Waller v. Commissioner of Social Security

Filing 20

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Tim D. Waller. It is RECOMMENDED that the decision of the Commissioner be reversed and that this action be remanded. Objections to R&R due by 7/24/2015. Signed by Magistrate Judge Norah McCann King on 7/7/2015. (pes)

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

TIM D. WALLER,
Plaintiff,
vs.

Civil Action 2:14-cv-2301
Judge Graham
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 the final decision of the Commissioner of Social
Security denying plaintiff’s applications for disability insurance
benefits and supplemental security income for the period beginning
October 9, 2012.

This matter is now before the Court on plaintiff’s

Statement of Errors, ECF 10, the Commissioner’s Memorandum in
Opposition, ECF 18, and plaintiff’s Reply, ECF 19.
Administrative Proceedings
Plaintiff was 39 years of age at the time of the administrative
decision. See PAGEID 111. He has at least a high school education and
is able to communicate in English.

PAGEID 59. He has past relevant

work as a customer complaint clerk, telephone solicitor, collection
clerk, collection supervisor, and general laborer. PAGEID 58, 103-04.
Plaintiff filed his applications for benefits on December 1,
2011, alleging that he has been disabled since April 29, 2010. The
applications were denied initially and upon reconsideration and
plaintiff requested a de novo hearing before an administrative law

judge.
An administrative hearing was held on February 26, 2013.
Plaintiff, who was represented by a non-lawyer, appeared and
testified, as did Timothy Shaner, who testified as a vocational
expert. In a decision dated May 9, 2013, the administrative law judge
found that plaintiff was disabled from April 29, 2010 through October
8, 2012 but that, beginning October 9, 2012, plaintiff’s condition had
improved to the extent that he was not disabled at any time from that
date through the date of the administrative decision.

PAGEID 50-67.

That decision became the final decision of the Commissioner of Social
Security when the Appeals Council denied review on September 24, 2014.
PAGEID 30-32.
Administrative Decision
The administrative law judge found that, throughout the entire
period of claimed disability, plaintiff’s severe impairments consisted
of panic disorder without agoraphobia, generalized anxiety disorder,
depressive disorder, alcohol abuse, idiopathic small fiber sensory
neuropathy, vitamin D deficiency, irritable bowel syndrome, and
cervical degenerative disc disease. PAGEID 55, 60. These impairments,
whether considered singly or in combination, neither met nor equaled a
listed impairment. PAGEID 55, 60. The administrative law judge found
that, during the closed period of disability, plaintiff had the
following residual functional capacity (“RFC”):
[F]rom April 29, 2010 through October 8, 2012, the claimant
had the residual functional capacity to perform sedentary
work as defined in 20 CFR 404.1567(a) and 416.967(a) such
that the claimant could lift and carry 10 pounds
occasionally, sit for a total of 6 hours in an 8-hour
workday, with normal breaks, stand and walk for a total of
2 hours in an 8-hour workday, with normal breaks, but for

2

no more than 15 minutes at a time, and push and pull within
those limitations, but only occasionally with the right arm
and leg. He could occasionally climb ramps and stairs, but
never ladders, ropes, and scaffolds. The claimant could
occasionally balance, stoop, kneel, crouch, and crawl. He
should have avoided exposure to hazards, such as
unprotected heights, dangerous machinery, and commercial
driving. The claimant could perform simple, routine tasks,
with no fast production, pace or stringent production
quotas, with superficial interaction with others. In
addition, he could not maintain attention, concentration,
and appropriate persistence or pace for a full workday on a
regular basis.
PAGEID 57.
Beginning on October 9, 2012, the administrative law judge found,
plaintiff’s medical condition had improved, PAGEID 62, thus resulting
in an increase in his RFC:
[B]eginning October 9, 2012, the claimant has had the
residual functional capacity to perform sedentary work as
defined in 20 CFR 404.1567(a) and 416.967(a) such that the
claimant can lift and carry 10 pounds occasionally, sit for
a total of 6 hours in an 8-hour workday, with normal
breaks, stand and walk for a total of 2 hours in an 8-hour
workday, with normal breaks, but for no more than 15
minutes at a time, and push and pull within those
limitations, but only occasionally with the right arm and
none with the right leg. He can occasionally climb ramps
and stairs, but never ladders, ropes, and scaffolds. The
claimant can occasionally balance, stoop, kneel, crouch,
and crawl. He should avoid exposure to hazards, such as
unprotected heights, dangerous machinery, and commercial
driving. The claimant can perform simple, routine tasks,
with no fast production, pace or stringent production
quotas, with superficial interaction with others.
PAGEID 62-63.
Thus, the administrative law judge found that plaintiff’s RFC for
the two periods was almost precisely the same; the only differences
were that, for the period beginning October 9, 2012, plaintiff (1)
could not push and pull with his right leg, but (2) had no limitation

in his ability to maintain attention, concentration, and appropriate
persistence or pace for a full workday on a regular basis.
Relying on the testimony of the vocational expert, the
administrative law judge found that the first RFC precluded all jobs
in the national economy, PAGEID 59, but that the second RFC would
permit a claimant with plaintiff’s vocational profile to perform work
that exists in significant numbers, including such representative
sedentary, unskilled jobs as packager, inspector, and surveillance
system monitor. PAGEID 104-05.1
Standard
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
(6th Cir. 2005).

Substantial evidence is such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.
Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003); Kirk
v. Secretary 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.

Bass v.

McMahon, 499 F.3d 506, 509 (6th Cir. 2007).
In determining the existence of substantial evidence, this Court

1

The vocational expert also testified that the second RFC would preclude the
performance of plaintiff’s past work. PAGEID 104.

4

must examine the administrative record as a whole.
536.

Kirk, 667 F.2d at

If the Commissioner's decision is supported by substantial

evidence, it must be affirmed even if this Court would decide the
matter differently, Tyra v. Sec’y of Health & Human Servs., 896 F.2d
1024, 1028 (6th Cir. 1990)(citing 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 his Statement of Errors, plaintiff does not challenge the
administrative law judge’s findings relating to the closed period of
disability.

However, plaintiff contends that, in finding that

plaintiff’s medical condition had improved by October 9, 2012, the
administrative law judge failed to properly evaluate and weigh the
medical opinion evidence, including the opinions of plaintiff’s
treating physician and of a consultative psychologist, and that the
finding of the administrative law judge is not supported by
substantial evidence.

Statement of Errors. This Court agrees.

Discussion2
Michelle L. Graham, M.D., is plaintiff’s treating physician.

On

November 18, 2011, Dr. Graham completed an assessment of plaintiff’s
physical capacity in which she stated, inter alia, that plaintiff’s
impairments had lasted for three (3) years, that his prognosis for
marked improvement and for a return to work was “poor,” that the
cumulative effect of plaintiff’s problems would not permit him to
work, that plaintiff’s pain and other symptoms constantly interfere
2

The Court will discuss only that evidence necessary to the resolution of the
issues presented in plaintiff’s Statement of Errors.

with his attention and concentration, and that plaintiff is severely
limited in his ability to deal with work stress. PAGEID 484.
On March 12, 2012, Margaret C. Smith, Ph.D., performed a
consultative psychological evaluation of plaintiff at the request of
the state agency.

According to Dr. Smith, plaintiff’s prognosis is

“guarded,” his short-term memory appears to be reduced, his ability to
remember and carry out instructions would be limited “to a borderline
range of functioning,” he would have problems “with focus and
attention, as well as pace and persistence over prolonged periods of
time,” he would respond appropriately to coworkers and supervisors in
a work setting, but “any significant workplace pressures may
exacerbate psychiatric symptoms and cause mental breakdown at this
time.” PAGEID

566-67.

On October 9, 2012, Douglas Woo, M.D., performed a neurological
examination of plaintiff upon referral from Dr. Graham, see PAGEID
610, for “[e]valuation of paresthesias and recommendations for further
management.” PAGEID 611. Dr. Woo diagnosed idiopathic small-fiber
sensory neuropathy, vitamin D deficiency, and neuropathic pain. PAGEID
616. He recommended further diagnostic testing and follow-up. PAGEID
616-17. Although Dr. Woo’s lengthy report, see PAGEID 611-17,
addressed primarily his neurological findings, Dr. Woo also made the
following findings as to plaintiff’s mental status:
Alert and attentive. Oriented to person, place, time, and
reason for visit. Language fluent with intact repetition
and comprehension. Immediate recall, working memory, and
long-term memory intact. No neglect.

6

PAGEID 614.
The administrative law judge briefly summarized the opinions of
Drs. Graham and Smith, PAGEID 58, and relied on those opinions in
formulating the first RFC, i.e., governing the period from April 29,
2010 through October 8, 2013. Id. However, the administrative law
judge relied on Dr. Woo’s October 9, 2012 neurological report to
conclude that plaintiff’s condition had improved. As it relates to
plaintiff’s mental status, the administrative law judge found as
follows:
Further, upon a review of the claimant’s mental status
during [Dr. Woo’s] examination, he was evaluated as alert,
attentive, and oriented to person, place, time, and reason
for visit. The claimant exhibited language fluent with
intact repetition and comprehension, immediate recall, an
intact working and long-term memory, and no neglect. The
record also indicates that the claimant is doing well
emotionally. Previously, the claimant demonstrated
difficulties with focus and attention, as well as
persistence over prolonged periods. Therefore, the October
9, 2012 examination findings show that the claimant has
clinically improved.
PAGEID 64.

Although the administrative law judge did not expressly

consider the differences between the opinions of Drs. Graham and Smith
on the one hand, and that of Dr. Woo on the other, the administrative
law judge apparently accorded greater weight to Dr. Woo’s opinion:
The other medical source statements were carefully
considered. While they were given considerable weight with
respect to the closed period, they were made before he
improved mentally and physically and as such have little
bearing on his functioning since he experienced objective
improvement.
PAGEID 64-65.
An administrative law judge is required to evaluate every

medical opinion, regardless of its source.
416.927(c).

20 C.F.R. §§ 404.1527(c),

However, not every medical opinion is treated equally;

the Commissioner’s regulations describe three classifications for
acceptable medical opinions: (1) nonexamining sources; (2) nontreating
sources (or examining sources); and (3) treating sources.

As one-time

examiners, Drs. Smith and Woo are properly classified as nontreating
sources.

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].”). Dr. Graham is a
treating source, and the administrative law judge recognized her as
such. PAGEID 58.
The Social Security Administration accords the greatest weight to
the opinions of treating sources; if an administrative law judge does
not give “controlling weight” to the medical opinion of a treating
source, he must provide “good reasons” for discounting that opinion.
See Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007)
(quoting Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *5); Ealy v. Comm’r
of Soc. Sec., 594 F.3d 504, 514 (6th Cir. 2010).
requirement only applies to treating sources.”

“However, this
Ealy, 594 F.3d at 514

(citing Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 876 (6th Cir.
2007) (emphasis in original)).

With regard to nontreating sources,

“the agency will simply ̔[g]enerally [] 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’” him.

8

Id. (quoting 20

C.F.R. § 404.1527(d)(1)).

See also Smith, 482 F.3d at 875.

In

determining how much weight to give the opinion of a nontreating
source, an administrative law judge should consider such factors as
“the evidence that the physician offered in support of h[is] opinion,
how consistent the opinion is with the record as a whole, and whether
the physician was practicing in h[is] specialty.”

Ealy, 594 F.3d at

514 (citing 20 C.F.R. § 404.1527(d)).
In finding a closed period of disability, the administrative law
judge apparently accorded controlling weight to Dr. Graham’s opinion
(as well as to Dr. Smith’s opinion). In considering the period
beginning October 9, 2012, however, the administrative law judge
clearly did not. Yet, in according greater weight to Dr. Woo’s passing
assessment of plaintiff’s mental status, the administrative law judge
simply concluded, without any discussion, that Dr. Woo’s neurological
evaluation demonstrated that plaintiff’s mental impairments had
improved. See PAGEID 64-65.
The opinions of treating physicians must be accorded controlling
weight if they are “well-supported by medically acceptable clinical
and laboratory diagnostic techniques” and not “inconsistent with the
other substantial evidence in [the] case record.”
404.1527(d)(2), 416.927(d)(2).

20 C.F.R. §§

If the administrative law judge finds

that either of these criteria have not been met, he is then required
to apply the following factors in determining the weight to be given a
treating physician’s opinion: “The length of the treatment
relationship and the frequency of examination, the nature and extent

of the treatment relationship, supportability of the opinion,
consistency of the opinion with the record as a whole, and the
specialization of the treating source. ...”
Sec., 378 F.3d 541, 544 (6th Cir. 2004).

Wilson v. Comm’r of Soc.

In this regard, the

administrative law judge is required to look at the record as a whole
to determine whether substantial evidence is inconsistent with the
treating physician’s assessment.
416.927(d)(2), (4).

See 20 C.F.R. §§ 404.1527(d)(2),(4),

Finally, the Commissioner must provide “good

reasons” for discounting the opinion of a treating source, and those
reasons must both enjoy support in the evidence of record and be
sufficiently specific to make clear the weight given to the opinion
and the reasons for that weight.

Bass v. McMahon, 499 F.3d 506, 511

(6th Cir. 2007). However, a formulaic recitation of factors is not
required.

See Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 551

(6th Cir. 2010) (“If the ALJ’s opinion permits the claimant and a
reviewing court a clear understanding of the reasons for the weight
given a treating physician’s opinion, strict compliance with the rule
may sometimes be excused.”).
This Court concludes that, in considering the period beginning
October 9, 2012, the administrative law judge failed to properly
evaluate the medical source opinions.

In the months prior to that

date, plaintiff’s treating physician and the consultative psychologist
both opined that plaintiff’s problems with attention, concentration,
persistence and pace precluded work. Yet, in finding that plaintiff’s
problems in these areas were no longer work preclusive, the

10

administrative law judge relied exclusively and in conclusory fashion
on the opinion of a consultative neurologist who examined plaintiff
only for an “[e]valuation of paresthesias and recommendations for
further management.” See PAGEID 611.

The administrative law judge did

not apparently consider the appropriate factors for discounting the
opinion of a treating provider, see Wilson, 378 F.3d at 544, nor did
the administrative law judge apparently consider the appropriate
factors for evaluating the opinions of examining sources, see Ealy,
594 F.3d at 514 (an administrative law judge should consider such
factors as “the evidence that the physician offered in support of
h[is] opinion, how consistent the opinion is with the record as a
whole, and whether the physician was practicing in h[is] specialty.”).
In short, the administrative law judge failed to properly evaluate the
medical source opinions for the period beginning October 9, 2012.
It is therefore RECOMMENDED that the decision of the Commissioner
be reversed and that this action be remanded for further consideration
of the medical source opinions for the period beginning October 9,
2012.
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 the 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 waiver of the right to
appeal the judgment of the District Court.

See, e.g., Pfahler v.

Nat’l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that
“failure to object to the magistrate judge’s recommendations
constituted a waiver of [the defendant’s] ability to appeal the
district court’s ruling”); United States v. Sullivan, 431 F.3d 976,
984 (6th Cir. 2005) (holding that defendant waived appeal of district
court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation).

Even when timely

objections are filed, appellate review of issues not raised in those
objections is waived.

Robert v. Tesson, 507 F.3d 981, 994 (6th Cir.

2007) (“[A] general objection to a magistrate judge’s report, which
fails to specify the issues of contention, does not suffice to
preserve an issue for appeal . . . .”) (citation omitted)).

July 7, 2015

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

12