Myers v. Commissioner of Social Security

Filing 10

REPORT AND RECOMMENDATIONS 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 CONSISTENT WITH THIS OPINION; AND (3) THIS CASE BE CLOSED re 2 .Objections to R&R due by 7/19/2017. Signed by Magistrate Judge Michael J. Newman on 7/5/17. (kma)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DEANNA E. MYERS,
Plaintiff,

Case No. 3:16-cv-228

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. 6), 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 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 alleging a disability onset date of June 1, 2010. PageID
231-38. Plaintiff claims disability as a result of a number of alleged impairments including, inter
alia, obesity, bilateral knee osteoarthritis, degenerative disc disease of the cervical and lumbar
spine, and anxiety. PageID 42.
After initial denial of her applications, Plaintiff received a hearing before ALJ Emily
Statum on August 14, 2014. PageID 59-87. The ALJ issued a written decision on December 10,
2014 finding Plaintiff not disabled. PageID 40-52. Specifically, the ALJ found that, based upon
Plaintiff’s residual functional capacity (“RFC”) to perform sedentary work4 with additional
limitations, “there are jobs in that exist in significant numbers in the national economy that
[Plaintiff] can perform[.]” PageID 40-52.
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 42-50),
Plaintiff’s Statement of Errors (doc. 6), 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.

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. 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”

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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 in weighing medical source
opinions.

Specifically, Plaintiff challenges the ALJ’s analysis of opinion evidence from

Plaintiff’s treating family physician, Stephen Knudson, M.D.; examining psychologist, Giovanni
M. Bonds, Ph.D.; record-reviewing physician, Leanne M. Bertaini, M.D.; record-reviewing
psychologist, Karla Voyten, Ph.D.; record-reviewing physician, Steve E. McKee, M.D.; and
record-reviewing psychologist, Bruce Goldsmith, Ph.D.
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. Record reviewers
are afforded the least deference and these “non-examining physicians’ opinions are on the lowest

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
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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. Knudson treated Plaintiff in 2012 and 2013. See PageID 484-523. In November
2012, Dr. Knudson offered an opinion regarding Plaintiff’s physical limitations. PageID 614.
Specifically, Dr. Knudson opined that Plaintiff could stand and walk up to 2 hours per workday
for 30 minutes at a time; sit for 4 hours per workday for 1 hour at a time; and could not lift,
carry, push or pull anything because she ambulated with crutches. Id. Dr. Knudson also
concluded that Plaintiff was markedly limited6 in her ability to push and pull, and was
moderately limited in her ability to bend, reach, and perform repetitive foot movements. Id.
In September 2013, Dr. Knudson offered another opinion regarding Plaintiff’s physical
limitations. See PageID 611-16. He then found that Plaintiff could stand and walk for 2 hours
per workday for 30 minutes without interruption; sit 6 hours per workday for 1 hour without
interruption; lift 5 pounds frequently and 10 pounds occasionally; was markedly limited in her
ability to bend and perform repetitive foot movements; and moderately limited in her ability to
push and pull. PageID 611. The ALJ gave Dr. Knudson’s 2012 and 2013 conclusions about
Plaintiff’s physical limitations little weight. PageID 50.

Whereas “moderate” functional limitations are “non-disabling,” see Sims v. Comm’r of Soc.
Sec., 406 F. App’x 977, 980 (6th Cir.2011), “marked” and “extreme” limitations are suggestive of
disability. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 §§ 12.00(C), et seq.
6
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With regard Plaintiff’s mental limitations, Dr. Knudson concluded in September 2013
that Plaintiff was markedly limited in her ability to perform activities within a schedule; maintain
regular attendance; be punctual; complete a normal workday without interruption from mental
impairments; perform at a consistent pace without unreasonable number and length of breaks;
respond appropriately to changes in the workplace; and travel to unfamiliar places or use public
transportation. PageID 615. Dr. Knudson also opined that Plaintiff was moderately limited in a
number of other areas of mental functioning. Id. The ALJ found that Dr. Knudson’s opinion
concerning Plaintiff’s mental limitations was entitled to little weight because he “is not a
psychiatrist” and observations from Plaintiff’s “recent psychiatrist show the claimant is not as
limited as Dr. Knudson opined.” PageID 50.
The undersigned finds error in the ALJ’s assessment of Dr. Knudson’s opinion
concerning mental limitations. Initially, the Court notes that the ALJ failed to mention the
concept of “controlling weight” when analyzing such opinion, and further failed to specifically
decline to give it 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”).
Because of the ALJ’s failure in this regard, the Court cannot determine whether she 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 failure 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).
Insofar as the ALJ found that “the clinical observations of the [Plaintiff’s] recent
psychiatrist show [Plaintiff] is not as limited as Dr. Knudson opined[,]” the undersigned notes
that, in support of such conclusory assessment, the ALJ presents no meaningful explanation in
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such regard. See PageID 50. Further, such conclusory statement “does not explain to which
aspect of the controlling-weight test this critique is relevant.” Gayheart, 710 F.3d at 377. In
addition, such conclusory statement is ambiguous, in that one cannot determine if the ALJ meant
there were no clinical observations noted in the psychiatrist’s records at all, or whether the
clinical observations noted were not sufficient to “support the content of the opinions.” See
Gayheart, 710 F.3d at 377.
The Court’s review of the records cited by the ALJ reveals clinical observations of
Plaintiff’s depressed mood and tearfulness. See PageID 941-84. Specifically, Plaintiff began
treatment at South Community Behavior Health in April 2014. PageID 984. On May 8, 2014,
records show that Plaintiff’s mood, affect, thought process, orientation, behavior and functioning
were all notable, and that Plaintiff displayed a depressed and flat mood and affect with avoidant
behavior and functioning. PageID 981. Records from May 14, May 22, June 5, June 19, July 3,
and July 17 all note no significant changes with regard to such clinical observations -- meaning
that Plaintiff continued to appear depressed with flat affect and avoidant behavior. PageID 966,
971, 973, 975, 977, 979.
With regard to the ALJ’s rejection of Dr. Knudson’s opinion on the basis that he is not a
psychiatrist, the Court 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 treating-source opinion will not be given controlling weight.” Gayheart, 710
F.3d at 376; see also 20 C.F.R. § 404.1527(c)(5). In addition, “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. Knudson 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
8

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 treating physician analysis with regard to Dr. Knudson’s mental health
opinion. 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 regarding the ALJ’s
assessment of Dr. Knudson’s opinion concerning Plaintiff’s physical limitations. Instead, the
ALJ should be directed to reassess Dr. Knudson’s opinion concerning Plaintiff’s physical
limitations anew on remand.
The undersigned further finds error in the ALJ’s analysis of medical opinions from record
reviewers Bertaini, Voyten, McKee, and Goldsmith. Here, in giving the record reviewers’
opinions “considerable weight,” the ALJ stated that their opinions “are generally well supported
with specific references to medical evidence.” PageID 50. The record reviewers’ opinions are
part of the initial disability determination explanations, and while these explanations set forth
summaries of the evidence reviewed in making the initial determination (PageID 93-94, 110-11,
129-31, 149-51), contrary to the ALJ’s conclusion, none of the record reviewers reference any
evidence in support of any specific limitation upon which they opine. PageID 97-100, 114-17;
100-02, 117-19; 134-37, 154-57; 137-39, 157-59. Thus, the reason set forth by the ALJ in giving
the record reviewers’ opinions “considerable weight” is not supported by substantial evidence,
and should be reversed.

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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).
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, the

undersigned finds that evidence of disability is not overwhelming and that a remand for further
proceedings is proper.

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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 5, 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).