Cook v. Commissioner of Social Security

Filing 26

ORDER that Plaintiff's Statement of Errors is SUSTAINED and the case is REMANDED to the Commissioner of Social Security for further proceedings. Signed by Judge George C. Smith on 9/15/15. (sem)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

DAVID M. COOK,
Plaintiff,
Case No. 2:14-cv-1563
JUDGE GEORGE C. SMITH
Magistrate Judge Kemp

v.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

OPINION AND ORDER
I.

INTRODUCTION

Plaintiff, David M. Cook, filed this action seeking review of a decision of the
Commissioner of Social Security denying his applications for social security disability benefits
and for supplemental security income. Those applications were filed on April 30, 2011, and
alleged that Plaintiff became disabled on June 25, 2007.
After initial administrative denials of his claim, Plaintiff was given a hearing before an
Administrative Law Judge on February 13, 2013. In a decision dated March 21, 2013, the ALJ
denied benefits. That became the Commissioner’s final decision on July 11, 2014, when the
Appeals Council denied review.
After Plaintiff filed this case, the Commissioner filed the administrative record on
November 25, 2014. Plaintiff filed a document which the Court has construed as a statement of
specific errors on May 20, 2015, to which the Commissioner responded on August 3, 2015.
Plaintiff did not file a reply brief, and the case is now ready to decide.

II.

THE LAY TESTIMONY AT THE ADMINISTRATIVE HEARING

Plaintiff, who was 45 years old at the time of the administrative hearings and who has a
bachelor’s degree in computer information systems, testified as follows. His testimony appears
at pages 64-73 of the administrative record.
Plaintiff testified that he worked in the computer field until 2006. His last job was
essentially sedentary. He stopped working due to chronic headaches and neck pain. He was
unable to stay awake or concentrate for more than five hours. He took medication to help with
his headaches, but injections had not helped his neck pain. Physical activity or emotional stress
both made the pain worse.
Plaintiff was taking methadone for pain. It caused side effects including dry mouth and
fatigue. He slept twelve to eighteen hours per day. On bad days, which occurred several times a
week, his headache was so severe that he could not engage in any activity. He also experienced
symptoms of posttraumatic stress disorder, and had a hard time being around people without
experiencing a panic attack. However, he had never sought psychological treatment.
III.

THE MEDICAL RECORDS

The medical records in this case are found beginning on page 238 of the administrative
record. The key records can be summarized as follows. Because not all of the records relate to
the issues which Plaintiff has raised, the Court will not include, in its summary, records which
are not pertinent to the questions presented for decision.
As early as 2001, Plaintiff was reporting daily severe headaches. His treating doctor, Dr.
Wallace, referred him in 2002 to a specialist for evaluation. The impression at that time was
fibromyalgia syndrome and myofascial headaches. In 2007, he was referred to a pain

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management specialist for his chronic neck pain. He demonstrated a classic C2 headache
pattern. Medication and surgical options were discussed at that time. A second referral was
made, also in 2007. Plaintiff demonstrated tenderness over the cervical spine, and an MRI from
2003 (which can be found at Tr. 266-67) was reviewed which showed multilevel degenerative
disc disease with bulges at C3-4, C4-5, and C5-6. Some spinal stenosis was also present as well
as spondylosis. Plaintiff was described as somewhat defiant and only willing to take narcotic
pain medications. The examining physician, Dr. Martin, thought Plaintiff might benefit from
epidural steroid injections, and also from a workup for sleep apnea. Dr. Martin would not
prescribe opiod pain medications and thought Plaintiff should be weaned off his current
medications and also stop smoking and using alcohol while on pain medications. Finally, Dr.
Martin suggested referral to a different pain specialist for further treatment. (Tr. 238-49).
Plaintiff did see Dr. Weiss, an orthopedic specialist, in 2008. Dr. Weiss’s findings were
much the same as the other specialists’ but he did note that Plaintiff appeared to be depressed.
(Tr. 296-97). He saw a different specialist, Dr. Taylor, in 2009. Plaintiff reported anxiety and
depression as precipitating factors for headaches. An MRI from 2008 was reported as showing
no changes from 2003. Plaintiff showed a decreased range of motion with pain in the cervical
spine. Some element of myofascial dysfunction was noted. A number of therapies were
recommended. (Tr. 298-302).
There are a number of office notes from Dr. Wallace in the record. They generally show
diagnoses of chronic myofascial pain syndrome, degenerative disc disease, fibromyalgia, and
chronic anxiety disorder. Plaintiff’s treatment history included multiple medications and
injections, but in 2009 he was primarily taking hydrocodone and Valium. Oxycontin was

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prescribed in 2010 and Plaintiff reported relief with that medication, although by 2011 he was
asking for different medication - specifically Methadone.
Dr. Ayesu-Offei performed a consultative physical examination on September 21, 2011.
Plaintiff reported a history of neck pain and headaches. He also told Dr. Ayesu-Offei that he
could perform activities of daily living independently, could climb stairs, could lift up to 30
pounds, could walk a quarter of a mile, could sit for two hours at a time, and could stand 30
minutes at a time. He did report anxiety. He was able to drive. After examining Plaintiff, Dr.
Ayesu-Offei concluded that he could do “light physical activity.” (Tr. 324-26).
Only one psychological examination appears in the record, and that is a consultative
examination done by Dr. Meyer, a psychologist. She performed a clinical interview during
which Plaintiff said that he had both physical complaints and generalized and social anxiety. He
described feelings of impending doom and panic attacks (which occurred very infrequently). He
did not socialize due to his anxiety. Dr. Meyer described Plaintiff’s affect and mood as within
the normal range but noted that he complained of poor concentration and memory. She rated his
GAF at 55, diagnosed social phobia, panic disorder, and generalized anxiety disorder, and
thought Plaintiff could adequately recall and follow instructions, could maintain basic
concentration and attention, and would demonstrate symptoms of anxiety if forced to relate to
multiple people at once or for more than a short period of time. She thought he was limited to
low-stress work. (Tr. 332-45).
Dr. Wallace wrote a letter on November 11, 2012, noting that he had been treating
Plaintiff since December, 2000. He said that Plaintiff was severely limited due to pain and also
suffered from PTSD. He expressed the opinion that Plaintiff was totally and completely

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disabled. Dr. Wallace also filled out a physical capacity evaluation form on which he indicated
that Plaintiff could stand, walk, and sit for only 1-2 hours each in a work day, could lift up to ten
pounds, could not use his hands for fine manipulation, and could not bend, squat, crawl, climb
ladders, or reach above shoulder level. He also said that Plaintiff’s condition would deteriorate
under stress and that he would have five or more days per month where he would have
unscheduled absences from work. Dr. Wallace expressed opinions about Plaintiff’s mental
functioning on another form, noting a number of marked limitations in the area of social
functioning and in carrying out tasks. (Tr. 415-420).
Finally, the record contains some opinions expressed by state agency physicians or
psychologists. Dr. Bergsten, a psychologist, concluded that Plaintiff had a severe anxiety
disorder, while Dr. Lewis found severe physical impairments but also stated that Plaintiff could
work at the medium exertional level. Dr. Bergsten evaluated the impact of Plaintiff’s anxiety
disorder, determining that it posed limitations in the areas of dealing with work stress, including
changes in the work setting, and in interacting with others. Dr. Hill, another psychologist,
reviewed these findings and agreed with them, while Dr. Mckee - who, like Dr. Lewis, did not
have the benefit of Dr. Wallace’s opinions - concurred with Dr. Lewis’s assessment of Plaintiff’s
physical capacity. (Tr. 86-127).
IV.

THE MEDICAL TESTIMONY

Dr. Ronald Kendrick, a board-certified orthopedic surgeon, testified as a medical expert
at the administrative hearing. His testimony begins on page 73 of the administrative record.
Dr. Kendrick identified Plaintiff’s primary physical impairment as degenerative disc
disease in the cervical area without significant stenosis. Dr. Kendrick would have limited

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Plaintiff to sedentary work due to neck pain, with walking limited to thirty minutes at a time and
sitting limited to one hour at a time. He also said that the amount of time Plaintiff slept could be
the result of his medication, his pain, or depression. He thought Plaintiff could occasionally
bend, crawl, and crouch.
In response to a question from Plaintiff’s counsel, Dr. Kendrick said that it was
“possible” that Plaintiff would have full or partial day absences from work. Dr. Kendrick also
had no basis upon which to disagree with Dr. Wallace’s view that such absences could occur five
times per month, or Dr. Wallace’s conclusion that Plaintiff could not sustain a full 40-hour work
week.
V.

THE VOCATIONAL TESTIMONY

Dr. Bruce Walsh was the vocational expert in this case. His testimony begins at page 77
of the administrative record.
Dr. Walsh first testified that Plaintiff’s past relevant work as a procedures analyst was
sedentary and skilled. His job as an equipment installer was medium and skilled, but Plaintiff
performed that job at the heavy exertional level.
If Plaintiff were limited to sedentary work as described by Dr. Kendrick, he could still do
the procedures analyst job. Dr. Walsh also identified other jobs that someone with those
limitations could do, including office clerk and charge account clerk. Both are unskilled
positions. Such a person could also do some semi-skilled data entry jobs. According to Dr.
Walsh, for someone to do any of those jobs, the person would have to be able to complete an
eight-hour work day and could not have five unscheduled absences per month. Moreover,
someone who could not sit, stand, and walk for a combined eight hours in a day could not be

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employed, nor could a person with a combination of moderate and marked mental limitations
which prevented him from maintaining attention and concentration for more than brief periods of
time.
VI.

THE ADMINISTRATIVE LAW JUDGE’S DECISION

The Administrative Law Judge’s decision appears at pages 16-27 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 until December 31, 2011. Next, he found that Plaintiff
had not engaged in substantial gainful activity since his onset date of June 25, 2007. Going to
the second step of the sequential evaluation process, the ALJ determined that Plaintiff had a
single severe impairment: degenerative disc disease of the cervical spine at C3-C6 without
significant stenosis. The ALJ also found that this impairment 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 work at the sedentary exertional level, could stand or
walk for 30 minutes at a time and up to six hours a day, could sit for one hour at a time and up to
six hours a day, and could occasionally bend, crouch, and crawl.
The ALJ next concluded that Plaintiff, even with these limitations, could do his past work
as a procedures analyst. He could also do the other unskilled sedentary jobs identified by Dr.
Walsh. Consequently, the ALJ concluded that Plaintiff was not entitled to benefits.

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VII.

PLAINTIFF’S STATEMENT OF SPECIFIC ERRORS

Plaintiff filed a document entitled “Complaint” which appears to be his response to an
order directing that he file a statement of errors. Liberally construed, the complaint asserts that
the ALJ did not give sufficient weight to the opinion of his treating physician, Dr. Wallace, and
that he improperly considered the opinions of other doctors who saw Plaintiff only once. He
also asserts that the ALJ did not properly evaluate his mental limitations or his excessive
sleeping. These claims are evaluated under the following standard.
A.

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 adequate
to support a conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consolidated Edison Company v. NLRB, 305 U.S. 197, 229 (1938)). It is “‘more than a mere
scintilla.’” Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th Cir. 1976). 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 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

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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).
B.

The Treating Source Opinion
The ALJ had this to say when rejecting Dr. Wallace’s opinion. First, he found that Dr.

Wallace was “not qualified” to form opinions on Plaintiff’s residual functional capacity because
he “maintains a general practice only and is not a specialist.” (Tr. 24). Second, he noted that Dr.
Ayesu-Offei offered a different conclusion. Third, he found nothing in the record to support Dr.
Wallace’s opinion about how many days Plaintiff might miss due to unscheduled absences from
work. The ALJ viewed Plaintiff’s failure to mention this to Dr. Ayesu-Offei, and his statement
that he could lift thirty pounds and walk a quarter of mile, as inconsistent with this limitation.
Finally, the ALJ rejected Dr. Wallace’s (and Dr. Meyer’s) opinions of psychological limitations
by noting that Plaintiff had never received psychological treatment. The ALJ also claims to have
relied on the state agency physicians’ views as to Plaintiff’s physical limitations, even though
those views conflict dramatically with the ALJ’s actual residual functional capacity finding.
It has long been the law in social security disability cases that a treating physician’s
opinion is entitled to weight substantially greater than that of a nonexamining medical
advisor or a physician who saw plaintiff only once. 20 C.F.R. §404.1527(c); see also Lashley v.
Secretary of H.H.S., 708 F.2d 1048, 1054 (6th Cir. 1983); Estes v. Harris, 512 F.Supp. 1106,
1113 (S.D. Ohio 1981). However, in evaluating a treating physician’s opinion, the
Commissioner may consider the extent to which that physician’s own objective findings support
or contradict that opinion. Moon v. Sullivan, 923 F.2d 1175 (6th Cir. 1990); Loy v. Secretary of
HHS, 901 F.2d 1306 (6th Cir. 1990). The Commissioner may also evaluate other objective
medical evidence, including the results of tests or examinations performed by non-treating
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medical sources, and may consider the claimant’s activities of daily living. Cutlip v. Secretary
of HHS, 25 F.3d 284 (6th Cir. 1994). No matter how the issue of the weight to be given to a
treating physician’s opinion is finally resolved, the ALJ is required to provide a reasoned
explanation so that both the claimant and a reviewing Court can determine why the opinion was
rejected (if it was) and whether the ALJ considered only appropriate factors in making that
decision. Wilson v. Comm’r of Social Security, 378 F.3d 541, 544 (6th Cir. 2004).
The Commissioner defends the ALJ’s treatment of Dr. Wallace’s opinion by arguing,
first, that the ALJ was permitted to discount Dr. Wallace’s views to some extent because Dr.
Wallace was a general practitioner and not a specialist. However, that is not what the ALJ
actually did. He found that Dr. Wallace was not qualified to express an opinion as to Plaintiff’s
physical capacity. As a matter of law, that is incorrect. The Commissioner does not attempt to
defend the ALJ’s rejection of Dr. Wallace’s opinions based on the conflicting opinion of Dr.
Ayesu-Offei, and with good reason; the mere presence of a conflict between the opinion of a
treating source and the opinion of a non-treating consultative examiner is not a sufficient reason
to reject the treating source opinion. See Melendez v. Comm’r of Social Security, 2014
2921938, *7 (N.D. Ohio June 27, 2014)(“an ALJ cannot base his or her rejection of a treating
physician's opinion upon its inconsistency with the opinions of non-treating physicians”).
Finally, the Commissioner concedes that the ALJ never made an explicit finding that Dr.
Wallace’s opinions were supported by his findings or inconsistent with the objective medical
evidence of record, which is the first question an ALJ is required to consider before determining
how much weight to give to a treating source opinion. See Gayheart v. Comm’r of Social
Security,, 710 F.3d 365, 376-77 (6th Cir. 2012); see also Olson v. Comm’r of Social Security,
2015 WL 136219, *9 (S.D. Ohio Jan. 9, 2015)(“Social Security regulations provide that the ALJ
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must first determine whether to give controlling weight to a treating source's opinion by
assessing its supportability and consistency with other substantial record evidence”). This
failure in methodology is not just a technical matter; under Wilson, supra, a claimant and the
reviewing court are entitled to know the basis of the ALJ’s decision about treating source
opinions, and the failure to follow this analytical step makes it difficult, if not impossible, for the
Court to discern the ALJ’s reasoning process. And, of course, the Commissioner’s effort to
supply the reasoning absent from the ALJ’s decision does not suffice. See Evans v.
Commissioner of Social Security, 2015 WL 4592449, *5 (S.D. Ohio July 29, 2015), adopted and
affirmed 2015 WL 4934192 (S.D. Ohio Aug. 18, 2015). For these reasons, the Court finds that
the ALJ did not cite to appropriately-supported reasons for rejecting Dr. Wallace’s opinions as to
Plaintiff’s physical capacity, nor did he articulate adequately the reasons for not giving it
controlling weight. This error requires remand.
C.

Psychological Impairment
Fairly read, Plaintiff’s filing also raises an issue about the ALJ’s decision that no severe

psychological impairment exists in this case. See Doc. 19, at 4 (“The ALJ seems to believe my
Anxiety disorders as well as my PTSD are not serious because I haven’t seen a psychiatrist”).
The Commissioner does not address this issue directly, asserting generally that Plaintiff is
merely attacking the way in which the ALJ weighed the evidence, and stating, without giving
reasons, that the ALJ properly determined that any mental impairments suggested by the record
were not severe. The Court finds error in this part of the ALJ’s decision as well.
As described above, there were several opinions given - both by Dr. Wallace, who is not
a mental health professional, and by both Dr. Meyer and the two state agency psychologists that Plaintiff suffered from a severe mental impairment which caused some restrictions on his
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ability to perform the mental requirements of work activity. There were no conflicting opinions.
The ALJ dismissed all of this evidence by noting that “the undersigned has also considered the
opinion of Dr. Meyer ... but overall given the claimant’s lack of treatment at any point ... finds
that limitations as a result of mental impairments are not supported.” (Tr. 25). The ALJ then
mentioned the state agency psychologists but did not acknowledge that they, too, found a severe
mental impairment, nor did he explain why he chose to disregard their opinions, apart from
referring to his previous explanation about why he gave Dr. Meyer’s opinion no weight.
The Court finds that a reasonable person could not, on this record, completely disregard
the opinions of three mental health professionals on the sole ground that Plaintiff had not sought
psychiatric treatment for mental impairments. Plaintiff’s anxiety and PTSD are mentioned in the
treatment records, and he was receiving medication from Dr. Wallace for anxiety. Under these
circumstances, the ALJ’s finding of no severe mental impairment is not supported by substantial
evidence. This error is not harmless because the ALJ did not include any psychological
limitations in his residual functional capacity finding. See Mays v. Commissioner of Social
Security, 2015 WL 4755203 (S.D. Ohio Aug. 11, 2015), adopted and affirmed 2015 WL
5162479 (S.D. Ohio Sept. 3, 2015). Remand is required on this issue as well.

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VIII.

DECISION

Based on the above discussion, Plaintiff’s statement of errors (Doc. 19) is SUSTAINED
and the case is REMANDED to the Commissioner of Social Security for further proceedings
consistent with this Opinion and pursuant to 42 U.S.C. §405(g), sentence four.

/s/ George C. Smith
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT

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