Hollon v. Commissioner of Social Security
DECISION AND ENTRY: (1) REVERSING THE ALJS NON-DISABILITY FINDING AS UNSUPPORTED BY SUBSTANTIAL EVIDENCE; (2) REMANDING THIS CASE TO THE COMMISSIONER UNDER THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR PROCEEDINGS CONSISTENT WITH THIS OPINION; AND (3) TERMINATING THIS CASE ON THE COURTS DOCKET. Signed by Magistrate Judge Michael J. Newman on 7/29/15. (pb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
Case No. 3:14-cv-162
Magistrate Judge Michael J. Newman
DECISION AND ENTRY: (1) REVERSING THE ALJ’S NON-DISABILITY FINDING
AS UNSUPPORTED BY SUBSTANTIAL EVIDENCE; (2) REMANDING THIS CASE
TO THE COMMISSIONER UNDER THE FOURTH SENTENCE OF 42 U.S.C. § 405(g)
FOR PROCEEDINGS CONSISTENT WITH THIS OPINION; AND (3) TERMINATING
THIS CASE ON THE COURT’S DOCKET
This Social Security disability benefits appeal is presently before the undersigned for
disposition based upon the parties’ consent. Doc. 9. At issue is whether the Administrative Law
Judge (“ALJ”) erred in finding Plaintiff not “disabled” and therefore unentitled to Supplemental
Security Income (“SSI”). This case is before the Court upon Plaintiff’s Statement of Errors (doc.
9), the Commissioner’s memorandum in opposition (doc. 12), Plaintiff’s reply (doc. 15), the
administrative record (doc. 7),1 and the record as a whole.
Plaintiff filed for SSI on August 30, 2011. PageID 601. He claims disability as a result
of a number of alleged impairments including, inter alia, psychotic disorder and major
Hereafter, citations to the electronically-filed administrative record will refer only to the
depressive disorder. PageID 48. After initial denials of his application, Plaintiff received a
hearing before ALJ Mary Ann Poulose on December 22, 2012. PageID 46. The ALJ issued a
written decision thereafter finding Plaintiff not disabled. PageID 56. Specifically, the ALJ’s
findings were as follows:
The claimant has not engaged in substantial gainful activity since August
30, 2011, the application date (20 CFR 416.971 et seq.).
The claimant has the following severe impairments: cervical spine
herniation, lumbar bulge, psychotic disorder, and major depression
disorder (20 CFR 416.920(c)).
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
416.920(d), 416.925 and 416.926).
After careful consideration of the entire record, the undersigned finds that
the claimant has the residual functional capacity [“RFC”] to perform light
work as defined in 20 CFR 416.967(b) except unskilled, simple,
routine, and repetitive work with only occasional coworker interaction
and no public interaction or tandem tasks with coworkers.
The claimant is unable to perform any past relevant work (20 CFR
The claimant was born [in] 1961 and was 50 years old, which is defined
as an individual closely approaching advanced age, on the date the
application was filed (20 CFR 416.963).
The claimant has at least a high school education and is able to
communicate in English (20 CFR 416.964).
The Social Security Administration classifies jobs as sedentary, light, medium, heavy, and very
heavy depending on the physical exertion requirements. 20 C.F.R. § 416.967. 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. § 416.967(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. § 416.967(a).
Transferability of job skills is not an issue in this case because the
claimant’s past relevant work is unskilled (20 CFR 416.968).
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)).
The claimant has not been under a disability, as defined in the Social
Security Act, since August 30, 2011, the date the application was filed
(20 CFR 416.920(g)).
Thereafter, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s
non-disability finding the final administrative decision of the Commissioner.
Plaintiff then filed this timely appeal. See 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”).
Evidence of Record
In her decision, the ALJ set forth a detailed recitation of the underlying medical evidence
in this case. PageID 46-54. Plaintiff, in his Statement of Errors, also sets forth an extensive
summary of the evidence of record.
Doc. 9 at PageID 602-17.
memorandum in opposition offers no objections to the statement of facts presented by Plaintiff.
Doc. 12 at PageID 624-42.
Except as otherwise noted in this Decision and Entry, the
undersigned incorporates Plaintiff’s summary and the ALJ’s recitation of the evidence.
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, 7453
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 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
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.
To qualify for disability benefits, a claimant must be under a “disability” as defined by
the Social Security Act. 42 U.S.C. § 1382c(a)(3)(A). Narrowed to its statutory meaning, a
“disability” includes physical and/or mental impairments that are “medically determinable”;
expected to result in death or which have lasted or can be expected to last for a continuous period
of not less than twelve months; and severe enough to prevent a claimant from (1) performing his
or her past job and (2) engaging in “substantial gainful work” that is available in the regional or
national economies. Id. §§ 1382c(a)(3)(A), (B).
Administrative regulations require a five-step sequential evaluation for disability
determinations. 20 C.F.R. § 416.920(a)(4). Although a dispositive finding at any step ends the
ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), the complete sequential
review poses five questions:
Has the claimant engaged in substantial gainful activity?
Does the claimant suffer from one or more severe impairments?
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?
Considering the claimant’s RFC, can he or she perform his or her past
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); 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 under
the Social Security Act’s definition. Key v. Comm’r of Soc. Sec., 109 F.3d 270, 274 (6th Cir.
On appeal, Plaintiff argues that the ALJ failed to properly: (1) weigh medical opinion
evidence relevant to his mental health limitations -- including the opinions of Plaintiff’s treating
psychiatrist, James Yoziota, M.D., and non-treating sources Ty Payne, Ph.D. and Katherine
Fernandez, Psy.D.; and (2) assess his credibility. Doc. 9 at PageID 608-16.
Medical Source Opinions
“[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
399, 406 (6th Cir. 2009) (citation 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. § 416.927(c)(2); see also Blakley,
581 F.3d at 406. Thus, an ALJ must give controlling weight to a treating source if the ALJ finds
the treating physician’s opinion 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.” Blakley, 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. § 416.927(c).3 In addition, 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).
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
In essence, “opinions of a treating source . . . must be analyzed under a two-step process, with
care being taken not to conflate the steps.” Cadle v. Comm’r of Soc. Sec., No. 5:12 CV 3071, 2013 WL
5173127, at *5 (N.D. Ohio Sept. 12, 2013). Initially, “the opinion must be examined to determine if it is
entitled to controlling weight” and “[o]nly if . . . the ALJ does not give controlling weight to the treating
physician’s opinion is the opinion subjected to another analysis based on the particulars of” 20 C.F.R.
§ 416.927. Id.
patient is disabled -- is not “give[n] any special significance.” 20 C.F.R. § 416.927; 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).
The Court first addresses Plaintiff’s argument regarding the ALJ’s analysis of Dr.
Fernandez’s opinion. Doc. 9 at PageID 614-15. In weighing opinions of non-treating sources,
Social Security regulations require the ALJ to apply the same level of scrutiny as afforded to
treating source opinions. Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 379 (6th Cir 2013).
“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 a non-treating source’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. § 416.927(c); see also Aytch v.
Comm’r of Soc., No. 3:13-cv-135, 2014 WL 4080075, at *5-6 (S.D. Ohio Aug. 19, 2014).
In comparison to the lengthy critiques of the opinions by treating physician Dr. Yoziota
and examining psychologist Dr. Payne, the ALJ’s rather cursory analysis of Dr. Fernandez’s
opinion reads as follows:
The mental [RFC] conclusion reached by the physicians employed by the
State Disability Determination Services also supported a finding of ‘not
disabled.’ Although those physicians were non-examining, and therefore
their opinions do not as a general matter deserve as much weight as those
of examining or treating physicians, those opinions do deserve some
weight, particularly in a case like this in which there exist a number of
other reasons to reach similar conclusions (as explained throughout this
PageID 54. Nowhere in her opinion does the ALJ further review any specific portion of Dr.
Fernandez’s findings or provide any explanation as to how the particular limitations found by Dr.
Fernandez are unsupported by the record or consistent with any other evidence. Id. Instead, the
ALJ leaves Plaintiff and this reviewing Court to speculate as to the “number of other reasons . . .
explained throughout [the ALJ’s decision]” which support the weight accorded Dr. Fernandez’s
opinion. Id. This conclusory analysis falls short of the meaningful explanation required by the
regulations and, accordingly, results in a finding of error.
The Court also finds error in the ALJ’s analysis of Dr. Payne’s opinion. The ALJ gave
little weight to that opinion because Dr. Payne “saw [Plaintiff] only once, and therefore, [he] has
less understanding of the nature and severity of [Plaintiff’s impairments].” PageID 54. While
the length, nature, and extent of a treatment relationship is a factor upon which the ALJ can
reduce the weight given a medical source opinion, see 20 C.F.R. § 416.927(c), such a reason is
not a “good reason” to afford lesser weight to Dr. Payne’s opinion in the absence of any
meaningful explanation as to why such factor did not apply more significantly to Dr.
Fernandez’s opinion -- a doctor who never saw Plaintiff. See Snell, 2013 WL 372032, at *9
(stating that, generally, “more weight is given to examining medical source opinions than is
given to the opinions of non-examining medical sources”). Further, insofar as the ALJ found Dr.
Payne’s opinion “unpersuasive because it is conclusory,” the Court finds that such a conclusion
is itself conclusory and not supported by substantial evidence. Contrary to the ALJ’s finding, Dr.
Payne’s six-plus page report details the findings of his evaluation and reasons for his opinion.
PageID 305-11. In fact, Dr. Payne’s report contains no less explanation than the report of Dr.
Fernandez. PageID 113-16.
Finally, the undersigned makes no finding concerning the weight to be reasonably
accorded Dr. Yoziota’s opinion. Instead, the undersigned notes that the ALJ failed to explicitly
reject giving controlling weight to Dr. Yoziota’s opinion despite the fact that he is a treating
physician. PageID 53. Given the Court’s conclusions concerning the ALJ’s lack of meaningful
analysis of the opinions of Drs. Fernandez and Payne, on remand, the ALJ should analyze Dr.
Yoziota’s opinion anew and explain its relevance, given that such opinion significantly predates
Plaintiff’s SSI application date. See Casey v. Sec. of Health & Human Servs., 987 F.2d 1230,
1233 (6th Cir. 1993) (stating that “[t]he proper inquiry in an application for SSI benefits is
whether the plaintiff was disabled on or after [his or] her application date”); see also Russell v.
Comm’r of Soc. Sec., No. 10-12118, 2012 WL 882889, at *12 n.1 (E.D. Mich. Jan. 26, 2012)
(limiting review to the medical evidence in existence immediately preceding and after Plaintiff’s
SSI application date).
In his second assignment of error, Plaintiff challenges the ALJ’s assessment of his
credibility. Given the Court’s determination that the ALJ failed to properly weigh all medical
source opinions of record, the undersigned finds that, upon remand, the ALJ shall analyze
Plaintiff’s alleged symptoms and determine his credibility anew.
When the ALJ’s non-disability determination is unsupported by substantial evidence, the
Court must determine whether to remand the matter for rehearing or to order an award of
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). The Court may
only award benefits where proof of disability is strong and opposing evidence is lacking in
substance, so that remand would merely involve the presentation of cumulative evidence, or
where proof of disability is overwhelming. Id.
In this instance, evidence of disability is not overwhelming in light of differing medical
opinion evidence. See PageID 429, 431-42. Accordingly, the Court concludes that a remand for
further proceedings is necessary in order for the ALJ to: (1) fully assess and meaningfully
explain the weight to be accorded all medical source opinions; (2) determine anew Plaintiff’s
RFC; and (3) evaluate Plaintiff’s credibility.
For the foregoing reasons:
The Commissioner’s non-disability finding is found unsupported by
substantial evidence, and REVERSED;
This matter is REMANDED to the Commissioner under the Fourth
Sentence of 42 U.S.C. § 405(g) for proceedings consistent with this
This case is TERMINATED on the Court’s docket.
IT IS SO ORDERED.
Date: July 29, 2015
s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge
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