Wilkins v. Commissioner of Social Security Administration

Filing 17

REPORT AND RECOMMENDATIONS - IT IS THEREFORE RECOMMENDED THAT: 1) the ALJs non-disability finding be vacated; 2) No finding be made as to whether Plaintiff was under a disability; 3) this matter be REMANDED to the Social Security Administration pursuant to Sentence Four of 42 U.S.C. § 405(g); and 4) the case be TERMINATED on the docket of this Court. Objections to R&R due by 1/21/2014. Signed by Chief Magistrate Judge Sharon L Ovington on 1/3/2014. (rms)

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

:

Plaintiff,

:
Case No. 3:13cv00049

vs.

:

CAROLYN W. 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 Adale Wilkins brings this case challenging the Social Security

Administration’s denial of her applications for Supplemental Security Income (SSI) and
Disability Insurance Benefits (DIB). Plaintiff protectively filed her SSI and DIB
applications in July 2009, asserting that she has been under a “disability” since April 30,
2008.2 (PageID## 214-20, 221-23). Plaintiff claims to be disabled due to permanent
nerve damage. (See PageID# 241).

1

Attached hereto is NOTICE to the parties regarding objections to this Report and
Recommendations.
2

During the administrative hearing, Plaintiff amended her onset date of disability to January 18,
2008. (PageID## 100-01).

1

After various administrative proceedings, Administrative Law Judge (ALJ) Carol
K. Bowen denied Plaintiff’s applications based on her conclusion that Plaintiff’s
impairments did not constitute a “disability” within the meaning of the Social Security
Act. (PageID## 69-84). The ALJ’s nondisability determination and the resulting denial
of benefits later became the final decision of the Social Security Administration. This
Court has jurisdiction to review the administrative denial of her applications. See 42
U.S.C. §§ 405(g), 1383(c)(3).
The case is before the Court upon Plaintiff’s Statement of Errors (Doc. #8), the
Commissioner’s Memorandum in Opposition (Doc. #15), Plaintiff’s Reply (Doc. # 16), the
administrative record (Doc. #6), and the record as a whole.
II.

Background
A.

Plaintiff’s Vocational Profile and Testimony

Plaintiff was 35 years old on her alleged disability onset date, which defined her as
a “younger individual” for purposes of resolving her DIB and SSI claims. See 20 C.F.R.
§§ 404.1563(c); 416.963(c)3; (PageID## 82, 236). Plaintiff attended school through the
10th grade and has a “limited” education. See 20 C.F.R. § 404.1564(b)(3); (PageID## 82,
247). She has past relevant employment as a factory assembler, fast food worker,
housekeeper, laboratory technician, and nursing assistant. (PageID# 242).

3

The remaining citations will identify the pertinent DIB Regulations with full knowledge of the
corresponding SSI/DIB Regulations.

2

Plaintiff testified that she has a 5 year old son and custody of her 12 year old
nephew. (PageID# 102). Plaintiff is able to use public transportation and took a bus to
the hearing. (PageID# 107). She has not worked since January 2008. She attempted to
get a job a few weeks after her surgery because she was “having hard times.” (PageID#
103). Plaintiff testified she is unable to work due to back pain, severe depression, and
irritability. (PageID# 104).
Plaintiff sees her family physician every four weeks and was on a waiting list to
see a new pain specialist. (PageID## 104-05). She sees her counselor every two weeks
and the psychiatrist every two months. (PageID# 105). Plaintiff listed her medications
and testified that she is taking them as prescribed. (Id.). She noted no side effects from
her medications, but also stated they did not provide her with complete relief from her
symptoms. (PageID# 106). Besides her medications, she has not been in physical
therapy or done anything else for pain relief. (Id.).
As to her daily routine, Plaintiff normally wakes up “[s]omewhere between 8:30,
9:00.” She takes care of her personal hygiene, then cleans and bathes her 5 year old son.
(PageID# 106). She performs daily chores (such as washing dishes), but noted she has to
take a break because the entire left side of her body “just throbs.” (PageID# 107). She
stated that she cooks but it takes her a long time. (PageID# 108). Her sister or cousin go
grocery shopping for her. (Id.). During the day she watches television. (PageID# 109).
Her brother walks her son to school. (PageID# 110). She has a friend that helps her

3

clean. (Id.). Her nephew’s principal takes him to practice and sporting events. (PageID#
111).
Plaintiff estimated that she could walk from her house to the local bus stop.
(PageID# 107). She could stand in one place for “[p]robably about 10 minutes.”
(PageID# 112). She estimated she could sit for about 10 or 15 minutes. She stated that
sitting at the hearing was “breaking me all the way down.” (PageID# 113). She does not
carry bags. (Id.). Plaintiff testified she has no problem using her arms or hands. (Id.).
B.

Vocational Expert Testimony

A Vocational Expert (VE) also testified at the administrative hearing. (PageID##
118-21). The VE described Plaintiff’s past work as a housekeeper (classified at the
heavy, unskilled level); laundry worker (classified at the medium, unskilled level);
medical lab technician (classified at the light, skilled level); and nurse’s aide (classified at
the medium, semiskilled level). (PageID# 119). The VE was asked a hypothetical
question based on an individual who has the residual functional capacity to perform light
exertional work with the following limitations: an option to alternate between sitting and
standing at 15-minute intervals; only occasional climbing of ramps or stairs; no climbing
of ladders, ropes, or scaffolds; no crawling; occasional stooping; avoidance of
concentrated exposure to chemicals and other irritants; no exposure to hazardous
machinery or unprotected heights; no driving or operation of motor vehicles as part of job
duties; no work involving strict production quotas or strict time limits; no

4

public interaction; and only superficial interaction with co-workers. (PageID## 119-20).
The VE testified that a person requiring those limitations would be able to perform her
past relevant work as a medical lab technician, as well as 6,000 other light exertional jobs
in the regional economy (such as office helper, mail clerk, or photo copy machine
operator). At the sedentary exertional level, the VE identified 3,500 available positions
(such as lens inserter, frontal assembler, or weight tester). (PageID# 120). The VE
further testified that his testimony is consistent with the Dictionary of Occupational Titles
(DOT), and although the sit/stand option was not addressed in the DOT, he considered
published research. (Id.).
When cross-examined by Plaintiff’s counsel, the VE testified that if a person was
absent three times a month or was off task for a third of the day, the hypothetical
individual would not be able to maintain full-time employment. (PageID# 121).
C.

Medical Opinions
Plaintiff’s family physician, Scott Shaw, M.D., completed numerous Basic

Medical forms for the Ohio Department of Job and Family Services. In August 2009, Dr.
Shaw opined that Plaintiff could stand/walk for 1 hour in an 8-hour workday, up to ½
hour without interruption; could sit for 1 hour in an 8-hour workday, up to ½ hour without
interruption; and could lift/carry 6-10 pounds frequently. (PageID# 324). Dr. Shaw
opined that Plaintiff’s ability to push/pull, bend, reach, handle, and perform repetitive foot
movements are extremely limited, but her ability to see, hear, and speak is not

5

significantly limited. (Id.). He noted that her low back pain at L5-S1, asthma,
hyperlipidemia, and hypothyroidism are what led him to his findings. (PageID# 323).
W. Jerry McCloud, M.D., reviewed the file on behalf of the Ohio Bureau of
Disability Determination on November 15, 2009. (PageID## 535-42). Dr. McCloud
concluded that Plaintiff could lift, carry, push and pull 20 pounds occasionally and 10
pounds frequently. (PageID# 536). Dr. McCloud opined that Plaintiff could stand and/or
walk about 6 hours in an 8-hour workday; and sit about 6 hours in an 8-hour workday.
(Id.). Plaintiff could never climb ladders, ropes, or scaffolds. (PageID# 537). Dr.
McCloud also found that Plaintiff was to avoid hazards such as machinery, heights, and
commercial driving because she is prescribed narcotics. (PageID# 539). Dr. McCloud
concluded that Plaintiff’s statements were only partially credible, noting that the evidence
shows that Plaintiff had lumbar surgery in April 2008 and there were no surgical
complications. However, he noted she continues to report chronic back pain with left leg
pain and is in pain management. On examination, she has a normal gait and no evidence
of muscle weakness. Dr. McCloud concluded there was no evidence to limit walking or
standing to only 15 minutes. (PageID# 540). Another state agency physician, Leigh
Thomas, M.D., affirmed Dr. McCloud’s assessment on March 29, 2010. (PageID# 579).
Dr. Thomas gave Dr. Shaw’s opinion no weight finding that “[Plaintiff’s] [activities of
daily living] show significantly greater ability to function.” (Id.).
On November 30, 2009, Plaintiff’s treating pain specialist, Bruce Kay, M.D.,
opined in a treatment note that he felt that Plaintiff “is disabled based on the fact that she
6

has had back surgery, has chronic scar tissue, epidural fibrosis around the nerve root
based on an MRI scan and has obesity. That combination makes her disabled from
gainful employment.” (PageID# 687).
In April 2010, Dr. Shaw noted Plaintiff’s health status as “good/stable” with
treatment. (PageID# 580). He opined that Plaintiff could stand for 1 hour out of 8 and
uninterrupted for a ½ hour; and sit for 1 hour out of 8 and uninterrupted for a ½ hour.
She could frequently lift/carry up to 5 pounds and occasionally lift/carry up to 10 pounds.
She was extremely limited in her ability to push/pull, bend, reach, handle, and perform
repetitive foot movements. (PageID# 581). Dr. Shaw concluded that Plaintiff was
unemployable for 12 months or more. (Id.).
In September 2010, Dr. Shaw completed a similar Basic Medical form except that
he found that Plaintiff could frequently lift/carry up to 10 pounds. (PageID## 582-83).
On December 29, 2010, Dr. Shaw completed interrogatories. Dr. Shaw concluded
that based on Plaintiff’s back pain she was unable to do the following: be prompt and
regular in attendance; withstand the pressure of meeting normal standards of work
productivity and work accuracy without significant risk of physical or psychological
decompensation or worsening of her physical and mental impairments; complete a normal
workday or workweek without interruption from psychologically and/or physically based
symptoms; and perform at a consistent pace without unreasonable number and length of
rest periods. (PageID## 715-17). According to Dr. Shaw, Plaintiff’s physical abilities are
affected by her low back pain and decreased range of motion; she could lift/carry up to 10
7

pounds; stand/walk for 1 hour out of 8 and uninterrupted for a ½ hour; and sit for 1 hour
out of 8 and uninterrupted for a ½ hour. (PageID# 717). Dr. Shaw also opined that
Plaintiff was to never climb, balance, stoop, crouch, kneel, or crawl. (PageID# 718). Due
to her asthma, Plaintiff was also found to be restricted from environments with dust and
fumes. (PageID## 719-20). Dr. Shaw concluded that Plaintiff could not perform even
sedentary work. (PageID# 721).
III.

Administrative Review
A.

“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). Narrowed to its statutory
meaning, a “disability” includes only 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 469-70 (1986).
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.
Sec’y of Health & Human Servs., 974 F.2d 680, 683 (6th Cir. 1992); see also Hephner v.
Mathews, 574 F.2d 359, 361 (6th Cir. 1978).
B.

ALJ Bowen’s Decision
8

ALJ Bowen resolved Plaintiff’s disability claim by using the five-Step
sequential evaluation procedure required by Social Security Regulations. See PageID##
70-71; see also 20 C.F.R. § 404.1520(a)(4). Her pertinent findings began at Step 2 of the
sequential evaluation where she concluded that Plaintiff had the following severe
impairments: laminectomy syndrome; obesity; mood disorder; cannabis dependence in
reported recent remission; and mild asthma. (PageID# 71).
The ALJ concluded at Step 3 that Plaintiff did not have an impairment or
combination of impairments that met or equaled the criteria in the Commissioner’s
Listing of Impairments. (PageID# 76).
At Step 4, the ALJ concluded that Plaintiff retained the residual functional
capacity (RFC) to perform light work with the following limitations: 1) lifting and
carrying of 10 pounds frequently and lifting up to 20 pounds occasionally; 2)
standing/walking about 6 hours and sitting about 6 hours out of a standard 8-hour
workday; 3) the option to alternate between sitting and standing at 15-minute intervals; 4)
occasional climbing of ramps or stairs; 5) no climbing of ladders, ropes, or scaffolds; 6)
no crawling; 7) occasional stooping; 8) avoid concentrated exposure to chemicals and
other irritants; 9) no exposure to hazardous machinery or unprotected heights; 10) no
driving or operation of motor vehicles as part of job duties. Due to her mental
impairments, she is restricted from work involving strict production quotas or strict time
limits; no public interaction; and only superficial interaction with co-workers. (PageID#

9

78). The ALJ further found that Plaintiff is capable of performing her past relevant work
as a laboratory technician. (PageID# 82).
At Step 5, the ALJ concluded – considering Plaintiff’s age, education, work
experience, and residual functional capacity – there are other jobs that exist in significant
numbers in the national economy that she also can perform. (Id.).
The ALJ’s findings throughout her sequential evaluation led her to ultimately
conclude that Plaintiff was not under a disability and was therefore not eligible for DIB or
SSI. (PageID# 83).
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 Soc. Sec., 581 F.3d 399, 406 (6th Cir.
2009); see Bowen v. Comm’r of Soc. Sec., 478 F3d 742, 745-46 (6th Cir. 2007).
Review for substantial evidence is not driven by whether the Court agrees or
disagrees with the ALJ’s factual findings or by whether the administrative record contains
evidence contrary to those factual findings. Rogers v. Comm’r of Soc. Sec., 486
F.3d 234, 241 (6th Cir. 2007); see Her v. Comm’r of Soc. 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 Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004)). Substantial evidence consists of
10

“more than a scintilla of evidence but less than a preponderance...” Rogers, 486 F.3d at
241.
The second line of judicial inquiry – reviewing for correctness the ALJ’s legal
criteria – may result in reversal even if the record contains substantial evidence
supporting the ALJ’s factual findings. Rabbers v. Comm’r of Soc. 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 Soc. Sec., 378 F.3d 541,
546-47 (6th Cir. 2004)).
V.

Discussion
A.

The Parties’ Contentions

Plaintiff contends the ALJ erred in rejecting the opinions of her treating physician,
Dr. Shaw, and her treating pain specialist, Dr. Kay, and instead relying on the opinions of
the non-examining State agency reviewers. (Doc. #8, PageID## 817-84; Doc. #16,
PageID## 878-82). Plaintiff also contends that the ALJ erred in finding that she was not
credible in her statements of disabling pain. (Id., PageID## 824-25).
The Commissioner contends that the ALJ did not err when rejecting the opinions
of Dr. Shaw and Dr. Kay, but properly evaluated their opinions as required by the
Regulations. (Doc. # 15, PageID## 862-72).
11

B.

Treating Source Opinions

The Sixth Circuit has held that claimants are “entitled to receive good reasons for
the weight accorded their treating sources independent of their substantive right to receive
disability benefits.” Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 875–76 (6th Cir. 2007);
see Cole v. Astrue, 661 F.3d 931, 937–38 (6th Cir. 2011); Wilson v. Comm’r of Soc. Sec.,
378 F.3d 541, 544 (6th Cir. 2004). “[T]he procedural requirement exists, in part, for
claimants to understand why the administrative bureaucracy deems them not disabled
when physicians are telling them that they are.” Smith, 482 F.3d at 876; see Gayheart v.
Comm’r of Soc. Sec., 710 F.3d 365 (6th Cir. 2013).
Generally, “the opinions of treating physicians are entitled to controlling weight.”
Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 540 (6th Cir. 2007), citing Walters v.
Comm’r of Soc. Sec., 127 F.3d 525, 529-30 (6th Cir. 1997). However, ‘[i]t is an error to
give an opinion controlling weight simply because it is the opinion of a treating source if
it is not well-supported by medically acceptable clinical and laboratory diagnostic
techniques or if it is inconsistent with the other substantial evidence in the case record.’”
Blakley, 582 F.3d at 406, quoting, Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *2 (July 2,
1996). In Wilson, 378 F.3d at 546, the Sixth Circuit noted that a treating physician’s
opinion can be discounted if: (1) it is not supported by medically acceptable clinical and
laboratory diagnostic techniques, (2) it is inconsistent with substantial evidence in the
record, (3) it does not identify the evidence supporting its finding, and (4) if it fares
poorly when applying the factors listed in 20 C.F.R. § 404.1527(d)(2), which include,
12

inter alia, the length and frequency of examinations, the amount of evidence used to
support an opinion, the specialization of the physician, and consistency with the record.
C.

Analysis

In considering Dr. Shaw’s opinions, ALJ Bowen reviewed the record and medical
evidence before her and concluded that his opinions were entitled to “little weight.”
Specifically, the ALJ stated:
The undersigned finds the reports of Dr. Shaw to be entitled to little weight
as they rely perhaps, too much on the subjective allegations of the claimant.
These reports are filled out for continued access to a county benefits
program, which allows her to see a doctor. The MRI is suggestive of
back problems after surgery however; there has been no physical or aqua
therapy. There have only been three epidural injections since April 2008
despite Dr. Kay’s positive assessment of their effectiveness. There has been
no suggestion of further surgery to remove the scar tissue, in fact, Dr. Kay
strongly stated she was not a surgical candidate. The claimant has not been
medication compliant with her prescribed medications and she takes illegal
medications. Further, if her pain was as chronic as Dr. Shaw and the
claimant reports one wonders why it has taken sixteen months to obtain a
referral to another pain management doctor. The record as a whole
does not support the level of limitation suggested by Dr. Shaw. Also of note
and despite Dr. Shaw’s dire predictions of her medical condition, the
claimant raises two children by herself, ages 5 and 12. The claimant clothes
and feeds the children. She cooks for them. She assists the five year old
with bathing. She is able to take public transportation. The claimant washes
dishes. The claimant's activities of daily living suggest a far more active
claimant than the picture Dr. Shaw paints. Accordingly, his opinion is given
little weight.
(PageID## 73-74).
Plaintiff alleges disability due to her chronic medical history involving low back
pain. (PageID# 241). The medical evidence reveals that Plaintiff was involved in a
motor vehicle accident in March 2006, which resulted in cervical spine and lumbar spine
13

pain. (PageID# 294). Objective tests of record include a MRI from March 2008 which
showed a bulging disc with annular tear at L4-5 affecting the nerve root (PageID# 490)
and a MRI of the lumbar spine taken in April 2008 which revealed lumbar spondylitic
changes most prominent at the L4-5 and L5-S1 levels. (PageID## 309-10). Plaintiff
underwent an endoscopic left L5-S1 discectomy on April 30, 2008. (PageID## 313-20).
Subsequent treatment with Dr. Shaw showed left leg radiculopathy and a reduced range
of motion of her spine. (See PageID## 492, 494-95, 498-99, 503, 505-08, 511). At the
administrative hearing, Plaintiff testified that she is unable to work due to back pain,
severe depression, and irritability. (PageID# 104). Dr. Shaw’s four opinions stating that
Plaintiff is disabled are consistent with each other, the treatment notes from his practice,
Dr. Kay’s treatment notes, and the record as a whole. These findings support Dr. Shaw’s
opinion.
The record makes clear that Dr. Shaw was responsible for coordinating Plaintiff’s
care with the other specialists of record, and that he was well-aware of Plaintiff’s
diagnoses and treatments provided by her other health care providers. See 20 C.F.R. §
404.1527(c)(2); Blakley, 582 F.3d at 406. Based on his long-term treatment relationship
with Plaintiff, Dr. Shaw reasonably opined that Plaintiff was not able to perform the
exertional requirements of even sedentary work on a sustained basis. (PageID## 323-24,
580-81, 582-83, 715-17). These opinions were wrongly accorded minimal or no
deference by the ALJ. Dr. Shaw’s opinions are supported by objective medical data and
consistent with the other evidence of record.
14

Moreover, the Court finds that the ALJ erred in her failure to appropriately weigh
and give good reasons for not giving controlling weight to the findings of Dr. Shaw. If
the ALJ finds that the opinion of a treating source is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the
other substantial evidence ... of record,” the ALJ should give the opinion controlling
weight. 20 C.F.R. § 404.1527(c)(2).
While the regulations allow ALJs – under some circumstances and after a properly
balanced analysis – to give more weight to the opinions of consultative doctors than
treating physicians, “the regulations do not allow the application of greater scrutiny to a
treating-source opinion as a means to justify giving such an opinion little weight. Indeed,
they call for just the opposite.” Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 380 (6th
Cir. 2013).
Plaintiff’s primary argument involves the ALJ’s treatment of treating pain
specialist Dr. Kay’s opinion. As to Dr. Kay’s opinion, the ALJ found:
In November 2009, Dr. Kay included in an office note that he felt the
claimant was disabled based on her having surgery, having chronic scar
tissue, and having epidural fibrosis around the nerve root. He also noted
her obesity. The undersigned finds this opinion should be given little
weight. Dr. Kay's own office notes reflect that the claimant was doing well
on medications reporting that they controlled her symptoms. He felt the
epidural injections went well. Dr. Kay also recommended against further
back surgery noting the claimant's symptoms were nonphysiologic in
nature. The claimant's continued use of illegal drugs also complicated the
assessment of the claimant's post-surgical recovery and treatment. In May
2010, approximately five weeks after discharge the claimant presented at
the emergency room for back pain since she was no longer seeing Dr. Kay.
The examination revealed lumbar tenderness with reduced range of motion.
15

However, she also had normal motor function, normal sensory function, and
no focal deficits. Her extremities revealed no edema and normal range of
motion. The claimant told the staff that her pain was normally in her back
only. Staff noted no weakness but did state the claimant was walking
crouched over. She was diagnosed with chronic back pain, given
medication, and discharged. Of course the issue of disability is reserved to
the Commissioner and statements that a claimant is disabled or unable to
work are not medical source opinions entitled to any special significance.
In addition, the record – including Dr. Kay’s own notes – does not support
the conclusion that the claimant is disabled. Accordingly, as Dr. Kay has
not seen the claimant since March 2010, his opinion attesting to her
disability is given no weight.
(PageID## 72-73).

Dr. Kay’s opinion, however, is supported by objective medical findings and is
consistent with the remainder of the record. For example, treatment notes from his
practice reveal that even though Plaintiff reported that she was doing good and straight
leg raising test was negative on September 3, 2008, she had an antalgic walk and edema
of the distal fibula by October 2, 2008. (PageID## 361, 368). A MRI from October 6,
2008 demonstrated “post surgical changes at the L5-S1 level, with postsurgical fibrosis in
the left side of the central spinal canal, which appears to encroach upon the left S1 nerve
root.” (PageID# 429). On May 28, 2009, Dr. Kay noted that Plaintiff’s pain was
controlled with medication. However, he also reported that “an MRI clearly shows that
there is scar tissue around the S1 nerve root which is causing the numbness [of her left
leg].” (PageID# 341). On June 25, 2009, the physician assistant in Dr. Kay’s office
noted that Plaintiff was “having quite a bit of pain and burning sensation also with

16

numbness over the left lower extremity at the calf. Her MRI does show that she has a lot
of epidural fibrosis over the L5-S1 nerve root and this is definitely the cause of that.”
(PageID# 339). On July 28, 2009, Plaintiff called with complaints of cramping in her left
leg. (PageID# 333). In August 2009, the physician’s assistant noted that Plaintiff
“continued to complain of low back pain with left lower extremity pain secondary to post
laminectomy syndrome.” (PageID# 326). On November 30, 2009, in the same treatment
note where he opines that Plaintiff is disabled, Dr. Kay reported that she did well on the
epidural injections, but also that she might “be eventually a candidate for spinal cord
stimulator.” (PageID# 687). Dr. Kay’s opinion is also supported by other evidence and
treating source findings (i.e., Dr. Shaw’s opinion).
Dr. Kay’s opinion is also consistent with the remainder of the evidence,
particularly Plaintiff’s treatment history. Plaintiff received treatment for her low
back and left leg pain since at least March 2006. (PageID# 294). Plaintiff underwent an
endoscopic left L5-S1 discectomy on April 30, 2008. (PageID## 313-20). Further,
starting in April 2008, Plaintiff regularly went to the Dayton Outpatient Center Pain
Clinic and American Health and Pain Management Dayton Pain Center for relief.
Treatments included medication management and lumbar epidural blocks. See generally
PageID## 326-454, 544-77, 681-706.
The ALJ replaced a well-supported treating specialist’s opinion with her own
medical theory. The ALJ may have expertise in some matters, but does not supplant the
medical expert. Hall v. Celebreeze, 314 F.2d 686, 690 (6th Cir. 1963). “[A]n ALJ must
17

not substitute his own judgment for a physician's opinion without relying on other
evidence or authority in the record.” Clifford v. Apfel, 227 F.2d 863, 870 (7th Cir. 2000);
see Rosa v. Callahan, 168 F.3d 72, 78-79 (2nd Cir. 1999)(“[T]he ALJ cannot arbitrarily
substitute his own judgment for competent medical opinion.”)
In determining Plaintiff’s RFC, the ALJ relied on the state agency opinions. In
doing so, the ALJ erred by not evaluating the opinions of Dr. McCloud and Dr. Thomas
under the required legal criteria. See PageID## 74, 79-80. The ALJ thus failed to
comply with the Commissioner’s Regulations requiring the ALJ to evaluate the opinions
of non-treating medical experts under the same regulatory factors – supportability,
consistency, specialization, etc. – that apply to treating medical source opinions. See Soc.
Soc. Ruling 96-6p, 1996 WL 374180 at *2-*3 (interpreting, in part, 20 C.F.R.
§404.1527(e)). Plaintiff’s treating sources are in a better position to opine on the practical
impact, in terms of functional limitations, from Plaintiff’s clinical symptoms and
examination results. Dr. McCloud based his RFC findings on nothing more than the
paper file and offers no explanation for the exertional limitations he establishes beyond a
mere recitation of Plaintiff’s impairments. (PageID## 536-37). Nothing else in Dr.
Thomas’ RFC report indicates how he reaches the conclusion that Dr. Shaw’s opinion
should not be given any weight other than by considering Plaintiff’s daily activities.
(PageID# 579).
For the treating physician rule to have the meaning and practical force prescribed
in the regulations, the opinion of a treating source may not be afforded “little” or “no
18

weight” simply because it conflicts with the opinions of nontreating and nonexamining
doctors. Gayheart, 710 F.3d at 377.
Accordingly, the Court finds the ALJ did not apply the proper legal standards to
the opinions of Dr. Shaw and Dr. Kay.4
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. § 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).
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 id. However, Plaintiff is entitled to an Order
remanding this case to the Social Security Administration pursuant to Sentence Four of §
405(g) due to problems discussed supra.

4

In light of the above review, and the resulting need for remand of this case, an in-depth analysis
of Plaintiff’s remaining contentions and evaluation is unwarranted at this time.

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On remand, the ALJ should be directed to evaluate the evidence of record,
including the medical source opinions, under the applicable legal criteria mandated by the
Commissioner’s Regulation and Rulings and by case law; and to evaluate Plaintiff’s
disability claim under the required five-step sequential analysis to determine anew whether
Plaintiff was under a disability and whether her applications for DIB and SSI should be
granted.
IT IS THEREFORE RECOMMENDED THAT:
1.

The ALJ’s non-disability finding be vacated;

2.

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

3.

This matter be REMANDED to the Social Security Administration
pursuant to Sentence Four of 42 U.S.C. § 405(g) for further
proceedings consistent with this Report and Recommendations, and
any decision adopting this Report and Recommendations; and

4.

The case be TERMINATED on the docket of this Court.

January 3, 2014
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 Recommendation is
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 Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947,
949-50 (6th Cir. 1981).

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