Davis v. Commissioner of Social Security
Filing
22
OPINION AND ORDER ADOPTING IN PART AND REJECTING IN PART 19 REPORT AND RECOMMENDATION. Court SUSTAINS 20 Plaintiff's Objections and AFFIRMS IN PART AND REVERSES IN PART the Commissioner's decision. The case is REMANDED to the Commissioner under the Fourth Sentence of 42 U.S.C. 405(g) for proceedings consistent with this Opinion. Signed by Judge Sarah D. Morrison on 3/19/2020. (tb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
CHRISTIAN L. DAVIS,
Plaintiff,
:
- vs -
Case No. 2:17-cv-995
Judge Sarah D. Morrison
Magistrate Judge Elizabeth Preston Deavers
COMMISSIONER OF SOCIAL
SECURITY,
:
Defendant.
OPINION AND ORDER
Christian Davis (“Plaintiff”) brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3)
for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying
his application for Supplemental Security Income (“SSI”). This matter is before the Court on the
Plaintiff’s Objection (ECF No. 20) to the Report and Recommendation (R&R) issued by the
United States Magistrate Judge on January 16, 2020 (ECF No. 19), recommending that the Court
overrule Plaintiff’s Statement of Errors and affirm the Commissioner’s decision. For the reasons
set forth below, the Court SUSTAINS Plaintiff’s Objection, ADOPTS in part and REJECTS in
part the Magistrate Judge’s R&R, and AFFIRMS in part and REVERSES in part the
Commissioner’s decision. The case is REMANDED to the Commissioner under the Fourth
Sentence of 42 U.S.C. § 405(g) for proceedings consistent with this Opinion.
I.
BACKGROUND
A.
Procedural History
On August 19, 2011, Plaintiff’s mother filed an application for SSI benefits on Plaintiff’s
1
behalf. (R. at 69). At that time, Plaintiff was 15 years old. (Id. at 57). Plaintiff’s claims were
denied initially on November 16, 2011, and upon reconsideration on February 29, 2012. (Id. at
89–95, 99–106). Following a hearing, administrative law judge (“ALJ”) James B. Griffith issued
a decision finding that Plaintiff was not disabled on May 16, 2013. (Id. at 10–25). Plaintiff turned
eighteen on January 27, 2014. (Id. at 175). The Appeals Council subsequently denied review and
adopted the ALJ’s decision as the Commissioner’s final decision on August 21, 2014. (Id. at 1–
5).
Thereafter, Plaintiff filed a civil action in this Court (Case No. 2:14-cv-1909) and the
Court remanded the case back to the Appeals Council. (Id. at 1567–69). On October 23, 2015,
the Appeals Council vacated and remanded ALJ Griffith’s decision. (Id.). The case was then
assigned to ALJ Edmund Giorgione who held a hearing on February 3, 2016. (Id. at 1438).
However, because ALJ Giorgione passed away before issuing a decision, another hearing was
held by ALJ Timothy Gates on August 2, 2016. (Id.). On September 1, 2016, ALJ Gates issued a
decision finding that Plaintiff was not disabled either prior to or since attaining age 18. (Id. at
1438–66). The Appeals Council denied Plaintiff’s request for review and adopted the ALJ’s
decision as the Commissioner’s final decision on September 18, 2017. (Id. at 1281–84).
Plaintiff filed this case on November 15, 2017 (ECF No. 3), and the Commissioner filed
the administrative record on January 26, 2018 (ECF No. 8). Plaintiff filed a Statement of Specific
Errors (ECF No. 11), and the Commissioner responded (ECF No. 17). On January 16, 2020, the
Magistrate Judge issued her Report and Recommendation. (ECF No. 19). After a thorough
analysis, the Magistrate Judge recommended affirming the Commissioner’s non-disability
findings. On January 30, 2020, Plaintiff timely filed an Objection to the Magistrate’s R&R. (ECF
No. 20). The Commissioner filed a brief Response on February 3. (ECF No. 21).
2
B.
Relevant Record Evidence 1
1.
Hearing Testimony
Plaintiff, represented by counsel, appeared and testified at the February 3, 2016
administrative hearing before ALJ Giorgione. At the time of the hearing, Plaintiff was 20 years
old. (R. at 1481). Plaintiff testified that migraines and arthritis are the primary ailments that
prevent him from being able to work. (Id. at 1482). According to Plaintiff, he suffers from
migraines constantly and has pain in his back and all of his joints. (Id. at 1482–83). He testified
that if the pain is bad enough he uses a cane or walker, and the pain tends to get worse depending
on the weather. (Id. at 1483). Plaintiff testified that he can sit for 35 minutes at a time and stand
and walk for 25–30 minutes before he needs to sit. (Id.). The most he can lift is 17 pounds. (Id.).
Plaintiff stated that he has difficulty with stairs, has sensitivity to light and sound, and has
difficulty focusing. (Id. at 1484). He does not “really like being around folks because of [his]
pain.” (Id.). Plaintiff also complained of problems with his vision. (Id. at 1485).
Plaintiff testified that he can dress himself, although it takes time. (Id.). He is able to
shower or bathe himself, but sometimes he needs help getting out of the shower. (Id.). He does
not have a driver’s license because he is “prone to passing out.” (Id. at 1485–86). Plaintiff
testified that he cannot cook well, and he tends to forget about laundry, but he can wash dishes a
few at a time although he does have trouble gripping objects. (Id. at 1486, 1492). Plaintiff also
testified that he is often nauseous, which has gotten worse since starting infusions at Nationwide
Children’s Hospital. (Id. at 1486).
1
Since Plaintiff does not object to the Magistrate Judge’s recommendation as to his first
contention of error, the relevant record evidence encompasses only that which comes after
Plaintiff attained the age of majority.
3
Plaintiff testified that he graduated high school with mostly C’s and D’s. (Id. at 1487). He
“had to miss so much school that [he] had to attend summer school” and was nearly held back.
(Id.). According to Plaintiff, he “started spiraling in depression” after the death of his
grandparents. (Id. at 1489). Plaintiff stated that prior to his grandfather’s death, he acted as one
of his primary caregivers. (Id. at 1495). Plaintiff elaborated that this meant he “tried taking care
of him for more than a month.” (Id.). Plaintiff stated that during that time he attempted to change
and wash his grandfather, but he would throw his back out trying to pick him up and ended up
having to call his mother to help him. (Id. at 1495–96). Plaintiff testified that “[t]here are some
days where it is physically impossible for [him] to get out of [his] bed.” (Id. at 1490). This
occurs approximately four times a week on average. (Id.). Plaintiff testified that because he only
sleeps three to four hours a night, he often sleeps an hour during the day. (Id. at 1494–95). He
spends most of his days lying down. (Id. at 1495).
Vocational Expert Lynelle Hall (“VE”) also testified. Although Plaintiff had previously
worked at a car wash part-time for a month and half, he had to leave the job due to his “ailment.”
(Id. at 1482). As a result of this very brief work history, ALJ Giorgione concluded that there was
no past relevant work. (Id.). The ALJ proposed a hypothetical to the VE, which limited Plaintiff
to lifting and carrying 20 pounds occasionally and ten pounds frequently, constantly bilaterally
reaching, frequently bilaterally handling and fingering, standing 45 minutes at time for two
hours, 2 walking 30 minutes at a time for two hours, sitting 60 minutes at a time for four hours,
and occasionally bending, crouching, crawling, and climbing steps and ladders. (Id. at 1497–98).
The VE testified that under these conditions, Plaintiff could perform sedentary jobs, including
2
These parameters encompass a typical eight-hour workday.
4
addresser, table worker, and assembler. (Id. at 1498). However, Plaintiff could not sustain
employment with an additional two 15-minute breaks per day, outside of the 30-minute lunch
and two 15-minute breaks typically allotted. (Id. at 1500). Similarly, if Plaintiff required regular
breaks requiring a quiet, dark setting where he could lie down, or was regularly tardy, the VE
testified that those limitations would be work preclusive. (Id. at 1500–01).
When asked to alter the hypothetical to Plaintiff also missing less than five days of work
per month, the VE testified that “anything more than one day off per month would be work
preclusive, up to four or five times per year.” (Id. at 1498–99). When asked to alter the original
hypothetical to limit Plaintiff to work in relative isolation, the VE testified that the Plaintiff could
still do the same three identified sedentary jobs. (Id. at 1499). When asked to keep the same
hypothetical but Plaintiff would not be able to maintain an eight-hour workday or a 40-hour
workweek because of an inability to maintain attention and concentration, the VE testified that
no work would be available to Plaintiff. (Id.). Similarly, if on a month-to-month basis Plaintiff
had one unscheduled absence and one unscheduled tardiness, Plaintiff could not sustain
competitive employment. (Id. at 1501).
Plaintiff, represented by counsel, appeared and testified at the August 2, 2016
supplemental administrative hearing before ALJ Gates. Plaintiff testified that his conditions
worsened since the February hearing. (Id. at 1510). He elaborated that as of May or June, he had
been getting infusions once a week for pain and inflammation, which are “almost unbearable.”
(Id. at 1510, 1514). Further, it is hard for him to get up during the day and he has migraines and
back pain constantly. (Id. at 1510). Plaintiff also testified that since the February hearing, the
vision in his left eye had gotten significantly worse and he had been diagnosed with ptosis. (Id.).
Vocational Expert Lynne Kaufman also testified at the supplemental hearing. The ALJ
5
asked the VE to alter the original hypothetical proposed at the February hearing to include
occasional interaction with supervisors and co-workers and no contact with the general public.
(Id. at 1517–18). The VE testified that “there would be some light jobs you could do as well as
some sedentary” including the jobs identified at the February hearing. (Id. at 1518–19). When
asked to alter the original hypothetical so that Plaintiff would be off task more than 10% of the
time, the VE testified that Plaintiff would be unable to sustain competitive work. (Id. at 1520). In
contrast to VE Hall’s testimony, VE Kaufman did not believe that an extra 30 minutes of daily
breaks would necessarily be work preclusive. (Id.). However, she did acknowledge that most
competitive work does not provide a place to lie down during breaks. (Id. at 1521).
2.
Hospital Records
Since 2011, Dr. Charles Spencer at Nationwide Children’s Hospital has acted as
Plaintiff’s treating rheumatologist. (Id. at 495). In February 2014, Dr. Spencer saw Plaintiff for
back, hip, and knee pain, headaches, and dizziness. (Id. at 1998). Dr. Spencer noted that the
combination of arthritis and fibromyalgia is difficult and recommended Plaintiff continue
Orencia infusions since Plaintiff reported they were helping even though not fully. (Id. at 1998–
99). In August 2014, Dr. Spencer noted that Plaintiff “knows the Orencia works” although
Plaintiff still suffered from bad headaches. (Id. at 2007). Dr. Spencer also noted that Plaintiff was
“overall better” and that he had graduated from high school. (Id. at 2008).
On January 14, 2015, Dr. Spencer saw Plaintiff for a follow-up visit and noted that
Plaintiff had been better over the past 18 months “but not good enough.” (Id. at 2017). He noted
that Plaintiff’s knees, ankles, and back still hurt and that he had been trying to work part-time at
a car wash but was not successful. (Id.). Dr. Spencer also noted that Plaintiff’s grandfather was
ill and that it was having an effect on him. (Id.). Dr. Spencer changed Plaintiff’s infusion
6
medication to Actemra after assessing that Plaintiff was 50 to 60 percent where he needed to be
“but not there.” (Id. at 2018). Plaintiff had also developed psoriasis due to the infusions. (Id.). In
April 2015, Dr. Spencer saw Plaintiff and noted that he “overall feels slightly better” and was
more mobile, but Plaintiff was still having back and knee pain and his migraines had gotten
worse. (Id. at 2027). Dr. Spencer noted that Plaintiff’s grandfather and uncle passed away in the
past month and that “[Plaintiff] was a primary caregiver for grandfather” and “had difficulty
finding work since his death.” (Id.). Dr. Spencer concluded that Plaintiff’s arthritis was better,
but that depression was clear given the recent deaths in Plaintiff’s family. (Id. at 2030). He also
stressed that Plaintiff needed to wear his glasses, as this was likely exacerbating his migraines.
(Id.). Dr. Spencer prescribed a trial of SSRI medication and gave Plaintiff a referral to talk
therapy. (Id.).
On July 15, 2015, Dr. Geoffrey Heyer submitted a letter noting Plaintiff’s diagnoses as
“chronic daily headaches, chronic fibromuscular pain, fibromyalgia, and chronic fatigue.” (Id. at
2058). Dr. Heyer had been treating Plaintiff in his Headache and Pain Clinic at Nationwide
Children’s Hospital since February 2012. (Id.). He opined that Plaintiff’s combination of
depression and chronic pain “can lead to severe disability.” (Id.). He also opined that Plaintiff
“has a substantial disability burden and very poor quality of life as a consequence.” (Id.).
In September 2015, Dr. Spencer saw Plaintiff and noted that his arthritis was still bad in
his back, fingers, hips, knees, and ankles and that the infusions were helping “but not great.” (Id.
at 2040). Dr. Spencer recommended that Plaintiff continue infusions and start injections for hip,
knee, and ankle pain. (Id. at 2041). On November 19, 2015, Dr. Spencer noted that Plaintiff’s
arthritis was slightly better, but Plaintiff’s mood was low. (Id. at 2052). Dr. Spencer started
Plaintiff on Zoloft for mood elevation and recommended Plaintiff continue infusions. (Id.).
7
On January 21, 2016, Dr. Spencer saw Plaintiff and noted that Plaintiff reported he was
“doing badly” with a lot of joint pain. (Id. at 2110). He noted that the infusions were helping but
only for two weeks, and Plaintiff was “staying in bed all day.” (Id.). Dr. Spencer noted that
things were “way out of control” and prescribed Plaintiff IV treatment and referred him to a
psychologist. (Id. at 2112). The next day, Dr. Spencer submitted a letter noting Plaintiff’s
diagnosis as “chronic arthritis due to Juvenile Idiopathic Arthritis” and remarked that Plaintiff
was also developing spondyloarthritis. (Id. at 2057). He opined that Plaintiff “has improved, but
he remains partially disabled” for the following reasons:
1) He has trouble standing for an extended period of time due to his back and other
joint pain.
2) He has difficulty walking any distance.
3) He cannot bend over well or frequently.
4) He has joint pain that may be distracting at times doing tasks while sitting and
standing.
5) He may miss work days or arrive late at times due to his illness.
(Id.).
In March 2016, Dr. Spencer noted that Plaintiff was still having “lots of back pain and leg
pains” but the infusions were helping more than anything else had “but still pain can be bad.”
(Id. at 2121). He also noted that Plaintiff’s labs were good, but that Plaintiff needed help with
Midrin for headaches. (Id. at 2122). Dr. Spencer recommended that Plaintiff continue infusions
and referred Plaintiff to a pain clinic. (Id.). On May 19, 2016, Dr. Spencer saw Plaintiff for a
follow-up visit and noted that his pain was worse following a car accident. (Id. at 2132). Dr.
Spencer noted that Plaintiff had not yet been able to see a pain doctor and recommended weekly
IV medication and continuing to get infusions at an increased dosage. (Id. at 2132–33). Dr.
Spencer also ordered back and pelvis x-rays, which came back normal. (Id. at 2133, 2147).
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3.
Medical Source Statements
On July 24, 2015, Dr. Spencer completed a medical source statement. Starting with
Plaintiff’s physical limitations, Dr. Spencer opined that Plaintiff could lift one to five pounds
constantly, six to ten pounds frequently, and 11 to 20 pounds rarely. (Id. at 1695). He opined that
Plaintiff could frequently reach and finger with both arms, frequently handle with his right hand,
and occasionally handle with his left hand. (Id. at 1695–96). In an eight-hour workday, Dr.
Spencer opined that Plaintiff could stand for a total of four hours, 45 minutes at a time, walk for
a total of two hours, 45 minutes at a time, and sit for a total of five hours, 60 minutes at a time.
(Id. at 1696). He also opined that Plaintiff could frequently bend and crawl, occasionally squat
and slowly climb steps, but never climb ladders. (Id.). Plaintiff could not use foot controls but
could reach above shoulder level. (Id. at 1696–97). According to Dr. Spencer, due to his severe
pain, Plaintiff’s condition was likely to deteriorate if placed under stress associated with a job,
and he was likely to have unscheduled absences from work five or more days a month. (Id. at
1697).
Moving to Plaintiff’s mental limitations, Dr. Spencer did not note any social interaction
limitations. (Id. at 1698). He opined that Plaintiff would generally have mild limitations
regarding sustained concentration and persistence due to pain, and moderate limitations
regarding his ability to perform at production levels expected by most employers. (Id. at 1699).
Dr. Spencer opined that Plaintiff would have mild limitations responding appropriately to
changes in a work setting and being aware of normal hazards and taking necessary precautions.
(Id.). He opined that Plaintiff would have moderate limitations remembering locations, workday
procedures and instructions, and tolerating customary work pressures. (Id. at 1699–70). Dr.
Spencer noted that stress and unscheduled absences at work would be likely, which could be
9
distracting and limiting. (Id. at 1700). This assessment was based on Plaintiff’s diagnosis of
juvenile arthritis. (Id. at 1697).
Six months later on January 14, 2016, Dr. Spencer completed a second medical source
statement. Dr. Spencer opined that Plaintiff could lift one to ten pounds constantly, 11 to 20
pounds occasionally, and 21 to 50 pounds rarely. (Id. at 1883). He opined that Plaintiff could
constantly reach with both arms, and frequently handle and finger with both arms/hands (Id. at
1883–84). Plaintiff’s postural limitations in an eight-hour workday did not change, except he
could now only walk for two hours, 30 minutes at a time. (Id. at 1884). Dr. Spencer opined that
Plaintiff could occasionally bend, crouch, squat, crawl, and climb steps and ladders (Id.).
Plaintiff could now use foot controls and could still reach above shoulder level. (Id.). Dr.
Spencer still opined that Plaintiff’s condition was likely to deteriorate if placed under stress
associated with a job, but he now opined that Plaintiff was likely to have unscheduled absences
from work less than five days a month. (Id. at 1884–85).
With regards to Plaintiff’s updated mental limitations, Dr. Spencer opined that Plaintiff
would have mild limitations during general social interactions. (Id. at 1886). He still opined that
Plaintiff would generally have mild limitations regarding sustained concentration and persistence
due to pain, and moderate limitations regarding his ability to perform at production levels
expected by most employers. (Id. at 1887). But Dr. Spencer now opined that Plaintiff would only
have mild limitations responding appropriately to changes in a work setting and tolerating
customary work pressures. (Id. at 1887–88). The new assessment was based on Plaintiff’s
diagnosis of juvenile arthritis and fibromyalgia. (Id. at 1885).
C.
The ALJ’s Decision
The Magistrate Judge accurately described the ALJ’s decision. (See R&R, 17–19, ECF
10
No. 19). At step four of the sequential process, 3 the ALJ set forth Plaintiff’s residual functional
capacity (“RFC”) 4 as follows:
Since attaining age 18, [Plaintiff] has had the residual functional capacity to
perform sedentary work as defined in 20 CFR 416.967(a), except he can lift and/or
carry 20 pounds occasionally and ten pounds frequently, handle and finger
frequently, stand 45 minutes at a time and two hours total in workday, walk 30
minutes at a time and two hours total in a workday, sit for 60 minutes at a time and
four hours total in a workday, and occasionally bend, crouch, crawl, and climb.
From a mental standpoint, he is able to occasionally interact with supervisors and
coworkers but must avoid contact with the general public.
(R. at 1460).
In arriving at Plaintiff’s RFC, the ALJ found Plaintiff’s testimony regarding the intensity,
persistence and limiting effects of his symptoms to be not entirely consistent with the objective
findings of the record. (Id.). The ALJ gave “significant weight” to Dr. Spencer’s January 2016
medical source statement and “little weight” to his July 2015 medical source statement. (Id. at
1462). However, the ALJ did not give Dr. Spencer’s 2016 assessment controlling weight.
Noting Plaintiff’s long treating relationship with Dr. Spencer, the ALJ explained his reasoning
as follows:
His later assessment, when he had the experience of having treated the claimant for
a longer period, is more consistent with the above-summarized evidence that
documents persistent reports of musculoskeletal tenderness that would effectively
limit the claimant to sedentary work with occasional postural activities and frequent
fingering and handling. However, the above-summarized treatment record and
reported activities of living are not consistent with the alleged intensity of
symptoms and limitations to support Dr. Spencer’s opinion that the claimant’s
condition would likely deteriorate under stress, that he would be distracted from
completing tasks, or that he would likely to have excessive absences from work . .
. Accordingly, I cannot give Dr. Spencer’s more recent assessment controlling
weight.
See R&R, fn.2, ECF No. 19.
A claimant’s RFC is an assessment of “the most [he] can still do despite [his]
limitations.” 20 C.F.R. § 404.1545(a)(1).
11
3
4
***
In July 2015, Dr. Spencer indicated only mild or no impairment to mental workrelated abilities except for moderately impaired abilities to perform at production
levels expected by most employers and to tolerate customary work pressures, which
Dr. Spencer suggested was due to physical conditions, not due to mental
impairment (Exhibits 29F and 30F). Dr. Spencer concluded that the claimant would
have up to five days of absences per month due to mental impairment. In January
2016, Dr. Spencer made a similar assessment, except he indicated only mildly
impaired ability to tolerate customary work pressures (Exhibit 35F). As Dr. Spencer
is not a mental health professional and the above-summarized record does not
document significant, persistent ongoing deficits supporting moderate limitations
in the functional areas indicated, or excessive work absences, I give this assessment
no significant weight.
Relying on both VE’s testimony, the ALJ determined that Plaintiff could perform a number
of unskilled sedentary jobs that exist in significant numbers in the national economy. (Id. at 1465).
He therefore concluded that since attaining age 18, Plaintiff was not disabled under the Social
Security Act. (Id.).
II.
STANDARD OF REVIEW
If a party objects within the allotted time to a report and recommendation, the Court
“shall make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Fed.
R. Civ. P. 72(b). Upon review, the Court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The Court’s
review “is limited to determining whether the Commissioner’s decision ‘is supported by
substantial evidence and was made pursuant to proper legal standards.’” Ealy v. Comm’r of Soc.
Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234,
241 (6th Cir. 2007)); see also 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .”).
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III.
ANALYSIS
In his Statement of Specific Errors, Plaintiff asserted two assignments of error. With
regard to the first assignment of error—the ALJ improperly evaluated the opinion evidence of
record in determining that Plaintiff was not disabled under the childhood standard of disability—
Plaintiff did not file a timely objection to the Magistrate’s R&R recommending that this
contention of error be overruled. Accordingly, as to Plaintiff’s first assignment of error the Court
ADOPTS the Magistrate Judge’s R&R and AFFIRMS the Commissioner’s decision.
Plaintiff’s second assignment of error also forms the basis of his Objection to the
Magistrate Judge’s R&R. Specifically, Plaintiff contends that the Magistrate Judge erred in
finding that the ALJ provided good reasons for rejecting Plaintiff’s treating physician’s opinion
regarding his adult disability claim. Specifically, Plaintiff argues that the ALJ failed to provide
good reasons for discrediting Dr. Spencer’s opinion regarding Plaintiff’s ability to respond to
stress, complete tasks, and minimize absences. Plaintiff contends that the explanation cited by
the ALJ and the Magistrate is insufficient to contradict Dr. Spencer’s opinion. The Court agrees.
Two related rules govern how an ALJ is required to analyze a treating physician’s
opinion. Dixon v. Comm’r of Soc. Sec., No. 3:14-cv-478, 2016 WL 860695, at *4 (S.D. Ohio
Mar. 7, 2016). The first is the “treating physician rule.” Id. The rule requires an ALJ to “give
controlling weight to ‘a treating source’s opinion on the issue(s) of the nature and severity of [the
claimant’s] impairment(s)’ if the opinion ‘is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in
[the] case record.’” LaRiccia v. Comm’r of Soc. Sec., 549 Fed. Appx. 377, 384 (6th Cir. 2013)
(quoting 20 C.F.R. § 404.1527(c)(2)).
13
Closely associated is “the good reasons rule,” which requires an ALJ “always give good
reasons . . . for the weight given to the claimant’s treating source’s opinion.” Dixon, 2016 WL
860695, at *4 (internal quotations omitted); Friend v. Comm’r of Soc. Sec., 375 Fed. Appx. 543,
550–51 (6th Cir. 2010); 20 C.F.R. § 404.1527(c)(2). In order to meet the “good reasons”
standard, the ALJ’s determination “must be sufficiently specific to make clear to any subsequent
reviewers the weight the adjudicator gave to the treating source’s medical opinion and the
reasons for that weight.” Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011) (internal quotations
omitted).
The requirement of reason-giving exists, in part, to let claimants understand the
disposition of their cases, particularly in situations where a claimant knows that his
physician has deemed him disabled and therefore might be especially bewildered
when told by an administrative bureaucracy that she is not, unless some reason for
the agency’s decision is supplied. The requirement also ensures that the ALJ applies
the treating physician rule and permits meaningful review of the ALJ’s application
of the rule.
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (internal citation and quotation
marks omitted). The treating physician rule and the good reasons rule together create what has
been referred to as the “two-step analysis created by the Sixth Circuit.” Allums v. Comm’r of Soc.
Sec., 975 F. Supp. 2d 823, 832 (N.D. Ohio 2013). Remand may be appropriate when an ALJ fails
to provide adequate reasons explaining the weight assigned to the treating physician’s opinion,
“even though substantial evidence otherwise supports the decision of the Commissioner.”
Kalmbach v. Comm’r of Soc. Sec., 409 Fed Appx. 852, 860 (6th Cir. 2011) (internal quotations
omitted); Bernola v. Comm’r. of Soc. Sec., 127 F. Supp. 3d 857, 862 (N.D. Ohio 2015).
In failing to give Dr. Spencer’s opinion that Plaintiff would likely deteriorate under
stress, be distracted from completing tasks, or be likely to have excessive absences, controlling
weight or even significant weight, the ALJ cites: “the above-summarized treatment record and
14
reported activities of living are not consistent with the alleged intensity of symptoms and
limitations” and “the above-summarized record does not document significant, persistent
ongoing deficits.” (R. at 1462–63). However, these reasons are not sufficient to disregard a
treating physician’s opinion. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 246 (6th Cir. 2007)
(holding that the ALJ’s statement that “the record does not support the limitations of the severity
suggested by Dr. Stein,” was insufficient to explain why the treating physician’s opinion was not
given controlling weight); Hale v. Comm’r of Soc. Sec., 307 F. Supp. 3d 785, 794 (S.D. Ohio
2017) (finding that the ALJ’s conclusory statement that the treating physician’s opinion was not
“well supported by medically acceptable clinical and laboratory diagnostic techniques nor
consistent with other substantial evidence in the case record” was too ambiguous). The ALJ must
identify the specific evidence in the record that supports a finding that a treating physician’s
opinion was inconsistent with other substantial evidence in the record and apply the factors listed
in 20 C.F.R. § 404.1527(c)(2)—length of the treatment relationship, frequency of the
examination, nature and extent of the treatment relationship, supportability of the medical
source, consistency of the medical opinion, specialization of the treating physician, and other
important factors. 5 Hensley v. Astrue, 573 F.3d 263, 266 (6th Cir. 2009). Moreover, the fact that
Dr. Spencer is “not a mental health professional,” is only one factor to be considered when
weighing the opinion of a treating physician. Jackson v. Comm’r of Soc. Sec., 989 F. Supp. 2d
657, 669 (S.D. Ohio Sep. 23, 2013). This alone does not provide a good reason for failing to give
Dr. Spencer’s opinion controlling weight, particularly where Dr. Spencer’s opinion at issue is
5
Effective for claims filed after March 27, 2017, the Social Security Administration’s
new regulations alter the treating physician rule in a number of ways. See 20 C.F.R. §§ 404.1527,
416.927 (2016).
15
based on Plaintiff’s mental and physical impairments.
While the Magistrate Judge cites the ALJ’s findings that “Plaintiff had graduated from
high school and was feeling better, that he was not experiencing distress, that he had been the
primary caregiver for his grandfather, and that he was actively seeking work” (R&R, 29), as
possible examples of inconsistencies in the record, the Court agrees with Plaintiff that without
further explanation, these are not “good reasons” to reject Dr. Spencer’s opinion, or even reasons
contrary to Dr. Spencer’s opinion. Plaintiff testified that while he graduated high school, he
missed so much school due to his ailments that he had to attend summer school and was almost
held back. (R. at 1487). While Plaintiff sometimes reported feeling better, he also reported to Dr.
Spencer in January 2016 that he was “doing badly” and “staying in bed all day” due to the pain
he was experiencing. (Id. at 2110). Although Plaintiff did testify that he acted as one of his
grandfather’s primary caregivers, this only lasted for approximately one month and he had to call
his mom to come home to help him. (Id. at 1495–96). Finally, while Dr. Spencer reported that
Plaintiff had been looking for work since his grandfather’s death, Plaintiff testified that one of
the reasons he had to leave the only (part-time) job he ever held was because he took too much
time off due to his pain. (Id. at 1491–92). See Smith v. Comm’r of Soc. Sec., No. 1:11-CV-2313,
2013 WL 943874, at *6 (N.D. Ohio Mar. 11, 2013) (“It is generally recognized that an ALJ may
not cherry-pick facts to support a finding of non-disability while ignoring evidence that points to
a disability finding.”) (internal quotations omitted)). VE Hall acknowledged that “anything more
than one day off per month would be work preclusive, up to four to five times per year.” (Id. at
1498–99).
In formulating Plaintiff’s RFC, the ALJ failed to discuss what specific portions of the
treatment record and reported activities of living supported discounting Dr. Spencer’s opinion
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that Plaintiff’s condition would likely deteriorate under stress, he would be distracted from
completing tasks, and he would have excessive absences from work. “The lack of explanation
and ambiguity in the ALJ’s critique hinders meaningful review by this Court.” Carter v. Comm’r
of Soc. Sec., 137 F. Supp. 3d 998, 1007 (S.D. Ohio 2015); see also Gayheart v. Comm’r of Soc.
Sec., 710 F.3d 365, 377 (6th Cir. 2013) (“The failure to provide ‘good reasons’ for not giving
[the treating doctor’s] opinions controlling weight hinders a meaningful review of whether the
ALJ properly applied the treating-physician rule that is at the heart of this regulation.”). Finding
that the ALJ did not provide “good reasons” for failing to give Dr. Spencer’s opinion controlling
weight, this error requires reversal. See Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004)
(“We do not hesitate to remand when the Commissioner has not provided ‘good reasons’ for the
weight given to a treating physician[’s] opinion and we will continue remanding when we
encounter opinions from ALJ[s] that do not comprehensively set forth the reasons for the weight
assigned to a treating physician’s opinion.”); Wisecup v. Astrue, No. 3:10CV00325, 2011 WL
3353870, at *8 (S.D. Ohio July 15, 2011) (finding that remand was warranted where the ALJ did
not identify the medical evidence that he found inconsistent with the treating physician’s
opinion).
The Court further concludes that the ALJ’s failure to give good reasons for rejecting the
opinion of Dr. Spencer does not constitute de minimis or harmless error. Wilson v. Comm’r of
Soc. Sec., 378 F.3d 541, 547 (6th Cir. 2004). De minimis or harmless error occurs: (1) if a
treating source’s opinion is so patently deficient that the Commissioner could not possibly credit
it; (2) if the Commissioner adopts the opinion of the treating source or makes findings consistent
with the opinion; or (3) where the Commissioner has met the goal of the procedural safeguard of
the good reasons rule even though an ALJ has not complied with the express terms of the
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regulation. Id. None of those factors applies here. Consequently, there is no basis for finding
harmless error.
IV.
CONCLUSION
Based upon the foregoing, and pursuant to Rule 72(b) of the Federal Rules of Civil
Procedure, after a de novo determination of the record, this Court concludes that Plaintiff’s
Objection to the Report and Recommendation of the Magistrate Judge has merit. The Court,
therefore, SUSTAINS Plaintiff’s Objection (ECF No. 20).
As to Plaintiff’s first assignment of error (ECF No. 11), the Court ADOPTS the
Magistrate Judge’s R&R (ECF No. 19) and AFFIRMS the Commissioner’s decision. As to
Plaintiff’s second assignment of error (ECF No. 11), the Court REJECTS the Magistrate
Judge’s R&R (ECF No. 19) and REVERSES the Commissioner’s decision. This matter is
REMANDED to the Commissioner under the Fourth Sentence of 42 U.S.C. § 405(g) for
proceedings consistent with this Opinion.
IT IS SO ORDERED.
/s/ Sarah D. Morrison
SARAH D. MORRISON
UNITED STATES DISTRICT JUDGE
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