Ulery v. Commissioner of Social Security

Filing 12

REPORT AND RECOMMENDATION1 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 CO NSISTENT WITH THIS OPINION; AND (3) THIS CASE BE CLOSED - IT IS THEREFORE RECOMMENDED THAT: 1. The Commissioners 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. Objections to R&R due by 6/19/2017. Signed by Magistrate Judge Michael J. Newman on 6/5/2017. (srb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
TAMARA J. ULERY,
Plaintiff,

Case No. 3:16-cv-134

vs.
COMMISSIONER OF
SOCIAL SECURITY,

District Judge Walter H. Rice
Magistrate Judge Michael J. Newman

Defendant.

REPORT AND RECOMMENDATION1 THAT: (1) THE ALJ’S NON-DISABILITY
FINDING BE FOUND UNSUPPORTED BY SUBSTANTIAL EVIDENCE, AND
REVERSED; (2) THIS MATTER BE REMANDED TO THE COMMISSIONER UNDER
THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR PROCEEDINGS CONSISTENT
WITH THIS OPINION; AND (3) THIS CASE BE CLOSED

This is a Social Security disability benefits appeal.

At issue is whether the

Administrative Law Judge (“ALJ”) erred in finding Plaintiff not “disabled” and therefore
unentitled to Disability Insurance Benefits (“DIB”) and/or Supplemental Security Income
(“SSI”).2

This case is before the Court upon Plaintiff’s Statement of Errors (doc. 8), the

Commissioner’s memorandum in opposition (doc. 10), Plaintiff’s reply memorandum (doc. 11),
the administrative record (doc. 5),3 and the record as a whole.

1

Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendation.
2
“The Commissioner’s regulations governing the evaluation of disability for DIB and SSI are
identical . . . and are found at 20 C.F.R. § 404.1520, and 20 C.F.R. § 416.920 respectively.” Colvin v.
Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). Citations in this Report and Recommendation to DIB
regulations are made with full knowledge of the corresponding SSI regulations, and vice versa.
3
Hereafter, citations to the electronically-filed administrative record will refer only to the PageID
number.

I.
A.

Procedural History

Plaintiff filed for DIB and SSI alleging a disability onset date of August 8, 2012. PageID
232-44. Plaintiff claims disability as a result of a number of alleged impairments including, inter
alia, degenerative joint disease of the knees, carpal tunnel syndrome, fibromyalgia, obesity, sleep
apnea, anxiety and depression. PageID 69. After initial denial of her applications, Plaintiff
received a hearing before ALJ Gregory Kenyon on September 22, 2014. PageID 91-111. The
ALJ issued a written decision on November 17, 2014 finding Plaintiff not disabled. PageID 6785. Thereafter, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s
non-disability finding the final administrative decision of the Commissioner. PageID 46-48. See
Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993). Plaintiff then
filed this timely appeal. Cook v. Comm’r of Soc. Sec., 480 F.3d 432, 435 (6th Cir. 2007).
B.

Evidence of Record

The evidence of record is adequately summarized in the ALJ’s decision (PageID 67-85),
Plaintiff’s Statement of Errors (doc. 8), the Commissioner’s memorandum in opposition (doc.
10), and Plaintiff’s reply (doc. 11). The undersigned incorporates all of the foregoing and sets
forth the facts relevant to this appeal herein.
II.
A.

Standard of Review

The Court’s inquiry on a Social Security appeal is to determine (1) whether the ALJ’s
non-disability finding is supported by substantial evidence, and (2) whether the ALJ employed
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).
2

Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). When
substantial evidence supports the ALJ’s denial of benefits, that finding must be affirmed, even if
substantial evidence also exists in the record upon which the ALJ could have found Plaintiff
disabled. Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Thus, the ALJ has a “‘zone of
choice’ within which he [or she] can act without the fear of court interference.” Id. at 773.
The second judicial inquiry -- reviewing the correctness of the ALJ’s legal analysis -may result in reversal even if the ALJ’s decision is supported by substantial evidence in the
record. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009). “[A] decision of the
Commissioner will not be upheld where the [Social Security Administration] fails to follow its
own regulations and where that error prejudices a claimant on the merits or deprives the claimant
of a substantial right.” Bowen, 478 F.3d at 746.
B.

“Disability” Defined

To be eligible for disability benefits, a claimant must be under a “disability” as defined
by the Social Security Act. 42 U.S.C. § 423(d)(1)(A). Narrowed to its statutory meaning, a
“disability” includes physical and/or mental impairments that are both “medically determinable”
and severe enough to prevent a claimant from (1) performing his or her past job and (2) engaging
in “substantial gainful activity” that is available in the regional or national economies. Id.
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:
1.

Has the claimant engaged in substantial gainful activity?

2.

Does the claimant suffer from one or more severe impairments?
3

3.

Do the claimant’s severe impairments, alone or in combination, meet or
equal the criteria of an impairment set forth in the Commissioner’s Listing
of Impairments (the “Listings”), 20 C.F.R. Subpart P, Appendix 1?

4.

Considering the claimant’s RFC, can he or she perform his or her past
relevant work?

5.

Assuming the claimant can no longer perform his or her past relevant
work -- and also considering the claimant’s age, education, past work
experience, and RFC -- do significant numbers of other jobs exist in the
national economy which the claimant can perform?

20 C.F.R. § 404.1520(a)(4); see also Miller v. Comm’r of Soc. Sec., 181 F. Supp.2d 816, 818
(S.D. Ohio 2001). A claimant bears the ultimate burden of establishing disability under the
Social Security Act’s definition. Key v. Comm’r of Soc. Sec., 109 F.3d 270, 274 (6th Cir. 1997).
III.
In her Statement of Errors, Plaintiff argues that the ALJ erred by: (1) failing to include, in
his RFC, her limited ability to maintain concentration, persistence, or pace; (2) improperly
weighing opinion evidence -- namely, opinions from her treating primary the care physician
Malak Adib, M.D., treating rheumatologist, Mujeeb Ranginwala, M.D., and record-reviewers
Anton Freifofner, M.D. and Diane Manos, M.D.; and (3) inadequately assessing her credibility.
Doc. 8 at PageID 1011-20. The undersigned finds error in the second of these contentions and,
therefore, does not reach the merits of Plaintiff’s third alleged error.4
The Court finds no merit to Plaintiff’s first assignment of error. See doc. 8 at PageID 1011-12.
The ALJ found Plaintiff was moderately limited in her ability to maintain concentration, persistence and
pace at Step Two, and subsequently, in determining Plaintiff’s RFC and posing a hypothetical question to
the vocational expert (“VE”), limited Plaintiff to “performing unskilled, simple, repetitive tasks.” PageID
77. Plaintiff points to cases where Courts have determined that a limitation to unskilled, simple and
repetitive tasks is not sufficient to account for a claimant’s moderate limitations in concentration,
persistence and pace. See, e.g., Edwards v. Barnhart, 383 F. Supp.2d 920, 930-31 (E.D. Mich. 2005).
However, in this case, the ALJ found Plaintiff moderately limited in this regard based upon the opinion of
examining physician George O. Schultz, Ph.D. who, when offering an opinion in this regard, specifically
noted that Plaintiff “is mentally capable of completing routine or repetitive [activities of daily living] . . .
on a job setting.” PageID 599. Further, Dr. Schultz noted that Plaintiff would have no “objective
changes” in her effectiveness that would prompt “concerns by employers[.]” Id. Finding that the ALJ’s
limitations track the opinion of Dr. Schultz’s opinion -- an opinion Plaintiff does not challenge on appeal
-- the undersigned concludes that the ALJ committed no error in this regard. See Smith-Johnson v.
Comm’r of Soc. Sec., 579 F. App’x 426, 436-37 (6th Cir. 2014)?
4
4

Until March 27, 2017, “the Commissioner’s regulations [that apply to this appeal]
establish[ed] 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. Id. Under the
regulations in effect prior to March 27, 2017, the opinions of treaters are entitled to the greatest
deference because they “are likely to be . . . most able to provide a detailed, longitudinal picture
of [a claimant’s] medical impairment(s) and may bring a unique perspective to the medical
evidence that cannot be obtained from the objective medical findings alone or from reports of
individual examinations[.]” 20 C.F.R. § 404.1527(c)(2).
A treater’s opinion must be given “controlling weight” if “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and . . . not inconsistent with the other
substantial evidence in [the] case record.” LaRiccia v. Comm’r of Soc. Sec., 549 F. App’x 377,
384 (6th Cir. 2013). Even if a treater’s opinion is not entitled to controlling weight, “the ALJ
must still determine how much weight is appropriate by considering a number of factors,
including the length of the treatment relationship and the frequency of examination, the nature
and extent of the treatment relationship, supportability of the opinion, consistency of the opinion
with the record as a whole, and any specialization of the treating physician.” Blakley v. Comm’r
of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see also 20 C.F.R. § 404.1527(c).5
After treaters, “[n]ext in the hierarchy are examining physicians and psychologists, who
often see and examine claimants only once.” Snell, 2013 WL 372032, at *9. Record reviewers
are afforded the least deference and these “non-examining physicians’ opinions are on the lowest

In essence, “opinions of a treating source . . . must be analyzed under a two-step process, with
care being taken not to conflate the steps.” Cadle v. Comm’r of Soc. Sec., No. 5:12-cv-3071, 2013 WL
5173127, at *5 (N.D. Ohio Sept. 12, 2013). Initially, “the opinion must be examined to determine if it is
entitled to controlling weight” and “[o]nly if . . . the ALJ does not give controlling weight to the treating
physician’s opinion is the opinion subjected to another analysis based on the particulars of”
20 C.F.R. § 404.1527. Id.
5
5

rung of the hierarchy of medical source opinions.” Id. Put simply, “[t]he regulations provide
progressively more rigorous tests for weighing opinions as the ties between the source of the
opinion and the individual [claimant] become weaker.” Id. (citing SSR 96-6p, 1996 WL 374180,
at *2 (July 2, 1996)). In the absence of a controlling treating source opinion, an ALJ must
“evaluate all medical opinions” with regard to the factors set forth in 20 C.F.R. § 404.1527(c),
i.e., length of treatment history; consistency of the opinion with other evidence; supportability;
and specialty or expertise in the medical field related to the individual’s impairment(s). Walton
v. Comm’r of Soc. Sec., No. 97-2030, 1999 WL 506979, at *2 (6th Cir. June 7, 1999).
In this case, Dr. Adib opined on May 28, 2013 that Plaintiff could: lift 10 pounds
occasionally and 2.5 pounds frequently; stand and walk for a total of 2 hours per workday; sit for
a total of 3-4 hours per workday, but for only 15 minutes at a time before moving positions; and
never climb, balance, stop, crouch, kneel, or crawl. PageID 596-98. Dr. Adib also concluded
that Plaintiff would be limited in her ability to handle, push and pull; and would further be
unable to perform even sedentary work because of short-term memory loss. PageID 598-600.
On August 14, 2014, Dr. Ranginwala offered an opinion that Plaintiff was unable to work any
hours per workday; was unable to stand or sit for any significant period of time per workday; and
was unable to lift any significant weight even occasionally during the workday. PageID 994-95.
The ALJ gave “little weight” to the opinions of both Dr. Adib and Dr. Ranginwala.
PageID 82-83. With regard to Dr. Adib, the ALJ stated:
Dr. Adib’s treatment records document the claimant’s subjective reports of
tenderness in her chest, back, and left knee. Further, Dr. Adib has
reportedly observed the claimant to exhibit diminished range of motion in
her left knee (which has not been observed by Dr. Raginwala in his
examinations). Otherwise, however, there is little objective evidence in
Dr. Adib’s treatment records to support his opinion the claimant is limited
to sedentary level work for a total of just five to six hours per day.
Further, Dr. Adib’s opinion the claimant is precluded from sedentary work
because of short term memory loss is wholly unsupported by any objective
medical evidence, either in his own treatment records or those of any other
6

acceptable medical source, and is contradicted by Dr. Schultz’[s]
psychological examination findings and report that the claimant’s memory
was intact/retained.
PageID 82-83 (internal citations omitted). With regard to Dr. Ranginwala’s opinion, the ALJ
found that:
Dr. Ranginwala’s physical examinations of the claimant have all been
largely negative, and despite his claim that the claimant’s treatment plan
includes “PT” (physical therapy), he has only prescribed the claimant mild
pain medications. Further, Dr. Raginwala includes “stiffness,” “'tension
headaches,” “chronic fatigue” and “memory loss” among his findings.
However, his treatment records reflect the claimant has denied
experiencing stiffness or headaches, and there is no mention in Dr.
Raginwala’s treatment records that the claimant either complained of, or
Dr. Raginwala observed, any evidence of memory loss. He also appears
to have simply accepted the claimant’s subjective allegations and
complaints and based his suggested limitations on these allegations with
no inquiry into whether they are objectively supported.
PageID 83.
After rejecting these treaters’ opinions, the ALJ gave “moderate level weight” to the
opinions of record reviewers Friehofner and Manos, both of whom concluded that Plaintiff was
able to lift 20 pounds occasionally and 10 pounds frequently; stand for 2 hours per workday; sit 6
hours per workday; and never climb ladders, ropes or scaffolds. PageID 82, 126-27; 141-42,
155-56. In weighing these opinions, the ALJ cited to no specific record evidence supporting the
favorable weight provided and, instead, referred only to Dr. Raginwala’s records to support the
conclusion that Plaintiff was, in fact, more limited than either Drs. Friehofner and Manos opined.
PageID 82 (stating that “recent medical evidence from Dr. Raginwala, as well as [Plaintiff’s]
testimony, support further limiting her to only occasional overhead reaching”). The lack of
explanation in this regard is error.
With regard to the treaters, the undersigned notes that, in weighing the opinions of Drs.
Adib and Raginwala, the ALJ neither specifically mentioned the concept of controlling weight
nor specifically declined to afford these opinions controlling weight. PageID 88; see also Wilson
7

v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (stating that the regulations are
designed to “ensure[ ] that the ALJ applies the treating physician rule and permits meaningful
review of the ALJ's application of the rule”). Such failure is error where the Court cannot
determine whether the ALJ undertook the “two-step inquiry” required when weighing treating
source opinions. See Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376-78 (6th Cir. 2013);
Chrismon v. Colvin, 531 F. App’x 893, 900 (10th Cir. 2013).
Further, in weighing Dr. Ranginwala’s opinion, the ALJ concluded that “his physical
examinations of [Plaintiff] have all been largely negative[.]” PageID 83. Such statement is not
entirely true. In this regard, the ALJ failed to note that Dr. Ranginwala’s treatment records -and, similarly, Dr. Adib’s records -- all note multiple positive tender points (although the records
fail to note whether the tender points were found bilaterally at each location). PageID 973, 977,
980; see also PageID 541, 545, 550, 554, 910-11, 915, 986, 989, 991. In fact, Dr. Ranginwala
noted that Plaintiff has “[p]ain on palpation in at least 11 of 18 [t]ender [p]oints[.]” PageID 99495. Considering the primary “chief complaint” for which Plaintiff saw Dr. Ranginwala -- a
rheumatologist -- was for fibromyalgia, the recording of positive tender points is significant. See
Minor v. Comm’r of Soc. Sec., 513 F. App’x 417, 434 (6th Cir. 2013) (stating that “[t]he process
of diagnosing [fibromyalgia] involves testing focal points for tenderness and ruling out other
conditions through objective medical and clinical methods”) (citing Rogers v. Comm’r of Soc.
Sec., 486 F.3d 234, 244 (6th Cir. 2007)). Accordingly, in the absence of some explanation by the
ALJ as to why such findings fail to support Dr. Ranginwala’s opinion, the undersigned finds that
the ALJ’s rejection of such opinion is unsupported by substantial evidence.
The same is true for the ALJ’s assessment of Dr. Adib’s opinion. In rejecting that
opinion, the ALJ acknowledged Dr. Adib’s findings concerning “tenderness in [Plaintiff’s] chest,
back, and left knee[,]” as well as a “diminished range of motion in her left knee[.]” PageID 82.
8

Despite acknowledging these findings, the ALJ concluded that “there is little objective evidence
in Dr. Adib’s treatment records to support his opinion.” PageID 82. The ALJ, however, failed to
explain why these particular findings -- especially the consistent finding of multiple tender points
upon examination -- were insufficient to support his opinion, especially given that such opinion
was consistent with, and supported by, the opinion of specialist Dr. Ranginwala. Id. In light of
the lack of explanation in this regard, the undersigned finds the ALJ’s conclusion is unsupported
by substantial evidence.
IV.
When, as here, the ALJ’s non-disability determination is unsupported by substantial
evidence, the Court must determine whether to reverse and remand the matter for rehearing, or to
reverse and order an award of benefits. The Court has authority to affirm, modify or reverse the
Commissioner’s decision “with or without remanding the cause for rehearing.” 42 U.S.C.
§ 405(g); Melkonyan v. Sullivan, 501 U.S. 89, 100 (1991). Generally, benefits may be awarded
immediately “only if all essential factual issues have been resolved and the record adequately
establishes a plaintiff’s entitlement to benefits.” Faucher v. Sec’y of Health & Human Servs., 17
F.3d 171, 176 (6th Cir. 1994); see also Abbott v. Sullivan, 905 F.2d 918, 927 (6th Cir. 1990);
Varley v. Sec’y of Health & Human Servs., 820 F.2d 777, 782 (6th Cir. 1987).
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
9

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, the

undersigned finds that evidence of disability is not overwhelming and that a remand for further
proceedings is proper.
V.
IT IS THEREFORE RECOMMENDED THAT:
1.

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.

Date:

The Commissioner’s non-disability finding be found unsupported by substantial
evidence, and REVERSED;

This case be CLOSED.

June 5, 2017

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

10

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).