Hall v. Commissioner of Social Security

Filing 14

REPORT AND RECOMMENDATIONS: The Commissioner's non-disability finding be vacated; Plaintiff Stephen Hall's applications for Disability Insurance Benefits and Supplemental Security Income filed on March 5, 2009 be REMANDED to the Social Security Administration for payment of benefits consistent with the Social Security Act; and the case be terminated on the docket of this Court. Objections to R&R due by 8/11/2016. Signed by Chief Magistrate Judge Sharon L. Ovington on 7/25/16. (mcm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
STEPHEN HALL,

:

Plaintiff,

:
Case No. 3:15cv00271

vs.

:

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

:

District Judge Thomas M. Rose
Chief Magistrate Judge Sharon L. Ovington

:
:

REPORT AND RECOMMENDATIONS1

I.

Introduction
Plaintiff Stephen Hall’s last employment was in 2003 when he held an assembly-

line job. On March 5, 2009, he applied for Disability Insurance Benefits and
Supplemental Security Income, asserting that he was under a disability due to vertigo,
dizzy spells, passing out, an injury to his left ear, bi-polar disorder, depression, high blood
pressure, and anxiety attacks.2 (Doc. #6, PageID# 227). The Social Security
Administration has twice denied his applications based on the conclusion that he is not

1

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

The administrative record indicates that Plaintiff’s previous application for benefits was denied
in July 2005 at the reconsideration stage. (Doc. #6, PageID #115). It appears that Plaintiff did not seek
further review of the July 2005 denial.

under a “disability,” as defined by the Social Security Act.
Plaintiff brings the present case challenging the Social Security Administration’s
second denial of his applications for benefits. The case is presently before the Court upon
Plaintiff’s Statement of Errors (Doc. #9), the Commissioner’s Memorandum in Opposition
(Doc. #13), the administrative record (Docs. #s 6, 7), and the record as a whole.
Plaintiff seeks an Order remanding the case to the Social Security Administration
for payment of benefits. The Commissioner seeks an Order affirming its most recnet
denial of Plaintiff’s applications for benefits.
II.

Background
A.

Procedural History

Plaintiff’s first round of administrative proceedings culminated with Administrative
Law Judge Amelia G. Lombardo’s determination that Plaintiff was not under a disability.
(Doc. #6, PageID#s 44-60). Plaintiff challenged ALJ Lombardo’s decision in this Court
(3:12cv00322).
In March 2014, U.S. District Judge Walter H. Rice found that ALJ Lombardo
“erred by declining to give controlling or even deferential weight to the opinion of
Plaintiffs treating physician, Dr. Martin” and “failed to weigh the opinions of the
non-treating, record reviewing physicians by applying the proper evaluative factors in
determining how much weight to give those state-agency reviewing physicians, Drs. Diane
Manos, M.D. and Elizabeth Das, M.D.” (Doc. #7, PageID# 1114). Judge Rice therefore

2

reversed ALJ Lombardo’s decision and remanded the case with directions to the
Commissioner to “consider, once again, the medical evidence of record and properly
analyze that evidence, both physical and psychological, of the treating physician and
non-examining state agency reviewing physicians under the controlling Social Security
Regulations. Such review shall apply the ‘good reasons rule,’ should the Hearing Officer
determine that the opinion of any examining or non-examining, reviewing physician is not
entitled to controlling weight.” Id. at 1115.
On remand, Plaintiff’s case was submitted to ALJ Emily Ruth Statum, who
received additional evidence including opinions from treating psychiatrist, Dr. Gainer, id.
at 1705-08, and consultative examiner, Dr. Smith, id. at 1747-590; plus responses to
medical interrogatories answered by Dr. Macklin, id. at 1762-70. ALJ Statum also held
hearing, during which Plaintiff testified. Id. at 1048-68.
B.

Plaintiff’s Testimony
During a hearing before ALJ Statum, he testified that he was 40 years old and had

worked in his last job from December 1995 to November 2003. He explained that he got
sick at work in 2000 and “passed out.” (Doc. #7, PageID# 1052). He fell and hit his head
on the ground and shattered a bone in his left ear. He also explained:
[E]ver[] since then, I’ve had dizzy spells, loss of balance which if I turn my
head to the left or right, a lot of times I get dizzy spells or loss of balance. I
also have damage to my lower back and my neck which makes it very
difficult to sit or stand with my head down or up for a period of time.
Id. Plaintiff further testified, “I have postural orthostatic tachycardia syndrome which can
3

cause me to have lightheadedness, weakness, [and] extreme fatigue. I do pass out on a
regular basis. Sometimes without warning.” Id. at 1052, 1060. He passes “out on a
regular basis.” Id. at 1053. Given the potentially disabling nature of this disorder, it is
worth pausing to generally describe its features. According to the National Institute of
Neurological Disorders and Stroke:
Postural orthostatic tachycardia syndrome (POTS) is one of a group of
disorders that have orthostatic intolerance (OI) as their primary symptom.
OI describes a condition in which an excessively reduced volume of blood
returns to the heart after an individual stands up from a lying down position.
The primary symptom of OI is lightheadedness or fainting. In POTS, the
lightheadedness or fainting is also accompanied by a rapid increase in
heartbeat of more than 30 beats per minute, or a heart rate that exceeds 120
beats per minute, within 10 minutes of rising. The faintness or lightheadedness of POTS are relieved by lying down again....
http://www.ninds.nih.gov/disorders/postural_tachycardia_syndrome/postural_tachycardia_
syndrome.htm[.]
Returning to Plaintiff’s hearing, he testified that when he is under physical stress,
he gets a rapid heart rate and high blood pressure. He will become very tired and weak,
especially when bending over or leaning down, then standing back up. Id. at 1055-56. He
continued:
I become very fatigued. I usually will become extremely tired to the point
where I fall asleep. I become weak and disoriented. A lot of times I’m not
aware of what’s going on. I can’t stand or walk on my own. I have to be
helped to go my bed usually to sleep it off.
Id. at 1060. These episodes occur to Plaintiff “a few times a week.” Id.
Plaintiff also told ALJ Statum that he suffers from emotional issues, including
4

problems with severe depression, flashbacks, anxiety attacks, nightmares, and mood
swings. He is withdrawn,and has suicidal thoughts. Id. at 1053-54. Plaintiff indicated
that he was diagnosed with bi-polar disorder when he was 12 years old and has since
become agoraphobic. Id. He has flashbacks 2-3 times a week, reliving the moment of his
mother’s death and her funeral. Id. at 1057-58. He experiences anxiety attacks 4-5 times
per week, involving shortness of breath, rapid heart rate, panic, fatigue, and confusion. Id.
at 1058. He has nightmares 4 times per week. Id. at 1060-61. He withdraws several times
a month to his room for a period of days at a time. He has mood swings daily and thinks
of about suicide on a daily basis but has no intent. Id. at 1061-62.
Plaintiff is on various psychotropic medications in addition to medication for his
dizzy spells. He believes the medication is helping. Id. at 1054. His medication “calms”
his dizzy spells down, but he still gets them “on a regular basis.” Id. The day before the
hearing, he fainted while in the shower. Id. at 1054-55. He had also fainted a few days
earlier. Id. at 1059.
Plaintiff’s additional health problems include “lots of pain” in his neck and lower
back, along with problems with his hands and wrist. Id. at 1056.
During a typical day, Plaintiff helps get his brother’s children ready for school in
the morning. Two times a week after school, he supervises the children for an hour. Id. at
1055, 1059. He is not their primary caregiver. Id. at 1058-59. He washes his own
laundry. Id. at 1055. He has difficulty cleaning because the physical stress causes rapid

5

heart rate and weakness, especially when he bends over. Id. at 1055-56. He has one friend
who he visits but not very often. Id. at 1056. In the past, he liked to hunt and fish, but he
has lost interest in his hobbies. Id.
C.

Medical Evidence

One central opinion at issue on remand was provided by Plaintiff’s primary care
physician, Dr. Martin. His earliest treatment record indicates that he was seen for a checkup in December 2003 when he was experiencing vertigo and balance disturbance. (Doc.
#6, PageID# 681). Dr. Martin treated Plaintiff over 40 times for his various impairments
from December 2003 through October 2010. Id. at 1123.
In March 2009, Dr. Martin completed a basic medical form. He noted that
Plaintiff’s medical conditions included bipolar depression, high blood pressure,
generalized anxiety, vertigo, syncopal episodes, and hyperlipidemia. Id. at 769. He noted
that Plaintiff’s health status was deteriorating and he had no medication since August
2008. Id. Dr. Martin opined that Plaintiff could lift and/or carry no more than 50 pounds
occasionally or 10 pounds frequently, sit no more than 2 hours at a time for a total of 2.5
hours in an 8-hour workday, and stand and/or walk no more than 1 to 2 hours at a time for
a total of 2.5 hours in an 8-hour workday. Id. at 770. Dr. Martin believed that Plaintiff
would be moderately limited in his ability to push, pull, bend, and see (“with vertigo”).
Id. Dr. Martin concluded that Plaintiff was unemployable and would be for 12 months or
more. Id.

6

Dr. Martin also completed a mental functional capacity assessment in March 2009.
He opined that Plaintiff was markedly limited in his abilities to understand, remember, and
carry out detailed instructions, to maintain attention and concentration for extended
periods, to complete a normal workday and workweek without interruptions from
psychologically based symptoms, and to perform at a consistent pace without an
unreasonable number and length of rest periods. Id. at 767. Again, Dr. Martin concluded
that Plaintiff was unemployable and would remain so for 12 months or more. Id.
In October 2010, Dr. Martin wrote a letter explaining:
[Plaintiff] has been extensively physically evaluated by his primary
care physician, cardiology, neu[r]ology, and the syncope clinic, etc. (Head
and neck CT, MRI, EEG, holter monitor, nystagmography, tilt testing,
lumbar puncture, audiometry) as well as mentally evaluated and treated
(Beck Depression Inventory, Mood Disorder questionnaire, and other
continuing psychiatric testing and therapy) both locally and through the
Cleveland Clinic Foundation medically and TCN Behavioral Health in Xenia
and other psychiatric facilities for years.
Id. at 868. Dr. Martin identified some of Plaintiff’s working diagnoses to include syncopal
episodes, recurrent, progressive, and unpredictable; headaches, migraine and tension types;
vertigo and disequalibrium; bipolar depression, severe; generalized anxiety disorder with
panic episodes; hypertension; and sinus tachycardia Id. at 869. His prognosis was fair at
best. And Dr. Martin opined:
With the chronicity, unpredictability, severity and progression of his physical
and mental impairments, it is my opinion, within the realm of medical
probability, that Mr. Stephan Hall is permanently and totally disabled from
performing all forms of substantial gainful employment.

7

Id.
Plaintiff’s treating psychiatrist since 2011, Dr. Gainer opined (in October 2014) that
Plaintiff’s treatment/symptoms would cause him to be absent more than 3 times per month.
Id. at 1705-08.
In November 2016, Plaintiff’s cardiologist/electrophysiologist, Dr. Grubb, wrote a
letter, stating:
Stephen Hall suffers from a form of autonomic dysfunction and orthostatic
intolerance consisting of the postural tachycardia syndrome (POTS) as well
as Neurocardiogenic-Syncope (NCS). In patients with the postural
tachycardia syndrome, they appear to have a mild form of peripheral
autonomic neuropathy. In this form, the peripheral vasculature, especially
the venous system, cannot maintain vascular resistance in the face of
gravitational stress. This results in a much greater than normal amount of
blood pooling in the more dependent areas of the body such as the legs, the
arms, and the splenic vasculature. There is a tremendous sequestration of
blood away from the central vasculature, which produces the compensatory
increase in heart rate and mild contractility. This increased heart rate and
contractility may first compensate for a given degree of peripheral venous
pooling, but over time the amount of pooling may increase and exceed the
compensatory effect.
(Doc. #7, PageID#s 1744). Dr. Grubb continued to generally discuss POTS and listed its
many possible symptoms, including, for example, orthostatic intolerance, dizziness,
fainting, syncope in the upright and sitting positions, tachycardia, generalized weakness,
mood swings, anxiety, migraines, forgetfulness, and inability to concentrate. Id. at 174445. Dr. Grubb then wrote, “As you can tell by the constellation of symptoms, this indeed
can interfere with a rigorous work/academic environment, as well as inhibit positive
quality of life. Even sitting can cause symptoms. As you may understand, this condition
8

can make it very difficult to maintain gainful employment.” Id. at 1745
In November 2014, Dr. Smith examined Plaintiff for the Ohio Bureau of Disability
Determination. (Doc. #7, PageID#s 1747-59). Dr. Smith recognized that Plaintiff
underwent a tilt-table test in August 2014 that showed “1) Significant systemic
hypertension; 2) Position-induced sinus tachycardia, potentially concerning for underlying
autonomic dysfunction or postural orthostatic tachycardia syndrome ....” Id. at 1748. Dr.
Smith also reported, “X-ray of his lumbar spine at Kettering Hospital on September 26,
2014 showed multilevel degenerative disease with scarring at L2-3, L3-4, and L1-2; slight
retrolisthesis at L3-4 measuring 6 mm and at L2-4 measuring 3mm. He has multiple disc
compressions from T12 to L5-S1.” Id.
In his summary, Dr. Smith wrote that Plaintiff has “a history of a closed head injury
with an injury to his middle ear with subsequent dizzy spells, loss of balance, and
intermittent tinnitus.” Id. at 1749. Dr. Smith further noted that Plaintiff is able to drive
and has chronic neck pain, but he uses a TENS unit he to control his neck pain. Dr. Smith
concluded that based on his objective findings on physical examination, Plaintiff is
capable of lifting, carrying, pushing, or pulling up to 50 pounds; sitting, standing, and
walking 15 minutes every 2 hours due to his neck and lower back issues. Id. at 1749.
In January 2015, at the ALJ’s request, Dr. Macklin reviewed the record, completed
a medical source statement, and answered interrogatories about Plaintiff’s mental work
abilities. Id. at 1762-70; see Doc. #9, PageID# 1778. Dr. Macklin opined that as of 2007,

9

Plaintiff met listing 12.04 (affective disorders) of the Commissioner’s Listing of
Impairments. See Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1. Dr.
Macklin also wrote that Plaintiff had been unable to work since 2003, due to POTS. Id. at
1768.
Further detailed description of the medical records and opinions is unnecessary
because the undersigned has reviewed the entire administrative record and because ALJ
Lombardo, ALJ Statum, Plaintiff’s counsel, and the Commissioner have accurately
summarized the record.
III.

“Disability” Defined and the ALJ’s Decision
To be eligible for Disability Insurance Benefits or Supplemental Security Income, 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 types of benefits. 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 id.
ALJ Statum evaluated Plaintiff’s applications and the evidence of record under the
5-step sequential evaluation mandated by Social Security regulation. See 20 C.F.R.

10

§§ 404.1520(a)(4), 416.920(a)(4);3 see also Rogers v. Comm’r of Soc. Sec., 486 F.3d 234,
241 (6th Cir. 2007). She reached findings favorable to Plaintiff at steps 1 and 2, then
proceeded to step 3 where she concluded that Plaintiff did not have an impairment or
combination of impairment that constituted a disability under the Commissioner’s Listing
of Impairments. See Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1.
Continuing to step 4, ALJ Statum assessed Plaintiff’s residual functional
capacity—or, the most he could do in a work setting despite his impairments, see 20
C.F.R. § 416.945(a); see also Social Security Ruling 96-8p, 1996 WL 374184 (July 2,
1996), and concluded that Plaintiff could perform light work “except that he can perform
frequent but not constant climb ramps or stairs; occasionally kneel, crouch, crawl, and
stoop; with no climbing of ladders, ropes, or scaffolds.” (Doc. #7, PageID# 1017). The
ALJ also concluded:
He is further limited to the performance of work that is low stress in
nature or work that is unskilled, simple, and repetitive with no assembly line
production quotas and no fast pace work. The work must also involve
minimal (meaning no more than occasional) contact with coworkers,
supervisors, and the public. Finally, the work must not involve exposure to
heights, hazardous machinery, or commercial driving.
Id. Given these findings, ALJ Statum concluded at step 4 that Plaintiff could not perform
his past relevant work as a motor vehicle assembler. Id. at 1032.
At step 5, the ALJ determined that Plaintiff could perform a significant number of

3

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

11

unskilled, light exertional jobs that are available in the national economy. This, in the end,
led her to ultimately conclude that Plaintiff was not under a benefits-qualifying
disability. Id. at 1032-33.
IV.

Judicial Review
The Social Security Administration’s determination of disability—here, embodied

in ALJ Statum’s decision—is subject to judicial review 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 F.3d 742, 745-46 (6th Cir. 2007). Reviewing the ALJ’s legal criteria for correctness may result in reversal even if the record
contains substantial evidence supporting the ALJ’s factual findings. Gentry v. Comm’r of
Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234,
241 (6th Cir. 2007).
The substantial-evidence review does not ask whether the Court agrees or
disagrees with the ALJ’s factual findings or whether the administrative record contains
evidence contrary to those factual findings. Rogers, 486 F.3d at 241; see Her v. Comm’r
of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999). Instead, substantial evidence supports
the ALJ’s factual findings when a “‘reasonable mind might accept the relevant evidence as
adequate to support a conclusion.’” Blakley, 581 F.3d at 406 (quoting Warner v. Comm’r
of Social Sec., 375 F.3d 387, 390 (6th Cir. 2004)). Substantial evidence consists of “more

12

than a scintilla of evidence but less than a preponderance...” Rogers, 486 F.3d at 241; see
Gentry, 471 F3d at 722.
V.

Discussion
Plaintiff contends that ALJ Statum improperly rejected the opinions of his long-

time treating physician Dr. Martin by finding his statements conclusory and unsupported
by the clinical evidence. (Doc. #9, PageID#s 1779-82). Plaintiff reasons that the ALJ
erred by substituting “her own opinion for the clinical findings in Dr. Martin’s treatment
notes, the frequency of seizures and sleep apnea, etc. “ Id. at PageID# 1779. Plaintiff
emphasizes that the ALJ failed to mention POTS—his primary impairment—and asserts
that it is impossible to accurately analyze Dr. Martin’s opinions without considering all of
Plaintiff’s impairments in combination.
The Commissioner argues that substantial evidence supports the ALJ’s evaluation
of Dr. Martin’s opinions and her decision to place little weight on the opinions provided
by Drs. Grubb, Macklin, and Ward.
Social Security regulations require ALJs to give the opinion of a treating physician
controlling weight if it is “well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in [the
claimant's] case record.” 20 C.F.R. § 416.927(c)(2); see also Gayheart v. Comm’r of Soc.
Sec., 710 F.3d 365, 375 (6th Cir. 2013). “Even if [a] treating physician’s opinion is not
given controlling weight, there remains a presumption, albeit a rebuttable one, that the

13

opinion…is entitled to great deference.” Hensley v. Astrue, 573 F.3d 263, 266 (6th Cir.
2009) (internal quotations and citations omitted). This rebuttable presumption requires
ALJs to continue to weigh treating source opinions under certain factors, including the
length of the treatment relationship, frequency of examination, specialization of the
treating source, supportability of the opinion, and consistency of the opinion with the
record as a whole. 20 C.F.R. §§ 416.927(c)(1)-(6); see Bowen, 478 F.3d at 747. ALJs
must likewise consider these factors to determine what weight to give the opinions
provided by non-treating, consulting, and record-reviewing physicians. Miller v. Comm'r
of Soc. Sec., 811 F.3d 825, 836-37 (6th Cir. 2016).
ALJ Statum placed little weight on Dr. Martin’s opinions. She reasoned, “The
objective and clinical evidence does not support his conclusory and markedly limiting
restrictions, or his opinion of disability. Specifically, clinical examinations have been
unremarkable (Exhibits 49F at 4 and 12 [PageID#s 1394, 1402]) and his own treatment
notes do not reveal observable clinical signs or findings consistent with the extent or
frequency of the seizures he reported.... ” (Doc. #6, PageID# 1029). The fact that the ALJ
cited only 2 pages from an 1,800-page administrative record in support of her observation
about unremarkable clinical findings does not suggest a reasonable evidentiary basis for
discounting Dr. Martin’s opinions. This is particularly so when Dr. Martin’s was
Plaintiff’s very long-term treating physician—15 years—who had treated Plaintiff more
than 40 times, as of early 2014. Id. at 1123. Such a lengthy treatment relationship with

14

such frequent treatment visits tend to breed a depth of knowledge about a patient that
supports application of the treating physician rule. The regulations reflect this by
explaining to social security applicants:
Generally, we give more weight to opinions from your treating sources, since
these sources are likely to be the medical professionals most able to provide
a detailed, longitudinal picture of your 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, such as consultative examinations or brief hospitalizations....
20 C.F.R. § 404.1527(c)(2). And, rather than suggesting a reasonable view of Dr.
Martin’s opinion, ALJ Statum’s citation to only 2 pages from an 1,800-page administrative
record points toward an overly selective review of the record and reveals error. See
Taskila v. Comm'r of Soc. Sec., 819 F.3d 902, 904 (6th Cir. 2016) (“Substantial evidence
review comes to this: Did the ALJ use ‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion’?” (citation omitted)); see also Loza v. Apfel,
219 F.3d 378, 393 (5th Cir. 2000) (“ALJ must consider all the record evidence and cannot
‘pick and choose' only the evidence that supports his position.”); Minor v. Comm'r of Soc.
Sec., 513 Fed Appx. 417, 435 (6th Cir. 2013) (reversing where the ALJ “cherry-picked
select portions of the record” rather than doing a proper analysis).
This problem in the ALJ’s decision is compounded by her failure to evaluate Dr.
Martin’s opinions in light of Plaintiff’s primary impairment—POTS (Doc. #7, PageID#
1029)—and in light of the effects caused by POTS combined with his other impairments.
Dr. Martin explained in October 2010 that Plaintiff’s disability status existed due to “the
15

chronicity, unpredictability, severity and progression of his physical and mental
impairments ....” (Doc. #6, PageID# 869). Given this explanation by Dr. Martin, it was
not reasonable for the ALJ to find that his opinions were conclusory. Dr. Martin’s
opinions were not only based on Plaintiff’s subjective complaints but also on his own
observations and training as a medical doctor. See id. at 868-69. Dr. Martin’s treatment
notes continually reflect his treatment for Plaintiff’s psychological and physical problems.
Id. at 386, 439, 477-550, 665-681, 886 , 897, 1291-1407, 1713-1743. Over the years
he treated Plaintiff for the syncopal episodes, vertigo, and mental health issues. Id. A
close reading of Dr. Martin’s treatment notes also reflect a worsening of Mr. Hall’s dizzy
spells, headaches, and syncopal episodes. Id. at 886-97. Specifically, the treatment notes
of 10/26/09, 11/23/09, 05/06/10, 06/04/10, 08/10/10, and 09/08/10. Id. at 888, 890-92,
894). These treatment notes reflect complaints of passing out several times. The notes
from the Cleveland Clinic confirm episodes of syncope or vertigo. Id. at 337-62. Dr.
Martin’s treatment notes in 2012 and 2013 continue to reflect that Plaintiff’s legs were
weak, he is unbalanced, has extreme fatigue, and still passing out. On August 21, 2012, he
passed out 2 times while in the shower. Id. at 1721, 1724, 1727, 1732.
Dr. Martin’s opinions are supported by information in a letter written by Plaintiff’s
treating cardiologist/electrophysiologist Dr. Grubb. Id. at 1744. Dr. Grubb is “a leading
international and national expert in autonomic disorders...,” including POTS. Id. at 1744.
Dr. Grubb confirmed that Plaintiff suffers from POTS “as well as Neurocardiogenic

16

Syncope.” Id. He then set forth a multitude of symptoms and a detailed description of
what patients with these conditions experience. Plaintiff’s treatment records indicate that
Plaintiff suffers from many of the POTS symptoms Dr. Grubb describes, and his
conclusion that POTS “can make it very difficult to maintain gainful employment...,” id. at
1745, tends to support Dr. Martin’s opinions. The ALJ gave Dr. Grubb’s statements little
weight because he discussed POTS patients generally and did not mention any objective
findings or functional limitations specific to Plaintiff. Id. at 1030. The ALJ, however,
overlooked or ignored the consistency between the general POTS information Dr. Grubb
provided and Dr. Martin’s opinions and Plaintiff’s symptoms. Although Dr. Grubb’s
information by itself does not establish that Plaintiff was under a disability, it does
constitute evidence which the ALJ needed to consider when weighing Dr. Martin’s
opinions. The ALJ’s failure to do so was part and parcel of the error she made by not
considering Dr. Martin’s opinions in light of Plaintiff’s POTS and other impairments
combined.
The ALJ also placed little weight on Dr. Martin’s opinions because he provided
them at the request of Plaintiff’s attorney. This was an improper reason to discount Dr.
Martin’s opinions. “The claimant bears the burden of submitting medical evidence
establishing her [or his] impairments and ... residual functional capacity. How else can
[the claimant] cary this burden other than by asking her [or his] doctor to weigh in?”
Punzio v. Astrue, 630 F.3d 704, 712 (7th Cir. 20011). Additionally, “[t]he [Commissioner]

17

may not assume that doctors routinely lie in order to help their patients collect disability
benefits.” Lester v. Chater, 81 F.3d 821, 832 (9th Cir. 1996). Indeed, a walk down this
road would be analytically dangerous for the Commissioner as it would require the ALJ to
apply less weight to all consultative physicians or medical advisors whose opinions were
obtained by state agencies, by the Commissioner, or by Order of an ALJ. The Regulations
do not contemplate this evidentiary situation. See 20 C.F.R. §§ 404.1527(b)-(e).
Next, the record contains numerous letters from friends and family members that
corroborate the severity of Plaintiff’s impairments. (Doc. #6, PageID 295-307). These
letters specifically describe their observations of Plaintiff and his symptoms. Id. Although
the letters are from lay witnesses, the regulations required the ALJ to consider them by
promising claimants:
We will also consider descriptions and observations of your
limitations from you impairment(s), including limitations that result from
your symptoms, such as pain, provided by you, your family, neighbors,
friends, or other persons.
20 C.F.R. § 404.1545(a)(3). In addition, the letters contain many observations consistent
with Dr. Martin’s treatment notes and treatment notes from The Community Network.
(Doc. #6, PageID #s 779-867, 886-95, 899-966).
Turning to the ALJ’s rejection of the opinions provided by Dr. Macklin in January
2015, a further error arises. The ALJ sent interrogatories to Dr. Macklin who opined that
Plaintiff met section 12.04 of the listings as of 2007 and was disabled as of 2003 based on
POTS. (Doc. #7, PageID#s 1762-70). The ALJ placed little weight on Dr. Macklin’s
18

opinion because it was not based on a treating or examining relationship and because the
record does not support more than mild to moderate functional limitations concerning
Plaintiff’s mental health. Id. at 1030. Yet, the fact that the ALJ considered the lack of a
treating or examining relationship here, where it supported her non-disability conclusion,
but did not consider Dr. Martin’s very long-term treatment relationship, where it would not
have supported her non-disability conclusion, reveals error. As noted above, the “ALJ
must consider all the record evidence and cannot ‘pick and choose' only the evidence that
supports his position.” Loza, 219 F.3d at 393; see Minor v. Comm'r of Soc. Sec., 513 Fed
Appx. 417, 435 (6th Cir. 2013) (reversing where the ALJ “cherry-picked select portions of
the record” rather than doing a proper analysis). Plaintiff’s medical records, moreover,
contain a plethora of mental health treatment notes that support Dr. Macklin’s opinion.
And the ALJ overlooked or ignored Dr. Macklin’s opinion that Plaintiff’s POTS alone
constituted a disability. Opinions provided by other mental-health professionals, namely
Drs. Gainer and Ward and counselor Rothman, are consistent with Dr. Macklin’s opinions.
Treating psychiatrist Dr. Gainer believed that Plaintiff could not be dependable and
reliable to the extent that he would be unable to maintain competitive employment, being
absent more than 3 times per month. (Doc. #7, PageID#s 1705-08). Her opinion is
supported by large number of mental-health treatment notes. Plaintiff began treatment at
The Community Network (TCN) in July 2009. (Doc. #6, PageID#s at 779-862, 899-966,
973; Doc. #6, PageID#s 1709-12). He participated in both group and individual

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counseling for his depression, anxiety, and anger issues. Id. His therapist, Randi
Rothman, MSS, LSW, helped him work on his coping skills, emotion regulation, distress
tolerance, interpersonal effectiveness, and mindfulness skills. Id. at 973. Dr. Ward
evaluated Plaintiff for the Bureau of Disability Determination in April 2009. Id. at 444-48.
Dr. Ward diagnosed Plaintiff with Bipolar Disorder NOS and Anxiety Disorder. Id. at
447. He determined that Plaintiff’s ability to withstand the stress and pressures associated
with day to day work activity would be markedly impaired by mental health difficulties.
Id. at 448. He believed that Plaintiff was markedly impaired in his ability to maintain
attention, concentration, persistence, and pace. Finally, he felt that Plaintiff’s ability to
relate to fellow workers and supervisors was also markedly impaired. Id.
Accordingly, Plaintiff’s Statement of Errors is well taken.
VI.

Remand is Warranted
Plaintiff seeks an Order reversing the ALJ’s decision and remanding for benefits.
Remand is warranted when the ALJ’s decision is unsupported by substantial

evidence or when the ALJ failed to follow the Administration’s own regulations and that
shortcoming prejudiced the plaintiff on the merits or deprived the plaintiff of a substantial
right. Bowen, 478 F.3d at 746. Remand for an ALJ’s failure to follow the regulations
might arise, for example, when the ALJ failed to provide “good reasons” for rejecting a
treating medical source's opinions, see Wilson, 378 F.3d at 545-47; failed to consider
certain evidence, such as a treating source's opinions, see Bowen, 478 F3d at 747-50;

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failed to consider the combined effect of the plaintiff's impairments, see Gentry, 741 F.3d
at 725-26; or failed to provide specific reasons supported by substantial evidence for
finding the plaintiff’s credibility lacking, Rogers, 486 F.3d at 249.
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). Consequently, a remand
under sentence four may result in the need for further proceedings or an immediate award
of benefits. E.g., Blakley, 581 F.3d at 410; Felisky v. Bowen, 35 F.3d 1027, 1041 (6th Cir.
1994). The latter is warranted “only where the evidence of disability is overwhelming or
where the evidence of disability is strong while contrary evidence is lacking.” Felisky v.
Bowen, 35 F.3d 1027, 1041 (6th Cir. 1994) (quoting Faucher v. Sec'y of Health & Humans
Servs., 17 F.3d 171, 176 (6th Cir. 1994).
The record contains strong evidence in favor of finding Plaintiff to be under a
disability, including, at a minimum, Dr. Martin’s opinions combined with the information
provided by Dr. Grubb, the opinions provided by Dr. Macklin, and Plaintiff’s mentalhealth treatment records. Contrary evidence is lacking. There is no other treating or
reliable examining physician opinion refuting Dr. Martin’s opinion. Dr. William Smith
evaluated Plaintiff, but he provided an orthopedic exam and did not consider the extent of
Plaintiff’s POTS. See Doc. #7, PageID #s 1747-59). Dr. Martin has a longitudinal perspective of Plaintiff’s impairments and limitations. The opinions of physicians who did not

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have the opportunity to review the entire medical evidence of record and have never seen
Plaintiff, especially compared to Dr. Martin’s opinion, are lacking.

IT IS THEREFORE RECOMMENDED THAT:
1.

The Commissioner’s non-disability finding be vacated;

2.

Plaintiff Stephen Hall’s applications for Disability Insurance Benefits and
Supplemental Security Income filed on March 5, 2009 be REMANDED to
the Social Security Administration for payment of benefits consistent with
the Social Security Act; and

3.

The case be terminated on the docket of this Court.

July 25, 2016
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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