Dunham v. Commissioner of Social Security

Filing 14

REPORT AND RECOMMENDATIONS THAT: (1) THAT 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. Objections to R&R due by 11/3/2017. Signed by Magistrate Judge Michael J. Newman on 10/20/2017. (srb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DAVID L. DUNHAM,
Plaintiff,

Case No. 3:16-cv-414

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”).

This case is before the Court upon

Plaintiff’s Statement of Errors (doc. 8), the Commissioner’s memorandum in opposition (doc.
12), Plaintiff’s reply (doc. 13), the administrative record (doc. 6), and the record as a whole.2
I.
A.

Procedural History

Plaintiff filed an application for DIB asserting disability as of October 10, 2011 as a
result of a number of impairments including, inter alia, degenerative disc disease. PageID 47.

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 his application, Plaintiff received a hearing before ALJ Eric
Anschuetz on June 12, 2015. PageID 60-107. The ALJ issued a written decision on August 17,
2015 finding Plaintiff not disabled. PageID 45-55. Specifically, the ALJ found at Step Four
that, based upon Plaintiff’s residual functional capacity (“RFC”) to perform a reduced range of
light work,3 he “was capable of performing past relevant work as an Insurance Sales Agent or
Fund Raising Director.” PageID 54-55.
Thereafter, the Appeals Council denied review on August 3, 2016, making the ALJ’s
non-disability finding the final administrative decision of the Commissioner. PageID 30-33. 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 45-55),
Plaintiff’s Statement of Errors (doc. 8), the Commissioner’s memorandum in opposition (doc.
12), 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
the correct legal criteria. 42 U.S.C. § 405(g); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 745-

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).
3

2

46 (6th Cir. 2007). In performing this review, the Court must consider the record as a whole.
Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978).
Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). When
substantial evidence supports the ALJ’s denial of benefits, that finding must be affirmed, even if
substantial evidence also exists in the record upon which the ALJ could have found Plaintiff
disabled. Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Thus, the ALJ has a “‘zone of
choice’ within which he [or she] can act without the fear of court interference.” Id. at 773.
The second judicial inquiry -- reviewing the correctness of the ALJ’s legal analysis -may result in reversal even if the ALJ’s decision is supported by substantial evidence in the
record. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009). “[A] decision of the
Commissioner will not be upheld where the [Social Security Administration] fails to follow its
own regulations and where that error prejudices a claimant on the merits or deprives the claimant
of a substantial right.” Bowen, 478 F.3d at 746.
B.

“Disability” Defined

To be eligible for disability benefits, a claimant must be under a “disability” as defined
by the Social Security Act. 42 U.S.C. § 423(d)(1)(A). Narrowed to its statutory meaning, a
“disability” includes physical and/or mental impairments that are both “medically determinable”
and severe enough to prevent a claimant from (1) performing his or her past job and (2) engaging
in “substantial gainful activity” that is available in the regional or national economies. Id.
Administrative regulations require a five-step sequential evaluation for disability
determinations. 20 C.F.R. § 404.1520(a)(4). Although a dispositive finding at any step ends the
ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), the complete sequential
review poses five questions:

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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 his Statement of Errors, Plaintiff argues that the ALJ failed to properly: (1) weigh the
opinions of medical sources, including the opinion of his treating physician Raymond Luna,
M.D.; (2) weigh the opinions of the Agency’s consultants; (3) consider Plaintiff’s obesity and
non-exertional limits; (4) explain his credibility findings; and (5) reflect all of Plaintiff’s
impairments in the RFC. Doc. 8 at PageID 714-26. Finding merit to Plaintiff’s first argument,
the undersigned does not address the merits of Plaintiff’s other 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
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
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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).
After treaters, “[n]ext in the hierarchy are examining physicians and psychologists, who
often see and examine claimants only once.” Snell, 2013 WL 372032, at *9.
Record reviewers are afforded the least deference and these “non-examining physicians’
opinions are on the lowest rung of the hierarchy of medical source opinions.” Id. Put simply,
“[t]he regulations provide progressively more rigorous tests for weighing opinions as the ties
between the source of the opinion and the individual [claimant] become weaker.” Id. (citing
SSR 96-6p, 1996 WL 374180, at *2 (July 2, 1996)). In the absence of a controlling treating
source opinion, an ALJ must “evaluate all medical opinions” with regard to the factors set forth
in 20 C.F.R. § 404.1527(c), i.e., length of treatment history; consistency of the opinion with
other evidence; supportability; and specialty or expertise in the medical field related to the
individual’s impairment(s). Walton v. Comm’r of Soc. Sec., No. 97-2030, 1999 WL 506979, at
*2 (6th Cir. June 7, 1999).

5

In this case, Dr. Luna treated Plaintiff beginning in June 2013 and concluded that he
suffers from severe pain; cannot sit or stand more than 30 minutes at a time; can lift no more
than 5 pounds occasionally; can never bend or stoop; needs to elevate his legs at or above the
waist occasionally during an eight-hour workday; and would be off task due to choric pain and
side effects for 20% or more of a typical workday. PageID 707-08. The ALJ gave Dr. Luna’s
opinion:
little weight as it is nothing more than check-off list questionnaire
provided at the request of the claimant’s representative. Further, there is
no explanation for Dr. Luna’s reasoning for his assessment of the
claimant’s limitations and appear to be simply a restatement of the
claimant’s subjective allegations. Moreover, Dr. Luna’s treatment notes
do not support this residual functional capacity, especially concerning Dr.
Luna’s assertion that the claimant lacks the ability to ambulate effectively.
The claimant testified he lives in his mother’s basement and must traverse
steps several times a day. He drives to the gym every day and
occasionally goes grocery shopping. Most importantly, this opinion is not
consistent with the other medical evidence of record.
PageID 52. The Court finds error in the ALJ’s analysis.
Initially, the Court notes that the ALJ erred by failing to mention or specifically analyze
whether Dr. Luna’s opinion is entitled to controlling weight, i.e., whether the opinion is
“supported by medically acceptable clinical and laboratory diagnostic techniques” and whether
the opinion is consistent “with the other substantial evidence in [the] case record.’” LaRiccia,
549 F. App’x at 385. Such failure amounts to error, see Aytch v. Comm’r of Soc. Sec., No. 3:13cv-135, 2014 WL 4080075, at *4 (S.D. Ohio Aug. 19, 2014), because the lack of explanation
regarding the “controlling weight [analysis] hinders a meaningful review of whether the ALJ
properly applied the treating-physician rule that is at the heart of this regulation.” Gayheart v.
Comm’r of Soc. Sec., 710 F.3d 365, 377 (6th Cir. 2013) (citations omitted). Any error in this
regard can be harmless if the ALJ “has otherwise met the regulation’s goal.” Id. at 380. Here,

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however, the regulation’s goal is not met because none of the specific reasons set forth by the
ALJ address with any specificity the controlling weight factors.
Insofar as the ALJ found Dr. Luna’s opinion inconsistent with the evidence of record or
unsupported by his treatment notes, the ALJ fails to cite to any specific treatment note or other
part of the record in support of such conclusory contention. Such failure is error. See Friend v.
Comm’r of Soc. Sec., 375 F. App’x 543, 551–52 (6th Cir. 2010) (holding that “it is not enough to
dismiss a treating physician’s opinion as ‘incompatible’ with other evidence of record” in the
absence of “some effort to identify the specific discrepancies and to explain why it is the treating
physician’s conclusion” is accorded lesser weight). Further, while the ALJ appears to have
relied on Plaintiff’s daily activities to undermine Dr. Luna’s opinion -- i.e., climbing steps in his
mother’s home, driving, and occasionally grocery shopping -- the ALJ did not conclude, and the
record does not support the conclusion, that Plaintiff could do these activities on a sustained
basis. See Gayheart, 710 F.3d at 377.
Insofar as the ALJ rejected Dr. Luna’s opinion because it was provided on a “check-off
list” that provides no explanation for the opinion provided, such critique addresses only the
“supportability” factor set forth in 20 C.F.R. § 404.1527(c)(3) -- which states that, “[t]he better
an explanation a source provides for a medical opinion, the more weight we will give that
medical opinion.” While a proper critique under the regulations, such factor is relevant only
after the ALJ provides good reasons for “not giv[ing] the treating source’s medical opinion
controlling weight” -- a required step the ALJ failed to address in this case. 20 C.F.R. §
1527(c)(2); see also Gayheart, 710 F.3d at 376 (noting that certain factors are “properly applied
only after the ALJ has determined that a treating-source opinion will not be given controlling
weight”).

7

The undersigned concludes that the ALJ failed to conduct a controlling weight analysis in
analyzing Dr. Luna’s opinion and, therefore, the ALJ’s non-disability finding should be reversed.
IV.
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); Mowery v. Heckler,
771 F.2d 966, 973 (6th Cir. 1985).

In this case, evidence of disability is not overwhelming.

Therefore, a remand for further proceedings is proper.
V.
IT IS THEREFORE RECOMMENDED THAT:
1.

The Commissioner’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.

Date: October 20, 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).