Hall v. Commissioner of Social Security

Filing 12

DECISION AND ENTRY: (1) REVERSING THE ALJS NON-DISABILITY FINDING AS UNSUPPORTED BY SUBSTANTIAL EVIDENCE; (2) REMANDING THIS CASE TO THE COMMISSIONER UNDER THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR PROCEEDINGS CONSISTENT WITH THIS OPINION; AND (3) TERMINATING THIS CASE ON THE COURTS DOCKET. Signed by Magistrate Judge Michael J. Newman on 8/18/2017. (srb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
CHARLES HALL,
Plaintiff,

Case No. 3:16-cv-00171

vs.
COMMISSIONER OF
SOCIAL SECURITY,

Magistrate Judge Michael J. Newman
(Consent Case)

Defendant.
DECISION AND ENTRY: (1) REVERSING THE ALJ’S NON-DISABILITY
FINDING AS UNSUPPORTED BY SUBSTANTIAL EVIDENCE; (2) REMANDING
THIS CASE TO THE COMMISSIONER UNDER THE FOURTH SENTENCE OF 42
U.S.C. § 405(g) FOR PROCEEDINGS CONSISTENT WITH THIS OPINION;
AND (3) TERMINATING THIS CASE ON THE COURT’S DOCKET

This Social Security disability benefits appeal is before the undersigned for disposition based
upon the parties’ full consent. Doc. 8. At issue is whether the Administrative Law Judge (“ALJ”)

erred in finding Plaintiff not “disabled” and therefore unentitled to Supplemental Security
Income (“SSI”) and/or Disability Insurance Benefits (“DIB”).1 This case is before the Court
upon Plaintiff’s Statement of Errors (doc. 9), the Commissioner’s memorandum in opposition
(doc. 10), Plaintiff’s reply (doc. 11), the administrative record (doc. 7), and the record as a
whole.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.
2
Hereafter, citations to the electronically-filed administrative record will refer only to the PageID
number.
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I.
A.

Procedural History

Plaintiff filed applications for SSI and DIB asserting disability as of April 1, 2011 as a
result of a number of impairments including, inter alia, degenerative disc disease of the lumbar
spine, chronic obstructive pulmonary disease, gout, depression, and a history of alcohol abuse.
PageID 594.
After initial denials of his applications, Plaintiff received a hearing before ALJ Gregory
Kenyon on January 29, 2015. PageID 609-37. The ALJ issued a written decision on March 26,
2015 finding Plaintiff disabled as of August 22, 2014, but not disabled prior to that date. PageID
593-603. Specifically, the ALJ found at Step Five that, based upon Plaintiff’s residual functional
capacity (“RFC”) to perform a reduced range of light work,3 “there are jobs in that exist in
significant numbers in the national economy that [Plaintiff] can perform[.]” PageID 596.
Thereafter, the Appeals Council denied review on March 17, 2016, making the ALJ’s
non-disability finding (for the closed period of April 1, 2011 through August 21, 2014) the final
administrative decision of the Commissioner. PageID 569. 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”).

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 also 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).
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B.

Evidence of Record

In his decision, the ALJ set forth a detailed recitation of the underlying medical evidence
in this case. PageID 593-602. Plaintiff, in his Statement of Errors, also summarizes the evidence
of record. Doc. 9 at PageID 1093-1100. The Commissioner, in response to Plaintiff’s Statement
of Errors, defers to the ALJ’s recitation of the evidence and presents no objection to Plaintiff’s
summary.

Doc. 10 at PageID 1108.

Except as otherwise noted herein, the undersigned

incorporates the summary of evidence as set forth by the ALJ and Plaintiff.
II.
A.

Standard of Review

The Court’s inquiry on a Social Security appeal is to determine whether (1) the ALJ’s
non-disability finding is supported by substantial evidence, and (2) the ALJ employed the correct
legal criteria. 42 U.S.C. § 405(g); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 745-46 (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).
The court must perform the first judicial inquiry with the understanding that “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 --

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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.

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
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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 his Statement of Errors, Plaintiff argues that the ALJ failed to: (1) appropriately weigh
the opinion of his treating physician Edward Clack, D.O.; and (2) not finding him credible. Doc.
9 at PageID 1092. Finding Plaintiff’s first alleged error to be well taken, the undersigned does
not address the merits of Plaintiff’s three remaining claims.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).
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
Nevertheless, on remand, the undersigned directs that the ALJ assess Plaintiff’s credibility anew
following a meaningful explanation of the weight accorded to the medical source opinions.
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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. “The 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)).
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.

“The

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 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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Unless the opinion of the treating source is entitled to controlling weight, 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, the ALJ failed to conduct a specific controlling weight analysis in weighing
Dr. Clack’s opinion, i.e., whether the treater’s opinion is “well supported by medically
acceptable clinical and laboratory diagnostic techniques and not inconsistent with other
substantial evidence in the case record.” See 20 C.F.R. § 404.1527(c). This lack of explanation
regarding the “controlling weight [analysis] hinders a meaningful review of whether the ALJ
properly applied the treating-physician rule that is at the heart of this regulation.” Gayheart v.
Comm'r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013).
Instead, in weighing the treater’s opinion, the ALJ focuses solely on the factors set forth
in 20 C.F.R. §§ 404.1527(c)(2)(i), (c)(2)(ii), and (c)(3) through (c)(6).

The lack of an

explanation of the controlling weight analysis is reversible error. Smith v. Commissioner of Soc.
Sec., No. 3:16-CV-264, 2017 WL 3124157, at *4 (S.D. Ohio July 24, 2017); Ryan v. Comm’r of
Soc. Sec., No. 3:16-CV-124, 2017 WL 3124156, at *5 (S.D. Ohio July 24, 2017); 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); Blankenship v. Comm’r of Soc. Sec., No. 3:14-CV-00235, 2015 WL 6907534, at *5 (S.D.
Ohio July 7, 2015).

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IV.
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.
V.
For the foregoing reasons, IT IS ORDERED THAT:
1.

2.

This matter is 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 is found unsupported by substantial
evidence, and REVERSED;

This case is CLOSED.

8/18/2017

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

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