Cooper v. Commissioner of Social Security
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 4/10/2018. (srb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
SHEILA R. COOPER,
Case No. 3:17-cv-100
COMMISSIONER OF SOCIAL SECURITY,
Magistrate Judge Michael J. Newman
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. 14. 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 on Plaintiff’s Statement of Errors (doc.
9), the Commissioner’s memorandum in opposition (doc. 10), Plaintiff’s reply (doc. 11), the
administrative record (doc. 7),1 and the record as a whole.
Plaintiff filed for SSI on December 1, 2013. PageID 185-90. Plaintiff claims disability
as a result of a number of alleged impairments including, inter alia, chronic bronchitis, obesity,
affective disorder, and post-traumatic stress disorder (“PTSD”). PageID 43.
Hereafter, citations to the electronically-filed administrative record will refer only to the
After an initial denial of her application, Plaintiff received a hearing before ALJ Eric
Anschuetz on September 1, 2015. PageID 60-101. The ALJ issued a decision on November 27,
2015 finding Plaintiff not disabled. PageID 41-54. Specifically, the ALJ found at Step 5 that,
based upon Plaintiff’s residual functional capacity (“RFC”) to perform a reduced range of
medium work,2 “there are jobs that exist in significant numbers in the national economy that
[Plaintiff] can perform[.]” PageID 46-54.
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).
Evidence of Record
The evidence of record is adequately summarized in the ALJ’s decision (PageID 41-54),
Plaintiff’s Statement of Errors (doc. 9), the Commissioner’s memorandum in opposition (doc.
10) and Plaintiff’s reply (doc. 11).
The undersigned incorporates all of the foregoing and sets
forth the facts relevant to this appeal herein.
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, 745The 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(c). “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.
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.
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:
Has the claimant engaged in substantial gainful activity?;
Does the claimant suffer from one or more severe impairments?;
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?;
Considering the claimant’s RFC, can he or she perform his or her past
relevant work?; and
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).
In her Statement of Errors, Plaintiff argues that the ALJ erred by: (1) improperly
weighing the opinions of treating physician Rhea Rowser, M.D., examining physician Damian
Danopulos, M.D., and record reviewers Edmond Gardner, M.D., Elizabeth Das, M.D., Leslie
Rudy, Ph.D., and Deryck Richardson, Ph.D.; (2) failing to appropriately base her RFC on
medical opinion evidence; (3) improperly assessing her credibility; (4) failing to account for all
of her impairments; and (5) posing incomplete hypothetical questions to the Vocational Expert
(“VE”). Doc. 9 at PageID 1027-41. Finding error in the ALJ’s assessments of the opinions by
Drs. Gardner and Das, the Court does not specifically address Plaintiff’s other alleged errors, and
directs the ALJ to address these concerns on remand.
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 in effect prior to March 27, 2017, 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 opinions 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 like Drs. Gardner and Das 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)).
In this case, the medical evidence of record includes, inter alia, opinions from treating
physician Dr. Rowser and examining physician Dr. Danopulus. PageID 334-36, 606-10. After
declining to assign it controlling or deferential weight, the ALJ assigned Dr. Rowser’s opinion
“no significant weight.” PageID 51. The ALJ assigned Dr. Danopulos’s opinion “little weight.”
PageID 50. Rather than rely on the opinions by the treating or consulting physician, the ALJ
relied instead on the opinions of the record reviewers -- Drs. Gardner and Das, among others -in assessing Plaintiff’s physical limitations. PageID 50-51. Both of these record reviewers
concluded that Plaintiff could perform “heavy” or “very heavy” work with non-exertional
limitations. See PageID 103-13, 115-27. The ALJ gave these opinions “significant weight,”
concluding that “are generally supported by objective signs and findings in the preponderance of
the record.” Doc. 51. The ALJ provided no further explanation regarding how objective
evidence of record supports these opinions.
This Court, on a number of occasions, has concluded that such conclusory analysis of
record reviewing opinions amounts to reversible error. See Hollon v. Comm’r of Soc. Sec., 142 F.
Supp.3d 577, 584 (S.D. Ohio 2015); Marks v. Colvin, 201 F. Supp.3d 870, 884 (S.D. Ohio
2016); Laning v. Comm’r of Soc. Sec., No. 3:15-CV-75, 2016 WL 1729650, at *6 (S.D. Ohio
Mar. 28, 2016); Boyd v. Comm’r of Soc. Sec., No. 3:16-CV-477, 2018 WL 300174, at *3 (S.D.
Ohio Jan. 5, 2018); Marshall v. Comm’r of Soc. Sec., No. 3:16-CV-190, 2017 WL 4324763, at
*4 (S.D. Ohio Sept. 29, 2017); Boyd v. Comm’r of Soc. Sec., No. 3:16-CV-506, 2018 WL
739103, at *4 (S.D. Ohio Feb. 7, 2018); Dowell v. Comm’r of Soc. Sec., No. 3:16-CV-451, 2018
WL 671340, at *4 (S.D. Ohio Feb. 2, 2018); Logan v. Comm’r of Soc. Sec., No. 3:16-CV-480,
2018 WL 300175, at *4 (S.D. Ohio Jan. 5, 2018); Worden v. Comm’r of Soc. Sec., No. 3:14-CV438, 2016 WL 860694, at *6 (S.D. Ohio Mar. 7, 2016); Hale v. Comm’r of Soc. Sec., No. 3:15CV-360, 2017 WL 1190543, at *8 (S.D. Ohio Mar. 30, 2017); Jones v. Comm’r of Soc. Sec., No.
3:15-CV-00428, 2017 WL 540923, at *6 (S.D. Ohio Feb. 10, 2017). Consistent with the
foregoing authority, the undersigned finds the ALJ’s analysis of the record reviewers’ opinions
unsupported by substantial evidence.
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);
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 -- as specifically
set forth above -- is proper.
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.
April 10, 2018
s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?