Ray v. Commissioner of Social Security

Filing 16

REPORT AND RECOMMENDATION that the Plaintiff's statement of errors be sustained to the extent that the case be remanded to the Commissioner pursuant to 42 U.S.C. §405(g), sentence four. Objections to R&R due within fourteen (14) days. Signed by Magistrate Judge Terence P. Kemp on 6/8/2015. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Cathy A. Ray,

:

Plaintiff,

:

v.

:

:
Commissioner of Social Security,
Defendant.

Case No.

2:14-cv-1362

JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Cathy A. Ray, filed this action seeking review of
a decision of the Commissioner of Social Security denying her
applications for disability insurance benefits and supplemental
security income.

Those applications were filed on June 9, 2011,

and alleged that Plaintiff became disabled on June 22, 2010.
After initial administrative denials of her claim,
Plaintiff was given a hearing before an Administrative Law Judge
on January 31, 2013.

In a decision dated February 8, 2013, the

ALJ denied benefits.

That became the Commissioner’s final

decision on June 25, 2014, when the Appeals Council denied
review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on November 6, 2014.

Plaintiff filed her

statement of specific errors on December 22, 2014, to which the
Commissioner responded on January 26, 2015.

No reply brief was

filed, and the case is now ready to decide.
II.

Plaintiff’s Testimony at the Administrative Hearing

Plaintiff, who was 52 years old at the time of the
administrative hearing and who has her GED, testified as follows.
Her testimony appears at pages 29-42 and 43-45 of the
administrative record.

The ALJ first asked Plaintiff if she ever cleaned houses.
She said she had done so five or ten years previously, and
occasionally since then.

The ALJ was concerned that her

occupation was still listed as housecleaner even during her most
recent medical treatment.
Plaintiff then testified that she had problems with her
wrists and also had arthritis in her fingers.
aunt who did all the housework.

She lived with an

She could walk through a grocery

store but did not walk daily (although her medical records
apparently said that she did).

She had been prescribed

medication for fibromyalgia but could not afford it.
also been prescribed medication for back pain.

She had

When she was

taking medication, she noticed no difference in her condition.
She left her last job, which involved boxing and tagging
merchandise, because she could no longer do the work.
In a typical day, Plaintiff would sit for two or more hours
after waking up before she could walk about.

Other than sitting

and watching an uncle who had Alzheimer’s disease, she sat in her
room.

On days where her symptoms were especially severe, she

could barely breathe.

Sudden movements, bending, or turning her

head made her symptoms worse.
without pain.

She could not lift her arms

She completed a vocational rehabilitation program

but could not work for eight hours doing secretarial duties.

She

had to alternate constantly between sitting and standing.
Finally, Plaintiff said she had been a greeter at Meijer’s
and also worked in loss prevention.

The latter job might involve

struggling with suspected shoplifters.

She had also been a

salesperson and an administrative secretary, and worked for
Meijer’s for about eight years in total.
III.

The Medical Records

The medical records in this case are found beginning on page
190 of the administrative record.
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The pertinent records can be

summarized as follows.
The first of the five medical records in the file is an
emergency room note from May 5, 2010.

At that time, Plaintiff

reported a three-year history of neck pain which had recently
gotten worse.
arthritis.

She said her doctor had diagnosed her with

Her current symptoms were described as “mild.”

exhibited pain on passive movement of the neck.

She

She was given

medication and discharged with instructions to follow up with her
physician.

(Tr. 191-95).

Next, there are a number of pages of notes from Plaintiff’s
family doctor, Dr. Timson, all from 2010.

They show that

Plaintiff was being treated for numerous problems including
spinal stenosis in the cervical region (apparently diagnosed by
MRI), osteopenia, arthralgia at multiple sites, depressive
disorder, and fatigue and malaise.
several medications.

She had been prescribed

There were few abnormal test results shown

- for example, an EMG done in May, 2010 was normal, as was a bone
scan done the following month.

Plaintiff reported in October,

2010 that she had arm pain and could not tolerate the typing
involved in the BVR retraining effort.

She also demonstrated

pain on almost any touching and had decreased flexion in the head
and neck.

(Tr. 196-237).

Dr. Grodner performed a consultative examination on October
20, 2011.

Plaintiff reported morning stiffness in all her joints

and difficulty walking, climbing stairs, and getting in and out
of a car.

She was not taking any medications at that time.

She

walked slowly and deliberately but did not need an ambulatory
aid.

She could squat only partially.

were normal.

Her grasp and manipulation

She showed a decreased range of motion in the

cervical spine, right knee, and shoulders.

X-rays were normal.

Dr. Grodner reviewed the prior MRI which showed some mild
degenerative changes in the cervical spine.
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Taking into account

his examination, the test results, and the history provided by
Plaintiff, Dr. Grodner concluded that Plaintiff could do some
type of sedentary work which did not involve use of the head and
shoulders in a repetitive way.

(Tr. 237-44).

Plaintiff was seen by a rheumatologist, Dr. Stainbrook, on
October 26, 2012.
to toe.

Her reporting problem was joint pain from head

She complained of fatigue and weakness as well as

morning stiffness and swelling in her fingers.

Dr. Stainbrook’s

impressions included arthralgia of multiple joints, fibromyalgia,
and fibrositis, plus severe arthralgia of the shoulder, elbow,
and wrist.

He told Plaintiff that the “cornerstone” of treatment

was physical therapy, generalized stretching, and aerobic
exercise.

He also thought she would benefit from chronic pain

management and psychiatric evaluation and treatment.

(Tr. 245-

51).
The last set of records are additional notes from Dr.
Timson.

They show little beyond the fact that her primary

complaint was arthritis and that she was not taking medications
because she could not afford them.

(Tr. 252-66).

Finally, the record contains opinions from two state agency
reviewers.

Dr. Hinzman, who reviewed various records including

Dr. Grodner’s assessment, limited Plaintiff to the performance of
light work with limitations on the use of both upper extremities
for operation of hand controls and overhead lifting.

He also

thought she could never climb ladders, ropes, or scaffolds, could
frequently stoop and occasionally crawl, and should not be
exposed at all to fumes, odors, dusts, gases, poor ventilation,
unprotected heights and moving machinery. (Tr. 50-55).

It is

unclear exactly how the other reviewer, Dr. Klyop, evaluated
Plaintiff’s residual functional capacity other than concluding
that she could do light work.
IV.

The Vocational Testimony
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George Coleman III was the vocational expert in this case.
His testimony can be found at pages 42-47 of the administrative
record.
Mr. Coleman was asked to categorize Plaintiff’s past work.
He said that her job as an administrative secretary or office
clerk was light and semiskilled.
was medium and unskilled.

Her job as a warehouse worker

The cleaner job was light and

unskilled.
Mr. Coleman was then asked some questions about a
hypothetical person of Plaintiff’s age, education, and work
experience who could work at the light exertional level but who
could occasionally climb ramps and stairs and never climb ropes,
ladders and scaffolds.

The person could also occasionally crawl.

Finally, the person could not be exposed to moving machinery,
unprotected heights, or dust, fumes, and gases.

According to Mr.

Coleman, someone with those limitations could do some of
Plaintiff’s past jobs, and could also work as a file clerk,
office helper, or parking lot attendant.
Mr. Coleman was then asked about an individual with the same
restrictions but who could not perform repetitive arm motions,
could not have a production pace requirement, and who needed to
change positions frequently with a five-minute break each hour.
That last requirement, he said, would define an accommodated work
setting and would be inconsistent with competitive employment.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 1322 of the administrative record.

The important findings in that

decision are as follows.
The Administrative Law Judge found, first, that Plaintiff
met the insured requirements of the Social Security Act through
September 30, 2012.

Next, he found that she had not engaged in

substantial gainful activity since her alleged onset date of June

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22, 2010.

Going to the second step of the sequential evaluation

process, the ALJ determined that Plaintiff had severe impairments
which he described as “back and neck.”

The ALJ also found that

these impairments did not, at any time, meet or equal the
requirements of any section of the Listing of Impairments (20
C.F.R. Part 404, Subpart P, Appendix 1).
Moving to step four of the sequential evaluation process,
the ALJ found that Plaintiff had the residual functional capacity
to perform a full range of light work.

Based on that conclusion,

the ALJ determined that Plaintiff could do her past relevant work
as a retail sales clerk and administrative secretary.
Consequently, the ALJ concluded that Plaintiff was not entitled
to benefits.
VI.

Plaintiff’s Statement of Specific Errors

In her statement of specific errors, Plaintiff raises these
issues: (1) the ALJ erred by failing to discuss or weigh the
state agency physician’s medical opinion; (2) the ALJ incorrectly
evaluated the opinion of Dr. Grodner; and (3) the ALJ erred by
not finding that Plaintiff had a severe impairment concerning the
use of her arms and hands. These claims are evaluated under the
following 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

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(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th
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).
A.

Dr. Hinzman’s Opinion

Plaintiff’s first claim of error is straightforward.

She

notes, correctly, that the ALJ found her to be more capable than
reflected in Dr. Hinzman’s opinion, notwithstanding the fact that
the ALJ specifically adopted that opinion, see Tr. 20 (“[t]he
limitations assessed adopt the opinions of the State of Ohio
Bureau of Disability Determinations physicians,”) and Tr. 21
(“[t]heir assessments are ... accurate representations of the
claimant’s physical ... status”).

Consequently, she argues that

the ALJ did not properly consider the opinions of the state
agency reviewers as required by SSR 96-7p.

The Commissioner

responds that most of the limitations described by Dr. Hinzman
were presented to the vocational expert, who testified that even
with those limitations Plaintiff could do her past relevant work,
and asserts that the ALJ had a substantial basis - primarily Dr.
Grodner’s opinion - for finding that the remainder of those
limitations were not supported by the record.
There is no doubt that the administrative decision could
have been written more clearly to reflect the fact that, despite

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lumping all of the opinions of the state agency reviewers
together and purporting to adopt them as accurate, the ALJ made a
residual functional capacity finding which differed from that of
Dr. Hinzman.

It also appears that Dr. Hinzman is the only state

agency reviewer who expressed an opinion about Plaintiff’s
residual functional capacity.

Nevertheless, contradictions or

inconsistencies in an ALJ’s opinion do not necessarily require a
remand.

The Court still must review the ALJ’s conclusions under

the “substantial evidence” standard and cannot remand a case if
any error in procedure is harmless - that is, if it is clear that
the ALJ would have still reached the same result despite the
error.
Here, that is not clear.

There is precedent for determining

that inconsistencies between an ALJ’s purported adoption of
physical limitations described in a physician’s opinion and the
ALJ’s RFC finding is an error requiring remand.

See, e.g., Glenn

v. Comm’r of Social Security, 763 F.3d 494, 497 (6th Cir.
2014)(awarding fees under the EAJA and approving the District
Court’s finding of reversible error because the ALJ adopted “a
residual functional capacity (RFC) finding inconsistent with the
opinion of examining, non-treating physician Dr. Shelby–Lane,
which the ALJ expressly stated he adopted ...”).

And, as

cogently stated in Commodore v. Astrue, 2011 WL 4856162, *4
(E.D. Ky. Oct. 13, 2011),
The Court recognizes that the ALJ is ultimately
responsible for assessing a Plaintiff's RFC. 20 C.F.R.
§ 404.1546(c). However, he must base his assessment on
“all of the relevant evidence in the case record.” SSR
96–8p; see SSR 96–6p. Additionally, “[t]he RFC
assessment must include a narrative discussion
describing how the evidence supports each conclusion.”
SSR 96–8p. The ALJ must articulate the reasons for his
findings, particularly when they deviate from the
sources he purports to rely on. In the context of
purely conclusory statements, this Court cannot conduct
a meaningful review of whether substantial evidence
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supports the ALJ's decision.
This Court has generally followed that reasoning. See, e.g.,
Holsinger v. Comm’r of Social Security, 2013 WL 3762274 (S.D.
Ohio July 16, 2013), adopted and affirmed 2013 WL 4047142 (S.D.
Ohio Aug. 9, 2013); see also Tucker v. Astrue, 2012 WL 3561987
(S.D. Ohio Aug. 17, 2012), adopted and affirmed 2012 WL 4006705.
*9 (S.D.Ohio Sept. 12, 2012)(holding that “the ALJ's decision
must provide some explanation of how the record evidence supports
her RFC determination”).
The Commissioner’s memorandum provides a good deal of
speculation as to what the ALJ’s reasoning might have been, and
what the vocational expert might have said had the entire set of
limitations described by Dr. Hinzman been included in the
hypothetical question posed to him, but it is just that speculation.

As but one example, the Commissioner’s claim that

the ALJ may have relied on Dr. Grodner’s opinion to discount some
of Dr. Hinzman’s stated limitations is hard to reconcile with the
ALJ’s decision to give Dr. Grodner’s opinion only partial weight,
without any discussion of what parts of that opinion the ALJ
actually accepted.

Further, the record is insufficient to

support the Commissioner’s assertion that limitations on the use
of the hands or arms, or on overhead reaching, are consistent
with doing the job of either office clerk or administrative
secretary.

The vocational expert was not asked that question,

and Plaintiff was not asked to describe the duties of those jobs
in sufficient detail to permit any conclusion about that matter
to be drawn from the record.
On the current state of the record, the Court cannot
determine if the ALJ actually reviewed Dr. Hinzman’s opinion as
required by law, or whether he mistakenly believed that Dr.
Hinzman expressed an RFC for a full range of light work.

He also

provided an insufficient explanation for his RFC findings.
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These

errors require remand.
B.

Dr. Grodner’s Opinion

Plaintiff next argues that the ALJ did not apply the proper
factors in discounting Dr. Grodner’s opinion.

The ALJ provided a

short rationale for disregarding the limitation to sedentary
work, asserting that Dr. Grodner had relied upon Plaintiff’s
description of her limitations, which the ALJ did not find
totally credible, and that his conclusion was not supported by
the radiologic evidence.

According to Plaintiff, this was error

because Dr. Grodner actually examined Plaintiff and made a number
of direct observations to support his findings, and because the
radiologic evidence was not a substantial basis for Dr. Grodner’s
conclusions.

In response, the Commissioner argues that the ALJ

had an adequate basis for discounting Dr. Grodner’s conclusions
and that he was not required to give that opinion any special
consideration.
Plaintiff is correct that the opinion of an examining but
non-treating source is generally entitled to greater weight than
that of a non-examining reviewer.

“Generally, more weight is

given to the medical ‘opinion of a source who has examined [the
claimant] than to the opinion of a source who has not examined
[the claimant].’ 20 C.F.R. §404.1527(c)(1)....”

Brooks v. Comm’r

of Social Security, 531 Fed. Appx. 636, 642 (6th Cir. Aug. 6,
2013).

While an ALJ may certainly reverse that calculus for good

reasons, his decision to do so must find substantial support in
the record.

Here, Plaintiff has not challenged the ALJ’s

credibility finding, so to the extent that Dr. Grodner relied on
her statement of symptoms, that is a good reason for giving less
weight to his opinion.

He did also rely in part on x-rays and

similar studies, and they did contain only minimal findings.
However, he also based his opinion, particularly about the amount
of lifting Plaintiff could do, on findings such as decreased
range of motion of the cervical spine, tenderness and increased
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tonicity in the posterior cervical muscles, and decreased range
of motion of the shoulders.

Those findings may well support his

conclusion that Plaintiff had difficulty moving her head
frequently, and the ALJ’s two rationales for discounting Dr.
Grodner’s opinion do not address them at all.

On remand, the ALJ

will have a further opportunity to discuss the extent to which
Dr. Grodner’s opinion is also supported by his examination
findings - something not present in the current decision, and
something the ALJ has an obligation to consider.

See 20 C.F.R.

§405.370 (“The administrative law judge will make a decision
based on all the evidence...”).
C.

Upper Extremity Impairment

In light of the prior discussion, any issue about whether
the ALJ properly determined that Plaintiff did not have a severe
impairment of her upper extremities is moot.
VII.

Recommended Decision

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

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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