Van Houten v. Commissioner Social Security

Filing 19

REPORT AND RECOMMENDATION: it is recommended that the Plaintiff's statement of errors be sustained to the extent that this case be remanded to the Commissioner for further proceedings pursuant to 42 U.S.C. §405(g), sentence four. Objections due within fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 2/25/2015. (agm1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
John Van Houten,

:

Plaintiff,

:

v.

:

Case No. 2:14-cv-356

:

JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp

Commissioner of Social Security,
:
Defendant.

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, John Van Houten, filed this action seeking review
of a decision of the Commissioner of Social Security denying his
application for disability insurance benefits.

That application

was filed on October 21, 2011, and alleged that Plaintiff became
disabled on November 6, 2010.
After initial administrative denials of his claim,
Plaintiff was given a hearing before an Administrative Law Judge
on April 10, 2013.
denied benefits.

In a decision dated April 26, 2013, the ALJ

That became the Commissioner’s final decision

on March 21, 2014, when the Appeals Council denied review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on June 25, 2014.

Plaintiff filed his

statement of specific errors on September 26, 2014, to which the
Commissioner responded on October 28, 2014.

Plaintiff filed a

reply on November 7, 2014, and the case is now ready to decide.
II.

Plaintiff’s Testimony at the Administrative Hearing

Plaintiff, who was 64 years old at the time of the
administrative hearing and who completed two years of college,
testified as follows.

His testimony appears at pages 28-45 of

the administrative record.
Plaintiff first testified that he stopped working on his

alleged onset date, November 6, 2010, due to having surgery to
have parts of his intestines removed.

He has Crohn’s disease in

the small intestine, and also had a large polyp in his large
intestine.

He was first diagnosed with Crohn’s disease in 1979.

He had gone back to work on a part-time basis several months
after the surgery, but was unable to continue that work.
When asked about his daily activities, Plaintiff said that
he fishes and paints, and has taught himself to play the guitar.
He also said that his Crohn’s disease had returned after his
surgery and he was taking Humira for it, which had stabilized his
condition to some extent.

He further explained that Crohn’s is a

progressive disease and that he was in remission for two years in
the 1980s, but had gotten worse since then.

Still, he had been

able to work, including at his last job, which was a department
manager at Lowe’s.

That job and a prior job working security did

require him to be on his feet all day, but the Lowe’s job
entailed more lifting.
Plaintiff’s primary physical issue seemed to be stamina.

He

testified that even working part-time for four hours a day, two
days a week, had been too much for him.
even when doing household chores.

He must take a break

He also described constant

shoulder pain, which he treats with aspirin.

Additionally, he

testified that abdominal cramps, signaling the need to use the
restroom, could come upon him at any time, even with his taking
medication to control that problem.
III.

The Medical Records

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

The pertinent records - those

relating to Plaintiff’s statement of error - can be summarized as
follows.
Plaintiff’s surgery took place on November 15, 2010.

It was

described as a “lap right hemicolectory with resection of the
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terminal ileum ....”

(Tr. 188).

The primary purpose of the

surgery appeared to be to remove some tubular adenomas and a
polyp from his large intestine.

Postoperative imaging showed a

significant amount of Crohn’s disease present in the terminal
ileum.

Plaintiff tolerated the surgery well and was discharged

on November 19, 2010.
to work date.

At that point, he was not given a return

(Tr. 189).

However, on January 31, 2011, he was

released to return to work on February 7, 2011, without
restrictions.

(Tr. 197).

Earlier in 2010, he underwent an

inguinal hernia repair, and at that time his Crohn’s disease was
described as being in remission.

(Tr. 324).

However, the

surgical notes indicate that Plaintiff’s Crohn’s disease was
probably aggravated due to the stress of the surgery.
A health summary dated November 9, 2011, indicated that
Plaintiff was seen at the VA clinic for ongoing management of his
Crohn’s disease.

He reported two flare-ups per year.

He also

told Dr. Borchers that he did not have the endurance to work even
on a part-time basis and that he had worsening episodes of
dizziness.
surgery.

He had lost a substantial amount of weight since the

The diagnostic assessment included Crohn’s disease, and

Plaintiff was referred to Dr. Borchers, who had been treating him
for his intestinal problems, for further evaluation.
38).

(Tr. 333-

A note signed by Dr. Borchers on January 4, 2012, contained

a diagnosis of mild or moderate systemic disease without
functional limitation.

(Tr. 456).

At an appointment on February

28, 2012, Plaintiff agreed to begin using Humira to control his
Crohn’s disease, reporting recurrent episodes in the small bowel
as well as some obstructive symptoms.
diarrhea.

(Tr. 574-75).

He reported occasional

A progress note from January, 2013

showed that he complained of bloating on a regular basis.

(Tr.

613).
Dr. Borchers filled out a “Crohn’s & Colitis Medical Source
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Statement” on February 26, 2013.

He said he had first seen

Plaintiff on March 10, 2010, and saw him three times per year.
He listed Plaintiff’s prognosis as “good” and identified his
symptoms as chronic diarrhea, abdominal distention, and nausea.
Dr. Borchers also noted that Plaintiff had periodic partial
obstructions but that they resolved spontaneously.
responding to Humira.

Plaintiff was

As far as his limitations were concerned,

Dr. Borchers said that Plaintiff needed ready access to a
restroom, would have to take unscheduled restroom breaks every
two hours, lasting fifteen minutes each, would need to lie down
once every week or two for 30 minutes, would be off task 10% of
the time, would have good days and bad days, and would miss an
average of three days per month.
stress, however.

He could tolerate low work

(Tr. 622-25).

Dr. Torello reviewed Plaintiff’s claim initially and
concluded, in a ruling dated December 20, 2011, that he did not
have a severe impairment.

(Tr. 54-55).

affirmed by another reviewer.

That decision was

(Tr. 62-64).

Neither of those

physicians had the benefit of Dr. Borchers’ opinions as expressed
on the “Crohn’s & Colitis Medical Source Statement.”
IV.

The Vocational Testimony

Carl Hartung was the vocational expert in this case.

His

testimony begins on page 45 of the administrative record.
Mr. Hartung testified that Plaintiff’s past work included
security guard, vending machine attendant, department manager,
and gate agent.

Those jobs ranged from unskilled to skilled, and

were performed at either the light or medium exertional levels.
Mr. Hartung was then asked some questions about a
hypothetical person who could work only at all exertional levels
and who was allowed to be off task for five percent of the day.
The person also needed a low-stress job involving only occasional
decision-making and only occasional changes in the work setting.
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The person would also incur six absences per work year.

He said

that such a person could not do any of Plaintiff’s past work or
any other jobs because being off task for five percent of the
time, in addition to regularly-scheduled breaks, would not be
acceptable for either Plaintiff’s past work or other unskilled
jobs.

If, however, the person did not have that particular

limitation, he or she could so all of Plaintiff’s past work
except department manager.
In response to a third hypothetical describing a person who,
again, could work at all exertional levels, needed the same
limitations on the work setting, and had some restrictions in the
use of the left arm, Mr. Hartung testified that the prior jobs
which Plaintiff held (except for department manager) could still
be performed.

No jobs could be done by that same person if he or

she needed four additional fifteen-minute breaks per day, was off
task ten percent of the time, and would miss three days of work
per month.

The same would be true of a person who had to leave

the work area twice a week for an unscheduled 30-minute break.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 1221 of the administrative record.

The important findings in that

decision are as follows.
The Administrative Law Judge found, first, that Plaintiff
met the insured status requirements of the Social Security Act
through June 30, 2014.

Next, he found that Plaintiff had not

engaged in substantial gainful activity since his alleged onset
date of November 6, 2010.

Going to the second step of the

sequential evaluation process, the ALJ determined that Plaintiff
had severe impairments including Crohn’s disease and chronic
degenerative changes in the left shoulder humeral head laterally.
The ALJ also found that these impairments did not, at any time,
meet or equal the requirements of any section of the Listing of

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Impairments (20 C.F.R. Part 404, Subpart P, Appendix 1).
Moving to the step four of the sequential evaluation
process, the ALJ found that Plaintiff had the residual functional
capacity to perform work at all exertional levels but had certain
nonexertional limitations, including pushing or pulling
frequently (but not continually) with the left arm, reaching
overhead only occasionally, and working in a low-stress job
defined as only occasional decision-making and occasional changes
in the work setting.

He would also be absent six days per year

due to medical symptoms.

The ALJ found that, with these

restrictions, Plaintiff could do his past relevant work as a
security guard, vending machine attendant, and gate agent.
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 a
single issue: the ALJ violated the “treating physician” rule
found in 20 C.F.R. §404.1527(c) with respect to the opinions
expressed by Dr. Borchers.

That issue is evaluated under the

following 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
Richardson v. Perales, 402

adequate to support a conclusion'"

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

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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).
The Treating Physician
The only treating source opinions came from Dr. Borchers.
The ALJ evaluated his opinions in this way:
As for the opinion evidence, the claimant’s
representative argued that the undersigned should adopt
the opinion of Dr. Borchers, the claimant’s treating
physician (Exhibit 9E). Dr. Borchers opined that the
claimant would need to be near a bathroom, require
unscheduled breaks during the workday, and would be
excessively absent from work due to symptoms despite
surgical and medical management (Exhibit 6F). However,
the undersigned gives Dr. Borchers’ opinion little
weight, as his opinion is extreme in light of the
summarized medical evidence. Although the claimant
underwent surgery for Crohn’s disease, the record
supports that surgery and medical management have been
generally successful in controlling the claimant’s
symptoms. Dr. Borchers noted that the claimant was
responding to Humira and the claimant reported
decreased episodes of diarrhea and improvement in his
bowel movement generally. Moreover, the claimant had
Crohn’s disease since 1979 and worked steadily despite
flares, which is inconsistent with Dr. Borchers’
opinion that the claimant would be precluded from work,
as the record does not support a significant worsening
of the claimant’s condition. While the record suggests
occasional flares, generally occurring in the spring
and fall, the residual functional capacity adequately
accommodates this limitation.
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(Tr. 19).

Plaintiff contends that this evaluation is flawed

because it does not reflect that the ALJ took into account the
various factors set forth in 20 C.F.R. §404.1527(c) which apply
to the opinions of treating physicians - including the length,
nature and extent of the treating relationship, Dr. Borchers’
specialization, and the consistency and supportability of his
opinions - nor that the ALJ considered whether to give the
opinions controlling weight before deciding to reject them.
Plaintiff also argues that the reasons given for giving little
weight to Dr. Borchers’ opinions are not supported by the record.
The Court of Appeals recently, and succinctly, set forth the
legal standard for reviewing an ALJ's evaluation of opinions of
treating sources. In Gayheart v. Comm’r of Social Security, 710
F.3d 365, 375–76 (6th Cir.2013), that court said:
As a general matter, an opinion from a medical source
who has examined a claimant is given more weight than
that from a source who has not performed an examination
(a “nonexamining source”), [20 C.F.R.] § 404.1502,
404.1527(c)(1), and an opinion from a medical source
who regularly treats the claimant (a “treating source”)
is afforded more weight than that from a source who has
examined the claimant but does not have an ongoing
treatment relationship (a “nontreating source”), id. §
404.1502, 404.1527(c)(2). In other words, “[t]he
regulations provide progressively more rigorous tests
for weighing opinions as the ties between the source of
the opinion and the individual become weaker.” Soc.
Sec. Rul. No. 96–6p, 1996 WL 374180, at *2 (Soc. Sec.
Admin. July 2, 1996).
The source of the opinion therefore dictates the
process by which the Commissioner accords it weight.
Treating-source opinions must be given “controlling
weight” if two conditions are met: (1) the opinion “is
well-supported by medically acceptable clinical and
laboratory diagnostic techniques”; and (2) the opinion
“is not inconsistent with the other substantial
evidence in [the] case record.” 20 C.F.R. §
404.1527(c)(2). If the Commissioner does not give a
treating-source opinion controlling weight, then the
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opinion is weighed based on the length, frequency,
nature, and extent of the treatment relationship, id.,
as well as the treating source's area of specialty and
the degree to which the opinion is consistent with the
record as a whole and is supported by relevant
evidence, id. § 404.1527(c)(2)-(6).
The Commissioner is required to provide “good reasons”
for discounting the weight given to a treating-source
opinion. Id. § 404.1527(c)(2). These reasons must be
“supported by the evidence in the case record, and must
be 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.” Soc. Sec. Rul. No. 96–2p, 1996 WL
374188, at *5 (Soc. Sec. Admin. July 2, 1996). This
procedural requirement “ensures that the ALJ applies
the treating physician rule and permits meaningful
review of the ALJ's application of the rule.” Wilson v.
Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).
The Commissioner concludes that the ALJ’s decision satisfies
these requirements, arguing that the ALJ correctly determined
that the treatment notes did not support Dr. Borchers’ views and
that the ALJ was not required explicitly to mention the various
factors set out in §404.1527(c) in his discussion.

In reply,

Plaintiff continues to focus on the ALJ’s failure to mention
those factors explicitly as the core of his claim, although he
also characterizes the ALJ’s decision as a “blend of the ALJ’s
own medical judgments and unsupported factual assertions.”

Reply

Memorandum, Doc. 18, at 1-2.
It is accurate to say that §404.1527(c) requires at least
two things: that the ALJ give good reasons for rejecting the
opinions of treating sources, and that the ALJ consider all of
the factors which go into the evaluation of a treating source
opinion.

It is not, however, necessarily the case that an ALJ

must discuss each of those factors explicitly, so long as the
Court can determine that the ALJ was aware of the factors and
gave good reasons for his ultimate determination not to give
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controlling weight to the opinion in question, doing so in a
fashion that allows for meaningful review.

That is, “there may

be occasions where the ALJ has given the requisite ‘good reasons’
for rejecting a treating-source opinion and has considered the 20
C.F.R. § 404.1527 factors without explicitly discussing each such
factor....”

Blanchard v. Comm'r of Social Security, 2012 WL

1453970, *16–17 (Mar. 16, 2012) adopted and affirmed 2012 WL
1432589 (E.D. Mich. Apr. 25, 2012).

On the other hand, the

combination of “[t]he ALJ's failure to consider the factors set
forth in 20 C.F.R. §§ 404.1527(c)(2)-(6) ... in determining what
weight to give [a treating source’s] opinions, and [the] failure
to provide ‘good reasons’ supported by substantial evidence for
her decision to discount [those] opinions, require a reversal of
[the administrative] decision.”

Jodrey v. Commissioner of Social

Sec., 2013 WL 5981337 (S.D. Ohio Nov. 12, 2013), adopted and
affirmed 2013 WL 6632633 (S.D. Ohio Dec. 17, 2013).
The ALJ’s “good reasons” amounted to a perceived
inconsistency between Dr. Borchers’ opinions and the “summarized
medical evidence,” along with the purported lack of evidence that
Plaintiff’s condition worsened after he stopped working.
are problems with this analysis.

There

It is ordinarily not enough to

summarize hundreds of pages of medical evidence and then to
assert, in conclusory fashion, that a treating source opinion is
inconsistent with or not supported by that entire body of
evidence.

That is not sufficiently specific to allow for

meaningful review.

Cf. Wisecup v. Astrue, 2011 WL 3353870, *8

(S.D. Ohio July 15, 2011), adopted and affirmed 2011 WL 3360042
(S.D. Ohio Aug. 3, 2011).
Here, the problem is lessened to some extent by the ALJ’s
comments on the evidence as he summarized it; he did point out,
in that summary, those portions of the evidence which he believed
did not support a claim of disability, such as the fact that
Plaintiff did not receive extensive treatment for Crohn’s disease
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in the months following his November, 2010 surgery, that he often
stated that his Crohn’s symptoms were stable, and that he had
improvements in his symptoms when he began to use Humira.
17-18).

(Tr.

But, as this Court has pointed out, speaking of a

similar claimant, “there is no dispute over the fact that he has
Crohn's disease with symptoms fluctuating in severity.

These

fluctuations, of course, mean that Hale's medical records contain
information showing that his symptoms were sometimes severe and
sometimes not.

Consequently, the ALJ's use of ‘inconsistent’ and

‘unsupported’ as to Dr. Gaeke's opinion was based an overly
selective reading of the record.”

Hale v. Colvin, 2014 WL

868124, *6 (S.D. Ohio March 5, 2014), adopted and affirmed 2014
WL 4829539 (S.D. Ohio Sept. 29, 2014).

This suggests that the

long-term treating physician is particularly well-positioned to
express views about the limitations arising from a patient’s
Crohn’s disease, and the ALJ should keep this point in mind on
remand.
Further, the ALJ apparently concluded, at least in his
direct discussion of Dr. Borchers’ opinions, that the November,
2010 surgery was intended to treat Plaintiff’s Crohn’s disease,
which it clearly was not.

Further, despite the ALJ’s own summary

of the records showing an increase in Plaintiff’s Crohn’s
symptoms up to and following the surgery, to the point where, in
January, 2012, Plaintiff began treatment with Humira (something
he had resisted in the past due to its potential side effects),
the ALJ commented that nothing had changed in the course of that
disease which would justify an opinion that Plaintiff could no
longer work as he had done so in the past.

That is an erroneous

characterization of the record and one which does not provide
substantial support for the ALJ’s decision.

Coupled with the

fact that Plaintiff had a long-term patient relationship with Dr.
Borchers and that Dr. Borchers is a specialist in this area factors not explicitly mentioned by the ALJ, and which undercut
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to some extent the ALJ’s ability to interpret Dr. Borchers’ notes
as inconsistent with his opinions - this is one of those cases,
like Jodrey, where the combination of the failure to consider
several important regulatory factors explicitly and the lack of
substantial support for a good portion of the ALJ’s decision
mandate a remand for further evaluation of the evidence.
Consequently, the Court recommends that Plaintiff’s assignment of
error be sustained.
VII.

Recommended Decision

Based on the above discussion, it is recommended that the
Plaintiff’s statement of errors be sustained to the extent that
this 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, 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.
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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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