DeHart v. Commissioner of Social Security

Filing 14

REPORT AND RECOMMENDATIONS: The Commissioner's non-disability finding be vacated; no finding be made as to whether Plaintiff Donald Dehart was under a "disability" within the meaning of the Social Security Act; this matter be REMANDED to the Social Security Administration for further consideration consistent with this Report and Recommendations, and any decision adopting this Report and Recommendations; and the case be terminated on the Courts docket. Objections to R&R due by 12/2/2016. Signed by Chief Magistrate Judge Sharon L. Ovington on 11/15/2016. (lek)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DONALD DEHART,
Plaintiff,
vs.
CAROLYN W. COLVIN,
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

: Case No. 3:15-cv-446
:
: District Judge Walter H. Rice
: Chief Magistrate Judge Sharon L. Ovington
:
:
:
:
:
:
:

REPORT AND RECOMMENDATIONS1
I.

Introduction
Plaintiff Donald Dehart brings this case challenging the Social Security

Administration’s denial of his application for a period of disability and Disability
Insurance Benefits. He applied for benefits on April 26, 2012, asserting that he could no
longer work a substantial paid job due to emphysema, chronic obstructive pulmonary
disease (COPD), and shortness of breath. Administrative Law Judge (ALJ) Elizabeth A.
Motta concluded that he was not eligible for benefits because he was not under a
“disability” as defined in the Social Security Act.

1

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

The case is before the Court upon Plaintiff’s Statement of Errors (Doc. #7), the
Commissioner’s Memorandum in Opposition (Doc. #10), Plaintiff’s Reply (Doc. #11),
the administrative record (Doc. #6), and the record as a whole.
II.

Background
Plaintiff was forty-seven years old when he applied for benefits and was therefore

considered a “younger person” under Social Security Regulations. See 20 C.F.R. §
1563(c). He has a high school education.
A.

Plaintiff’s Testimony

Plaintiff testified at the hearing before ALJ Motta that he cannot work “because I
can’t breathe…. I’m on oxygen. I get short of breath. I can’t do much of anything
anymore.” (Doc. #6, PageID #128). He uses an oxygen machine at home that produces
its own oxygen, and he also has a “bigger emergency tank.” Id. He uses the machine
twenty-four hours per day when he is at home. Id. at 135. He also uses a nebulizer at
least four times per day. Id. at 140. When Plaintiff gets short of breath, he sometimes
feels weak and has anxiety attacks. Id. at 129-30. He has anxiety attacks a “few times a
month.” Id. at 139. He has not received treatment or medication for anxiety. Id. at 130,
139.
Plaintiff’s primary-care physician is Dr. Bland. Id. at 130. He sees her “when she
makes the appointments,” and she prescribes albuterol. Id. In December 2012, he was
hospitalized for a week due to breathing difficulties. Id. The hospital gave him patches
to help him quit smoking, and he has not smoked since. Id. at 129.

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Plaintiff testified that he was upset with his experience with the consultative
examiner’s pulmonary-function study. Id. at 135. He explained,
The doctor that was there was at least 90 years old…. I repeatedly told the
man doing the test that I was having problems breathing, and they let me
pass out and hit my head on the wall. And… the old man didn’t even
acknowledge – I [came] to and picked myself back up off the floor. And
the machine… that they took the test [] on looked like something out of the
‘60s with a paper, and it looked like an earthquake machine.
Id. at 136. Plaintiff’s attorney noted that the doctor did not mention that he passed out.
Id. at 137. The ALJ indicated that she would send him to a different doctor for a new
pulmonary-function study. Id.
Plaintiff last worked at Payless as a shoe packager from 2010 to 2011. Id. at 125.
He stopped working because, “I was having trouble breathing at the time and wasn’t sure
what was going on. And they switched us to production, and I couldn’t keep up.” Id. at
126. When asked if he was fired or if he quit, he responded, “I clocked out and went
home. They said I walked off the job. So that, in their eyes, they fired me….” Id. He
previously watered plants and worked in the greenhouse at Springfield Nurseries. Id. He
also worked on a production line at Lewisburg Container, and he did general labor at both
Kelchner and Miller Brothers Excavating. Id. at 127.
Plaintiff resides with his wife and two sons. Id. at 124. He used to be able to cook
and prepare meals, but now he can only use the microwave. Id. at 131. He can stand and
wash dishes at the sink for ten to fifteen minutes. Id. He also tries to help with laundry.
Id. He does not vacuum or work outside. Id. at 131-32. He is able to take a bath or
shower and can dress himself. Id. at 133. He does not use a computer or a cell phone.
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Id. Altogether, Plaintiff only helps with chores approximately one hour per day. Id. at
138. During the day, he watches TV, sits at the back window, reads books, and
sometimes lies in bed all day. Id.
Plaintiff has a driver’s license, but he does not drive because, “I don’t like to drive
and go anywhere by myself with the oxygen. Our car is not the best, and I’m just
nervous about something breaking down and being by myself.” Id. at 124. In general, he
does not leave the house by himself. Id. at 139. He is embarrassed by the oxygen tank,
and it makes him feel bad about himself. Id. Plaintiff does not generally go shopping.
Id. at 132. However, he went grocery shopping with his wife a few weeks before the
hearing. Id. He used to go hunting, but he has not gone in a couple years. Id. at 134. He
also likes to fish. Id. The last time he went fishing, it was only for an hour. Id.
B.

Medical Opinions
i. Carol Bland, M.D.

Plaintiff’s primary-care physician, Dr. Carol Bland, completed an assessment on
December 3, 2012. Id. at 470-72. Dr. Bland opined that Plaintiff could stand for fifteen
minutes at a time for a total of one hour in an eight-hour workday and sit for one hour at a
time for a total of one hour in an eight-hour workday. Id. at 471. He cannot lift any
weight. Id. He can never bend; stoop; work around dangerous equipment; tolerate heat
or cold; or tolerate exposure to dust, smoke, or fumes. Id. He can occasionally balance,
raise his arms above shoulder level, and operate a motor vehicle. Id. In addition, he can
frequently engage in fine or gross manipulation with his hands and constantly tolerate
noise exposure. Id. Dr. Bland further opined that his pain is mild, but he would
4

frequently miss work due to exacerbations of pain. Id. at 472. Specifically, he could
have two to three episodes per year that could last for days or a couple weeks at a time.
Id. She also noted that he “[r]equires oxygen.” Id.
ii. Damian Danopulos, M.D.
On October 8, 2012, Dr. Damian Danopulos performed a pulmonary-function
study. Id. at 427-33. Dr. Danopulos concluded that Plaintiff had “[m]oderate degree
obstructive and mild degree restrictive lung disease with mild [bronchodilator] effect, if
at all.” Id. at 429. He noted that Plaintiff tried his best, and the test was valid. Id. at 42829.
iii. Stephen Halmi, Psy.D.
Dr. Halmi examined Plaintiff on August 3, 2012. Id. at 417. He noted that
Plaintiff drove to the appointment by himself but told him, “I have problems driving
because of the oxygen tank.” Id. at 420. He reported that he smokes three to four
cigarettes per day. Id. at 419. Further, he is able to take care of his personal hygiene
without assistance. Id. He completes light housework, including doing the dishes and
vacuuming. Id.
Dr. Halmi diagnosed Plaintiff with Depressive Disorder and Anxiety Disorder. Id.
at 422. He noted that he has not received any psychological treatment or medication. Id.
at 419. He opined that he was capable of understanding, remembering, and carrying out
simple and multi-step instructions. Id. at 424. However, he would not be capable of
performing a multi-step task because he has concentration problems, low frustration
tolerance, and a lack of initiative. Id. He would have intermittent problems responding
5

to supervision and coworkers, and he cannot effectively manage difficult people. Id. at
424-25.
iv. Phillip Swedberg, M.D.
Dr. Phillip Swedberg examined Plaintiff on January 29, 2014. Dr. Swedberg
noted that he could not perform a pulmonary-function study because “patient is currently
on treatment of steroids due to a lung infection.” Id. at 501. However, a CT scan
revealed hyperinflation of his lungs. Id. at 488. He diagnosed Plaintiff with COPD. Id.
at 487. Dr. Swedberg also observed that his “breath sounds were distant and scattered
rhonchi were noted.” Id. Additionally, he coughed frequently throughout the exam.
Dr. Swedberg opined that Plaintiff can lift up to ten pounds frequently and twenty
pounds occasionally and carry up to twenty pounds frequently. Id. at 495. He can sit for
four hours at one time for a total of four hours in an eight-hour workday, he can stand for
thirty minutes at one time for a total of three hours, and he can walk for thirty minutes at
one time for a total of two hours. Id. at 496. He can frequently reach, feel, and push/pull
with his hands. Id. at 497. In addition, he can frequently operate foot controls. Id. He
can never climb stairs, ramps, ladders, or scaffolds, and occasionally balance, stoop,
kneel, crouch, and crawl. Id. at 498. He can occasionally be exposed to moving
mechanical parts and operate a motor vehicle, and he can never be exposed to
unprotected heights; humidity and wetness; dust, odors, fumes, and pulmonary irritants;
extreme hot or cold; and vibrations. Id. at 499.

6

v. Babatunde Onamusi, M.D.
Dr. Babatunde Onamusi attempted to conduct a second pulmonary-function study
on March 5, 2014. Id. at 505-06. The technician administering the test noted that
Plaintiff was coughing, sweating, and wheezing at the time of the test. Id. at 505. In
addition, the technician had to stop the test because the “[patient] couldn’t tolerate.” Id.
Dr. Onamusi opined that the “study [was] probably not valid” and that there were
“[n]onreproducible tracings.” Id. at 506. However, his interpretation of the study was
“very severe obstruction.” Id.
vi. Steve McKee, M.D. & Leanne Bertani, M.D.
On October 12, 2012, Dr. Steve McKee reviewed Plaintiff’s records. Id. at 16476. He opined that Plaintiff could occasionally lift and/or carry up to twenty pounds and
could frequently lift and/or carry ten pounds. Id. at 170. He could stand and/or walk for
a total of six hours in an eight-hour day and sit for a total of six hours in an eight-hour
day. Id. at 170-71. He can never climb ladders, ropes, or scaffolds, occasionally crawl,
and frequently climb ramps and stairs. Id. at 171. He should avoid even moderate
exposure to extreme hot and cold and humidity; all exposure to fumes, odors, dusts,
gases, poor ventilation, etc.; and all exposure to hazards such as machinery and heights.
Id. at 171-72. Dr. McKee indicated that all of his restrictions were due to COPD. Id. He
concluded that Plaintiff was not disabled. Id. at 175.
Dr. Leanne Bertani reviewed Plaintiff’s records on December 10, 2012 and added
a few more restrictions. Id. at 178-90. She opined Plaintiff could stand and/or walk for a
total of four hours in an eight-hour day, for thirty minutes at a time. Id. at 185. He could
7

occasionally climb stairs and ramps and frequently stoop, kneel, crouch, and crawl. Id.
He should avoid concentrated exposure to extreme hot and cold; humidity; fumes, odors,
dusts, gases, poor ventilation, etc.; and hazards such as machinery and heights. Id. at
186.
III.

Standard of Review
The Social Security Administration provides Disability Insurance Benefits to

individuals who are under a “disability,” among other eligibility requirements. Bowen v.
City of New York, 476 U.S. 467, 470 (1986); see 42 U.S.C. § 423(a)(1). The term
“disability” – as defined by the Social Security Act – has specialized meaning of limited
scope. It encompasses “any medically determinable physical or mental impairment” that
precludes an applicant from performing a significant paid job – i.e., “substantial gainful
activity,” in Social Security lexicon. 42 U.S.C. § 423(d)(1)(A); see Bowen, 476 U.S. at
469-70.
Judicial review of an ALJ’s non-disability decision proceeds along two lines:
“whether the ALJ applied the correct legal standards and whether the findings of the ALJ
are supported by substantial evidence.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399,
406 (6th Cir. 2009); see Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir.
2007). Review for substantial evidence is not driven by whether the Court agrees or
disagrees with the ALJ’s factual findings or by whether the administrative record
contains evidence contrary to those factual findings. 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). Instead, the ALJ’s factual findings are upheld if the substantial-evidence standard
8

is met – that is, “if a ‘reasonable mind might accept the relevant evidence as adequate to
support a conclusion.’” Blakley, 581 F.3d at 407 (quoting Warner v. Comm’r of Soc.
Sec., 375 F.3d 387, 390 (6th Cir. 2004)). Substantial evidence consists of “more than a
scintilla of evidence but less than a preponderance….” Rogers, 486 F.3d at 241 (citations
and internal quotation marks omitted); see Gentry, 741 F.3d at 722.
The other line of judicial inquiry – reviewing the correctness of the ALJ’s legal
criteria – may result in reversal even when the record contains substantial evidence
supporting the ALJ’s factual findings. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647,
651 (6th Cir. 2009); see Bowen, 478 F.3d at 746. “[E]ven if supported by substantial
evidence, ‘a decision of the Commissioner will not be upheld where the SSA fails to
follow its own regulations and where that error prejudices a claimant on the merits or
deprives the claimant of a substantial right.’” Rabbers, 582 F.3d at 651 (quoting in part
Bowen, 478 F.3d at 746, and citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 546-47
(6th Cir. 2004)).
IV.

The ALJ’s Decision
As noted previously, it fell to ALJ Motta to evaluate the evidence connected to

Plaintiff’s application for benefits. She did so by considering each of the five-sequential
steps set forth in the Social Security Regulations. See 20 C.F.R. § 404.1520. She
reached the following main conclusions:
Step 1:

Plaintiff has not engaged in substantial gainful employment since July
1, 2011.

Step 2:

He has the severe impairment of COPD.
9

Step 3:

He does not have an impairment or combination of impairments that
meets or equals the severity of one in the Commissioner’s Listing of
Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1.

Step 4:

His residual functional capacity, or the most he could do in a work
setting despite his impairments, see Howard v. Comm’r of Soc. Sec.,
276 F.3d 235, 239 (6th Cir. 2002), consists of a “light work… except:
lift up to 20 pounds occasionally and 10 pounds frequently; standing
and walking limited to 30 minutes at a time for a combined total of
four hours in an eight-hour workday; only occasional postural
activities, such as climbing stairs/ramps, balancing, stooping,
kneeling, crouching, or crawling; no climbing ropes, ladders, or
scaffolds; no exposure to hazards, such as moving or dangerous
machinery or working at unprotected heights; no concentrated
exposure to odors, gases, dust, fumes, or poorly-ventilated areas;
indoor, temperature-controlled environment with no exposure to
extremes of cold, heat, wetness, or humidity; low stress work with no
strict production quotas or fast pace, and few changes in the work
setting, and; only occasional contact with the public, co-workers, and
supervisors.”

Step 4:

He is unable to perform any of his past relevant work.

Step 5:

He could perform a significant number of jobs that exist in the
national economy.

(Doc. #6, PageID #s 100-12). These main findings led the ALJ to ultimately conclude
that Plaintiff was not under a benefits-qualifying disability. Id. at 111.
V.

Discussion
Plaintiff contends that the ALJ erred in rejecting Plaintiff’s treating physician’s

opinions and finding that Plaintiff was not credible. The Commissioner maintains that
the ALJ properly weighed the medical opinions of record and substantial evidence
supports the ALJ’s finding that Plaintiff was not fully credible.

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A.

Medical Opinions

Social Security Regulations require ALJs to adhere to certain standards when
weighing medical opinions. “Key among these is that greater deference is generally
given to the opinions of treating physicians than to those of non-treating physicians,
commonly known as the treating physician rule.” Rogers, 486 F.3d at 242 (citations
omitted). The rule is straightforward:
Treating-source opinions must be given “controlling weight”
if two conditions are met: (1) the opinion “is well-supported
by medically acceptable clinical and laboratory diagnostic
techniques”; and (2) the opinion “is not inconsistent with the
other substantial evidence in [the] case record.”
Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013) (quoting in part 20
C.F.R. § 404.1527(c)(2)); see Gentry, 741 F.3d at 723.
If the treating physician’s opinion is not controlling, “the ALJ, in determining how
much weight is appropriate, must consider a host of factors, including the length,
frequency, nature, and extent of the treatment relationship; the supportability and
consistency of the physician's conclusions; the specialization of the physician; and any
other relevant factors.” Rogers, 486 F.3d at 242 (citing Wilson, 378 F.3d at 544).
The regulations also require ALJs to provide “good reasons” for the weight placed
upon a treating source’s opinions. Wilson, 378 F.3d at 544. This mandatory “good
reasons” requirement is satisfied when the ALJ provides “specific reasons for the weight
placed on a treating source’s medical opinions.” Id. (quoting Soc. Sec. Rul. No. 96-2p,
1996 WL 374188, at *5 (Soc. Sec. Admin. July 2, 1996)). The goal is to make clear to

11

any subsequent reviewer the weight given and the reasons for that weight. Id.
Substantial evidence must support the reasons provided by the ALJ. Id.
ALJ Motta does not say exactly how much weight she assigned Dr. Bland’s
opinions. Instead, she asserts, “Dr. Bland’s opinion is not given controlling weight,
although it was considered in limiting the claimant to a light range of work….” (Doc. #6,
PageID #107). ALJ Motta’s decision contains very little concerning the treating
physician rule. She merely refers to “controlling weight” and indicates that she
“considered opinion evidence in accordance with the requirements of 20 CFR 404.1527
and SSRs 96-2p, 96-5p, 96-6p and 06-3p.” Id. at 103. ALJ Motta did not explicitly
address the two conditions under the treating physician rule. She does not even mention
the second condition – whether the opinion is not inconsistent with the record. Similarly,
she does not explicitly refer to the first condition – whether the opinion is well-supported
by medically acceptable clinical and laboratory diagnostic techniques – but she does
criticize Dr. Bland’s opinions for lacking support. However, it is unclear if she is
addressing the first condition of the treating physician rule or supportability under the
factors. It appears that she might be addressing supportability under the factors because
her findings concerning support are intermingled with her discussion of the other factors.
There are several errors in the ALJ’s analysis. First, the “factors are 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 (citing 20 C.F.R. § 404.1527(c)(2))
(emphasis added). If at all, ALJ Motta addressed the treating physician rule at the same
time as the factors. Second, the uncertainty of whether ALJ Motta addressed the
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conditions of the treating physician rule conflicts with the requirement that the decision
“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.”
Soc. Sec. Rul. No. 96-2p, 1996 WL 374188, at *5 (Soc. Sec. Admin. July 2, 1996).
Third, by using the same standard to weigh treating physicians’ opinions and other
physicians’ opinions, she fails to recognize the deference given to treating physicians’
opinions. Id. at *4 (“In many cases, a treating source’s medical opinion will be entitled
to the greatest weight and should be adopted, even if it does not meet the test for
controlling weight.”).
However, even if the ALJ was addressing the treating physician rule when she
discussed support, her findings are not supported by substantial evidence. The ALJ
found that Dr. Bland “largely relied on his allegations of severity of COPD without
appropriate testing or knowledge of the pulmonary function study done at the request of
the Administration.” (Doc. #6, PageID #108). She noted that Dr. Bland “prescribed
oxygen for the claimant at his initial or second visit to her based on the claimant’s
allegations that his breathing was worsening, although…, his pulse oximetry had
improved to 96%, and wheezing was mild to moderate.” Id. (citation omitted).
The ALJ’s assertion that Dr. Bland “largely relied on his allegations of severity of
COPD” is not supported by the record. Dr. Bland’s opinions are supported by her
treatment notes, Plaintiff’s previous physician’s notes, and hospital records. The ALJ
fails to acknowledge that Dr. Bland had the benefit of access to Dr. Boggs’ treatment
notes, including some hospital records. For example, a radiology report from April 2010
13

revealed moderate hyperinflation of the lungs. Id. at 413. Dr. Boggs’ notes reveal that
between August 2011 and April 2012, Plaintiff consistently suffered from shortness of
breath, coughing, and wheezing. Id. at 401-10.
Plaintiff’s hospital records also support Dr. Bland’s opinions. On August 17,
2011, he presented to the emergency room with shortness of breath. Id. at 389. Hospital
records indicate “hyperinflated lungs on [chest x-ray] suggestive of COPD.” Id. at 390.
Further, he had bilateral rhonchi in bases and wheezing in bases. Id. Plaintiff followed
up with Dr. Boggs on August 25, 2011, and he noted that he was still experiencing some
wheezing and rhonchi in bases. Id. at 410. Plaintiff returned to the emergency room on
March 19, 2012. Id. at 366. He reported coughing and shortness of breath. Id. at 370.
Hospital records indicate that he was wheezing and had rhonchi, and he required five
liters of oxygen. Id. at 372. In addition, they note that his shortness of breath “gets
worse with exertion.” Id. at 368. On March 23, 2012, he was discharged with oxygen
and medication. Id. at 366. Plaintiff followed up with Dr. Boggs, who noted that he
should use oxygen at all times for two weeks. Id. at 403.
The ALJ is correct that there is no indication that Dr. Bland ever received a copy
of the results of Dr. Danopulos’ pulmonary-function study. However, Plaintiff did notify
her that he underwent testing by “a doctor in Kettering.” Id. at 467. Dr. Bland noted that
the results should be obtained or he should be re-tested, as the evaluation may have been
incomplete due to him passing out. Id.
In addition to addressing support, the ALJ weighed Dr. Bland’s opinions under
several other factors. The ALJ emphasized that she only treated Plaintiff “a few times”
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between September 2012 and December 2012 and then once in December 2013. The
ALJ also notes that “Dr. Bland did not complete the GOLD classification for COPD on
the medical statement, and is not a pulmonary specialist.” Id. at 107. Although this is
true, the ALJ fails to recognize that he had been treating with Lewisburg Family Practice,
where Dr. Bland practices, since at least August 2011. Id. at 410. Dr. Bland specifically
notes that she reviewed Plaintiff’s history with him, in Dr. Boggs’ paper chart, and in
Epic. Id. at 444. Notably, this includes radiology reports from his hospitalizations. Id. at
411-13.
Further, the ALJ notes that although Dr. Bland referred Plaintiff to a specialist,
there is no indication he ever followed through with the referral. However, the ALJ does
not recognize that Plaintiff had a good reason for not following up – he had an extremely
negative experience the first time he attempted to undergo pulmonary-function testing.
Specifically, he had trouble breathing, passed out, hit his head on the wall, and had to
pick himself up off the floor. The physician performing the test did not even
acknowledge that it had happened. Despite this, when the ALJ referred him to another
physician for pulmonary-function testing, he went, although he was ultimately unable to
complete the testing due to difficulty breathing. It was therefore unreasonable for the
ALJ to place any significance on Plaintiff’s lack of follow up with a specialist.
The ALJ also found that “[t]here is no documented evidence that he has been on
continuous supplemental oxygen for any prolonged period prescribed by Dr. Bland or
anyone else.” Id. at 108. She explains that when he was hospitalized in March 2012, “he
was not on any regular treatments and smoking.” Id. However, the ALJ is not entirely
15

correct. Plaintiff was “discharged with home O2” from the hospital in March 2012. Id.
at 366. At his follow-up appointment, Dr. Boggs instructed him to “use O2 24/7 for at
least 2 [weeks].” Id. at 403 (emphasis added). On October 10, 2012, Plaintiff reported to
Dr. Bland that his breathing had been worse recently and he was coughing more. Id. at
444. Dr. Bland also noted “poor AE, pOx 96%, mild to moderate diffuse wheezes….”
Id. Based on her review of his treatment records, her examination of him, and his reports,
she prescribed continuous oxygen. Id. at 443. On October 31, 2012, Dr. Bland noted that
he did not bring his oxygen with him, and he said that he could sometimes go without
depending on what he was doing.2 Id. at 463. But, he also told her that he uses his
oxygen when he is home. Id. By December 2012, Plaintiff was “on 3L O2 for most
hours of the day.” Id. at 466. Dr. Bland also noted “course breath sounds, bilaterally.
Inspiratory wheezes in all lung fields. Expirator wheezes [right lower lung], [left lower
lung].” Id. Although Plaintiff did not bring his oxygen to the appointment, Dr. Bland
instructed him to “continue 3L O2.” Id. at 467. Finally, in March 2014, Dr. Onamusi
noted that Plaintiff was currently using oxygen. Id. at 505. Together, this shows that
between March 2012 and March 2014, Dr. Bland consistently prescribed oxygen, and
Plaintiff consistently reported using oxygen. Substantial evidence does not support the
ALJ’s contrary findings.

2

Although the ALJ comments on Plaintiff’s “large, old-appearing oxygen tank that he rolled or dragged into the
hearing room,” she does not consider that he may have difficulty rolling or dragging it into his doctor’s office. In
addition, Plaintiff testified that he does not like to go in public because he is embarrassed to carry around the oxygen
tank, and it makes him feel bad about himself. (Doc. #6, PageID #139).

16

In comparison to the limited weight ALJ Motta gave to Dr. Bland’s opinions, she
gave consultative examiner Dr. Swedberg’s opinions significant weight because they
were “generally consistent with the overall evidence of record and his clinical findings on
examination.” Id. at 108. Specifically, Dr. Swedberg noted that the pulmonary-function
testing was consistent with moderate COPD and Plaintiff’s last hospitalization for
shortness of breath was two years earlier. Id. The ALJ erred by failing to apply the same
level of scrutiny to the consultative physician’s opinion as she applied to treating source’s
opinion. See Gayheart, 710 F.3d at 379 (citing 20 C.F.R. § 404.1527(c); Soc. Sec. R. 966p, 1996 WL 374180, at *2 (Soc. Sec. Admin. July 2, 1996)) (“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 requires.”). For example, the ALJ
criticizes Dr. Bland’s opinions because she is not a pulmonary specialist but fails to
acknowledge that Dr. Swedberg is not a pulmonary specialist either. Similarly, she
criticizes Dr. Bland for not completing the GOLD classification for COPD but fails to
mention that Dr. Swedberg did not complete the GOLD classification either. Finally, the
ALJ gives Dr. Bland’s opinions less weight because she only treated Plaintiff a few
times, but she does not acknowledge that Dr. Swedberg only met with him once.
The ALJ’s asserts that “Dr. Swedberg noted that pulmonary function testing was
consistent with moderate COPD.” (Doc. #6, PageID #108). However, Dr. Swedberg
only noted that in his history. Dr. Swedberg was not able to complete a pulmonaryfunction study because Plaintiff was taking steroids for the treatment of a lung infection.
Id. at 494. Only Dr. Danopulos and Dr. Onamusi performed pulmonary-function testing.
17

First, on October 8, 2012, Dr. Danopulos found moderate degree obstruction and mild
degree restrictive lung disease. Id. at 429. He noted that Plaintiff “tried his best” and
“was experiencing [shortness of breath] after each attempt. Id. at 428. Then, on March
6, 2014, Dr. Onamusi attempted to perform the test but “stopped [the] test because [the
patient] couldn’t tolerate.” Id. at 505. He noted that Plaintiff was coughing, sweating,
and wheezing. Id. Dr. Onamusi opined that the test results revealed a “very severe
obstruction,” but the “study was probably not valid” and resulted in “[n]onreproducible
tracings.” Id. at 506.
Similarly, ALJ Motta gave the opinions of the State agency record-reviewing
physicians significant weight. Id. at 108. She found their opinions to be consistent with
the overall evidence of record. Id. (citation omitted). Specifically, the State agency
physicians found that “the record established COPD as the claimant’s sole physical
impairment, and that the longitudinal record showed improvement over time….” Id. at
108-09. They further noted that he is able to do household chores and has an active
driver’s license that he uses. Id. at 109. Although Plaintiff claimed that he could not
walk for more than five minutes without oxygen, he sometimes went to doctor
appointments without it and told the doctor that he could go without it at times. Id.
Thus, the ALJ concluded that the “evidence noted by the state agency is consistent with
their opinion that the claimant could sustain light work activity with additional
limitations.” Id.
Again, ALJ Motta failed to apply the same level of scrutiny to the recordreviewing physicians as she applied to Plaintiff’s treating physician. She does not
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acknowledge that the State agency physicians are not pulmonary specialists, and they did
not complete a GOLD classification for COPD. Additionally, although the ALJ states
that “the longitudinal record showed improvement over time,” Dr. Bertani’s opinion is
more restrictive than Dr. McKee’s opinion. For example, Dr. McKee opined that
Plaintiff can stand and/or walk for a total of six hours in an eight-hour day, but Dr.
Bertani found that Plaintiff could only stand and/or walk for four hours. Additionally,
Dr. McKee found that Plaintiff’s ability to stoop, kneel, and crouch were unlimited, but
Dr. Bertani concluded that he could only do those activities frequently. If Plaintiff’s
condition improved over time, it would be expected that Plaintiff would have less
restrictions, not more. However, in some cases, Dr. McKee’s opinions were more
restrictive. For example, Dr. Bertani opined that Plaintiff must avoid concentrated
exposure to cold, heat, and humidity, but Dr. McKee determined that Plaintiff should
avoid even moderate exposure. The reason for these differences is not clear. Finally, the
ALJ does not acknowledge that the State agency physicians reviewed Plaintiff’s records
in October and December 2012, long before the ALJ’s decision in May 2014.
Accordingly, for the above reasons, Plaintiff’s Statement of Errors is well taken.3
B.

Remand

A remand is appropriate when the ALJ’s decision is unsupported by substantial
evidence or when the ALJ failed to follow the Administration’s own regulations and that

3

In light of the above discussion, and the resulting need to remand this case, an in-depth analysis of
Plaintiff’s challenge to the ALJ’s assessment of his credibility is unwarranted.

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shortcoming prejudiced the plaintiff on the merits or deprived the plaintiff of a substantial
right. Bowen, 478 F.3d at 746. Remand may be warranted 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 F.3d at 747-50; 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 to lack credibility, see
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 where the evidence of disability is overwhelming or
where the evidence of disability is strong while contrary evidence is weak. Faucher v.
Sec’y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994).
A judicial award of benefits is unwarranted in the present case because the
evidence of disability is not overwhelming and the evidence of disability is not strong
while contrary evidence is weak. However, Plaintiff is entitled to an Order remanding
this case to the Social Security Administration pursuant to sentence four of §405(g) due
to the problems discussed above. On remand, the ALJ should be directed to evaluate the
evidence of record, including the medical source opinions, under the applicable legal
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criteria mandated by the Commissioner’s Regulations and Rulings and by case law; and
to evaluate Plaintiff’s disability claim under the required five-step sequential analysis to
determine anew whether Plaintiff was under a disability and whether his application for
Disability Insurance Benefits should be granted.
IT IS THEREFORE RECOMMENDED THAT:
1.

The Commissioner’s non-disability finding be vacated;

2.

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

3.

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

4.

The case be terminated on the Court’s docket.

Date: November 15, 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 if 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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