Cooper v. Commissioner of Social Security

Filing 15


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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON SHEILA R. COOPER, Plaintiff, Case No. 3:17-cv-100 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. 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. I. A. Procedural History 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. 1 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 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). B. 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. 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, 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. 2 2 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 3 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. § 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 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. 4 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 5 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, 6 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. 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); 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. 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 7 proceedings consistent with this opinion; and (3) this case is TERMINATED on the docket. IT IS SO ORDERED. Date: April 10, 2018 s/ Michael J. Newman Michael J. Newman United States Magistrate Judge 8

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