McGill v. Commissioner of Social Security

Filing 12

REPORT AND RECOMMENDATIONS: 1. The Commissioner's non-disability finding be vacated; 2. No finding be made as to whether Plaintiff Rose A. McGill was under a "disability" within the meaning of the Social Security Act; 3. This case be remanded to the Commissioner and the Administrative Law Judge for further consideration consistent with this Report; and 4. The case be terminated on the docket of this Court. Objections to R&R due by 8/8/2018. Signed by Magistrate Judge Sharon L. Ovington on 7-25-18. (mcm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
ROSE A. MCGILL,
Plaintiff,
vs.
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

: Case No. 3:17-cv-00131
:
: District Judge Thomas M. Rose
: Magistrate Judge Sharon L. Ovington
:
:
:
:
:
:

REPORT AND RECOMMENDATIONS 1
I.

Introduction
The Social Security Administration denied Plaintiff Rose McGill’s October 11,

2103 application for Supplemental Security Income. She brings the present case
challenging that denial. At issue is the decision by Administrative Law Judge (ALJ)
Gregory G. Kenyon. He concluded that Plaintiff is not under a disability and,
consequently, not eligible to receive Supplemental Security Income.
Plaintiff seeks an Order reversing ALJ Kenyon’s decision and remanding for an
award of benefits. The Commissioner seeks an Order affirming ALJ Kenyon’s decision.
II.

Background

A.

Plaintiff’s Vocational Profile and Testimony

1

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

Plaintiff was 47 years old on her asserted disability onset date. She was therefore
considered a younger person under Social Security Regulations. 20 C.F.R. § 416.963(c).
She has an eleventh-grade education and no past relevant work. She does not read or
write very well. She can read a newspaper but does not understand what she reads. (Doc.
#6, PageID #75).
During an administrative hearing held by ALJ Kenyon, Plaintiff testified that she
is 5 feet 6 inches tall and weighs 261 pounds. She lives alone in an apartment. She has a
driver’s license but does “not really” drive—she just doesn’t want to. Id. at 75.
She began having back problems after her first child was born. Her back pain had
worsened in the last couple of years before the ALJ’s hearing (in September 2015). Id. It
is a sharp pain in her lower back that radiates into her hip. She estimated her pain
severity at 4 on a 0-10 scale (10 equaling the most pain). Low-back pain causes her
trouble bending at the waist. Id. at 78.
Plaintiff was using a wheelchair at the time of the ALJ’s hearing due to recent
surgery. She had previously used a walker starting in approximately 2012 due to
weakness in her legs due to blood loss from bleeding, which had been surgically
corrected. Id. at 79.
Plaintiff also testified to suffering from breathing problems, noting “it’s hard for
me to walk anywhere… I can’t breathe, I get really weak, lightheaded, I want to fall
down.” Id. at 82. This occurs whenever she walks. She does not use inhalers and does
2

not smoke. She is limited to walking 40 to 50 feet because she gets out of breath. Id. at
86. She can sit for 60 to 90 minutes.
Plaintiff has a history of anxiety and depression. She said she isolates herself in
her room 15 hours per day and rarely leaves her home because she gets nervous and
anxious around others. Id. at 83-84. When she watches television, she has a hard time
paying attention. She explained, “My mind drifts off on everything I do….” Id. at 85.
Plaintiff estimated that that she is cannot lift more than 5 pounds or walk more
than 50 feet. Id. at 87. She can stand in one spot for 3 or 4 minutes.
As to daily activities, Plaintiff testified that she spends most of her time in her
room laying down and playing solitaire on her phone. Id. at 86. She can dress herself,
take a shower and bath but has a hard time doing her hair. Id. at 87. She doesn’t perform
household chores; her daughter visits and helps. She likes to sit at her desk and read her
Bible for 30-minutes. Id. She stops because she gets tired and gets frustrated with her
inability to understand it. She also forgets what she’s read. Id. at 91. There was a time
when she went to Bible study on Friday nights but this lasted only 2 months because she
“just wanted to go back into [her] corner….” Id. at 92.
B.

Mental Impairments
TCN Behavioral Health
Plaintiff sought mental health treatment at TCN in October 2012. (Doc. #6,

PageID #s 293-312). She presented feeling depressed and having difficulty leaving her
3

home because of limited motivation and an inability to safely walk. Id. at 293, 311.
Plaintiff was diagnosed with recurrent depressive psychosis. Id. at 403.
When seen by her therapist in December 2012, Plaintiff reported that she has
gotten a walker, an eye exam, new glasses and her driver’s license. Her medications
were working very well. She indicated that her mood was very good and she had been
able to come out of her room and help with fixing meals. She was also able to visit with
visitors and not feel overwhelmed. Id.at 341. On mental-status examination, Plaintiff
was well groomed, exhibited slow speech, was cooperative, thought process was within
normal limits, her mood was euthymic, full range effect, but she appeared confused with
limited insight and judgment. Id. at 339-40.
Plaintiff saw Bobbie Fussichen, APRN, BC, a nurse specialist, for a psychiatric
evaluation on December 2, 2012. Id. at 386-90. Plaintiff reported a history of depression
for at least 1 year, low energy, interest, and motivation. She isolated herself in her room,
slept poorly, and had decreased concentration. Id. at 386. During a mental-status
examination, Plaintiff exhibited slow speech, depressed mood, restricted affect, impaired
cognition, and poor insight/judgment. Id. at 388-89. She had no previous mental health
treatment. Id. at 390.
In February 2013, Plaintiff’s daughter called TCN and reported that Plaintiff will
not get out of bed to take her medication. She received medical news about having
tumors and denied social-security benefits. Id. at 361.
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In April 2013, Plaintiff reported to Nurse Fussichen that she was moving a little
better, had been going to physical therapy, sleeping ok, sleeping during the day but was
awake at night. Her appetite was good and she had no new problems. Her medications
were helping and she felt less depressed. Id. at 394. On mental-status examination, her
thought content was normal, she was cooperative, her mood was improved but she
remained depressed, and she had a full affect. Id. at 394-95.
On August 14, 2013, Plaintiff met with a CSS (Community Support Services) staff
member, a support program provided by TCN Behavioral. Plaintiff reported that on a
bad day, she has depression with symptoms including self-isolation, loneliness, and
tearfulness. Id. 314. On August 27, 2013, Plaintiff met again with a CSS staff member
who noted Plaintiff’s “mood was good with cooperative behavior and disorganized
thought process….” Id. at 318. She was sleeping well and taking medications as
prescribed. Id. at 317-18.
During a home visit in September 2013, the same CSS staff member informed
Plaintiff that he would assist her in applying for SSI. He also informed her “that due to
her diagnosis and ability to work that she may not qualify for SSI.” Id. at 320. When
seen by Nurse Fussichen on October 2, 2013, Plaintiff’s mood was a little depressed, she
was cooperative and had normal thought processes. She reported to Nurse Fussichen that
she was getting 7 hours of broken sleep and her medication was helpful expect for sleep.
Id. at 400.
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The CSS staff member visited Plaintiff’s home in November 2013 to help her with
a phone interview she had with the Social Security Administration. Id. at 331. He noted
that Plaintiff had to be redirected multiple times throughout the meeting due to
depression and anxiety, which caused her to become anxious and lose focus on the task at
hand. Id. In December 2013, the CSS staff member visited Plaintiff to assist her with
symptom self-monitoring due to disorganization, depression, and anxiety. He reviewed
Plaintiff’s daily activities with her due to isolation, reviewed the importance of increasing
daily activity, and encouraged her to be more active. He noted Plaintiff’s mood was
good, her behavior was cooperative, and her thought process was disorganized. Id. at
449.
Nurse Fussichen completed a mental impairment questionnaire in late January
2014. Id. at 418-21. She diagnosed Plaintiff with major depression, recurrent. Id. at
418. Plaintiff’s symptoms include sleep and mood disturbances; psychomotor agitation
or retardation; social withdrawal or isolation; blunt, flat, or inappropriate affect; and
decreased energy. Id. Nurse Fussichen found that Plaintiff’s symptoms had improved
with medication, but she continued to struggle and her prognosis was guarded. Id. at 419.
Nurse Fussichen opined that Plaintiff was markedly restricted in her ability to
maintain concentration, persistence, or pace; maintain attention for extended periods;
make simple work-related decisions; comprehend detailed instructions; ask simple
questions or requests assistance; and, respond appropriately to criticism from supervisors.
6

Id. at 420. According the Nurse Fussichen, Plaintiff would be moderately limited in her
activities of daily living and in her ability to maintain social functioning; understand and
remember instructions; maintain a schedule; sustain an ordinary routine; complete a
normal work day and work week; interact with the general public; and get along with
coworkers and peers. Id. She further opined that Plaintiff’s mental impairments would
cause her to be absent from work greater than 3 times each month. Id.
During a telephone conversation with the CSS staff member in February 2014,
Plaintiff’s mood was good, she was cooperative and had disorganized thought process.
She reported sleeping well. Id. at 733-34.
In July 2014, Plaintiff’s daughter reported that Plaintiff was “more emotional,” she
felt more irritable and does not like to be around people.” Id. at 806. Plaintiff exhibited a
depressed and irritable mood with restricted affect and impaired cognition. Id. at 806-07.
She also reported in early July 2014 that she becomes stressed and then depressed with
issues relating to family and her anxiety of being around new people. Id. at 752.
On November 7, 2014, Nurse Fussichen completed a second mental-impairment
questionnaire noting that Plaintiff’s symptoms remained the same. Id. at 827. Her
symptoms were improving with medication. Her prognosis was guarded. Id. at 828.
Nurse Fussichen found when Plaintiff’s medical concerns increase, her mental-health
symptoms increase. Id. As to functional limitations, Nurse Fussichen found Plaintiff was
either slightly or moderately limited in all mental work-related functions. Id. at 829-30.
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Nurse Fussichen again opined that Plaintiff’s impairments would cause her to be absent
from work more than 3 times per month. Id. at 829. She concluded that Plaintiff would
be off-task for 20% or more of a typical workday. Id. at 830.
A CSS staff member reported in December 2014 through February 2015, that
Plaintiff was doing well, calm, cooperative, and/or less symptomatic. Id. at 1077, 1079,
1081, 1083, 1083. On December 8, 2014, she reported traveling to Tennessee to visit her
brother a couple months’ prior, having a “really good time and was going to visit again
soon.” Id. 1079. In January 2015, Plaintiff reported that she sometimes just stays in her
room because it feels safe but she now she should get out and wants to but is having
trouble doing so.” Id. at 1082. In early February 2015, Plaintiff she was not
experiencing any recent symptoms of depression or anxiety and her new medication
seemed to be working well. Id. at 1083. On February 12, 2015, she reported enjoying
going to church and did not experience anxiety there, so she wanted to go more often.
She also stated that during warmer weather, she liked talking walks through parks
because she enjoyed nature. Id. at 1085.
Twice in April 2015, a CSS staff member went to Plaintiff’s home in an attempt to
meet with Plaintiff but noted she either was not home or did not answer the door. Id. at
1104-05. On May 12, 2015, Plaintiff reported that she had been “staying pretty busy,”
helping her mother take care of her father, and that it was good for her to keep busy. Id.
at 1087. Her medication dosage was increased at her appointment with Nurse Fussichen
8

the day before. The CSS staff member observed that Plaintiff was stable, but “a little
depressed.” Id.
The remaining treatment’s notes from 2015 show Plaintiff was observed to be
cooperative, doing “pretty well,” and that she had not experienced too many symptoms of
depression or anxiety. Id. at 1089-97.
George O. Schulz, Ph.D.
Psychologist Dr. Schulz examined Plaintiff in January 2013 at the request of the
state agency. Id. at 281-89. When Dr. Schulz asked Plaintiff about the nature of her
disability, she responded, “I just don't want to go anywhere; I just want to stay in my
room. I am always afraid I am going to fall and I don't want to be embarrassed.” Id. at
282. Dr. Schulz observed that Plaintiff’s affect was appropriate and congruent, and her
mood was euthymic. Id. at 286. She told Dr. Schulz that she had trouble falling to sleep
and she would wake up during the middle of the night. When asked about her symptoms
of depression, she explained, “I just don’t want to do anything, I feel like there is no hope
for me. I feel lonely.” Id.
Dr. Schulz diagnosed Plaintiff with depressive disorder. Id. at 287. He opined
that she “is expected to be able to understand and apply instructions in a work setting
within the borderline range of functioning.” Id. at 288. He reported, “given her
performance today on formal mental status examination tasks[,] she is likely to
experience some objective performance concerns by employers[.]” Id. at 289. He
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believed that Plaintiff could respond appropriately to coworkers and supervisors in a
work setting but is “likely to have some difficulty responding appropriate to work
pressure.” Id.
State Agency Psychologists
Karla Voyten, Ph.D., reviewed Plaintiff’s file on behalf of the agency in
November 2013. Id. at 107-15. She found that Plaintiff was moderately restricted in her
activities of daily living. She had moderate difficulties in her social functioning and in
concentration, persistence, or pace. Id. at 110. Dr. Voyten thought Plaintiff was partially
credible about her symptoms of depression but noted she can still complete activities of
daily living without help and handles finances and shops. Id. at 111. Dr. Voyten
concluded Plaintiff was not significantly limited in her ability to ask simple questions or
request assistance and in her ability to get along with coworkers or peers without
distracting them or exhibiting behavioral extremes. She was moderately limited in her
ability to interact with the general public, to accept instructions and respond appropriately
to criticism from supervisors, according to Dr. Voyten. Id. at 114-15.
Another state-agency psychologist, Tonnie Hoyle, Psy.D., reviewed Plaintiff’s file
and affirmed Dr. Voyten’s assessment in March 2014. Id. at 118-32.
C.

Physical Impairments
Meghan Brewster, M.D.
Plaintiff began receiving primary care from Dr. Brewster in April 2013 at which
10

time she was observed using a walker. Id. at 538. Over the course of treatment, Dr.
Brewster’s records show Plaintiff was treated for worsening low back pain,
hypothyroidism, urinary incontinence, anemia, shortness of breath, generalized weakness,
dyslipidemia, major depression and abdominal pain, and knee pain. Id. at 413-16, 52749, 607-08, 1037-42. Dr. Brewster’s records show that Plaintiff exhibited palpable
tenderness about her abdomen, an abnormal gait, reduced spinal range of motion,
weakness in her extremities, and she was ambulating with a walker. Id. at 414, 531, 534,
536, 539, 1038.
On November 25, 2013, Dr. Brewster reported Plaintiff’s diagnoses as urinary
incontinence, hypothyroidism, status/post hysterectomy, obesity, dyslipidemia, major
depression, osteoarthritis, and anemia. Id. at 410. Dr. Brewster noted that she suffers
from “[s]ignificant deconditioning and anemia from bleeding fibroids SP [status post]
hysterectomy 5/16/13. Improving and but still weakness.” Id. Dr. Brewster concluded,
“due to decreased functionality and weakness, [she] would have difficulty with work
activities.” Id. at 411.
Martin Ambrose, M.D.
In March 2014, Plaintiff consulted with pulmonary specialist, Dr. Ambrose for
exertional dyspnea. Id. at 816. A pulmonary function test showed, “1. Mild restrictive
ventilatory defect. 2. Normal spirometry…. 3. Moderately reduced diffusion can
represent underlying pulmonary parenchymal or pulmonary vascular disease. 4.
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Flattening of the inspiratory limb of the flow volume loop can represent variable
extrathoracic obstruction.” Id. 555. She underwent a chest CT in May 2014, which
demonstrated evidence of mild air trapping and a small pericardial effusion. Id. at 826.
When seen for follow-up in June 2014, Dr. Ambrose listed her active health problems as
including arthritis, obesity, hypothyroidism, mixed dyslipidemia, urinary incontinence,
major depression, anemia (unspecified), purulent mastitis (in female), difficult ventilator
weaning, post-operative status (hysterectomy), dyspnea. Id. at 1048. Dr. Ambrose
diagnosed Plaintiff with obstructive sleep apnea (on CPAP), obesity class III (morbid
obesity), and major depressive disorder without psychotic features. Id. at 1051
Damian Danopulos, M.D.
Dr. Danopulos examined Plaintiff on December 11, 2012 for the Ohio Bureau of
Disability Determinations. Id. at 268-78. Plaintiff’s height was 65½ inches; she weighed
248 pounds. Id at 271. She told Dr. Danopulos that the following problems prevent her
from working: 1) effort related shortness of breath, 2) bilateral knee pain, 3) urinary
incontinence, 4) bilateral hip pain, 5) bilateral ankle pain and 6) depression. Id. at 268.
On examination, Dr. Danopulos found restricted and painful motions in Plaintiff’s hips
and knees as well as normal but painful range of motion in her ankles. Id. at 270. He
observed that Plaintiff’s gait was normal with the help of a walker. She could not get
onto his examination table. Id. X-rays of her left hip and left knee were interpreted as
unremarkable or negative. Id.at 271, 277-78. Dr. Danopulos concluded, “[Plaintiff’s]
12

ability to do any work related activities is affected and restricted from her morbid obesity,
which does not allow her to move around properly and she uses a walker to help stabilize
her gait when she moves around…. [She has] multiple arthralgias, like bilateral knee, hip
and ankles plus urinary stress incontinence.” Id. at 272.
Plaintiff was again examined by Dr. Danopulos for disability purposes on May 9,
2014. Id. at 562-76. She reported sleep apnea, shortness of breath, and low-back pain.
Id. at 562. She weighed 264 pounds (this was after her hysterectomy). Dr. Danopulos
found full range of motion in Plaintiff’s upper and lower extremities. “Musculoskeletal
evaluation revealed a normal gait without ambulatory aids. Spine was painful to pressure
in the lower lumbar spine. She could get on and off of the examination table without
difficulty. Bilateral straight leg rising was normal. Squatting and arising from squatting
were normal. Lumbar spine motions were restricted and painful. Toe and heel gait was
denied. There was no evidence of nerve root compression or peripheral neuropathy.” Id.
at 565. Lumbar spine x-rays which revealed moderately advanced discovertebral
degeneration at L1-L2 and L2-L3, mild disc degeneration at L4-L5, multilevel facet
arthritis and straightening of the lumbar spine. Id. at 565, 571. Id. at 572-76. A
ventilatory function study showed mild restrictive lung disease. Id. at 565. Dr.
Danopulos concluded that Plaintiff could perform a semi-sedentary, sedentary or mild
job. Id. at 566.

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State Agency Reviewers
Linda Hall, M.D. reviewed Plaintiff’s medical record in November 2013 and
determined that she could lift/carry twenty pounds occasionally and ten pounds
frequently; stand/walk about two hours in an eight-hour workday; and sit about six hours
in an eight-hour workday. She was limited to pushing and/or pulling with both lower
extremities. Id. at 112. Dr. Hall opined that Plaintiff’s “[a]bility to do any work-related
activities is affected and restricted from morbid obesity, which does not allow her to
move around properly and she uses a walker to stabilize her gait when she moves
around.” Id. Dr. Hall noted that Plaintiff has multiple arthralgias and urinary stress
incontinences. Id. Dr. Hall opined that Plaintiff could never climb ladders, ropes, and
scaffolds; never kneel or crawl; occasionally balance, stoop, or crouch. Id. at 112-13.
Abraham Mikalov, M.D. reviewed Plaintiff’s medical record in May 2014 and
affirmed Dr. Hall’s findings except he increased Plaintiff’s walking tolerance to six
hours. Id. at 128-30.
III.

“Disability” Defined and The ALJ’s Decision
Plaintiff’s eligibility to receive Supplemental Security Income hinged on whether

he was under a “disability” as defined by social security law. See 42 U.S.C. § 1381a,; see
also Bowen v. City of New York, 476 U.S. 467, 470 (1986). Narrowed to its statutory
definition, a person is “considered to be disabled … if he [or she] is unable to engage in
any substantial gainful activity by reason of any medically determinable physical or
14

mental impairment which … can be expected to last for a continuous period of not less
than twelve months.” 42 U.S.C. § 1382c(a)(3)(A).
As noted previously, it fell to ALJ Kenyon 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. § 416.920. His
significant findings for present purposes began with his conclusion that Plaintiff had
severe impairments—degenerative disc disease of the lumbosacral spine; obesity; chronic
obstructive pulmonary disease; obstructive sleep apnea; and depression—but his
impairments did not constitute a disability under the Listings, 20 C.F.R. Part 404, Subpart
P, Appendix 1.
The ALJ next found that the most Plaintiff could do despite her impairments (her
residual functional capacity, see Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 239 (6th
Cir. 2002)) was light work subject to the 11 limitations:
(1) occasional crouching, crawling, kneeling, stooping, balancing,
and climbing of ramps and stairs; (2) no climbing of ladders, ropes,
and scaffolds; (3) no work around hazards such as unprotected
heights or dangerous machinery; (4) no concentrated exposure to
temperature extremes or respiratory irritants; (5) no operation of
automotive equipment; (6) occasional operation of foot controls; (7)
limited to performing unskilled, simple, repetitive tasks; (8)
occasional contact with coworkers and supervisors; (9) no public
contact; (10) no fast paced production work or jobs involving strict
production quotas; and (11) limited to performing jobs in a
relatively static work environment in which there is very little, if
any, change in the job duties or the work routine from one day to
the next.
15

Id. at 53. With this residual functional capacity in mind, along with Plaintiff’s age,
education, and work experience, the ALJ concluded that Plaintiff could perform a
significant number of jobs available in the national economy. Id. at 58-59. He therefore
concluded that Plaintiff was not under a disability and hence not eligible for
Supplemental Security Income. Id. at 59-60.
IV.

Standard of Review
The Social Security Administration’s denial of Plaintiff’s application for

benefits—embodied in ALJ Kenyon’s decision—is subject to judicial review along two
lines: whether he applied the correct legal standards and whether substantial evidence
supports his findings. Blakley v. Comm’r of Social Sec., 581 F.3d 399, 405 (6th Cir.
2009); see Bowen v. Comm’r of Social Sec., 478 F3d 742, 745-46 (6th Cir. 2007).
Reviewing the ALJ’s legal criteria for correctness may result in reversal even if the
record contains substantial evidence supporting the ALJ’s factual findings. Rabbers v.
Comm’r of Social Sec., 582 F.3d 647, 651 (6th Cir. 2009); see Bowen, 478 F3d at 746.
Substantial-evidence review does not ask whether the Court agrees or disagrees with the
ALJ’s factual findings or whether the administrative record contains evidence contrary to
those factual findings. Rogers v. Comm’r of Social Sec., 486 F.3d 234, 241 (6th Cir.
2007); see Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999). Instead,
substantial evidence supports the ALJ’s factual findings when a “‘reasonable mind might
accept the relevant evidence as adequate to support a conclusion.’” Blakley, 581 F.3d at
16

406 (quoting Warner v. Comm’r of Social 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.
V.

Discussion
A.

Medical Source Opinions

Plaintiff argues that the ALJ erred by not properly weighing the medical source
opinions provided by treating sources Dr. Brewster and Nurse Fussichen, and the
opinions provided by the state-agency reviewing physicians/psychologists.
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,
17

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 541, 544 (6th
Cir. 2004)); Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011) (quoting, in part, 20 C.F.R.
§ 404.1527(d)(2)).
Beginning with Dr. Brewster, Plaintiff argues that ALJ Kenyon failed to even
recognize that Dr. Brewster answered the November 2013 interrogatories. Rather than
identify Dr. Brewster, the ALJ attributed the interrogatory answers to “the individual who
signed” the same. (Doc. #6, PageID# 57). According to Plaintiff, “This represents a
patent failure to apply the two-step method required when weighing a treating source’s
opinions.
The ALJ’s failure to recognize Dr. Brewster as the individual who answered the
November 2013 interrogatories constituted error. During the ALJ’s hearing, Plaintiff’s
counsel notified the ALJ that Dr. Brewster “completed a form for Bureau of Disability
Determination in November of 2013. That’s Exhibit 5F, page 5.” (Doc. 6, PageID #73
citing PageID #411). This information is consistent with the fact that Dr. Brewster was
treating Plaintiff from April 2013 through November 2014, a time period during which
the interrogatories were answered. And, Dr. Brewster’s treatment records from October
2013 are attached to the interrogatory answers further confirming that the interrogatory
answers were her treating-medical-source opinions. Id. at 400-416.
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The Commissioner counters that even if the ALJ should have found that Dr.
Brewster answered the interrogatories, he properly placed no weight on her opinions
because she made no attempt to explain with any specificity why Plaintiff is unable to
work. The Commissioner points out that Dr. Brewster provided no specific opinion
about Plaintiff’s ability to sit, stand, walk, bend, stoop, lift, grasp, etc.
The Commissioner and the ALJ overlook that Dr. Brewster identified Plaintiff’s
diagnoses, recounted the nature of her symptoms—including, “significant deconditioning
& anemia from bleeding fibroids s/p [status post] hysterectomy 5/16/13. Improving but
still weakness.” Id. at 410. Dr. Brewster also listed Plaintiff’s medications and noted she
was “compliant.” Id. at 411. Most significantly, by not recognizing that Dr. Brewster’s
answers were from a treating medical source, the ALJ overlooked the two-step weighing
procedure mandated by Social Security Regulation, Ruling, and case law. See Cole, 661
F.3d at 937 (citing the applicable Regulation, Ruling, and Wilson, 378 F.3d at 544-45).
Proceeding in this manner, the ALJ missed the rationale provided by the Regulations for
generally placing more weight on treating-medical-source opinions: They are “‘the
medical professionals 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’….”
Rogers, 486 F.3d at 242 (quoting 20 C.F.R. §416.927(d)(2)). Even if the supportability
factor supported giving less weight to Dr. Brewster’s opinion, this factor is not
19

considered until after the ALJ determines whether her opinion is due controlling weight
under the treating physician rule. See Rogers, 486 F.3d at 242 (“in all cases there
remains a presumption, albeit a rebuttable one, that the opinion of a treating physician is
entitled to great deference, its non-controlling status notwithstanding.”). And, the ALJ
merely glanced at Dr. Brewster’s opinion by considering only one of the factors under
which her opinion needed to be reviewed. This constitutes further error because it
avoided the regulatory mandate to provide “good reasons” for rejecting Dr. Brewster’s
opinions. See id. Lastly, the ALJ’s missteps were not harmless due to Dr. Brewster’s
long-term-treatment relationship with Plaintiff and because Dr. Brewster’s opinion is
logically connected to the medical treatment she provided Plaintiff. See Wilson, 378 F.3d
at 546 (“The ALJ’s error is ‘not made harmless simply because [the aggrieved party]
appears to have had little chance of success on the merits anyway.’” (brackets in
Wilson)).
Turning to Nurse Fussichen’s opinions, the ALJ placed “some, but not much
weight” on her opinions. (Doc. #6, PageID #56). The ALJ was correct to find that under
the Regulations, Nurse Fussichen falls outside the category of “acceptable medical
source.” 20 C.F.R. § 416.913; see Soc. Sec. R. 06-03p, 2006 WL 2329939, at *2 (Aug.
9, 2005). But, Nurse Fussichen an “other source,” 20 C.F.R. § 416.913(d)(1), “who is
entitled to consideration due to her expertise and long-term relationship with [Plaintiff].”
Cole, 661 F.3d at 939. The ALJ may have realized the significance of Nurse Fussichen’s
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opinions because he provided other reasons for placing “not much weight” on her
opinions. Yet, his reasons stretched the evidence to unreasonable and generalized
conclusions. For example, he generally referred to “other treating sources at TCN”
without identifying the other treating source or mentioning how such evidence conflicted
with Nurse Fussichen’s opinions.
Although the Commissioner delves into the record for evidence that supports the
ALJ’s reasoning, such post-hoc rationalizations are insufficient in this case given the
long-term and specialized mental-health care Nurse Fussichen provided Plaintiff. See
Evans v. Comm’r of Soc. Sec., 142 F.Supp.3d 566, 575 (S.D. Ohio 2015) (“[I]t is the
opinion given by an administrative agency rather than counsel’s ‘post hoc rationale’ that
is under the Court’s consideration.”) (Rose, D.J.; Newman, M.J).
Additionally, the ALJ rejected Plaintiff’s testimony that she severely isolates
herself from others by remaining home and in her room during most days. To support
this rejection, the ALJ mistakenly found that Plaintiff “does get out quite a bit, does well
when she does so, and has not been home when others have come to check on her.”
(Doc. #6, PageID #56). Yet, the record supports Plaintiff’s testimony that she isolates
herself at and within her home and does not like being around others. See id. at 293, 314,
344, 361, 426, 752, 806, 1117. The ALJ also failed to acknowledge that the treatment
notes about home visits that indicate either she was not at home or was not answering her
door. See id. Adopting the former possibility without considering the latter tends to show
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that the ALJ was looking for evidence to support his predestined non-disability
conclusion rather than conducting a balanced review of the evidence. See Brooks v.
Comm’r of Soc. Sec., 531 F. App’x 636, 641 (6th Cir. 2013) (“[A] substantiality of
evidence evaluation does not permit a selective reading of the record.”); see also Loza v.
Apfel, 219 F.3d 378, 393 (5th Cir. 2000) (“ALJ must consider all the record evidence and
cannot ‘pick and choose’ only the evidence that supports his position.”); Minor v.
Comm’r of Soc. Sec., 513 F. App’x 417, 435 (6th Cir. 2013) (reversing where the ALJ
“cherry-picked select portions of the record” rather than doing a proper analysis).
Lastly, Plaintiff argues that the ALJ erred by not adequately weighing the state
agency medical sources’ opinions. This argument is well taken. ALJs must consider the
regulatory factors when weighing the opinions provided by consulting, non-treating, and
record-reviewing medical sources. Miller v. Comm’r of Soc. Sec., 811 F.3d 825, 836-37
(6th Cir. 2016). The ALJ provided no indication of why he placed great weight on the
opinions of Drs. Hoyle, Voyten, and Mikalov. He consequently did not weigh them
under any of the factors required by the Regulations. He instead seemed to credit their
opinions to the extent they agree with his assessment of Plaintiff’s residual functional
capacity. This reversed things. Medical source opinions, once weighed under the correct
legal criteria, inform the assessment of a claimant’s residual functional capacity.
Residual functional capacity assessments do not control how much weight is placed on a
medical source’s opinion. See 20 C.F.R. § 416.945(a)(3).
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Accordingly, Plaintiff’s Statement of Errors is well taken. 2
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
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

2

Because of this conclusion and the resulting need to remand this case, an in-depth analysis of
Plaintiff’s remaining challenge to the ALJ’s decision is unwarranted.

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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
criteria mandated by the Commissioner’s Regulations and Rulings and by case law; and
evaluate Plaintiff’s disability claim under the required five-step sequential analysis to
determine anew whether Plaintiff was under a disability and whether her application for
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 Rose A. McGill was under a
“disability” within the meaning of the Social Security Act;

3.

This case be remanded to the Commissioner and the Administrative Law
Judge under Sentence Four of 42 U.S.C. §405(g) for further consideration
consistent with this Report; and

4.

The case be terminated on the docket of this Court.

July 25, 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. Pursuant to Fed. R. Civ. P. 6(d),
this period is extended to SEVENTEEN days because this Report is being served by one
of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F). 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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