Haacke v. Commissioner of Social Security
REPORT AND RECOMMENDATIONS THAT: (1) THE ALJS NON-DISABILITY FINDING BE FOUND UNSUPPORTED BY SUBSTANTIAL EVIDENCE, AND REVERSED; (2) THIS MATTER BE REMANDED TO THE COMMISSIONER UNDER THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR PROCEEDINGS CONSISTENT WITH THIS OPINION; AND (3) THIS CASE BE CLOSED re 2 Objections to R&R due by 2/16/2017. Signed by Magistrate Judge Michael J. Newman on 2/2/17. (kma)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
Case No. 3:15-cv-00458
District Judge Walter H. Rice
Magistrate Judge Michael J. Newman
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.
12), the administrative record (docs. 7, 11), Plaintiff’s reply memorandum (doc. 14), and the
record as a whole.2
Plaintiff filed an application for DIB asserting disability as of October 9, 2012. PageID
1688. Plaintiff claims disability as a result of a number of impairments including, inter alia,
Attached hereto is a NOTICE to the parties regarding objections to this Report and
Hereafter, citations to the electronically-filed administrative record will refer only to the PageID
degenerative disc disease of the lumbar spine, fibromyalgia, irritable bowel syndrome (“IBS”),
and obesity. PageID 1632.
After initial denials of her application, Plaintiff received a hearing before ALJ Gregory
Kenyon on April 1, 2014. PageID 1645-74. The ALJ issued a written decision on August 28,
2014, finding Plaintiff not disabled. PageID 1630-38. Specifically, the ALJ’s findings were as
The claimant meets the insured status requirements of the Social
Security Act through March 31, 2018.
The claimant has not engaged in substantial gainful activity since
October 9, 2012, the alleged onset date (20 CFR 404.1571 et seq.).
The claimant has the following severe impairments: degenerative disc
disease of the lumbar spine, degenerative joint disease of the bilateral
hips, degenerative joint disease of the left shoulder, osteonecrosis of
the right foot, residuals of a left lower extremity tibial tendon repair,
fibromyalgia, [IBS], and obesity (20 CFR 404.1520(c)).
The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20
CFR 404.1520(d), 404.1525 and 404.1526).
After careful consideration of the entire record, the undersigned finds
that the claimant has the residual functional capacity [“RFC”] to
perform sedentary work as defined in 20 CFR 404.1567(a) except
that the claimant can occasionally crouch, crawl, kneel, stoop, balance,
and climb ramps and stairs but never climb ladders, ropes, or scaffolds.
She cannot work around hazards such as unprotected heights or
dangerous machinery. She cannot work on uneven surfaces. She can
occasionally reach overhead with the upper extremities. She cannot
use the lower extremities for pushing, pulling, or operating foot
controls. She is limited to performing unskilled, simple, repetitive
The claimant is unable to perform any past relevant work (20 CFR
Sedentary work “involves lifting no more than 10 pounds at a time and occasionally lifting or
carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one
which involves sitting, a certain amount of walking and standing is often necessary in carrying out job
duties.” Id. § 404.1567(a).
The claimant was born [in] 1974 and was 38 years old, which is
defined as a younger individual age 18-44, on the alleged disability
onset date (20 CFR 404.1563).
The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564).
Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supports a finding that the claimant is ‘not disabled,’ whether or not
the claimant has transferable job skills (See SSR 82-41 and 20 CFR
Part 404, Subpart P, Appendix 2).
Considering the claimant’s age, education, work experience, and
[RFC], there are jobs that exist in significant numbers in the national
economy that the claimant can perform (20 CFR 404.1569 and
The claimant has not been under a disability, as defined in the Social
Security Act, from October 9, 2012, through the date of this decision
(20 CFR 404.1520(g)).
Thereafter, the Appeals Council denied review on October 30, 2015, making the ALJ’s
non-disability finding the final administrative decision of the Commissioner. PageID 1618-22.
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”).
Evidence of Record
In his decision, the ALJ set forth a detailed recitation of the underlying medical evidence
in this case. PageID 1632-34. Plaintiff, in her Statement of Errors, also summarizes the
evidence of record. Doc. 9 at PageID 1590-99. The Commissioner, in response to Plaintiff’s
Statement of Errors, defers to the ALJ’s recitation of the evidence and presents no objection to
Doc. 12 at PageID 3143-44.
Except as otherwise noted herein, the
undersigned incorporates the summary of evidence as set forth by the ALJ and Plaintiff.
Standard of Review
The Court’s inquiry on a Social Security appeal is to determine (1) whether the ALJ’s
non-disability finding is supported by substantial evidence, and (2) whether the ALJ employed
the correct legal criteria. 42 U.S.C. § 405(g); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 74546 (6th Cir. 2007). In performing this review, the Court must consider the record as a whole.
Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978).
Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). When
substantial evidence supports the ALJ’s denial of benefits, that finding must be affirmed, even if
substantial evidence also exists in the record upon which the ALJ could have found Plaintiff
disabled. Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Thus, the ALJ has a “‘zone of
choice’ within which he [or she] can act without the fear of court interference.” Id. at 773.
The second judicial inquiry -- reviewing the correctness of the ALJ’s legal analysis -may result in reversal even if the ALJ’s decision is supported by substantial evidence in the
record. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009). “[A] decision of the
Commissioner will not be upheld where the [Social Security Administration] fails to follow its
own regulations and where that error prejudices a claimant on the merits or deprives the claimant
of a substantial right.” Bowen, 478 F.3d at 746.
To 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
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 v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), the complete sequential
review poses five questions:
Has the claimant engaged in substantial gainful activity?
Does the claimant suffer from one or more severe impairments?
Do the claimant’s severe impairments, alone or in combination, meet
or equal the criteria of an impairment set forth in the Commissioner’s
Listing of Impairments (the “Listings”), 20 C.F.R. Subpart P,
Considering the claimant’s RFC, can he or she perform his or her past
Assuming the claimant can no longer perform his or her past relevant
work -- and also considering the claimant’s age, education, past work
experience, and RFC -- do significant numbers of other jobs exist in
the national economy which the claimant can perform?
20 C.F.R. § 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 disability under the
Social Security Act’s definition. Key v. Comm’r of Soc. Sec., 109 F.3d 270, 274 (6th Cir. 1997).
In her Statement of Errors, Plaintiff argues that the ALJ failed to: (1) give appropriate
weight to the opinion of her treating physician’s assistant, Judith Stutes, P.A.-C.; and (2) find her
credible. Doc. 9 at PageID 1600, 1605. The undersigned concludes that reversal is warranted
based on Plaintiff’s first assignment of error and, therefore, makes no finding regarding
Plaintiff’s second assignment of error. 4
From 2005 to 2014, P.A. Stutes treated Plaintiff for a number of medical issues including,
inter alia, fatigue, obesity, a thyroid cyst, sinusitis, insomnia, urinary incontinence, hip pain,
lumbar disc herniation, degenerative disc disease, fibromyalgia, migraines, depression, and
anxiety. PageID 455, 457, 459-64, 469, 475-77, 491-97, 514-17, 527, 531-39, 545-50, 553-61,
568, 573-74, 580-82, 587-99, 601, 607, 612, 614. On examination, Stutes consistently observed
that Plaintiff had the following: an antalgic gait; a decreased range of motion in the lumbar spine;
lumbar spasm; decreased range of motion in her left hip; decreased strength and tenderness in the
left shoulder and cervical spine. PageID 458-59, 462, 469, 472, 480, 493, 527, 530, 544, 549,
567, 571, 840, 844, 872, 875, 890, 898,1075-76, 1188, 1196, 1207, 1211, 1221, 1226, 1282.
Stutes further observed that, at times, Plaintiff presented as teary because of her pain and
depression. PageID 513, 550.
On January 6, 2014, Stutes completed interrogatories and gave an opinion regarding
Plaintiff’s work capabilities, concluding that Plaintiff could not: withstand the pressure of
meeting normal standards of productivity and work accuracy; demonstrate reliability; complete a
normal workday or workweek without interruption from psychologically and/or physically based
symptoms; lift/carry more than five pounds occasionally and any weight frequently; ever climb,
balance, stoop, crouch kneel or crawl; and walk/stand for more than a half hour uninterrupted.
PageID 1254-55. Stutes further found that Plaintiff’s vision was negatively affected by her
migraine headaches and her hearing was negatively affected by her tinnitus.
concluded that Plaintiff was unable to perform even sedentary work, id., and thus disabled.
Nevertheless, on remand, the undersigned would direct that the ALJ assess Plaintiff’s credibility
anew following a meaningful explanation of the weight accorded to opinion evidence.
In weighing Stutes’s opinion, the ALJ found that:
Little weight is given to the assessment of [Stutes], who portrays the
claimant as lacking sufficient mobility to do even sedentary level work.
However, her assessment in this respect is not supported by the record.
Progress notes from Miamisburg Family Practice also show that she
treated the claimant with only conservative measures and that the nature of
the treatment provided was not the type that would be expected if claimant
were precluded from all work activity. Finally, as a physician’s assistant,
Ms. Stutes is not considered an acceptable medical source.
PageID 1636 (citations omitted). The undersigned finds the ALJ’s decision to give Stutes’s
opinion “little weight” is not supported by substantial evidence.
“[T]he Commissioner’s regulations establish a hierarchy of acceptable medical source
opinions[.]” Snell v. Comm’r of Soc. Sec., No. 3:12-cv-119, 2013 WL 372032, at *9 (S.D. Ohio
Jan. 30, 2013).
In descending order, these medical source opinions are: (1) treaters; (2)
examiners; and (3) record reviewers. Woodcock v. Comm’r of Soc. Sec., No. 3:15-CV-147, 2016
WL 4382728, at *1 (S.D. Ohio Aug. 16, 2016). In addition to “medical source opinions,”
opinions from “other sources” can be used to establish the severity of a claimant’s impairment
and establish how impairments affect a claimant’s ability to work. 20 C.F.R. § 404.1513(d).
“Other sources” include medical sources such as nurse practitioners or physician’s assistants that
do not qualify as “acceptable medical sources” under the regulations. Id.
Although “other medical sources” who have treated a claimant are not entitled to
controlling weight like a treating physician or psychologist are, “other sources” may be entitled
to more weight than “acceptable medical sources” under the unique circumstances of a given
case. SSR 06-03p, 2006 WL 2329939, at *5 (Aug. 9, 2006) (emphasis added). In fact, the
opinions of “other sources,” such as nurse practitioners or physician’s assistants, may even be
given more weight than a treating physician if the “other sources” have seen the claimant more
frequently than the “acceptable sources” and have provided better explanations for their
ALJs must weigh the opinions of “other sources” using the factors set forth in 20 C.F.R.
§ 404.1527(c), i.e., “how long the source has known the individual, how frequently the source
has seen the individual, how consistent the opinion of the source is with other evidence, how
well the source explains the opinion, and whether the source has a specialty or area of expertise
related to the individual’s impairment.” Williamson v. Comm’r of Soc. Sec., No. 1:14-cv-731,
2016 WL 255033, at *8 (S.D. Ohio Jan. 20, 2016); see also 20 C.F.R. § 404.1527(c).
should “explain the weight given” such opinions, “or otherwise ensure that the discussion of the
evidence in the determination or decision allows a claimant or subsequent reviewer to follow the
[ALJ’s] reasoning, when such opinions may have an effect on the outcome of the case.”
Williamson, at *8.
Here, the ALJ failed to meaningfully explain his reasons for rejecting Stutes’s opinion.
First, insofar as the ALJ found such opinion “not supported by the record[,]” the Court notes that
such a conclusory statement fails to articulate what portion of the record fails to support such
conclusion -- especially in light of all of the aforementioned objective and clinical findings of
record appearing consistent a disability finding. See PageID 458-59, 462, 469, 472, 480, 493,
527, 530, 544, 549, 567, 571, 840, 844, 872, 875, 890, 898, 1075-76, 1188, 1196, 1207, 1211,
1221, 1226, 1282. “[A]n ALJ’s decision must articulate with specificity reasons for the findings
and conclusions that he or she makes.” Bailey v. Comm’r of Soc. Sec., No. 98-3061, 1999 WL
96920, at *4 (6th Cir. Feb. 2, 1999); SSR 82–62, 1982 WL 31386, at *4 (1982) (the “rationale
for a disability decision must be written so that a clear picture of the case can be obtained”). The
ALJ’s failure in this regard is reversible error.
Second, the fact that Stutes, herself, only provided conservative care does not undermine
her opinion. Initially, the Court notes that, as a physician’s assistant, it is not clear Stutes could
provide anything other than conservative care. Certainly, she could -- and did
that Plaintiff seek treatment with specialists for more invasive, non-conservative care. For
example, Stutes specifically referred Plaintiff to orthopedic surgeon Johnathan Paley, M.D. for
treatment of Plaintiff’s right hip pain. PageID 462. After a January 30, 2012 MRI revealed
objective, abnormal findings (PageID 312, 391-92), Dr. Paley performed surgery on Plaintiff’s
right hip in March 2012. PageID 315-16, 390-91. In October 2012, Plaintiff underwent surgery
on her right foot. PageID 2002-05. Additionally, on October 21, 2013 -- upon Stutes referral
(PageID 3023) -- Plaintiff underwent a left shoulder arthroscopy, distal clavicle resection, and
arthroscopic rotator cuff repair. PageID 3023-24. The undersigned finds the ALJ’s reliance on
the conservative care provided by Stutes herself fails to support the weight accorded her opinion
in light of the non-conservative treatment provided by others. Cf. Pickett v. Astrue, No. 3:10-cv177, 2011 WL 1626559, at *8 (S.D. Ohio Apr. 28, 2011).
Based upon all of the foregoing, the undersigned finds that the ALJ’s analysis of Stutes’s
opinion is unsupported by substantial evidence. This serves as a second basis meriting reversal
of the ALJ’s non-disability finding.
When the ALJ’s non-disability determination is unsupported by substantial evidence, the
Court must determine whether to remand the matter for rehearing or to award benefits.
Generally, benefits may be awarded immediately “if all essential factual issues have been
resolved and the record adequately establishes a plaintiff’s entitlement to benefits.” Faucher v.
Sec’y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994); see also Abbott v. Sullivan,
905 F.2d 918, 927 (6th Cir. 1990). The Court may only award benefits where proof of disability
is strong and opposing evidence is lacking in substance, so that remand would merely involve the
presentation of cumulative evidence, or where proof of disability is overwhelming. Faucher, 17
F.3d at 176; see also Felisky v. Bowen, 35 F.3d 1027, 1041 (6th Cir. 1994).
Here, evidence of disability is not overwhelming, and therefore, a remand for further
proceedings is proper so that the ALJ can properly assess all opinion evidence of record anew in
light of the foregoing findings.
IT IS THEREFORE RECOMMENDED THAT:
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
The Commissioner’s non-disability finding be found unsupported by substantial
evidence, and REVERSED;
This case be CLOSED.
February 2, 2017
s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge
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. This period is not extended by virtue of Fed. R.
Civ. P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system.
If, however, this Report and Recommendation was served upon you by mail, this deadline is
extended to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d). Parties may seek an
extension of the deadline to file objections by filing a motion for extension, which the Court may
grant upon a showing of good cause.
Any objections filed 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 noted above, this period is not extended by virtue of Fed. R. Civ.
P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system. If,
however, this Report and Recommendation was served upon you by mail, this deadline is
extended to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d).
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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