Mitsoff v. Commissioner of Social Security

Filing 15

REPORT AND RECOMMENDATIONS - IT IS THEREFORE RECOMMENDED THAT: 1. The Commissioner's non-disability finding be found unsupported bysubstantial evidence, and REVERSED. 2. This matter be REMANDED to the Commissioner under the Fourth Sentence of 42 U.S.C. § 405(g) for proceedings consistent with this opinion. 3. This case be CLOSED. Objections to R&R due by 2/11/2013. Signed by Magistrate Judge Michael J Newman on 1/24/13. (kje1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DAVID K. MITSOFF,

:

Case No. 3:12-cv-46

Plaintiff,

:

District Judge Walter H. Rice
Magistrate Judge Michael J. Newman

vs.

:

COMMISSIONER OF
SOCIAL SECURITY,

:

Defendant.

:

REPORT AND RECOMMENDATION1 THAT: (1) THE ALJ’S NON-DISABILITY
FINDING BE FOUND UNSUPPORTED BY SUBSTANTIAL EVIDENCE, AND
REVERSED; (2) THIS MATTER BE REMANDED TO THE COMMISSIONER UNDER
THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR PROCEEDINGS CONSISTENT
WITH THIS OPINION; AND (3) THE CASE BE CLOSED

This is a Social Security disability benefits appeal brought pursuant to 42 U.S.C. § 405(g)
and §1383(c). At issue is whether the Administrative Law Judge (“ALJ”) erred in finding
Plaintiff David Mitsoff (“Plaintiff”) not “disabled” within the meaning of the Social Security Act
and therefore unentitled to Supplemental Security Income (“SSI”).
This case is before the Court upon Plaintiff’s Statement of Errors (doc. 11), the
Commissioner’s Memorandum in Opposition (doc. 14), the administrative record (doc. 9),2 and
the record as a whole.

1

Attached hereto is NOTICE to the parties regarding objections to this Report and
Recommendation.
2
Hereafter, citations to the electronically-filed administrative record will refer only to the PageID.

I. BACKGROUND
A. Procedural History
Plaintiff filed an application for SSI in September 2007, asserting that he has been under
a “disability” since August 29, 2007. PageID 221-32. Plaintiff claims he is disabled due to neck
pain, back pain, right leg pain, and a lack of feeling in both arms. PageID 295.
Following initial administrative denials of his application, an administrative hearing was
conducted before ALJ Amelia Lombardo in August 2010. PageID 122-160. On January 13,
2011, ALJ Lombardo issued a written decision, concluding that Plaintiff’s impairments did not
constitute a “disability” within the meaning of the Social Security Act. PageID 97-109.
Specifically, the ALJ’s “Findings,” which represent the rationale of her decision, were as
follows:
1.

The claimant has not engaged in substantial gainful activity since
September 26, 2007, the application date (20 CFR § 416.971 et seq.);

2.

The claimant has the following severe impairments: degenerative disc
disease of the cervical and lumbar spine with residual effects of cervical
and lumbar surgery (20 CFR § 416.920 (c));

3.

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 §§ 416.920(d), 416.925 and
416.926);

4.

After careful consideration of the entire record, the [ALJ] finds that the
claimant has the residual functional capacity [“RFC”] to perform light
work as defined in 20 CFR § 416.967(b) with the following additional
limitations: occasional stooping, crouching, kneeling, or crawling;
occasional overhead reaching bilaterally; and limited to frequent fine
manipulation with the right dominant hand;

5.

The claimant is unable to perform any past relevant work (20 CFR
§ 416.965);

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6.

The claimant was born [in] 1968 and was 39 years old, which is defined
as a younger individual age 18-49, on the date the application was filed
(20 CFR § 416.963);

7.

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

8.

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 the
claimant has transferable job skills (See SSR 82-41and 20 CFR Part 404,
Subpart P, Appendix 2);

9.

Considering the claimant’s age, education, work experience, and [RFC],
there are jobs that exist in significant numbers in the national economy
that the claimant can perform (20 CFR §§ 416.969 and 416.969(a)); [and]

10.

The claimant has not been under a disability, as defined in the Social
Security Act, since September 26, 2007, the date the application was filed
(20 CFR § 416.920(g)).

PageID 100-09.
Thereafter, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s
non-disability finding the final administrative decision of the Commissioner. PageID 90-93; see
also Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993). Plaintiff
then filed this timely appeal on February 10, 2012. Doc. 1.
B. Plaintiff’s Hearing Testimony
At the administrative hearing, Plaintiff testified that he is 5’11” tall, and weighs 220
pounds. PageID 125. He lives with his mother and his girlfriend in his mother’s house. PageID
135.
Plaintiff injured his neck and back in 2005 by falling off the roof of his mother’s house.
PageID 127. In 2006, Plaintiff had neck fusion surgery; in 2009, he had lumbar fusion surgery.
PageID 128, 130. He testified that he experiences occasional numbness in his leg, and back pain

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daily. PageID 130. He also testified that he has difficulty sleeping because of his need to
frequently change positions to be comfortable. PageID 140-41.
Plaintiff estimated that he can sit for approximately 20-30 minutes, and stand for one
hour. PageID 132, 138. He testified that he has difficulty raising his arms, and estimated the
most he can lift is 10 pounds. Id. Although Plaintiff is able to do some household chores,
his girlfriend does the laundry, shopping, yard work, and caring for their pets. PageID 13335. Plaintiff testified that he enjoyed playing video games in the past, but is unable to play
them now because of numbness in his hands. PageID 134. He also stated that he is unable
to go to the grocery store because he cannot walk the aisles.

PageID 133-34.

He

occasionally drives, but cannot tolerate sitting in the car for long periods of time. PageID
138-39.
C. Vocational Expert Testimony
Brian Womer, a vocational expert (“VE”), testified at the hearing. PageID 156-59. The
VE testified that a hypothetical individual with the claimant’s vocational profile and RFC, as
provided by the ALJ, could perform as many as 14,000 jobs at the light level of exertion, and as
many as 5,400 sedentary jobs in the Dayton area. PageID 157-58. Examples of jobs at the light
level include small parts assembler and assembly machine tender; examples at the sedentary
level include food order clerk and polishing machine operator. PageID 158.
II. APPLICABLE LAW
A. Substantial Evidence Standard
The Court’s inquiry on a Social Security appeal is to determine (1) whether the ALJ’s
non-disability finding is supported by substantial evidence, and (2) whether the ALJ employed
the correct legal criteria. 42 U.S.C. §§ 405(g), 1383(c)(3); Bowen v. Comm’r of Soc. Sec., 478

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F.3d 742,745-46 (6th Cir. 2007). In performing this review, the Court must consider the record
as a whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978).
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). When
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 a claimant
disabled. Id.
The second judicial inquiry -- reviewing the correctness of the ALJ’s legal analysis -may
result in reversal even if the ALJ’s decision is supported by substantial evidence in the record.
Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009). Thus, “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.”
Bowen, 478 F.3d at 746.
B. “Disability” Defined
To qualify for disability benefits, a claimant must suffer from a medically determinable
physical or mental impairment that can be expected to result in death or that has lasted or can be
expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 1382c(a)(3)(A).
The impairment must render the claimant unable to engage in the work previously performed or
in any other substantial gainful employment that exists in the national economy. 42 U.S.C.
§ 1382c(a)(3)(B).
Administrative regulations require a five-step sequential evaluation for disability
determinations. 20 C.F.R. § 416.920. Although a dispositive finding at any step ends the ALJ’s

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review, Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), the complete sequential review
poses five questions:
1.

Has the claimant engaged in substantial gainful activity?

2.

Does the claimant suffer from one or more severe impairments?

3.

Do the claimant’s severe impairments, alone or in combination, meet or
equal the criteria of an impairment set forth in the Commissioner’s Listing
of Impairments (the Listings), 20 C.F.R. Subpart P, Appendix 1?

4.

Considering the claimant’s RFC, can he or she perform his or her past
relevant work?

5.

Assuming the claimant can no longer perform his or her past relevant
work -- and also considering the claimant’s age, education, past work
experience, and RFC -- do significant numbers of other jobs exist in the
national economy which the claimant can perform?

20 C.F.R. § 416.920(a)(4); Miller v. Comm’r of Soc. Sec., 181 F. Supp. 2d 816, 818 (S.D. Ohio
2001). A claimant bears the ultimate burden of establishing that he or she is “disabled” under
the Social Security Act’s definition. Key v. Callahan, 109 F.3d 270, 274 (6th Cir. 1997).
III. OPINION AND ANALYSIS
As a preliminary note, Plaintiff’s pertinent medical records have been adequately
summarized in the parties’ briefs and the administrative decision, see doc. 11 at PageID 758-68;
doc. 14 at PageID 786-89; PageID 99-108, and the Court will not repeat them here. Where
applicable, the Court will identify the medical evidence relevant to its decision.
On appeal, Plaintiff argues the ALJ erred by rejecting the opinion of his treating
physician, Matthew O’Connell, M.D., and instead favoring the opinions of consultative examiner
Damian Danopulos, M.D., and non-examining, record-reviewing state agency physician Diane
Manos, M.D. See doc. 11 at PageID 601-08.

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Plaintiff’s assignment of error stems from written reports submitted by Dr. O’Connell in
2008 and 2010. In April 2008, Dr. O’Connell opined that Plaintiff’s impairments affect his
ability to stand/walk, lift/carry, and work. PageID 601. Specifically, Dr. O’Connell opined
Plaintiff can only occasionally carry 5 pounds; is markedly limited in his ability to push, pull,
reach, handle objects, and perform repetitive foot movements; and is unemployable based upon
his impairments, education, and past work experience. Id.
In July 2010, Dr. O’Connell indicated that, since treatment began in September 2007,
Plaintiff’s spinal and orthopedic pain have been uncontrollable. PageID 737-45. Dr. O’Connell
noted that Plaintiff has had multiple surgeries, prolonged physical therapy, no improvement in
his condition, and “regression in some areas.” PageID 737, 739. He also noted that his opinion
is based upon several MRIs and a positive EMG for nerve damage. Id. Dr. O’Connell stated
Plaintiff’s spinal-ortho surgeons and neurosurgeons “have exhausted treatment to control
[Plaintiff’s] paraspinal disc/bone disease.” Id. Additionally, he reported Plaintiff’s paraspinal
pain to be a limiting factor, and noted, “[f]rom prior to seeing me, [Plaintiff’s] back has been a
progressive failure of interventions both conservative, like PT/pain blocks, and surgeries.”
PageID 738, 741. Furthermore, Dr. O’Connell opined “[Plaintiff] is unemployable based on his
physical restrictions” and “[m]edicine to date has been unable to ‘fix’ him to a reasonable
employable state.” PageID 737, 740-41.
Also, in July 2010, Dr. O’Connell completed an RFC questionnaire, and opined Plaintiff
cannot sit, stand, or walk more than one hour daily, and cannot lift more than 10 pounds
occasionally. PageID 742-45. Dr. O’Connell stated that Plaintiff cannot bend, twist from side to
side, reach above shoulder level, squat, kneel, climb stairs, or climb ladders/scaffolding. Id. Dr.

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O’Connell also indicated Plaintiff requires complete freedom to rest frequently without
restrictions, and cannot stay in one position for longer than 30-40 minutes. Id.
The ALJ determined Dr. O’Connell’s opinion “cannot be given controlling or even
deferential weight” because his “conclusions are neither well supported by medically acceptable
clinical and laboratory diagnostic techniques nor consistent with the other substantial evidence in
the case record.” PageID 104. Conversely, the ALJ accorded “significant weight” to the opinion
of Dr. Danopulos, and “great weight” to the opinion of Dr. Manos. Having reviewed the record
and considered the parties’ arguments, the Court finds the ALJ’s decision in this regard to be
unsupported by substantial evidence.
Social Security regulations require an ALJ give the opinion of a treating physician
controlling weight if it is “well-supported by medically acceptable clinical and laboratory
diagnostic techniques and not inconsistent with other substantial evidence in [the claimant’s]
case record….” 20 C.F.R. § 416.927(c)(2). Even assuming that a treating physician opinion is
not entitled to controlling weight, an ALJ must still consider the amount of weight that is
appropriate by applying factors including the length of the treatment relationship, frequency of
examination, specialization, and supportability of the opinion with the evidence of record. 20
C.F.R. §§ 416.927(c)(1)-(6). Furthermore, an ALJ must “always give good reasons in [his or
her] notice of determination or decision for the weight [the ALJ] give[s] [the claimant’s] treating
source’s opinion.” 20 C.F.R. § 416.927(c)(2).
Importantly, in weighing the medical evidence, “ALJs must not succumb to the
temptation to play doctor and make their own independent medical findings.” Simpson v.
Comm’r of Soc. Sec., No. 08-3651, 2009 U.S. App. LEXIS 19206, at *36-37 (6th Cir. Aug. 27,
2009). Accordingly, “an ALJ may not substitute his [or her] own medical judgment for that of

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the treating physician where the opinion of the treating physician is supported by the medical
evidence.” Id. (internal quotations omitted); see also Bledsoe v. Comm’r of Soc. Sec., No.
1:09cv564, 2011 U.S. Dist. LEXIS 11925, at *7 (S.D. Ohio Feb. 8, 2011) (“An ALJ is not
permitted to substitute her own medical judgment for that of a treating physician and may not
make her own independent medical findings”). “While an ALJ is free to resolve issues of
credibility as to lay testimony, or to choose between properly submitted medical opinions, the
ALJ cannot substitute his [or her] own lay ‘medical’ opinion for that of a treating or examining
doctor.” Beck v. Comm’r of Soc. Sec., No. 1:10-cv-398, 2011 U.S. Dist. LEXIS 90029, at *14
(S.D. Ohio June 9, 2011).
In August 2006, after conducting a consultative examination, Dr. Danopulos reported the
following objective findings:
1) Status post cervical spine discectomy and decompression plus interbody
fusion at C5-C6 with current chronic pain with satisfactory surgery;
2) Right hip arthralgias;
3) Right knee arthralgias;
4) Right ankle discomfort with right ankle arthralgias;
5) Bilateral shoulder arthralgias; [and]
6) Lumbo/sacral spine arthalgias.
PageID 451.

Although Dr. Danopulos opined “[Plaintiff’s] ability to do any work-related

activities is affected in a negative way from the chronic cervical spine pain which is triggered
from his C5-C6 cervical discectomy for decompression and interbody fusion,” he never offered
an opinion regarding the level of restriction on Plaintiff’s RFC caused by such an impairment.
See PageID 445-51.
In according “significant weight” to Dr. Danopulos’ opinion, the ALJ considered the
length of time between his examination and the hearing, but nevertheless concluded “the record
contains no evidence that the claimant’s cervical impairment has deteriorated since [his] opinion

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was rendered [in August 2006].” PageID 104. However, the ALJ’s reasoning in this regard is
unsupported -- if not completely contradicted -- by the record.
At the time of Dr. Danopulos’ examination, Plaintiff’s C5-C6 fusion surgery and postsurgical recovery had already occurred. However, since that time, the evidence shows that
Plaintiff’s neck and back impairments have, in fact, deteriorated. For instance, whereas an MRI
from October 2006 showed Plaintiff’s C7-T1 to be “normal,” see PageID 604, an August 2010
MRI, as read by James Tstatalis, M.D., shows a “progression of disease at the C7-T1 level.”
PageID 748-50.

In addition, in January 2009, Plaintiff underwent a second fusion and

discectomy surgery, this time at the L5-S1 vertebrae. See PageID 631-33. Immediately prior to
the operation, Plaintiff was diagnosed with “L5-S1 degenerative disk disease” and “[d]isk
herniation with chronic low back pain” by two surgeons, Marcos Amongero, M.D., and Damian
Lebamoff, M.D. Id.
The ALJ’s reliance on Dr. Manos’ opinion is similarly misplaced, as it suffers from the
same deficiencies as Dr. Danopulos’ opinion. Dr. Manos never examined Plaintiff, and only
reviewed the record through February 2008. Dr. Manos then opined that Plaintiff had the RFC
to occasionally lift 20 pounds; frequently lift 10 pounds; stand or walk approximately 6 hours in
an 8-hour workday; sit approximately 6 hours in an hour workday; push/pull without restriction;
never climb ladders/ropes/scaffolds; and occasionally kneel, crouch, and/or crawl. PageID 58592. However, Dr. Manos’ review of the record did not include any of Dr. O’Connell’s reports,
recent MRIs, or Plaintiff’s medical records leading up to and following his January 2009
discectomy and fusion surgery. As such, Dr. Manos’ RFC finding -- that Plaintiff is capable of
performing light work -- does not take into consideration a significant portion of the record.
Moreover, the ALJ’s decision to adopt such an RFC is unsupported by substantial evidence.

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The opinions to which the ALJ gave significant weight do not account for Plaintiff’s
January 2009 L5-S1 fusion; Plaintiff’s physical condition in the months prior to January 2009
which brought about the necessity for a second fusion surgery; the reported “progression of
disease at the C7-T1 level” as shown by the August 2010 MRI; or any potential combined effect
that a second fusion has on Plaintiff’s RFC.

Instead of adopting the 2006 consultative

examination findings, or the RFC assessment issued in 2008, the ALJ could have solicited the
opinion of a medical expert, ordered an additional consultative exam, or sent the MRIs, surgical
records, and other treatment records back to Dr. Manos for an updated assessment. However, no
such steps were taken. Instead, the ALJ discounted Dr. O’Connell’s opinion and formulated
Plaintiff’s RFC based upon her own lay interpretation of the raw medical evidence of record
from March 2008 onward.
This Court has stressed the importance of medical opinions to support a claimant’s RFC,
and cautioned ALJs against relying on their own expertise in drawing RFC conclusions from raw
medical data. See Mabra v. Comm’r of Soc. Sec., No. 2:11-cv-00407, 2012 U.S. Dist. LEXIS
84504, *25-32 (S.D. Ohio June 19, 2012) (Deavers, M.J.); Isaacs v. Comm’r of Soc. Sec., No.
1:08-CV-00828, 2009 U.S. Dist. LEXIS 102429, at *10 (S.D. Ohio Nov. 4, 2009) (Hogan, J.)
(“The residual functional capacity opinions of treating physicians, consultative physicians, and
medical experts who testify at hearings are crucial to determining a claimant’s RFC because ‘[i]n
making the residual functional capacity finding, the ALJ may not interpret raw medical data in
functional terms’”) (quoting Deskin v. Comm’r of Soc. Sec., 605 F. Supp. 2d 908, 912 (N.D.
Ohio 2008)). See also Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (“As a lay person,
however, the ALJ was simply not qualified to interpret raw medical data in functional terms and
no medical opinion supported the [ALJ’s RFC] determination”). Moreover, this Court has found

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that an ALJ is not qualified to translate raw medical data, such as MRIs, into functional capacity
determinations. See Mabra, 2012 U.S. Dist. LEXIS 84504, at *30-34 (citing Roso v. Comm’r of
Soc. Sec., No. 5:09CV198, 2010 U.S. Dist. LEXIS 28308, at *8 (N.D. Ohio Mar. 11, 2010)
(“[T]he ALJ is simply not qualified to interpret the raw medical data in these MRI reports and no
medical opinion in the record supports the ALJ’s determination”)). See also Meadors v. Astrue,
370 F.App’x 179, 183 (2d Cir. 2010) (holding that, although MRI results showed only mild
degenerative changes of a claimant’s lumbar spine, “the ALJ was not at liberty to substitute his
own lay interpretation of that diagnostic test for the uncontradicted testimony of [the treating
physician], who is more qualified and better suited to opine as to the test’s medical
significance”).
The Court recognizes there are limited occasions when the medical evidence is so clear,
and so undisputed, that an ALJ would be justified in drawing functional capacity conclusions
from such evidence without the assistance of a medical source. See Deskin, 605 F. Supp. 2d at
912 (“To be sure, where the medical evidence shows relatively little physical impairment, an
ALJ permissibly can render a commonsense judgment about functional capacity even without a
physician’s assessment”). This, however, is not such a case. The ALJ impermissibly relied on
her own interpretation of the medical data of record, and improperly substituted her
interpretation in place of the opinions of Plaintiff’s treating physician.

Under these

circumstances, the ALJ’s RFC determination is unsupported by substantial evidence. Because
the ALJ improperly relied on this determination to conclude that Plaintiff can perform a number
of jobs in the national economy, remand is necessary. See Mabra, 2012 U.S. Dist. LEXIS
84504, at *30-34.

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Under Sentence Four of 42 U.S.C. § 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. Sec’y of
Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994). Here, a judicial award of benefits is
unwarranted because the record does not show that “proof of disability is overwhelming or proof
of disability is strong and evidence to the contrary is lacking,” as required for a judicial award of
benefits in the Sixth Circuit. Id.
IV. RECOMMENDATION
For the foregoing reasons, the Court finds that, as more fully explained above, the ALJ’s
decision is unsupported by substantial evidence, and recommends that it be reversed and
remanded to the Commissioner of Social Security under the Fourth Sentence of 42 U.S.C.
§ 405(g). See id. at 173-76.
IT IS THEREFORE RECOMMENDED THAT:
1.

The Commissioner’s non-disability finding be found unsupported by
substantial evidence, and REVERSED;

2.

This matter be REMANDED to the Commissioner under the Fourth
Sentence of 42 U.S.C. § 405(g) for proceedings consistent with this
opinion; and

3.

This case be CLOSED.

January 24, 2013

s/Michael J. Newman
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)(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 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).

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