Riley v. Commissioner of Social Security
Filing
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REPORT AND RECOMMENDATION1 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 2/7/2018. Signed by Magistrate Judge Michael J. Newman on 1/24/18. (kma)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
AMY L. RILEY,
Plaintiff,
Case No. 3:17-cv-46
vs.
COMMISSIONER OF SOCIAL SECURITY,
District Judge Thomas M. Rose
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. 6), the Commissioner’s memorandum in opposition (doc. 7),
Plaintiff’s reply (doc. 8), the administrative record (doc. 4),2 and the record as a whole.
I.
A.
Procedural History
Plaintiff filed an application for SSI on October 17, 2013 (PageID 215-17) alleging
disability as a result of a number of alleged impairments including, inter alia, mild degenerative
disk disease of the lumbosacral spine, depressive disorder, and post-traumatic stress disorder
(“PTSD”). PageID 63.
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 her application, Plaintiff received a hearing before ALJ Mark
Hockensmith on November 9, 2015. PageID 76-121. The ALJ issued a decision on December
9, 2015 finding Plaintiff not disabled. PageID 61-69. Specifically, the ALJ found at Step Five
that, based upon Plaintiff’s RFC to perform a reduced range of medium work,3 “there are jobs
that exist in significant numbers in the national economy that [Plaintiff] can perform[.]” PageID
65-69.
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 41-43. 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 61-69),
Plaintiff’s Statement of Errors (doc. 6), the Commissioner’s memorandum in opposition (doc. 7),
and Plaintiff’s reply (doc. 8). 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-
The Social Security Administration (“SSA”) classifies jobs as sedentary, light, medium, heavy,
and very heavy depending on the physical exertion requirements. 20 C.F.R. § 416.967. “Medium work”
involves the occasional lifting of 50 pounds at a time, and frequent lifting or carrying of objects weighing
up to 25 pounds. Id. Medium work can require standing and walking as much as six hours during any
given eight-hour workday. Id. It may also involve frequent stooping, grasping, holding, and turning
objects. Id. “The functional capacity to perform medium work includes the functional capacity to
perform sedentary, light, and medium work.” Id.
2
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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, 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?;
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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 that the ALJ erred by: (1) inadequately
accounting for her moderate limitations in concentration, persistence, or pace in the hypothetical
questions to the vocational expert (“VE”); (2) improperly weighing medical opinion evidence;
and (3) improperly weighing her credibility. Doc. 6 PageID 800-07. Finding merit to Plaintiff’s
second alleged error regarding the ALJ’s weighing of medical opinion evidence, 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
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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 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.
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 Florence Coleman, M.D. PageID 488-92. The ALJ assigned Dr. Coleman’s
opinion “moderate, but not controlling weight.” PageID 66. The medical opinion evidence also
includes an opinion from consulting examining psychologist Donald Kramer, Ph.D. PageID
120-25. The ALJ assigned Dr. Kramer’s opinion “great weight[,] as his recommendations are
consistent with his clinical findings.” PageID 66.
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As to Dr. Coleman’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. Coleman’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).
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 Dr.
Coleman’s opinion “[inconsistent] with the opinion itself, or with the treatment records from
Samaritan Behavioral Health,” 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).
As to Dr. Kramer’s opinion, the ALJ assigned this opinion “great weight,” stating it was
“consistent with his clinical findings.” PageID 66. 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
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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 examining source’s opinion supported by “his clinical findings,” the ALJ failed to
identify such clinical findings and further failed to explain why such medical evidence provides
support for a non-disability determination.
Based on all of the foregoing, the undersigned finds error in the ALJ’s analysis of the
medical opinions from Drs. Coleman and Kramer. Accordingly, the undersigned recommends
that the Commissioner’s non-disability finding 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, the evidence of disability is not overwhelming.
Therefore, a remand for further proceedings is proper.
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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: January 24, 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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