Lutz v. Commissioner of Social Security

Filing 10

REPORT AND RECOMMENDATIONS re 1 Complaint, filed by Christina Lutz - 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 8/8/2017. Signed by Magistrate Judge Michael J. Newman on 7/25/17. (pb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
CHRISTINA L. LUTZ,
Plaintiff,

Case No. 3:16-cv-210

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. 7), the

Commissioner’s memorandum in opposition (doc. 8), Plaintiff’s reply memorandum (doc. 9), 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 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 March 2, 2009. PageID
281-88. Plaintiff claims disability as a result of a number of impairments including, inter alia, a
seizure disorder, chronic joint pain, obesity, a respiratory disorder, and an affective disorder.
PageID 173.
After initial denial of her applications, Plaintiff received a hearing before ALJ
Christopher L. Dillon on May 29, 2014. PageID 59-78. The ALJ issued a written decision on
November 10, 2014 finding Plaintiff not disabled. PageID 171-84. Specifically, the ALJ found
at Step 5 that, based upon Plaintiff’s residual functional capacity (“RFC”), “there are jobs in that
exist in significant numbers in the national economy that [Plaintiff] can perform[.]” PageID 183.
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 174-82),
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.
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, 7452

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).
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, 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?
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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. 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 weighing the
opinion of her treating family physician Julio Soto, M.D. Doc. 7 at PageID 1183-89. 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-cv119, 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,
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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).4
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).
There is no dispute that Dr. Soto is Plaintiff’s treating family physician, who began
treating Plaintiff in mid-2013 for her physical and mental impairments. See PageID 986. On

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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4

March 30, 2014, Dr. Soto opined that Plaintiff had marked restrictions5 in activities of daily
living, as well as marked deficiencies of concentration, persistence and pace. PageID 1057. As
a result of her impairments, Dr. Soto opined that Plaintiff would miss more than three days of
work per month -- an opinion that, if accepted, would result in a finding that Plaintiff is disabled.
PageID 77, 1055. The ALJ gave Dr. Soto’s opinion “little weight” because of “the lack of
support” provided by Dr. Soto in his report, as well as the fact that “Dr. Soto is not a mental
health expert.” PageID 182.
The undersigned finds error in the ALJ’s assessment of Dr. Soto’s opinion. Initially, the
Court notes that the ALJ failed to mention the concept of “controlling weight” when analyzing
Dr. Soto’s opinion, and further failed to specifically decline to give it controlling weight.
PageID 182; Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 377 (6th Cir. 2013) (finding error
where the ALJ’s “analysis does not explain to which aspect of the controlling-weight test [a]
critique is relevant”); see also Martin v. Colvin, 207 F. Supp. 3d 782, 789 (S.D. Ohio 2016). In
addition, the ALJ also provides no analysis of the controlling weight factors -- i.e., whether the
opinion was “well-supported by medically acceptable clinical and laboratory diagnostic
techniques and . . . not inconsistent with the other substantial evidence[.]”

20 C.F.R.

§ 404.1527(c)(2).
Instead, the ALJ first critiques Dr. Soto’s opinion because of “the lack of support” he
cites for the limitations assessed. PageID 182. Such reason is relevant to the “supportability”
inquiry under 20 C.F.R. § 404.1527(c)(3) (stating that, “[t]he more a medical source presents
relevant evidence to support a medical opinion, particularly medical signs and laboratory
findings, the more weight we will give that medical opinion”). This factor, however, is one

Whereas “mild” and “moderate” functional limitations are generally considered “nondisabling,” see Sims v. Comm'r of Soc. Sec., 406 F. App’x 977, 980 (6th Cir. 2011), “marked” limitations
are suggestive of disability. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00(C); Lankford v. Sullivan, 942
F.2d 301, 307 (6th Cir. 1991).
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5

applied after the ALJ decides to “not give the treating source’s medical opinion controlling
weight.” 20 C.F.R. § 404.1527(c)(2) (stating that the supportability factor in paragraph (c)(3) is
applied when the ALJ does “not give the treating source's medical opinion controlling weight”);
see also Gayheart, 710 F.3d at 376 (noting that certain factors are “properly applied only after
the ALJ has determined that a treating-source opinion will not be given controlling weight”).
The only other critique of Dr. Soto’s opinion offered by the ALJ is that Dr. Soto is not a
“mental health expert.” PageID 182. While Dr. Soto, a family physician, may not be a mental
health specialist, he is certainly an expert 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). In
fact, “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). Even assuming the ALJ meant to critique Dr. Soto’s lack of
specialization rather than his qualifications to offer an opinion, again, such a 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 treating-source opinion will not be
given controlling weight.” See Gayheart, 710 F.3d at 376; 20 C.F.R. §§ 404.1527(c)(2) and (5).
As a result of the foregoing, the Court cannot determine whether the ALJ undertook the
required “two-step inquiry” when analyzing Dr. Soto opinion. See Gayheart, 710 F.3d at 376-78.
Accordingly, the undersigned finds that the ALJ erred by failing to conduct a controlling analysis
with regard to Dr. Soto’s opinion. See Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th
Cir. 2004) (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”). Such failure
7

amounts to reversible 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).
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). The undersigned
finds that evidence of disability is not overwhelming in this instance. 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 25, 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).

9