Sacks v. Commissioner of Social Security

Filing 19

ORDER adopting 16 the Report and Recommendation. Signed by Judge Michael H. Watson on 5/16/16. (jk)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Charitie M. Sacks,

Plaintiff,
v.

Case No. 2:15-cv-2315

Commissioner of Social Security,

Judge Michael H. Watson

Defendant.
ORDER

Charitie Marie Sacks ("Plaintiff') applied for Social Security Disability

benefits and Supplemental Security income on February 22, 2012. The

application was denied initially and upon reconsideration. Plaintiff attended a
hearing before an Administrative Law Judge ("ALT) on October 4, 2013, and, in
a subsequent decision, the ALJ determined Plaintiff was not disabled. Plaintiff
filed suit in this Court in June 2015, and Magistrate Judge Kemp thereafter
issued an R&R that recommended that Plaintiffs statement of errors be

sustained and that the case be remanded to the Commissioner. R&R 13, ECF
No. 16.

The Acting Commissioner of Social Security Carolyn M. Colvin ("the
Commissioner"), objects to the Report and Recommendation ("R&R") issued by

Magistrate Judge Kemp in this social security case. For the following reasons,
the Court overrules the Commissioner's objection and adopts the R&R.

I.

STANDARD OF REVIEW

Magistrate Judge Kemp issued the R&R pursuant to Federal Rule of Civil

Procedure 72(b). Under that rule, the Undersigned must determine de novo any
part of the Magistrate Judge's disposition that has been properly objected to.

Fed. R. Civ. P. 72(b)(3). The Undersigned may accept, reject, or modify the
R&R, receive further evidence, or return the matter to the Magistrate Judge with
instructions. Id.
II.

ANALYSIS

In her statement of errors, Plaintiff argued that: (1) the ALJ failed to
properly accord adequate weight to the opinion of Plaintiffs treating physician;

and (2) the ALJ committed reversible error by concluding that Plaintiffcan
perform light occupational work despite determining that she had a RFC for a
reduced range of sedentary work.

Magistrate Judge Kemp recommended sustaining Plaintiffs first contention
and thus found the second contention moot.

The Commissioner makes the following timely objections: (1) the

Magistrate Judge improperly found that the ALJ engaged in 'post-hoc
rationalization' in her discussion of reasons behind the weight afforded to
Plaintiffs treating physician's opinion; and (2) the ALJ properly found that the

reviewing consultant's opinion of Plaintiffs limitations deserved greater weight

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than Plaintiffs treating physicians opinion because the consultant provided more
detailed and comprehensive information.
The Commissioner does not dispute the accuracy of the statement of facts
provided by Magistrate Judge Kemp. R&R 1-7, ECF No. 16. Accordingly, the
Court incorporates it herein.

A. Objection One
When an individual applies for Social Security benefits, the individual
typically provides a number of doctor reports and opinions. These reports and
opinions are delegated weight as appropriate under federal regulation. 20 C.F.R.
§404.1527 provides:
Generally, we give more weight to opinions from your treating
sources, since these sources are likely to be the medical
professionals most able to provide a detailed, longitudinal picture of
your medical impairments) and may bring a unique perspective to
the medical evidence .... If we find that a treating source's opinion
on the issue(s) of the nature and severity of your impairment(s) is
well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in your case record, we will give it controlling
weight.

20 C.F.R. § 404.1527(c)(2). This section goes on to provide a number of factors
that ALJs must consider when determining whether to afford a treating

physician's opinion controlling weight. See 20 C.F.R. §§ 404.1527(c)(2)(i)-(ii),
404.1527(c)(3)-(6). In considering these factors, an ALJ must provide good
reasons for the weight given a treating doctor's opinion. Thus, an ALJ must

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make clear the weight the ALJ gave the treating source's opinion and the
reasons for that weigh when denying benefits, such as is the case here. Wilson

v. Comm'rofSoc. Sec, 378 F.3d 541, 544 (6th Cir. 2004).
In this case, the ALJ made the following conclusions as to Plaintiffs
treating physician, Dr. Ajay Bhatia, MD ("Dr. Bhatia"):
[Dr. Bhatia] opined that the claimant was unemployable and had
marked and extreme mental work-related limitations. In October

2013, Dr. Bhatia reported that the claimant had minimal
improvements even though she had been adherent to her medical
regimen, and he opined that it was unlikely that she could function
well enough to work for the foreseeable future. However, the
question of disability is a matter reserved for the Commissioner, and
Dr. Bhatia's opinion and indication of marked and extreme limitation
are inconsistent with the medical evidence of record, the claimant's

actual activities of living (as summarized below), and her own
testimony in which she said that she could understand, remember
and carry out simple instructions. Accordingly, I give little weight to
Dr. Bhatia's opinion and findings of marked and extreme limitations.
AR 31-32, ECF No. 9.

Magistrate Judge Kemp assessed the ALJ's consideration of Dr. Bhatia as
follows:

There are a number of problems with the Commissioner's argument.
First, the ALJ did not mention the alleged inconsistency between Dr.
Bhatia's treatment notes and her opinions as a basis for discounting
her opinion. . . . Second, although the ALJ made a general
statement about inconsistencies between Dr. Bhatia's opinions and
the "medical evidence of record," it was just that - a general
statement devoid of any specific reference to any portion of the
medical evidence. Such conclusory statements do not provide the
claimant with any ability to understand their content, nor do they
provide a reviewing court with the ability to decide if the ALJ

correctly or incorrectly assessed those claimed inconsistencies.
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R&R 11, ECF No. 16.

On objection, the Commissioner argues that Magistrate Judge Kemp
improperly characterized the ALJ's decision. Specifically, the Commissioner

avers that the ALJ properly discounted Dr. Bhatia's conclusions because Dr.
Bhatia "did not offer any explanation for his conclusions that Plaintiff was

unemployable." Obj. 2, ECF No. 17 (citing AR 408, ECF No. 9 (a form with
eighteen "ability" assessment categories as well as an option to indicate the
doctor's belief as to whether the patient is employable or unemployable)).
The Court does not find the Commissioner's argument well-taken. The
ALJ merely referenced the evidence of Plaintiffs actual activities that were
summarized later in his opinion and, without citation, concluded that Plaintiffs
own testimony was inconsistent with Dr. Bhatia's opinion. See 20 C.F.R.
§ 404.1527(c)(4) ("Generally, the more consistent an opinion is with the record as
a whole, the more weight we will give that opinion.").
While the Commissioner addresses the factors contained in 20 C.F.R.

§ 404.1527, which it claims substantiate the ALJ's finding on appeal to this Court,
the Commissioner fails to identify any factors that the ALJ considered.

Specifically, the Commissioner fails to identify any evidence cited by the ALJ that
addresses the length of Dr. Bhatia's treatment, the frequency of his
examinations, the nature and extent of his treatment relationship with Plaintiff,

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support of Dr. Bhatia's opinion afforded by medical evidence (or the lack thereof),

and specialization of the treating physician. See 20 C.F.R. §§ 404.1527(c)(2)(i)(ii); 404.1527(c)(3), 404.1527(c)(5). In sum, without any indication that the ALJ
considered that evidence, the Magistrate Judge properly found the ALJ's
conclusion unsubstantiated.

The ALJ did not provide any reasons for the weight he gave Plaintiffs
treating doctor's opinion, which means the ALJ's decision denying benefits does
not make clear the weight the ALJ gave the treating source's opinion and the
reasons for that weight as required pursuant to the Social Security
Administration's own regulations. See Wilson, 378 F.3d at 544. As Magistrate

Judge Kemp aptly stated: "The other rationales provided by the ALJ do not
provide enough support for the decision to overcome this articulation error." R&R
12, ECF No. 16. This error is not harmless because "the agency failed to follow
its own procedural regulation and the regulation was intended to protect
applicants like [Plaintiff]." Wilson, 378 F.3d at 544; id. at 546 ("The ALJ's failure

to give "good reasons" for not crediting [the treating physician] does not
constitute harmless error, notwithstanding the district court's reasoning and the
Commissioner's argument on appeal."). As such, the Magistrate Judge's

recommendation of remand is appropriate and the Court overrules the
Commissioner's objection.

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B. Objection Two

In her Statement of Errors, Plaintiff he Commissioner also challenged the

ALJ's finding that Plaintiff could only do sedentary work. Magistrate Judge Kemp
found this contention moot as he recommended remanding for alternate reasons.

He also opined that the ALJ's reliance on an expert's testimony about "light jobs"
(verse "sedentary work") was likely harmless error because that same expert

also identified sedentary jobs that someone with the assumed residual functional
capacity of Plaintiff could perform.
As the Court overruled the Commissioner's first objection and orders

remand on that issue, the Court need not consider the Commissioner's objection.
III.

CONCLUSION

For the reasons stated above, the Court OVERRULES the

Commissioner's objections and ADOPTS the R&R. The Commissioner's

decision is REVERSED pursuant to Sentence 4 of 42 U.S.C. § 405(g) and
REMANDED to the Commissioner for further consideration of the weight to be

afforded Plaintiffs treating physician.
IT IS SO ORDERED.

fAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT

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