Smith v. Commissioner of Social Security

Filing 16

ORDER THAT: (1) THE ALJ'S NON-DISABILITY FINDING IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, AND IS REVERSED; (2) THIS MATTER IS REMANDED TO THE ALJ UNDER THE FOURTH SENTENCE OF 42 U.S.C. § 405(g); AND (3) THIS CASE IS CLOSED. Signed by Judge Timothy S. Black on 4/9/12. (mr1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
JERMAINE SMITH,
Plaintiff,
vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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Case No. 3:11-cv-221
Judge Timothy S. Black

ORDER THAT: (1) THE ALJ’S NON-DISABILITY FINDING IS FOUND NOT
SUPPORTED BY SUBSTANTIAL EVIDENCE, AND IS REVERSED; (2) THIS
MATTER IS REMANDED TO THE ALJ UNDER THE FOURTH SENTENCE OF
42 U.S.C. § 405(g); AND (3) THIS CASE IS CLOSED
This is a Social Security disability benefits appeal. At issue is whether the
administrative law judge (“ALJ”) erred in finding the Plaintiff “not disabled” and
therefore unentitled to disability insurance benefits (“DIB”) and Supplemental Security
Income (“SSI”). (See Administrative Transcript (“Tr.”) (Tr. 12-22) (ALJ’s decision)).
I.
On January 8, 2007, Plaintiff applied for DIB and SSI, asserting that he was
disabled and could no longer work beginning March 1, 2005, because of kidney failure,
hypertension, and congestive heart failure. (Tr. 163-170; 120-24, 125-27, 143).
Plaintiff’s applications were denied initially and upon reconsideration. (Tr. 114-126).
Plaintiff timely requested a hearing before an ALJ. (Tr. 127-128).
A hearing was held on March 31, 2010, where Plaintiff appeared with his attorney
and testified. An impartial vocational expert also appeared and testified. At the time of

the hearing, Plaintiff amended his alleged onset date to April 21, 2006. (Tr. 74). The
ALJ denied Plaintiff’s claim via written decision dated April 23, 2010. (Tr. 49-67).
Following a timely filed request for review, the Appeals Council declined to review the
ALJ’s decision. (Tr. 41-43; 46-47).
At the time of Plaintiff’s hearing before the ALJ, he was considered a “younger
person” for Social Security purposes at age 37. See 20 C.F.R. §§ 404.1563(c);
416.963(c). Plaintiff graduated from high school (Tr. 73) and his prior employment
history encompasses a variety of positions including work as a commercial cleaner, a
delivery driver, a mail handler, an inspector, a dough mixer, and a bench assembler. (Tr.
100).
The ALJ’s “Findings,” which represent the rationale of his decision, were as
follows:
1.

The claimant meets the insured status requirements of the Social
Security Act through June 30, 2010.

2.

The claimant has not engaged in substantial gainful activity since March 1,
2005, the alleged disability onset date (20 CFR 404.1571 et seq., and
416.971 et seq.).

3.

The claimant has the following severe impairments: (1) infrequent chest
pain with a history of congestive heart failure; (2) chronic right sided pain
with a history of kidney disease, and; (3) hypertension (20 CFR 404.1520(c)
and 416.920(c)).

4.

The claimant does not have an impairment or combination of impairments
that meets or medically equals one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925 and 416.926).
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5.

After careful consideration of the entire record, the undersigned finds that
the claimant has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b) subject to the following
limitations: no climbing of ropes, ladders, or scaffolds; no repetitive
bending or twisting at the waist; no exposure to hazards; no exposure to
temperature or humidity extremes; no work requiring maintaining
concentration on a single task for longer than 15 minutes at a time; and no
lifting more than 10 pounds.

6.

The claimant is unable to perform any past relevant work (30 CFR
404.1565 and 416.965).

7.

The claimant was born on May 26, 1972, and was 32 years old, which is
defined as a ‘younger individual age 18-49,” on the alleged disability onset
date (20 CFR 404.1563 and 416.963).

8.

The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964).

9.

Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a
finding that the claimant is “not disabled,” whether or not he has
transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P,
Appendix 2).

10.

Considering his age, education, work experience, and residual functional
capacity, there are jobs that exist in significant numbers in the national
economy that the claimant can perform (20 CFR 404.1569, 404.1569(a),
416.969, and 416.969(a)).

11.

The claimant has not been under a disability, as defined in the Social
Security Act, from March 1, 2005, through the date of this decision (20
CFR 404.1520(g) and 416.920(g)).

(Tr. 14-22).

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In sum, the ALJ concluded that Plaintiff was not under a disability as defined by
the Social Security Regulations and was therefore not entitled to DIB or SSI. (Tr. 22).
On appeal, Plaintiff argues that: (1) the ALJ erred in failing to identify all of
Plaintiff’s severe impairments; (2) the ALJ failed to apply the correct legal criteria to the
opinions of Plaintiff’s treating physician; (3) the ALJ’s findings regarding Plaintiff’s high
blood pressure are not supported by the record; (4) the ALJ failed to consider all of
Plaintiff’s symptoms in crafting the assigned residual functional capacity (“RFC”);1 and
(5) the ALJ failed to properly assess Plaintiff’s credibility. The Court will address each
argument in turn.
II.
The Court’s inquiry on appeal is to determine whether the ALJ’s non-disability
finding is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is
“such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). In performing this
review, the Court considers the record as a whole. Hephner v. Mathews, 574 F.2d 359,
362 (6th Cir. 1978). If substantial evidence supports the ALJ’s denial of benefits, that
finding must be affirmed, even if substantial evidence also exists in the record upon
which the ALJ could have found plaintiff disabled. As the Sixth Circuit has explained:

1

The Agency defines RFC as “the most you can still do despite your limitations.” 20
C.F.R. § 404.1545(a)(1).
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“The Commissioner’s findings are not subject to reversal
merely because substantial evidence exists in the record to
support a different conclusion. The substantial evidence
standard presupposes that there is a “zone of choice” within
which the Commissioner may proceed without interference
from the courts. If the Commissioner’s decision is
supported by substantial evidence, a reviewing court must
affirm.”
Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994).
The claimant bears the ultimate burden to prove by sufficient evidence that he is
entitled to disability benefits. 20 C.F.R. § 404.1512(a). That is, he must present
sufficient evidence to show that, during the relevant time period, she suffered an
impairment, or combination of impairments, expected to last at least twelve months, that
left him unable to perform any job in the national economy. 42 U.S.C. § 423(d)(1)(A).
A.
The record reflects that:
1.

Plaintiff’s testimony

Plaintiff testified to experiencing a variety of problems related to his hypertension,
his history of congestive heart failure, his kidney disease, his low back pain, and his
depression. He described having elevated blood pressure, even when on medication, and
experiencing sharp chest pains at least twice per month. (Tr. 75, 93). Plaintiff alleged
that his high blood pressure results in dizziness upon standing and that he experiences
anxiety and depression resulting in panic attacks. (Tr. 76, 79-80).
Plaintiff also suffers from severe pain because of bulging discs in his back. (Tr.
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77). He described this as a constant pain which radiates into his right side. (Tr. 83). On
a scale from one to ten, Plaintiff stated that his back pain was a nine. (Tr. 83). Plaintiff’s
kidney disease limits the pain medications available to him, but he intends to try epidural
steroid injections to help reduce his back pain. (Tr. 78, 84). Due to his back pain,
Plaintiff is most comfortable lying down and can only lift five to ten pounds. (Tr. 84, 86).
Plaintiff’s back pain makes it difficult for him to dress himself. (Tr. 90).
Plaintiff described constant fatigue stemming from a variety of sources including
his elevated blood pressure, his kidney disease, and even the sedating effect of his
medications. (Tr. 76, 81). As a result of fatigue, Plaintiff can walk for only one block
and stand for only twenty minutes. (Tr. 85). He also naps for as long as six hours every
day. (Tr. 91, 94). He becomes fatigued when performing household chores and needs to
rest. (Tr. 96). Plaintiff’s fatigue also hinders his concentration to such an extent that he
has difficulty watching the news or reading. (Tr. 79, 95).
2.

Medical evidence of record

In December 2006, Plaintiff was admitted to the Miami Valley Hospital intensive
care unit as the result of a hypertensive emergency. (Tr. 252). His blood pressure was
recorded at 235/150 and an echocardiogram revealed an ejection fraction of 35%. Id. He
was diagnosed with congestive heart failure, chronic kidney disease, uncontrolled
hypertension, and cocaine abuse. Id.
From April 2006 through 2007, Plaintiff received treatment through the Miami
Valley Hospital Medical Surgical Clinic. (Tr. 334-345 & 356-375). Despite multiple
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medications, Plaintiff’s blood pressure remained troublingly high. Id.
On March 13, 2007, Plaintiff had a consultation with Dr. Aduafo who diagnosed
Plaintiff with stage III kidney disease2 and noted that his hypertension was likely
secondary to his kidney problem. (Tr. 304). A left kidney biopsy was performed July 16,
2007 which revealed advanced chronic renal injury with prominent obliterative vascular
changes and severe segmental glomerular sclerosis. (Tr. 346-349). Plaintiff continued
treating with Dr. Aduafo . (Tr. 407-410). In September of 2007, Dr. Aduafo explained to
Plaintiff that the back pain he had been feeling since his accident in April of 2007 was
likely not caused by his kidney problem. (Tr. 408).
In June 2008, Plaintiff sought a second opinion for his kidney problems and met
with Dr. Mark Oxman. (Tr. 411-413). Dr. Oxman recorded Plaintiff’s blood pressure as
170/130 and agreed with the diagnoses of uncontrolled hypertension and renal disease.
Id. Further, Dr. Oxman believed Plaintiff may have been suffering from a chronic pain
syndrome. (Tr. 413).
In an attempt to find the cause for Plaintiff’s back pain, a lumbar MRI was
performed on August 26, 2008. (Tr. 420-421). The MRI revealed a moderate disc bulge

2

The National Kidney Foundation (“NKF”) created a guideline to help doctors identify
each level of kidney disease. The NKF divided kidney disease into five stages. Glomerular
filtration rate (“GFR”) is the best measure of kidney function. The GFR is the number used to
figure out a person’s stage of kidney disease. A math formula using the person’s age, race,
gender, and their serum creatinine is used to calculate GFR. A person with Stage III kidney
disease has kidney damage with moderate decrease in the GFR. In Stage III, a person is more
likely to develop complications of kidney disease such as high blood pressure, anemia, and/or
early bone disease.
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and a central disc protrusion at L5-S1 with mild narrowing of the central canal and mild
to moderate narrowing of the neural foramina. Id. There were also mild disc bulges at
multiple other levels and mild facet disease throughout Plaintiff’s lumbar spine. Id.
Shortly after the lumbar MRI, an echocardiogram was performed which
demonstrated moderate to marked concentric left ventricular hypertrophy,3 a mildly
dilated aortic root,4 and evidence of both decreased ventricular compliance and
regurgitation. (Tr. 422-423). A colonoscopy was also performed revealing a hiatal
hernia5 and small internal hemorrhoids. (Tr. 324-325).
In September 2008, Plaintiff began treating with cardiologist Dr. Timothy Markus.
(Tr. 436). Dr. Markus noted that Plaintiff’s review of systems was positive for joint
stiffness in his back, dizziness, headaches, anxiety, depression, and increased fatigue.
(Tr. 437, 432). He also recorded elevated blood pressure readings. (Tr. 431, 436).
Plaintiff then briefly saw Dr. Ahmad Abouhossein who found that Plaintiff was not
suffering from any appreciable urinary problems. (Tr. 440-443).
In October 2008, Plaintiff sought mental health treatment through Samaritan

3

Ventricular hypertrophy is the increase in size of the ventricles of the heart and is
generally associated with pathological changes due to high blood pressure or other disease states.
4

A dilated aortic root reflects a swelling of the aorta, usually representing an underlying
weakness in the wall of the aorta.
5

Hiatal hernia is a condition in which part of the stomach sticks upward into the chest,
through an opening in the diaphragm. The diaphragm is the sheet of muscle that separates the
chest from the abdomen, which is used in breathing and can cause chest pain.
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Behavioral Health which he continued through March of 2009. (Tr. 446-462). Plaintiff
was noted to experience persecutory delusions6 and his mood was depressed. (Tr. 462).
Plaintiff reported symptoms including feelings of sadness, anxiety, rapid thoughts,
restlessness, chest tightening, poor concentration, and easy distractibility. (Tr. 458, 460).
Plaintiff was diagnosed with a depressive disorder and was assigned a Global Assessment
of Functioning (“GAF”) score of 55.7 (Tr. 446).
On November 10, 2008, Plaintiff visited with neurosurgeon Dr. Cynthia Africk.
(Tr. 444-45). Plaintiff reported numbness and tingling down his right side and constant
pain in his right flank. (Tr. 444). Though Dr. Africk did not see the need for back
surgery, she did suggest that Plaintiff receive physical therapy and steroid injections. (Tr.
445). Plaintiff then began pain management treatment through Dr. Bruce Kay. (Tr. 46367).
In 2008, Plaintiff also started seeing Dr. Schear as his primary care physician. (Tr.
469-490). Dr. Schear’s blood pressure readings were consistently elevated. (Id.)
Largely, Dr. Schear simply managed Plaintiff’s medications, although he did record

6

Persecutory delusions are a delusional condition in which the affected person believes
they are being persecuted. Specifically, they have been defined as containing two central
elements: (1) the individual thinks that harm is occurring or is going to occur; and (2) the
individual thinks that the persecutor has the intention to cause harm.
7

The Global Assessment of Functioning is a numeric scale (0 through 100) used by
mental health clinicians and physicians to subjectively rate the social, occupational, and
psychological functioning of adults, e.g., how well or adaptively one is meeting various
problems-in-living. A score of 51-60 indicates moderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational,
or school functioning (e.g., few friends, conflicts with peers or co-workers).
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symptoms including Plaintiff’s back pain. (Tr. 482, 484). Dr. Schear continued to treat
Plaintiff through the date of his hearing. (Tr. 469).
In November 2009, Plaintiff returned to see both Dr. Oxman and Dr. Markus. Dr.
Oxman adjusted Plaintiff’s medication and noted fatigue, lower extremity swelling, and
elevated blood pressure. (Tr. 491). Dr. Markus recorded lightheadedness and back pain.
(Tr. 492). Dr. Markus’ review of systems remained positive for back stiffness, dizziness,
headaches, anxiety, depression, and fatigue. (Tr. 493).
3.

Non-treating source opinions

On April 4, 2007, clinical neuropsychologist Dr. Jerry Flexman examined Plaintiff.
(Tr. 307-310). Dr. Flexman noted that Plaintiff’s emotional state was depressed and that
he felt fatigued. (Tr. 307). Plaintiff maintained fair eye contact only 60% of the time and
was able to recall only three of six digits in reverse. (Tr. 308). Ultimately, Dr. Flexman
diagnosed Plaintiff with depression and an undifferentiated somatoform disorder.8 (Tr.
309). He assigned Plaintiff a GAF score of 60. (Id.) Despite assigning a GAF score
indicating the presence of moderate symptoms or impairment, Dr. Flexman opined that
Plaintiff would be only slightly limited in a number of vocationally significant functional
areas. (Id.)
On April 18, 2007, state agency consultant Dr. Nancy McCarthy reviewed the
psychological evidence of record and opined that Plaintiff’s mental impairments were not

8

A somatoform disorder is a mental disorder characterized by physical symptoms that
suggest physical illness or injury – symptoms that cannot be explained fully by a general medical
condition, direct effect of a substance, or attributable to another mental disorder.
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severe. (Tr. 312). On August 30, 2007, the state agency instructed Dr. Karen StaileySteiger to affirm Dr. McCarthy’s assessment. (Tr. 352). She followed that instruction on
September 6, 2007. (Tr. 353).
On April 20, 2007, Dr. Dimitri Teague reviewed Plaintiff’s medical records. (Tr.
326-333). Dr. Teague opined that Plaintiff could perform work requiring medium
exertion. (Tr. 327-330). Another agency reviewer, Dr. Myung Cho, affirmed Dr.
Teague’s assessment five months later. (Tr. 354).
4.

Treating source opinions

On August 29, 2007, Dr. Shobhana Gaur, one of Plaintiff’s treating physicians
from the Miami Valley Medical Surgical Clinic, completed a form outlining Plaintiff’s
limitations. (Tr. 350-351). She recorded a blood pressure reading of 240-140 and opined
that Plaintiff could stand, sit, or walk a combined total of only four hours in an eight hour
work day. (Id.) She further opined that Plaintiff is “extremely limited” in his ability to
push, pull, bend, reach, handle, and engage in repetitive foot movements. (Tr. 351).
Ultimately, Dr. Gaur opined that Plaintiff is “unemployable.” (Id.)
B.
First, Plaintiff alleges that the ALJ erred in failing to identify all of his severe
impairments. Specifically, the Plaintiff takes issue with the fact that the ALJ determined
that Plaintiff’s back pain and depression were “not severe.” (Tr. 55).
The ALJ must determine whether or not a claimant has medically determinable
impairments that are “severe’ or a combination of impairments that is “severe.” 20
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C.F.R. § 416.920(c). An impairment is “not severe” if it is a slight abnormality that has
no more than a minimal effect on the ability to do basic work activities. SSR 96-3p.
An August 2008 MRI of Plaintiff’s lumbar spine revealed facet disease and disc
bulges across multiple levels, most severe at L5-S1. (Tr. 374-75). The radiologist stated
that the minimal disc bulges “did not contribute to significant discopathy.” (Tr. 375). He
indicated that at L5-S1, there was “moderate disc bulge” with mild narrowing of the
neural foramina. As the ALJ pointed out, in November 2008, Dr. Africk of the Ohio
Neurosurgical Institute saw Plaintiff and stated that she did not think that his complaints
of constant pain over the right flank were related to the MRI findings, in particular, the
degenerated disk at L5-S1. (Tr. 398-99). Dr. Africk stated that the MRI did not show
much trouble in terms of the nerves at that point – only mild narrowing of the foramen.
(Tr. 399). Plaintiff argues that the fact that Dr. Africk recommended physical therapy and
steroid injections (Tr. 399) undermines the ALJ’s reliance on her findings. (Doc. 8 at 9).
However, Dr. Africk specifically stated that Plaintiff needed to get into better shape, for
which she recommended walking and swimming as well as some therapy and steroid
injections. (Tr. 499). These facts do not support a finding that Plaintiff had a severe
lumbar impairment.
With regard to Plaintiff’s depression, the record contains 17 pages of mental health
treatment records from Samaritan Behavioral Health. (Tr. 446-462). The records do in
fact reflect that Plaintiff experienced depressive and anxiety related symptoms. However,
Samaritan Behavioral Health assigned Plaintiff a GAF score of 55, which indicates only
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moderate difficulties. While there is no specific reference in the ALJ’s decision to the
Samaritan Behavioral Health records, the records do not support a finding that Plaintiff’s
depression prevents him from performing basic work activities. There is no evidence that
Plaintiff has anything other than minor limitations in daily activities, social functioning,
concentration, persistence or pace, and he has had no episodes of decompensation of
extended duration. (Tr. 15-16). See also 20 C.F.R. § 404.1520(a)(1). Moreover, Plaintiff
testified that he is not taking any medication for depression, and is not receiving any
counseling.
Accordingly, there is no evidence to support a finding that Plaintiff’s back pain or
depression constituted “severe” impairments.
C.
Next, Plaintiff alleges that the ALJ erred in failing to apply the correct legal
criteria to the opinions of Plaintiff’s treating physician, Dr. Gaur. Greater deference is
generally given to the opinions of treating medical sources than to the opinions of nontreating medical sources. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir.
2007).
In his decision, the ALJ references a “basic medical form for the Ohio Department
of Job and Family Services.” (Tr. 59, 350-51). The ALJ affords no weight to the
opinions in that form because he finds that the conclusion that Plaintiff is “unemployable”
lacks support and is inconsistent with the record as a whole. Id. This form, Exhibit 12F,

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was completed by Dr. Gaur. (Tr. 350-51). Dr. Gaur’s treatment records9 do in fact refute
the ALJ’s finding that there “was no testing or exam performed” related to the completion
of Exhibit 12F.10 (Tr. 59, 336, 338-339, 341-43).11
Additionally, the ALJ failed to apply the treating source rule. See 20 C.F.R.
§ 404.1527(d)(3) (“Supportability. The more a medical source presents relevant evidence
to support an opinion, particularly medical signs and laboratory findings, the more weight
we will give that opinion. The better an explanation a source provides for an opinion, the
more weight we will give that opinion.”). The Commissioner argues that it was not
required to apply the treating source rule because the opinion was conclusory. (Tr. 19).
However, Dr. Gaur’s opinion is not a broad conclusory statement that Plaintiff is
disabled, rather it contains specific functional evaluations regarding Plaintiff’s ability to
sit, stand, lift, and perform eight separate work related physical functions. (Tr. 350-51).
The opinion also indicates the conditions upon which it is based, and contains readings of
claimant’s blood pressure, bun, and creatine levels. (Tr. 350).
If the ALJ determines that Dr. Gaur’s opinion should not be given controlling
weight, despite the medical evidence in support, “the ALJ must still determine how much

9

The records from Miami Valley Medical Surgical Clinic show that Plaintiff was seen
regularly in 2006 and 2007, often by Dr. Gaur. (Tr. 310-60).
10

Additionally, the ALJ’s assertion that there was “no testing” is also refuted on the
face of the document by the blood pressure reading of 240/140 on the form’s first page. (Tr.
350).
11

It is unclear from the record whether the ALJ knew that Exhibit 12F was completed
by Dr. Gaur.
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weight is appropriate by considering a number of factors, including the length of the
treatment relationship, supportability of the opinion, consistency of the opinion with the
record as a whole, and any specialization of the treating physician.” Blakley v. Comm’r of
Soc. Sec., 582 F.3d 399, 406 (6th Cir. 2009).
Accordingly, the fact that the ALJ refused to offer any weight to Exhibit 12F
because it was conclusory is not supported by the record. Additionally, the ALJ failed to
address why Dr. Guar’s opinion should not be given controlling weight, as required by the
regulations. 20 C.F.R. § 404.1527(d)(2).
D.
Next, Plaintiff alleges that the ALJ’s findings regarding his high blood pressure 12
are not supported by the record.
The ALJ found that hypertension is one of Plaintiff’s severe impairments, but he
limited the impact of hypertension by finding that it was “stable” or “under control.” (Tr.
54, 58). However, the ALJ focused on one isolated blood pressure reading of 126/90 in
November 2009. (Tr. 447).
The record clearly contradicts even a limited finding that Plaintiff’s blood pressure
was under control in November 2009. Despite Defendant’s argument otherwise, this
Court finds that the ALJ applied the “under control” finding to the entire period of
disability and failed to issue separate residual functional capacity findings before or after

12

Normal blood pressure in adults is less than 120/80. The Merck Manual of
Diagnosis and Therapy, sec. 7 chap. 71 (18th ed. 2006).
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November 2009. Instead, the ALJ crafted a single residual functional capacity that
discounts the severity of Plaintiff’s symptoms on the contention that his blood pressure
had “stabilized.” In fact, blood pressure readings in Exhibits 27F and 28F postdate those
in Exhibit 30F. A blood pressure reading from November 6, 2009, just three days after
Plaintiff’s blood pressure supposedly “stabilized,” was 158/109. (Tr. 463). There are
also readings from February 2010 at 162/90 and March 2010 at 132/80. (Tr. 470). In
fact, the November 2009 reading is the second lowest measure of over forty blood
pressure recordings in the record since Plaintiff’s onset date. (See Doc. 8 at 13).
Accordingly, the ALJ improperly singled out the November 3, 2009 reading, and
ignored a series of elevated blood pressure readings, failing to consider the record as a
whole. Therefore, the ALJ’s finding regarding Plaintiff’s hypertension is not supported
by the record.
E.
Next, Plaintiff alleges that the ALJ failed to consider all of Plaintiff’s symptoms in
crafting the assigned residual functional capacity. Where a claimant establishes the
existence of a medically determinable impairment which could reasonably be expected to
produce an alleged symptom, an ALJ must consider the effect of that symptom on the
claimant’s ability to work. 20 C.F.R. § 404.1529(a)-(b). An ALJ may not reject a
Plaintiff’s statements as to the intensity, persistence, or limiting effects of a symptom
solely because objective medical evidence does not substantiate those statements. 20
C.F.R. § 404.1529(c)(2).
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Here, the primary disabling symptom Plaintiff alleged is fatigue. Plaintiff testified
that this fatigue limits his walking and standing and hinders his ability to complete
household chores and maintain concentration and causes him to sleep for as long as six
hours during the day. (Tr. 85, 96). Plaintiff testified that he was fatigued all of the time
due to his hypertension. (Tr. 36). He also testified that his medications caused
drowsiness and sleepiness, although less so than when he first started taking them. (Tr.
41). He testified that he could not walk more than a block or stand for more than 20
minutes because he became fatigued. (Tr. 45).
Plaintiff has established a number of objective sources for his subjective
complaints of fatigue. For example, the ALJ found that Plaintiff suffers from a history of
congestive heart failure and kidney disease. (Tr. 54). The ALJ also acknowledged
hypertension as one of Plaintiff’s severe impairments. (Id.) Furthermore, the Plaintiff
attributes some of his drowsiness and sleepiness to the sedating effects of his
medications, an observation echoed by Dr. Oxman. (Tr. 81, 491).
As Plaintiff established medically discernable impairments which could reasonably
be expected to produce his fatigue, the ALJ was required to consider the effect of the
symptom of fatigue on Plaintiff’s ability to work. 20 C.F.R. § 404.1529(a)-(b). This
Court was unable to identify any discussion or analysis of this symptom in the ALJ’s
decision.13 Accordingly, the ALJ failed to consider the effect of Plaintiff’s fatigue as

13

The Court declines to infer such an analysis in the ALJ’s decision based on the
ALJ’s limitation of “no work requiring concentration on a single task for longer than 15 minutes
at a time.” (Doc. 13 at 536-37).
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required pursuant to 20 C.F.R. § 404.1529(a)(b).
F.
Finally, Plaintiff maintains that the ALJ failed to properly assess his credibility.
Throughout his decision, the ALJ notes Plaintiff’s wide range of activities, his
socialization, and ability to concentrate. (Tr. 18). Specifically, Plaintiff stated in an April
2007 consultative examination that he prepared food throughout the day; did dishes,
laundry, dusting and other housework; took out the trash and shopped; and visited with
friends and family. (Tr. 15, referring to Tr. 262-63). At that examination, Plaintiff also
reported reading books, magazines, and newspapers, handling his own finances, drawing
as a hobby, and going places with friends. (Tr. 263).
Moreover, the Sixth Circuit accords great deference to an ALJ’s credibility
assessment, particularly because the ALJ has the opportunity to observe the demeanor of
a witness while testifying. Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th Cir.
2003). It is not the province of the reviewing court to “try the case de novo, nor resolve
conflicts in the evidence, nor decide questions of credibility.” Walters v. Comm’r of Soc.
Sec., 127 F.3d 525, 528 (6th Cir. 1997).
III.
A sentence four remand provides the required relief in cases where there is
insufficient evidence in the record to support the Commissioner's conclusions and further
fact-finding is necessary. See Faucher v. Sec’y of Health & Human Servs., 17 F.3d 171,
174 (6th Cir. 1994) (citations omitted). In a sentence four remand, the Court makes a
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final judgment on the Commissioner’s decision and “may order the Secretary to consider
evidence on remand to remedy a defect in the original proceedings, a defect which caused
the Secretary’s misapplication of the regulations in the first place.” Faucher, 17 F.3d at
175. “It is well established that the party seeking remand bears the burden of showing
that a remand is proper under Section 405.” Culbertson v. Barnhart, 214 F. Supp. 2d 788,
795 (N.D. Ohio 2002) (quoting Willis v. Sec’y of Health & Human Servs., 727 F.2d 551
(6th Cir. 1984)).
IV.
Based upon the foregoing, the Court concludes that remand is appropriate in this
matter because there is insufficient evidence to support the ALJ’s decision.
IT IS THEREFORE ORDERED that the decision of the Commissioner to deny
Jermaine Smith benefits be and is REVERSED, and this matter be and is REMANDED
under sentence four of 42 U.S.C. § 405(g).
On remand, the Commissioner shall: (1) reconsider Dr. Gaur’s findings as a
treating physician, and address the requirements of 20 C.F.R. § 404.1527(d)(2) if
rejecting Dr. Gaur’s findings; (2) obtain testimony from a medical expert regarding
Plaintiff’s blood pressure readings; (3) evaluate the entire record of blood pressure
readings when assessing the impact of Plaintiff’s hypertension; (4) consider Plaintiff’s
fatigue, and expressly address any work limitations as a result; and (5) reassess Plaintiff’s
RFC.

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IT IS SO ORDERED.
Date: 4/9/12

s/ Timothy S. Black
Timothy S. Black
United States District Judge