Durbin v. Commissioner of Social Security

Filing 14

REPORT AND RECOMMENDATIONS - 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 consideration of the medical opinion of Dr. Theobald. Objections to R&R due by 5/9/2014. Signed by Magistrate Judge Norah McCann King on 4/22/14. (jr1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
LINDA C. DURBIN,
Plaintiff,
vs.

Civil Action 2:13-cv-910
Judge Graham
Magistrate Judge King

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
REPORT AND RECOMMENDATION
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 plaintiff’s application for a period of disability
and disability insurance benefits.

This matter is now before the

Court on Plaintiff Linda C. Durbin’s Statement of Specific Errors,
Doc. No. 10, and the Defendant’s Memorandum in Opposition, Doc. No.
13.

Plaintiff has not filed a reply.
Plaintiff Linda C. Durbin filed her application for disability

insurance benefits on June 15, 2010, alleging that she has been
disabled since January 15, 2010.

PAGEID 137.

The claim was denied

initially and upon reconsideration, and plaintiff requested a de novo
hearing before an administrative law judge.
An administrative hearing was held on April 17, 2012, at which
plaintiff, represented by counsel, appeared and testified, as did
George W. Coleman, III, Ph.D., who testified as a vocational expert.
PAGEID 62.

In a decision dated May 11, 2012, the administrative law

judge concluded that plaintiff was not disabled from January 15, 2010,
through the date of the administrative decision.

PAGEID 57.

That

decision became the final decision of the Commissioner of Social
Security when the Appeals Council declined review on July 24, 2013.
PAGEID 31.
Plaintiff was 52 years of age on the date of the administrative
decision.

See PAGEID 57, 137.

Plaintiff was last insured for

disability insurance purposes on September 30, 2012.

PAGEID 46.

Plaintiff has past relevant work as a department store inventory
manager, tree trimming laborer, campground office clerk, receptionist,
and personnel clerk.

PAGEID 56.

She has not engaged in substantial

gainful activity since her alleged date of onset of disability.
PAGEID 39.
II.

Administrative Decision
The administrative law judge found that plaintiff’s severe

impairments consist of fibromyalgia, dizziness, and left sensorineural
hearing loss.

PAGEID 46.

The administrative law judge specifically

found that plaintiff does not suffer a severe mental impairment.
PAGEID 47. The administrative law judge also found that plaintiff’s
impairments neither meet nor equal a listed impairment and leave
plaintiff with the residual functional capacity (“RFC”) to
perform a full range of medium work as defined in 20 CFR
404.1567(c).
Specifically, the claimant can lift and/or
carry fifty pounds occasionally and twenty-five pounds
frequently; sit, stand and/or walk a total of six hours in
an eight-hour workday; cannot climb ladders, ropes or
scaffolds; cannot tolerate concentrated exposure to noise
and vibration and is precluded from commercial driving and

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working with
heights.
PAGEID 49-50.

or

around

moving

machinery

and

unprotected

The administrative law judge relied on the testimony of

the vocational expert to find that plaintiff was able to perform her
past relevant work as a receptionist and personnel clerk.

PAGEID 56.

Accordingly, the administrative law judge concluded that plaintiff was
not disabled within the meaning of the Social Security Act from
January 15, 2010, through the date of the administrative decision.
PAGEID 57.
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.
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.

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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, 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 opinion of plaintiff’s treating
provider Caryn Theobald, M.D.

Statement of Errors, pp. 7-13.

Plaintiff specifically argues that the administrative law judge
misapplied the regulations in evaluating Dr. Theobald’s opinion and
failed to provide good reasons for discounting the doctor’s opinion.
Id.
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.”

20 C.F.R. § 404.1527(c)(2).

Even if the opinion of a

treating provider is not entitled to controlling weight, an
administrative law judge is nevertheless required to evaluate the
opinion by considering such factors as the length, nature and extent
of the treatment relationship, the frequency of examination, 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);

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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 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)).
Dr. Theobald treated plaintiff from at least January 2010 through
January 2012, for, inter alia, vertigo, back pain, memory loss, ear
problems, depression, and anxiety.

See PAGEID 394 (January 2010), 390

(March 2010), 386 (April 2010), 384 (July 2010), 382 (September 2010),
380 (October 2010), 452-53 (January 2011), 449-51 (July 2011), 447
(January 2012).

On March 29, 2012, Dr. Theobald completed a physical

capacity evaluation and opined that plaintiff could stand for two to
three hours in an eight-hour workday, walk for two hours in an eighthour workday, and sit for two to three hours in an eight-hour workday.
PAGEID 469.

Plaintiff could lift 10 pounds occasionally and could not

use her hands for repetitive pushing and pulling or fine manipulation.

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Id.

Dr. Theobald opined that plaintiff could occasionally climb steps

and never bend, squat, crawl, or climb ladders.
above shoulder level, but not repetitively.

Plaintiff could reach

PAGEID 470.

Dr. Theobald

further opined that plaintiff
had vertigo [and] presumed infarction of her [left] ear.
This has caused fall risks [and] issues w/vertigo. She has
had chronic back pain [and] eval. by pain specialists.
I
have treated her for depression [and] anxiety sx as well.
She had a seizure witnessed by her husband of unclear
etiology [and] has been seen by neurology at OSU Medical
Center – see their notes for specifics.
Id.

In a mental RFC evaluation completed the same day, Dr. Theobald

opined that plaintiff was moderately impaired in 12 of 17 areas of
functioning related to social interaction, sustained concentration and
persistence, and adaptation, moderately to markedly impaired in one
area, and mildly impaired in the remaining four categories.

PAGEID

471-73.
The administrative law judge categorized Dr. Theobald as a
treating source and summarized the physical limitations found in Dr.
Theobald’s physical capacity evaluation, but assigned “little” or
“very little” weight to Dr. Theobald’s opinions contained in the
physical evaluation:
While given some consideration, Dr. Theobald’s opinion is
entitled to little weight.
There are scant progress or
treatment notes from the doctor that might otherwise
support her opinion. The totality of the medical evidence
clearly illustrates that the claimant is not as limited as
indicated by this doctor.
Additionally, Dr. Theobald did
not have access to all of the medical evidence that is
currently in the record.
Given the foregoing, Dr.
Theobald’s
opinion
regarding
the
claimant’s
physical
limitations is entitled to very little weight.

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PAGEID 52.

The administrative law judge also considered Dr.

Theobald’s assessment of her patient’s mental RFC:
Dr. Theobald also completed a mental residual functional
capacity assessment, indicating the claimant had mild to
moderate
impairment
in
social
interaction;
moderate
impairment in sustained concentration and persistence;
moderate impairment in adaptation; and moderate to marked
impairment in her ability to remember locations, workday
procedures and instructions.
The doctor also noted the
claimant’s condition would likely deteriorate if she were
placed under stress, particularly the stress of a job
(Exhibit 20F/5-6).
Although the doctor has treated the
claimant for her depression and anxiety, Dr. Theobald does
not appear to be a psychiatrist, psychologist or mental
health specialist.
Rather, it [sic] Dr. Theobald is a
general practitioner. As such, her opinion appears to rest
at least in part on an assessment of impairments outside
the doctor’s area of expertise.
However, the undersigned
not [sic] dismissed her assessment, has considered Dr.
Theobald’s assessment regarding the claimant’s mental
limitations to the extent that it helps understand how the
limitations assessed affects the claimant’s ability to work
(see 20 CFR §404.1514(e)). Thus, the undersigned has given
Dr. Theobald’s opinion regarding the claimant’s mental
limitations was given [sic] some consideration in assessing
the claimant’s residual functional capacity.
PAGIED 52-53.

Plaintiff contends that the administrative law judge

failed to properly evaluate Dr. Theobald’s medical opinion.
of Errors, pp. 7-13.

Statement

This Court agrees that the administrative law

judge erred in evaluating Dr. Theobald’s mental RFC assessment.
The administrative law judge discredited Dr. Theobald’s opinion
regarding plaintiff’s mental limitations solely on the basis that her
assessment “rest[s] at least in part on an assessment of impairments
outside the doctor’s area of expertise.”

PAGEID 52-53.

Although the

administrative law judge is required to consider the medical specialty
of the treating physician as one of a number of factors under Wilson,
there is no indication that the administrative law judge considered

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any of the remaining Wilson factors.

See Wilson, 378 F.3d at 544.

See also 20 C.F.R. § 404.1527(c)(2) (“When we do not give the treating
source's opinion controlling weight, we apply the factors listed in
paragraphs (c)(2)(i) and (c)(2)(ii) of this section, as well as the
factors in paragraphs (c)(3) through (c)(6) of this section in
determining the weight to give the opinion.

We will always give good

reasons in our notice of determination or decision for the weight we
give your treating source's opinion.”).

It is also unclear what

weight the administrative law judge assigned to Dr. Theobald’s
opinion.

The administrative law judge “considered Dr. Theobald’s

assessment regarding the claimant’s mental limitations to the extent
that it helps understand how the limitations assessed affects the
claimant’s ability to work (see 20 CFR §404.1514(e)” and gave it “some
consideration.”

PAGEID 53.

However, an administrative law judge is

required to evaluate every medical opinion, regardless of its source.
20 C.F.R. § 404.1527(c).

To the extent that the administrative law

judge intended his “consideration” of Dr. Theobald’s opinion to be an
indication of the weight assigned to the opinion, the reasons for
assigning that weight are unclear and not supported by substantial
evidence.

Notably, the regulation cited by the administrative law

judge in support of his reasoning, 20 CFR § 404.1514, is titled “When
we will purchase existing evidence” and does not contain a section
(e), as cited by the administrative law judge.

The administrative law

judge simply has not provided reasons “sufficiently specific to make
clear to any subsequent reviewers” the weight assigned to Dr.

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Theobald’s opinion or the reasons for assigning that weight.
Rogers, 486 F.3d at 242.

See

Under these circumstances, the Court is

unable to evaluate the administrative law judge’s evaluation of Dr.
Theobald’s opinion or conclude that the evaluation is supported by
substantial evidence.

The Court therefore concludes that the matter

must be remanded for further consideration of Dr. Theobald’s opinion.

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 consideration of the medical
opinion of Dr. Theobald.
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.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

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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

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Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

April 22, 2014

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

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