Kennedy v. Commissioner of Social Security

Filing 23

REPORT AND RECOMMENDATIONS re 1 Complaint filed by William Kennedy. It is RECOMMENDED that the decision of the Commissioner be reversed pursuant to Sentence 4 of 42 U.S.C. § 405(g) and that the action be remanded for further consideration of Dr. Powers' opinions. Objections to R&R due by 2/23/2015. Signed by Magistrate Judge Norah McCann King on 2/4/2015. (nmk0)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
WILLIAM KENNEDY,
Plaintiff,
vs.

Civil Action 2:14-cv-977
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’s Statement of Errors (“Statement of Errors”), Doc.
No. 16, Defendant’s Memorandum in Opposition (“Commissioner’s
Response”), Doc. No. 21, and Plaintiff’s Reply to Defendant’s
Memorandum in Opposition, Doc. No. 22.
I.

Background
Plaintiff William Kennedy filed his application for benefits on

February 6, 2011, alleging that he has been disabled since September
19, 2008.

PAGEID 51, 179-85.

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 March 13, 2013, at which
plaintiff, represented by counsel, appeared and testified, as did Carl

Hartung, who testified as a vocational expert.

PAGEID 51, 72.

In a

decision dated March 29, 2013, the administrative law judge concluded
that plaintiff was not disabled from September 19, 2008, through
September 30, 2009.

PAGEID 51-68.

That decision became the final

decision of the Commissioner of Social Security when the Appeals
Council declined review on May 29, 2014.

PAGEID 39-41.

Plaintiff was 57 years of age on the date of the administrative
decision.

See PAGEID 58, 189.

Plaintiff was last insured for

disability insurance purposes on September 30, 2009.

PAGEID 53.

Plaintiff has past relevant work as a supervisor of janitorial
services.

PAGEID 67.

He has not engaged in substantial gainful

activity from the alleged onset date of September 19, 2008, through
the date that he was last insured, i.e., September 30, 2009.

PAGEID

53.
II.

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

impairments consist of obesity and a remote history of right knee and
left shoulder arthroscopy procedures.

Id.

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
light work as defined in 20 CFR 404.1567(b) from the
alleged onset date of disability through the date last
insured and could lift, carry, push and pull up to 20
pounds occasionally and up to 10 pounds frequently.
He
could sit, stand and walk for up to 6 hours each in an 8hour workday.
Balancing, crawling, crouching, kneeling,

2

stooping and climbing ramps
no more than frequently.
scaffolds was limited to no
PAGEID 60-61 (footnote omitted).

and stairs were each limited to
Climbing of ladders, ropes and
more than occasionally.
Relying on the testimony of the

vocational expert, the administrative law judge found that this RFC
does not preclude the performance of plaintiff’s past relevant work as
a supervisor of janitorial services.

PAGEID 67.

Accordingly, the

administrative law judge concluded that plaintiff was not disabled
within the meaning of the Social Security Act from September 19, 2008,
through September 30, 2009.

PAGEID 68.

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

3

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,
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 acceptable medical sources and other sources, see Statement of
Errors, pp. 9-15, the Court concludes that the matter must be remanded
for further consideration of plaintiff’s treating provider, James
Powers, M.D.
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

4

opinion is supported by the evidence, and the consistency of the
opinion with the record as a whole.

20 C.F.R. § 404.1527(c)(2)-(6);

Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009);
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).
Moreover, an administrative law judge must provide “good reasons” for
discounting the opinion of a treating provider, i.e., reasons that are
“‘sufficiently specific to make clear to any subsequent reviewers the
weight the adjudicator gave to the treating source’s medical opinion
and the reasons for that weight.’”

Rogers v. Comm’r of Soc. Sec., 486

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

This special treatment afforded 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. Powers has treated plaintiff since at least April 2007, and
he treated plaintiff regularly from 2008 through December 2012.
PAGEID 278-92, 342-46, 356-77.

Plaintiff began treating with Dr.

Powers in 2007 for work-related injuries associated with a workers’
compensation claim that arose in 1992.

PAGEID 374.

Dr. Powers

treated plaintiff for, inter alia, pain in his neck, shoulders, right
foot, and hip, and for pain and loss of feeling in his legs.

5

PAGEID

283, 278-80, 287, 342-43.

On March 22, 2010, Dr. Powers opined that

“the possibility of [plaintiff] returning to work is essentially
zero.”

PAGEID 281.

Dr. Powers completed a medical source statement on February 11,
2013.

PAGEID 349-54.

Dr. Powers opined that, because of multiple

site degenerative joint disease, plaintiff could lift up to 10 pounds
frequently and 11 to 20 pounds occasionally and could carry up to 20
pounds occasionally.

PAGEID 349.

Plaintiff could sit for eight

hours, stand for two hours, and walk for two hours in an eight-hour
workday.

PAGEID 350.

Plaintiff could sit for two hours at a time,

stand for one hour at a time, and walk for 30 minute at a time.

Id.

Plaintiff could never reach overhead, could occasionally reach and
push/pull, could frequently handle and finger, and could continuously
feel.
Id.

PAGEID 351.

Plaintiff could frequently operate foot controls.

Dr. Powers further opined that plaintiff could never climb

ladders or scaffolds, kneel, or crawl; he could occasionally climb
stairs and ramps, stoop, and crouch; and he could frequently balance.
PAGEID 352.

Plaintiff could never tolerate exposure to extreme cold,

unprotected heights, dust, odors, fumes, and pulmonary irritants, and
could occasionally tolerate moving mechanical parts, operate a motor
vehicle, and work around humidity and wetness, extreme heat, and
vibrations.

Id.

Dr. Powers also opined that plaintiff did not

require a cane to ambulate and could perform such activities as
shopping, traveling without a companion for assistance, walking a

6

block at a reasonable pace on rough or uneven surfaces, using standard
public transportation, and preparing a simple meal.

PAGEID 350, 354.

According to Dr. Powers, plaintiff’s limitations had been present
since 2005.

PAGEID 354.

The administrative law judge recognized Dr. Powers to be a
treating source.

At step two of the sequential evaluation process,

the administrative law judge noted Dr. Powers’ opinion that plaintiff
“can shop in stores, travel alone, use public transportation, cook,
feed himself and care for his grooming and hygiene independently and
without difficulty since 2005.”

PAGEID 55.

At step three of the

sequential evaluation process, the administrative law judge noted that
Dr. Powers “also opined that [plaintiff] has not required any
ambulatory aid since 2005.”

PAGEID 60.

See also PAGEID 62.

In

determining plaintiff’s RFC, the administrative law judge evaluated
Dr. Powers’ opinion as follows: “The BDD assessments are generally
consistent with the opinions of the claimant’s primary care physician,
who concluded that he has had the ability to perform light work since
2005 (Exhibit 7F/3-7), which are also entitled to great weight.”
PAGEID 64.
Plaintiff argues that the administrative law judge
mischaracterized Dr. Powers’ opinion as consistent with light work.
Statement of Errors, pp. 9-11.

According to plaintiff, Dr. Powers’

opinion that plaintiff is limited to standing and walking, each, for
two hours during an eight-hour workday is inconsistent with a finding

7

that plaintiff can perform light work.

Id.

Plaintiff also argues

that, to the extent that the administrative law judge rejected Dr.
Powers’ opinion, he failed to provide “good reasons” for doing so.
Id.
The Commissioner argues that “the contention that Dr. Powers’
assessment of Plaintiff’s ability to stand and walk limited him to
sedentary, rather than light, work is baseless.”
Response, p. 9.

Commissioner’s

According to the Commissioner, a limitation to

standing and walking for a total of four hours in an eight-hour
workday is consistent with the ability to perform light work.

Id.

The Commissioner’s arguments are not well taken.
The Social Security Regulations define “light work” as
work involve[ing] 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.
If someone
can do light work, we determine that he or she can also do
sedentary work, unless there are additional limiting
factors such as loss of fine dexterity or inability to sit
for long periods of time.
20 C.F.R. § 404.1567(b).

The “primary difference between sedentary

and most light jobs” is the amount of walking and standing involved.
See SSR 83-10, 1983 WL 31251, at *5 (Jan. 1, 1983).

“Since frequent

lifting or carrying requires being on one's feet up to two-thirds of a
workday, the full range of light work requires standing or walking,

8

off and on, for a total of approximately 6 hours of an 8-hour
workday.”

Id.

“[A]t the sedentary level of exertion, periods of

standing or walking should generally total no more than about 2 hours
of an 8-hour workday . . . .”

Id.

As discussed supra, Dr. Powers opined that plaintiff can stand
and walk for a total of four hours in an eight-hour workday.
350.

PAGEID

The Commissioner’s arguments to the contrary notwithstanding,

see Commissioner’s Response, p. 9 (arguing that a limitation to
standing and walking for a total of four hours in an eight-hour
workday is consistent with light work because such a limitation
exceeds the minimum requirement for standing and walking for sedentary
work), a limitation to standing and walking for a total of four hours
in eight-hour workday is inconsistent with “light work,” which
requires “standing or walking, off and on, for a total of
approximately 6 hours of an 8-hour workday.”

See SSR 83-10, at *5.

See also 20 C.F.R. § 404.1545(a) (“Your residual functional capacity
is the most you can still do despite your limitations.”); Griffeth v.
Comm’r of Soc. Sec., 217 F. App'x 425, 429 (6th Cir. 2007) (finding
that a claimant’s RFC represents the most, not the least, that a
claimant can do despite his impairments).
The administrative law judge expressly assigned “great weight” to
Dr. Powers’ opinion, which the administrative law judge read as
finding that plaintiff has been able to “perform light work since
2005.”

PAGEID 64.

However, the limitations actually articulated by

9

Dr. Powers are inconsistent with a full range of light work. Moreover,
to the extent that the administrative law judge intended to discount
Dr. Powers’ opinion, he provided no explanation for doing so.

Under

these circumstances, the Court cannot say that the administrative law
judge’s evaluation of Dr. Powers’ opinion is supported by substantial
evidence.
Accordingly, the Court concludes that the matter must be
remanded for further consideration of the opinions of Dr. Powers.
Having concluded that this action must be remanded on this basis, the
Court 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. Powers’ opinions.
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).

The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right to

10

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).

February 4, 2015

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

11