Grody v. Commissioner of Social Security

Filing 10

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 AN IMMEDIATE AWARD OF BENEFITS; AND (3) THIS CASE BE CLOSED. re #2 Complaint. Objections to R&R due by 8/15/2017. Signed by Magistrate Judge Michael J. Newman on 8/1/17. (kma)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JANINE A. GRODY,
Plaintiff,

Case No. 3:16-cv-188

vs.
COMMISSIONER OF
SOCIAL SECURITY,

District Judge Thomas M. Rose
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 AN IMMEDIATE AWARD OF
BENEFITS; 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. 7), the

Commissioner’s memorandum in opposition (doc. 8), Plaintiff’s reply (doc. 9), the
administrative record (doc. 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 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 asserting disability as of May 1, 2012. PageID 265-73.
Plaintiff claims disability as a result of a number of alleged impairments including, inter alia,
osteoarthritis, early rheumatoid arthritis, spinal disorders, anxiety, and depression. PageID 73.
After initial denial of her applications, Plaintiff received a hearing before Administrative
Law Judge (“ALJ”) Mark Hockensmith on April 13, 2015. PageID 88-128. The ALJ issued a
written decision on April 27, 2015 finding the Plaintiff not disabled.

PageID 71-82.

Specifically, the ALJ found at Step 5 that, based upon Plaintiff’s residual functional capacity
(“RFC”) to perform a reduced range of light work,4 “there are jobs that exist in significant
numbers in the national economy that [Plaintiff] can perform[.]” PageID 76-81.
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 46-51. 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 73-81),
Plaintiff’s Statement of Errors (doc. 7), the Commissioner’s memorandum in opposition (doc. 8),
and Plaintiff’s reply (doc. 9). The undersigned incorporates all of the foregoing and sets forth
the facts relevant to this appeal herein.

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).
2
4

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.
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”

3

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 erred by improperly assessing:
(1) the opinion of her treating family physician Heidi Yount, M.D.; (2) the opinions of mental
health examiners Alan R. Boerger, Ph.D. and Gilbert W. Butler, Psy.D.; and (3) her credibility.
Finding merit to Plaintiff’s first alleged error, the undersigned does not address the merits of the
Plaintiff’s remaining contentions.

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.

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

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).
Dr. Yount began treating Plaintiff in March 2012. See PageID 827. On October 29,
2014, Dr. Yount offered two opinions concerning Plaintiff’s work related limitations: one
opinion addressing Plaintiff’s physical limitations, such as her ability to lift, stand, walk and sit;
and a second opinion more specifically addressing the combined effects of her physical and
mental impairments, such as Plaintiff’s ability to maintain concentration, persistence and pace in
the work setting.

PageID 827-40.

On appeal, Plaintiff primarily challenges the ALJ’s

assessment of the latter. See doc. 7 at PageID 872-77. Accordingly, the undersigned limits the
Court’s review and analysis to such opinions as well.
Dr. Yount found that Plaintiff was moderately impaired with regard to her activities of
daily living; her ability to maintain social functioning; and her ability to maintain concentration,
persistence, and pace in the work setting. PageID 835. More specifically, Dr. Yount concluded
that Plaintiff was unable to withstand the pressure of meeting normal standards of work
productivity and work accuracy without significant risk of decompensation or worsening of her

6

impairments; maintain concentration and attention for two hour segments; and perform at a
consistent pace without unreasonable numbers and lengths of rest periods. PageID 830-33.
The ALJ gave “great weight” to Dr. Yount’s opinion “[e]xcept for a slight change”
concerning Plaintiff’s ability to engage in social functioning and complete a normal workday
without interruption from her symptoms. PageID 80. While the ALJ agreed with Dr. Yount that
Plaintiff had “moderate difficulties” “[w]ith regard to concentration, persistence [and] pace”
(PageID 74), he nevertheless failed to include or discuss the apparent rejection of Dr. Yount’s
conclusion that Plaintiff could not maintain concentration or attention for two hour segments.
PageID 80. According to vocational expert (“VE”) Teresa Treng, who testified at Plaintiff’s
administrative hearing, an individual who cannot maintain concentration and attention for two
hour segments is unemployable. PageID 126.
The Court finds reversible error with regard to the ALJ’s failure to explain the omission
of such disabling limitation from Plaintiff’s RFC. An ALJ must meaningfully explain why
certain limitations are not included in the RFC determination, especially when such limitations
are set forth in opinions the ALJ weighs favorably. O’Ryan v. Comm’r of Soc. Sec., No. 3:14CV-125, 2015 WL 6889607, at *4 (S.D. Ohio July 30, 2015), report and recommendation
adopted, No. 3:14-CV-125, 2015 WL 4934190 (S.D. Ohio Aug. 18, 2015); Howard v. Comm’r
of Soc. Sec., No. 3:14-CV-364, 2015 WL 8213614, at *4 (S.D. Ohio Dec. 9, 2015), report and
recommendation adopted, No. 3:14-CV-364, 2016 WL 99114 (S.D. Ohio Jan. 7, 2016); see also
SSR 96-8p, 1996 WL 374184, at *7 (July 2, 1996) (stating that, “[i]f the RFC assessment
conflicts with an opinion from a medical source, the adjudicator must explain why the opinion
was not adopted”); Hann v. Colvin, No. 12-cv-06234-JCS, 2014 WL 1382063, at *22 (N.D. Cal.
Mar. 28, 2014) (finding that “where an ALJ has already found a physician’s opinions to be
credible and concrete, an ALJ can err by omitting aspects of that physician’s opinions from the
7

RFC”); Stoddard v. Astrue, No. 3:09-cv-91, 2010 WL 3723924, at *1 (E.D. Tenn. Feb. 19,
2010); Washington v. Colvin, No. 13–1147–SAC, 2014 WL 4145547, at *3 (D. Kan. Aug. 19,
2014) (finding the ALJ’s “failure to either include [certain] limitations [as opined by a medical
source], or explain why they were not included in the RFC findings, [to be] especially
problematic in light of the fact that the ALJ accorded “substantial” weight to [the medical
source’s] opinions”).
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).
In this instance, proof of disability is overwhelming and remand would result in the
presentation of cumulative evidence and serve no purpose other than delay. As determined by
the ALJ, Dr. Yount’s opinion is entitled to “great weight.” PageID 80. Part of Dr. Yount’s
opinion is that Plaintiff is unable to maintain concentration and attention for two hour segments
(PageID 832), a limitation that would preclude her from “fulltime work at any exertional
level[.]” PageID 126. All mental health medical source opinions of record agree that Plaintiff is,
at the least, moderately limited in her ability to maintain concentration, persistence or pace in the
work setting. PageID 744 (wherein examining clinical psychologist Dr. Butler found Plaintiff
8

markedly limited in the ability to “maintain attention and concentration for extended periods”);
PageID 832, 835 (wherein Dr. Yount found Plaintiff moderately limited in her ability to maintain
concentration, persistence or pace and unable to maintain concentration and attention for two
hour segments); PageID 519 (wherein examining psychologist Dr. Boerger noted Plaintiff’s
“problems with . . . concentration in activities such as filling out paperwork,” and further noting
Plaintiff’s “4 errors in performing Serial 7’s”),

Based on the foregoing, the record

overwhelmingly demonstrates Plaintiff’s disability. Therefore, this case should be remanded for
an immediate award of benefits.
V.
It is therefore RECOMMENDED that: (1) the ALJ’s non-disability finding be found
unsupported by substantial evidence and REVERSED; (2) this matter be REMANDED under
the Fourth Sentence of 42 U.S.C. § 405(g) for an immediate award of benefits; and (3) this case
be TERMINATED on the Court’s docket.

Date:

August 1, 2017

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

9

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).