Unser v. Commissioner of Social Security
Filing
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DECISION AND ENTRY: (1) REVERSING THE ALJS NON-DISABILITY FINDING AS UNSUPPORTED BY SUBSTANTIAL EVIDENCE; (2) REMANDING THIS CASE TO THE COMMISSIONER UNDER THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR PROCEEDINGS CONSISTENT WITH THIS OPINION; AND (3) TERMINATING THIS CASE ON THE COURTS DOCKET. Signed by Magistrate Judge Michael J. Newman on 1/29/2018. (srb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
SHELLY K. UNSER,
Plaintiff,
Case No. 3:16-cv-454
vs.
COMMISSIONER OF SOCIAL SECURITY,
Magistrate Judge Michael J. Newman
(Consent Case)
Defendant.
DECISION AND ENTRY: (1) REVERSING THE ALJ’S NON-DISABILITY FINDING
AS UNSUPPORTED BY SUBSTANTIAL EVIDENCE; (2) REMANDING THIS CASE
TO THE COMMISSIONER UNDER THE FOURTH SENTENCE OF 42 U.S.C. § 405(g)
FOR PROCEEDINGS CONSISTENT WITH THIS OPINION; AND (3) TERMINATING
THIS CASE ON THE COURT’S DOCKET
This Social Security disability benefits appeal is before the undersigned for disposition
based upon the parties’ consent. Doc 9. 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.
10), the Commissioner’s memorandum in opposition (doc. 11), Plaintiff’s reply (doc. 12), the
administrative record (doc. 7),1 and the record as a whole.
I.
A.
Procedural History
Plaintiff filed an application for SSI on September 19, 2012 (PageID 262-68) alleging
disability as a result of a number of alleged impairments including, inter alia, bipolar disorder,
and anxiety disorder/post-traumatic stress disorder (“PTSD”). PageID 44.
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number.
Hereafter, citations to the electronically-filed administrative record will refer only to the PageID
After an initial denial of her application, Plaintiff received a hearing before ALJ Gregory
G. Kenyon on June 9, 2015. PageID 61-91. The ALJ issued a decision on August 18, 2015
finding Plaintiff not disabled. PageID 42-52. Specifically, the ALJ found at Step Five that,
based upon Plaintiff’s RFC to perform a full range of work at all exertional levels subject to
specific non-exertional limitations,2 “there are jobs that exist in significant numbers in the
national economy that [Plaintiff] can perform[.]” PageID 47-51.
Thereafter, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s
non-disability finding the final administrative decision of the Commissioner. PageID 30-32. 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 42-52),
Plaintiff’s Statement of Errors (doc. 10), the Commissioner’s memorandum in opposition (doc.
11), and Plaintiff’s reply (doc. 12). The undersigned incorporates all of the foregoing and sets
forth the facts relevant to this appeal herein.
The Social Security Administration (“SSA”) classifies jobs as sedentary, light, medium, heavy,
and very heavy depending on the physical exertion requirements. 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. § 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).
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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. § 416.920(a)(4). Although a dispositive finding at any step ends the
ALJ’s review, see Colvin, 475 F.3d at 730, 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. § 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. Key v. Comm’r of Soc. Sec., 109 F.3d 270, 274 (6th Cir. 1997).
III.
In her Statement of Errors, Plaintiff argues the ALJ erred by: (1) improperly weighing
medical opinion evidence from treating psychiatrists Pravesh Patel, M.D. and Irfan Dahar, M.D.
and treating counselor Ann Moyer, M.A.; (2) improperly weighing medical opinion evidence
from examining psychologist Brian Griffiths, Psy.D. and record reviewing psychologist Karen
Terry, Ph.D.; and (3) improperly evaluating her credibility. Doc. 10 PageID 748-59. Finding
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merit to Plaintiff’s first alleged error regarding the ALJ’s weighing of Dr. Patel’s opinion, the
undersigned does not address Plaintiff’s 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 then in effect, which control here, 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 opinions 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 opinions, consistency of the
opinions 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).
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.
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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. “The
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)).
The medical opinion evidence in this case, inter alia, includes an opinion from Plaintiff’s
treating psychiatrist, Dr. Patel. PageID 613-16. Dr. Patel found Plaintiff “markedly”3 limited in
her ability to maintain concentration, persistence or pace; in her ability to understand and
remember detailed instructions; in her ability to perform activities within a schedule, maintain
regular attendance, and be punctual within customary tolerances; and in her ability to interact
appropriately with the general public. PageID 615. Dr. Patel also opined that Plaintiff would
likely be absent more than three times a month due to her mental impairments. Id. The ALJ
assigned Dr. Patel’s opinion “little weight.” PageID 50.
As to Dr. Patel’s opinion, initially, the Court finds the ALJ erred by failing to specifically
analyze the § 416.927(c)(2) controlling weight factors, i.e., whether Dr. Patel’s opinion is “wellsupported 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-cv-135, 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
“Marked” limitations are suggestive of disability. See 20 C.F.R. Pt. 416, Subpt. P, App. 1 §
12.00(C); Lankford v. Sullivan, 942 F.2d 301, 307 (6th Cir. 1991).
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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 the ALJ gave only
conclusory reasons as to the ultimate weight accorded. Specifically, while the ALJ found that
“[Plaintiff’s] progress notes from both the Mental Health Clinic and Darke County Recovery do
not portray the [Plaintiff] as so severely limited” as Dr. Patel’s opinion alleges, the ALJ fails to
cite any specific treatment note(s) within those documents 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).
Based on all of the foregoing, the undersigned finds error in the ALJ’s analysis of the
medical opinions from Dr. Patel. Accordingly, the ALJ’s non-disability finding is unsupported
by substantial evidence, and merits remand.
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
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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, the evidence of disability is not overwhelming.
Therefore, a remand for further proceedings is proper.
V.
For the foregoing reasons, IT IS ORDERED THAT: (1) the Commissioner’s nondisability finding is found unsupported by substantial evidence, and REVERSED; (2) this matter
is 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 is TERMINATED on the docket.
IT IS SO ORDERED.
Date: January 29, 2018
s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge
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