Leininger v. Commissioner of Social Security

Filing 12

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 1/19/2018. Signed by Magistrate Judge Michael J. Newman on 1/5/18. (kma)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
ROSALIND Y. LEININGER,
Plaintiff,

Case No. 3:16-cv-435

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. 8), the Commissioner’s memorandum in opposition (doc.
10), Plaintiff’s reply (doc. 11), the administrative record (doc. 6),2 and the record as a whole.
I.
A.

Procedural History

Plaintiff filed an application for DIB asserting disability as of October 13, 2012. PageID
232-33. Plaintiff claims disability as a result of multiple impairments including, inter alia,
fibromyalgia, bipolar disorder and anxiety. PageID 42.

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.

Plaintiff originally filed an application for DIB in October 2010. ALJ Elizabeth A. Motta
issued a decision on October 12, 2012 finding Plaintiff not disabled. PageID 40. However,
because Plaintiff has produced new and material evidence documenting a significant change in
her condition, ALJ Motta’s previous RFC determination is not binding. Id.
In December 2012, Plaintiff filed a second, new application for DIB, again alleging
disability as of October 13, 2012. Id. After an initial denial of her application, Plaintiff received
a hearing before ALJ Gregory G. Kenyon on June 24, 2015. PageID 61-96. ALJ Kenyon
(hereafter “ALJ”) issued a written decision on May 28, 2015 finding Plaintiff not disabled.
PageID 40-54. Specifically, the ALJ 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 53.
Thereafter, the Appeals Council denied review on August 16, 2016, making the ALJ’s
non-disability finding the final administrative decision of the Commissioner. PageID 30-32.
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 40-54),
Plaintiff’s Statement of Errors (doc. 8), the Commissioner’s memorandum in opposition (doc.
10), and Plaintiff’s reply (doc. 11). The undersigned incorporates all of the foregoing and sets
forth the facts relevant to this decision herein.
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 § 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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II.
A.

Standard of Review

The Court’s inquiry on a Social Security appeal is to determine (1) whether the ALJ’s
non-disability finding is supported by substantial evidence, and (2) whether the ALJ employed
the correct legal criteria. 42 U.S.C. § 405(g); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 74546 (6th Cir. 2007). In performing this review, the Court must consider the record as a whole.
Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978).
Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). When
substantial evidence supports the ALJ’s denial of benefits, that finding must be affirmed, even if
substantial evidence also exists in the record upon which the ALJ could have found Plaintiff
disabled. Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Thus, the ALJ has a “‘zone of
choice’ within which he [or she] can act without the fear of court interference.” Id. at 773.
The second judicial inquiry -- reviewing the correctness of the ALJ’s legal analysis -may result in reversal even if the ALJ’s decision is supported by substantial evidence in the
record. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009). “[A] decision of the
Commissioner will not be upheld where the [Social Security Administration] fails to follow its
own regulations and where that error prejudices a claimant on the merits or deprives the claimant
of a substantial right.” Bowen, 478 F.3d at 746.
B.

“Disability” Defined

To be eligible for disability benefits, a claimant must be under a “disability” as defined
by the Social Security Act. 42 U.S.C. § 423(d)(1)(A). Narrowed to its statutory meaning, a
“disability” includes physical and/or mental impairments that are both “medically determinable”

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and severe enough to prevent a claimant from (1) performing his or her past job and (2) engaging
in “substantial gainful activity” that is available in the regional or national economies. Id.
Administrative regulations require a five-step sequential evaluation for disability
determinations. 20 C.F.R. § 404.1520(a)(4). Although a dispositive finding at any step ends the
ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), the complete sequential
review poses five questions:
1.

Has the claimant engaged in substantial gainful activity?;

2.

Does the claimant suffer from one or more severe impairments?;

3.

Do the claimant’s severe impairments, alone or in combination, meet
or equal the criteria of an impairment set forth in the Commissioner’s
Listing of Impairments (the “Listings”), 20 C.F.R. Subpart P,
Appendix 1?;

4.

Considering the claimant’s RFC, can he or she perform his or her past
relevant work?; and

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 the treating source opinions of Lara Ilyas, M.D.; Nicole Y. Turkson, M.D.4; and Ellen

Although the ALJ refers to Dr. Turkson as a “treating physician,” he notes that she saw Plaintiff
only one time. PageID 51. It is unclear whether he analyzed her as a treating physician. See, e.g.,
PageID 51.
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W. Ballerene, M.D.5; (2) improperly weighing non-examining source opinions; (3) improperly
assessing her Global Assessment of Functioning (“GAF”) score; (4) deferring to the mental
health findings of ALJ Motta; and (5) improperly assessing her credibility. Doc. 8 at PageID
788-99. Finding merit to Plaintiff’s first alleged error -- specifically regarding Dr. Ilyas -- 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
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

The ALJ’s lengthy, detailed opinion -- read as a whole -- adequately sets forth good reasons as
to why the opinion of Dr. Ballerene was not entitled to controlling or deferential weight. See PageID 5152. Accordingly, the undersigned finds the ALJ’s analysis of her opinion supported by substantial
evidence. The Court makes no finding regarding the ALJ’s analysis of Dr. Turkson’s analysis.
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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).6
Closely associated with the treating physician rule is the “good reasons rule,” which
“require[s] the ALJ to always give good reasons in [the] notice of determination or decision for
the weight given to the claimant's treating source’s opinion.” Blakley, 581 F.3d at 406-07.
“Those good reasons must be ‘supported by the evidence in the case record, and must be
sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to
the treating source's medical opinion and the reasons for that weight.’” Id.
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).

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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IV.
Dr. Ilyas began treating Plaintiff in September 2013 for, among other conditions,
fibromyalgia and chronic pain. PageID 539-40. On April 3, 2014, Dr. Ilyas opined that Plaintiff
could stand and/or walk for two hours in an eight-hour workday and for 15 minutes without
interruption; could sit for six hours total in an eight-hour workday and for one hour without
interruption; could lift a maximum of five pounds; was extremely limited in her ability to handle;
and was markedly limited in her ability to push/pull, bend and reach. PageID 509-10. The ALJ
gave Dr. Ilyas’s opinion “little weight” finding:
The level of limitation assessed by Dr. Ilyas is wholly unsupported by the record.
[Plaintiff’s] fibromyalgia complaints have been mild, and the x-rays of her
kneews at exhibit 5F were negative. The level of treatment she has received has
also been entirely conservative and does not support the level of limitation
advocated by Dr. Ilyas.
PageID 51. Initially, the Court finds that the ALJ erred by failing to specifically analyze the §
404.1527(c)(2) controlling weight factors, i.e., whether Dr. Ilyas’s opinion was “well-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 384. Such failure constitutes reversible error, see Aytch v. Comm’r of Soc. Sec., No. 3:13-cv135, 2014 U.S. Dist. LEXIS 115119, *1, at *14 (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).
Even assuming, arguendo, that the ALJ conducted the controlling weight test -- which
the undersigned concludes he did not -- the undersigned further finds that the ALJ gave only
conclusory reasons as to the ultimate weight accorded. Specifically, while the ALJ found Dr.

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Ilyas’s opinion was “wholly unsupported by the record,” the ALJ fails to cite any specific
treatment note or other part of the record in support of such conclusory contention. Such
omission is error and a separate, independent grounds meriting reversal. 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, contrary to the ALJ’s holding, there is evidence in the record of clinical and
laboratory findings that may well support Dr. Ilyas’s opinions concerning Plaintiff’s limitations
arising from her fibromyalgia. See PageID 509-10. Such objective clinical examination findings
include multiple points of palpable tenderness; difficulty with gait; increased pain with overuse
of muscles; and diffuse musculoskeletal weakness. PageID 432, 435, 509, 529, 531, 538-39.
Additionally, the medical records suggest Plaintiff’s fibromyalgia pain was “uncontrolled,”
“worse with cold weather” and at times prevented her from getting out of bed. PageID 432-33,
436, 534, 537, 539-40, 542. Further, contrary to ALJ’s statement that -- Plaintiff’s fibromyalgia
complaints have been “mild,” see PageID 51 -- Plaintiff complained that her pain is consistently
a nine on a ten-point scale. PageID 69, 517.
Based on all of the foregoing, the undersigned concludes that the ALJ failed to conduct a
controlling weight analysis in analyzing Dr. Ilyas’s opinion and also failed to give good reasons
for affording that opinion little weight. Accordingly, the undersigned recommends that the
Commissioner's non-disability finding be reversed.

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V.
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).
Following a careful review of the record, the undersigned finds that factual issues remain
unresolved and that evidence of disability is not overwhelming. Accordingly, remand for further
proceedings is proper.
VI.
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.

January 5, 2018

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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