Cottingim v. Commissioner of Social Security

Filing 15

REPORT AND RECOMMENDATION1 THAT: (1) THE ALJS 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. Objections to R&R due by 6/5/2015. Signed by Magistrate Judge Michael J. Newman on 05/19/15. (pb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JUANITA COTTINGIM,
Plaintiff,

Case No.: 3:14-cv-121

vs.
COMMISSIONER OF
SOCIAL SECURITY,

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

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) THIS CASE BE CLOSED

This is a Social Security disability benefits appeal.

At issue is whether the

Administrative Law Judge (“ALJ”) erred in finding Plaintiff not “disabled” and therefore
unentitled to Disability Insurance Benefits (“DIB”).

This case is before the Court upon

Plaintiff’s Statement of Errors (doc. 10), the Commissioner’s memorandum in opposition (doc.
12), Plaintiff’s reply memorandum (doc. 14), the administrative record (doc. 6),2 and the record
as a whole.

1

Attached hereto is a 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 number.

I.
A.

Procedural History

Plaintiff filed for DIB alleging a disability onset date of February 8, 2010. PageID 23137. Plaintiff claims disability as a result of a number of impairments including, inter alia,
fibromyalgia, diabetes, osteoarthritis, pain, fatigue, and depression. PageID 275.
After initial denials of her application, Plaintiff received a hearing before ALJ Amelia G.
Lombardo on August 29, 2012. PageID 119-41. The ALJ issued a written decision thereafter
finding Plaintiff not disabled. PageID 95-112. Specifically, the ALJ’s findings were as follows:
1.

The claimant meets the insured status requirements of the Social Security
Act through March 31, 2015.

2.

The claimant has not engaged in substantial gainful activity since February
8, 2010, the alleged onset date (20 CFR 404.1571, et seq).

3.

The claimant has the following severe impairments: osteoarthritis in her
bilateral shoulders, status-post right shoulder arthroscopic surgery,
diabetes mellitus with mild peripheral neuropathy, obesity, fibromyalgia,
carpal tunnel syndrome status-post release, depression, and anxiety (20
CFR 404.1520(c)).

4.

The claimant does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).

5.

After careful consideration of the entire record, the undersigned finds that
the claimant has the residual functional capacity [“RFC”] to perform light
work[3] as defined in 20 CFR 404.1567(b) except unskilled work as
defined in the Dictionary of Occupational Titles (D.O.T.)[.] [S]he must

3

The Social Security Administration classifies jobs as sedentary, light, medium, heavy, and very
heavy depending on the physical exertion requirements. 20 C.F.R. § 404.1567. Light work “involves
lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10
pounds” and “requires a good deal of walking or standing, or . . . sitting most of the time with some
pushing and pulling of arm or leg controls.” Id. § 404.1567(b). An individual who can perform light
work is presumed also able to perform sedentary work. Id. Sedentary work “involves lifting no more
than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small
tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and
standing is often necessary in carrying out job duties.” Id. § 404.1567(a).
2

work in a low-stress environment that is not fast-paced, with no assemblyline production quotas, with only occasional contact with the general
public, coworkers and supervisors, only occasionally reaching overhead
bilaterally, and doing frequent handling and fingering.
6.

The claimant is unable to perform any past relevant work (20 CFR
404.1565).

7.

The claimant was born [in] 1962 and was 48 years old, which is defined as
a younger individual age 18-49, on the alleged disability onset date. The
claimant subsequently changed age category to closely approaching
advanced age (20 CFR 404.1563).

8.

The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564).

9.

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 82-41 and 20 CFR Part 404,
Subpart P, Appendix 2).

10.

Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 CFR 404.1569 and
404.1569(a)).

11.

The claimant has not been under a disability, as defined in the Social
Security Act, from February 8, 2010, through the date of this decision (20
CFR 404.1520(g)).

PageID 100-12.
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 33-38.
Plaintiff then filed this timely appeal. Cook v. Comm’r of Soc. Sec., 480 F.3d 432, 435 (6th Cir.
2007) (noting that, “[u]nder the Federal Rules of Appellate Procedure, [claimant] had 60 days
from the Appeals Council’s notice of denial in which to file his appeal”).

3

B. Evidence of Record
In her decision, the ALJ summarized the relevant medical evidence in this case. PageID
104-11. Plaintiff, in her Statement of Errors, sets forth a detailed recitation of the record
evidence. Doc. 10 at PageID 893-900. In her memorandum in opposition, the Commissioner
states that “[t]he ALJ’s decision and Plaintiff’s brief adequately discuss the medical evidence.”
Doc. 12 at PageID 915. Except as otherwise noted in this Report and Recommendation, the
undersigned incorporates Plaintiff’s summary and the ALJ’s recitation of the evidence.
II.
A. Standard of Review
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); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 74546 (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 Plaintiff
disabled. Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Thus, the ALJ has a “‘zone of
choice’ within which he [or she] can act without the fear of court interference.” Id. at 773.
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). “[A] decision of the

4

Commissioner will not be upheld where the [Social Security Administration] 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 be eligible for disability benefits, a claimant must be under a “disability” as defined
by the Social Security Act. 42 U.S.C. § 423(d)(1)(A). Narrowed to its statutory meaning, a
“disability” includes physical and/or mental impairments that are both “medically determinable”
and severe enough to prevent a claimant from (1) performing his or her past job and (2) engaging
in “substantial gainful activity” that is available in the regional or national economies. Id.
Administrative regulations require a five-step sequential evaluation for disability
determinations. 20 C.F.R. § 404.1520(a)(4). Although a dispositive finding at any step ends the
ALJ’s review, see Colvin, 475 F.3d at 730, 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. § 404.1520(a)(4); see also 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

5

under the Social Security Act’s definition. Key v. Comm’r of Soc. Sec., 109 F.3d 270, 274 (6th
Cir. 1997).
III.
In her Statement of Errors, Plaintiff alleges that the ALJ erred by improperly: (1)
assessing opinion evidence from treating physician Vinod Patwa, M.D.; state agency consultants;
and counselor Kathleen Judy, LPCC; and (2) determining her credibility. Doc. 10 at PageID
901-10.
A.

Treating Source Opinions

Plaintiff first challenges the ALJ’s assessment of Dr. Patwa’s opinion. Id. at PageID 90205.

“[T]he Commissioner’s regulations establish a hierarchy of acceptable medical source

opinions[.]” Snell v. Comm’r of Soc. Sec., No. 3:12-cv-119, 2013 WL 372032, at *9 (S.D. Ohio
Jan. 30, 2013). Treating physicians and psychologists top the hierarchy. Id. “Next in the
hierarchy are examining physicians and psychologists, who often see and examine claimants
only once.” Id. “[N]on-examining physicians’ opinions are on the lowest rung of the hierarchy
of medical source opinions.” Id. “The regulations provide progressively more rigorous tests for
weighing opinions as the ties between the source of the opinion and the individual [claimant]
become weaker.” Id. (citing SSR 96-6p, 1996 WL 374180, at *2 (July 2, 1996)).
“An ALJ is required to give controlling weight to ‘a treating source’s opinion on the
issue(s) of the nature and severity of [the claimant’s] impairment(s)’ if the opinion ‘is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] case record.’” LaRiccia v. Comm’r of
Soc. Sec., 549 F. App’x 377, 385 (6th Cir. 2013) (citation omitted) (alterations in original). This
requirement is known as the “treating physician” rule. Blakley v. Comm’r of Soc. Sec., 581 F.3d

6

399, 406 (6th Cir. 2009) (citations omitted). Greater deference is given to treating source
opinions “since these sources are likely to be the medical professionals most able to provide a
detailed, longitudinal picture of [the claimant’s] medical impairment(s) and may bring a unique
perspective to the medical evidence that cannot be obtained from the objective medical findings
alone or from reports of individual examinations[.]”

20 C.F.R. § 404.1527(c)(2); see also

Blakely, 581 F.3d at 406. An ALJ must give controlling weight to a treating source’s opinion if
the ALJ finds it well-supported by medically acceptable evidence and not inconsistent with other
substantial evidence in the record. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir.
2004).
Closely associated with the treating physician rule is the “good reasons rule,” which
“require[s] the ALJ to always give good reasons in [the] notice of determination or decision for
the weight given to the claimant’s treating source’s opinion.” Blakely, 581 F.3d at 406-07.
“Those good reasons must be ‘supported by the evidence in the case record, and must be
sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to
the treating source’s medical opinion and the reasons for that weight.’” Id. Thus, when the ALJ
declines to give controlling weight to a treating physician’s assessment, “the ALJ must still
determine how much weight is appropriate by considering a number of factors, including the
length of treatment relationship and the frequency of examination, the nature and extent of the
treatment relationship, supportability of the opinion, consistency of the opinion with the record
as a whole, and any specialization of the treating physician.” Id. at 406; see also 20 C.F.R.
§ 404.1527(c). Unless the opinion of the treating source is entitled to controlling weight, an ALJ
must “evaluate all medical opinions according to [these] factors, regardless of their source[.]”
Walton v. Comm’r of Soc. Sec., No. 97-2030, 1999 WL 506979, at *2 (6th Cir. June 7, 1999).

7

An ALJ is not required to accept a physician’s conclusion that his or her patient is
“unemployable.” Whether a person is disabled within the meaning of the Social Security Act is
an issue reserved to the Commissioner, and a treating physician’s opinion -- that his or her
patient is disabled -- is not “give[n] any special significance.” 20 C.F.R. § 404.1527; see Warner
v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004) (stating that “[t]he determination of
disability is ultimately the prerogative of the Commissioner, not the treating physician”).
However, “[t]here remains a presumption, albeit a rebuttable one, that the opinion of a treating
physician is entitled to great deference.” Hensley v. Astrue, 573 F.3d 263, 266 (6th Cir. 2009).
In this case, Dr. Patwa concluded that Plaintiff has a number of extreme limitations
resulting from her mental impairments. PageID 847-48. The ALJ gave Dr. Patwa’s opinion:
very little weight, because the doctor marked ‘extreme’ limitations in
nearly every aspect of [Plaintiff’s] ability to function mentally, the
doctor’s own treatment notes do not support this extremely limiting
opinion, and because it is not supported by the other evidence of record.
Additionally, this opinion conflicts with that of other treatment providers.
PageID 110. Initially, the Court finds that the ALJ erred by failing to mention or specifically
analyze whether Dr. Patwa’s opinion is entitled to controlling weight, i.e., whether the opinion is
“supported by medically acceptable clinical and laboratory diagnostic techniques” and whether
the opinion is consistent “with the other substantial evidence in [the] case record.’” LaRiccia,
549 F. App’x at 385. Such failure amounts to error, see Aytch v. Comm’r of Soc. Sec., No. 3:13cv-135, 2014 WL 4080075, at *4 (S.D. Ohio Aug. 19, 2014), because the lack of explanation
regarding the “controlling weight [analysis] hinders a meaningful review of whether the ALJ
properly applied the treating-physician rule that is at the heart of this regulation.” Gayheart v.
Comm’r of Soc. Sec., 710 F.3d 365, 377 (6th Cir. 2013) (citations omitted).

8

Even assuming, arguendo, that the ALJ adequately conducted the controlling weight test
-- which the undersigned concludes she did not -- the undersigned further finds that the ALJ gave
only conclusory reasons as to the ultimate weight accorded. Specifically, while the ALJ found
Dr. Patwa’s opinion inconsistent with his “own treatment notes”4 and “not supported by the other
evidence of record,” the ALJ fails to cite to any specific treatment note or other part of the record
in support of such conclusory contention. Such omission is error. See Friend v. Comm’r of Soc.
Sec., 375 F. App’x 543, 551–52 (6th Cir. 2010) (holding that “it is not enough to dismiss a
treating physician’s opinion as ‘incompatible’ with other evidence of record” in the absence of
“some effort to identify the specific discrepancies and to explain why it is the treating
physician’s conclusion” is accorded lesser weight).
Further, while the ALJ concluded that Dr. Patwa’s opinion conflicted with the findings
“of other treatment providers,” the ALJ failed to specifically acknowledge that Dr. Patwa’s
opinion was -- at least partially -- consistent with the opinion of treating Licensed Professional
Clinical Counselor Kathleen Judy.5 See PageID 752-53 (noting extreme limitations in activities
of daily living and maintaining social functioning). Further, the ALJ never noted that Dr.
Patwa’s opinion was also supported by the conclusion of record reviewing psychologist Dr.
Leisgang. See PageID 573 (finding Plaintiff “markedly impaired” in her “mental ability to
withstand the stress and pressure associated with day-to-day work activity”).
“[A]lleged internal inconsistencies between [a] doctor’s opinions and portions of [that doctor’s]
reports . . . [is a] factor[] . . . properly applied only after the ALJ has determined that a treating-source
opinion will not be given controlling weight.” Gayheart, 710 F.3d at 376.
5
In light of the undersigned’s conclusion regarding the ALJ’s analysis of Dr. Patwa’s opinion,
the Court need not reach the merits of Plaintiff’s contention that the ALJ erred in analyzing Counselor
Judy’s opinion. Certainly, Counselor Judy is not an “acceptable medical source” whose opinion can
establish whether a claimant has a “medically determinable impairment[;]” however, her opinion does
qualify an “other source opinion” and may be used by an ALJ “to show the severity of [a claimant’s]
impairment(s) and how it affects [the claimant’s] ability to work[.]” 20 C.F.R. §§ 404.1613(a) and (d);
see also Covucci v. Apfel, 31 F. App’x 909, 913 (6th Cir. 2002); Cruse v. Comm’r of Soc. Sec., 502 F.3d
532, 541 (6th Cir. 2007).
4

9

Based on all of the foregoing, the undersigned concludes that the ALJ failed to conduct a
controlling weight analysis in analyzing Dr. Patwa’s opinion and also failed to give good reasons
for affording that opinion little weight. Accordingly, the undersigned recommends that the
Commissioner’s non-disability finding be reversed.
B.

State Agency Consultant Opinions

The ALJ also failed to meaningfully explain the weight accorded to the opinions of state
agency consultants Eli Perencevich, D.O.; Jennifer Swain, Psy.D.; Gerald Klyop, M.D., and
Bonnie Katz, Ph.D.6 “Unless a treating source’s opinion is given controlling weight, the [ALJ]
must explain in the decision the weight given to the opinions of a State agency medical . . .
consultant[.]” 20 C.F.R. § 404.1527(e)(2)(ii). Such explanation must be “meaningful.” Ott v.
Comm’r of Soc. Sec., No. 1:08-CV-00399, 2009 WL 3199064, at *3 (S.D. Ohio Sept. 29, 2009).
In weighing opinions of non-treating sources, such as state agency consultants, Social
Security regulations require the ALJ to apply the same level of scrutiny as afforded to treating
source opinions. Gayheart, 710 F.3d at 379. “A more rigorous scrutiny of the treating-source
opinion than the nontreating and nonexamining opinions is precisely the inverse of the analysis
that the regulation[s] require[].” Id. Simply restating the consultant’s opinion and offering a
conclusory assessment, without further discussion, fails to satisfy the requirement that the ALJ
provide meaningful explanation of the weight given to all the medical opinion evidence. See 20
C.F.R. § 404.1527(c); see also Aytch, 2014 WL 4080075, at *5-6 (citing Chavez v. Astrue, No.
12-cv-00627-LTB, 2012 WL 5250396, at *7 (D. Colo. Oct. 24, 2012) (finding the ALJ’s

6

Instead of relying on treating or examining medical source opinions, the ALJ relied on the
opinions of Drs. Swain and Katz. PageID 108-09, 153-55, 172-74. The Court notes the opinions of Drs.
Swain and Katz predate a significant portion of the treatment records, including records from counselor
Judy (PageID 754-71, 813-40) and Dr. Patel (PageID 733-45, 859-80). In fact, the opinions of Drs.
Swain and Katz predate Dr. Patel’s opinion (PageID 845-48). Thus, Drs. Swain and Katz offered their
opinions without having a complete picture of Plaintiff’s mental health status.
10

explanation “lacking” where the ALJ merely “recapitulated” the reasons stated by the Medical
Expert for disagreeing with the opinion of a treating physician and failed to “provide his reasons
for according [the treating physician’s] opinion the . . . weight he did”).
Here, with regard to all of the state agency consultants, the ALJ merely recapitulated each
source’s opinion and gave each opinion “great weight” because: “the doctor thoroughly cited to
specific examples to support [his/her] opinion” and “thoroughly reviewed [Plaintiff’s] medical
records.” PageID 108-09. The undersigned finds such conclusory statements insufficient to
meaningfully explain the weight accorded each of these opinions and, therefore, reversal is
warranted.
C.

Credibility

In her final assignment of error, Plaintiff contends that the ALJ improperly found her less
than fully credible. Doc. 10 at PageID 909-10. Finding remand warranted based upon the ALJ’s
failure to properly assess and weigh medical source and other source opinions, the undersigned
makes no finding with regard to this alleged error. Instead, Plaintiff’s credibility -- along with all
medical source and other source opinions of record -- should be assessed anew on remand.
IV.
When, as here, the ALJ’s non-disability determination is unsupported by substantial
evidence, the Court must determine whether to remand the matter for rehearing or to award
benefits. Generally, benefits may be awarded immediately “if all essential factual issues have
been resolved and the record adequately establishes a plaintiff’s entitlement to benefits.”
Faucher v. Sec’y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994); see also Abbott v.
Sullivan, 905 F.2d 918, 927 (6th Cir. 1990). The Court may only award benefits where proof of
disability is strong and opposing evidence is lacking in substance, so that remand would merely

11

involve the presentation of cumulative evidence, or where proof of disability is overwhelming.
Faucher, 17 F.3d at 176; see also Felisky v. Bowen, 35 F.3d 1027, 1041 (6th Cir. 1994); Mowery
v. Heckler, 771 F.2d 966, 973 (6th Cir. 1985).
Here, evidence of disability is not overwhelming because there are a number of divergent
medical source opinions in the record regarding Plaintiff’s RFC. Accordingly, the undersigned
concludes that remand for further proceedings is proper. Upon remand, the ALJ shall analyze all
medical source and other source opinions of record, meaningfully explain the weight reasonably
accorded to those opinions, evaluate Plaintiff’s symptoms, and determine her credibility and
disability status anew.
V.
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.

IT IS SO ORDERED.

Date: May 19, 2015

s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge

12

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 Recommendation. Pursuant to Fed. R. Civ. P. 6(d), this period is
extended to SEVENTEEN days because this Report and Recommendation is being served by
one of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F), and may be
extended further by the Court on timely motion for an extension. Such objections shall specify
the portions of the Report and Recommendation 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.

As is made clear above, this period is likewise extended to

SEVENTEEN days if service of the objections is made pursuant to Fed. R. Civ. P. 5(b)(2)(C),
(D), (E), or (F). Failure to make objections in accordance with this procedure may forfeit rights
on appeal. See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d
947, 949-50 (6th Cir. 1981).