Montgomery v. Commissioner of Social Security

Filing 12

REPORT AND RECOMMENDATIONS. It is respectfully recommended that the Commissioner's decision that Plaintiff is not disabled should be reversed and the case remanded to the Commissioner for further administrative proceedings. The Court notes that this is a fourth sentence remand. Objections to R&R due by 4/23/2012. Signed by Magistrate Judge Michael R Merz on 4/4/2012. (mdf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON

DONALD J. MONTGOMERY,

:
Case No. 3:11-cv-256

Plaintiff,
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz
-vsMICHAEL J. ASTRUE,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

:

REPORT AND RECOMMENDATIONS

Plaintiff brought this action pursuant to 42 U.S.C. §405(g) and 42 U.S.C. §1381(c)(3)
as it incorporates §405(g), for judicial review of the final decision of Defendant Commissioner of
Social Security (the "Commissioner") denying Plaintiff's application for Social Security benefits.
The case is now before the Court for decision after briefing by the parties directed to the record as
a whole.
Judicial review of the Commissioner's decision is limited in scope by the statute
which permits judicial review, 42 U.S.C. §405(g). The Court's sole function is to determine whether
the record as a whole contains substantial evidence to support the Commissioner's decision. The
Commissioner's findings must be affirmed if they are supported by "such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S.
389, 401 (1971), citing, Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); Landsaw v.
Secretary of Health and Human Services, 803 F.2d 211, 213 (6th Cir. 1986). Substantial evidence

is more than a mere scintilla, but only so much as would be required to prevent a directed verdict
(now judgment as a matter of law), against the Commissioner if this case were being tried to a jury.
Foster v. Bowen, 853 F.2d 483, 486 (6th Cir. 1988); NLRB v. Columbian Enameling & Stamping
Co., 306 U.S. 292, 300 (1939).
In deciding whether the Commissioner's findings are supported by substantial
evidence, the Court must consider the record as a whole. Hepner v. Mathews, 574 F.2d 359 (6th Cir.
1978); Houston v. Secretary of Health and Human Services, 736 F.2d 365 (6th Cir. 1984); Garner
v. Heckler, 745 F.2d 383 (6th Cir. 1984). However, the Court may not try the case de novo, resolve
conflicts in evidence, or decide questions of credibility. Garner, supra. If the Commissioner's
decision is supported by substantial evidence, it must be affirmed even if the Court as a trier of fact
would have arrived at a different conclusion. Elkins v. Secretary of Health and Human Services,
658 F.2d 437, 439 (6th Cir. 1981).
To qualify for disability insurance benefits (SSD), a claimant must meet certain
insured status requirements, be under age sixty-five, file an application for such benefits, and be
under a disability as defined in the Social Security Act, 42 U.S.C. § 423. To establish disability, a
claimant must prove that he or she suffers from a medically determinable physical or mental
impairment that can be expected to result in death or has lasted or can be expected to last for a
continuous period of not less than twelve months. 42 U.S.C. §423(d)(1)(A). Secondly, these
impairments must render the claimant unable to engage in the claimant's previous work or in any
other substantial gainful employment which exists in the national economy. 42 U.S.C. §423(d)(2).
To qualify for supplemental security benefits (SSI), a claimant must file an
application and be an "eligible individual" as defined in the Social Security Act. 42 U.S.C. §1381a.

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With respect to the present case, eligibility is dependent upon disability, income, and other financial
resources. 42 U.S.C. §1382(a). To establish disability, a claimant must show that the claimant is
suffering from a medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous period of not less than
twelve months. 42 U.S.C. §1382c(a)(A). A claimant must also show that the impairment precludes
performance of the claimant's former job or any other substantial gainful work which exists in the
national economy in significant numbers. 42 U.S.C. §1382c(a)(3)(B). Regardless of the actual or
alleged onset of disability, an SSI claimant is not entitled to SSI benefits prior to the date that the
claimant files an SSI application. See, 20 C.F.R. §416.335.
The Commissioner has established a sequential evaluation process for disability
determinations. 20 C.F.R. §404.1520. First, if the claimant is currently engaged in substantial
gainful activity, the claimant is found not disabled. Second, if the claimant is not presently engaged
in substantial gainful activity, the Commissioner determines if the claimant has a severe impairment
or impairments; if not, the claimant is found not disabled. Third, if the claimant has a severe
impairment, it is compared with the Listing of Impairments, 20 C.F.R. Subpart P, Appendix 1
(1990). If the impairment is listed or is medically equivalent to a listed impairment, the claimant is
found disabled and benefits are awarded. 20 C.F.R. §404.1520(d). Fourth, if the claimant's
impairments do not meet or equal a listed impairment, the Commissioner determines if the
impairments prevent the claimant from returning to his regular previous employment; if not, the
claimant is found not disabled. Fifth, if the claimant is unable to return to his regular previous
employment, he has established a prima facie case of disability and the burden of proof shifts to the
Commissioner to show that there is work which exists in significant numbers in the national

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economy which the claimant can perform. Bowen v. Yuckert, 482 U.S. 137, 145, n.5 (1987).
Plaintiff protectively filed applications for SSD and SSI in June, 2007, alleging
disability from April 2007 due to a herniated disc affecting his left leg. See, e.g., PageID 159-60;
191. The Commissioner denied Plaintiff’s application initially and on reconsideration. See PageID
76-81. Administrative Law Judge Janice Bruning held a hearing, PageID 55-74, and subsequently
determined that Plaintiff is not disabled. PageID 43-54. The Appeals Council denied Plaintiff’s
request for review, PageID 34-36, and Judge Bruning’s decision became the Commissioner’s final
decision. See Kyle v. Commissioner of Social Security, 609 F.3d 847, 854 (6th Cir. 2010).
In determining that Plaintiff is not disabled, Judge Bruning found that Plaintiff met
the insured status requirements of the Act through December 31, 2011. PageID 45, ¶ 1. Judge
Bruning also found that Plaintiff has severe degenerative disc disease of the cervical and lumbar
spines, obesity, and a contusion of the left shoulder, but that he does not have an impairment or
combination of impairments that meets or equals the Listings. Id., ¶¶ 3, 4. Judge Bruning found
further that Plaintiff has the residual functional capacity to perform a limited range of sedentary
work. PageID 46, ¶ 5. Judge Bruning then used section 201.21 of the Grid as a framework for
deciding, coupled with a vocational expert’s (VE) testimony, and concluded that there is a
significant number of jobs in the economy that Plaintiff is capable of performing. PageID 49, ¶ 10.
Judge Bruning concluded that Plaintiff is not disabled and therefore not entitled to benefits under
the Act. PageID 50.
The record contains a copy of Plaintiff’s treatment notes from Miami Valley Hospital
dated May 9 to July 12, 2007, and which reflect that Plaintiff underwent a series of bilateral L3-4,
L4-5, and L5-S1 facet injections for treatment of lumbar spinal stenosis and which Dr. Smith

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performed. PageID 264-85; 384-88.
The record contains a copy of treating physician Dr. Hubach’s office notes dated
November 11, 1997, to July 24, 2007. PageID 287-337. Those records reveal that Dr. Hubach
treated Plaintiff for various medical conditions and complaints including back pain, a knee
impairment, hyperlipidemia, myalgia, and arthralgias. Id. An April 2007 CT of Plaintiff’s lumbar
spine revealed multilevel degenerative disc disease and disc protrusion, most prominent at L4-L5
with a prominent left lateral recess component impinging the left L5 nerve root. Id. In June 2007
Dr. Hubach referred Plaintiff to Dr. Tigyer, an orthopedic surgeon, who determined that Plaintiff
had L4-5 and L5-S1 HNP and recommended Plaintiff pursue a formal course of physical therapy.
Id. In addition, Dr. Tigyer noted that Plaintiff wanted to schedule a microdiscectomy procedure.
Id.
Plaintiff consulted with orthopedist Dr. Urse in November, 2007, at which time Dr.
Urse reported that on January 22, 2007, Plaintiff had sustained a work-related injury to his left
shoulder and that examination revealed several abnormalities of the shoulder. PageID 367-69. Dr.
Urse also reported that Plaintiff had a left shoulder contusion with an AC joint sprain and rotator
cuff tendinopathy with subacromial impingement and he recommended an arthroscopic assisted left
rotator cuff debridement. Id.
A September 30, 2008, nerve conduction study was consistent with a C6-7
radiculopathy on the left, a bilateral carpal tunnel syndrome, and an ulnar nerve compression across
the elbow on the left side, and no evidence of a lumbosacral radiculopathy or a polyneuropathy.
PageID 391; 395.
The record contains a copy of treating physician Dr. Kay’s office notes dated January

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5 through November 13, 2009, which reveal that Dr. Kay provided Plaintiff with pain management
for his neck and back pain. PageID 408-59. Over time, Dr. Kay and his physician’s assistant noted
that Plaintiff was doing well with pain management, that he did not report any adverse effects from
his medications. Id. Dr. Kay and his physician’s assistant also reported over time that Plaintiff had
persistent back and left leg pain. Id. In September, 2009, Dr. Kay noted that Plaintiff’s clinical
signs were negative, but that he had had three failed lumbar epidural injections and that his MRI
revealed a moderate-to-large disk herniation on the left at L5-S1 and he recommended Plaintiff
consult with a neurosurgeon. Id.
The record contains a copy of Plaintiff’s treatment notes from Striebel Family
Practice, Inc., dated June 16, 2008, to December 4, 2009. PageID 462-532. Those notes reveal that
Dr. Striebel treated Plaintiff for various medical conditions and complaints including chest pain,
back pain, abnormal weight gain, hypertension, hyperlipidemia, metabolic syndrome, obesity,
thoracic or lumbosacral neuritis or radiculitis, urinary obstruction, diabetes mellitus, COPD, stage
I kidney disease, and obstructive sleep apnea. Id. In May, 2008, Dr. Striebel noted that Plaintiff was
68 inches tall, weighed 258 pounds, and had a body mass index (BMI) of 39.2. Id.
Dr. Kay reported on December 14, 2009, that Plaintiff was able to stand and walk
each for one hour total and for thirty to forty-five minutes at one time, sit for two hours and for one
hour at one time, lift up to ten pounds rarely, that he was not able to perform pulling and pushing
activities, and that his condition was likely to deteriorate under stress, particularly stress associated
with a job. PageID 535-36.
The record contains Plaintiff’s treatment notes dated June 17, 2008, through June 15,
2009, from Dayton Respiratory Center where Plaintiff received treatment from Dr. Patel for obesity,

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snoring, and sleep apnea-hypopnea syndrome. PageID 538-61.
Plaintiff alleges in his Statement of Specific Errors that the Commissioner erred by
failing to give controlling weight to Dr. Kay’s opinion, failing to find that he is disabled by a
combination of his impairments, and by failing to consider the effects of his obesity. (Doc. 8).
“In assessing the medical evidence supporting a claim for disability benefits, the ALJ
must adhere to certain standards.” Blakley v. Commissioner of Social Security, 581 F.3d 399, 406
(6th Cir. 2009). “One such standard, known as the treating physician rule, requires the ALJ to
generally give greater deference to the opinions of treating physicians than to the opinions of nontreating physicians because

these sources are likely to be the medical professionals most able to
provide a detailed, longitudinal picture of [the claimant’s] medical
impairment(s) and may bring a unique perspective to the medical
evidence that cannot be obtained from the objective medical findings
alone of from reports of individual examinations, such as consultative
examinations or brief hospitalizations.
Id., quoting, Wilson v. Commissioner of Social Security, 378 F.3d 541, 544, (6th Cir. 2004), quoting,
20 C.F.R. § 404.1527(d)(2).
“The ALJ ‘must’ give a treating source opinion controlling weight if the treating
source 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.’”
Blakley, 581 F.3d at 406, quoting, Wilson, 378 F.3d at 544. “On the other hand, a Social Security
Ruling1 explains that ‘[i]t is an error to give an opinion controlling weight simply because it is the

FN 1. Although Social Security Rulings do not have the same force and effect as statutes or regulations, “[t]hey are
binding on all components of the Social Security Administration” and “represent precedent, final opinions and orders
and statements of policy” upon which the agency relies in adjudicating cases. 20 C.F.R. § 402.35(b).

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opinion of a treating source if it is not well-supported by medically acceptable clinical and
laboratory diagnostic techniques or if it is inconsistent with the other substantial evidence in the case
record.’” Blakley, supra, quoting, Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *2 (July 2, 1996). “If
the ALJ does not accord controlling weight to a treating physician, the ALJ must still determine how
much 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,582 F.3d at 406, citing, Wilson, 378 F.3d at
544, citing 20 C.F.R. § 404.1527(d)(2).
“Closely associated with the treating physician rule, the regulations require the ALJ
to ‘always give good reasons in [the] notice of determination or decision for the weight’ given to
the claimant’s treating source’s opinion.”

Blakley, 581 F.3d at 406, citing, 20 C.F.R.

§404.1527(d)(2). “Those good reasons must be ‘supported by the evidence in the case record, and
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.’” Blakley, 581 F.3d
at 406-07,citing, Soc.Sec.Rule 96-2p, 1996 WL 374188 at *5. “The Wilson Court explained the
two-fold purpose behind the procedural requirement:
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. Snell v. Apfel, 177 F.3d 128, 134 (2nd
Cir. 1999). The requirement also ensures that the ALJ applies the
treating physician rule and permits meaningful review of the ALJ’s
application of the rule.
Blakley, 581 F.3d at 407, citing, Wilson, 378 F.3d at 544. “Because the reason-giving requirement

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exists to ensure that each denied claimant received fair process, the Sixth Circuit has held that an
ALJ’s ‘failure to follow the procedural requirement of identifying the reasons for discounting the
opinions and for explaining precisely how those reasons affected the weight’ given ‘denotes a lack
of substantial evidence, even where the conclusion of the ALJ may be justified based upon the
record.’” Blakley, supra, quoting, Rogers v. Commissioner of Social Security., 486 F.3d 234, 253
(6th Cir. 2007)(emphasis in original).
The Wilson court instructs that where the ALJ fails to give good
reasons on the record for according less than controlling weight to
treating sources, we reverse and remand unless the error is a harmless
de minimis procedural violation. See Wilson. 378 F.3d at 547. Such
harmless error may include the instance where “a treating source’s
opinion is so patently deficient that the Commissioner could not
possibly credit it,” or where the Commissioner “has met the goal of
... the procedural safeguard of reasons.” Id. However, the ALJ’s
failure to follow the Agency’s procedural rule does not qualify as
harmless error where we cannot engage in “meaningful review” of
the ALJ’s decision. Id. at 544.
Blakley, 581 F.3d at 409
The record reveals that Dr. Kay has been Plaintiff’s long-term treating pain specialist.
As noted above, Dr. Kay essentially opined that Plaintiff’s residual functional capacity is
inconsistent with an ability to perform work-related activities. Indeed, Dr. Kay is the only
physician, other than the non-treating, non-examining physicians who offered an opinion as to
Plaintiff’s abilities to perform work-related activities. Nevertheless, although Dr. Kay has been
Plaintiff’s long-term treating physician who has opined that Plaintiff is disabled, the Commissioner
failed to properly analyze Dr. Kay’s opinion as required by the Regulations or by the law in the
Sixth Circuit. See PageID 47-48. More particularly, the Commissioner failed to satisfy the “reasongiving requirement”.

The Commissioner did little more than recite the findings that Dr. Kay

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reported. Id. In the absence of a proper analysis of treating physician Dr. Kay’s opinion, this Court
is not able to engage in meaningful judicial review of the Commissioner’s decision.
Accordingly, the Commissioner’s decision that Plaintiff is not disabled should be
reversed and the case remanded to the Commissioner for further administrative proceedings.
Finally, the Court notes that this is a fourth sentence remand. Sullivan v. Finkelstein, 496 U.S. 617
(1990).
April 4, 2012.
s/ Michael R. Merz
United States Magistrate Judge

J:\Social Security\Montgomery_SSD&SSI.wpd

NOTICE REGARDING OBJECTIONS
Pursuant to Fed.R.Civ.P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within fourteen days after being served
with this Report and Recommendations. Pursuant to Fed.R.Civ.P. 6(e), this period is automatically
extended to seventeen days because this Report is being served by one of the methods of service
listed in Fed.R.Civ.P. 5(b)(2)(B), (C), or (D) and may be extended further by the Court on timely
motion for an extension. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum in support of the objections. If the Report and
Recommendations are based in whole or in part upon matters occurring of record at an oral hearing,
the objecting party shall promptly arrange for the transcription of the record, or such portions of it
as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District
Judge otherwise directs. A party may respond to another party’s objections within fourteen days
after being served with a copy thereof. Failure to make objections in accordance with this procedure
may forfeit rights on appeal. See, United States v. Walters, 638 F.2d 947 (6th Cir. 1981); Thomas
v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).

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