Stiers v. Commissioner of Social Security Administration

Filing 22

REPORT AND RECOMMENDATION re 1 Complaint filed by Dennis Ray Stiers in that it is RECOMMENDED that the Plaintiff's Statement of Errors be sustained to the extent that this case be remanded to the Commissioner for further proceedings. Objections to R&R due by 4/27/2017. Signed by Magistrate Judge Terence P. Kemp on 4/13/17. (sem)

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

:

Plaintiff,

:

v.

:
:

Commissioner, Social Security
Administration,
Defendant.

Case No. 2:16-cv-449
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

:
:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Dennis Stiers, filed this action seeking review
of a decision of the Commissioner of Social Security denying his
applications for disability insurance benefits and supplemental
security income.

Those applications were filed on September 21,

2012, and alleged that Plaintiff became disabled on March 31,
2011.
After initial administrative denials of his claim,
Plaintiff was given a hearing before an Administrative Law Judge
on February 2, 2015, and a supplemental hearing on July 16, 2015.
In a decision dated August 6, 2015, the ALJ denied benefits.
That became the Commissioner’s final decision on March 24, 2016,
when the Appeals Council denied review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on July 25, 2016.

Plaintiff filed a

statement of specific errors on October 20, 2016.
Commissioner responded on January 31, 2017.

The

Plaintiff has not

filed a reply brief, and the case is now ready to decide.
II.

Plaintiff’s Testimony at the Administrative Hearing

Plaintiff, who was 48 years old as of the date of the first
administrative hearing and who has a high school education,

testified as follows.

His testimony appears at pages 161-72 and

176-201 of the administrative record.
At the first hearing, Plaintiff testified about his selfemployment.

He said that he helped his father around the farm,

mostly taking care of cows.
employed mechanic.

Until 2008, he was also a self-

He discontinued that business in 2008 when he

had a stroke and then moved to Ohio to help his father.
did some mechanic work occasionally but not for pay.

He also

The hearing

was adjourned after some confusion about how much Plaintiff had
earned after his alleged onset date.
At the second hearing, Plaintiff clarified he closed his
auto mechanic business in either 2009 or 2010 because he could no
longer do the required work due to problems with his feet and his
eye.

His wages after that date represented money his parents

paid him for helping out on the farm.

He also checked in on the

employees in his father’s automotive shop once or twice a week.
When questioned by his attorney, Plaintiff said that his
most disabling condition was his difficulty with reading and
spelling, followed by problems with his legs and eyes.

If he

stood for a while, his legs swelled and became ulcerated.

He had

blurred vision in his right eye due to a detached retina and had
diabetic neuropathy in his left eye.
numbness in his fingertips.

His diabetes also caused

He had had a toe amputated on his

right foot in either 2010 or 2011.
Plaintiff said that he could stand thirty to forty minutes
before having to sit.

He could sit at least an hour.

Some of

his medications made him drowsy, but he had difficulty sleeping
at night, and he took naps on a daily basis.

He was able to

drive but did not drive at night.
Plaintiff’s mother, Sandra Stiers, also testified at that
hearing.

She said that to her knowledge Plaintiff had not done

any auto mechanic work since 2011.
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On the farm, he would put hay

into a cattle feeder with a tractor in the wintertime when her
husband was not able to do so.

She and her husband gave

Plaintiff money for his living expenses. (Tr. 205-210).
III.

The Medical Records

The pertinent medical records are found beginning at page
453 of the record.

They can be summarized as follows.

Because

Plaintiff raises an issue only as to the ALJ’s evaluation of
opinions from Dr. Harvey, the treating physician, the Court will
focus its summary primarily upon Dr. Harvey’s records.
The first set of records show that Plaintiff was seen by Dr.
Harvey in 2009 and 2010 for treatment of diabetes.

His disease

was poorly controlled but the notes show that he took his
medications inconsistently and also did not watch his diet
closely.

By 2012, he was experiencing foot ulcers and cellulitis

resulting from diabetic neuropathy as well as some visual
problems.

He was still not taking his medication as directed and

was not watching his diet, although there were times when he did
better.

A note dated October 10, 2012 reported that he was doing

“quite well.”

(Tr. 504).

He had had surgery to remove a skin

lesion on his right leg in May, 2012, and that was healing nicely
as of October of that year.
On October 16, 2014, Dr. Harvey completed a functional
capacity assessment form.

On it, he stated that Plaintiff could

lift 20 pounds occasionally and less than ten pounds frequently,
and could not stand, walk, and sit for a total of eight hours in
a workday.

He explained his conclusions by referring to

Plaintiff’s severe diabetic neuropathy affecting his lower
extremities with chronic edema.
limited his sensation.

Plaintiff’s neuropathy also

Dr. Harvey thought that Plaintiff should

avoid exposure to extremes of temperature and also to workplace
hazards.

(Tr. 882-89).

Treatment notes from 2014 showed that Plaintiff’s symptoms
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included increased swelling and shortness of breath and that he
was also treated for some burns on his shin.

Some of his

swelling was attributed to running out of Lasix.

(Tr. 906).

A

note from 2013 indicated that Plaintiff was having a hard time
standing on hard surfaces and that “Patient apparently is being
required to work 40 hours a week for his outlet assistance and
does not feel he is able to perform at this level due to diabetic
issues.”

(Tr. 918).

regularly....”

A prior note said that he was “back to work

(Tr. 926).

On February 2, 2015, Dr. Harvey completed a second
functional capacity report.

This time, he concluded that

Plaintiff could lift fifty pounds occasionally and 25 pounds
frequently but could still not sit, stand, and walk for a total
of eight hours.

He did not limit Plaintiff’s exposure to

hazards, and he did not explain any of his findings.
89).

(Tr. 982-

Notes from 2015 showed that he continued to have ulceration

and other problems with his legs and feet.

He also burned

himself while welding, and a note following his hospitalization
for that problem said that he was, as of April 17, 2015, “back to
work” and that he “wears tennis shoes to work as a welder.”

(Tr.

1235).
Two state agency physicians reviewed the records as well.
Both Dr. Green and Dr. Torello concluded that he could do a full
range of light work.

(Tr. 232, 243-44).

The later of these two

opinions is dated April 29, 2013.
IV.

The Vocational Testimony

Lynelle Hall was called to testify as a vocational expert at
the administrative hearing.

Her testimony begins at page 210 of

the administrative record.
Ms. Hall first testified about Plaintiff’s past work.
said that he worked as an automobile mechanic.

She

That was a

skilled job which Plaintiff performed at the heavy exertional
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level.
Ms. Hall was next asked questions about a hypothetical
person with Plaintiff’s age, education, and experience who could
work at the light exertional level.

She testified that such a

person could not do Plaintiff’s past work.

However, that person

could be employed as a router, garment sorter, or housekeeper.
Plaintiff’s counsel then posed some questions to Ms. Hall
about a person who had various limitations, one of which was not
being able to sit, stand, and walk for a cumulative total of
eight hours in a workday.

She said that those limitations were

inconsistent with the ability to perform light work.

She also

testified that in order to do a full range of light work, someone
had to be able to stand and walk frequently during the workday,
or between one-third and two-thirds of the day.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages
143-52 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
through September 30, 2016.

Second, he found that Plaintiff had

not engaged in substantial gainful activity since his alleged
onset date.

Going to the next step of the sequential evaluation

process, the ALJ concluded that Plaintiff had severe physical
impairments including diabetic neuropathy, right foot ulcers,
partial amputation of the right third toe, bilateral shoulder
pain, and obesity.

The ALJ also found that these impairments 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 the next step of the sequential evaluation
process, the ALJ found that Plaintiff could perform a full range

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of light work.

That being so, the ALJ concluded that Plaintiff

could not perform his past relevant work.

However, relying on

the vocational testimony, the ALJ found that Plaintiff could do
certain light unskilled jobs including router, garment sorter,
and cleaner/housekeeper, and that such jobs existed in
significant numbers in the national economy.

That finding is

inconsistent with a determination of disability.

Consequently,

the ALJ decided that Plaintiff was not entitled to benefits.
VI.

Plaintiff’s Statement of Specific Errors

In his statement of errors, Plaintiff raises these issues:
(1) the ALJ’s determination that Plaintiff could do light work is
not supported by substantial evidence; (2) the ALJ failed to
afford controlling weight to the opinions of the treating
physicians; and (3) the ALJ based his decision on responses to a
hypothetical question that did not accurately reflect Plaintiff’s
limitations.

These issues are evaluated under the following

legal 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

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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.

Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).
Although Plaintiff’s statement of errors identifies three
separate issues, his arguments come down to this: The ALJ did not
have an adequate basis for rejecting Dr. Harvey’s opinion, and
that opinion was inconsistent with the ability to work for an
eight-hour day.

This argument requires the Court to explain and

apply the “treating physician” rule.
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 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

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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 ALJ first discussed Dr. Harvey’s medical notes in
connection with his credibility determination.

He described the

notes as showing that in 2012, Plaintiff’s symptoms were
attributed to medical non-compliance.
examinations were normal.

In 2013 and 2014, his

In January, 2015, he was feeling well

and was not experiencing foot pain.

His foot lesions had also

improved and his cellulitis had resolved.

(Tr. 149).

Turning to Dr. Harvey’s two opinions, the ALJ gave them
“some weight” because Dr. Harvey is a treating source.
150).

(Tr.

However, he found that because Dr. Harvey’s notes showed

that Plaintiff’s diabetes was being controlled with medication
and his “walking, postural, and environmental limitations are
also inconsistent with the claimant’s normal gait, normal
musculoskeletal motions, and ongoing work activity,” id., he did
not give it controlling weight.

He then gave great weight to the

opinions of the State agency reviewers because they were
consistent with “the claimant’s controlled diabetes and ongoing
work activity” and because “the claimant has not used assistive
walking devices on any consistent basis.”

Id.

Although the Commissioner defends the ALJ’s evaluation of
Dr. Harvey’s opinions as supported by the evidence, the Court
notes two primary concerns.

The first relates to the ALJ’s

stated reasons for discounting the opinions.

Despite the variety

of factors set forth in 20 C.F.R. §404.1527(c) and the general
requirement that an ALJ evaluate the supportability and
consistency of a treating source’s opinions before turning to

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other regulatory factors, see Gayheart v. Comm’r of Social
Security, 710 F.3d 365 (6th Cir. 2013), the ALJ made no specific
mention of these factors when assigning only some weight to Dr.
Harvey’s opinions.

It can be inferred that the ALJ did not think

that Dr. Harvey’s notes provided sufficient support for his
opinions, but the ALJ did not discuss any diagnostic techniques
nor did he refer to any other evidence besides Dr. Harvey’s notes
which presented an inconsistency of the type which could call Dr.
Harvey’s opinions into question.

Assuming that the ALJ did the

correct Gayheart analysis, albeit in very brief form, he also did
not comment on the length of the treating relationship, the type
of treatment provided, whether the frequency of treatment was
consistent with the type of symptoms reported by Dr. Harvey, or
any other factors which an ALJ is required to consider.

Although

an ALJ need not recite and discuss each factor separately, the
need to provide a sufficient explanation for the rejection of a
treating physician’s opinion in order to satisfy the articulation
requirement found in 20 C.F.R. §404.1527(c) suggests that the
ALJ’s brief three-sentence rejection of Dr. Harvey’s opinion is,
if not reversible error by itself, at the very least problematic.
That leads into the Court’s second concern.

It appears,

especially from Dr. Harvey’s first functional capacity report,
that he based much of his opinion on Plaintiff’s diabetic
neuropathy and the associated swelling and persistent ulceration
and infection of his feet and legs.

While those symptoms might

not explain Dr. Harvey’s view that Plaintiff could not sit for up
to six hours in a workday, they are very relevant to the issue of
how long he could stand and walk.

In this case, the ALJ did not

make any findings or take any testimony about Plaintiff’s ability
to do sedentary work, so the crucial finding he made is that
Plaintiff could do the standing and walking requirements of light
work.
The ALJ’s dismissal of Dr. Harvey’s opinion did not focus
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on, or even mention, that issue.

Despite acknowledging that some

restrictions could reasonably be seen as accompanying Plaintiff’s
“diabetes, obese BMI, and partially amputated right toe,” the ALJ
apparently concluded that those impairments still permitted
Plaintiff to stand and walk for up to six hours a day, five days
a week, in a work setting.

The only reasons provided for that

finding were that Plaintiff’s diabetes was controlled with
medication - a finding that is not inconsistent with a severe
degree of diabetic neuropathy or lower extremity edema - and that
his normal gait and musculoskeletal motions belied his inability
to stand and walk for such an amount of time.

But there is no

reason to assume that someone who has swollen legs and is prone
to cellulitis and foot ulcers, as the record clearly demonstrates
Plaintiff to be, must walk with a limp or have muscular
insufficiency.

Consequently, the reasons cited at Tr. 150 are

simply not the type of “good reasons” (i.e. supported by the
record) which §404.1527(c) requires an ALJ to provide.
The ALJ also cited the fact that Plaintiff engaged in
“ongoing work activity.”

Id.

However, he never made a finding

as to what that activity consisted of, nor is there anything in
the record suggesting that it was done at the light exertional
level or required a degree of standing or walking which was
inconsistent with Dr. Harvey’s opinion.

The State agency

reviewers’ opinions, which predated the ALJ’s decision by well
over two years and which did not take into account any medical
records from the second half of 2013, all of 2014, and the first
half of 2015 (and which also were rendered without the benefit of
either of Dr. Harvey’s opinions) cannot constitute substantial
evidence on this point.

Consequently, the Court concludes that

as to one part of Dr. Harvey’s opinion - the important part for
this decision, which, again, is based upon the Plaintiff’s
ability to do light work - substantial evidence does not support
the ALJ’s decision.

On remand, the ALJ must assign the
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appropriate weight to Dr. Harvey’s view that Plaintiff cannot
stand or walk for more than two hours in a workday taking into
account the entirety of the record and the applicable regulations
and interpretive case law.

If the ALJ determines that Plaintiff

cannot do a full range of light work, there may then be a need
for additional vocational evidence should the ALJ find valid
reasons for discounting Dr. Harvey’s opinion that Plaintiff
cannot sit for up to six hours in a workday.
VII.

Recommended Decision

Based on the above discussion, it is recommended that the
Plaintiff's statement of errors be sustained to the extent that
this case be remanded to the Commissioner for further proceedings
pursuant to 42 U.S.C. § 405(g), sentence four.
VIII.

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
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947 (6th Cir. 1981).
/s/ Terence P. Kemp
United States Magistrate Judge

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