Hardin v. Commissioner of Social Security

Filing 11

REPORT AND RECOMMENDATION 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 8/17/2017. Signed by Magistrate Judge Michael J. Newman on 8/3/2017. (srb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
PAULA R. HARDIN,
Case No. 3:16-cv-404
Plaintiff,
vs.
COMMISSIONER OF SOCIAL SECURITY,

District Judge Thomas M. Rose
Magistrate Judge Michael J. Newman

Defendant.

REPORT AND RECOMMENDATION1 THAT: (1) THE ALJ’S NON-DISABILITY
FINDING BE FOUND UNSUPPORTED BY SUBSTANTIAL EVIDENCE, AND
REVERSED; (2) THIS MATTER BE REMANDED TO THE COMMISSIONER UNDER
THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR 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 Supplemental Security Income (“SSI”).

This case is before the Court upon

Plaintiff’s Statement of Errors (doc. 8), the Commissioner’s memorandum in opposition (doc. 9),
Plaintiff’s reply (doc. 10), the administrative record (docs. 6),2 and the record as a whole.
I.
A.

Procedural History

Plaintiff filed for SSI on October 27, 2009 (PageID 473-75), alleging disability as a result
of a number of alleged impairments including, inter alia, left knee arthritis, lumbar and cervical
spine degenerative disc disease, left rotator cuff pain, and polysubstance abuse. PageID 60.

1

Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendation.
2
Hereafter, citations to the electronically-filed administrative record will refer only to the PageID
number.

After an initial denial of her application, Plaintiff received a hearing before ALJ Mary
Withum on November 16, 2011. PageID 89-127. ALJ Withum issued a written decision on
February 4, 2012 finding Plaintiff not disabled. PageID 217-31. The case was subsequently
remanded back to the ALJ by the Appeals Council on August 1, 2012. PageID 240-44.
On remand, Plaintiff received a second hearing before ALJ Withum on May 7, 2013.
PageID 128-63. ALJ Withum issued a second written decision on May 31, 2013, again finding
Plaintiff not disabled. PageID 249-62. Thereafter, the case was again remanded back to the ALJ
by the Appeals Council. PageID 271-73.
After the second remand by the Appeals Council, Plaintiff received a third administrative
hearing on January 21, 2015, this time before ALJ Elizabeth Motta. PageID 165-207. ALJ
Motta issued a written decision on May 26, 2015 finding Plaintiff not disabled. PageID 58-74.
Specifically, ALJ Motta found at Step 5 that, based upon Plaintiff’s residual functional capacity
(“RFC”) to perform a reduced range of light work,3 “there are jobs that exist in significant
numbers in the national economy that [Plaintiff] can perform[.]” PageID 66-73.
The Appeals Council denied Plaintiff’s request for review, making the ALJ Motta’s nondisability finding the final administrative decision of the Commissioner. PageID 47-49. 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 ALJ Motta’s (hereinafter referred to
as “the ALJ”) decision (PageID 60-74), Plaintiff’s Statement of Errors (doc. 8), the
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.” 20 C.F.R. § 416.967(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. § 416.967(a).
2
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Commissioner’s memorandum in opposition (doc. 9), and Plaintiff’s reply memorandum (doc.
10). 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 742,74546 (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.

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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. § 416.920(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. § 416.920(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, namely the opinions of treating physician Charles Russell, M.D., examining
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psychologist Giovanni Bonds, Ph.D., and record-reviewing physician Elizabeth Das, M.D. Doc.
8 at PageID 1449-54. Finding error in the ALJ’s weighing of Dr. Russell’s opinion concerning
Plaintiff’s physical limitations, as well as the weighing of Dr. Das’s opinion, the undersigned
does not address the merits of the ALJ’s assessment of Dr. Bonds’s opinion, or Dr. Russell’s
opinion concerning Plaintiff’s mental limitations. Instead, on remand, the undersigned would
direct the ALJ to reconsider the entire case anew in determining Plaintiff’s RFC -- including a
new evaluation of medical source opinions in accordance with regulatory requirements and
binding case law, as well as a re-evaluation of Plaintiff’s credibility in light of the record
evidence, including objective imaging findings.
With regard to the weighing of opinion evidence, until March 27, 2017, “the
Commissioner’s regulations [which 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. § 416.927(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,
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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. § 416.927(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. § 416.927(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).
On February 8, 2010, Dr. Das opined that Plaintiff could frequently lift 10 pounds and
occasionally lift 20 pounds; stand and/or walk two hours per workday; and sit for six hours per
workday.

PageID 933-40.

It is not clear from the record exactly what records Dr. Das

specifically reviewed, but it is undisputed that Dr. Das never reviewed: (1) a lumbar spine MRI
taken on May 12, 2011 noting spondylitic spur along with disc protrusion causing moderate
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. § 416.927. Id.
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nerve root compromise at L5-S1 (PageID 1210); and (2) a left shoulder MRI taken July 7, 2011
revealing a “high suspicion” of a subtle labral tear, as well as partial acromioplasty and partial
resection of the AC joint” (PageID 1398).

The ALJ gave Dr. Das’s opinion “significant

weight[.]” PageID 70-71.
The Court finds reversible error in the ALJ’s analysis of Dr. Das’s opinion.
Significantly, the ALJ failed to acknowledge that Dr. Das had no opportunity to review the
aforementioned objective evidence regarding Plaintiff’s lower spine and left shoulder. PageID
70-71.

While opinions of record-reviewers “can be substantial evidence ‘[i]n appropriate

circumstances’ to discount the opinion of examining and treating sources[,]” the record-reviewer
must generally have had “access to the entire body of medical evidence.” Kaylor v. Astrue, No.
08-415-GWU, 2009 WL 2473630 at *5 (E.D. Ky. Aug. 11, 2009); see also Ward v. Astrue, No.
09-199-GWU, 2010 WL 1038198, at *3 (E.D. Ky. Mar. 18, 2010).
Here, Dr. Das’s opinion was given without the benefit of the entire record, particularly
the significant imaging findings noted above. PageID 934-40. Therefore, such opinion cannot
provide substantial evidence upon which an ALJ can base a non-disability finding -- particularly
where the ALJ provides no explanation as to whether and how later acquired objective imaging
impacts the weight accorded the record-reviewer’s opinion. Cf. Moody v. Comm’r of Soc. Sec.,
No. 14-CV-224, 2016 WL 1729579, at *5 (S.D. Ohio Feb. 5, 2016); Washington v. Comm'r of
Soc. Sec., No. 3:15-CV-367, 2016 WL 6694199, at *5 (S.D. Ohio Nov. 15, 2016), report and
recommendation adopted sub nom. Washington v. Colvin, No. 3:15-CV-367, 2016 WL 7494887
(S.D. Ohio Dec. 30, 2016).
With regard to treating physician opinions, on August 21, 2012, Dr. Russell offered an
opinion regarding Plaintiff’s physical work-related limitations, as well as a separate opinion
regarding her work-related limitations resulting from the combined effect of Plaintiff’s physical
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and mental impairments. PageID 1304-18. With regard to physical limitations, Dr. Russell
opined that Plaintiff could occasionally lift and carry five pounds and frequently lift and carry
one pound; and stand, walk and sit for eight hours per workday, for a total of two hours without
interruption. PageID 1302-08.
With regard to limitations arising from the combined effect of Plaintiff’s physical and
mental impairments, Dr. Russell concluded that Plaintiff was unable to withstand the pressure of
meeting normal standards of work productivity and accuracy without significant risk of
decompensation or worsening of her impairments; behave in an emotionally stable manner;
demonstrate reliability; complete a normal workday and week without interruption from
symptoms and perform at a consistent pace without unreasonable numbers and length or rest
periods; respond appropriately to changes in the work setting; get along with co-workers without
unduly distracting them or exhibiting behavior extremes; work in coordination with, or in
proximity to, others without being unduly distracted; and accept instructions and respond
appropriately to criticism from supervisors. Doc. 1309-17. The ALJ gave Dr. Russell’s opinions
minimal to no weight. PageID 72-73.
Initially, the Court notes that ALJ Motta failed to mention the concept of “controlling
weight” when analyzing Dr. Russell’s opinions, and further failed to specifically decline to give
them controlling weight. PageID 72-73; 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). Such failure is error. See Martin v. Colvin, 207 F. Supp. 3d 782, 789
(S.D. Ohio 2016).
ALJ Motta did find that Dr. Russell’s opinion was not supported by the purported “lack
of significant objective or clinical findings concerning the shoulder, or any other area for that
8

matter.” PageID 72. However, given the July 7, 2011 MRI results (PageID 1398), the May 2011
L5-S1 findings of disc protrusion causing moderate nerve root compromise, and Dr. Russell’s
finding of decreased and painful range of motion in Plaintiff’s left shoulder (PageID 1306), the
ALJ’s conclusion in this regard is unsupported by substantial evidence.

It appears to the

undersigned that the ALJ minimized these objective and clinical findings by inappropriately
interpreting the severity of raw medical data, a task the ALJ is not entitled to perform. See
Martin, 207 F. Supp. at 791.
Based upon all of the foregoing, the undersigned concludes that the ALJ’s non-disability
finding is unsupported by substantial evidence and should be reversed.
IV.
When, as here, the ALJ’s non-disability determination is unsupported by substantial
evidence, the Court must determine whether to reverse and remand the matter for rehearing, or to
reverse and order an award of benefits. The Court has authority to affirm, modify or reverse the
Commissioner’s decision “with or without remanding the cause for rehearing.” 42 U.S.C.
§ 405(g); Melkonyan v. Sullivan, 501 U.S. 89, 100 (1991). Generally, benefits may be awarded
immediately “only if all essential factual issues have been resolved and the record adequately
establishes a plaintiff’s entitlement to benefits.” Faucher v. Sec’y of Health & Human Servs., 17
F.3d 171, 176 (6th Cir. 1994); see also Abbott v. Sullivan, 905 F.2d 918, 927 (6th Cir. 1990);
Varley v. Sec’y of Health & Human Servs., 820 F.2d 777, 782 (6th Cir. 1987). In this instance,
evidence of disability is not overwhelming, and remand for further proceedings -- as specifically
set forth above -- is proper.
V.
IT IS THEREFORE RECOMMENDED THAT: (1) the Commissioner’s nondisability finding be found unsupported by substantial evidence, and REVERSED; (2) this
9

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.

Date:

August 3, 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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