Keith v. Commissioner of Social Security

Filing 14

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
LEROY KEITH,
Plaintiff,

Case No. 3:17-cv-164

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. 9. At issue is whether the Administrative Law Judge
(“ALJ”) erred in finding Plaintiff not “disabled” and therefore unentitled to Disability Insurance
Benefits (“DIB”) and/or Supplemental Security Income (“SSI”).1 This case is before the Court
on Plaintiff’s Statement of Errors (doc. 11), the Commissioner’s memorandum in opposition
(doc. 12), Plaintiff’s reply (doc. 13), the administrative record (doc. 7),2 and the record as a
whole.
I.
A.

Procedural History

Plaintiff filed for DIB and SSI alleging a disability onset date of July 15, 2013. PageID
223-35. Plaintiff claims disability as a result of a number of alleged impairments including, inter
“The Commissioner’s regulations governing the evaluation of disability for DIB and SSI are
identical . . . and are found at 20 C.F.R. § 404.1520, and 20 C.F.R. § 416.920 respectively.” Colvin v.
Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). Citations in this Decision and Entry to DIB regulations are
made with full knowledge of the corresponding SSI regulations, and vice versa.
2
Hereafter, citations to the electronically-filed administrative record will refer only to the
PageID number.
1

alia, lumbar spine degenerative disc disease, asthma, a history of migraine headaches,
depression, and borderline intellectual functioning. PageID 65.
After an initial denial of his applications, Plaintiff received a hearing before ALJ Gregory
G. Kenyon on September 1, 2016. PageID 80-119. The ALJ issued a written decision on
November 29, 2016 finding Plaintiff not disabled. PageID 63-72. Specifically, the ALJ found at
Step Five that, based upon Plaintiff’s residual functional capacity (“RFC”) to perform a reduced
range of medium work,3 “there are jobs in that exist in significant numbers in the national
economy that [he] can perform[.]” PageID 68-72.
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 45-47).
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 63-72),
Plaintiff’s Statement of Errors (doc. 11) and the Commissioner’s memorandum in opposition
(doc. 12), and Plaintiff’s reply (doc. 13). 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 Social Security Administration (“SSA”) classifies jobs as sedentary, light, medium, heavy,
and very heavy depending on the physical exertion requirements. 20 C.F.R. § 404.1567. “Medium
work” involves the occasional lifting of 50 pounds at a time, and frequent lifting or carrying of objects
weighing up to 25 pounds. 20 C.F.R. § 404.1567(c). 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.
3

2

the correct legal criteria. 42 U.S.C. § 405(g); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742,74546 (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. § 404.1520(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. § 404.1520(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 his Statement of Errors, Plaintiff argues that the ALJ erred by: (1) improperly
weighing the opinions of record reviewing physicians Anne Prosperi, D.O., Abraham Mikalov,
M.D., record reviewing psychologists David Dietz, Ph.D., and Vicki Warren, Ph.D., and
examining physician Amita Oza, M.D.; and (2) improperly evaluating his pain and symptom
severity. Doc. 11 at PageID 475-83. Finding error in the ALJ’s assessment of the record
reviewing physicians’ opinions, the Court does not specifically address Plaintiffs remaining
alleged errors. Instead, the undersigned would direct that the ALJ consider all such alleged
errors on remand.
In this case, there were no treating physician opinions and, instead, the ALJ relied on the
opinions of the record reviewers -- Drs. Prosperi and Mikalov-- in assessing Plaintiff’s physical

4

limitations. PageID 70. Both of these record reviewing physicians concluded that Plaintiff could
perform medium work with non-extertional limitations. See PageID 138-42, 151-56. The ALJ
gave these opinions “great weight,” concluding that they are “within the purview of their
expertise, based on their particular and detailed knowledge of the standard of disability as set
forth by the Commissioner, and consistent with the record as a whole.” Doc. 70. 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.

5

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.
Accordingly, the Court ORDERS that: (1) the Commissioner’s non-disability 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 CLOSED.
IT IS SO ORDERED.
Date:

April 10, 2018

s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge

6