical spine. Dr. Elder
anticipated a C3-5 anterior cervical diskectomy and fusion.

PageID 1045.

Appeals Council Exhibits:
Dr. Elder examined plaintiff on March 27, 2012 and recommended
flexion/extension films of the cervical and lumbar spine, a CT of the
cervical spine, and an EMG of the left upper extremity. PageID 1413-14.
That EMG documented remote left C-7 radiculopathy. PageID 1415-16. On June
5, 2012, Dr. Elder reviewed those test results and diagnosed significant
degenerative changes in the cervical spine which, he opined, may be
contributing
plaintiff,

to

her

including

symptoms.

He

discussed

surgical

intervention,

treatment
i.e.,

a

options
C3-5

with

anterior

cervical diskectomy and fusion and continued conservative management.
Concluding

that

she

had

exhausted

plaintiff opted for surgery.

conservative

management

options,

PageID 1417-18.

Plaintiff underwent C3-4 and C4-5 anterior cervical diskectomies and
fusion on August 8, 2012.

PageID 1370-86.

Plaintiff presented to the emergency room on August 28, 2012, for
post-operative problems. PageID 1360-69.

She felt unsteady. PageID 1360.

Examination revealed no focal neurological signs, her neck was nontender
and the surgical scar was healing well. PageID 1363.

Plaintiff was tearful

and cried during the neurological assessment and requested anxiety and

8

narcotic pain medication. Nursing notes indicated that plaintiff removed
her cervical collar when alone. PageID 1363.
On September 18, 2012, Dr. Elder reported that plaintiff suffers from
cervical stenosis and a herniated disc at C3-4 and C4-5 which conservative
management had failed to control and for which she underwent an ACDF at
C3-5 on August 8, 2012. According to Dr. Elder, plaintiff could not work
for one year following the surgery. PageID 1359.
III. Administrative Hearing and Decision
At the administrative hearing, plaintiff testified that she has been
diagnosed with Hepatitis C, emphysema/COPD, degenerative disc disease,
cervical spinal stenosis, fibromyalgia and osteoarthritis. PageID 163. She
stopped working because of pain and missing work. PageID 164. Her pain
medications and her breathing inhalers for her COPD cause fatigue,
weakness,

thirst and frequent urination. PageID 166. She takes three or

four naps per day. PageID 167.
Plaintiff described her neck pain as “a throbbing, aching pain at
times that radiates into my left arm, my left shoulder, and down into my
left arm. So severe that it -- I mean, I, I honestly -it feels like my arm’s
going to fall off.”

PageID 167.

The pain in her back radiates down her

legs. PageID 168. Lying down helps to relieve the pain. Id. Sitting in one
position too long, standing longer than five minutes, walking a distance
greater than the house aggravates the pain.

Id.

She cannot reach over

her head. PageID 169.
Plaintiff estimated that she can sit for 2-3 minutes before having
to change position;

she can stand for 2-3 minutes before needing to sit.

9

PageID 170.

She does not “go for walks.” Id.

She used a cane for a while.

Id.
Plaintiff lives with her daughter. PageID 170.

She spends her time

walking around the house, reading, watching television in short increments
and napping. PageID 171-72. She testified that she relies on her daughter
to perform all household chores. Id.1

Plaintiff quit smoking two months

prior to the administrative hearing. PageID 174.
The vocational expert testified that plaintiff’s prior relevant work
consisted of forklift operator, food assembly worker and finish carpenter.
PageID 181-82. Asked to assume a claimant with plaintiff’s vocational
profile and the residual functional capacity eventually found by the
administrative law judge, the vocational expert testified that such an
individual could perform plaintiff's past relevant work as a food assembly
worker.

PageID 183. The individual could also perform such jobs as a bench

assembler (700 jobs locally, 4,900 state-wide, 700,000 nationally);
garment sorter (150 jobs locally, 1,050 state-wide, 150,000 nationally);
and folder (200 jobs locally, 1,400 state-wide, 200,000 nationally). PageID
184.
In his written decision, the administrative law judge found that
plaintiff’s severe impairments consist of degenerative disc disease,
osteoarthritis, bilateral meniscus tears, chronic obstructive pulmonary
disease, fibromyalgia, and a generalized anxiety disorder.

PageID 137.

These impairments neither meet nor equal a listed impairment and leave
plaintiff with the residual functional capacity (“RFC”) to occasionally
lift and carry 20 pounds, frequently lift and carry 10 pounds, and push
or pull to the same extent using hand or foot controls, stand or walk about
1

However, plaintiff also reported that she straightens the house, does some laundry
and dishes and cares for grandchildren two days per week. PageID 353, 379.

10

6 hours and sit about 6 hours in an 8 hour work day. She can occasionally
climb ladders, ropes, scaffolds, ramps and stairs, stoop, kneel, crouch,
and crawl, and work in a static work environment where changes are explained
at the time of implementation.

PageID 137, 139.

In determining plaintiff’s RFC, the administrative law judge accorded
“great weight” to the opinions of the state agency physicians, Drs. McCloud
and Klyop, finding that state agency reviewers are “well-qualified by
reason of training and experience in reviewing an objective record and
formulating

an

opinion

as

to

limitations.”

PageID

144.

The

administrative law judge afforded “little weight” to the opinions of
plaintiff’s treating physicians, finding those opinions to be “unsupported
and inconsistent with the overall weight of clinical and diagnostic
evidence.”

PageID 143.

In spite of the claimant’s considerable alleged physical and
mental symptomatology and limitations, there is no medical
opinion of record by treating practitioners to indicate that the
claimant is prevented from all work activity or clinical or
diagnostic evidence to support such a conclusion. Even the
claimant’s treating physicians who severely limit[] her
physically still state that despite those limitations the
claimant would be capable of performing low stress jobs.
PageID 143. The administrative law judge also found that plaintiff’s
reported daily activities showed no more than moderate limitations and
demonstrated an ability to perform work activities greater than the severe
physical limitations assessed by Dr. Hagen. Id.
Relying on the testimony of the vocation expert, the administrative
law judge found that plaintiff can perform her past relevant work as a food
assembler and, alternatively, a significant number of jobs in the national
economy. PageID 146. Accordingly, the administrative law judge concluded
that plaintiff was not disabled within the meaning of the Social Security

11

Act from March 1, 2010, through the date of the administrative law judge’s
decision.
IV.

Id.

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.

Jones v. Comm’r of Soc. Sec.,

336 F.3d 469, 475 (6th Cir. 2003); Kirk v. Secretary 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. Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007).
In determining the existence of substantial evidence, this Court must
examine the administrative record as a whole.

Kirk, 667 F.2d at 536. If

the Commissioner’s decision is supported by substantial evidence, it must
be affirmed even if this Court would decide the matter differently, Tyra
v. Sec’y of Health & Human Servs., 896 F.2d 1024, 1028 (6th Cir. 1990)(citing
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.
In her Statement of Specific Errors, plaintiff challenges the
administrative law judge’s RFC for light work. Statement of Errors, PageID
1431. Plaintiff specifically argues that the administrative law judge

12

failed to give proper weight to the plaintiff’s treating physicians and
improperly relied on non-examining sources, the state agency physicians
Drs. McCloud and Klyop. (Id. at PageID 1434). In the alternative, plaintiff
asks that the matter be remanded pursuant to Sentence Six of 42 U.S.C. §
405(g) to consider new and material evidence. Id. at PageID 1436).2
The administrative law judge found that plaintiff could perform a
reduced range of light exertion despite her severe impairments. PageID 139.
“Light” exertion is defined as work that
involves lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds. Even
though the weight lifted may be very little, a job is in this
category when it requires a good deal of walking or standing,
or when it involves sitting most of the time with some pushing
and pulling of arm or leg controls. To be considered capable
of performing a full or wide range of light work you must have
the ability to do substantially all of these activities.
20 C.F.R. § 416.967(b). Plaintiff complains that, in making this finding,
the administrative law judge failed to accord proper weight to the
assessments of plaintiff’s treating providers.
To be afforded controlling weight, the opinion of a treating physician
must be well-supported by medically acceptable clinical and laboratory
diagnostic techniques, and must not be inconsistent with other substantial
evidence in the record. Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376
(6th Cir. 2013);
242

(6th

Cir.

Rogers v. Commissioner of Social Security, 486 F.3d 234,
2007);

20

C.F.R.

§

416.927(d)(2).

Even

where

the

administrative law judge declines to accord controlling weight to the
opinion of a treating physician, the administrative law judge “must still
determine how much weight is appropriate. . . .”

2

Blakley v. Commissioner

Plaintiff also contends that the administrative law judge erred in finding that
plaintiff had past relevant work as a food assembler. Statement of Errors, Doc.
No. 16 at PageID 1431. Because the administrative law judge also found that
plaintiff could perform other work that exists in significant numbers in the

13

of Social Security, 581 F.3d 399, 406 (6th Cir. 2009). In weighing the
opinions of the treating physicians, the administrative law judge is
required to consider such factors as the length, nature and extent of the
treatment

relationship,

the

frequency

of

examination,

the

medical

specialty of the treating physician, the opinion's supportability by
evidence, and its consistency with the record as a whole. 20 C.F.R. §
416.927(d)(2) - (6);

Wilson v. Commissioner of Social Security, 378 F.3d

541, 544 (6th Cir. 2004).
provide

“good

Moreover, an administrative law judge must

reasons” for discounting the opinions of a treating

physician, 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.”

Gayheart, at

376; Rogers, at 242, citing Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *5.
In October 2010, Dr. Reineck expressly adopted the opinion of a
physical therapist who opined that plaintiff could sit, stand and walk for
no more than five minutes at a time for a total of less than 1-2 hours per
day; she could lift no more than 15 pounds occasionally.
677-81.

PageID 682;

In July 2011, Dr. Hagen opined that plaintiff’s fibromyalgia

limited her to sitting or standing for five minutes at a time for no more
than two hours per day; she could stand or walk less than two hours per
work day and could lift and carry no weight.

PageID 707-10. Neither of

these assessments is consistent with the RFC for a reduced range of light
work found by the administrative law judge.
In finding an RFC for a reduced range of light work, the administrative
law judge gave “little weight” to the opinions of plaintiff’s treating
providers, PageID 143, characterizing them as

national economy, PageID 146, the Court need not consider this contention.

14

unsupported and inconsistent with the overall weight of clinical
and diagnostic evidence and the claimant’s reported daily
activities. . . that show no more than moderate limitations on
the claimant’s ability to perform basic work functions and
demonstrate an ability to perform work activities greater than
the severe physical limitations assessed by this [sic]
physician.
Id.

Instead, the administrative law judge relied on the opinions of the

state agency physicians, Drs. McCloud and Klyop.

However, it is simply

incorrect to characterize the record, as the administrative law judge did,
as devoid of “medical opinion of record by treating practitioners to
indicate that the claimant is prevented from all work activity. . . .” PageID
143.

Certainly, Dr. Hagen’s July 2011 assessment, which indicated that

plaintiff could lift and carry no weight and could sit and stand for no
more than five minutes at a time, PageID 707-10, and Dr. Reineck’s October
2010 assessment, which indicated that plaintiff could lift up to 15 pounds
only occasionally and could sit, stand or walk for no more than five minutes
at a time, PageID 677-81, are inconsistent with substantial work activity.
Moreover,it is unclear to this Court in what respect the opinions of Drs.
Hagen and Reineck are unsupported by or inconsistent with the evidence.
The failure to explain any such inconsistency therefore failed to serve
the twin goals of the “good reasons” requirement, i.e., to ensure adequate
appellate review and to enable the claimant to understand the disposition
of the claimant’s case.

See Gayheart, at 376.

It is not enough, moreover, that the administrative law judge relied
on the opinions of the state agency physicians. Those physicians reviewed
the record before significant medical records had been generated.

For

example, records relating to plaintiff’s knee conditions, which required
bilateral arthroscopic surgeries, to plaintiff’s fibromyalgia, and to the
progression of plaintiff’s degenerative disc disease and severe spinal

15

canal stenosis of the cervical spine (for which plaintiff underwent a C3-4
and C4-5 anterior cervical diskectomies and fusion after the administrative
hearing) were apparently no included in the record at the time of the reviews
by Drs. McCloud and Klyop.

The administrative law judge recognized this

fact, but nevertheless accorded “[g]reat weight” to their opinions:
The evidence received into the record after the reconsideration
determination concerning the claimant’s physical status did not
provide any credible or objectively supported new and material
information that would alter the State Agency’s findings
concerning the claimant’s physical limitations.
PageID 144. This conclusion is simply unsupportable where the later medical
evidence documents severe impairments not previously reflected in the
record - i.e., knee conditions that later required surgery and fibromyalgia
that was determined by at least one treating physician to be disabling –
and a serious progression of plaintiff’s degenerative disc disease and
stenosis of the cervical spine.
In short, the Court concludes that the matter must be remanded for
further consideration of the opinions of plaintiff’s treating providers.
It is therefore RECOMMENDED that the decision of the Commissioner be
reversed and that the action be remanded, pursuant to Sentence 4 of 42 U.S.C.
§ 405(g) for further consideration of the opinions of plaintiff’s treating
providers.
If any party seeks review by the District Judge of this Report and
Recommendation, that party may, within fourteen (14) days, file 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. 28 U.S.C. §636(b)(1);

16

F.R. Civ. P. 72(b). Response to objections must be filed within fourteen
(14) days after being served with a copy thereof. F.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 Federation of Teachers, Local
231 etc., 829 F.2d 1370 (6th Cir. 1987); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).
Date: June 24, 3014

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

17