Smith v. Commissioner of Social Security

Filing 14

REPORT AND RECOMMENDATIONS - IT IS THEREFORE RECOMMENDED 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. Objections to R&R due by 8/7/2017. Signed by Magistrate Judge Michael J. Newman on 7/24/2017. (srb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JAMIA R. WORTHAM SMITH,
Plaintiff,

Case No. 3:16-cv-264

vs.
COMMISISONER 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”).

This case is before the Court upon

Plaintiff’s Statement of Errors (doc. 7), the Commissioner’s memorandum in opposition (doc.
11), Plaintiff’s reply (doc. 13), the administrative record (doc. 6), and the record as a whole.
I.
A.

Procedural History

Plaintiff filed an application for DIB asserting disability as of January 2, 2012. PageID
176-82. Plaintiff claims disability as a result of multiple impairments including, inter alia,
obesity, depression, fibromyalgia, and chronic pain syndrome. PageID 44, 879.

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Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendation.

After initial denial of her application, Plaintiff received a hearing before ALJ David A.
Redmond on August 14, 2014. PageID 57-76. The ALJ issued a written decision on October 31,
2014 finding Plaintiff not disabled. PageID 42-51. Specifically, the ALJ found at Step 5 that,
based upon Plaintiff’s residual functional capacity (“RFC”) to perform light work, 2 “there are
jobs that exist in significant numbers in the national economy that [Plaintiff] can perform[.]”
PageID 46-51.
Thereafter, the Appeals Council denied review on May 17, 2016, making the ALJ’s nondisability finding the final administrative decision of the Commissioner. PageID 30-35. 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”).
B.

Evidence of Record

The evidence of record is adequately summarized in the ALJ’s decision (PageID 44-50),
Plaintiff’s Statement of Errors (doc. 7), the Commissioner’s memorandum in opposition (doc.
11), and Plaintiff’s reply (doc. 13). The undersigned incorporates all of the foregoing and sets
forth the facts relevant to this decision 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
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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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”
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

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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: (1) improperly
weighing opinion evidence, including the opinion of treating family physician Rhea Rowser,
M.D.; (2) improperly assessing her credibility; and (3) failing to consider all of her impairments
throughout the sequential review process. Doc. 7 at PageID 917-26. Finding merit to Plaintiff’s
first alleged error concerning the ALJ’s review of Dr. Rowser’s opinion, the undersigned does
not address the merits of the remaining alleged errors.
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
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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).3
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

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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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. Rowser has treated Plaintiff since January 2010 for, among other conditions,
depression, carpal tunnel syndrome, and chronic pain syndrome/fibromyalgia.4 PageID 562; see
also 450, 841, 879. On August 8, 2012, Dr. Rowser opined that Plaintiff could work one day a
week for up to five hours; would suffer flare-ups of her conditions up to two times every other
month; and would miss up to two days of work each time she suffered a flare-up. PageID 889.
On August 1, 2013, with regard to Plaintiff’s fibromyalgia, Dr. Rowser opined that Plaintiff

It is not entirely clear whether the ALJ considered Plaintiff’s chronic pain syndrome and/or
fibromyalgia at any point his opinion. Interestingly, at the initial determination level, Plaintiff was found
to suffer from the severe impairment of fibromyalgia, as well as carpal tunnel syndrome. PageID 84, 98,
113. The ALJ, however, in addressing Plaintiff’s severe limitations at Step Two, found that Plaintiff
suffers from the severe impairment of “subjective pain syndrome,” and makes no mention of chronic pain
syndrome or fibromyalgia. PageID 44. The records cited by the ALJ in finding that Plaintiff suffers from
“subjective pain syndrome” (PageID 706-26, 796-813) are mental health treatment records that make no
mention of “subjective pain syndrome” while, instead, making mention of fibromyalgia and chronic pain.
PageID 709, 715, 723, 808. While the Commissioner, on appeal, sets forth an explanation as to why the
ALJ may have omitted a discussion of chronic pain syndrome and fibromyalgia, no such explanation was
ever set forth by the ALJ. See Romig v. Astrue, No. 1:12-cv-1552, 2013 WL 1124669, at *6 (N.D. Ohio
Mar. 18, 2013) (stating that “it is the opinion given by an administrative agency rather than counsel's
‘post hoc rationale’ that is under the Court's consideration”). With regard to carpal tunnel, there is no
particular reasoning offered by the ALJ -- or the Commissioner on appeal -- as to why such condition was
never discussed at Step Two. Courts have found that an ALJ’s “failure . . . to find . . . conditions as
medically determinable impairments, or to give an adequate explanation for discounting them, makes
[the] decision[] at [S]teps [T]wo and [F]our of the sequential evaluation process defective.” Jones v.
Comm’r of Soc. Sec., No. 3:15-CV-00428, 2017 WL 540923, at *7 (S.D. Ohio Feb. 10, 2017), report and
recommendation adopted sub nom. Jones v. Berryhill, No. 3:15-CV-428, 2017 WL 1196179 (S.D. Ohio
Mar. 31, 2017) (quoting Weitzel v. Colvin, 967 F. Supp. 2d 1089, 1097 (M.D. Pa. 2013)). In addition to
the reasoning set forth infra, this serves as an independent basis meriting reversal of the ALJ.
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could work up to four hours per day; stand for two hours per workday; sit for one hour per
workday for 30 minutes at a time; lift ten pounds occasionally and five pounds frequently; and
never raise her right arm above shoulder level. PageID 705. On September 11, 2013, Dr.
Rowser opined that, because of “chronic pain syndrome - fibromyalgia[,]” Plaintiff “has too
much pain to be actively involved in her work”; could work up to six hours per workday for a
period of up to six to eight weeks; would experience pain flare-ups approximately two times
every four to six weeks; and would miss two to three days of work each time she suffered a flareup. PageID 880.
The ALJ gave Dr. Rowser’s opinion “little weight,” finding only that her opinions were
inconsistent with Plaintiff’s testimony, in which she stated that she was working eight hours a
day three days per week at the time of her administrative hearing. PageID 49. The undersigned
finds error in the ALJ’s analysis.
Initially the undersigned notes that, when specifically weighing Dr. Rowser’s opinion, the
ALJ provides no analysis of the controlling weight factors -- i.e., whether the opinion was “wellsupported by medically acceptable clinical and laboratory diagnostic techniques and . . . not
inconsistent with the other substantial evidence[.]” 20 C.F.R. § 404.1527(c)(2); 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”).
As noted above, the only reason specifically set forth by the ALJ in rejecting Dr.
Rowser’s opinions was the purported inconsistency between those opinions and Plaintiff’s
testimony. PageID 49. The consistency of an opinion “with the record as a whole,” however, is
a factor set forth in 20 C.F.R. § 404.1527(c)(4), which is a factor “properly applied only after the

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ALJ has determined that a treating-source opinion will not be given controlling weight.”
Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013); see also 20 C.F.R.
§ 404.1527(c)(2). Because the ALJ failed to set forth any reason for declining to afford Dr.
Rowser’s opinion controlling weight, the Court cannot determine whether he undertook the
“two-step inquiry” the treating physician rule requires. See id. at 376-78. 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).
Further, with regard to the controlling weight analysis, there is evidence of clinical and
laboratory findings that may well support Dr. Rowser’s opinions concerning Plaintiff’s
limitations arising from her chronic pain syndrome/fibromyalgia. See PageID 703-04, 879. In
offering these opinions, Dr. Rowser specifically noted that Plaintiff had 16 of 18 tender points
occurring on her body, and that “other disorders that could cause [Plaintiff’s] symptoms or
signs” were ruled out by x-rays and an EMG.

PageID 704.

Because “[t]he process of

diagnosing [fibromyalgia] involves testing focal points for tenderness and ruling out other
conditions through objective medical and clinical methods[,]” evidence of 16 positive tender
points, and the ruling out of other disorders by objective testing, are significant pieces of
evidence supportive of Dr. Rowser’s opinion. See Minor v. Comm’r of Soc. Sec., 513 F. App’x
417, 434 (6th Cir. 2013).

The ALJ’s failure to consider and analyze such evidence -- in

determining whether Dr. Rower’s opinions were entitled to controlling weight -- is also
reversible error. See Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 244 (6th Cir. 2007) (finding
error where the “ALJ did not discuss [the] standard [for diagnosing fibromyagia] at all in his
decision”).

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Finally, the undersigned concludes that the ALJ’s reliance on Plaintiff’s part-time work
to undermine the entirety of Dr. Rower’s opinion is misplaced.

In this regard, the ALJ

concluded that Plaintiff’s testimony -- in which she states that she works three days per week for
a total of 24 hours -- is inconsistent with Dr. Rower’s opinion that Plaintiff can only work up to
six hours per workday. See PageID 49, 62. The ALJ does not, however, account for the entirety
of Plaintiff’s testimony or Dr. Rowser’s opinions.
When speaking of her work, Plaintiff testified that she works 24 total hours over a course
of three days per week, but also testified that she “barely can make it through the three days”;
that she calls off of work approximately three times every two weeks because of her pain; and
that she takes three to four extra unapproved breaks each day she works. PageID 65-70. With
regard to absences from work, evidence of record -- such as Plaintiff’s work attendance
calendars (PageID 280-81) and her treatment notes (PageID 796) -- corroborate her testimony.
Considering Plaintiff’s testimony as a whole -- as well as corroborating evidence of a significant
number of absences -- it is unclear to the undersigned how such testimony wholly undermines
Dr. Rowser’s opinions, especially those opinions concerning Plaintiff’s ability to regularly attend
work -- opinions that, if accepted, would render Plaintiff disabled. PageID 72-73.
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

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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).
Here, the undersigned finds that factual issues remain unresolved and that evidence of
disability is not overwhelming. Accordingly, a remand for further proceedings is 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 ALJ’s non-disability finding be found unsupported by substantial evidence,
and REVERSED;

This case be CLOSED.

July 24, 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).

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