Blevins-Bryant v. Commissioner of Social Security

Filing 16

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 PROCEEDINGS CONSISTENT WITH THIS OPINION; AND (3) THIS CASE BE CLOSED Objections to R&R due by 5/20/2019. Signed by Magistrate Judge Michael J. Newman on 5/6/19. (kma)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
CYNTHIA BLEVINS-BRYANT,
Plaintiff,

Case No. 3:18-cv-104

vs.
COMMISSIONER OF SOCIAL SECURITY,

District Judge Walter H. Rice
Magistrate Judge Michael J. Newman

Defendant.
______________________________________________________________________________
REPORT AND RECOMMENDATION 1 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 PROCEEDINGS CONSISTENT
WITH THIS OPINION; 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 Disability Insurance
Benefits (“DIB”). This case is before the Court upon Plaintiff’s Statement of Errors (doc. 9), 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 alleging a disability onset date of August 14, 2009. PageID 1484.
Plaintiff claims disability as a result of a number of alleged impairments including, inter alia, obesity,
migraine headaches, major depressive disorder, and an anxiety disorder. PageID 727.
After an initial denial of her applications, Plaintiff received a hearing before ALJ Irma J.
Flottman on January 4, 2013. PageID 827-50. ALJ Flottman issued a written decision on February
14, 2013 finding Plaintiff not disabled. PageID 880-95. After the Appeals Council denied Plaintiff’s

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Attached hereto is a NOTICE to the parties regarding objections to this Report and Recommendation.
Hereafter, citations to the electronically-filed record will refer only to the PageID number.

request for review, she filed an appeal with this Court. 871-74. ALJ Flottman’s non-disability finding
was reversed and her case was remanded, in part, to adequately account for Plaintiff’s migraine
headaches. Blevins-Bryant v. Comm’r of Soc. Sec., No. 3:14-cv-237, 2015 U.S. Dist. Lexis 105286
(S.D. Ohio Aug. 11, 2015).
Plaintiff then received a second hearing before ALJ Eric Anschuetz on October 18, 2016.
PageID 745-826. On remand, Plaintiff amended her complaint to seek only DIB for the closed period
of August 14, 2009 to November 18, 2015. PageID 724. ALJ Anschuetz issued a written opinion on
May 3, 2016, finding Plaintiff not disabled during that closed period. PageID 724-36. Specifically,
ALJ Anschuetz found at Step Five that, based upon Plaintiff’s residual functional capacity (“RFC”) to
perform a reduced range of light work, 3 “there were jobs that exist in significant numbers in the national
economy that she could have performed[.]” PageID 728-36.
Thereafter, the Appeals Council denied Plaintiff’s request for review, making ALJ Anschuetz’s
non-disability finding the final administrative decision of the Commissioner. PageID 715-18. 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). This May 3, 2016
non-disability finding by ALJ Anschuetz (hereinafter, “ALJ”), concerning the closed period of August
14, 2009 to November 18, 2015, is now before the Court for review.
B.

Evidence of Record

The evidence of record is adequately summarized in the ALJ’s decision (PageID 724-36),
Plaintiff’s Statement of Errors (doc. 9), the Commissioner’s memorandum in opposition (doc. 12), and

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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. § 404.1567(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. § 404.1567(a).

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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 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.
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

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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:
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.
On appeal, Plaintiff argues that the ALJ erred in: (1) failing to properly account for her
migraine headaches in his RFC analysis; and (2) weighing the opinion of her examining psychologist,
Giovanni Bonds, Ph.D. PageID 1491. Agreeing with Plaintiff’s first assignment of error, the
undersigned would instruct the ALJ to consider Plaintiff’s second argument on remand.
The Commissioner’s regulations provide that a claimant’s “impairment(s), and any related
symptoms, such as pain, may cause physical and mental limitations that affect what [he or she] can do
in a work setting.” 20 C.F.R. § 404.1545(a)(1). An individual’s RFC “is the most [he or she] can still

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do despite [his or her] limitations.” Id. While the determination of an RFC is within the ALJ’s
province, “the RFC is ultimately a medical question that must find at least some support in the medical
evidence of record.” Powell v. Comm’r of Soc. Sec., No. 3:15-CV-406, 2017 WL 1129972, at *4 (S.D.
Ohio Mar. 27, 2017) (citing Casey v. Astrue, 503 F.3d 687, 697 (8th Cir. 2007)).
Here, as noted, the ALJ concluded that Plaintiff had the RFC to perform:
[L]ess than the full range of light work… such that the claimant can lift 20 pounds
occasionally and 10 pounds frequently. Claimant can stand and/or walk for a total of 6
hours during an 8-hour workday and sit for a total of 6 hours during an 8-hour workday.
The claimant can never climb ladders, ropes, or scaffolds, but can frequently climb
ramps and stairs. The ability to balance and kneel is unlimited. She can frequently
crouch and crawl and occasionally stoop. Due to mental health impairments she is
limited to simple, routine, repetitive tasks, but not at a production rate. She must have
a low stress work environment with few demands that are routine in nature and no
production demands.
PageID 728. An ALJ need only accept those limitations he or she finds credible. See Casey

v. Sec. of Health & Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993). To that end, the
ALJ concluded that Plaintiff’s migraine headaches did not warrant a specific limitation in
the RFC. PageID 733. The ALJ’s RFC determination, in this regard, is not supported by
substantial evidence.
The ALJ discredited Plaintiff’s complaints of migraines because “she could not
remember the last time she had to go to the emergency room because of migraine headaches
and she had not received treatment in more than a year.” Id. First, predicating a finding
that Plaintiff’s migraines necessitate any functional limitation on emergency room visits is
an inordinately high burden. It is unclear how emergency room visits provide any insight
into a Plaintiff’s ability to perform work-related activities on a sustained basis. Gayheart
v. Comm'r of Soc. Sec., 710 F.3d 365, 377 (6th Cir. 2013). The ALJ’s lack of specificity
constitutes error because he was required to build a logical bridge between the medical

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evidence and his disability finding. Fleischer v. Astrue, 774 F.Supp.2d 875, 877 (N.D.
Ohio 2011).
Second, the ALJ erroneously focused his inquiry on Plaintiff’s treatment in 2016,
the year after her closed period of disability ended. PageID 733. This error is especially
glaring because the medical records produced during the closed period at issue document
emergency room visits and appointments for the treatment of migraine headaches. See e.g.,
PageID 415, 430, 445, 453, 479, 1062, 1063. Moreover, the ALJ “must not draw any
inferences about an individual’s symptoms and their functional effects from a failure to
seek or pursue regular medical treatment without first considering any explanations that
the individual may provide, or other information in the case record, that may explain
infrequent or irregular medical visits or failure to seek medical treatment.” SSR 96-7p,
1996 SSR LEXIS 4, at *7. But here, the ALJ erred by failing to consider Plaintiff’s
explanation that she ceased emergency room visits when she came to understand the
paralysis she experienced was not a stroke, but a symptom of her complex migraines.
PageID 822.
The undersigned lastly finds error in the ALJ’s failure to consider the objective
evidence that supports Plaintiff’s complaints regarding her migraine headaches. An “ALJ must
consider all the record evidence and cannot ‘pick and choose’ only the evidence that supports
his [or her] position.” Hawthorne v. Comm’r of Soc. Sec., No. 3:13–cv–179, 2014 WL
1668477, at *11 (S.D. Ohio Apr. 25, 2014) (citing Loza v. Apfel, 219 F.3d 378, 393 (5th Cir.
2000)). In this instance, the ALJ omitted from his analysis two MRI images that document
abnormal findings consistent with Plaintiff’s complaints. PageID 481, 1376-77 (documenting
“increased signal in the subcortical white matter of both cerebral hemisphere”). In light of the

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foregoing, the undersigned finds the ALJ’s RFC and resulting non-disability finding
unsupported by substantial evidence.
IV.
When the ALJ’s non-disability determination is unsupported by substantial evidence, the Court
must determine whether to remand the matter for rehearing or to 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). In this instance, evidence of disability is not overwhelming, and remand for
further proceedings -- as specifically set forth above -- is proper.
V.
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 proceedings
consistent with this opinion; and (3) this case be CLOSED.

Date:

May 6, 2019

s/ Michael J. Newman
Michael J. Newman
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 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
otherwise directs.
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.
1981).

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