Mossbarger v. Commissioner of the Social Security Administration

Filing 29

ORDER ADOPTING and AFFIRMING the REPORT AND RECOMMENDATION 25 in that the decision of the Commissioner is reversed and this action is remanded to the Commissioner for further proceedings. Signed by Judge James L. Graham on 9/22/15. (sem)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Brandon M. Mossbarger,
Plaintiff,
v.

Case No. 2:14-cv-1257

Commissioner of
Social Security,
Defendant.
ORDER
Plaintiff Brandon M. Mossbarger brings this action under 42
U.S.C.

§§

405(g)

Commissioner

of

for

Social

review

of

Security

the

final

decision

(“Commissioner”)

of

the

denying

his

applications for disability insurance benefits and supplemental
security income.

The record indicates that plaintiff sustained a

crushing injury to his left foot while employed in a packing plant,
and has since experienced problems with lack of mobility, chronic
pain, and severe depression.

In his decision of March 15, 2013,

the administrative law judge (“ALJ”) found that plaintiff had
severe

impairments

consisting

of

major

depression,

anxiety

disorder, personality disorder, disorders of the left foot, and
chronic pain disorder.
record,

the

ALJ

PAGEID 72.

concluded

that

After consideration of the
plaintiff

has

the

residual

functional capacity (“RFC”) to perform sedentary work, with the
qualifications that the claimant should never climb ladders, ropes,
or scaffolds; can only occasionally climb ramps or stairs; is
limited to frequent stooping, kneeling, crouching, and crawling; is
limited to occasional pushing or pulling activity involving use of
the left leg; should avoid all exposure to the use of hazardous
machinery, operational control of moving machinery, and unprotected

heights; and is limited to the performance of simple, routine, and
repetitive tasks, in a work environment where changes occur on no
more than an occasional basis, and where there is no greater than
occasional interaction with coworkers and the general public.
PAGEID 74.

After considering the testimony of vocational expert

Robert Brodzinsky, the ALJ found that there were jobs in the
community

which

plaintiff

plaintiff is not disabled.
This

matter

is

could

perform,

and

concluded

that

PAGEID 83-84.

before

the

court

for

consideration

of

defendant’s September 4, 2015, objections to the August 14, 2015,
report and recommendation of the magistrate judge, recommending
that

the

case

be

remanded

to

the

Commissioner

for

further

administrative proceedings.
I. Standard of Review
If a party objects within the allotted time to a report and
recommendation, the court “shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations

to

which

objection

is

made.”

§ 636(b)(1); see also Fed. R. Civ. P. 72(b).

28

U.S.C.

Upon review, the

court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”

28

U.S.C. § 636(b)(1).
The court’s review “is limited to determining whether the
Commissioner’s decision ‘is supported by substantial evidence and
was made pursuant to proper legal standards.’”

Ealy v. Comm’r of

Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quoting Rogers v.
Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also,
42 U.S.C. § 405(g) (“The findings of the Commissioner of Social

2

Security as to any fact, if supported by substantial evidence,
shall be conclusive.”). Even if supported by substantial evidence,
however, “‘a decision of the Commissioner will not be upheld where
the [Commissioner] fails to follow its own regulations and where
that error prejudices a claimant on the merits or deprives the
claimant of a substantial right.’” Rabbers v. Comm’r of Soc. Sec.,
582 F.3d 647, 651 (6th Cir. 2009) (quoting Bowen v. Comm’r of Soc.
Sec., 478 F.3d 742, 746 (6th Cir. 2007)).
II. Defendant’s Objections
A. Failure to Discuss Dr. Richetta’s Opinion
Defendant first objects to the finding of the magistrate judge
that the ALJ’s failure to discuss the opinion of Raymond D.
Richetta, Ph.D., a psychologist, constituted error warranting
remand.

The record includes a letter from Dr. Richetta dated

August 15, 2011, expressing his disagreement with certain aspects
of

the

May

23,

2011,

psychological

evaluation

of

plaintiff

conducted by James R. Hawkins, M.D., who determined that plaintiff
was not disabled due to his depression.
record

also

includes

a

psychological

PAGEID 353-354.

evaluation

completed by Dr. Richetta on May 12, 2011.

of

The

plaintiff

PAGEID 579-584.

Dr.

Richetta diagnosed plaintiff as having major depressive disorder,
and noted that his symptoms included: depressed mood most of the
day, nearly every day; psychomotor agitation or retardation nearly
every

day;

fatigue

or

loss

of

energy

nearly

every

day;

and

diminished ability to think or concentrate, or indecisiveness,
nearly every day.

PAGEID 584.

Dr. Richetta found that these

symptoms caused clinically significant distress or impairment in
social, occupational, or other important areas of functioning, and

3

that plaintiff’s disorder, which included symptoms of sadness with
tearful episodes, suicidal ideation, anger, irritable mood, reduced
concentration,

indecisiveness,

reduced

energy,

and

insomnia,

“preclude his returning to work as a laborer at this time.” PAGEID
584.

The ALJ made no mention of these records in his decision.
The requirement under 20 C.F.R. §404.1527(d)(2) that the ALJ

provide “good reasons” for the weight being accorded the opinion of
a treating medical source does not apply to nontreating sources
such as Dr. Richetta.

See Ealy, 594 F.3d at 514.

An ALJ need not

discuss every piece of evidence in the record for his decision to
stand.

Thacker v. Comm’r of Soc. Sec., 99 F.App’x 661, 665 (6th

Cir. 2004).

However, under SSR 06-3p, 2006 WL 2329939 (Soc. Sec.

Admin. Aug. 9, 2006), the ALJ must “consider all relevant evidence
in the case record” when making a disability determination.

SSR

06-3p, 2006 WL 2329939 at *4; Gayheart v. Comm’r of Soc. Sec., 710
F.3d 365, 378 (6th Cir. 2013).

Unless a treating source’s opinion

is given controlling weight (which did not occur in this case), the
ALJ is required specify how much weight he accorded the opinions of
the various treating and non-treating sources and why.

Karger v.

Comm’r of Soc. Sec., 414 F.App’x 739, 753-54 (6th Cir. 2011).

In

addition, “when an ALJ completely ignores the evidence from nontreating sources that is inconsistent with the ALJ’s residual
functional capacity assessment, a remand may be required.”

Nolan

v. Comm’r of Soc. Sec., No. 2:12-CV-477, 2013 WL 4831029 at *4
(S.D.Ohio Sept. 10, 2013).
Defendant argued below that Dr. Richetta’s report basically
expressed two opinions which allegedly were not inconsistent with
the RFC: (1) that plaintiff is clinically depressed; and (2) that

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plaintiff could not return to work “as a laborer.”

The magistrate

judge noted that one interpretation of the latter phrase might be
that

plaintiff

could

not

perform

the

mental

requirements

of

unskilled work, which was contrary to the RFC formulated by the
ALJ.

Doc. 25, p. 10.

The magistrate judge further commented that

it was impossible to say whether the symptoms recited in Dr.
Richetta’s report were taken into account by the ALJ in formulating
the RFC finding because he never discussed Dr. Richetta’s report.
Doc. 25, pp. 10-11.

The magistrate judge also observed that the

ALJ stated that he gave little weight to the opinion of Frank
Orosz, Ph.D., a state agency evaluator, because of the lack of
other medical opinion statements to support it.

The magistrate

judge then noted that the opinion of Dr. Richetta was similar to
the views expressed by Dr. Orosz, and that it was not clear how the
ALJ would have viewed Dr. Orosz’s opinion had he compared it to Dr.
Richetta’s opinion.

Doc. 25. p. 11.

By way of further example,

the court notes that the ALJ assigned significant weight to the
opinion of Dr. Hawkins that plaintiff could perform simple tasks.
See PAGEID 79.

However, the ALJ did not discuss Dr. Richetta’s

criticism of Dr. Hawkins’ evaluation. See PAGEID 353-354. The ALJ
also failed to consider how Dr. Richetta’s opinion may have
supported or undermined the opinion of Timothy Manuel, M.D.,
plaintiff’s treating physician.
It is not the responsibility of this court or the magistrate
judge in the first instance to explain the weight given to the
various medical opinions in the record or to interpret ambiguities
in those opinions.

That obligation rests with the ALJ.

See

Gayheart, 710 F.3d at 378-79 (holding that where ALJ discounted

5

opinions of treating physician due to alleged lack of consistency
with the record as a whole and failed to mention treatment notes
provided by a therapist which lent significant support to those
opinions, “some explanation should have been given for ignoring
this large portion of the record”); Karger, 414 F.App’x at 753-54
(ALJ’s failure to discuss the opinions of two non-treating sources
and whether they supported or undermined the treating sources’
opinions

was

error);

20

C.F.R.

§416.927(e)(2)(ii).

It

is

impossible for this court to determine on the current record
whether the ALJ considered Dr. Richetta’s opinion in arriving at
plaintiff’s RFC.

“The harmless-error doctrine cannot be stretched

far enough to excuse the ALJ’s failure to meaningfully indicate,
even indirectly, how much weight he accorded” the treating source
“vis-a-vis the numerous non-treating sources, and why.”
414 F.App’x at 754 (emphasis in original).

Karger,

The court agrees with

the conclusion of the magistrate judge that the ALJ’s failure to
mention Dr. Richetta’s opinion warrants a remand of this case.
B. Rejection of Dr. Manuel’s Opinion
Defendant also objects to the finding of the magistrate judge
that the ALJ did not adequately explain his reasons for assigning
little weight to the opinion of plaintiff’s treating physician, Dr.
Manuel.
weight”

Treating-source
if:

(1)

the

opinions

opinion

“is

must

be

given

well-supported

“controlling
by

medically

acceptable clinical and laboratory diagnostic techniques”; and (2)
the

opinion

“is

not

inconsistent

with

the

other

substantial

evidence in [the] case record.” See 20 C.F.R. §404.1527(c)(2); SSR
96-2p, 1996 WL 374188 at *2-3 (Soc. Sec. Admin. July 2, 1996).

The

Commissioner is required to provide “good reasons” for discounting

6

the weight given to a treating-source opinion.

§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.”
SSR 96-2p, 1996 WL 374188 at *5; Rogers, 486 F.3d at 242.

If the

opinion of the treating doctor does not meet the “controlling
weight” criteria, this does not mean that the opinion must be
rejected; rather, it “may still be entitled to deference and be
adopted by the adjudicator.”
the

Commissioner

does

SSR 96-2p, 1996 WL 374188 at *1.

not

give

a

treating-source

If

opinion

controlling weight, then the opinion is weighed based on factors
such as the length, frequency, nature, and extent of the treatment
relationship, 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.

20

C.F.R.

§404.1527(c)(2)-(6); Gayheart, 710 F.3d at 376.
The ALJ assigned little weight to Dr. Manuel’s August 6, 2012,
assessment of plaintiff’s residual functional capacity because: (1)
Dr. Manuel’s conclusions about plaintiff’s ability to walk or stand
differed

from

plaintiff’s

reports

regarding

these

abilities

provided in February and March of 2011; (2) Dr. Manuel’s conclusion
that plaintiff could only sit for four hours in a work day was not
supported by the record; (3) Dr. Manuel’s statement that plaintiff
could never lift less than ten pounds was ambiguous and unsupported
by the treatment records; and (4) the evaluation was a checkbox
form which provided no explanation for Dr. Manuel’s conclusions.
PAGEID 81-82.

Although the ALJ acknowledged that Dr. Manuel’s

treatment notes stated several times that plaintiff should be off
7

work until later evaluation, the ALJ observed that few notes
indicated specific functional testing or that plaintiff had the
limitations noted on the opinion form. PAGEID 81-82. In reviewing
the ALJ’s decision, the magistrate judge noted that: plaintiff’s
allegedly conflicting statements concerning his ability to walk or
stand were made eighteen months prior to the date of Dr. Manual’s
report; the ALJ’s rejection of Dr. Manuel’s opinion concerning
sitting restrictions, even if valid, did not warrant rejecting his
entire opinion, which contained other limitations inconsistent with
gainful employment which were not discussed by the ALJ; any
ambiguity regarding plaintiff’s inability to lift and carry less
than ten pounds was not material given that the ALJ restricted him
to sedentary work; and the checkbox format of the opinion was not
a persuasive reason for rejecting the only opinion from a long-time
treating physician where the record also contained a vast quantity
of Dr. Manuel’s treatment notes.

Doc. 25, PP. 13-14.

The court agrees with the conclusion of the magistrate judge
that the reasons provided by the ALJ for assigning little weight to
the opinion of Dr. Manuel do not constitute a sufficient discussion
of Dr. Manuel’s opinion to satisfy the regulatory requirements.
The ALJ gave no indication that he considered factors such as the
length, frequency, nature, and extent of plaintiff’s treatment
relationship with Dr. Manuel, Dr. Manuel’s area of specialty, and
the degree to which the opinion was consistent with the record as
a whole or was supported or not supported by any relevant evidence.
While many courts have cast doubt on the usefulness of check-box
forms, see Smith v. Comm’r of Soc. Sec., No. 13-12759, 2015 WL
899207 at **14-15 (E.D.Mich. March 3, 2015)(citing cases), the

8

court agrees with the magistrate judge that further explanation for
rejecting Dr. Manuel’s opinion was warranted in this case.

The

form was completed by Dr. Manuel, a long-term treating physician,
his opinion concerned matters within the scope of the treatment he
provided to plaintiff, and the record included his treatment
records. Although the ALJ may have been justified in giving little
weight to Dr. Manuel’s opinion, he did not sufficiently explain his
reasons for doing so.

The magistrate judge correctly found that

remand is necessary to permit the ALJ to further consider Dr.
Manuel’s

opinion

and

to

provide

additional

explanation

for

assigning a particular weight to that opinion.
III. Conclusion
For the reasons stated above, the court agrees with the
analysis of the magistrate judge, and concludes that a remand for
further administrative proceedings is necessary for the ALJ to
consider the opinions of Drs. Richetta and Manuel. The court makes
no ruling on the ultimate issue of disability. The court overrules
the plaintiff’s objections (Doc. 28), and adopts and affirms the
magistrate judge’s report and recommendation (Doc. 25).

The

decision of the Commissioner is reversed, and this action is
remanded to the Commissioner for further proceedings pursuant to 42
U.S.C. §405(g), sentence four.

Date: September 22, 2015

s/James L. Graham
James L. Graham
United States District Judge

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