Bagley v. Commissioner of Social Security

Filing 20

REPORT AND RECOMMENDATIONS re 3 Complaint filed by David E. Bagley. 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 to the Commissioner of Social Security for further consideration of Dr. Simpsons opinion. Objections to R&R due by 12/26/2014. Signed by Magistrate Judge Norah McCann King on 12/8/2014. (nmk0)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DAVID E. BAGLEY,
Plaintiff,
vs.

Civil Action 2:14-cv-346
Judge Frost
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 applications for a period of disability,
disability insurance benefits, and supplemental security income.

This

matter is now before the Court on Plaintiff David E. Bagley’s
Statement of Specific Errors (“Statement of Errors”), Doc. No. 14, the
Defendant’s Memorandum in Opposition (“Commissioner’s Response”), Doc.
No. 18, and Plaintiff’s Reply, Doc. No. 19.
I.

Background
Plaintiff David E. Bagley filed his application for a period of

disability and disability insurance benefits on October 7, 2008, and
his application for supplemental security income on October 15, 2008,
alleging that he has been disabled since November 15, 2006.
280-86.

PAGEID

The claims were denied initially and upon reconsideration,

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

An administrative hearing was held on December 3, 2010, at which
plaintiff, represented by counsel, appeared and testified, as did
Hermona C. Robinson, Ph.D., who testified as a vocational expert.
PAGEID 107-45.

In a decision dated December 23, 2010, Administrative

Law Judge Jerry Faust concluded that plaintiff was not disabled from
November 15, 2006, through the date of the administrative decision.
PAGEID 153-65.

Plaintiff asked the Appeals Council to review the

decision, and, on June 28, 2012, the Appeals Council vacated the
December 23, 2010 decision and remanded the matter for further
consideration.

PAGEID 173-75.

A second administrative hearing was held on November 1, 2012, at
which plaintiff, represented by counsel, appeared and testified, as
did Lynne M. Kaufman, M.S., who testified as a vocational expert.
PAGEID 46, 69-106.

In a decision dated December 11, 2012, the

administrative law judge concluded that plaintiff was not disabled
from November 15, 2006, through the date of the administrative
decision.

PAGEID 46-61.

That decision became the final decision of

the Commissioner of Social Security when the Appeals Council declined
review on February 26, 2014.

PAGEID 34-36.

Plaintiff was 49 years of age on the date of the administrative
law judge’s December 11, 2012 decision.

See PAGEID 61, 280.

He has a

limited education, is able to communicate in English, and has past
relevant work as a horticultural worker and insulation installer.
PAGEID 46.

Plaintiff was last insured for disability insurance

purposes on December 31, 2011.

PAGEID 49.

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He has not engaged in

substantial gainful activity since November 15, 2006, his alleged date
of onset of disability.
II.

Id.

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

impairments consist of “a seizure disorder; status post traumatic
brain injury; lumbar spondylosis; an anxiety disorder; and
alcoholism.”

PAGEID 49.

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
lift and carry 20 pounds occasionally and 10 pounds
frequently. He could sit, with normal breaks, for a total
of 6 of 8 hours per workday. He could stand and/or walk,
with normal breaks, for a total of 6 of 8 hours per
workday.
He is able to use his extremities to push and
pull without limitations, within the weight and frequency
restrictions circumscribing his capacity for lifting and
carrying.
The claimant can never climb ladders, ropes or
scaffolds and must avoid exposure to hazards, such as
unprotected heights, dangerous machinery and commercial
driving. The claimant is limited to simple, routine tasks
without fast-paced production quotas in a work environment
where duties are relatively static and changes can be
explained.
The claimant could only have superficial
interaction with others.
PAGEID 50-53.

Although this RFC precludes the performance of

plaintiff’s past relevant work as a horticultural worker and
insulation installer, the administrative law judge relied on the
testimony of the vocational expert to find that plaintiff is
nevertheless able to perform a significant number of jobs in the
national economy, including such jobs as garment sorter, marker, and
packer.

PAGEID 60-61.

Accordingly, the administrative law judge

concluded that plaintiff was not disabled within the meaning of the

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Social Security Act from November 15, 2006, through the date of the
administrative decision.

PAGEID 61.

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.
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.

In his Statement of Errors, plaintiff contends, inter alia,

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that the administrative law judge improperly evaluated the medical
evidence of record.

Although plaintiff specifically argues that the

administrative law judge erred in evaluating the opinions of a number
of medical experts, see Statement of Errors, pp. 8-17, 21-22, the
Court concludes that the matter must be remanded for further
consideration of the opinions of Alex Simpson, D.O.
Dr. Simpson consultatively evaluated plaintiff on September 15,
2012.

PAGEID 653-68.

Plaintiff reported that he could sit for 30

minutes, stand for 45 minutes, walk three blocks, and lift and carry
two to three pounds occasionally.

PAGEID 654.

Upon examination,

plaintiff was alert, had good eye contact, fluent speech, appropriate
mood, and clear thought processes.

PAGEID 655-56.

Plaintiff was

oriented to time, place, person, and situation; his memory was normal,
and his concentration was good.

Id.

Plaintiff had a slow, symmetric,

and steady gait and he walked without an assistive device.
656.

PAGEID

Plaintiff was able to lift, carry and handle light objects; rise

from a seated position with ease; and squat and rise without
difficulty.

PAGEID 656-57.

Plaintiff had 5/5 motor strength testing

of all muscle groups in his bilateral upper and lower extremities, and
he had full range of motion of the cervical spine, upper and lower
extremities, and lumbar spine.

PAGEID 657.

Plaintiff did not display

any significant cognitive deficits during the examination.

Id.

Dr.

Simpson opined that plaintiff
can be expected to sit, stand and walk normally in an
eight-hour workday with normal breaks.
[Plaintiff] does
not need an assistive devise with regards to short and long

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distances and uneven terrain.
[Plaintiff] has mild
limitations with lifting and carrying weight due to
dizziness and headaches.
There are mild limitations on
bending, stooping, crouching, squatting and so on and
[plaintiff] will be able to perform these occasionally
secondary to dizziness, headaches, and back pain.
There
are no manipulative limitations on reaching, handling,
feeling, grasping, fingering and [plaintiff] will be able
to perform these frequently. There are some relevant work
place environmental limitations relating to history of
seizures.
There are no relevant visual or communicative
limitations.
PAGEID 557-58.
Dr. Simpson also completed a medical source statement on
September 15, 2012.

PAGEID 663-68.

According to Dr. Simpson,

plaintiff would be limited to only occasional lifting and carrying of
no more than 10 pounds because of headaches and back pain.
663.

PAGEID

Plaintiff could sit for two hours without interruption, for a

total of seven hours in an eight-hour workday, could stand for a total
of one hour and could walk for a total of one hour in an eight-hour
workday.

PAGEID 664.

Plaintiff could frequently reach overhead but

only occasionally operate foot controls, bilaterally.

PAGEID 665.

Plaintiff could occasionally balance but could never climb stairs and
ramps, climb ladders or scaffolds, stoop, kneel, crouch, or crawl.
PAGEID 666.

Plaintiff could occasionally tolerate exposure to

humidity, wetness, dust, odors, fumes, and pulmonary irritants, but
could never work around unprotected heights, extreme cold, extreme
heat, or vibrations, nor could he work with moving mechanical parts or
operate a motor vehicle.

PAGEID 667.

Dr. Simpson expected these

limitations to last for 12 consecutive months.

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PAGEID 668.

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

20 C.F.R. §§ 404. 1527(c);

However, not every medical opinion is treated equally;

the Commissioner’s regulations describe three classifications of
acceptable medical opinions: (1) nonexamining sources;1 (2) nontreating
sources (or examining sources); and (3) treating sources.2

As a one-

time consultative examiner, Dr. Simpson is properly classified as a
nontreating source.

See 20 C.F.R. §§ 404. 1502, 416.902 (“Nontreating

source means a physician, psychologist, or other acceptable medical
source who has examined [the claimant] but does not have, or did not
have, an ongoing treatment relationship with [the claimant].”).
The opinion of a treating source is entitled to the most weight;
if an administrative law judge does not give “controlling weight” to
the medical opinion of a treating source, he must provide “good
reasons” for discounting the opinion.

See Rogers v. Comm’r of Soc.

Sec., 486 F.3d 234, 242 (6th Cir. 2007) (quoting Soc. Sec. Rul. 96-2p,
1996 WL 374188, at *5); Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 514
(6th Cir. 2010).
sources.”

“However, this requirement only applies to treating

Ealy, 594 F.3d at 514 (citing Smith v. Comm’r of Soc. Sec.,

482 F.3d 873, 876 (6th Cir. 2007)(emphasis in original)).

In

considering the opinion of a nontreating source, such as Dr. Simpson,

1

A nonexamining source is “a physician, psychologist, or other acceptable
medical source who has not examined [the claimant] but provides a medical or
other opinion in [the claimant’s] case.” 20 C.F.R. §§ 404.1502, 416.902.
2
A treating source is the claimant's “own physician, psychologist, or other
acceptable medical source who provides [the claimant], or has provided [the
claimant], with medical treatment or evaluation and who has, or has had, an
ongoing treatment relationship with [the claimant].” Id.

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“the agency will simply ̔[g]enerally [] give more weight to the
opinion of a source who has examined [the claimant] than to the
opinion of a source who has not examined’[the claimant].”
(quoting 20 C.F.R. § 404.1527(d)(1)).
875.

Id.

See also Smith, 482 F.3d at

In determining the weight to be given to the opinion of a

nontreating source, an administrative law judge should still “consider
factors including the length and nature of the treatment relationship,
the evidence that the physician offered in support of her opinion, how
consistent the opinion is with the record as a whole, and whether the
physician was practicing in her specialty.”

Ealy, 594 F.3d at 514

(citing 20 C.F.R. § 404.1527(d)).
In the case presently before the Court, the administrative law
judge considered Dr. Simpson’s opinion as follows:
The undersigned affords some weight to the opinion of
consultative examiner Alex Simpson, D.O., evidenced at
Exhibit 27F.
Dr. Simpson opined the claimant could be
expected to sit, stand, and walk normally in an eight-hour
day with normal breaks, the claimant did not need an
assistive device with regards to short distances, long
distances, or uneven terrain, he had mild limitations with
lifting and carrying weight, can occasionally bend, stoop,
crouch, and squat, and he has no manipulative limitations.
The undersigned gives this opinion weight because it is
consistent with the longitudinal medical evidence of record
and the other credible opinion evidence on record.
PAGEID 59.
Plaintiff argues that the administrative law erred in
evaluating Dr. Simpson’s opinion by either (1) not considering Dr.
Simpson’s medical source statement, or (2) adopting the limitations
found in Dr. Simpson’s narrative report without addressing and

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resolving the inconsistencies between his narrative report and medical
source statement.

Statement of Errors, pp. 21-22.

The Commissioner acknowledges that Dr. Simpson’s narrative
report is “completely at odds” with his medical source statement.
Commissioner’s Response, p. 12.

The Commissioner argues that the

administrative law judge gave “great weight” to Dr. Simpson’s
narrative report, but “gave no weight” to Dr. Simpson’s medical source
statement because “it was inconsistent with the more specific report
Dr. Simpson authored.”

Id. at pp. 11-12.

The Commissioner also

argues that Dr. Simpson “did not actually attribute the inconsistent
[medical source statement] to Mr. Bagley at all; the name David Bagley
was written on Tr. 630 by someone other than Dr. Simpson (compare to
his handwriting at Tr. 625-629 and Tr. 635), and may very well have
been a mistake.”

Commissioner’s Response, p. 12.

The Commissioner’s

arguments are not well taken.
Dr. Simpson’s narrative report and medical source statement are
both found in Exhibit 27F, which the administrative law judge cited in
evaluating Dr. Simpson’s opinion.

See PAGIED 59.

Yet Dr. Simpson’s

narrative report and medical source statement are, in the
Commissioner’s own words, “completely at odds” with each other.
Whereas the narrative provides that plaintiff “can be expected to sit,
stand and walk normally in an eight-hour workday with normal breaks,”
Dr. Simpson’s medical source statement opines that, at one time
without interruption, plaintiff could sit for only two hours, stand
for only one hour, and walk for only one hour.

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PAGEID 557, 664.

This

medical source statement also indicates that, in Dr. Simpson’s
opinion, plaintiff would be able to sit for a total of seven hours in
an eight-hour workday, stand for a total of one hour in an eight-hour
workday, and walk for a total of one hour in an eight-hour workday.
PAGEID 664.

While the narrative provides that plaintiff “has mild

limitations with lifting and carrying weight due to dizziness and
headaches,” the medical source statement provides that plaintiff can
occasionally lift and carry no more than 10 pounds as a result of
plaintiff’s headaches and back pain.

PAGEID 657, 663.

The narrative

provides in general terms that “[t]here are some relevant work place
environmental limitations relating to history of seizures;” however,
the medical source statement specifically provides that plaintiff
could only occasionally balance; never climb stairs and ramps, climb
ladders or scaffolds, stoop, kneel, crouch, or crawl; only
occasionally tolerate exposure to humidity, wetness, dust, odors,
fumes, and pulmonary irritants; and could never tolerate unprotected
heights or moving mechanical parts, operate a motor vehicle, or work
around extreme cold, extreme heat, or vibrations.

PAGEID 658, 666-67.

The administrative law judge adopted “the opinion of
consultative examiner Alex Simpson, D.O., evidenced at Exhibit 27F.”
PAGEID 59.

In doing so, the administrative law judge noted the

limitations found in Dr. Simpson’s narrative report and found that the
limitations were “consistent with the longitudinal medical evidence of
record and the other credible opinion evidence on record.”

Id.

administrative law judge failed, however, to even mention Dr.

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The

Simpson’s medical source statement, and he did not discuss or resolve
the significant inconsistencies between the narrative report and
medical source statement.
The Commissioner argues that the administrative law judge
“reasonably gave no weight to” Dr. Simpson’s medical source statement
because it was inconsistent with the narrative report.
Response, p. 12.

Commissioner’s

The administrative law judge did not, however,

expressly assign “no weight” to Dr. Simpson’s medical source
statement, nor is there any indication whatsoever that he even
considered the inconsistencies between Dr. Simpson’s narrative and
medical source statement.

In fact, the administrative law judge cited

the entirety of Exhibit 27F, which includes both Dr. Simpson’s
narrative report and medical source statement, and gave to the entire
exhibit “weight because it is consistent with the longitudinal medical
evidence of record and the other credible opinion evidence of record.”
PAGEID 59.
It is not apparent from the record that the administrative law
judge considered Dr. Simpson’s medical source statement in forming
plaintiff’s RFC.

To the extent that the administrative law judge did,

he materially misrepresented the opinion by suggesting that the
medical source statement was consistent with Dr. Simpson’s narrative
report.
The Court also finds unavailing the Commissioner’s argument
that Dr. Simpson’s medical source statement was completed by someone
other than Dr. Simpson “and may very well have been a mistake.”

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Dr.

Simpson’s medical source statement identifies plaintiff by name and
social security number, bears the same date as Dr. Simpson’s
evaluation of plaintiff and Dr. Simpson’s narrative report, is signed,
and reflects Dr. Simpson’s name and credentials.

See PAGEID 663-68.

In failing to separately discuss Dr. Simpson’s medical source
statement, the administrative law judge did not, apparently, find that
the statement was not appropriately attributable to Dr. Simpson
Under these circumstances, the Court concludes that the matter
must be remanded for further consideration of the opinions of Dr.
Simpson.

Having concluded that this action must be remanded on this

basis, the Court need not and does not address plaintiff’s remaining
arguments.
It is accordingly 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 to the Commissioner of Social
Security for further consideration of Dr. Simpson’s opinion.
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).

28

Response to objections

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

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

12

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).

December 8, 2014

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

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