Spaugy v. Commissioner of Social Security

Filing 13

REPORT AND RECOMMENDATIONS re 2 Complaint filed by Victoria Spaugy; IT IS THEREFORE RECOMMENDED THAT: 1. The Commissioner's non-disability finding be vacated; 2. No finding be made as to whether Plaintiff Victoria Spaugy was under a disabil ity 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. Objections to R&R due by 7/22/2013. Signed by Magistrate Judge Sharon L Ovington on 07/03/13. (pb1)

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

:

Plaintiff,

:
Case No. 3:12cv00081

vs.

:

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

:

District Judge Walter Herbert Rice
Chief Magistrate Judge Sharon L. Ovington

:
:

REPORT AND RECOMMENDATIONS1

I.

Introduction
Plaintiff Victoria Spaugy returns to this Court for the second time raising concerns

about the Social Security Administration’s denial of her January 2005 applications for
Disability Insurance Benefits and Supplemental Security Income. Invoking Sentence Four of
42 U.S.C. §405(g), this Court previously remanded the matter – with specific instructions –
for further consideration of Plaintiff’s DIB and SSI applications.
On remand, Administrative Law Judge Thomas R. McNichols II concluded that
Plaintiff is not under a “disability” as defined by the Social Security Act. This led him to
also conclude that Plaintiff was not eligible to receive DIB or SSI. (Tr. at 855-66).

1

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

The case is before the Court upon Plaintiff’s Statement of Errors (Doc. #8), the
Commissioner’s Memorandum in Opposition (Doc. #12), Plaintiff’s Reply (Doc. #12), the
administrative record, and the record as a whole.
Plaintiff seeks an Order reversing ALJ McNichols’ (second) decision or, at a
minimum, remanding the case to the ALJ to correct certain alleged errors. The
Commissioner seeks an Order affirming the ALJ’s decision.
This Court has jurisdiction to review the administrative denial of Plaintiff’s DIB and
SSI applications. See 42 U.S.C. §§405(g), 1383(c)(3).
II.

“Disability” Defined
To be eligible for SSI or DIB a claimant must be under a “disability” within the

definition of the Social Security Act. See 42 U.S.C. §§423(a), (d), 1382c(a). The definition
of the term “disability” is essentially the same for both DIB and SSI. See Bowen v. City of
New York, 476 U.S. 467, 469-70 (1986). A “disability” consists only of physical or mental
impairments that are both “medically determinable” and severe enough to prevent the
applicant from (1) performing his or her past job and (2) engaging in “substantial gainful
activity” that is available in the regional or national economies. See Bowen, 476 U.S. at 46970.
A DIB/SSI applicant bears the ultimate burden of establishing that he or she is under
a disability. See Key v. Callahan, 109 F.3d 270, 274 (6th Cir. 1997); see Wyatt v. Secretary
of Health and Human Services, 974 F.2d 680, 683 (6th Cir. 1992); see also Hephner v.
Mathews, 574 F.2d 359, 361 (6th Cir. 1978).
2

III.

Plaintiff’s Background And
ALJ McNichols’ First Nondisability Decisions
The Court’s previous description of the medical opinions and other medical evidence

is incorporated herein by reference. (Tr. at 872-76). Among the more salient points Plaintiff
presents is her assertion that she was under a disability, beginning on June 26, 2004, due to
the following health problems: chronic obstructive pulmonary disease (COPD) and high
blood pressure along with “Bipolar [sic], mood disorder, [and] migraines ....” (Tr. at 408; see
Tr. at 395-401, 793-95). Plaintiff’s COPD is emphysema. (Tr. at 857).
Plaintiff was considered a “younger” person under Social Security Regulations when
she filed her DIB and SSI applications and when ALJ McNichols issued his first nondisability decision. 20 C.F.R. §§404.1563(c); 416.963(c).2 She has a “limited” education as
defined by the Regulations. Id., §404.1564(b)(3). In the past she worked as a bartender,
short-order clerk, deli clerk, hand packer/crater, machine operator, and as a maintenance
helper.
ALJ McNichols concluded in his first nondisability decision that Plaintiff could
perform light work3 with the following limitations:
[S]he must be permitted to alternate periods of sitting and standing at
30-minute intervals and cannot crouch, crawl, or climb ladders, ropes, or
scaffolds. She is restricted to only occasional pushing or pulling and limited to
2

The remaining citations will identify the pertinent DIB regulations with full knowledge of the
corresponding SSI regulations.
3

Under the Regulations, “Light work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds....” 20 C.F.R. §404.1567(b).

3

working in clean-air, temperature-controlled environments with no exposure to
irritants. The claimant is also restricted to performing low-stress jobs which do
not involve production quotas, direct interpersonal contact with members of
the general public, or occupational exposure to drugs or alcohol.
(Tr. 28). The ALJ relied on the opinions of two record reviewers for the Ohio Bureau of
Disability Determinations (BDD), especially in support of his conclusion that Plaintiff was
limited to light work “in temperature-controlled environments with no exposure to irritants.”
Id. The ALJ also rejected the opinions provided by Plaintiff’s treating physician Karen
Frank, M.D. Id. at 29-30.
After learning that the Social Security Administration denied her DIB and SSI
applications, Plaintiff turned to this Court seeking judicial review of ALJ McNichols’ first
decision. Victoria Spaugy v. Michael J. Astrue, Comm’r of Social Sec., 3:10cv00106 (S.D.
Ohio). United States District Judge Walter Herbert Rice vacated ALJ McNichols’ decision
due, in part, to the ALJ’s inadequate consideration of Dr. Frank’s opinions. Judge Rice
explained:
1.
The Administrative Law Judge failed to provide sufficient
reasoning, pursuant to the Commissioner’s Regulations and prevailing case
law, for rejecting the opinion of Plaintiff’s treating physician, Dr. Karen
Frank, M.D., as to the [Plaintiff’s] limitations and restrictions. For example,
although ultimately limiting the Plaintiff to a “clean air, temperature controlled
environment,” Tr. 846, a limitation far broader than his initial limitation in the
hypothetical question to the Vocational Expert in which his description of “no
exposure or irritants” was qualified as meaning concentrated amounts of same,
the hearing officer nonetheless ignored certain limitations which Dr. Frank
described to wit: Plaintiff’‘s inability to be ‘around perfumes, cologne,
aftershave lotion, etc.” The Administrative Law Judge either ignored or
neglected to explain why he was not giving credence to those additional
limitations found by Dr. Frank, which may well have reduced the number of
available jobs to zero....
4

2.
In addition, in this Court’s opinion, the Commissioner failed to
give deference to the opinion of Dr. Frank, even if unable to give said medical
provider’s opinion controlling weight.
(Tr. at 885-86). Judge Rice remanded the case explicitly instructing the Social Security
Administration:
[T]o determine Plaintiff’s eligibility for benefits, to wit: at the very least, the
Administrative Law Judge must give full and adequate reasons, pursuant to the
Commissioner’s Regulations and prevailing case law, for giving or failing to
give, based upon the entirety of the record, the opinion of Dr. Karen Frank
controlling or, at the very least, deferential weight in the determination of
whether Plaintiff is entitled to benefits under the Social Security Act.
(Tr. at 887).
IV.

Proceedings On Remand
A.

Medical Evidence

Medical evidence added to the administrative record on remand included hospital
records, test results, and medical source opinions.
Plaintiff was hospitalized for ten days in late June to early July 2008. (Tr. 933-955).
Her discharge diagnoses included renal failure, aspiration pneumonia with possible sepsis,
polypharmacy, COPD, bi-polar disorder, depression, osteoporosis, hypertension, chronic
pain, and anemia. (Tr. 933).
A History and Physical Report, electronically signed by Dr. Frank in mid-July 2008,
described Plaintiff’s social history:
She is single. She lives at home with her mother. She is disabled, unable to
work due to the many different aspects of her condition, including the chronic
obstructive pulmonary disease, she cannot work around particulates, but also
the bipolar [disorder] makes it very difficult for her to work well with others at
5

times ....
(Tr. 935).
In September 2009, Plaintiff underwent a pulmonary function test. A physician
interpreted the results as showing a “Mild Restriction.” (Tr. 986). Her next pulmonary
function test, in February 2011, showed “severe obstruction.” (Tr. 985). Plaintiff underwent
a pulmonary function test in August 2011. (Tr. 1219-1221). The results showed “moderately
severe obstructive defect with significant bronchodilator response and lung volumes [and]
hyperinflation with air trapping and increased airway resistance.” (Tr. 1219).
Plaintiff underwent physical therapy from March 3, 2011, to June 2, 2011. (Tr. 10311045). The purpose of therapy was to address symptoms associated with lumbar
spondylosis. Plaintiff reported problems bending, squatting, carrying objects, climbing
stairs, kneeling, raising from a kneeling position, changing positions, sitting up straight, etc.
(Tr. 1045). Clinical findings revealed decreased trunk range of motion, decreased flexibility,
positive straight leg raising, etc. Id.
Dr. Wooten examined Plaintiff eight times between April 22, 2009 and November 9,
2011. Dr. Wooten also prescribed medications, ordered testing, and reviewed the testing.
(Tr. 1141-51, 1223-27). In June 2009 and July 2011, Dr. Wooten completed basic-medical
forms, opining that Plaintiff was limited to (1) lifting up to five pounds, (2) standing/walking
up to two hours, and (3) sitting up to five hours. (Tr. 1046-1049). In support of these
conclusions, Dr. Wooten referenced Plaintiff’s shortness of breath when walking 50 yards or
climbing a flight of stairs; her decreased range of lumbar-spine motion; and her increased
6

pain with prolonged sitting. (Tr. 1047, 1049). Dr. Wooten also marked boxes on the form
indicating her opinion that Plaintiff was unemployable. Id.
From October 2009 through October 2011, Plaintiff was treated in a pain clinic.
Treatment notes consistently document her reports of low-back pain. E.g., Tr. 1152-64,
1166-68, 1175-98. Her treatment consisted of pain medications, radio frequency, blocks, and
injections.
Turning to Plaintiff’s mental impairments, in November 2011 her treating
psychiatrist, Dr. Joseph Trevino, completed a questionnaire. (Tr. 1213-16). Dr. Trevino
diagnosed Major Depressive Disorder, Recurrent; PTSD; and Polysubstance Dependence in
Remission. (Tr. 1213-16). He assigned Plaintiff a GAF4 of 50, referring to serious
impairments in social or occupational functioning. Dr. Trevino opined Plaintiff’s
impairments would cause her to be absent from work more than three times per month, on
average. (Tr. 1215).
B.

Plaintiff’s Testimony

During the hearing ALJ McNichols held on remand in December 2011, Plaintiff
testified that she stopped working in 2002 due to breathing problems, including “real bad”
shortness of breath. (Tr. 1239). She has not worked since then. (Tr. at 1239-40). For
treatment, she uses inhalers and a nebulizer (four times a day). (Tr. 1240). She has difficulty
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).

7

being around perfumes, lotions, colognes, etc., which cause her to cough “real bad.” (Tr.
1241). When her COPD “acts up,” her ankles swell. She quit smoking in 2003 except for
one relapse in 2007. (Tr. 1243-44).
Plaintiff’s family doctors – Drs. Frank and Wooten – have diagnosed her with
fibromyalgia. (Tr. 1244-45). Her fibromyalgia mostly affects her hands and is helped by
Lyrica. (Tr. 1249). She estimated her hand pain at 6 out of 10 (on a scale of zero to 10: zero
equaling no pain; 10 equaling the worst pain imaginable). Hand pain causes her problems
picking things up, brushing her teeth, and moving buttons and zippers. This pain usually
arises once a week and lasts for half a day. Tr. 1260-61.
Plaintiff testified that she is able to walk 50 yards, stand for 30 minutes, sit for 30
minutes to one hour, and lift 5-10 pounds. She tries not to climb stairs due to shortness of
breath. (Tr. 1251).
She has limited activities of daily living and limited socialization. Depression causes
her to isolate herself from others. (Tr. 1246). She performs a few household chores and does
very little shopping. She has panic attacks a couple times per month. When these occur, she
feels like her heart is going to beat out of her chest. (Tr. 1257-88). She only leaves the house
once or twice a month. (Tr. 1262).
Plaintiff has not used drugs or alcohol since 2004 except for a single relapse in 2007.
(Tr. 1248).

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V.

Decision On Remand And Judicial Review
A.

Second Nondisability Decision

On remand, ALJ McNichols utilized the sequential-evaluation procedure required by
Social Security Regulations. See Tr. 855-66; see also 20 C.F.R. §404.1520(a)(4); Walters v.
Comm’r of Social Sec., 127 F.3d 525, 529 (6th Cir. 1997). At step 4 of the sequential
procedure, ALJ McNichols concluded – as he did in his first decision – that Plaintiff could
perform a limited range of light work. Specifically, he found:
[T]he claimant has the residual functional capacity to perform light work ...
except alternating sitting and standing at 30-minute intervals; no climbing
ropes/ladders/scaffolds or crouching or crawling; no more than occasional
pushing/pulling; clean-air, temperature-controlled environment with no
exposure to irritants; low stress work (no production quotas, direct
interpersonal contact with members of the general public or occupational
exposure to drugs or alcohol); with limited contact with coworkers and
supervisors, including no teamwork.
(Tr. at 862). At this point in the decision, ALJ McNichols considered Dr. Frank’s opinion
about Plaintiff’s “inability to ‘be around perfumes, cologne, aftershave lotion, etc.’” (Tr. at
862). The ALJ rejected this limitation, concluding, “Though restricting the claimant to
clean-air, temperature-controlled environment in the current residual functional capacity, the
undersigned has not included Dr. Frank’s restriction because the claimant has not proved
that she has such specific allergies causing substantial symptoms....” (Tr. 862).
The ALJ also rejected Dr. Frank’s opinion that Plaintiff could not perform even
sedentary work. In doing so, the ALJ relied on his discussion of Dr. Frank’s opinion in his
first nondisability decision. The ALJ took this approach, rather than further evaluating Dr.

9

Frank’s opinions, because – in the ALJ’s words – “[t]he Court did not raise any issue with
regard to rejection of these assessments other than with regard to restriction on exposure to
perfumes/odors ....” (Tr. at 864).
B.

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
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);
10

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)).
VI.

Discussion
A.

The Parties’ Main Contentions

Plaintiff presents two main arguments:
The ALJ failed to consider Dr. Frank’s opinion as ordered by Judge Rice in
the previous Order of remand..., when he merely addressed the issue
concerning “clean air” workplace limitations and failed to address the issue of
deference, due to mistakenly believing the “clean air” issue was the only issue
to consider.
The ALJ failed to properly consider treating source opinions of Dr[s.] Wooten
and Trevino according to its own Regulations and Rulings when he glossed
over the issue of deference.
(Doc. #8, PageID at 49) (capitalization omitted).
The Commissioner contends:
ALJ McNichols, in his previous decision, adequately explained the weight he
was giving to Dr. Frank’s exertional limitation conclusions.
ALJ McNichols reasonably discounted Dr. Wooten’s and Dr. Trevino’s
opinions.
(Tr. 82, 84).
B.

Medical Source Opinions

Social Security regulations recognize several different categories of medical sources:
11

treating physicians and psychologists, nontreating yet examining physicians and
psychologists, and nontreating yet record-reviewing physicians and psychologists. See
Gayheart v. Comm’r of Social Sec., 710 F.3d 365, 375 (6th Cir. 2013).
As a general matter, an opinion from a medical source who has
examined a claimant is given more weight than that from a source who has not
performed an examination (a “nonexamining source”), and an opinion from a
medical source who regularly treats the claimant (a “treating source”) is
afforded more weight than that from a source who has examined the claimant
but does not have an ongoing treatment relationship (a “nontreating source”).
In other words, “[t]he regulations provide progressively more rigorous tests for
weighing opinions as the ties between the source of the opinion and the
individual become weaker.”
Id., 710 F.3d at 375 (quoting, in part, Social Sec. Ruling No. 96–6p, 1996 WL 374180 at *2)
(other citations omitted).
A treating source’s opinion may be given controlling weight under the treatingphysician rule only if it is both well supported by medically acceptable data and not
inconsistent with other substantial evidence of record. Id. at 376 (citing 20 C.F.R.
§404.1527(c)(2)). “If the Commissioner does not give a treating-source opinion controlling
weight, then the opinion is weighed based on the length, frequency, nature, and extent of the
treatment relationship, as well as the treating source’s area of specialty and the degree to
which the opinion is consistent with the record as a whole and is supported by relevant
evidence.” Gayheart, 710 F.3d at 376 (citing 20 C.F.R. § 404.1527(c)(2)-(6)).
Unlike treating physicians, “opinions from nontreating and nonexamining are never
assessed for ‘controlling weight.’ The Commissioner instead weighs these opinions based on
the examining relationship (or lack thereof), specialization, consistency, and supportability,
12

but only if a treating-source opinion is not deemed controlling. Other facts ‘which tend to
support or contradict the opinion’ may be considered in assessing any type of medical
opinion.” Id. (citing 20 C.F.R. §§404.1572(c), 404.1527(c)(6)).
Plaintiff reads Judge Rice’s remand Order as directing the ALJ to address “two
issues: Restrictions concerning clean air environment in the workplace and deference to Dr.
Frank’s opinion.” (Doc. #8, PageID at 63). Plaintiff then acknowledges that ALJ McNichols
addressed the “clean air” issue. In this manner, Plaitniff first focuses her challenge on the
ALJ’s failure to consider Dr. Franks’ opinion. Plaintiff contends, “The ALJ was under the
erroneous impression the case was only remanded to consider the clean air environment (Tr.
864); thereby, failing to consider whether the opinion of Dr. Frank is due deference, as
directed by Judge Rice.” Id. (internal citations omitted).
The Commissioner maintains:
[T]here is no reason to think that Judge Wright [sic] was concerned about ALJ
McNichols’s weighing of the exertional limitation aspects of Dr. Frank’s
opinion. After all, Judge Wright [sic] references only Dr. Frank’s
perfume/after shave limitations, and seemingly takes no issue with ALJ
McNichols’s exertional findings – based on the assessments of multiple state
agency physicians – that Ms. Spaugy could perform a restricted range of light
work (Tr. 28, 30, 885-86).
(Doc. #12, PageID at 83).
The Commissioner misreads the remand decision by overlooking Judge Rice’s main
point: the ALJ “failed to provide sufficient reasoning, pursuant to the Commissioner’s
Regulations and prevailing case law, for rejecting the opinion of Plaintiff’s treating
physician, Dr. Karen Frank, M.D.” (Tr. at 885). Although Judge Rice addressed the ALJ’s
13

omission of Plaintiff’s inability to be “around perfumes, cologne, aftershave lotion, etc.” (Tr.
885-86), this arose as single example of the overarching flaw – the ALJ’s failure to
sufficiently explain his reasoning concerning Dr. Frank’s opinions – in the ALJ’s first
decision. This is seen in Judge Rice’s use of the introductory phrase, “For example ....” (Tr.
885). In addition, Judge Rice pointed out the ALJ’s failure to comply with the regulations by
observing that the ALJ “failed to give deference to the opinion of Dr. Frank, even if unable
to give said medical provider’s opinion controlling weight.” (Tr. at 886); see Gayheart, 710
F.3d at 376 (when the treating physician rule does not apply, ALJ must continue to weigh a
treating physician’s opinions under specific regulatory factors in §404.1527(d)(2-(6)). It is,
moreover, easy to again spot Judge Rice’s overriding concern in his specific remand
instruction:
[A]t the very least, the Administrative Law Judge must give full and adequate
reasons, pursuant to the Commissioner’s Regulations and prevailing case law,
for giving or for failing to give, based upon the entirety of the record, the
opinion of Dr. Karen Frank controlling or, at the very least, deferential weight
in determining whether Plaintiff is entitled to benefits under the Social
Security Act.
(Tr. 887). The issue thus becomes whether the ALJ’s second decision contains full and
adequate reasons, as the Regulations and case law require, for rejecting Dr. Frank’s
opinions. It does not.
Although the ALJ addressed Dr. Frank’s reference to Plaintiff’s “perfume/cologne”
limitation, the ALJ’s remaining review of Dr. Frank’s opinions merely references the
discussion in the ALJ’s first nondisability decision. Because Judge Rice found that

14

discussion inadequate – and because Judge Rice vacated the Commissioner’s first
nondisability decision (Tr. at 887) – it was error for the ALJ to rely on his prior discussion
of Dr. Franks without providing “full and adequate reasons ... for giving or for failing to give
... the opinion of Dr. Karen Frank controlling or, at the very least, deferential weight ....” (Tr.
887).
Furthermore, the ALJ’s first nondisability decision credited the opinions of two stateagency physicians, Drs. Holbrook and Pangalangan, over the opinions of Plaintiff’s treating
physician, Dr. Frank. The ALJ’s second decision did not address the opinions provided by
Drs. Holbrook and Pangalangan. The Commissioner is thus presently left with the ALJ’s
prior acceptance of Dr. Holbrook’s and Dr. Pangalangan’s opinions to support the ALJ’s
second rejection of Dr. Frank’s opinions. This is problematic because the ALJ’s first
nondisability decision provided no meaningful evaluation of the opinions provided by Drs.
Holbrook and Pangalangan. The ALJ only considered one factor applicable under the
Regulations by noting that their “conclusions are consistent with the updated medical
records ....” (Tr. at 28); see 20 C.F.R. §404.1527(c) (“we consider all of the following
factors in deciding the weight to give any medical opinion....”); see also 20 C.F.R.
§404.1527(e) (factors apply to opinions of state agency consultants and medical experts);
Social Security Ruling 96-6p, 1996 WL 374180 at *2 (same).
Even if it sufficed for the ALJ to apply only the consistency factor to the state-agency
physicians’ opinions, substantial evidence does not support the ALJ’s reasons for rejecting
Dr. Frank’s opinions. The ALJ recognized that Dr. Frank completed two Basic Medical
15

Forms, assessing Plaintiff’s ability to work. In August 2003, Dr. Frank indicated that
Plaintiff could not walk more than two hours a day and for only one hour at a time. She
noted that Plaintiff’s ability to sit during the workday was not affected. However, Dr. Frank
noted that Plaintiff could not lift more than 10 pounds occasionally or frequently. And Dr.
Frank noted that Plaintiff was moderately limited in her ability to push/pull. (Tr. at 558). By
September 2004, Dr. Frank indicated that Plaintiff could not walk or stand without
becoming short of breath. She again indicated that Plaitniff could only lift 10 pounds
occasionally and five pounds frequently. (Tr. at 531). Although ALJ McNichols
acknowledged that Dr. Frank had completed basic medical forms in August 2003 and
September 2004, the ALJ maintained that these assessments “essentially portray the
claimant as partially bedfast due to the severity of her respiratory complaints.” (Tr. at 30).
Yet it is unclear how Dr. Frank’s opinions were consistent with a person that was “partially
bedfast.” Exertionally, Dr. Frank has always assumed that Plaintiff was unlimited in her
ability to sit. (Tr. at 531, 558).
The ALJ also discounted Dr. Frank’s opinion on the ground that she “appears to have
based her conclusion that the claimant is disabled from all work activity primarily upon the
claimant’s subjective allegations and complaints, and she does not appear to have made any
effort to determine whether the claimant’s complaints are adequately supported by the
medical evidence of record.” (Tr. at 30). The ALJ, however, fails to cite to any evidence
supporting these reasons. Dr. Frank, moreover, did not simply base her restrictions on
Plaintiff’s subjective allegations. She specifically noted in her August 2003 opinion that the
16

results of a pulmonary function study showing FEV-l at 61% and DLCO at 36% led her to
her conclusions. (Tr. at 558). These were indeed the results of a pulmonary function study
administered by a specialist – pulmonologist Dr. Anigbogu in June 2002. (Tr. at 279).
Significantly, Dr. Anigbogu reached conclusions similar to Dr. Frank’s, concerning
Plaintiff’s ability to work. Dr. Anigbogu noted that Ms. Spaugy could stand/walk for no
more than two hours and for only one hour at a time. Dr. Anigbogu indicated that Ms.
Spaugy could only lift up to 10 pounds. And Dr. Anigbogu noted Ms. Spaugy was
moderately limited in her ability to push/pull. (Tr. at 264).
Accordingly, because the ALJ’s second decision did not contain full and adequate
reasons for rejecting Dr. Frank’s opinions, the decision fails to comply with Judge Rice’s
remand Order.5
VII.

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.
§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

5

In light of the above discussion, and the resulting need to remand this case, an in-depth analysis
of Plaintiff’s remaining challenge to the ALJ’s decision is unwarranted.

17

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.
Plaintiff, 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 DIB and/or SSI.
IT IS THEREFORE RECOMMENDED THAT:
1.

The Commissioner’s non-disability finding be vacated;

2.

No finding be made as to whether Plaintiff Victoria Spaugy 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.

July 3, 2013

s/Sharon L. Ovington
Sharon L. Ovington
Chief United States Magistrate Judge
18

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).

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