Young v. Astrue

Filing 20

REPORT AND RECOMMENDATIONS re 1 Complaint, filed by Yvette Young. Objections to R&R due by 7/22/2013. IT IS THEREFORE RECOMMENDED THAT:1. The Commissioners non-disability finding be vacated; 2. No finding be made as to whether Plaintiff Yvette Young was under a disability within the meaning of the Social Security Act; 3. This case be remanded to the Commissioner and the Administrative Law Judge under Sentence Four of 42 U.S.C. §405(g) for further consideration consistent with this Report; and 4. The case be terminated on the docket of this Court. Signed by Magistrate Judge Sharon L Ovington on 7/3/2013. (kf)

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

:

Plaintiff,

:
Case No. 3:12cv00029

vs.

:

CAROLYN COLVIN,
Acting Commissioner of the Social
Security Administration,
Defendant.

:

District Judge Thomas M. Rose
Chief Magistrate Judge Sharon L. Ovington

:
:

REPORT AND RECOMMENDATIONS1

I.

Introduction
Plaintiff Yvette Young, a former factory worker, asks this Court to reverse the Social

Security Administration’s denial of her application for Supplemental Security Income (SSI).
Young maintained during her administrative proceedings, and presently, that she was
eligible for SSI because she was under a disability. She relied, in part, on the opinions of her
treating physician, Dr. Miller, who concluded that she was unable to perform a full-time job.
Administrative Law Judge James W. Lessis rejected Dr. Miller’s opinions and
concluded that Young could perform sedentary jobs (with certain limitations) that are
available in the national economy, such as optical lens inserter and stone setter. ALJ Lessis’

1

Attached hereto is NOTICE to the parties regarding objections to this Report and
Recommendations.

nondisability decision became the final decision of the Social Security Administration
rejecting Young’s SSI application, which Young now challenges.
Young seeks an Order reversing ALJ Lessis’ decision and awarding her benefits. She
alternatively seeks an Order vacating the ALJ’s decision and remanding for further
administrative proceedings. The Commissioner asks the Court to affirm the ALJ’s decision.
The case is before the Court upon Young’s Statement of Errors (Doc. #13), the
Commissioner’s Memorandum in Opposition (Doc. #17), Plaintiff’s reply (Doc. #19), the
administrative record, and the record as a whole. The Court has jurisdiction in this case. See
42 U.S.C. §405(g).
II.

“Disability” Defined And ALJ Lessis’ Nondisability Decision
Congress created the SSI program with the intent to assist “‘those who cannot work

because of age, blindness, or disability’... by ‘set[ting] a Federal guaranteed minimum
income level for aged, blind, and disabled persons.’” Schweiker v. Wilson , 450 U.S. 221,
223, 101 S.Ct. 1074, 1077 (1981) (internal citations omitted; brackets in original); see
Bowen v. City of New York, 476 U.S. 467, 470 (1986); see also 42 U.S.C. §1381a.
Because Young sought SSI based on her asserted disability, she had the burden to
satisfy the SSI program’s circumscribed definition of a “disability” under which:
an individual shall be determined to be under a disability only if [her]
physical or mental impairment or impairments are of such severity that [she] is
not only unable to do [her] previous work but cannot, considering his [her]
age, education, and work experience, engage in any other kind of substantial
gainful work which exists in the national economy ....
42 U.S.C. §1382c(a)(3)(B); see Bowen, 476 U.S. at 469-70.
2

When Young’s SSI application and supporting evidence reached ALJ Lessis, he
evaluated whether Young was under a disability under the 5-step sequential evaluation
mandated by Social Security Regulations. See Tr. 18-28; see also 20 C.F.R. §416.920(a)(4).
Young’s present challenges to ALJ Lessis’ sequential evaluation arise, in part, at step
4 where assessed he assessed Young’s residual functional capacity. This assessment
established, in the ALJ’s view, the most that Young can do despite her physical and mental
impairments, and “any related symptoms, such as pain ....” 20 C.F.R. §416.945(a); see
Howard v. Comm’r of Social Sec., 276 F.3d 235, 239 (6th Cir. 2002). ALJ Lessis concluded
that Plaintiff can perform sedentary work2 with the following exceptions:
[S]he cannot perform more that negligible climbing, balancing,
stooping, kneeling, crawling or crouching (with negligible being more than
absolute zero but less than one-sixth of the day [one-sixth being midway
between zero and “occasional”]).... She has negligible ability to operate foot
controls. She is limited to negligible exposure to weather, cold, hot,
wet/humid, vibration, moving mechanical parts, electric shocks, radiation,
explosives and also fumes, orders [sic], gases and poor ventilation. The
claimant is restricted to minimal (i.e., no more than incidental) contact with the
public, coworkers and supervisors.
(Tr. 22) (brackets within the first parenthetical were used by the ALJ). ALJ Lessis also
believed that Plaintiff could frequently reach, handle, finger, and feel. Id. And he concluded
(in part) that Young, from a mental standpoint, “retains the reasoning, mathematics and
language skills to perform simple work with understanding and carryout [sic] simple one-or-

2

Under the Regulations, those able to perform sedentary work are in the lowest category of
physical work ability. See 20 C.F.R. §416.967(a)-(e). “Sedentary work involves lifting no more than 10
pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools....”
§404.1567(a).

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two-step instructions, dealing with standardized situation with occasional or no variables in
situations encountered on the job....” (Tr. 22).
Young asserts that (1) the ALJ violated the treating physician rule by failing to
provide good reasons for rejecting the opinions of her treating physician Dr. Miller; and (2)
the ALJ improperly found her credibility lacking. Young also challenges the ALJ’s reliance
at step 5 of his sequential evaluation on the opinions of a vocational expert.
III.

Evidence
A.

Young’s Background and Testimony

Young was 38 years old when she filed her SSI application and is thus considered to
be a younger person under Social Security Regulations. See 20 C.F.R. § 416.963(c). She has
a limited education. And she asserts that her disability began on July 1, 2006.
Young testified during the ALJ’s hearing that she was 5 feet 2½ inches tall and
weighed 218 pounds. (Tr. 382). In addition to factory work, most of her past work has been
“part time like for MacDonald’s and WalMart.” Id.; see Tr. 84. In 1999, she worked a
daycare job for Shelby County, Ohio, achieving her best – yet still very modest – yearly
earnings. (Tr. 382).
When asked to describe her medical problems, Young testified that she has lower
back problems that extend down into her legs. She explained, “I get a burning sensation,
and then it feels like they go numb, and then I have – the best way that I can describe it, it’s
like bee stings in my legs and – and I have arthritis in my neck, which has caused my bad
headaches that I’ve had for a while now.” (Tr. 382). She “can walk some with assistance.”
4

(Tr. 386).
Young’s feet swell to such an extent that she cannot wear shoes. She has pain or
numbness in her thighs but not in her feet. Her fingers also swell, making them difficult to
bend. She cannot bend, crawl, or kneel. She understands verbal instructions, and she does
not have problems getting along with others, including supervisors. But she also testified, “I
can’t handle stress. I tell my husband all the time I’m gonna pack myself and leave, because
I just can’t take it because I’ve had too much happen.” (Tr.385-86).
Young’s prescription medications cause her to get very drowsy. She takes “Requip
and Abilify at nighttime for the restless leg syndrome.” (Tr. 384). She takes morphine twice
a day; extra-strength Vicodin three times a day; and Neurontin, for nerve damage, three
times a day. She has difficulty sleeping due to pain in her lower back. She sleeps only three
or four hours each night; she takes naps twice a day. She also has problems concentrating
and staying awake during the day. Young has difficulty reading and can only sometimes gets
through a newspaper; she looks at the photos but the words are difficult. (Tr. 387-88).
B.

Treating Physician Dr. Miller

In May 2009, Dr. Miller completed a Functional Capacity Questionnaire (Physical),
noting that he first saw Young for treatment in 1998. His listed Young’s diagnoses as
“fibromyalgia, back pain, possible herniated disc.” (Tr. 224). He opined that Young could
stand/walk up to 2 hours and sit up to 2 hours during an 8-hour day. He noted that she was
“in [a] wheelchair.” Id. Dr. Miller believed that Plaintiff could not lift and carry much
weight, even less than 10 pounds, in a competitive work situation. She could never stoop
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(bend) or crouch, and she could rarely engage in fingering, grasping, or handling.
In June 2009, Dr. Miller completed a questionnaire. He listed the following
diagnoses: fibromyalgia, chronic back pain, restless leg syndrome, chronic anxiety, chronic
depression, “? conversion disorder,” hypothyrodism, and gastric esophageal reflux
syndrome. (Tr. 159)(question mark in original). Dr. Miller noted that Young had
generalized muscular pain, especially in her upper legs. She needed, at times, to use a
wheelchair or quadcane. And spasm accompanied her chronic back pain. Id. Dr. Miller
wrote “fairly unremarkable” when asked to describe his pertinent clinical findings. Id. Dr.
Miller described Young’s work abilities to be limited by her inability to ambulate without
assistance. He lastly opined that Young would be unable to cope with workplace stress,
deadlines, instructions, and criticism. (Tr. 160).
As to Young’s level of pain, the questionnaire asked, “How often during a typical
workday is your patient’s experience of pain severe enough to interfere with her attention
and concentration needed to perform even simple work tasks?” Dr. Miller answered
“frequently.” (Tr. 224). Dr. Miller anticipated that Young’s impairments or treatment would
cause her to be absent from work “much more” than four days per month. Id. Dr. Young
checked boxes identifying Young’s symptoms as “impaired sleep, prescribed cane or other
walking device, substance dependence, muscle weakness, [and] reduced range of motion.”
Id. (punctuation added).
On a “Mental Capacities Evaluation” form, Dr. Miller listed 13 prescribed

6

medications including, for example, Nexium, Celexa, Mirapex,3 Vicodin, Synthroid, Lasix,
and Xanax. (Tr. 225). Dr. Miller identified Young’s symptoms as generalized persistent
anxiety and difficulty thinking or concentrating. He checked a box indicating that Young’s
psychiatric condition would exacerbate her experience of “pain or any other physical
symptom[.]” Id. When asked to explain, Dr. Miller noted, “mood lability contributes to
muscle weakness and pain.” Id. He opined again that Young would miss “much more” than
4 days per month. And, according to Dr. Miller, Young had “marked” limitations in her
activities of daily living and in maintaining social relationships; “moderate” limitations in
her ability to maintain concentration, persistence, or pace; and no episodes (or only mild
episodes) of decompensation within the previous 12 months.
In December 2009, Dr. Miller diagnosed Young with fibromyalgia, neuralgia,
hypothyroidism, depression, and anxiety. Her prognosis was guarded. Her symptoms
included generalized muscular pain, muscle weakness, muscle spasm, and fatigue. On a
scale of zero (no pain) to 10 (severe pain), Dr. Miller estimated Young’s pain level at 7.
As he had in May 2009, Dr. Miller opined in December 2009 that Young could
stand/walk up to 2 hours and sit up to 2 hours during an 8-hour day. He noted that Young
was “in wheelchair for most activities” and was “sometimes able to use a quad cane.” (Tr.
221). Dr. Miller further indicated that Young must use a cane or other assistive device while

3

The National Institutes of Health website states that one use of Mirapex® (Pramipexole) is “to
treat restless legs syndrome (RLS; a condition that causes discomfort in the legs and a strong urge to
move the legs, especially at night and when sitting or lying down).” http://www.nlm.hin.gov
(medlineplus, drugs & supplements database).

7

she was engaging in occasional standing/walking. On October 26, 2008, Dr. Miller
prescribed a “walker” for Young, noting “leg pain.” (Tr. 281). Dr. Miller further indicated in
December 2009 that during an average 8-hour workday, Young could never lift and carry
much weight, even less than 10 pounds. She also was significantly limited in her ability to
do repetitive reaching, handling, fingering, or lifting. Id.
Dr. Miller indicated that the following would affect Young’s ability to work at a
regular job on a sustained basis: psychological limitations; no stooping, pushing, kneeling,
pulling, or bending; and she needed to avoid heights. (Tr. 222) Dr. Miller indicated that
Young was not a malingerer, and he opined that she was incapable of tolerating even a low
amount of stress. He noted that his conclusion was based on “history and interview.” Id.
In March 2010, Dr. Miller completed a basic medical form opining that Young’s
condition was deteriorating. (Tr. 251). He noted that Young exhibited tenderness and
decreased range of motion in her neck and back. Id. He concluded that during an 8-hour
workday, Young could stand/walk for 0 hours, sit 4 hours, and perform no lifting or
carrying. (Tr. 252). Dr. Miller also believed that Young was extremely limited in her ability
to push/pull, bend, and reach. And Dr. Miller checked a box indicating his opinion that
Young was unemployable. Id.
C.

Drs. Danopulos and Graham

In February 2009, Dr. Danopulos examined Young for the Ohio Bureau of Disability
Determinations. (Tr. 175-80). He summarized his examination and opinions as follows:
Ms. Yvette Young is a thirty-nine-year-old female with complaints of
8

fibromyalgia with restless leg syndrome, neck pain, hypertension,
hypothyroidism, needing diuretics for ankle swelling, and depression with
anxiety.
She gave a history of fibromyalgia which was diagnosed a year ago by her
family physician. For three months she used a walker and for the last one
month she uses a wheelchair.... On clinical examination, both upper
extremities were painless, with normal motions, but lower extremities,
including hips and knees she was resisting forcefully any motions, so it could
not be done. The clinical impression was arthralgias, if any. Her behavior was
accepted as being conversion disorder....
Cervical spine and the entire spine were painful by pressure. Cervical spine
motions were normal and painless. The cervical spine X-rays were
unremarkable.
***
She gave a history of depression which she suffers for the last three years. The
first year she had been treated by a psychiatrist but then she discontinued
seeing him and taking his prescription medication. She has already been
evaluated by a Social Security psychologist two or three months ago.
The objective findings were: 1) history of fibromyalgia, with non-specific, if
any pain in her joints and resisting the motions of both hips and knees which
could not be examined, without any neurologic pathology and suggested
conversion, 2) cervical spine arthralgias, 3) well controlled blood pressure, and
4) history of anxiety with depression.
Her ability to do any work-related activities is affected and restricted from her
conversion disease, plus her depression and anxiety which has already been
evaluated properly by a Social Security psychologist.
(Tr. 179-80).
In October 2009, Dr. Graham examined the record for the Ohio Bureau of Disability
Determinations. He opined that Young could perform light work with occasional balancing,
stooping and climbing of stairs/ramps; frequent kneeling and crawling; and never climbing

9

ladders/ropes/scaffolds. (Tr. 140-47).
D.

Psychologists Chaffins and Chambly

In November 2008, psychologist Belinda J. Chaffins, Psy.D., examined Young for
the Ohio Bureau of Disability Determinations. (Tr. 207-23). Young was 39 years old at that
time.
Dr. Chaffins’ diagnostic impression included no Axis I (clinical-disorder) diagnosis
and one Axis II diagnosis – borderline intellectual functioning. (Tr. 212). Dr. Chaffins
assessed Young’s then-current GAF4 at 60, referring to moderate symptoms or moderate
difficulty in occupational functioning.
As to Young’s abilities in four work-related mental abilities, Dr. Chaffins opined:
1.

Mrs. Young’s ability to relate to others is not impaired as evidenced by no
significant symptoms reported by her....

2.

Her ability to understand and follow instructions is not impaired as evidenced
by no problems with immediate memory or concentration....

3.

Her ability to maintain attention to perform simple repetitive tasks is mildly
impaired as evidenced by her difficulty completing some of the sensorium
tasks: Serial 7's, remembering names of past presidents and in the digits
backward task.

4.

Her ability to withstand the stress and pressures associated with day-to-day
work activities is likely to not be impaired due to lack of significant symptoms
of anxiety or depression reported by client nor observed during the assessment.
Her symptoms didn’t increase as the assessment progressed; however, she

4

Health care clinicians perform a GAF, Global Assessment of Functioning, to determine a
person’s psychological, social, and occupational functioning on a hypothetical continuum of mental
illness. It is, in general, a snapshot of a person’s “overall psychological functioning” at or near the time of
the evaluation. See Hash v. Commissioner of Social Sec., 309 Fed.Appx. 981, 988 n.1 (6th Cir. 2009); see
also Diagnostic and Statistical Manual of Mental Disorders, 4th ed., Text Revision at pp. 32-34.

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appeared a little tired at the end. She appeared to be working very hard and put
forth her best effort during the assessment process. She seems to have good
insight and judgment.
(Tr. 213).
In December 2008, psychologist Alice Chambly, Psy.D, evaluated the record for the
Ohio Bureau of Disability Determinations. She concluded as to each area of mental-work
ability, Young was less than “markedly impaired” or there was no evidence of a limitation.
(Tr. 202-03). Dr. Chambly opined, in part, that Young “has good insight and judgement. She
is able to perform daily activities independently. She has no limitations in her social
functioning or concentration. She would have some moderate limitations in her ability to
understand more detailed tasks. However, she would be able to perform 1-2 step tasks
without difficulties. Claimant’s statements are credible. Consultative examiner’s [Dr.
Chaffins’] assessment of claimant’s functioning is the only psychological evidence in file. It
is consistent with the MER [medical evidence of record (presumably)] and given
considerable weight.” (Tr. 204).
IV.

Judicial Review
Judicial review of an ALJ’s decision proceeds along two lines: “whether the ALJ

applied the correct legal standards and whether the findings of the ALJ are supported by
substantial evidence.” Blakley v. Comm’r of Social Sec., 581 F.3d 399, 406 (6th Cir.
2009); see Bowen v. Comm’r of Social Sec., 478 F3d 742, 745-46 (6th Cir. 2007).
The substantial-evidence review does not ask whether the Court agrees or
disagrees with the ALJ’s factual findings or whether the administrative record contains
11

evidence contrary to those factual findings. Rogers v. Comm’r of Social Sec., 486
F.3d 234, 241 (6th Cir. 2007); see Her v. Comm’r of Social Sec., 203 F.3d 388, 389-90 (6th
Cir. 1999). Instead, the ALJ’s factual findings are upheld if the substantial-evidence
standard is met – that is, “if a ‘reasonable mind might accept the relevant evidence as
adequate to support a conclusion.’” Blakley, 581 F.3d at 407 (quoting Warner v. Comm’r
of Social Sec., 375 F.3d 387, 390 (6th Cir. 2004). Substantial evidence consists of
“more than a scintilla of evidence but less than a preponderance...” Rogers, 486 F.3d at
241.
The second line of judicial inquiry – reviewing the ALJ’s legal criteria for correctness
– may result in reversal even if the record contains substantial evidence supporting the
ALJ’s factual findings. Rabbers v. Comm’r of Social Sec, 582 F.3d 647, 651 (6th Cir. 2009);
see Bowen, 478 F3d at 746. “[E]ven if supported by substantial evidence, ‘a decision of the
Commissioner will not be upheld where the SSA fails to follow its own regulations and
where that error prejudices a claimant on the merits or deprives the claimant of a substantial
right.’” Rabbers, 582 F.3d at 651 (quoting in part Bowen, 478 F.3d at 746 and citing Wilson
v. Comm’r of Social Sec., 378 F.3d 541, 546-47 (6th Cir. 2004)).
V.

Discussion
Young contends that the ALJ violated the treating physician rule by failing to provide

good reasons – as the Regulations require – for rejecting Dr. Miller’s opinions.
The Commissioner contends that the ALJ reasonably explained why he gave little
weight to Dr. Miller’s opinions. The Commissioner reasons, “The ALJ explained that he
12

gave little weight to the assessment of Dr. Miller, as his opinions were brief and conclusory,
and were unsupported by medical signs and objective examination findings from his
treatment notes, as well as the normal clinical examinations and objective testing throughout
the record.” (Doc. #17, PageID at 70).
The ALJ found that “good cause” existed to reject Dr. Miller’s opinions. (Tr. 25). The
ALJ’s use of this phrase “good cause” finds no identical supporting language in the
Regulations that apply to the ALJ’s evaluation of treating medical source opinions. See 20
C.F.R. §416.927(d)(2)-(5). Rather than looking for “good cause” to reject a treating
physician’s opinions, the Regulations provide much more specific mandatory instructions to
ALJs, beginning with the treating physician rule: “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; see Wilson, 378
F.3d at 544; 20 C.F.R. §416.927(d)(2). The Regulations further mandate that where
controlling weight does not apply, the ALJ must continuing weighing the treating
physician’s opinions by applying certain factors: “namely, the length of the treatment
relationship and the frequency of examination, the nature and extent of the treatment
relationship, supportability of the opinion, consistency of the opinion with the record as a
whole, and the specialization of the treating source ....” Wilson, 378 F.3d at 544; see 20
C.F.R. §416.927(d)(2)-(6).
The phrase “good cause” applied by the ALJ finds no identical supporting language
13

in the applicable Regulation, 20 C.R.F. §416.927(d), and the phrase is too nebulous to
incorporate the Regulation’s specific requirement that “controlling weight” must be given to
a treating physician’s opinion when the treating physician rule is met. See id; see also
Wilson, 710 F.3d at 376 (“An ALJ must give the opinion of a treating source controlling
weight...” if the requirements of the treating physician rule apply). The ALJ’s brief
discussion of the standards applicable to treating physicians and other medical sources
overlooks, or at a minimum downplays, the deference generally applicable to treating source
opinions. The ALJ wrote, for example, “Social Security Ruling 96-2p states that generally a
treating physician’s opinion is given great weight. However, such opinion must be supported
by medically acceptable clinical or diagnostic techniques, and any other evince [sic] of
record....” (Tr. 25). Although this is an apparent attempt to set forth the treating physician
rule, the ALJ did not set forth the correct legal criteria. The treating physician rule, where
applicable, requires the ALJ to place “controlling weight” – not merely “great weight”– on
the treating physician’s opinion. The phrase “controlling weight” is the precise language
used in the Regulation, §416.927(d)(2), and is repeated time and again in Social Security
Ruling 96-2p and caselaw, e.g., Rogers, 486 F.3d at 243; Wilson, 378 F.3d at 544.
In addition, when a treating physician’s opinion is given “controlling weight,” the
opinion controls over what? It controls over other medical source opinions of record,
especially those provided by non-treating and non-examining medical sources. In contrast, if
the ALJ’s “great weight” is applied to a treating physician’s opinion, such weight could be
overborne by a non-examining or record-reviewing medical source opinion without any
14

consideration of the deference generally due a treating medical source’s opinions. This is
contrary to 20 C.F.R. §416.927, which dictates a process by which ALJs must consider the
source of the opinion – i.e., whether it is from a treating source or an examining source or a
record-reviewing source. See Gayheart v. Comm’r of Social Sec., 710 F.3d 365, 376 (6th
Cir. 2013) (“The source of the opinion ... dictates the process by which the Commissioner
accords it weight.”). “In other words, ‘[t]he regulations provide progressively more rigorous
tests for weighing the opinions as the ties between the source of the opinion and the
individual become weaker.’” Id. at 375 (quoting, in part, Soc. Sec. Ruling 96-6p, 1996 WL
374180 at *2). “Even if the treating physician’s opinion is not given controlling weight,
‘there remains a presumption, albeit a rebuttable one, that the opinion of a treating physician
is entitled to great deference.’” Hensley v. Comm’r of Social Sec., 573 F.3d 263, 266 (6th
Cir. 2009) (quoting, in part, Rogers, 486 F.3d at 242). By substituting a good cause/great
weight review in place of the regulatory-required review for “controlling weight,” the ALJ
failed to subject Dr. Miller’s opinions to the mandatory Regulatory requirements of the
treating physician rule. See Blakley, 581 F.3d at 406; see also Hensley v. Comm’r of Social
Sec., 573 F.3d 263, 266 (6th Cir. 2009).
The ALJ also made a passing reference to the Regulation and Rulings applicable to
evaluating medical source opinions. He wrote, “The undersigned has also considered the
opinion evidence in accordance with the requirements of 20 CFR 416.927 and SSRs 96-2p,
96-5p and 06-3p.” (Tr. 24). Without some more meaningful application and explanation of
the applicable legal standards required by this Regulation and these Rulings, this passing
15

reference does not satisfy the ALJ’s mandatory duty to provide “good reasons” for rejecting
Dr. Miller’s opinions. Rogers, 486 F.3d at 246.
Another problem with the ALJ’s recitation of the standards applicable to Dr. Miller’s
opinions exists in the ALJ’s concern that the treating physician’s opinion must be supported
by “any other evi[de]nce of record.” This language does not track the Regulation’s
controlling-weight requirement that a treating physician’s opinion must not be “inconsistent
with other substantial evidence ... [of] record ....” §416.927(d)(2) (emphasis added). Rather
than such “substantial evidence,” use of the ALJ’s phrase “any other evi[de]nce of record”
may allow an ALJ to decline to apply the treating physician rule on the ground that the
physician’s opinion was contrary to any single piece of evidence in the record. At best for
the ALJ, the phrase “any other evi[de]nce of record” is ambiguous, allowing any particular
evidence to either defeat the treating physician rule or suffice to support the treating
physician rule. Such ambiguity would not exist if the ALJ had stuck more strictly to the
language of the Regulation by determining whether Dr. Miller’s opinion was “not
inconsistent with the other substantial evidence ... [of] record ....” 20 C.F.R. §416.927(d)(2).
Even if the ALJ applied the correct legal criteria to Dr. Miller’s opinion, he erred by
rejecting it based on “the findings from other treating or examining physicians, the findings
and opinions of the consultative physician and psychologist, and the findings of the non
examining State agency medical experts.” (Tr. 25). Although an ALJ may – in some
situations – reject a treating medical source’s opinions based on contrary opinions of a
consultative source, a one-time examiner, or a record-reviewing source, the ALJ must weigh
16

such contrary opinions under the factors mandated by the Regulations. Social Security
Ruling 96-6p explains, “the opinions of physicians or psychologists who do not have a
treatment relationship with the individual are weighed by stricter standards, based to a
greater degree on medical qualifications, and explanations for the opinions, than are required
of treating sources.” 1996 WL 374180 at *2. There is no indication in the ALJ’s decision
that he evaluated the opinions of Drs. Danopulos, Graham, Chaffins, or Chambly
under the factors required by the Regulations, §416.929(d)(3)-(6) or Ruling. 96-6p. This
constituted error because “[a] more rigorous scrutiny of the treating-source opinion than the
nontreating and nonexamining opinions is precisely the inverse of the analysis that the
regulation requires.” Gayheart, 710 F.3d at 379-80.
Young also contends, relying on Rogers v. Comm’r of Social Sec., 486 F.3d 234 (6th
Cir. 2007), that the ALJ’s use of a lack of objective evidence did not constitute a “good
reason” for rejecting Dr. Miller’s opinions, especially with regard to the pain associated with
Young’s fibromyalgia. This contention is well taken at least to the extent that the ALJ
demanded objective medical evidence in support of Dr. Miller’s opinion concerning the
severity of Young’s fibromyalgia. “[F]ibromyalgia can be a severe impairment and that,
unlike medical conditions that can be confirmed by the existence of objective testing,
fibromyalgia patients present no objectively alarming signs.... Rather, fibromyalgia patients
‘manifest normal muscle strength and neurological reactions and have a full range of
motion.” Rogers, 486 F.3d at 243-44 (internal citations omitted). It was therefore error for
the ALJ to require objective medical evidence in support of Dr. Burks’ opinion regarding the
17

severity of Plaintiff’s fibromyalgia. See id; see also Kalmbach v. Comm’r of Soc. Sec.,
unpublished op., 2011 WL 63602 at *9 (“Thus, the ALJ’s contention that the treating
physicians’ assessments and opinions were unsupported by other objective medical evidence
was simply beside the point.”). Although Dr. Miller’s treatment records do not indicate any
specific number of trigger points that Young exhibited upon testing, Dr. Miller repeatedly
documented the pain she experienced without indicating that he doubted the sincerity of her
reports. Additionally, Dr. Danopulos, examining physician for the Ohio Bureau of Disability
Determinations, identified in his objective findings that Young has a “history of
fibromyalgia, with non-specific, if any pain in her joints and resisting motions of both hips
and knees, without any neurologic pathology and suggested conversion ....” (Tr. 179).
Because this objective finding was comparable to, if not consistent with, Dr. Miller’s
diagnosis of fibromyalgia and his treatment of Young with prescription pain medications,
the ALJ erred by discounting Dr. Miller’s opinions for lack of objective evidence of
fibromyalgia. See Rogers, 486 F.3d at 243-46.
Accordingly, for the above reasons, Young’s Statement of Errors is well taken.5
VI.

Remand is Warranted
If the ALJ failed to apply the correct legal standards or his factual conclusions are not

supported by substantial evidence, the Court must decide whether to remand the case for
rehearing or to reverse and order an award of benefits. Under Sentence Four of 42 U.S.C.
5

Because a remand is warranted in this case, an in-depth analysis of the parties’ contentions
concerning the ALJ’s evaluation of Plaintiff’s credibility and the ALJ”s reliance of the vocational
expert’s testimony is unwarranted.

18

§405(g), the Court has authority to affirm, modify, or reverse the Commissioner’s decision
“with or without remanding the cause for rehearing.” Melkonyan v. Sullivan, 501 U.S. 89, 99
(1991). Remand is appropriate if the Commissioner applied an erroneous principle of law,
failed to consider certain evidence, failed to consider the combined effect of impairments, or
failed to make a credibility finding. Faucher v. Secretary of H.H.S., 17 F.3d 171, 176 (6th
Cir. 1994).
A judicial award of benefits is unwarranted in the present case because the evidence
of disability is not overwhelming and because the evidence of a disability is not strong while
contrary evidence is weak. See Faucher, 17 F.3d at 176.
Young, however, is entitled to an Order remanding this case to the Social Security
Administration pursuant to Sentence Four of §405(g) due to problems set forth above. On
remand the ALJ should be directed to (1) evaluate all the medical source opinions of record
under the legal criteria applicable under the Commissioner’s Regulations and Rulings and as
mandated by case law; and (2) review Plaintiff’s disability claim under the required five-step
sequential analysis to determine anew whether Plaintiff was under a disability and thus
eligible for SSI.
IT IS THEREFORE RECOMMENDED THAT:
1.

The Commissioner’s non-disability finding be vacated;

2.

No finding be made as to whether Plaintiff Yvette Young was under a
“disability” within the meaning of the Social Security Act;

3.

This case be remanded to the Commissioner and the Administrative Law
Judge under Sentence Four of 42 U.S.C. §405(g) for further consideration
19

consistent with this Report; and
4.

The case be terminated on the docket of this Court.

July 3, 2013
s/Sharon L. Ovington
Sharon L. Ovington
Chief United States Magistrate Judge

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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(d), this period
is 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)(C), (D), (E), or (F). Such objections shall specify the
portions of the Report objected to and shall be accompanied by a memorandum of law 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 (1985).
140 (1985).

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