Denniston v. Commissioner of Social Security

Filing 9

REPORT AND RECOMMENDATIONS: The Commissioner's non-disability finding be vacated; no finding be made as to whether Plaintiff Bradley Denniston was under a "disability" within the meaning of the Social Security Act; this matter be REMA NDED to the Social Security Administration for further consideration consistent with this Report and Recommendations, and any decision adopting this Report and Recommendations; and the case be terminated on the Court's docket. Objections to R&R due by 1/23/2018. Signed by Magistrate Judge Sharon L. Ovington on 1/9/2018. (lk)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
BRADLEY DENNISTON,
Plaintiff,
vs.
NANCY A. BERRYHILL,
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

: Case No. 3:17-cv-56
:
:
: District Judge Walter H. Rice
:
Magistrate Judge Sharon L. Ovington
:
:
:
:
:
:

REPORT AND RECOMMENDATIONS1
I.

Introduction
Plaintiff Bradley Denniston brings this case challenging the Social Security

Administration’s denial of his applications for period of disability, Disability Insurance
Benefits, and Supplemental Security Income. He applied for benefits on May 14, 2014,
asserting that he could no longer work a substantial paid job. Administrative Law Judge
(ALJ) Paul R. Armstrong concluded that he was not eligible for benefits because he is not
under a “disability” as defined in the Social Security Act.
The 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), and
the administrative record (Doc. #5).

1

Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.

Plaintiff seeks a remand of this case for payment of benefits or, at a minimum, for
further proceedings. The Commissioner asks the Court to affirm ALJ Armstrong’s nondisability decision.
II.

Background
Plaintiff asserts that he has been under a “disability” since February 2, 2014. He

was forty-seven years old at that time and was therefore considered a “younger person”
under Social Security Regulations. See 20 C.F.R. §§ 404.1563(c), 416.963(c). He has a
high school education and according to ALJ Armstrong, “a wonderful work history.”
(Doc. #5, PageID #109); see 20 C.F.R. §§ 404.1564(b)(4), 416.964(b)(4). 2
A.

Plaintiff’s Testimony

Plaintiff testified at the hearing before ALJ Armstrong if he could work today, he
“definitely” would. (Doc. #5, PageID #103). He explained that he enjoyed working and
when he was able to work, did not miss a day. Id. When ALJ Armstrong asked, “All the
stuff you did was really heavy work. You’re lifting 50 pounds and stuff. Why couldn’t
you do a light job? Plaintiff responded, “That’s all I’ve done my whole life. That’s all I
know. That’s all I know how to do. I don’t know nothing else.” Id. at 103.
Plaintiff further explained, “I try to work and do things that I was able to do in the
past[,] … my breathing won’t let me. I’m not able to continue to go like I was before. I
get out of breath every time I try to do something.” Id. at 110-11. Plaintiff smokes
cigarettes but has significantly reduced the number he smokes per day: At the beginning
2

The remaining citations will identify the pertinent Disability Insurance Benefits Regulations with full
knowledge of the corresponding Supplemental Security Income Regulations.

2

of 2015, he smoked two packs a day and by the time of the hearing in December 2015, he
was smoking three to six cigarettes per day. Id. at 86. Since cutting back, he has not
noticed a difference in his breathing. Id. at 98-99. He has difficulty breathing in dusty
environments and when the temperature is very hot or very cold. Id. at 99.
In 1990, Plaintiff fell approximately sixty feet and hurt his right ankle and back.
Id. at 91, 108. At first, the doctors were unable to find anything wrong with his ankle.
Id. at 91. However, a year and a half later, another doctor found that it had broken and
started to heal incorrectly. Id. As a result, Plaintiff underwent surgery. Id. His surgeon
informed him that he had arthritis in his ankle and although the surgeon removed it, it
was likely to return. Id. Plaintiff also has back pain “[e]veryday, all day” because of the
fall. Id. at 96. He sees a pain management doctor once a month at Dayton Pain Center.
Id.
Plaintiff sees a psychiatrist at Darke County Mental Health. Id. at 101. He
originally sought treatment “[f]or depression, more or less because I wasn’t able to do the
things I’ve been able to do in the past ….” Id. at 110-11. He used to see a case worker—
Dick Baker—but Mr. Baker retired and Darke County has not been able to find Plaintiff a
new case worker. Id. at 101-02. Plaintiff “had a couple of different periods during [the]
hearing where [he’s] been emotional and [he’s] cried.” Id. at 111. This happens to him
several times a week “because I got somebody else doing things for me and I usually do
it myself. Never been dependent on nobody.” Id.
Plaintiff falls asleep three to four times a day for fifteen to twenty minutes at a
time. Id. at 99-100. When he was at work, he sometimes nodded off. Id. at 100.
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Plaintiff once fell asleep while driving to work and “hit a state trooper head on.” Id. at
92. He had a sleep study done and now uses a BiPAP machine. Id. at 92. Even with the
machine, Plaintiff still nods off. Id. at 100.
Plaintiff is not able to read. Id. at 88. When asked by the ALJ if he had ever
learned to read at all, Plaintiff explained: “I’ve tried. I went to school everyday. … I
gave my effort. When I was younger in [] Kindergarten, 1st, 2nd and 3rd grade they
didn’t know I had 5 percent hearing in both my ears. … So I wasn’t able to hear. That’s
when you learn to read and write.” Id. The ALJ recommended he go to the public library
so “older people” could help him learn to read. Id. at 89. Plaintiff related a troubling
story: “My grandbaby comes home from 1st grade with a 1st grade book, and he asked
me what these words are. And I tell him I can’t read them, I try to read them, and I can’t
read them for him. You know how bad that feels[?]” Id. (The ALJ responded with an
oddly irrelevant personal story.)
Plaintiff last worked as a laborer at Fram Oil Filter Company. Id. at 86. After a
machine assembled oil filters, he was supposed to sort the good parts from the bad. Id. at
87. He had “trouble keeping up with the assortment of stuff.” Id. The job also required
Plaintiff to complete “a lot of paperwork” and he was not able to. Id. at 88. He was let
go, after working 89 days, “for not being able to keep up with it.” Id. at 86.
Plaintiff resides with his long-time girlfriend. Id. at 93. She has one daughter and
grandchildren. Id. at 94. Plaintiff’s girlfriend helps him put on and tie his shoes because
he loses his breath when he bends over: “I stand up. I get dizzy. I’ve stood up before
and fell over, passed out doing that. Id. at 96-97. Plaintiff has problems sitting for long
4

periods of time. Id. at 97. He can only sit comfortably for about fifteen minutes. Id. at
98. If he does not stand up after that, his lower back and legs go numb and get tingly. Id.
Plaintiff estimated that he can lift “[m]aybe 10 pounds” and can walk
“[c]omfortably, maybe a block.” Id. at 94. He has a home exercise program where he
“can use rubber bands and stuff like that to keep exercise movements and stuff like that in
[his] legs and arms.” Id. at 94-95. He also tries to walk around his house. Id. at 95.
Plaintiff has a driver’s license. Id. at 88. When he obtained his license, the
driving test was read to him. Id. Since his accident, he has obtained another vehicle from
his brother. Id. at 93. He generally only drives two to three times a week. Id. at 98.
Plaintiff used to ride motorcycles. Id. at 93. He had to get rid of his Harley Gold
Wing—“a dynamite machine,” according to the ALJ—because he was unable to hold it
up. Id.
B.

Medical Opinions
i.

Sherry Adkins, M.D.

On February 12, 2015, Dr. Adkins, Plaintiff’s primary-care physician, indicated
Plaintiff should be restricted from operating heaving machinery—including vehicles—
due to a history of syncope. Id. at 768.
ii.

M. Robert Maher, D.P.M.

Dr. Maher, Plaintiff’s podiatrist, opined on May 8, 2012, that Plaintiff was limited
to working eight hours a day, five days a week, for four weeks. Id. at 465.

5

iii.

Martti E. Kahkonen, M.D.

On August 7, 2014, Dr. Kahkonen completed a consultative exam and documented
largely normal findings. Id. at 477-82. He noted Plaintiff’s teeth were in “poor repair”
and his lungs revealed rhonchi. Id. at 479. Dr. Kahkonen assessed no functional or
lifting/carrying restrictions. Id. at 481-82.
iv.

Damian M. Danopulos, M.D.

Dr. Danopulos examined Plaintiff and reviewed some of his records on July 24,
2014. Id. at 932-48. His “objective findings were 1) right ankle arthralgias, if any, 2)
cervical spine arthralgias, 3) lumbar spine minimal arthritic changes in the lower
lumbosacral spine area and 4) history of depression, which was already evaluated by a
Social Security psychologist.” Id. at 836. He concluded that Plaintiff’s physical
impairments—“except has mild emphysema”—do not interfere with his ability to
complete work-related activities and “a semi-sedentary job would be fitting for him.” Id.
at 837. He cautioned, “This assessment was based on his complaints, history given by
the claimant and careful clinical examination including the review of available medical
records. It is not per se a recommendation to make or enforce a decision.” Id.
v.

Alan R. Boerger, Ph.D.

Dr. Boerger evaluated Plaintiff and administered the Wechsler Adult Intelligence
Scale – Fourth Edition (WAIS-IV) on July 16, 2014. Id. at 824-30. Dr. Boerger
diagnosed cognitive disorder not otherwise specified (NOS) and depressive disorder
NOS. Id. at 829. He assigned a global assessment of functioning (GAF) score of fiftyfive. Id. Dr. Boerger summarized Plaintiff’s results from the WAIS-IV:
6

Mr. Denniston does display moderate variability in his
cognitive performance. His highest Index score is on
Perceptual Reasoning which reflects visual motor and
nonverbal type intellectual abilities. … His lowest Index
score is on Processing Speed where his score falls more than
2 standard deviations below the mean. Processing Speed
reflects ability to maintain attention to perform simple
repetitive tasks. His score on Verbal Comprehension which
reflects verbal intellectual abilities and academic aptitude
falls more than 1 1/3 standard deviations below the mean.
Working Memory which reflects ability to retain information
to perform immediate tasks also falls more than 11/3 standard
deviations below the mean. … He does have an irregular and
limited educational background and was apparently hampered
early in his school years by hearing loss.
Id. at 828-29.
Dr. Boerger opined, Plaintiff “may have some difficulty understanding complex
work instructions because of limited intellectual abilities particularly in the verbal area.
He may likewise have some difficulty with retaining instructions as reflected in his low
score on the Working Memory Index …. He was able to recall 4 of 4 objects after 5
minutes and could recall 6 digits forward and 3 backwards.” Id. at 830. Further, he “may
have difficulty with maintaining focus and attention in performing repetitive tasks as
reflected in his low score on the Processing Speed Index of the WAIS-IV …. He was
likewise unable to complete Serial 7’s.” Id. Plaintiff’s “combination of depression and
variable cognitive abilities may limit his ability to tolerate work pressures in the work
setting.” Id. However, there were no indications Plaintiff would have trouble relating to
coworkers and supervisors. Id.

7

vi.

David Demuth, M.D., & Tonnie Hoyle, Psy.D.

Dr. Demuth reviewed Plaintiff’s records on July 29, 2014. Id. at 119-32. He
found Plaintiff had three severe impairments—COPD, organic brain syndrome, and
affective disorders—and one non-severe impairment—inflammatory arthritis. Id. at 124.
He has a mild restriction in activities of daily living; mild difficulties in maintaining
social functioning; moderate difficulties in maintaining concentration, persistence, or
pace; and no repeated episodes of decompensation. Id.
Dr. Demuth opined Plaintiff was moderately limited in his ability to understand,
remember, and carry out detailed instructions. Id. at 128. Further, Plaintiff’s “mental
health issues would cause reduced concentration and stress tol[erance] but [Plaintiff]
retains the ability to carry out 1-3 step instructions that are static in nature.” Id. at 129.
On December 9, 2014, Dr. Hoyle reviewed Plaintiff’s record and affirmed Dr.
Demuth’s assessment. Id. at 149-63.
vii.

Lynne Torello, M.D., & William Bolz, M.D.

On August 27, 2014, Dr. Torello reviewed Plaintiff’s records. Id. at 119-32. She
opined Plaintiff could lift and/or carry fifty pounds occasionally and twenty-five pounds
frequently. Id. at 126. He could stand and/or walk for about six hours in an eight-hour
workday and sit for about six hours. Id. He could stoop frequently and must avoid
concentrated exposure to fumes, odors, gases, poor ventilation, etc. Id. at 127. Dr.
Torello concluded that Plaintiff is not under a disability. Id. at 131-32.

8

Dr. Bolz reviewed Plaintiff’s records on November 29, 2014 and affirmed Dr.
Torello’s assessment with one alteration: Dr. Bolz opined Plaintiff must avoid even
moderate exposure to fumes, odors, dusts, gases, poor ventilation, etc. Id. at 149-63.
III.

Standard of Review
The Social Security Administration provides Disability Insurance Benefits and

Supplemental Security Income to individuals who are under a “disability,” among other
eligibility requirements. Bowen v. City of New York, 476 U.S. 467, 470 (1986); see 42
U.S.C. §§ 423(a)(1), 1382(a). The term “disability”—as defined by the Social Security
Act—has specialized meaning of limited scope. It encompasses “any medically
determinable physical or mental impairment” that precludes an applicant from
performing a significant paid job—i.e., “substantial gainful activity,” in Social Security
lexicon. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); see Bowen, 476 U.S. at 469-70.
Judicial review of an ALJ’s non-disability decision proceeds along two lines:
“whether the ALJ applied the correct legal standards and whether the findings of the ALJ
are supported by substantial evidence.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399,
406 (6th Cir. 2009); see Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir.
2007). Review for substantial evidence is not driven by whether the Court agrees or
disagrees with the ALJ’s factual findings or by whether the administrative record
contains evidence contrary to those factual findings. Gentry v. Comm’r of Soc. Sec., 741
F.3d 708, 722 (6th Cir. 2014); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir.
2007). Instead, the ALJ’s factual findings are upheld if the substantial-evidence standard
is met—that is, “if a ‘reasonable mind might accept the relevant evidence as adequate to
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support a conclusion.’” Blakley, 581 F.3d at 407 (quoting Warner v. Comm’r of Soc.
Sec., 375 F.3d 387, 390 (6th Cir. 2004)). Substantial evidence consists of “more than a
scintilla of evidence but less than a preponderance . . . .” Rogers, 486 F.3d at 241
(citations and internal quotation marks omitted); see Gentry, 741 F.3d at 722.
The other line of judicial inquiry—reviewing the correctness of the ALJ’s legal
criteria—may result in reversal even when the record contains substantial evidence
supporting the ALJ’s factual findings. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647,
651 (6th Cir. 2009); see Bowen, 478 F.3d at 746. “[E]ven if supported by substantial
evidence, ‘a decision of the Commissioner will not be upheld where the SSA fails to
follow its own regulations and where that error prejudices a claimant on the merits or
deprives the claimant of a substantial right.’” Rabbers, 582 F.3d at 651 (quoting in part
Bowen, 478 F.3d at 746, and citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 546-47
(6th Cir. 2004)).
IV.

The ALJ’s Decision
As noted previously, it fell to ALJ Armstrong to evaluate the evidence connected

to Plaintiff’s application for benefits. He did so by considering each of the five
sequential steps set forth in the Social Security Regulations. See 20 C.F.R. § 404.1520.
He reached the following main conclusions:
Step 1:

Plaintiff has not engaged in substantial gainful employment since
February 2, 2014.

Step 2:

He has the severe impairments of Chronic Obstructive Pulmonary
Disease (COPD), Degenerative Disc Disease, and Degenerative Joint
Disease.

10

Step 3:

He does not have an impairment or combination of impairments that
meets or equals the severity of one in the Commissioner’s Listing of
Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1.

Step 4:

His residual functional capacity, or the most he could do despite his
impairments, see Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 239
(6th Cir. 2002), consists of “light work … except claimant must avoid
concentrated exposures to noxious fumes, odors, or respiratory
irritants; and must avoid all extreme temperatures and humidity.”

Step 4:

He is unable to perform any of his past relevant work.

Step 5:

He could perform a significant number of jobs that exist in the
national economy.

(Doc. #5, PageID #s 60-74). These main findings led the ALJ to ultimately conclude that
Plaintiff was not under a benefits-qualifying disability. Id. at 74.
V.

Discussion
Plaintiff contends that the ALJ failed to identify obesity as a severe impairment at

Step Two and to consider it at all stages of the sequential evaluation. Further, the ALJ
erred in finding that Plaintiff’s pulmonary impairment did not meet or equal Listing §
3.02 and in weighing the medical source’s opinions. Plaintiff also argues the ALJ’s
hypothetical question to the vocational expert was incomplete.
The Commissioner maintains that the ALJ properly considered Plaintiff’s
impairments at Step Two; determined that Plaintiff’s COPD did not meet or medically
equal Listing § 3.02; weighed the medical opinions of record; and relied on the
vocational expert’s testimony.

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A.

Medical Opinions

Social Security Regulations require ALJs to adhere to certain standards when
weighing medical opinions. “Key among these is that greater deference is generally
given to the opinions of treating physicians than to those of non-treating physicians,
commonly known as the treating physician rule.” Rogers, 486 F.3d at 242 (citations
omitted). The rule is straightforward:
Treating-source opinions must be given “controlling weight”
if two conditions are met: (1) the opinion “is well-supported
by medically acceptable clinical and laboratory diagnostic
techniques”; and (2) the opinion “is not inconsistent with the
other substantial evidence in [the] case record.”
Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013) (quoting in part 20
C.F.R. § 404.1527(c)(2)); see Gentry, 741 F.3d at 723.
If the treating physician’s opinion is not controlling, “the ALJ, in determining how
much weight is appropriate, must consider a host of factors, including the length,
frequency, nature, and extent of the treatment relationship; the supportability and
consistency of the physician’s conclusions; the specialization of the physician; and any
other relevant factors.” Rogers, 486 F.3d at 242 (citing Wilson, 378 F.3d at 544).
The Regulations also require ALJs to provide “good reasons” for the weight
placed upon a treating source’s opinions. Wilson, 378 F.3d at 544. This mandatory
“good reasons” requirement is satisfied when the ALJ provides “specific reasons for the
weight placed on a treating source’s medical opinions.” Id. (quoting Soc. Sec. R. 96-2p,
1996 WL 374188, at *5 (Soc. Sec. Admin. July 2, 1996)). The goal is to make clear to

12

any subsequent reviewer the weight given and the reasons for that weight. Id.
Substantial evidence must support the reasons provided by the ALJ. Id.
Dr. Adkins
ALJ Armstrong does not say how much weight he assigned Dr. Adkins’s opinions.
Instead, he asserts, “[i]n evaluating the factors under 20 [C.F.R. §§] 404.1527 and
416.927, the undersigned does not find that the clinical findings or treatment notes
support giving Dr. Adkins’ opinion controlling or great weight.” (Doc. #5, PageID #69).
The ALJ’s discussion of Dr. Adkins’s opinion contains very little concerning the treating
physician rule, and he did not explicitly address the two conditions under the treating
physician rule. Moreover, the ALJ makes no attempt to distinguish between application
of the treating physician rule and application of the factors. There are several errors in
the ALJ’s analysis. First, the “factors are 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 (citing 20 C.F.R. § 404.1527(c)(2)) (emphasis added). If at
all, ALJ Armstrong addressed the treating physician rule at the same time as the factors.
Second, the uncertainty of whether ALJ Armstrong addressed the conditions of the
treating physician rule conflicts with the requirement that the decision “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.” Soc. Sec.
R. 96-2p, 1996 WL 374188, at *5. Third, by using the same standard to weigh treating
physicians’ opinions and other physicians’ opinions, he fails to recognize the deference
given to treating physicians’ opinions. Id. at *4 (“In many cases, a treating source’s
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medical opinion will be entitled to the greatest weight and should be adopted, even if it
does not meet the test for controlling weight.”).
And, even if Dr. Adkins’ opinion is not entitled to controlling weight, “the ALJ
must still determine how much weight is appropriate by considering a number of factors
….” Blakley, 581 F.3d at 406 (citing Wilson, 378 F.3d at 544; 20 C.F.R. §
404.1527(d)(2)); see Soc. Sec. R. 96-2p, 1996 WL 374188, at *4 (“Treating source
medical opinions are still entitled to deference and must be weighed using all of the
factors provided in 20 C.F.R. §§ 404.1527 and 416.927.”). The ALJ only addresses one
other factor: “Dr. Adkins’s instructions are somewhat consistent with the overall
objective record in that it considers objective findings from [Plaintiff’s] pulmonary
function exams.” (Doc. #5, PageID #69). This statement, however, seems to contradict
the ALJ’s previous statement that Dr. Adkins’s opinion was not supported by clinical
findings or treatment notes. Further, if the opinion is somewhat consistent with record, it
would be expected that Dr. Adkins’s opinion would be reflected in the ALJ’s assessment
of Plaintiff’s residual functional capacity. It is not, and the ALJ fails to adequately
explain why. The one reason provided by the ALJ does not amount to “good reasons” for
rejecting Dr. Adkins’s opinion. “The failure to provide ‘good reasons’ for not giving [the
treating physician’s] opinions controlling weight hinders a meaningful review of whether
the ALJ properly applied the treating-physician rule….” Gayheart, 710 F.3d at 377.
Dr. Boerger
The ALJ assigned consulting psychologist Dr. Boerger’s opinion some weight:
“[B]ased on the scant evidence in the record as to [Plaintiff’s] mental functioning, the
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undersigned would afford some weight to Dr. Boerger’s opinion based on its
effectiveness of articulating [Plaintiff’s] condition.” (Doc. #5, PageID #70). The ALJ
also credited Dr. Boerger’s assessment as “consistent with his own clinical findings[.]”
Id. Despite finding it consistent, the ALJ reached a different conclusion—“the
undersigned does not find any marked or even moderate cognitive limitations established
by the mental status examination findings.” Id. He further explained that he “does not
believe that those cognitive deficiencies noted would severely interfere with certain work
related functioning when compared to the totality of the evidence presented in the
record.” Id. In support of this conclusion, the ALJ pointed out that Plaintiff is able to
socialize and manage his own funds. Id. at 70 (citing Exhibit 17F\6-7). Further, he “has
exhibited some visual motor and nonverbal type intellectual abilities on examination[.]”
Id. Finally, Dr. Boerger assigned a GAF score of 55, which—according to the ALJ—
“would suggest that [Plaintiff’s] emotional instabilities are not as severe as [Plaintiff]
would allege.” Id. The ALJ’s examples, however, are consistent with Dr. Boerger’s
opinions. For example, Plaintiff’s ability to socialize is consistent with Dr. Boerger’s
opinion that there were no indications Plaintiff would have difficulty relating to
coworkers or supervisors.
Likewise, Dr. Boerger’s opinion is consistent with the medical evidence of record.
For instance, Dr. Adkins, Plaintiff’s family-care physician, began treating Plaintiff’s
anxiety and depression in September 2014. Id. at 441. At that time, she noted that
Plaintiff’s anxiety symptoms include feelings of impending doom, light headedness,
increased perspiration, shakiness, dizziness, and irritability. Id. He experienced these
15

symptoms several times a day. Id. He also felt down, depressed, or hopeless nearly
every day and he had little interest or pleasure in doing things. Id. at 444. She prescribed
Prozac. Id. at 443. Dr. Adkins also noted that Plaintiff was seeing a counselor but was
not able to see the physician for months because of a backlog. Id. Until at least July
2015, she consistently documented his continuing mental health struggles. Id. at 696,
700, 779, 783.
Between June 2014 and September 2015, William Baumann, Plaintiff’s social
worker, and Dr. Cheng Pan, Plaintiff’s psychiatrist, consistently assigned Plaintiff a GAF
score of 51. Id. at 402, 639, 644, 649. In February 2015, Dr. Pan indicated Plaintiff had
limited eye contact, was withdrawn and preoccupied, and displayed psychomotor
retardation. Id. at 636. Further, he opined Plaintiff’s fund of knowledge and abstraction
was inadequate, his estimated intelligence was below average, and his mood and affect
were anxious, blunted, constricted, depressed, indifferent, and restricted. Id. at 638.
Although Dr. Boerger’s opinion is consistent with the medical evidence of record
and the ALJ assigned it some weight, the ALJ did not incorporate any of his mental
restrictions into Plaintiff’s residual functional capacity. The ALJ’s bare-bones
assessment of Dr. Boerger’s opinions constitutes error under the Regulations: “Unless a
treating source’s opinion is given controlling weight, the administrative law judge must
explain in the decision the weight given to the opinions of a State agency medical or
psychological consultant….” 20 C.F.R. § 404.1527(e)(2)(ii); see Soc. Sec. R. 96–6p,
1996 WL 374180, at *2 ([ALJs] … are not bound by findings made by State agency or

16

other program physicians and psychologists, but they may not ignore these opinions and
must explain the weight given to the opinions in their decisions.”).
Dr. Kahkonen
The ALJ assigned the opinion of Dr. Kahkonen, a consultative examiner for the
Ohio Department of Job and Family Services, “significant weight.” (Doc. #5, PageID
#70). The ALJ found, “Dr. Kahkonen’s assessment is aligned with the objective medical
record as a whole regarding the severity and limiting effect of [Plaintiff’s] back and ankle
condition.” Id. The ALJ does not identify what evidence aligns with Dr. Kahkonen’s
opinion.
Further, the ALJ does not acknowledge any deficiencies in Dr. Kahkonen’s
opinion. For example, Dr. Kahkonen, when asked if any of Plaintiff’s “alleged disabling
opinions result[ed] in surgery,” he indicated they had not. Id. at 479. This is not
consistent with Dr. Maher’s notes indicating Plaintiff had a surgical scar visible on his
right ankle and foot. Id. at 374. Further, Dr. Kahkonen provides no explanation for any
of his opinions. Id. at 477-82; see 20 C.F.R. § 404.1527(c)(3) (“The better an
explanation a source provides for a medical opinion, the more weight we will give that
medical opinion.”). This flies in the face of the Regulations: “because nonexamining
sources have no examining or treating relationship with you, the weight we will give their
medical opinions will depend on the degree to which they provide supporting
explanations for their medical opinions.” 20 C.F.R. § 404.1527(c)(2).

17

Non-Examining Source Opinions
The ALJ does not distinguish between the medical and psychological consultants.
Nonetheless, noting that he “considered the totality of the evidence, including records not
available to the State agency consultant at the time of the assessment[,]” the ALJ
assigned their opinions “some weight as they are generally consistent with the claimant’s
current level of functioning. The undersigned has made the appropriate modifications
based on new evidence.” (Doc. #5, PageID #71). The ALJ does not identify what new
evidence he is referring to or how it differs from their opinions. The ALJ accurately
observed, “Although State agency consultants are non-examining, they are professionals
in their field and well-versed in the assessment of functionality as it pertains to the
disability provisions of the Social Security Act, as amended.” Id.
The ALJ does acknowledge the State agency consultants (Dr. Demuth and Dr.
Hoyle) “found mild restrictions in activities of daily living; mild difficulties in
maintaining social functioning; and moderate difficulties in maintaining concentration,
persistence or pace[.]” (Doc. #5, PageID #71) (citing Exhibits 1A, 2A, 5A, 6A). He
fails, however, to explain why he found Plaintiff had no restriction of activities of daily
living and a mild limitation in concentration, persistence, or pace. The ALJ also does not
explain why he disagreed with Dr. Demuth and Dr. Hoyle’s finding that Plaintiff’s severe
impairments included organic brain syndrome and affective disorders or that Plaintiff’s
inflammatory arthritis was non-severe. And, he does not explain why Plaintiff’s RFC
contains no mental limitations when Dr. Demuth and Dr. Hoyle opined, “Plaintiff’s
“mental health issues would cause reduced concentration and stress tol[erance] but
18

[Plaintiff] retains the ability to carry out 1-3 step instructions that are static in nature.” Id.
at 129.
Similarly, the ALJ recognized that the State agency consultants (Dr. Torello and
Dr. Bolz) “limited claimant to a medium lifting restriction; with postural limitations
including frequent stooping[.]” Id. at 71 (citing Exhibits 1A, 2A, 5A, 6A). However, he
fails to address why he limited Plaintiff to light work but did not limit Plaintiff’s ability to
stoop to frequently. And, the ALJ does not recognize that although Dr. Torello opined
Plaintiff must avoid concentrated exposure to fumes, odors, dusts, gases, poor ventilation,
etc., Dr. Bolz opined Plaintiff must avoid even moderate exposure to these irritants.
Despite giving “some weight” to the opinions of the State agency consultants, the
ALJ largely ignored their opinions in determining Plaintiff’s residual functional capacity.
As explained above, when a treating source’s opinion is not given controlling weight,
ALJs must explain in the decision the weight given to the opinions of a State agency
medical or psychological consultant….” 20 C.F.R. § 404.1527(e)(2)(ii); see Soc. Sec. R.
96-6p, 1996 WL 374180, at *2 (Soc. Sec. Admin. July 2, 1996). The ALJ’s failure to do
so in this case constitutes error.
Accordingly, for the above reasons, Plaintiff’s Statement of Errors is well taken.3
B.

Remand

A remand is appropriate when the ALJ’s decision is unsupported by substantial
evidence or when the ALJ failed to follow the Administration’s own regulations and that
3

In light of the above discussion, and the resulting need to remand this case, an in-depth analysis of
Plaintiff’s other challenges to the ALJ’s decision is unwarranted.

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shortcoming prejudiced the plaintiff on the merits or deprived the plaintiff of a substantial
right. Bowen, 478 F.3d at 746. Remand may be warranted when the ALJ failed to
provide “good reasons” for rejecting a treating medical source’s opinions, see Wilson,
378 F.3d at 545-47; failed to consider certain evidence, such as a treating source’s
opinions, see Bowen, 478 F.3d at 747-50; failed to consider the combined effect of the
plaintiff’s impairments, see Gentry, 741 F.3d at 725-26; or failed to provide specific
reasons supported by substantial evidence for finding the plaintiff lacks credibility, see
Rogers, 486 F.3d at 249.
Under sentence four of 42 U.S.C. § 405(g), the Court has authority to affirm,
modify, or reverse the Commissioner’s decision “with or without remanding the cause for
rehearing.” Melkonyan v. Sullivan, 501 U.S. 89, 99 (1991). Consequently, a remand
under sentence four may result in the need for further proceedings or an immediate award
of benefits. E.g., Blakley, 581 F.3d at 410; Felisky v. Bowen, 35 F.3d 1027, 1041 (6th
Cir. 1994). The latter is warranted where the evidence of disability is overwhelming or
where the evidence of disability is strong while contrary evidence is lacking. Faucher v.
Sec’y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994).
A judicial award of benefits is unwarranted in the present case because the
evidence of disability is not overwhelming and the evidence of disability is not strong
while contrary evidence is lacking. However, Plaintiff is entitled to an Order remanding
this case to the Social Security Administration pursuant to sentence four of §405(g) due
to the problems discussed above. On remand, the ALJ should be directed to evaluate the
evidence of record, including the medical source opinions, under the applicable legal
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criteria mandated by the Commissioner’s Regulations and Rulings and by case law; and
to evaluate Plaintiff’s disability claim under the required five-step sequential analysis to
determine anew whether Plaintiff was under a disability and whether his applications for
Disability Insurance Benefits and Supplemental Security Income should be granted.
IT IS THEREFORE RECOMMENDED THAT:
1.

The Commissioner’s non-disability finding be vacated;

2.

No finding be made as to whether Plaintiff Bradley Denniston was under a
“disability” within the meaning of the Social Security Act;

3.

This matter be REMANDED to the Social Security Administration under
sentence four of 42 U.S.C. § 405(g) for further consideration consistent
with this Report and Recommendations, and any decision adopting this
Report and Recommendations; and

4.

The case be terminated on the Court’s docket.

January 9, 2018

s/Sharon L. Ovington
Sharon L. Ovington
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 Recommendations. Such objections shall specify the
portions of the Report 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.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947,
949-50 (6th Cir. 1981).

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