Barber v. Commissioner of Social Security

Filing 13

REPORT AND RECOMMENDATION 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 CONSI STENT WITH THIS OPINION; AND (3) THIS CASE BE CLOSED - re 2 Complaint filed by Kristina Barber Objections to R&R due by 12/7/2015. Signed by Magistrate Judge Michael J. Newman on 11/17/2015. (srb) Modified on 11/18/2015 to correct objections to R&R deadline. NEF regenerated (jg).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
KRISTINA BARBER,
Plaintiff,

Case No.: 3:14-cv-325

vs.
District Judge Thomas M. Rose
Magistrate Judge Michael J. Newman

COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION1 THAT: (1) THE ALJ’S NON-DISABILITY
FINDING BE FOUND UNSUPPORTED BY SUBSTANTIAL EVIDENCE, AND
REVERSED; (2) THIS MATTER BE REMANDED TO THE COMMISSIONER UNDER
THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR PROCEEDINGS CONSISTENT
WITH THIS OPINION; AND (3) 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. 9), the Commissioner’s memorandum in opposition (doc.
10), Plaintiff’s reply (doc. 11), the administrative record (doc. 6),2 and the record as a whole.
I.
A.

Procedural History

Plaintiff filed for DIB on September 22, 2011 alleging a disability onset date of January
3, 2011. PageID 211, 225. Plaintiff claims disability as a result of a number of impairments

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.

including, inter alia, rheumatoid arthritis; degenerative joint disease of the hips, hands, and feet;
and obesity. PageID 45.
After initial denial of her applications, Plaintiff received a hearing before ALJ Scott
Canfield on December 5, 2012. PageID 76. The ALJ issued a written decision thereafter finding
Plaintiff not disabled. PageID 42-53. Specifically, the ALJ’s findings were as follows:
1.

The claimant meets the insured status requirements of the Social
Security Act through December 31, 2014.

2.

The claimant has not engaged in substantial gainful activity since
January 3, 2011, the alleged onset date (20 CFR 404.1571 et seq.).

3.

The claimant has the following severe impairments: sero-negative
rheumatoid arthritis; degenerative joint disease of the hips, hands,
and feet; and obesity (20 CFR 404.1520(c)).

4.

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

5.

The claimant has the residual functional capacity [“RFC”] for
work that involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers or
small tools. She can stand or walk for a total of two hours in an
eight-hour workday. The claimant can sit a total of approximately
six hours in an eight-hour workday. She should never climb
ladders, ropes or scaffolds. The claimant can occasionally climb
ramps or stairs, balance, stoop, kneel, crouch and crawl. She is
able to frequently handle and finger with the right dominant upper
extremity.

6.

The claimant is unable to perform past relevant work (20 C.F.R.
404.1565).

7.

The claimant was born [in] 1965. At age 47, she is classified as a
“younger individual” for Social Security purposes (20 CFR
404.1563).

8.

The claimant has a high school education and a few college credit
(20 CFR 404.1564).

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9.

The claimant does not have “transferable” work skills within the
meaning of the Social Security Act (20 CFR 404.1568).

10.

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

11.

The claimant was not disabled, as defined in the Social Security
Act, from January 3, 2011, through the date of this decision (20
C.F.R. 404.1520(g)).

PageID 45-53.
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 31.

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”).
B. Evidence of Record
In his decision, the ALJ set forth a detailed recitation of the medical evidence in this case.
PageID 44-51. Plaintiff, in her Statement of Errors, sets forth a detailed summary of the record
evidence. Doc. 9 at PageID 381-88. The Commissioner presents no specific objection to
Plaintiff’s summary and defers to the ALJ’s recitation of the evidence. Doc. 10 at PageID 398.
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

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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
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.

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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
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 in: (1) failing to properly
weigh the opinion of her treating rheumatologist, Thomas Henderson, M.D.; and (2) not
appropriately considering the impact of obesity on her functional limitations. Doc. 9 at PageID
389. The Court agrees on both grounds.
A.

Treater Henderson

With regard to the ALJ’s assessment of Plaintiff’s treating source opinion, “the
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,
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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) (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

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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).
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. Henderson concluded that, as a result of Plaintiff’s impairments, she
cannot work more than one hour per day; cannot sit or stand more than fifteen minutes at a time;
cannot lift more than five pounds; cannot bend, stoop, or perform fine or gross manipulation with

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either hand; and can only occasionally raise her arms above shoulder level. PageID 363-64. In
giving Dr. Henderson’s opinion “no weight,” the ALJ -- beyond the conclusory boilerplate
statement that his opinions “are neither well supported by medically acceptable clinical and
laboratory diagnostic techniques nor consistent with other substantial evidence in the case
record” -- concluded that:
There is no compelling evidence to form a logical basis for a finding that
the claimant is able to stand only 15 minutes or sit only 15 minutes at a
time, and there is even less basis for a finding that the claimant can work
only one hour per day. These conclusions of Dr. Henderson have been
considered, but are given no weight. Dr. Henderson himself reported that
the claimant’s symptoms affect the joints of both hands, both feet, and the
right hip. These particular joints might logically affect the claimant’s
ability to grip or manipulate and her capacity for standing and walking,
but should not affect the claimant’s ability to sit (or to perform sedentary
work as indicated by Dr. Bolz and Dr. Manos). Consequently, the extent
of the limitation described by Dr. Henderson is unsupported by objective
medical evidence or clinical findings and is not accepted as credible.
When examined by Dr. Danopulos, the claimant exhibit the ability to
move about freely. Upper and lower extremities revealed full range of
motion. The claimant exhibited normal gait. She did not require an
ambulatory aid.
PageID 48-49. The Court finds error in the ALJ’s analysis.
The ALJ’s statement -- that Dr. Henderson’s opinion is not supported by objective
medical evidence -- is conclusory. Id. In fact, the Sixth Circuit has specifically found reversible
error in such conclusory assessments because “[o]ne cannot determine whether the purported
problem is that the opinions rely on findings that are not objective (i.e., that are not the result of
medically acceptable clinical and laboratory diagnostic techniques[)] . . . or that the findings are
sufficiently objective but do not support the content of the opinions.” Gayheart v. Comm’r of
Soc. Sec., 710 F.3d 365, 377 (6th Cir. 2013) (citing 20 C.F.R. § 404.1527(c)(2)).
Plaintiff also alleges that the ALJ improperly concluded that her joint conditions “should
not logically affect the claimant’s ability to sit[.]” PageID 49. The Commissioner contends that
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Dr. Danopolus’s findings -- i.e., the ability to move about freely during a single examination; full
range of motion in upper and lower extremities; normal gait; no ambulatory aid -- support the
ALJ’s conclusion. Doc. 10 at PageID 401. The undersigned disagrees with the Commissioner’s
contention.
First, Dr. Danopulos offered no specific opinion concerning Plaintiff’s work limitations
(such as her ability to sit, stand, or manipulate with her hands) and the ALJ offers no explanation
as to how such clinical findings from a single examination undermine the entirety of Dr.
Henderson’s opinion -- an opinion based on a longstanding treatment relationship. Further,
despite such clinical findings, Dr. Danopulos himself concludes that Plaintiff’s “ability to do any
work-related activities is affected from the combination of arthritic changes of the right foot
(gouty arthritis not excluded) mainly with some in the left, plus mild (if any) bilateral hip
arthritic changes and erosive changes of the right hand representing rheumatoid arthritis.”
PageID 333.

Thus, from the Court’s perspective, Dr. Danopulos’s opinion actually offers

support for Dr. Henderson’s opinion.
Finally, the Court agrees with Plaintiff that, even assuming, arguendo, the ALJ properly
declined to give controlling weight to Dr. Henderson’s opinion, he nevertheless erred by failing
to examine any of the factors set forth in 20 C.F.R. § 404.1527(c) to “determine how much
weight is appropriate[.]” Blakely, 581 F.3d at 406. The ALJ’s failure to analyze any of the §
404.1527(c) factors is reversible error. See Barbe v. Comm’r of Soc. Sec., No. 3:13-cv-67, 2013
WL 6158404, at *7-9 (S.D. Ohio Nov. 25, 2013). Given Dr. Henderson’s three year treating

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relationship with Plaintiff, his specialty as a rheumatologist, and the lack of any contrary opinion
from an examining source,3 his opinion was entitled to deferential, if not controlling, weight.
Based on all of the foregoing, the undersigned concludes that the ALJ failed to
meaningfully explain his controlling weight determination with regard to Dr. Henderson’s
opinion and wholly failed to conduct a deferential weight analysis.

Accordingly, the

undersigned recommends that the Commissioner’s non-disability finding be reversed.
B.

Obesity

The undersigned also finds that the ALJ’s conclusion -- that Plaintiff’s joint conditions
“should not logically affect the claimant’s ability to sit” -- completely ignores the impact of
Plaintiff’s obesity. PageID 49. Because “[i]ndividuals with obesity may have problems with the
ability to sustain a function over time[,]” an ALJ must assess “the effect obesity has upon the
individual’s ability to perform routine movement and necessary physical activity with the work
environment.”

See Social Security Ruling (“SSR”) 02-1p, 2002 WL 34686281, at *6.

SSR 02-1p mandates that an ALJ “must consider the impact of a claimant’s obesity on her
[RFC].” Auflick v. Astrue, No. 2:12-cv-29, 2012 WL 4364243, at *6 (S.D. Ohio Sept. 24, 2012).
3

The Court acknowledges the existence of opinions from record reviewing physicians William
Bolz, M.D. and Diane Manos, M.D., which the ALJ adopted without specific consideration of any factor
set forth in 20 C.F.R. § 404.1527(c). See PageID 47-48. 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. Further, as previously noted by the undersigned on
numerous occasions, 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 v.
Comm’r of Soc. Sec., No. 3:13-cv-135, 2014 WL 4080075, at *5-6 (S.D. Ohio Aug. 19, 2014) (Newman,
M.J.) (citing Chavez v. Astrue, No. 12-cv-00627-LTB, 2012 WL 5250396, at *7 (D. Colo. Oct. 24, 2012)
(finding the ALJ’s 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”). Accordingly, in addition to
finding that the ALJ failed to properly weight Dr. Henderson’s opinion, the undersigned also finds he
erred by failing to meaningfully explain the weight accorded the opinions of record reviewing Drs. Bolz
and Manos. This error shall be remedied on remand once the ALJ holds another administrative hearing.
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In fact, “some analysis of the aggravating tendencies on function caused by obesity, in
conjunction with and upon all other severe impairments . . . must be performed.” Stone v.
Comm’r of Soc. Sec., No. 3:13-cv-197, 2013 WL 5424772, at *2 (S.D. Ohio Sept. 26, 2013)
(Rice, J.). This did not occur here, and constitutes a separate basis justifying a Sentence Four
reversal and remand.
IV.
When, as here, the ALJ’s non-disability determination is unsupported by substantial
evidence, the Court must determine whether to reverse and remand the matter for rehearing or to
reverse and order the award of benefits. The Court has authority to affirm, modify or reverse the
Commissioner’s decision “with or without remanding the cause for rehearing.” 42 U.S.C.
§ 405(g); Melkonyan v. Sullivan, 501 U.S. 89, 100 (1991). Generally, benefits may be awarded
immediately “only 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);
Varley v. Sec’y of Health & Human Servs., 820 F.2d 777, 782 (6th Cir. 1987).
In this case, all factual issues have not been resolved. Although the undersigned finds
that Dr. Henderson’s opinion is entitled to deferential, if not controlling, weight, the Vocational
Expert’s (“VE”) testimony does not clearly establish whether or not an individual, limited to the
extent described by Dr. Henderson, could perform a significant number of other jobs existing in
the national economy. See PageID 66-72. Accordingly, the undersigned concludes that this case
should be remanded to the ALJ for further proceedings; specifically for (1) reasonable
consideration of Dr. Henderson’s findings; and (2) appropriate consideration of Plaintiff’s
obesity.

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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.

Date: November 17, 2015

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

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after being
served with this Report and 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).

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