Cash v. Commissioner of Social Security

Filing 12

REPORT AND RECOMMENDATIONS (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 Complaint. Objections to R&R due by 8/28/2017. Signed by Magistrate Judge Michael J. Newman on 8/14/17. (kma)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
ANN CASH,
Plaintiff,

Case No. 3:16-cv-00175

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 Supplemental Security Income (“SSI”) and/or Disability Insurance Benefits
(“DIB”).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 (doc. 11), the
administrative record (docs. 5 and 6), and the record as a whole.3

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. § 404.1520[,] 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 applications for SSI and DIB asserting disability as of September 30, 2002.
PageID 218-30. Plaintiff claims disability as a result of a number of impairments including,
inter alia, degenerative disc disease and internal arrangement in her right knee, a history of
endometriosis, major depressive disorder, and posttraumatic stress disorder. PageID 968.
After initial denials of her applications, Plaintiff received a hearing before ALJ David
Redmond on May 22, 2012. PageID 42-51. The ALJ issued a written decision on June 29, 2012
finding Plaintiff not disabled. PageID 38-60. The Appeals Council denied review on January
10, 2013. PageID 31-33. On appeal to this Court, the case was remanded under Sentence Four
for further proceedings. PageID 1059-66.
On remand, Plaintiff received a second hearing before ALJ Eric Anschuetz who held a
hearing on August 13, 2015. PageID 987-1031. ALJ Anschuetz issued a written decision on
February 3, 2016 finding Plaintiff not disabled. PageID 965-77. Specifically, ALJ Anschuetz
found at Step Five that, as a result of Plaintiff’s residual functional capacity (“RFC”) to perform
a reduced range of sedentary work,4 “there are jobs that exist in significant numbers in the
national economy that [Plaitniff] can perform[.]” PageID 965-76.
Plaintiff did not seek Appeals Council review of ALJ Anschuetz’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 now timely appeals ALJ

Anschuetz’s decision. See id; see also 20 C.F.R. § 404.984(c).
The Social Security Administration (“SSA”) classifies jobs as sedentary, light, medium, heavy,
and very heavy depending on the physical exertion requirements. 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. § 404.1587(a).
2
4

B.

Evidence of Record

The evidence of record is adequately summarized in ALJ Anschuetz’s (hereinafter
referred to as “the ALJ”) decision (PageID 967-75), Plaintiff’s Statement of Errors (doc. 8), the
Commissioner’s memorandum in opposition (doc. 10), and Plaintiff’s reply memorandum (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).
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.
3

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
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’s RFC assessment is not
supported by substantial evidence because the ALJ failed to properly assess her credibility as it

4

relates to her allegations of disabling pain stemming from her: (1) right knee degeneration; and
(2) endometriosis. Doc. 8 at PageID 2001, 2004.
The ALJ, and not this Court, “evaluate[s] the credibility of witnesses, including that of
the claimant.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007). A reviewing
Court must “accord the ALJ’s determinations of credibility great weight and deference
particularly since the ALJ has the opportunity, which we do not, of observing a witness’s
demeanor while testifying.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003)
(citations omitted).
Nevertheless, in setting forth a credibility finding, the ALJ’s determination “cannot be
based on an intangible or intuitive notion about an individual’s credibility[,]” and instead, “[t]he
reasons for the credibility finding must be grounded in the evidence and articulated in the
determination or decision.” See SSR 96-7p, 1996 WL 374186, at *7 (July 2, 1996). In fact, the
ALJ must set forth “specific reasons for the finding on credibility, supported by the evidence in
the case record, and must be sufficiently specific to make clear to the individual and to any
subsequent reviewers the weight the adjudicator gave to the individual’s statements and the
reasons for that weight.” Id.
Pursuant to SSR 96-7p,5 upon determining that “an underlying physical or mental
impairment” exists “that could reasonably be expected to produce the individual’s pain or other
symptoms[,]” the ALJ must “evaluate the intensity, persistence, and limiting effects of the
individual’s symptoms to determine the extent to which the symptoms limit the individual’s
ability to do basic work activities.”

See SSR 96-7p, 1996 WL 374186, at *7.

Where a

claimant’s subjective complaints concerning “the intensity, persistence, or functionally limiting
Following issuance of the ALJ’s decision in this case, SSR 96-7p was superseded by SSR 163p, 2016 WL 1119029, at *8 (Mar. 16, 2016). Courts have not applied SSR 16-3p retroactively. See
Withrow v. Comm’r of Soc. Sec., No. 2:15-CV-1437, 2016 WL 4361175, at *8 (S.D. Ohio Aug. 16,
2016); Williamson v. Comm’r of Soc. Sec., No. 1:16-CV-583, 2017 WL 713904, at *4 (S.D. Ohio Feb. 23,
2017).
5
5

effects of pain or other symptoms are not substantiated by objective medical evidence,” the ALJ
must then determine the claimant’s credibility “based on a consideration of the entire case
record.” See id.; 20 C.F.R. § 404.1529(c)(3).
In considering the entire case record, 20 C.F.R. § 404.1529(c)(3) and SSR 96-7p also
require consideration of the following factors: (1) the claimant’s daily activities; (2) the location,
duration, frequency, and intensity of symptoms; (3) factors that precipitate and aggravate
symptoms; (4) the type, dosage, effectiveness, and side effects of any medication taken to
alleviate the symptoms; (5) treatment undertaken by the claimant; (6) measures undertaken by
the claimant to relieve symptoms, such as lying on one’s back; and (7) any other factors bearing
on the limitations of the claimant to perform basic functions. 20 C.F.R. § 404.1529(c)(3); see
Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007).
At the administrative hearing, Plaintiff testified that her endometriosis flared and caused
her to lie in bed two to three days each month, and that during those days, she was unable to
stand, lift or walk. PageID 971, 999-1000, 1017. The ALJ rejected Plaintiff’s testimony in this
regard, stating that:
in October 2010, the claimant reported that her doctors recommended a
hysterectomy but she did not want any more surgery. Further, the claimant
“received Lupron in the past with success. She has been post-menopausal
since 2011 with improvement in daily pelvic pain but has occasional flair ups
of pain[.]” Finally, on February 13, 2014, the claimant underwent a
hysterectomy, right salpingo-oophorectomy, McCall culdoplasty, lysis of
adhesions, cystoscopy and posterior repair. Subsequently, on April 9, 2014,
the claimant reported that she was doing well despite the fact that she had not
taken medication prescribed to her. In addition, she indicated that she is able
to do all her normal activities of daily living. It should also be noted that the
claimant testified that she has had endometriosis with the same level of
severity since she was 13 years old. Nonetheless, the claimant has been able
to perform competitive work in the past despite this condition.
The claimant has been noncompliant with her treatment regimen for
endometriosis. The claimant was advised by her gynecologist and others to
discontinue smoking. Yet the claimant testified that she continues to smoke
1/2 pack of cigarettes per day. Poor compliance reflects poorly on the
claimant’s allegations about the severity of her symptoms.
6

PageID 971-72.
The undersigned agrees with Plaintiff and finds that medical records noting Plaintiff’s
continued flair ups of pelvic pain despite overall improvement (PageID 1286) are consistent with
her hearing testimony -- i.e., that she suffers from endometriosis pain effecting her ability to
stand once a month for a period that lasts two to three days. PageID 998-99.
The undersigned also agrees with Plaintiff that the ALJ erred in relying on her
purportedly less severe symptoms after undergoing surgery in 2014 in light of the fact that she
alleges a disability onset in 2002. PageID 972. “In determining whether [a plaintiff] is entitled
to disability benefits, it is necessary to consider every period during which [the plaintiff] may
have been disabled.” Miller v. Comm’r of Soc. Sec., No. 13 CIV. 6233 LGS, 2015 WL 337488,
at *24 (S.D.N.Y. Jan. 26, 2015). “[T]he ALJ should have considered not only whether Plaintiff
was disabled at the time of the hearing, but also whether [she] was entitled to disability benefits
for any closed, continuous period of not less than 12 months, following the date of [her] claim.”
Pena v. Barnhart, No. 01 CIV. 502 (BSJDF), 2002 WL 31487903, at *11 (S.D.N.Y. Oct. 29,
2002) (citing 42 U.S.C. §§ 1382c(a)(3)(A), 423(d)(1)(A)).
Accordingly, the ALJ’s credibility analysis is found unsupported by substantial evidence,
specifically with regard to the ALJ’s failure to consider a closed period of disability. This finding
merits reversal of the ALJ’s non-disability determination.
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,
7

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); Mowery v. Heckler,
771 F.2d 966, 973 (6th Cir. 1985).

In this case, the evidence of disability is not overwhelming.

Therefore, a remand for further proceedings is proper.
V.
IT IS THEREFORE RECOMMENDED THAT:
1.

The Commissioner’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.

Date: August 14, 2017

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

8

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).