Nelson v. Commissioner Social Security Administration

Filing 19

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Mary Coleen Nelson. 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. Objections to R&R due by 5/14/2015. Signed by Magistrate Judge Norah McCann King on 4/27/2015. (pes)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MARY COLEEN NELSON,
Plaintiff,
vs.

Civil Action 2:14-cv-1363
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’s Statement of Errors
(“Statement of Errors”), Doc. No. 14, Defendant’s Memorandum in
Opposition (“Commissioner’s Response”), Doc. No. 17, and Plaintiff’s
Reply to Defendant’s Memorandum in Opposition, Doc. No. 18.
I.

Background
Plaintiff Mary Colleen Nelson filed her application for a period

of disability and disability insurance benefits on September 29, 2010,
and her application for supplemental security income on April 21,
2011, alleging that she has been disabled since May 31, 2007.
60, 70, 235-45.

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 May

8, 2013, at which plaintiff, represented by counsel, appeared and
testified, as did Hermona C. Robinson, Ph.D., who testified as a
vocational expert.

PAGEID 60, 76.

In a decision dated May 21, 2013,

the administrative law judge concluded that plaintiff was not disabled
from May 31, 2007, through the date of the administrative decision.
PAGEID 60-70.

That decision became the final decision of the

Commissioner of Social Security when the Appeals Council declined
review on June 24, 2014.

PAGEID 50-52.

Plaintiff was 53 years of age on the date of the administrative
decision.

See PAGEID 76, 235.

Plaintiff was last insured for

disability insurance purposes on December 31, 2010.

PAGEID 62.

Plaintiff has at least a high school education, is able to communicate
in English, and has past relevant work as a delivery driver, line item
researcher/billing clerk, and nursing assistant.

PAGEID 69.

She has

not engaged in substantial gainful activity since May 31, 2007, her
alleged date of onset of disabiliy.
II.

PAGEID 62.

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

impairments consist of “mild degenerative changes of the cervical
spine; mild spondylolisthesis of the lumbar spine; major depressive
disorder; anxiety disorder; attention-deficit/hyperactivity disorder
(ADHD); and a history of alcohol and cannabis dependence in sustained,
full remission.”

PAGEID 62.

The administrative law judge also found

that plaintiff’s impairments neither meet nor equal a listed

2

impairment and leave plaintiff with the residual functional capacity
(“RFC”) to perform
medium work as defined in 20 CFR 404.1567(c) and 416.967(c)
except the claimant is capable of lifting, carrying,
pushing and pulling 50 pounds occasionally and 25 pounds
frequently and sitting, standing, and walking for six hours
each in an eight-hour workday.
Mentally, the claimant
retains the ability to understand, remember and carry out
simple tasks and instructions; maintain concentration and
attention for two hour segments in an eight-hour workday;
respond appropriately to supervisors and co-workers in a
task-oriented setting where contact with others is casual
and infrequent; and adapt to simple changes and avoid
hazards in a setting without strict production quotas.
PAGEID 63-65.

Although this RFC would preclude plaintiff’s past

relevant work as a delivery driver, line item researcher/billing
clerk, and nursing assistant, 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 representative jobs as inspector,
cleaner, and machine tender.

PAGEID 69-70.

Accordingly, the

administrative law judge concluded that plaintiff was not disabled
within the meaning of the Social Security Act from May 31, 2007,
through the date of the administrative decision.

PAGEID 70.

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

3

(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 her Statement of Errors, plaintiff contends 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, see Statement of Errors, pp. 7-15, the
Court concludes that the matter must be remanded for further
consideration of the September 20, 2012 narrative report and medical
source statement of Herbert A. Grodner, M.D.

4

Plaintiff was consultatively evaluated by Dr. Grodner on
September 20, 2012.

PAGEID 443-56.

Upon examination, Dr. Grodner

noted that plaintiff had a mildly antalgic gait and some difficulty
toe and heel walking, and that she could partially squat.

PAGEID 444.

She had 5/5 strength in all muscle groups, normal grasp and
manipulation, and grip strength of 6 psi.

PAGEID 445.

She had very

mildly decreased range of motion of the lumbar spine, of the ankles,
and of the knees, but normal range of motion of the cervical spine.
Id.

X-rays of the lumbar spine revealed mild spondylolisthesis and x-

rays of the cervical spine revealed normal anatomical alignment, but
some narrowing of the interveterbral spaces, especially in the upper
cervical vertebrae.

Id.

In a narrative report, Dr. Grodner opined

that plaintiff “could perform most types of activity that would be
classified as sedentary, light, or even modified moderate activity.”
Id.

Plaintiff “would have some difficulty with repetitive bending and

lifting, lifting heavy objects more than thirty or thirty-five pounds
repetitively.”

PAGEID 445-46.

Dr. Grodner further opined that

plaintiff “may have some difficulty with repetitive climbing ladders
and scaffolding or even stairs.”

PAGEID 446.

Dr. Grodner also completed a medical source statement on
September 20, 2012.

PAGEID 451-56.

According to Dr. Grodner,

plaintiff’s lower back pain, mild “DJD cervical spine,” and mild
spondylolisthesis of the lumbar spine would limit plaintiff to lifting
and carrying 21 to 50 pounds occasionally, 11 to 20 pounds frequently,

5

and 10 pounds continuously.

PAGEID 451.

Plaintiff would be able to

sit for 8 hours in an eight-hour workday, for five hours without
interruption; she could stand for six hours in an eight-hour workday,
for two hours without interruption; and she could walk for five hours
in an eight-hour workday, for two hours without interruption.
452.

PAGEID

Dr. Grodner opined that plaintiff could frequently push/pull and

frequently operate foot controls.

PAGEID 453.

Because of her pain

and decreased range of motion, plaintiff could only occasionally climb
ladders or scaffolds, kneel, crouch, and crawl, and could frequently
climb stairs and ramps, balance, and stoop.

PAGEID 454.

Dr. Grodner

further opined that plaintiff could occasionally tolerate exposure to
unprotected heights and vibrations and could frequently tolerate
exposure to moving mechanical parts, humidity and wetness, dust,
odors, fumes, pulmonary irritants, and extreme cold and heat.

PAGEID

455. She could operate a motor vehicle. Id.
As a consultative examiner, Dr. Grodner 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].”).

With regard to nontreating sources, the agency will

simply “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.

20 C.F.R. §§ 404.1527(d)(1), 416.927(d)(1).

6

In

evaluating the opinion of a nontreating source, an administrative law
judge should consider such factors as “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 v. Comm’r of Soc. Sec., 594 F.3d 504, 514 (6th Cir.

2010) (citing 20 C.F.R. § 404.1527(d)).
The administrative law judge evaluated Dr. Grodner’s September
2012 opinion as follows:
Dr.
Grodner
performed
another
independent
medical
consultative examination in September 2012 and opined that
the claimant could perform most types of activity that
would be classified as sedentary, light, or even modified
moderate activity.
He indicated that she would have some
difficulty with repetitive bending and lifting, lifting
heavy objects more than 30 or 35 pounds repetitively.
He
noted that she may have some difficulty with repetitively
climbing ladders, scaffolding and stairs (Exhibit 13F).
Dr. Grodner’s [September 2012] opinion is given great
weight as it is mostly consistent with the medical evidence
of record.
PAGEID 65-66.

Plaintiff argues that the administrative law judge

erred in evaluating Dr. Grodner’s September 2012 opinion by assigning
great weight to the opinion without adopting all of the limitations
articulated by Dr. Grodner or providing any explanation for excluding
the limitations found by him.
Plaintiff’s Reply, pp. 1-2.

Statement of Errors, pp. 8-11;
According to plaintiff, it is not clear

whether the administrative law judge considered Dr. Grodner’s medical
source statement; plaintiff argues that the administrative law judge’s
cursory analysis “has prevented this Court from determining whether

7

his reasoning was supported by substantial evidence.”
Errors, pp. 8-11; Plaintiff’s Reply, pp. 1-2.

Statement of

This Court agrees.

The administrative law judge discussed the limitations found by
Dr. Grodner in his narrative report and found that Dr. Grodner’s
opinion was “mostly consistent with the medical evidence of record.”
PAGEID 65-66.

In discussing Dr. Grodner’s narrative report, the

administrative law judge referred to Exhibit 13F, which contains Dr.
Grodner’s narrative report and medical source statement, but the
administrative law judge failed to discuss any of the limitations
found in Dr. Grodner’s medical source statement.

Although Dr. Grodner

opined in his narrative report that plaintiff “could perform most
types of activity that would be classified as sedentary, light, or
even modified moderate activity,” PAGEID 445, his medical source
statement contains more specific limitations that are inconsistent
with the administrative law judge’s RFC determination and a finding
that plaintiff could perform medium work.

See 20 C.F.R. §

404.1567(c); SSR 83-10, 1983 WL 31251, at *6 (Jan. 1, 1983).

The RFC

found by the administrative law judge would limit plaintiff to, inter
alia, frequently lifting 25 pounds and sitting, standing, and walking
for six hours each in an eight-hour workday.

PAGEID 65.

However, Dr.

Grodner’s medical source statement limited plaintiff to, inter alia,
frequently lifting 20 pounds and walking for five hours in an eighthour workday, and it contained several postural and environmental

8

limitations not found in the administrative law judge’s RFC.

PAGEID

451-55.
The administrative law judge did not acknowledge any of the
limitations found in Dr. Grodner’s medical source statement nor did he
discuss or even acknowledge that those limitations were inconsistent
with Dr. Grodner’s narrative report, the RFC determination, or a
finding that plaintiff could perform medium work.

Instead, the

administrative law judge cited the entirety of Dr. Grodner’s opinion
and found, without explanation, that the opinion was “mostly
consistent with the medical evidence of record.”

PAGEID 65-66.

Although, as the Commissioner argues, see Commissioner’s Response, p.
9, an administrative law judge is not required to provide “good
reasons” for the weight he assigns a nontreating source’s opinion, see
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004), it
must nevertheless be apparent from a fair reading of the
administrative decision that the medical opinions of nontreating
sources were at least considered.

That is simply not the case here.

To the extent that the administrative law judge considered Dr.
Grodner’s medical source statement, he failed to discuss the opinion
with sufficient detail to permit meaningful review by this Court.
Under these circumstances, the Court concludes that the matter must be
remanded for further consideration of the September 2012 narrative
report and medical source statement of Dr. Grodner.

9

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. Grodner’s September 2012
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
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).

April 27, 2015

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

10

11