Newman v. Commissioner of Social Security

Filing 13

DECISION AND ENTRY: (1) REVERSING THE ALJS NON-DISABILITY FINDING AS UNSUPPORTED BY SUBSTANTIAL EVIDENCE; (2) REMANDING THIS CASE UNDER THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR FURTHER PROCEEDINGS; AND (3) TERMINATING THIS CASE ON THE COURTS DOCKET. Signed by Magistrate Judge Michael J. Newman on 2/7/18. (pb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
CARMEN R. NEWMAN,1
Plaintiff,

Case No. 3:16-cv-459

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
UNDER THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR FURTHER
PROCEEDINGS; 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 Disability Insurance
Benefits (“DIB”) and/or Supplemental Security Income (“SSI”).2

This case is before the Court

on 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),3 and the record as a
whole.

1

Plaintiff is no relation to the undersigned.

“The Commissioner’s regulations governing the evaluation of disability for DIB and SSI are
identical . . . and are found at 20 C.F.R. § 404.1520, and 20 C.F.R. § 404.1520 respectively.” Colvin v.
Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). Citations in this Report and Recommendation to DIB
regulations are made with full knowledge of the corresponding SSI regulations, and vice versa.
3
Hereafter, citations to the electronically-filed administrative record will refer only to the
PageID number.
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I.
A.

Procedural History

Plaintiff filed for DIB and SSI asserting disability as of July 10, 2013 as a result of a
number of alleged impairments including, inter alia, degenerative disc disease, attention deficit
disorder, depression, anxiety, migraine headaches and somatoform disorder. PageID 86, 261-73.
After initial denial of her applications, Plaintiff received a hearing before Administrative
Law Judge (“ALJ”) Benjamin Chaykin on October 20, 2015. PageID 102-43. The ALJ issued a
written decision on November 6, 2015 finding Plaintiff not disabled.

PageID 84-95.

Specifically, the ALJ found at Step Five that, based upon Plaintiff’s residual functional capacity
(“RFC”) to perform a reduced range of sedentary work,4 “there are jobs in that exist in
significant numbers in the national economy that [Plaintiff] can perform[.]” PageID 88-95.
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 47-50. 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 84-95),
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. 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. Key v. Comm’r of Soc. Sec., 109 F.3d 270, 274 (6th Cir. 1997).
III.
Plaintiff argues, without more, that the ALJ erred “at Steps Four and Five of the
Sequential Evaluation.” PageID 879. Although not separated in Plaintiff’s brief, it appears to
the Court that Plaintiff is alleging three independent errors; namely, that the ALJ erred by: (1)
improperly weighing medical opinion evidence; (2) failing to include all of Plaintiff’s limitations
in the RFC; and (3) improperly assessing Plaintiff’s credibility. Doc. 10 at PageID 879-83.

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Finding merit to Plaintiff’s first alleged error -- regarding the ALJ’s weighing of medical opinion
from Dr. Metry -- 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. § 404.1527(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. § 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.”

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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 family doctor Terez Metry, M.D. PageID 768-81. The ALJ assigned Dr. Metry’s
opinion as to Plaintiff’s physical limitations “great weight” and, as to Plaintiff’s mental
limitations, “some weight.” PageID 92.
Initially, the Court notes that the ALJ failed to mention the concept of “controlling
weight” when analyzing Dr. Metry’s conclusions, and further failed to specifically decline to
give her opinion controlling weight. Id.; see also Wilson v. Comm’r of Soc. Sec., 378 F.3d 541,
544 (6th Cir. 2004) (stating that the regulations are designed to “ensure[ ] that the ALJ applies
the treating physician rule and permits meaningful review of the ALJ’s application of the rule”).
The Court also finds the ALJ erred by failing to specifically analyze the § 404.1527(c)(2)
controlling weight factors, i.e., whether Dr. Metry’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-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 regulation.” Gayheart v.
Comm’r of Soc. Sec., 710 F.3d 365, 377 (6th Cir. 2013) (citations omitted).
With regard to the ALJ’s rejection of Dr. Metry’s opinion regarding Plaintiff’s mental
limitations on the basis that she is not her treating physician for her psychological conditions, the
Court notes that such critique is not relevant at the controlling weight stage of the treating

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physician analysis and, instead, is a factor “properly applied only after the ALJ has determined
that a treating-source opinion will not be given controlling weight.” Gayheart, 710 F.3d at 376;
see also 20 C.F.R. § 404.1527(c)(5). In addition, “it is well established that primary care
physicians (those in family or general practice) ‘identify and treat the majority of Americans’
psychiatric disorders.’” Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). A family
physician such as Dr. Metry is authorized to opine regarding Plaintiff’s mental status. Wert v.
Comm’r of Soc. Sec., 166 F. Supp. 3d 935, 946 (S.D. Ohio 2016); Byrd v. Comm’r of Soc. Sec.,
No. 3:14-CV-242, 2015 WL 4540575, at *5 (S.D. Ohio May 29, 2015); King v. Comm’r of Soc.
Sec., No. 3:14-CV-351, 2016 WL 1729550, at *6 (S.D. Ohio Mar. 28, 2016).
Based on all of the foregoing, the undersigned finds error in the ALJ’s analysis of Dr.
Metry’s opinion.

Accordingly, the ALJ’s non-disability finding is found unsupported by

substantial evidence.
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.

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Therefore, a remand for further proceedings is proper. On remand, the ALj should conduct an
appropriate review of all medical opinion evidence of record.
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 this case is TERMINATED on the docket.
IT IS SO ORDERED.

Date:

February 7, 2018

s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge

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