Bartunek v. Commissioner of Social Security

Filing 17

DECISION AND ENTRY- A judicial award of benefits is unwarranted in the present case because the evidence of disability is not overwhelming and the evidence of disability is not strong while contrary evidence is lacking. However, Plaintiff is entitled to an Order remanding this case to the Social Security Administration pursuant to sentence four of §405(g) due to the problems discussed above. On remand, the ALJ should be directed to evaluate the evidence of record, including the medical sour ce opinions, under the applicable legalcriteria mandated by the Commissioners Regulations and Rulings and by case law; and to evaluate Plaintiffs disability claim under the required five-step sequential analysis to determine anew whether Plaintiff wa s under a disability and whether her application for Disability Insurance Benefits should be granted.IT IS THEREFORE ORDERED THAT: 1. The Commissioners non-disability finding is vacated; 2. No finding is made as to whether Plaintiff Kristin N. Bartun ek was under a disability within the meaning of the Social Security Act; 3. This matter is REMANDED to the Social Security Administration under sentence four of 42 U.S.C. § 405(g) for further consideration consistent with this Decision and Entry; and 4. The case is terminated on the Courts docket. Signed by Magistrate Judge Sharon L. Ovington on 8/24/17. (kma)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
KRISTIN N. BARTUNEK,
Plaintiff,
vs.
NANCY A. BERRYHILL,
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

: Case No. 3:16-cv-326
:
:
: Magistrate Judge Sharon L. Ovington
:
(by full consent of the parties)
:
:
:
:
:
:

DECISION AND ENTRY
I.

Introduction
Plaintiff Kristin N. Bartunek brings this case challenging the Social Security

Administration’s denial of her application for period of disability and Disability
Insurance Benefits. She applied for benefits on July 2, 2013, asserting that she could no
longer work a substantial paid job. Administrative Law Judge (ALJ) Emily Ruth Statum
concluded that she was not eligible for benefits because she is not under a “disability” as
defined in the Social Security Act.
The case is before the Court upon Plaintiff’s Amended Statement of Errors (Doc.
#16), the Commissioner’s Memorandum in Opposition (Doc. #13), Plaintiff’s Reply
(Doc. #15), and the administrative record (Doc. #7).

Plaintiff seeks a remand of this case for payment of benefits or, at a minimum, for
further proceedings. The Commissioner asks the Court to affirm ALJ Statum’s nondisability decision.
II.

Background
Plaintiff asserts that she has been under a “disability” since December 29, 2012.

She was thirty-five years old at that time and was therefore considered a “younger
person” under Social Security Regulations. See 20 C.F.R. § 404.1563(c). She has a high
school education. See id. § 404.1564(b)(4).
A.

Plaintiff’s Testimony

Plaintiff testified at the hearing before ALJ Statum that she cannot work because
of severe pain:
I have nerve pain in my leg -- left leg and both arms. It’s a
shooting, stabbing, sharp pain. I also have pain in my lower - mid to lower spine that’s very sharp pain. My left foot, a lot
of the times it feels like the bones are broken when I try to
walk on it, and my left thigh gets real bad, sharp pains like
someone’s stabbing a knife in and pulling down. … My hip,
every time I try to take off my pants or go to the bathroom or
go to sit down or roll over in bed, it’s a very sharp pain. I
also get the pain in my left butt cheek and my whole left leg
is numb. It doesn’t have full feeling in it. My left arm has
now gotten a lot of muscle weakness as well and I have a
difficult time holding things in my left arm. When I’m
driving, I have bad joint pain in both hands and nerve pain in
my wrists and fingers, so I switch off hands because holding
onto the wheel for too long hurts, so I have to switch hands
when I’m driving.
(Doc. #7, PageID #s 806-07).

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On a scale from one to ten, Plaintiff stated that her lower back pain is “[a]bout a
seven” on a daily basis and her left leg pain is eight. Id. at 808-09. She experiences the
greatest pain relief when she is lying down and thus, spends a lot of time lying down. Id.
at 810. Her pain is worst in the morning and at night. Id. at 811.
In 2012 or 2013, Plaintiff participated in a spinal cord simulator trial and it made
her back pain worse. Id. “The next move they want to do is implant a pain pump.” Id. at
812. At the time of the hearing, Plaintiff was taking medication for pain. Id. Her
treating pain specialist, Dr. Dannini, prescribes Percocet, amitriptyline, and Flexeril. Id.
Dr. Rudd prescribes Cymbalta. Id. She experiences significant side effects: “Cymbalta,
I have dizziness a lot when I stand and I’m also extremely tired constantly…. Flexeril …
also makes me really tired and the Percocet keeps me awake and also gives me … a little
bit of nausea, and then the [amitriptyline], it puts me to sleep.” Id. at 813. Plaintiff’s
medication “take[s] the edge off” but does not take all of her symptoms away. Id. at 821.
Plaintiff has very restless sleep because she is constantly moving and, “[e]very
time I move in bed, my hip hurts really bad, and my feet … get very, very cold, like
they’re in an ice box, and so that kind of keeps me awake, and then the pain in my toes
and in my leg ….” Id. at 811.
The problems in her hands started almost one year before the hearing. Id. at 809.
She has constant numbness in her hands and left arm, constant pain in her knuckles, and
intermittent nerve pain. Id. at 817. As a result, she has “difficulties holding anything for
too long of a period, especially smaller things like pens and even [helping my son] get

3

dressed sometimes can be a hassle.” Id. at 809. The heaviest thing she can lift is a pot.
Id. at 817.
Plaintiff’s leg pain improved after surgeries in 2009. Id. at 814. But, in 2011, she
was involved in a car accident, and the pain “came back in full force.” Id. at 814-15.
After the accident, she was off work for six months because of the back problems and
because she was pregnant. Id. at 816. She then attempted to work for a couple months
but had to stop because her back pain was so bad. Id. At the time, Plaintiff worked as a
registered nurse. Id. at 805.
Plaintiff lives with her husband and three-year-old son. Id. at 804. She has a
driver’s license and is able to drive. Her mom helps her take care of her son on days that
he is not in school. Id. at 809. “I’m either at her house or she’s at my house.” Id. at 810.
Her mom cooks for him, picks him up, puts him in the car seat, and anything else that
requires lifting. Id. When Plaintiff is unable to get up and do anything, her mom takes
complete care of him. Id.
Plaintiff described her daily activities:
[I]t depends on the days that I have my son in school. I wake
up -- well, he wakes up and comes in my bed and I put the
TV on for him until I can physically feel well enough to get
out of bed, which is about an hour after he comes in, and then
we go downstairs and I make him oatmeal or cereal for
breakfast and then we lay down on his little couch and watch
his cartoons while he eats his breakfast, and then I get his
clothes for him and he now can put them on himself, so he
puts on his clothes. I help him with his shoes and then I take
him to school and then I generally come home and lay in the
recliner or in my bed and watch TV or that’s pretty much it,
watch TV. And then on the days that I do have him and he’s
not in school, it’s the same morning routine and I will either
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take him down to my parents’ house or my mom will come
up around 9:30 or 10:00 in the morning to help me with him,
and she will usually take him outside and we have a swing set
out back for him and they’ll play and I’ll just watch. And I
take naps generally.
Id. at 819-20. Her mom stays until around 6:30 p.m., when her husband gets home.
Id. at 820. When Plaintiff does not have her son, she sleeps during the day—usually
from whenever she falls asleep in the morning until five o’clock. Id. at 815.
Plaintiff is unable to cook meals that require standing for over ten minutes. Id. at
815. Her husband usually cooks and does most of the grocery shopping. Id. at 815-17.
Plaintiff is not able to clean or do laundry. Id. at 820-21. Generally, her mom or her
husband’s mom do both. Id. Plaintiff has a computer she uses for email and Facebook.
Id. at 821. She has to use a toilet chair because of the severe pain in her back. Id. at 815.
And, because Plaintiff is unable to lift her son into his car seat, she puts a stool in the car
so he can climb into the car and then into the car seat. Id. at 817.
Plaintiff estimated that she can sit for ten to fifteen minutes before she has to stand
up because of pain. Id. at 808. She can stand in one place for five to ten minutes before
she has to sit down. Id. But, she usually has to put her weight on her right side and she
sometimes leans up against something. Id. She can walk for fifteen to thirty minutes. Id.
B.

Medical Opinions
i.

Richard Donnini, D.O.

Plaintiff’s treating pain specialist, Dr. Donnini completed a functional capacity
evaluation on September 22, 2014. Id. at 1484-90. He began treating Plaintiff on
February 11, 2014 and sees her monthly. Id. at 1484. He diagnosed postlaminectomy
5

syndrome, lumbar region; lumbosacral neuritis, not otherwise specified; and other
chronic pain. Id. He indicated that Plaintiff’s symptoms include low back pain with
numbness and tingling in her left hip, thigh, lower leg, and foot. Id. She also exhibits a
significantly reduced range of motion, positive straight leg raise, and tenderness. Id. at
1485. Dr. Donnini opined Plaintiff’s condition and symptoms are severe and would
frequently interfere with her attention and concentration. Id. at 1486. She is prescribed
Cymbalta, amitriptyline, and Percocet, and her side effects include sedation and reduced
mental and physical alertness/function. Id.
Dr. Donnini further opined Plaintiff could sit for twenty minutes at one time for a
total of about four hours; stand for ten minutes at one time for a total of about four hours;
and walk for thirty minutes at one time for a total of less than two hours. Id. at 1487.
Plaintiff could not “get through an 8-hour day (with normal breaks) on a sustained basis
without lying down during the working day[.]” Id. at 1488. She can occasionally lift,
carry, push, and pull less than ten pounds. Id. She can occasionally reach and rarely
bend, squat, crawl, climb, stoop, crouch, or kneel. Id. at 1489. She cannot tolerate
exposure to unprotected heights or being around moving machinery. Id. She can
occasionally tolerate driving automotive equipment and exposure to marked temperature
changes, dust, fumes, gases, and noise. Id. at 1489-90. Plaintiff’s conditions,
impairments, or treatment would cause her to be absent from work three or more times
per month. Id. at 1490.
Dr. Donnini also added a summary of his disability evaluation in his treatment
notes: “Stated to a degree of medical certainty, and based upon her physical
6

examination[,] review of records[,] and her history, she is not capable of sustained
remunerative employment. I believe that she could probably work intermittently but
could not sustain an eight hour day five day week regimen without missing excessive
days of work and having difficulty completing a full day of work on a regular basis.” Id.
at 1482-83.
ii.

Amol Soin, M.D.

Dr. Soin, a pain specialist, only treated Plaintiff twice, December 20, 2013 and
January 7, 2014. Id. at 1290, 1286. Dr. Soin did not complete a specific assessment but
did provide his opinion in his treatment notes. He diagnosed thoracic/lumbrosacral
neuritis/radiculitis; postlaminectomy syndrome lumbar region; and lumbosacral
spondylosis without myelopathy. Id. at 1292. His physical exam of Plaintiff’s lower
lumbar spine revealed pain to palpation. Id. Further, “Facet loading was carried out
whereby pressure was placed on the paravertebral segments in the lower lumbar spine
while the patient twisted and it elicited pain. Finger to floor flexion with the knee
extended was less than 90 degrees and limited by pain and stiffness, extension to 30
degrees [and lateral bending to 25 degrees] was limited due to pain ….” Id. And,
Plaintiff’s straight leg raise was positive and elicited ipsilateral pain in the lower lumbar
spine. Id. He noted an EMG revealed chronic left L5 radiculopathy, and she had
symptoms of radiculopathy with pain traveling down her leg during his exam. Id..
Dr. Soin opined, Plaintiff “suffers from chronic pain that is causing
psychological[,] social, and physical impairment. [Plaintiff] has failed conservative care
including OTC medications, NSAIDS, home therapy, home exercise, lifestyle changes,
7

… and treatment by other [practitioners]. Radiological findings and History and Physical
[are] consistent with the listed diagnosis and confirm the pathology which requires
intervention. [Plaintiff] has filled out a pain diary to assess the perceived functional
improvement and VAS pain scores through the intervention phase.” Id. at 1293. He
found, “This pain we are treating is suggestive of radiculopathy as documented by axial
location with radiculopathy and documented suspicion [of] nerve root irritation causing
the radiculopathy.” Id.
III.

Standard of Review
The Social Security Administration provides Disability Insurance Benefits to

individuals who are under a “disability,” among other eligibility requirements. Bowen v.
City of New York, 476 U.S. 467, 470 (1986); see 42 U.S.C. § 423(a)(1). The term
“disability”—as defined by the Social Security Act—has specialized meaning of limited
scope. It encompasses “any medically determinable physical or mental impairment” that
precludes an applicant from performing a significant paid job—i.e., “substantial gainful
activity,” in Social Security lexicon. 42 U.S.C. § 423(d)(1)(A); see Bowen, 476 U.S. at
469-70.
Judicial review of an ALJ’s non-disability decision proceeds along two lines:
“whether the ALJ applied the correct legal standards and whether the findings of the ALJ
are supported by substantial evidence.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399,
406 (6th Cir. 2009); see Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir.
2007). Review for substantial evidence is not driven by whether the Court agrees or
disagrees with the ALJ’s factual findings or by whether the administrative record
8

contains evidence contrary to those factual findings. Gentry v. Comm’r of Soc. Sec., 741
F.3d 708, 722 (6th Cir. 2014); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir.
2007). Instead, the ALJ’s factual findings are upheld if the substantial-evidence standard
is met—that is, “if a ‘reasonable mind might accept the relevant evidence as adequate to
support a conclusion.’” Blakley, 581 F.3d at 407 (quoting Warner v. Comm’r of Soc.
Sec., 375 F.3d 387, 390 (6th Cir. 2004)). Substantial evidence consists of “more than a
scintilla of evidence but less than a preponderance ….” Rogers, 486 F.3d at 241
(citations and internal quotation marks omitted); see Gentry, 741 F.3d at 722.
The other line of judicial inquiry—reviewing the correctness of the ALJ’s legal
criteria—may result in reversal even when the record contains substantial evidence
supporting the ALJ’s factual findings. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647,
651 (6th Cir. 2009); see Bowen, 478 F.3d at 746. “[E]ven if supported by substantial
evidence, ‘a decision of the Commissioner will not be upheld where the SSA fails to
follow its own regulations and where that error prejudices a claimant on the merits or
deprives the claimant of a substantial right.’” Rabbers, 582 F.3d at 651 (quoting in part
Bowen, 478 F.3d at 746, and citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 546-47
(6th Cir. 2004)).
IV.

The ALJ’s Decision
As noted previously, it fell to ALJ Statum to evaluate the evidence connected to

Plaintiff’s application for benefits. She did so by considering each of the five sequential
steps set forth in the Social Security Regulations. See 20 C.F.R. § 404.1520. She
reached the following main conclusions:
9

Step 1:

Plaintiff has not engaged in substantial gainful employment since
December 29, 2012.

Step 2:

She has the severe impairments of degenerative disc disease of the
lumbosacral spine with residuals of multiple surgeries; sacroiliitis;
and asthma.

Step 3:

She does not have an impairment or combination of impairments that
meets or equals the severity of one in the Commissioner’s Listing of
Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1.

Step 4:

Her residual functional capacity, or the most she could do despite her
impairments, see Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 239
(6th Cir. 2002), consists of “sedentary work … subject to the
following limitations: (1) lift and carry ten pounds occasionally; (2)
walk for a total of two hours in an eight-hour workday; (3) sit for six
hours in an eight-hour workday; (4) no limitations pushing/pulling;
(5) occasionally climbing stairs or ramps; (6) no climbing ladders,
ropes, or scaffolds; (7) no greater than occasional balancing, stooping,
kneeling, and crouching; (8) no crawling; (9) no concentrated
exposure to extremes of heat, humidity, fumes, odors, dusts, gases, or
poor ventilation; and (10) simple, unskilled work.”

Step 4:

She is unable to perform any of her past relevant work.

Step 5:

She could perform a significant number of jobs that exist in the
national economy.

(Doc. #7, PageID #s 781-91). These main findings led the ALJ to ultimately conclude
that Plaintiff was not under a benefits-qualifying disability. Id. at 791.
V.

Discussion
Plaintiff contends that the ALJ failed to properly evaluate the treating physicians’

opinions, her pain complaints, and her credibility. The Commissioner maintains that
substantial evidence supports the ALJ’s consideration of the opinions of record,
Plaintiff’s subjective complaints, and her credibility.

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A.

Medical Opinions

Social Security Regulations require ALJs to adhere to certain standards when
weighing medical opinions. “Key among these is that greater deference is generally
given to the opinions of treating physicians than to those of non-treating physicians,
commonly known as the treating physician rule.” Rogers, 486 F.3d at 242 (citations
omitted). The rule is straightforward:
Treating-source opinions must be given “controlling weight”
if two conditions are met: (1) the opinion “is well-supported
by medically acceptable clinical and laboratory diagnostic
techniques”; and (2) the opinion “is not inconsistent with the
other substantial evidence in [the] case record.”
Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013) (quoting in part 20
C.F.R. § 404.1527(c)(2)); see Gentry, 741 F.3d at 723.
If the treating physician’s opinion is not controlling, “the ALJ, in determining how
much weight is appropriate, must consider a host of factors, including the length,
frequency, nature, and extent of the treatment relationship; the supportability and
consistency of the physician’s conclusions; the specialization of the physician; and any
other relevant factors.” Rogers, 486 F.3d at 242 (citing Wilson, 378 F.3d at 544).
The Regulations also require ALJs to provide “good reasons” for the weight
placed upon a treating source’s opinions. Wilson, 378 F.3d at 544. This mandatory
“good reasons” requirement is satisfied when the ALJ provides “specific reasons for the
weight placed on a treating source’s medical opinions.” Id. (quoting Soc. Sec. R. 96-2p,
1996 WL 374188, at *5 (Soc. Sec. Admin. July 2, 1996)). The goal is to make clear to

11

any subsequent reviewer the weight given and the reasons for that weight. Id.
Substantial evidence must support the reasons provided by the ALJ. Id.
In the present case, ALJ Statum observed that Dr. Donnini, Plaintiff’s treating pain
specialist, opined that Plaintiff “would be unable to engage in work activity on a regular
and continuing basis.” (Doc. #7, PageID #787) (citing Exhibit 18F). She then noted,
“The ultimate conclusion as to whether an individual satisfies the statutory definition of
‘disability’ is an issue that is reserved to the Commissioner of Social Security.” Id.
(citing Soc. Sec. R. 96-5p, 1996 WL 374183 (Soc. Sec. Admin. July 2, 1996); 20 C.F.R.
§ 404.1527). However, the fact that Dr. Donnini expressed an opinion on the ultimate
issue of Plaintiff’s disability status is not a valid reason to discount or ignore it. “The
pertinent regulation says that ‘a statement by a medical source that you are ‘disabled’ or
‘unable to work’ does not mean that we will determine that you are disabled.’ That’s not
the same thing as saying that such a statement is improper and therefore to be ignored....”
Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012) (internal citation omitted); see
Kalmbach v. Comm’r of Soc. Sec., No. 09-2076, 409 F. App’x 852, 861 (6th Cir. 2011)
(“the fact that the ultimate determination of disability, per se, is reserved to the
Commissioner, 20 C.F.R. § 404.1527(e) [§ 416.927(d)(1)], did not supply the ALJ with a
legitimate basis to disregard the physicians’ [opinions].”).
ALJ Statum concluded that Dr. Donnini’s opinion was not entitled to controlling
or deferential weight and, instead, assigned it “little weight.” (Doc. #7, PageID #s 78788). She acknowledged the first condition of the treating physician rule, finding that “Dr.

12

Donnini’s medical opinion is not supported by the medical record ….” Id. at 788.
However, she provides no further explanation or citation to the record.
ALJ Statum also addressed the second condition of the treating physician rule,
finding that Dr. Donnini’s opinion was “inconsistent with the physician’s treatment notes,
which consistently indicate that [Plaintiff] experienced good pain relief from her pain
medications, as well as increased activity.” Id. at 787 (citations omitted). Further, “it is
also inconsistent with the record that reveals unremarkable findings throughout.” Id. at
787-88 (citations omitted).
The ALJ’s conclusion that Dr. Donnini’s treatment notes are inconsistent with his
opinion is not supported by substantial evidence. The Social Security Administration
defines “not inconsistent:” “This is a term used to indicate that a well-supported treating
source medical opinion need not be supported directly by all of the other evidence (i.e., it
does not have to be consistent with all the other evidence) as long as there is no other
substantial evidence in the case record that contradicts or conflicts with the opinion.”
Soc. Sec. R. 96-2p, 1996 WL 374188, at *3. Dr. Donnini’s treatment notes do not
conflict with or contradict his opinion. To the contrary, he consistently documents
objective evidence of tenderness, pain, and limited range of motion in Plaintiff’s lumbar
spine. For example, in February 2014, upon exam of her lumbar spine, he observed,
“Accentuation of the normal lordosis, moderate. Tenderness in midline entire lumbar
spine – moderate. … Moderate limitation of range of motion with pain.” (Doc. #7,
PageID #1455) Further, he noted, “light touch in the lower extremities on the left
hypoesthesia in a L5 distribution, 50% of normal.” Id. at 1455. Dr. Donnini noted in
13

April 2014, “B/L [sacroiliac (SI)] joint tenderness. Gaenslen’s test pain in SI joint
bilateral.” Id. at 1446.
Dr. Donnini further explains in his notes that Plaintiff’s “treatment history is very
extensive and she’s tried multiple different treatment options, including medications,
injections, therapy and massage.” Id. at 1429. He administered several different
treatment options—all with limited success. For example, he notes on June 4, 2014 that
Plaintiff had two left sacroiliac joint injections. Id. at 1433. The first was incredibly
successful and reduced her left hip pain 100%. Id. Unfortunately, the second provided
no relief. Id. Plaintiff also underwent a lumbar spinal cord stimulator trial in May 2014.
Id. at 1436. It made her pain worse. Id. at 1433. Similarly, in July 2014, Plaintiff
reported that her pain had increased and she was not sleeping as well. Id. at 1429.
Although Flexeril helped her sleep, she did not like taking it every night. Id.
ALJ Statum’s conclusion that Dr. Donnini’s opinion is “inconsistent with the
record that reveals unremarkable findings …” is similarly unsupported. Id. at 787-88
(citations omitted). The ALJ’s summary of “unremarkable findings” come largely from
the notes of Plaintiff’s primary-care physician, Dr. Rupp. However, Dr. Rupp’s notes
contain repeated reports of back pain as well as additional medical problems. For
example, on June 10, 2013, Dr. Rupp noted that Plaintiff’s left anterior superior iliac
spine was painful to palpation. Id. at 1321. Perhaps because Dr. Rupp is not a specialist,
he referred Plaintiff to physical medicine rehab. Id. He noted in September 2012 that
Plaintiff reported worsening back pain and that she sees Dr. Shababian for treatment. Id.
at 1336. The majority of his notes from that day, however, focus on treatment of
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Plaintiff’s GERD. Id. at 1336-38. Similarly, in May 2013, Dr. Rupp indicated that
Plaintiff has back pain, is on chronic narcotics, and sees a neurosurgeon for treatment.
Id. at 1324. Again, in addition to back pain, Dr. Rupp refers to treatment of GERD and
depression. Id. at 1323-25.
ALJ’s Statum’s selective reading of the records constitutes error: “[A]
substantiality of evidence evaluation does not permit a selective reading of the record.
‘Substantiality of the evidence must be based upon the record taken as a whole.
Substantial evidence is not simply some evidence, or even a great deal of evidence.
Rather, the substantiality of evidence must take into account whatever in the record fairly
detracts from its weight.’” Brooks v. Comm’r of Soc. Sec., 531 F. App’x 636, 641 (6th
Cir. 2013) (quoting, in part, Garner v. Heckler, 745 F.2d 383, 388 (6th Cir. 1984)
(internal citations and quotation marks omitted).
Further, ALJ Statum ignores that Dr. Soin’s treatment notes support Dr. Donnini’s
opinion. For example, he noted that palpation of her thoracic spine revealed paraspinal
muscle tenderness. (Doc. #7, PageID #1292). And, his physical exam of Plaintiff’s
lower lumbar spine revealed pain to palpation. Id. Further, “Facet loading was carried
out whereby pressure was placed on the paravertebral segments in the lower lumbar spine
while the patient twisted and it elicited pain. Finger to floor flexion with the knee
extended was less than 90 degrees and limited by pain and stiffness, extension to 30
degrees [and lateral bending to 25 degrees] was limited due to pain ….” Id. And,
Plaintiff’s straight leg raise was positive and elicited ipsilateral pain in the lower lumbar
spine. Id. She also had symptoms of radiculopathy with pain traveling down the lower
15

extremity during the physical exam, and an EMG revealed chronic left L5 radiculopathy.
Id.
However, even if Dr. Donnini’s opinion is not entitled to controlling weight, ALJ
Statum’s review is not complete: If a treating physician’s opinion does not meet either
condition of the treating physician rule, it “means only that the opinion is not entitled to
‘controlling weight,’ not that the opinion should be rejected. Treating source medical
opinions are still entitled to deference and must be weighed using all of the factors
provided in 20 C.F.R. §§ 404.1527 and 416.927.” Soc. Sec. R. 96-2p, 1996 WL 374188,
at *4.
ALJ Statum failed to acknowledge any of the factors. For example, she did not
recognize Dr. Donnini’s treatment relationship with Plaintiff. See 20 C.F.R. §
404.1527(c)(2) (“Generally, we give more weight to medical opinions from your treating
sources, since these sources are likely to be the medical professionals most able to
provide a detailed, longitudinal picture of your 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, such as consultative
examinations or brief hospitalizations.”). Dr. Donnini began treating Plaintiff in
February 2014, and he saw Plaintiff once or twice a month until he provided his opinion
in September 2014. (Doc. #7, PageID #1453, 1490); see 20 C.F.R. § 404.1527(c)(2)(i)
(“Generally, the longer a treating source has treated you and the more times you have
been seen by a treating source, the more weight we will give to the source's medical
opinion.”). As explained above, Dr. Donnini’s treatment notes and Dr. Soin’s notes are
16

consistent with his opinion. See 20 C.F.R. § 404.1527(c)(4) (“Generally, the more
consistent a medical opinion is with the record as a whole, the more weight we will give
to that medical opinion.”). Additionally, ALJ Statum failed to recognize that Dr. Donnini
is a pain specialist. See id. § 404.1527(c)(5) (“We generally give more weight to the
medical opinion of a specialist about medical issues related to his or her area of specialty
than to the medical opinion of a source who is not a specialist.”).
By ignoring the factors, ALJ Statum did not apply the correct legal criteria and
failed to give Dr. Donnini the deference he deserved as a treating physician. See Rogers,
486 F.3d at 242 (citation omitted) (“[I]n all cases there remains a presumption, albeit a
rebuttable one, that the opinion of a treating physician is entitled to great deference, its
non-controlling status notwithstanding.”). This constitutes error. See Bowen, 478 F.3d at
746 (“[A] decision of the Commissioner will not be upheld where the SSA fails to follow
its own regulations and where that error prejudices a claimant on the merits or deprives
the claimant of a substantial right.” (citing Wilson, 378 F.3d at 546-47)).
Accordingly, for the above reasons, Plaintiff’s Statement of Errors is well taken.1
B.

Remand

A remand is appropriate when the ALJ’s decision is unsupported by substantial
evidence or when the ALJ failed to follow the Administration’s own regulations and that
shortcoming prejudiced the plaintiff on the merits or deprived the plaintiff of a substantial
right. Bowen, 478 F.3d at 746. Remand may be warranted when the ALJ failed to
1

In light of the above discussion, and the resulting need to remand this case, an in-depth analysis of
Plaintiff’s other challenges to the ALJ’s decision is unwarranted.

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provide “good reasons” for rejecting a treating medical source’s opinions, see Wilson,
378 F.3d at 545-47; failed to consider certain evidence, such as a treating source’s
opinions, see Bowen, 478 F.3d at 747-50; failed to consider the combined effect of the
plaintiff’s impairments, see Gentry, 741 F.3d at 725-26; or failed to provide specific
reasons supported by substantial evidence for finding the plaintiff lacks credibility, see
Rogers, 486 F.3d at 249.
Under sentence four of 42 U.S.C. § 405(g), the Court has authority to affirm,
modify, or reverse the Commissioner’s decision “with or without remanding the cause for
rehearing.” Melkonyan v. Sullivan, 501 U.S. 89, 99 (1991). Consequently, a remand
under sentence four may result in the need for further proceedings or an immediate award
of benefits. E.g., Blakley, 581 F.3d at 410; Felisky v. Bowen, 35 F.3d 1027, 1041 (6th
Cir. 1994). The latter is warranted where the evidence of disability is overwhelming or
where the evidence of disability is strong while contrary evidence is lacking. Faucher v.
Sec’y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994).
A judicial award of benefits is unwarranted in the present case because the
evidence of disability is not overwhelming and the evidence of disability is not strong
while contrary evidence is lacking. However, Plaintiff is entitled to an Order remanding
this case to the Social Security Administration pursuant to sentence four of §405(g) due
to the problems discussed above. On remand, the ALJ should be directed to evaluate the
evidence of record, including the medical source opinions, under the applicable legal
criteria mandated by the Commissioner’s Regulations and Rulings and by case law; and
to evaluate Plaintiff’s disability claim under the required five-step sequential analysis to
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determine anew whether Plaintiff was under a disability and whether her application for
Disability Insurance Benefits should be granted.
IT IS THEREFORE ORDERED THAT:
1.

The Commissioner’s non-disability finding is vacated;

2.

No finding is made as to whether Plaintiff Kristin N. Bartunek was under a
“disability” within the meaning of the Social Security Act;

3.

This matter is REMANDED to the Social Security Administration under
sentence four of 42 U.S.C. § 405(g) for further consideration consistent
with this Decision and Entry; and

4.

The case is terminated on the Court’s docket.

Date: August 24, 2017

s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge

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