Tracy v. Commissioner of Social Security

Filing 19

REPORT AND RECOMMENDATION that the Plaintiffs 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 7/17/2015. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Tina M. Tracy,

:

Plaintiff,

:

v.

:

Case No. 2:14-cv-1603

:

JUDGE GREGORY L. FROST
Magistrate Judge Kemp

Commissioner of Social Security,
:
Defendant.

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Tina M. Tracy, filed this action seeking review of
a decision of the Commissioner of Social Security denying her
application for disability insurance benefits.

That application

was filed on January 6, 2011, and alleged that Plaintiff became
disabled on November 14, 2009.
After initial administrative denials of her claim,
Plaintiff was given a hearing before an Administrative Law Judge
on July 19, 2012, and, after remand from the Appeals Council, a
second hearing on March 19, 2013.
2013, the ALJ denied benefits.

In a decision dated April 10,

That became the Commissioner’s

final decision on July 24, 2014, when the Appeals Council denied
review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on November 25, 2014.

Plaintiff filed her

statement of specific errors on December 24, 2014, to which the
Commissioner responded on March 24, 2015.

A reply brief was

filed on April 7, 2015, and the case is now ready to decide.
II.

Plaintiff’s Testimony at the Administrative Hearing

Plaintiff, who was 45 years old at the time of the first
administrative hearing and who has an eleventh grade education,
testified as follows.

Her testimony appears at pages 93-128 and

147-55 of the administrative record.
At the first hearing, Plaintiff testified that she last
worked at a Ponderosa Steakhouse for six to eight months.
was both a cook and a server.

She

She was terminated because she

could not do the work any more.

Other jobs she held included

manufacturing and warehouse work, which she did through a
temporary service, and bartender and cook at an American Legion
post.

She had also managed a gas station and convenience store

and worked for her father as a tow truck dispatcher.
Medical conditions which prevented Plaintiff from working
included fibromyalgia and chronic pain caused by arthritis.

She

had problems with her hips, knees, back, neck, and shoulder.

She

took various medications for the pain, and was also on medication
for anxiety and depression.
laundry or to fix meals.

It was difficult for her to do

Plaintiff thought she could lift ten

pounds and stand for ten to twenty minutes.
strong but she could move her fingers.

Her grip was not

She was able to bathe,

help with dishes, and drive, but she had difficulty running the
vacuum and could not walk the dog.

She watched television and

visited with grandchildren as well, and she could read and do
crossword puzzles.
At the second administrative hearing, Plaintiff added that
she had worked in the delicatessen department at an IGA and also
bartended at a restaurant.

No other significant testimony was

taken from her at that hearing.
III.

The Medical Records

The medical records in this case are found beginning on page
432 of the administrative record.

The pertinent records can be

summarized as follows.
A number of diagnostic studies were done on May 31, 2006.
They showed mild cerebral atrophy consistent with a history of
neonatal bilateral subdural hematomas, and mild disc bulging at
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C6-7.

The lumbosacral and thoracic spine studies were within

normal limits.

Dr. Camma, who read the studies, suggested that

fibromyalgia might be present.

(Tr. 432-33).

Dr. Crapes was Plaintiff’s treating physician.
treatment notes in the file go back to 2009.

The

A note from

February, 2009, shows a diagnosis of, among other things, chronic
back pain and fibromyalgia.
Ultram at that time.

Plaintiff was taking Vicodin and

A physical assessment form dated later that

year showed that Plaintiff reported chronic neck pain as well and
that her trapezius and the soft tissue of the upper back were
tender.

By October, spinal arthritis and neuropathy were added

to the assessments, and Flexeril had been added to Plaintiff’s
medications.

She was still working at that time.

The following

year’s notes show a new diagnosis of cervical myelopathy and the
addition of Tramadol to Plaintiff’s medications.

A note from

June, 2010 reports pain in the back, shoulders, and legs which
severely limited Plaintiff’s activity.

Six months later muscle

spasms on both sides of the spine were noted.

(Tr. 437-51).

Notes from 2011 include comments like “back, leg & arm pain all
day every day” which were made worse by exertion (Tr. 583) and
“chronic back and neck pain” rated as 5 on a 0-10 scale (Tr.
586).
Dr. Meyer performed a consultative psychological examination
of Plaintiff on March 7, 2011.

Plaintiff reported that she was

fired from her last job because her pain prevented her from
performing the work properly.
also tearful at times.

She appeared irritable but was

Her physical complaints included

fibromyalgia, arthritis, and a deteriorating disc in her neck.
Dr. Meyer diagnosed both a cognitive disorder and a depressive
disorder and rated Plaintiff’s GAF at 55.

However, she rated

Plaintiff’s degree of impairment in various work areas as mild.
(Tr. 452-66).
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Dr. Weaver was the consultative physical examiner, and he
saw Plaintiff on March 10, 2011.

Plaintiff reported severe low

back pain which limited her to sitting, standing, and walking for
only 20 minutes at a time.
left knee.

She also had constant pain in her

On examination, she walked with a stiffened gait and

a left limp.

She could not sit or stand for more than ten

minutes at a time.

Her knee was not swollen but there was some

ratchety inconsistency in muscle strength testing.

Her knee was

tender, and she showed constant involuntary muscle spasm in the
lumbar area as well as diffuse tenderness to palpation.

Dr.

Weaver’s provisional diagnoses included probable chronic lumbar
strain/sprain and chronic left knee pain.

He thought Plaintiff

could not perform activities requiring sustained sitting,
standing, walking, climbing, squatting, stooping, crouching,
kneeling, crawling, or repetitive moderate to heavy lifting, but
said she was capable of occasional light lifting and carrying.
(Tr. 474-82).
Dr. Crapes completed a physical capacity evaluation form on
April 13, 2012.

She indicated Plaintiff could sit for 3 hours,

and stand and walk for 2 hours each, in a workday, but no more
than 20 minutes at a time.

Her lifting was limited to ten pounds

and she had restrictions on the use of her hands.

She could

climb steps occasionally but never bend, squat, crawl, or climb
ladders.

She would also be affected by work stress and would

miss 5 or more days of work per month.

(Tr. 588-89).

Dr. Crapes

also noted that Plaintiff’s pain would significantly limit her
ability to complete work tasks or work at production levels
expected by most employers.

(Tr. 590-92).

Office notes from

that year continue to demonstrate that Plaintiff suffered from
symptoms such as a decreased range of motion, general stiffness,
and constant back pain, and that she was limiting her activities
accordingly.
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In addition to the records provided by examining and
treating source, state agency reviewers also expressed opinions
about Plaintiff’s functional capacity.

Dr. Hinzman, who had

records through March 24, 2011, the date of his assessment, said
that Plaintiff could do a limited range of light work but was
limited to occasional climbing, balancing, bending, kneeling,
crouching, and crawling.

He did not have a treating source

opinion to review, and gave great weight to Dr. Weaver’s opinion.
He also concluded that Plaintiff’s report of symptoms was not
fully credible based on her “ADLs” (activities of daily living)
and her “Medication Treatment.”

(Tr. 177-79).

concurred in that assessment on June 2, 2011.
IV.

Dr. Perencevich
(Tr. 199-201).

The Medical Testimony

Dr. Paul Gatens was called to testify as a medical expert
at the first administrative hearing.

In his testimony, which

begins at page 128 of the record, he said, first, that the
records documented various conditions including mild bilateral
brain atrophy possibly caused by subdural hematomas, degenerative
joint disease, a history of bronchitis and fibromyalgia,
infrequent migraine headaches, and a history of chest pain.

He

did not think those impairments were severe enough to meet any of
the requirements of the Listing of Impairments.
Dr. Gatens thought the most significant condition was the
history of subdural hematomas, which affected balance and
strength.

He thought Plaintiff should be able to lift ten

pounds, could stand and walk for four to five hours total in a
workday if she was able to change position every thirty minutes,
and could sit for up to eight hours with position changes every
sixty minutes.

He said she could not climb ropes, ladders, or

scaffolds, and could occasionally crawl, crouch, and kneel.
Also, her medications could cause some problems with
concentration, possibly up to 25% of the workday.

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V.

The Vocational Testimony

Dr. Olsheski was the vocational expert who testified at the
first administrative hearing.

His testimony begins at page 135

of the administrative record.
Dr. Olsheski first testified about Plaintiff’s past work.
He said that the cook and waitress positions were both light and
semiskilled, and that the warehouse job was medium and unskilled.
Bartender was a light, semiskilled position, and convenience
store manager was light and skilled.
Dr. Olsheski 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 and who
could occasionally perform most of the postural requirements of
light work.

According to Dr. Olsheski, someone with those

limitations could do Plaintiff’s past jobs as a short-order cook,
waitress, and retail manager.

If the person was as limited as

Dr. Gatens testified, however, those jobs would be ruled out.

If

the limitations included being off task for a quarter of the
workday, no other jobs would be available.
Dr. John Finch provided vocational testimony at the second
hearing, beginning at page 156 of the record.

He was asked about

additional jobs which Plaintiff had identified, and said the deli
worker was medium and semiskilled and the waitress/bartender job
was light and semiskilled.

He said that her job at the gas

station, which he described as gas station attendant, was also
medium and semiskilled and that she had worked as a stocker and
packer, which was medium and unskilled.
Dr. Finch agreed with Dr. Olsheski that Plaintiff could do
some of her past work if she could do a reduced range of light
work, and could not do any work if she were off task 25% of the
time.

He also testified that if she were as limited as Dr.

Crapes indicated, she could not work full-time.

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Finally, he said

that mild impairments in various areas of mental functioning
would not preclude unskilled work.
VI.

The Administrative Law Judge’s Decisions

The Administrative Law Judge’s first decision appears at
pages 219-28 of the administrative record.

The findings in that

decision will be summarized briefly to provide background for the
Appeals Council’s decision to remand the case for further
proceedings.
In the first decision, the ALJ made these findings: that
Plaintiff was insured through March 31, 2014; that she suffered
from degenerative joint disease of the left knee, low back pain,
and fibromyalgia with arm and shoulder pain; that none of these
impairments met or equaled an impairment described in the
Listing; that Plaintiff could do a full range of light work with
occasional climbing of ramps, stairs, ladders, ropes, and
scaffolds and occasional balancing, kneeling, crouching, or
crawling; and that she could still work as a short-order cook,
waitress, and retail manager.
The Appeals Council, in an order dated November 14, 2012,
remanded the case to the ALJ on multiple grounds.

They included

the failure to evaluate Plaintiff’s fibromyalgia under Social
Security Ruling 12-2p; the need to be more precise about what
Plaintiff’s past relevant work consisted of; and the ALJ’s action
in adjourning the hearing without affording Plaintiff’s counsel
the chance to examine the vocational expert.

(Tr. 233-36).

In the decision made after remand, (Tr. 15-31), the
Administrative Law Judge did not change his findings as to
Plaintiff’s impairments or whether they were of sufficient
severity to meet or equal the Listing.

He then found that

Plaintiff could perform light work, apparently without any
restrictions.

Because Plaintiff’s past work as a

waitress/bartender was a light job, he found that she could

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perform her past relevant work and was therefore not disabled.
VII.

Plaintiff’s Statement of Specific Errors

In her statement of specific errors, Plaintiff raises these
issues: (1) the ALJ erred in his evaluation of the treating
source opinion from Dr. Crapes; and (2) the ALJ’s residual
functional capacity finding - that Plaintiff could perform a full
range of light work - is not supported by substantial evidence.
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

(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.
F.2d 1058, 1059 (6th Cir. 1983).

-8-

Kinsella v. Schweiker, 708

A. The Treating Source Opinion
The Court’s analysis of this issue begins with a review of
the ALJ’s rationale for according less than controlling weight to
the treating doctor’s opinion.

Here is what the ALJ said.

Before discussing Dr. Crapes’ opinion, the ALJ assigned
“significant weight” to Dr. Perencevich’s assessment.

He did so

due to the expertise of that physician in disability matters, and
said it was “not contradicted and is consistent with and well
supported by the totality of the evidence as discussed more fully
above.”

(Tr. 26).

Consequently, the ALJ accepted and adopted

that view of Plaintiff’s physical capacity.
Turning to Dr. Crapes’ opinion, the ALJ found that it was
“inconsistent with the greater weight of the evidence.”

Id.

The

ALJ said he could not find in the record “any objective evidence
to support the extreme limitations” described by Dr. Crapes.

He

mentioned these particulars from the record as supporting his
conclusion: a 2006 spinal MRI that was within normal limits, an
“unremarkable” x-ray of the left knee in 2011, and mostly normal
examination findings reported by Dr. Weaver.

He then attributed

Dr. Crapes’ opinion to Plaintiff’s report of symptoms and noted
that he had found her to be less than fully credible.

Based on

these factors, he gave Dr. Crapes’ opinion “modest” weight without saying to what extent he accepted her various findings and then gave both “equal weight” and “significant weight” to Dr.
Weaver’s opinion.

In his prior opinion, which he incorporated by

reference into the later one, the ALJ construed Dr. Weaver’s
opinion to mean that Plaintiff could “essentially do light work”
(Tr. 227) and he also gave Dr. Gatens’ opinion about Plaintiff’s
physical capacity “slight weight” because it was, in the ALJ’s
view, based on Plaintiff’s subjective complaints.

(Tr. 226).

As

to psychological limitations, the ALJ rejected Dr. Crapes’
assessment because it was “inconsistent with the greater weight
of the medical evidence in this record,” because Dr. Crapes is
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not a mental health specialist, because she relied on Plaintiff’s
self-report of symptoms, and because “the possibility always
exists that a doctor may express an opinion in an effort to
assist a patient with whom he or she sympathizes for one reason
or another.”

This was, in the ALJ’s view, “more likely in

situations where the opinion in question departs substantially
from the rest of the evidence of record, as in the current case.”
(Tr. 28).
Plaintiff contends that this portion of the ALJ’s decision
is unsupported by the record and that it is not sufficiently-well
articulated to satisfy the requirements of 20 C.F.R.
§404.1527(c).

In particular, she notes that the totality of the

allegedly inconsistent physical evidence consists of old tests
(the 2006 MRI) plus one normal knee x-ray and some unremarkable
examination findings.

No other conflicting evidence is described

in the ALJ’s opinion.

She also argues that the rejection of Dr.

Crapes’ mental limitations is not explained by reference to any
other evidence of record, and appears to have been based on the
fact that Dr. Crapes is not a mental health specialist and the
suspicion that she accepted without question Plaintiff’s own
report of psychological symptoms.
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
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medical evidence, including the results of tests or examinations
performed by non-treating medical sources, and may consider the
claimant’s activities of daily living.
HHS, 25 F.3d 284 (6th Cir. 1994).

Cutlip v. Secretary of

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).
Taking Plaintiff’s arguments in reverse order, the Court
agrees that the explanation provided by the ALJ concerning Dr.
Crapes’ evaluation of Plaintiff’s mental capacity is too vague to
satisfy the articulation requirement described in Wilson and
other cases.

The general phrase that a treating source opinion

is “inconsistent with the evidence” is not specific enough to
allow either the Court or the Plaintiff to understand what
evidence the ALJ is relying upon.

As this Court has said, such a

“bare-bones rationale does not seem to satisfy Wilson's
articulation requirement because no details of these claimed
inconsistencies were supplied.”

Mercer v. Comm’r of Social

Security, 2013 WL 3279260, *7 (S.D. Ohio June 27, 2013), adopted
and affirmed 2014 WL 197874 (S.D. Ohio Jan. 15, 2014).

On the

other hand, this may well be one of those cases referred to in
Wilson where the articulation error is harmless; that can happen
if “a treating source's opinion is so patently deficient that the
Commissioner could not possibly credit it ....”
at 547.

Wilson, 378 F.3d

Here, the consultative examiner and the state agency

reviewers found no severe mental impairment at all, and it does
not appear that Dr. Crapes ever administered any test instruments
or performed any specific evaluation of Plaintiff’s mental
functioning.

The Court does have some reservations, however,
-11-

about the ALJ’s rejection of Dr. Crapes’ statement that
Plaintiff’s pain would interfere with sustained work activity;
that is something which Dr. Crapes was in a position to evaluate,
and the ALJ does not specifically address that issue.

The more

general comments about accepting a patient’s self-report of
psychological symptoms and the suspicion that a treating source
might shade his or her opinions to favor a patient are, on this
record, too general to support the ALJ’s decision.

The Court

need not make a final determination on this issue, however,
because a remand is necessary to address other deficiencies in
the administrative decision.

On remand, the ALJ should take a

closer look at the entirety of Dr. Crapes’ mental functional
capacity assessment and provide a more detailed rationale in
support of whatever weight the ALJ decides to give it.
Plaintiff’s arguments on the physical capacity side are more
compelling.

The ALJ’s citation to evidence conflicting with Dr.

Crapes’ evaluation is, as Plaintiff contends, either so sparse
that it does not constitute substantial evidence, or so vague
that it does not constitute a proper articulation of the reasons
why the opinion was rejected.

Given the number of treatment

notes from Dr. Crapes and the length of the treating
relationship, plus the fact that Plaintiff has been diagnosed
with fibromyalgia, a disease for which standard objective tests
like x-rays or MRIs are not particularly helpful in diagnosing,
citing to a few bits of evidence while ignoring most of the other
evidence of record is plainly insufficient.

“An ALJ cannot

simply ‘pick and choose’ evidence in the record ‘relying on some
and ignoring others, without offering some rationale for his
decision.’”

Vorhis-Deaton v. Comm’r of Social Security, 34

F.Supp. 3d 809, 817 n.8 (S.D. Ohio 2014), quoting Young v. Comm’r
of Social Security, 351 F.Supp.2d 644, 649 (E.D. Mich. 2004).
Further, it is simply not accurate to say that Dr. Crapes’
opinion was inconsistent with all of the other evidence of
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record.

It is unclear exactly how limited Dr. Weaver found

Plaintiff to be, but he did indicate restrictions in many of the
same areas as Dr. Crapes did.

Dr. Gatens testified very

similarly, especially as it relates to some type of sit/stand
option, and it is unusual for a testifying medical expert’s
opinion to be discounted on the grounds that he relied too much
on the Plaintiff’s report of symptoms; his job is to describe
impairments and their limitations based on a review of the
records, and it appears that Dr. Gatens did just that.

Further,

the ALJ appears to have disregarded this admonition from Blakley
v. Comm’r of Social Security, 581 F.3d 399, 406:
These [treating] 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.
Further, the ALJ appears to have disregarded even portions of the
state agency reviewers’ opinions, finding that Plaintiff had the
capacity for a full range of light work despite a number of
postural limitations identified in those opinions.

For all of

these reasons, the Court finds that a remand is needed for a more
thorough and evidence-based review of the medical opinion
evidence, and particularly the opinion of Dr. Crapes.
B.

The Residual Functional Capacity Finding

Plaintiff’s second claimed error can be dealt with
summarily.

Plaintiff argues that the ALJ failed to reflect, in

his physical residual functional capacity finding, the
limitations expressed by Drs. Hinzman and Perencevich.

The

Commissioner appears to concede that the ALJ made this error, but
asserts that in light of the vocational experts’ testimony, which
took these limitations into account when addressing the question
of whether Plaintiff could do her past work, any error was
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harmless.

In light of the remand for further evaluation of the

medical evidence and of Plaintiff’s residual functional capacity,
the Court need not decide the extent to which this error was
harmless.

On remand, the ALJ should include any limitations

expressed in opinions he finds to be credible into his RFC
determination.
VII.
I

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.
IX.

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.

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).

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/s/ Terence P. Kemp
United States Magistrate Judge

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