Boyd v. Commissioner of Social Security

Filing 20

REPORT AND RECOMMENDATIONS - IT IS THEREFORE RECOMMENDED THAT: (1) the Commissioners 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
ALLEN D. BOYD,
Case No. 3:16-cv-477
Plaintiff,
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 Supplemental Security Income (“SSI”).

This case is before the Court upon

Plaintiff’s Statement of Errors (doc. 17), the Commissioner’s memorandum in opposition (doc.
18), Plaintiff’s reply (doc. 19), the administrative record (docs. 15),2 and the record as a whole.
I.
A.

Procedural History

Plaintiff filed for SSI on September 11, 2017 (PageID 251) claiming disability as a result
of a number of alleged impairments including, inter alia, cervical disc protrusion, arthritis,
chronic obstructive pulmonary disease (“COPD”), and coronary artery disease. PageID 253.

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 Elizabeth
A. Motta on March 21, 2016. PageID 271-304. The ALJ issued a written decision on June 22,
2016 finding Plaintiff not disabled. PageID 251-65. 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 255-65.
The Appeals Council denied Plaintiff’s request for review, making the ALJ’s nondisability finding the final administrative decision of the Commissioner. PageID 185-88. 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’s decision (PageID 251-65),
Plaintiff’s Statement of Errors (doc. 17), the Commissioner’s memorandum in opposition (doc.
18), and Plaintiff’s reply (doc. 19). 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 742,745-

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.” 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).
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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. § 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:
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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?; 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’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 erred in: (1) weighing the opinion
of record reviewing physician James Cacchillo, D.O. and (2) improperly interpreting medical
data when determining his RFC. Doc. 17 at PageID 1687-90. Finding merit to Plaintiff’s first
alleged error, the undersigned does not address the merits of Plaintiff’s second alleged error.
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 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

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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,
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 like Dr. Cacchillo are afforded the least deference and these “nonexamining 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
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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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 this case, the ALJ gave Dr. Cacchillo’s opinion “great weight,” stating it was
“consistent with the limited objective evidence and diagnostic imaging.” PageID 263. The
undersigned finds that conclusory analysis is error. With all due respect to the ALJ, his analysis
is this particular instance is perfunctory and conclusory, and provides this reviewing Court with
no meaningful explanation of the weight given. Hollon v. Comm’r of Soc. Sec., 142 F. Supp. 3d
577, 584 (S.D. Ohio 2015) (holding that “[s]imply restating a non-treating source’s opinion and
offering a conclusory assessment, without further discussion, fails to satisfy the requirement that
the ALJ provide meaningful explanation of the weight given to all the medical opinion
evidence”). Although the ALJ found the record reviewer’s opinion supported by “objective
evidence and diagnostic imaging,” the ALJ failed to identify such objective evidence and further
failed to explain why such medical evidence provides support for a non-disability determination.
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);
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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 is proper. On
remand, the ALJ should hold another administrative hearing and be directed to again review the
medical evidence in accordance with the § 416.927(c) factors.
V.
IT IS THEREFORE RECOMMENDED THAT: (1) the Commissioner’s nondisability 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:

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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