Meyer v. Commissioner of Social Security

Filing 13

REPORT AND RECOMMENDATION THAT: (1) THE ALJS NON-DISABILITY FINDING BE FOUND UNSUPPORTED BY SUBSTANTIAL EVIDENCE, AND REVERSED; (2) THIS MATTER BE REMANDED TO THE COMMISSIONER UNDER THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR PROCEEDINGS 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 7/25/2017. Signed by Magistrate Judge Michael J. Newman on 7/11/2017. (srb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
REBECCA MEYER,
Plaintiff,

Case No.: 3:16-cv-152

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. 11), Plaintiff’s reply memorandum (doc. 12),
the administrative record (doc. 5, 6),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 Decision and Entry 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 May 1, 2009. PageID
211-23. Plaintiff claims disability as a result of a number of impairments including, inter alia,
degenerative disc disease, fibromyalgia, obesity, posttraumatic stress disorder (“PTSD”), and
depression. PageID 852.
After initial denial of her applications, Plaintiff received a hearing before ALJ Theodore
W. Grippo on May 18, 2012. PageID 70-101.4 ALJ Grippo issued a written decision thereafter
finding Plaintiff not disabled. PageID 46-59. Specifically, ALJ Grippo found that, based upon
Plaintiff’s residual functional capacity (“RFC”) to perform a limited range of light work,5 “there
are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform[.]”
PageID 55.
Thereafter, the Appeals Council denied Plaintiff’s request for review (PageID 31-39) and
Plaintiff appealed. Meyer v. Comm’r of Soc. Sec., No. 3:13-CV-357, 2015 WL 4550435, at *1-6
(S.D. Ohio Mar. 12, 2015).

On appeal, the undersigned found ALJ Grippo’s decision

unsupported by substantial evidence, reversed the non-disability finding, and remanded the case
for further proceedings -- namely, to “reexamine all medical source opinions anew, meaningfully
explain the weight accorded all opinion evidence of record . . . and determine anew Plaintiff's
RFC.” Id. at *6.
4

The ALJ previously set the case for administrative hearing on February 13, 2012, but that
hearing was continued because Plaintiff was in the hospital. See PageID 66-69.
5
The Social Security Administration (“SSA”) classifies jobs as sedentary, light, medium, heavy,
and very heavy depending on the physical exertion requirements. 20 C.F.R. § 404.1567. Light work
“involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up
to 10 pounds” and “requires a good deal of walking or standing, or . . . sitting most of the time with some
pushing and pulling of arm or leg controls.” Id. § 404.1567(b). An individual who can perform light
work is presumed to also be able to perform sedentary work. Id. 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).
2

On remand, Plaintiff received a hearing before ALJ Robert Semander on November 5,
2015. PageID 872-909. ALJ Semander issued a written decision thereafter finding Plaintiff not
disabled. PageID 46-59. Specifically, ALJ Semander found that, based upon Plaintiff’s RFC to
perform a limited range of light work, she is “capable of performing past relevant work as a
packager.” PageID 862. Plaintiff did not seek Appeals Council review of ALJ Semander’s
decision. See 20 C.F.R. § 404.984(d) (in a case remanded by a Federal Court, “[i]f no exceptions
are filed and the Appeals Council does not assume jurisdiction of [the] case, the decision of the
[ALJ] becomes the final decision of the Commissioner after remand”). Plaintiff instead elected
to file a complaint in this case. Doc. 2. ALJ Semander’s non-disability finding is now before the
Court for review.
B.

Evidence of Record

The evidence of record is adequately summarized in the ALJ’s decision (PageID 853-63),
Plaintiff’s Statement of Errors (doc. 8), the Commissioner’s memorandum in opposition (doc.
11), and Plaintiff’s reply (doc. 12). 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).
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
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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, 475 F.3d at 730, the complete sequential review poses five questions:
1.

Has the claimant engaged in substantial gainful activity?

2.

Does the claimant suffer from one or more severe impairments?

3.

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

4.

Considering the claimant’s RFC, can he or she perform his or her past
relevant work?
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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. 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 properly
weigh the opinion of treating primary care physician, Rick Gebhart, D.O., (2) incorrectly finding
that Dr. Gebhart previously released Plaintiff to return to work; (3) improperly analyzing the
opinions of certain non-treating medical sources; and (4) making findings regarding Plaintiff’s
work history that are unsupported by the record. Doc. 8 at PageID 1503. The Court finds
reversible error in the ALJ’s analysis of Dr. Gebhart’s opinion and, therefore, the Court need not
reach the merits of Plaintiff’s other assignments of error.
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
5

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).6
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
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).
Here, on February 2, 2011, Dr. Gebhart provided two separately signed written reports
regarding Plaintiff’s limitations. PageID 763-67. With regard to mental limitations, Dr. Gebhart
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.
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opined that, as a result of anxiety and depression, Plaintiff would, among other limitations: likely
miss three days of work per week; not respond appropriately to supervisors, co-workers, and
customary work pressures; be unable to sustain attention and concentration to normal work
standards; not remember and carry out simple work instructions; not behave in an emotionally
stable manner; and not relate predictably in social situations. PageID 763-66. With regard to
physical limitations arising from Plaintiff’s fibromyalgia, Dr. Gebhart found that Plaintiff could
work only 2 hours per day; stand only 15 minutes at a time for a total of 1 hour per workday; sit
for 30 minutes at a time for a total of 1 hour per workday; lift no significant weight; never bend
or stoop; and never raise her arms above the shoulder. PageID 767. The ALJ gave little weight
to Dr. Gebhart’s opinion. PageID 861.
The undersigned finds error in ALJ Semander’s assessment of Dr. Gebhart’s opinions.
Initially, the Court notes that the ALJ failed to mention the concept of “controlling weight” when
analyzing Dr. Gebhart’s conclusions, and further failed to specifically decline to give his
opinions controlling weight. Id.; see also Wilson 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”). In fact, the
ALJ misstated the requirements of the controlling weight test and cited the wrong subsection of
20 C.F.R. § 404.1527 in attempting to identify the factors at issue in the controlling weight
analysis.7 See PageID 861. Because of the ALJ’s failure in this regard, the Court cannot
determine whether he undertook the “two-step inquiry” required when analyzing treating source
opinions. See Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376-78 (6th Cir. 2013). Such

7

As set forth above, the controlling weight test is set forth in 20 C.F.R. § 404.1527(c)(2). The
ALJ incorrectly cited 20 C.F.R. § 404.1527(c)(2)(i) and (c)(2)(ii) as setting forth the applicable
controlling weight factors. PageID 861. The specific language of 20 C.F.R. § 404.1527(c)(2) states that
an ALJ is to “apply the factors listed in paragraphs (c)(2)(i) and (c)(2)(ii)” only “[w]hen [the ALJ does]
not give the treating source's medical opinion controlling weight[.]”
7

failure amounts to error. See Aytch v. Comm’r of Soc. Sec., No. 3:13-cv-135, 2014 WL 4080075,
at *5 (S.D. Ohio Aug. 19, 2014) (citation omitted).
Further, in minimizing Dr. Gebhart’s opinions concerning Plaintiff’s mental limitations,
ALJ Semander set forth no specific reason justifying the rejection of controlling weight. Instead,
the ALJ first noted that “Dr. Gebhart’s notes do not support his functional limitation conclusions
which indicate that her panic attacks were not chronic[.]” PageID 861. Such reason is relevant
to the “supportability” inquiry under 20 C.F.R. § 404.1527(c)(2)(3), which again is a factor
applied only after the ALJ does “not give the treating source’s medical opinion controlling
weight.” 20 C.F.R. § 404.1527(c)(2); see also Gayheart, 710 F.3d at 376 (stating that “internal
inconsistencies between the doctor’s opinions and portions of her reports” is a factor “properly
applied only after the ALJ has determined that a treating-source opinion will not be given
controlling weight”). In addition, the Court’s review of the notes cited by the ALJ make no
mention of whether or not Plaintiff suffers from chronic panic attacks. PageID 1363, 1442,
1455. However, even if the notes cited did state that Plaintiff’s panic attacks were not chronic, it
is not clear -- absent some meaningful explanation by the ALJ -- how such information
undermines Dr. Gebhart’s opinion, an opinion setting forth specific limitations based most
significantly upon Plaintiff’s depression. See PageID 761-66.
The only other reason given by the ALJ in minimizing Dr. Gebhart’s opinion concerning
Plaintiff’s mental limitations was the fact that “he is not a psychiatrist yet [he] diagnosed mental
disorders and prescribed psychotropic mediations.” PagID 861. Initially, the Court again notes
that such critique is not relevant at the controlling weight stage of the treating physician analysis
and, instead, is a factor “properly applied only after the ALJ has determined that a treatingsource opinion will not be given controlling weight.” Gayheart, 710 F.3d at 376; see also 20
C.F.R. §§ 404.1527(c)(2) and (5). In addition, contrary to the ALJ’s conclusions, Dr. Gebhart’s
8

lack of specialty in psychiatry does not equate to a lack of qualification to offer mental health
opinions -- especially since “it is well established that primary care physicians (those in family or
general practice) ‘identify and treat the majority of Americans’ psychiatric disorders.’” Sprague
v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). A family physician such as Dr. Gebhart is
authorized to opine regarding Plaintiff’s mental status. Wert v. Comm’r of Soc. Sec., 166 F.
Supp. 3d 935, 946 (S.D. Ohio 2016); Byrd v. Comm’r of Soc. Sec., No. 3:14-CV-242, 2015 WL
4540575, at *5 (S.D. Ohio May 29, 2015); King v. Comm’r of Soc. Sec., No. 3:14-CV-351, 2016
WL 1729550, at *6 (S.D. Ohio Mar. 28, 2016).
Based upon the foregoing, the undersigned concludes that the ALJ erred by failing to
properly conduct a controlling analysis with regard to Dr. Gebhart’s mental health opinions. See
Wilson, 378 F.3d at 544 (stating that, “[a]lthough substantial evidence otherwise supports [a]
decision of the Commissioner[,]” reversal may, nevertheless, be warranted if an ALJ fails “to
follow its own procedural regulation, and the regulation was intended to protect applicants”).
Finding error in this regard, the Court makes no finding as to whether the reasons provided by
the ALJ in minimizing Dr. Gebhart’s opinion regarding physical limitations are “good reasons”
supported by substantial evidence. Instead, the ALJ should be directed to reassess Dr. Gebhart’s
entire opinion anew on remand.
IV.
When, as here, the ALJ’s non-disability determination is unsupported by substantial
evidence, the Court must determine whether to reverse and remand the matter for rehearing, or to
reverse and order 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
9

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). Here, the
undersigned finds that evidence of disability is not overwhelming, despite two administrative
hearings being held below. Remand for further proceedings is thus 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.

July 11, 2017

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

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