Frost v. Commissioner of Social Security
REPORT AND RECOMMENDATION1 THAT: (1) THE NON-DISABILITY FINDING AT ISSUE BE FOUND UNSUPPORTED BY SUBSTANTIAL EVIDENCE, AND REVERSED; (2) THIS MATTER BE REMANDED TO THE COMMISSIONER UNDER THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR AN IMMEDIATE AWARD OF BENEFITS; AND (3) THIS CASE BE CLOSED. Objections to R&R due by 1/2/2019. Signed by Magistrate Judge Michael J. Newman on 12/18/18. (kma)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
Case No. 3:18-cv-70
COMMISSIONER OF SOCIAL SECURITY,
District Judge Walter H. Rice
Magistrate Judge Michael J. Newman
REPORT AND RECOMMENDATION1 THAT: (1) THE NON-DISABILITY
FINDING AT ISSUE BE FOUND UNSUPPORTED BY SUBSTANTIAL EVIDENCE, AND
REVERSED; (2) THIS MATTER BE REMANDED TO THE COMMISSIONER UNDER
THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR AN IMMEDIATE AWARD OF
BENEFITS; AND (3) THIS CASE BE CLOSED
This is a Social Security disability benefits appeal. At issue is whether the Administrative Law
Judge (“ALJ”) erred in finding Plaintiff not “disabled” and therefore unentitled to Supplemental
Security Income (“SSI”) and/or Disability Insurance Benefits (“DIB”).2 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),3 and the record as a whole.
Plaintiff filed for SSI and DIB alleging disability as a result of a number of alleged impairments
including, inter alia, hidradenitis (a chronic skin condition), a depressive order, and an anxiety order.
Attached hereto is a NOTICE to the parties regarding objections to this Report and
“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. § 416.1520 respectively.” Colvin v.
Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). Citations in this Report and Recommendation to DIB
regulations are made with full knowledge of the corresponding SSI regulations, and vice versa.
Hereafter, citations to the electronically-filed administrative record will refer only to the PageID
Plaintiff first applied for benefits on September 28, 2011. PageID 61. After initial denial of
her applications, Plaintiff received a hearing before ALJ Elizabeth Motta. PageID 81-114. In a
decision dated January 17, 2014, the ALJ found Plaintiff not disabled. PageID 61-80. The ALJ’s nondisability finding was subsequently reversed by this Court on February 12, 2016 and remanded for
further administrative proceedings. PageID 906-07. After obtaining additional evidence and holding
a second hearing, ALJ Motta issued a second written decision dated September 23, 2016, again finding
Plaintiff not disabled. PageID 805-26. Specifically, the ALJ found at Step Five that, based upon
Plaintiff’s residual functional capacity (“RFC”) to perform a reduced range of light work,4 “there are
jobs that exist in significant numbers in the national economy that [Plaintiff] can perform[.]” PageID
Thereafter, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s nondisability finding the final administrative decision of the Commissioner. PageID 936. See Casey v.
Sec’y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993). Plaintiff then filed this timely
appeal challenging the ALJ’s September 23, 2016 decision. 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 805-26),
Plaintiff’s Statement of Errors (doc. 9), and the Commissioner’s memorandum in opposition (doc. 10).
The Court incorporates all of the foregoing and sets forth the facts relevant to this appeal herein.
“Light work “involves lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds” and “requires a good deal of walking or standing, or . . . sitting most
of the time with some pushing and pulling of arm or leg controls.” 20 C.F.R. § 404.967(b). An individual
who can perform light work is presumed also able to perform sedentary work. Id. Sedentary work “involves
lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files,
ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount
of walking and standing is often necessary in carrying out job duties.” 20 C.F.R. § 404.967(a).
Standard of Review
The Court’s inquiry on a Social Security appeal is to determine (1) whether the ALJ’s nondisability 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 742,745-46 (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. § 404.1520(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
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).
In her Statement of Errors, Plaintiff argues the ALJ erred in: (1) finding that her impairments
did not meet or equal Listing § 8.06; and (2) weighing the medical source opinions. Doc. 9 at PageID
1725. This second issue is dispositive of this appeal.
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 then in effect, 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. § 404.1527(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 opinion 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. § 404.1527(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 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)).
At issue here are the opinions of two treating physicians, Michael A. Elrod, D.O., and Morris
Brown, M.D., who both opined that Plaintiff’s impairments would severely impact her ability to work.
First, Dr. Elrod indicated that Plaintiff would have difficulty with sustained sitting, difficulty and pain
with raising both arms and sustained use of her arms, difficulty using her right hand due to weakness,
and difficulty with any lifting and any sustained reaching. PageID 458. The ALJ determined that Dr.
Elrod’s opinion “was not entitled to controlling or deferential weight.” PageID 820. Accordingly, the
ALJ declined to include Dr. Elrod’s limitations in the RFC.
The undersigned finds two errors in the ALJ’s assessment of Dr. Elrod’s opinion. First, despite
accurately reciting the applicable treating physician rule, the ALJ failed to apply it. PageID 819.
Specifically, the ALJ erroneously discounted Dr. Elrod’s opinion after finding that it was given
proximately to Plaintiff’s surgeries, and “at those times the claimant may have some minor limitations,
[but] it is not realistic that she would have difficulty with these activities most of the time.” PageID
820. This determination is not commensurate with the controlling weight test, which requires the ALJ
to analyze whether Dr. Elrod’s opinion was “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and . . . not inconsistent with the other substantial evidence in [the]
case record.” LaRiccia 549 F. App’x at 384. Thus, the ALJ failed to articulate “good reasons” for
discounting the treating physician’s opinion. Wilson, 378 F.3d at 541; Roberts v. Comm’r of Soc. Sec.,
14 F. Supp. 3d 968, 977 (S.D. Ohio 2014).
Second, the ALJ’s conclusion impermissibly substitutes her opinion for that of Dr. Elrod’s by
independently determining that the limitations set forth by Dr. Elrod were applicable only immediately
after Plaintiffs’ surgeries. Simpson v. Comm’r of Soc. Sec., 344 F. App’x 181, 194 (6th Cir. 2009)
(citing Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996) (stating “ALJ’s must not succumb to the
temptation to play doctor and make their own independent medical findings”); Mabra v. Comm’r of
Soc. Sec., No. 2:11-cv-00407, 2012 WL 3600127, at *3 (S.D. Ohio 2012) (“[T]he Court cannot ignore
that the ALJ offered [his] own lay interpretation of the medical evidence in the face of more severe
opinions from Plaintiff's treating physician”). Even if the ALJ’s medical assumption in this regard -i.e., that Dr. Elrod’s limitations are applicable only concurrent with surgery -- is correct, the record
belies the ALJ’s subsequent assertion that this necessarily means they are inapplicable “most the time.”
PageID 820. Indeed, in a span of just one year, Plaintiff -- as a result of her hidradenitis -- was required
to have recurrent abscesses under both arms surgically drained sixteen times (i.e., an average of over
once per month). PageID 778. Because the ALJ substituted her own medical judgment for that of a
treating physician’s, the undersigned finds the ALJ’s weighing of Dr. Elrod’s opinion not supported
by substantial evidence. Meece v. Barnhart, 192 F. App’x 456, 456 (6th Cir. 2006).
The ALJ’s errors are more glaring in light of the opinions of treating physician Dr. Brown,
which support the limitations proffered by Dr. Elrod. In March, 2016, Dr. Brown concluded that
Plaintiff was “medically frail” due to her severe hidradenitis. PageID 1714. A month later, Dr. Brown
opined that Plaintiff’s hidradenitis and depression prevented her from being prompt and regular in
attendance at work. PageID 1716. He concluded that she was unable to withstand the pressure of
meeting normal standards of work productivity and work accuracy without a risk of decompensation,
and was unable to complete a normal work day and work week without interruption from her
symptoms. Id. Ultimately, Dr. Brown concluded that Plaintiff was unable to perform even sedentary
work and would be absent from work more than three times a month. PageID 1720-21. The Vocational
Expert (“VE”) testified at the hearing that if Plaintiff were absent from work even two times a month,
she would not be eligible for any competitive employment. PageID 899-900.
The ALJ similarly discounted Dr. Brown’s treating opinion, finding that it was not “entitled to
controlling or deferential weight under the regulations.” PageID 820. Again, the ALJ summarily
asserted that she employed the controlling weight analysis, but neglected to apply the first step of the
test in any substantive way. See Chrismon v. Colvin 531 F. App’x 893, 900 (10th Cir. 2013) (in
analyzing a treating physician’s opinion, “the ALJ must complete a sequential two-step inquiry, each
step of which is analytically distinct”). Rather, the ALJ determined that Dr. Brown’s opinion was
internally inconsistent and unsupported. While a proper critique under the regulations, such factors
are relevant only after the ALJ provides good reasons for “not giv[ing] the treating source's medical
opinion controlling weight” -- a required step the ALJ failed to address in this case. 20 C.F.R.
§ 1527(c)(2); see also Gayheart, 710 F.3d at 376 (noting that certain factors are “properly applied only
after the ALJ has determined that a treating-source opinion will not be given controlling weight”).
This error is not harmless where, as here, a proper execution of the treating physician rule
results in a conclusion contrary to the ALJ’s. See Heston v. Comm’r of Soc. Sec., 245 F.3d 528 (6th
Cir. 2001) (finding harmless error only when the proper use of legal standards and procedure would
have resulted in the same outcome as that produced in spite of the presence of the error). The record
is rife with objective medical findings that are consistent with, and support, affording Dr. Brown’s
opinion controlling weight. As noted supra, Dr. Elrod performed multiple surgeries on Plaintiff and
opined that she would have difficulty and pain with raising and substantial use of her arms. PageID
458; O'Malley v. Comm'r of Soc. Sec., 210 F. Supp. 3d 909, 915 (S.D. Ohio 2016) (“Given the relatively
consistent opinions between these two treaters, the ALJ's error was not harmless”).
Dr. Brown, himself, performed multiple surgeries on Plaintiff and noted, from October 2012
to September 2013, that she had “tenderness and limited range of motion” in both of her upper
extremities. PageID 739, 745, 748, 753, 756, 763, 766, 773, 779, 783, 790, 794. During this same
time, Dr. Brown noted that due to her hidradenitis Plaintiff had a painful cyst on her right buttocks and
a waddling gait (PageID 523-25); multiple raised tender nodules (PageID 794); lacerations on her left
labia with pus, lesions of the right axilla, right armpit flattened nevis, and anal and rectal abscesses
(Page ID 740-50). In September 2015, she was diagnosed with MRSA. PageID 1651. In November
2015, Plaintiff required an excision of recurrent hidradenitis in both her right and left axillary. PageID
1635. In June 2016, Plaintiff underwent excision of painful nodules on the right upper extremity and
right breast. PageID 1654. “The ALJ’s error cannot be deemed harmless when the treating physician’s
opinion should have been given controlling weight, and that assignment of controlling weight would
have resulted in a finding of disability.” Linton v. Comm’r of Soc. Sec., 2013 U.S. Dist. LEXIS 165085,
*39-40 (S.D. Ohio 2013).
The undersigned finally notes that, in regard to Dr. Brown’s opinion concerning Plaintiff’s
mental impairments, the ALJ discounted it partially because “Dr. Brown is not a mental health
professional.” PageID 820. But, “it is well established that primary care physicians (those in family
or general practice) ‘identify and treat the majority of Americans’ psychiatric disorders.’” Sprague v.
Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). As this Court has noted a number of times, family
physicians such as Dr. Brown are competent to render medical opinions regarding mental impairments
and the limitations associated therewith. Wert v. Comm’r of Soc. Sec., 166 F.Supp.3d 935, 946 (S.D.
Ohio 2016); Byrd v. Comm’r of Soc. Sec., No. 3:14-CV-242, 2015 WL 4540575, at *5 (S.D. Ohio May
29, 2015); King v. Comm’r of Soc. Sec., No. 3:14-CV-351, 2016 WL 1729550, at *6 (S.D. Ohio Mar.
28, 2016). Dr. Brown concluded that Plaintiff was disabled due to her depression, and the ALJ erred
when she failed to articulate “good reasons” why this opinion was not entitled to controlling weight.
Blakley, 581 F.3d at 406–07.
The ALJ’s error substantially prejudiced Plaintiff resulting in the wrongful denial of benefits,
and it is therefore not harmless. See Wilson, 378 F.3d at 547. The vocational expert testified that if
Plaintiff were limited as described by treating physician Dr. Brown, competitive employment would
be precluded. PageID 899-900.
When the ALJ’s non-disability determination is unsupported by substantial evidence, the Court
must determine whether to remand the matter for rehearing or award benefits. Generally, benefits may
be awarded immediately “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). The Court
may only award benefits where proof of disability is strong and opposing evidence is lacking in
substance, so that remand would merely involve the presentation of cumulative evidence, or where
proof of disability is overwhelming. Faucher, 17 F.3d at 176; see also Felisky v. Bowen, 35 F.3d 1027,
1041 (6th Cir. 1994).
Such is the case, here, where two of Plaintiff’s treating physicians endorsed more restrictive
limitations on Plaintiff’s ability to work than did the ALJ and those limitations are strongly supported
by Plaintiff’s extensive history of skin lesions. Moreover, the Court notes that because this case was
remanded to the Commissioner previously, there is no just reason to further delay this matter for
even more administrative procedures. See Gentry v. Comm’r of Soc. Sec., 741 F.3d 708, 730 (6th
IT IS THEREFORE RECOMMENDED THAT: (1) the Commissioner’s non-disability
finding be found unsupported by substantial evidence, and REVERSED; (2) this matter be
REMANDED to the Commissioner under the Fourth Sentence of 42 U.S.C. § 405(g) for an immediate
award of benefits; and (3) this case be CLOSED.
December 18, 2018
s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge
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 Recommendation. This period is not extended by virtue of Fed. R. Civ. P. 6(d) if served
on you by electronic means, such as via the Court’s CM/ECF filing system. If, however, this Report
and Recommendation was served upon you by mail, this deadline is extended to SEVENTEEN DAYS
by application of Fed. R. Civ. P. 6(d). Parties may seek an extension of the deadline to file objections
by filing a motion for extension, which the Court may grant upon a showing of good cause.
Any objections filed shall specify the portions of the Report and Recommendation 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
A party may respond to another party’s objections within FOURTEEN days after being served
with a copy thereof. As noted above, this period is not extended by virtue of Fed. R. Civ. P. 6(d) if
served on you by electronic means, such as via the Court’s CM/ECF filing system. If, however, this
Report and Recommendation was served upon you by mail, this deadline is extended to SEVENTEEN
DAYS by application of Fed. R. Civ. P. 6(d).
Failure to make objections in accordance with this procedure may forfeit rights on appeal. See
Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.
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