Schuman v. Social Security Administration, Commissioner of

Filing 21

MEMORANDUM AND ORDER: 1) Plaintiffs motion for summary judgment [Doc. 16] isGRANTED IN PART and DENIED IN PART. 2) The Commissioners motion for summary judgment [Doc. 18]is DENIED. 3) The Commissioners decision denying benefits is REVERSEDand REMANDED pursuant to Sentence Four of42 U.S.C. § 405(g) for action consistent with thisMemorandum and Order.Signed by Magistrate Judge Susan K Lee on 10/14/2016. (DJH, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE.
at CHATTANOOGA
KIMBERLY LYNN SCHUMAN,

)
)
Plaintiff,
)
)
v.
)
)
COMMISSIONER OF SOCIAL SECURITY, )
)
Defendant.
)

No. 1:15-CV-299-SKL

MEMORANDUM AND ORDER
Plaintiff Kimberly Lynn Schuman (“Plaintiff”) brought this action pursuant to 42 U.S.C.
§ 405(g) seeking judicial review of the final decision of the Commissioner of Social Security
(“Commissioner” or “Defendant”) denying her disability insurance benefits (“DIB”). Each party
has moved for summary judgment [Docs. 16 & 18] with supporting briefs [Docs. 17, 19 & 20].
For the reasons stated below, (1) Plaintiff’s motion for summary judgment [Doc. 16] will be
GRANTED IN PART to the extent it seeks remand to the Commissioner and DENIED IN
PART to the extent it seeks an award of benefits; (2) the Commissioner’s motion for summary
judgment [Doc. 18] will be DENIED; and (3) the Commissioner’s decision denying benefits will
be REVERSED and REMANDED pursuant to Sentence Four of 42 U.S.C. § 405(g).
I.

ADMINISTRATIVE PROCEEDINGS
Plaintiff filed her application for a period of disability and DIB on May 24, 2012,

alleging disability beginning May 18, 2012 (Transcript [Doc. 11] (“Tr.”) 12, 40, 180-81).
Plaintiff’s claim was denied initially and upon reconsideration at the agency level (Tr. 114-17,
119-21). After a video hearing held March 11, 2014 (Tr. 33-78), the administrative law judge
(“ALJ”) found on May 8, 2014, that Plaintiff was not under a disability as defined in the Social

Security Act (“Act”), because she retained the residual functional capacity (“RFC”) to perform
work that existed in significant numbers in the national economy (Tr. 12-27). On September 14,
2015, the Appeals Council denied Plaintiff’s request for review (Tr. 1-6), making the ALJ’s May
8, 2014 decision the final decision of the Commissioner. Plaintiff timely filed this action [Doc.
1].
II.

FACTUAL BACKGROUND
A.

Education and Employment Background

Plaintiff was born in 1982, was 29 on her alleged disability date, which is defined as a
younger individual, and was 31 on the date of her hearing (Tr. 25, 38). Plaintiff completed high
school, and is able to communicate in English (Tr. 25, 40). Plaintiff’s past work history includes
work as a fast food server, cashier, and hair stylist (Tr. 42-45, 69-70).
B.

Medical Records

Plaintiff’s extensive medical records reflect both physical and mental health issues.
Although not all of the records will be specifically mentioned herein, pertinent portions of the
record have been reviewed and will be addressed as necessary in the respective sections of this
order.
C.

Hearing Testimony

At the hearing, Plaintiff and a vocational expert (“VE”) testified (Tr. 33-78). The Court
has carefully reviewed the transcript of the testimony at the hearing; however, only the portions
of the hearing relevant to the parties’ arguments will be addressed within the respective sections
of the Court’s analysis below.

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III.

ELIGIBILITY AND THE ALJ’S FINDINGS
A.

Eligibility

“The Social Security Act defines a disability as the ‘inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.’” Schmiedebusch v. Comm’r of Soc. Sec., No. 12-4316, 2013
WL 5749156, at *9 (6th Cir. Oct. 24, 2013) (quoting 42 U.S.C. § 423(d)(1)(A)); see also Parks
v. Soc. Sec. Admin., 413 F. App’x 856, 862 (6th Cir. 2011) (quoting 42 U.S.C. § 423(d)(1)(A)).
A claimant is disabled “only if his physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work, but cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful work which
exists in the national economy.” Parks, 413 F. App’x at 862 (quoting 42 U.S.C. § 423(d)(2)(A)).
The Social Security Administration determines eligibility for disability benefits by following a
five-step process. 20 C.F.R. § 404.1520(a)(4)(i-v). The five-step process provides:
1) If the claimant is doing substantial gainful activity, the claimant is
not disabled.
2) If the claimant does not have a severe medically determinable
physical or mental impairment—i.e., an impairment that
significantly limits his or her physical or mental ability to do basic
work activities—the claimant is not disabled.
3) If the claimant has a severe impairment(s) that meets or equals one
of the listings in Appendix 1 to Subpart P of the regulations and
meets the duration requirement, the claimant is disabled.
4) If the claimant’s impairment does not prevent him or her from
doing his or her past relevant work, the claimant is not disabled.
5) If the claimant can make an adjustment to other work, the claimant
is not disabled.

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Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 652 (6th Cir. 2009). The claimant bears the
burden to show the extent of her impairments, but at step five, the Commissioner bears the
burden to show that, notwithstanding those impairments, there are jobs the claimant is capable of
performing. See Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512-13 (6th Cir. 2010).
B.

The ALJ’s Findings

The ALJ found Plaintiff meets the insured status requirements through December 31,
2016 (Tr. 14). At step one of the sequential process, the ALJ found Plaintiff had not engaged in
substantial gainful activity since May 18, 2012, the alleged onset date (Tr. 14). At step two, the
ALJ found Plaintiff had the following severe impairments: multiple sclerosis; degenerative disc
disease of the lumbar spine status post lumbar surgery; degenerative disc disease of the cervical
spine; obesity; dysthymic disorder; and panic disorder (Tr. 14). The ALJ also determined that
Plaintiff had non-severe impairments of blurred vision and headaches (Tr. 15). At step three, the
ALJ found Plaintiff did not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1 (Tr. 15-19). The ALJ found Plaintiff had the RFC to perform:
light work as defined in 20 CFR 404.1567(b). She can lift and
carry twenty pounds occasionally and ten pounds frequently. She
can sit for six hours in an eight-hour workday. She can stand
and/or walk for six hours each in an eight-hour workday.
However, she may only occasionally climb ramps and stairs. She
may never climb ladders, ropes, or scaffolds. She may only
occasionally balance, stoop, or crouch. She may never kneel or
crawl. She is limited to understanding, remembering, and carrying
out short, simple, repetitive instructions. She is able to sustain
attention/concentration for two-hour periods at a time and for eight
hours in the workday on short, simple, repetitive[] instructions.
She can use judgment in making work decisions related to short,
simple, repetitive instructions. She requires an occupation with
only occasional co-worker contact and supervision. She requires
an occupation with set routines and procedures, and few changes
during the workday. She requires an occupation with only
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superficial contact with the public on routine matters. She may not
perform any fast-paced production work. She can maintain regular
attendance and be punctual within customary tolerances. She can
perform activities within a schedule. She must avoid even
moderate exposure to extreme heat. She must avoid concentrated
exposure to wetness, including wet slippery uneven surfaces. She
must avoid concentrated exposure to hazards, such as unprotected
heights and dangerous machinery.
(Tr. 20). At step four, the ALJ found Plaintiff had no past relevant work (Tr. 25). However, at
step five, the ALJ found Plaintiff could perform jobs that exist in significant numbers in the
national economy, including work as a labeler, weigher, and inserter (Tr. 25-26). These findings
led to the ALJ’s determination that Plaintiff was not under a disability as defined in the Act at
any relevant time (Tr. 26-27).
IV.

ANALYSIS
Among other arguments, Plaintiff asserts the ALJ failed to properly weigh the opinion of

her treating physician, Dr. Sibyl Wray, regarding her limitations. The Commissioner argues the
ALJ reasonably gave Dr. Wray’s opinion “little weight” because treatment notes indicate
Plaintiff as “neurologically stable” as of December 2012.
A.

Standard of Review

A court must affirm the Commissioner’s decision unless it rests on an incorrect legal
standard or is unsupported by substantial evidence. 42 U.S.C. § 405(g); McClanahan v. Comm’r
of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (internal citations omitted). Substantial evidence
is “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.”

McClanahan, 474 F.3d at 833 (internal citations omitted).

Furthermore, the

evidence must be “substantial” in light of the record as a whole, “tak[ing] into account whatever
in the record fairly detracts from its weight.” Garner v. Heckler, 745 F.2d 383, 388 (6th Cir.
1984) (internal citations omitted). If there is substantial evidence to support the Commissioner’s
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findings, they should be affirmed, even if the court might have decided facts differently, or if
substantial evidence would also have supported other findings. Smith v. Chater, 99 F.3d 780,
782 (6th Cir. 1996); Ross v. Richardson, 440 F.2d 690, 691 (6th Cir. 1971). The court may not
re-weigh evidence, resolve conflicts in evidence, or decide questions of credibility. Garner, 745
F.2d at 387. The substantial evidence standard allows considerable latitude to administrative
decision makers because it presupposes “there is a ‘zone of choice’ within which the
Commissioner can act, without the fear of court interference.” McClanahan, 474 F.3d at 833
(quoting Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001)).
The court may consider any evidence in the record, regardless of whether it has been
cited by the ALJ. Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). The court
may not, however, consider any evidence which was not before the ALJ for purposes of
substantial evidence review. Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). Furthermore,
the court is under no obligation to scour the record for errors not identified by the claimant,
Howington v. Astrue, No. 2:08-CV-189, 2009 WL 2579620, at *6 (E.D. Tenn. Aug. 18, 2009)
(stating that assignments of error not made by claimant were waived), and arguments not raised
and supported in more than a perfunctory manner may be deemed waived, Woods v. Comm’r of
Soc. Sec., No. 1:08-CV-651, 2009 WL 3153153, at *7 (W.D. Mich. Sept. 29, 2009) (citing
McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997)) (noting that conclusory claims of
error without further argument or authority may be considered waived).
B.

Treating Source Opinion

As held by the Sixth Circuit Court of Appeals (“Sixth Circuit”), “multiple sclerosis is a
progressive disease for which there is no cure. The disease is subject to periods of remission and
exacerbation. Nevertheless, in this circuit, multiple sclerosis is not per se disabling under the

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social security regulations.” Jones v. Sec’y of Health & Human Servs., No. 93-1958, 1994 WL
468033, at *3 (6th Cir. Aug. 29, 1994) (citations omitted); accord Wilcox v. Sullivan, 917 F.2d
272, 274 (6th Cir. 1990). The question in this case is whether substantial evidence, excluding
evidence focused on periods of remission, see Wilcox 917 F.2d at 278, supports the ALJ’s
conclusion that Plaintiff was not disabled because she retained the capacity to perform a limited
range of light work. To answer this question, the Court must consider whether the ALJ properly
applied the treating physician rule in this case.
It is undisputed that Dr. Sibyl Wray is a board certified neurologist who treated Plaintiff
for multiple sclerosis over the course of more than six years beginning in April 2007 (Tr. 270,
431-33). Both parties cite to sources outside the Administrative Record to some degree to
explain that multiple sclerosis is a potentially disabling disease of the brain and spinal cord with
no known cure and varying symptoms subject to periods of remission. Both parties agree that
Dr. Wray’s opinion is subject to the treating source rule.
Dr. Wray completed a medical source statement dated October 3, 2012, in which she
essentially opined Plaintiff was disabled due to multiple sclerosis (Tr. 557-60). Among other
things, Dr. Wray opined Plaintiff had pain and muscle strength problems, could walk about a
block without rest or severe pain, could sit two hours at a time, could stand one hour at a time,
and sit and stand/walk for less than two hours during an eight-hour working day (Tr. 558). Dr.
Wray opined Plaintiff would need to shift positions at will and would need unscheduled breaks
during the day (Tr. 558). It is undisputed this opinion would be disabling if adopted as it does
not include any combination of work that would equal an eight-hour work day.
The ALJ found
Sibyl Wray, M.D., the claimant’s treating neurologist, submitted a
medical source statement indicating functional limitations that
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would result in a finding of disability. (See Ex. 18F). Most
notably, Dr. Wray determined that the claimant could sit, stand, or
walk for a total of less than two hours a day. (Ex. 18F/3). Dr.
Wray noted that the claimant would require unscheduled breaks
and would be off-task twenty-five percent or more of the workday.
Dr. Wray also noted that the claimant could only lift less than ten
pounds occasionally. (Ex. 18F/4). Dr. Wray further noted that the
claimant must avoid heat and temperature extremes. (Ex. 18F/5).
The undersigned gives Dr. Wray’s opinions only little weight to
the extent they indicate functional limitations less than those
outlined in the determined residual functional capacity because, to
that extent, they are inconsistent with her own treatment notes
showing the claimant to be neurologically stable as of at least
December 2012.
(Tr. 25). See also (Tr. 21) (“In fact, office visit notes from Sibyl Wray, M.D., the claimant’s
treating neurologist, show the claimant to be neurologically stable as of December 2012. (Ex.
19F/l-2).”).
Dr. Wray’s treatment note for December 27, 2012 does not state Plaintiff was
neurologically stable. Instead, this note indicates Plaintiff was on week 120 of an experimental
drug program for multiple sclerosis. Her gait was normal but mildly positive for Romberg’s sign
(Tr. 561). Dr. Wray noted Plaintiff was tired, she was not happy she could not work, but she was
“keeping busy” (Tr. 561).

Dr. Wray’s notes are somewhat difficult to read, but she checked

boxes indicating intact coordination, intact sensation, and normal reflexes with some complaints
of back pain (Tr. 561).
The ALJ’s reference to Exhibit 19F/1-2 to support that Plaintiff was “neurologically
stable” as of December 2012 is a misstatement. Instead, Exhibit 19F/1-2 includes a June 20,
2013 note by Dr. Wray about an examination of Plaintiff after she fell down some stairs that
states “[p]atient has been neurologically stable but has had an injury which interferes [with] her
ability to do the exam” (Tr. 562). It appears undisputed that this is the only time Dr. Wray used

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the phrase “neurologically stable.” On physical examination, Dr. Wray also noted there was
decreased sensation in Plaintiff’s left foot (Tr. 562).
In September 2013, Dr. Wray noted Plaintiff thought she was having a relapse with
overwhelming fatigue and visual disturbances lasting three days each time (Tr. 563). The doctor
noted depression and fatigue and advised counseling for anxiety and depression (Tr. 563).
The opinion of the agency consultative examining doctor, William Holland, M.D., also
contained serious limitations that would result in a finding of disability (Tr. 446-47). Dr.
Holland’s opinions were given “very little weight” by the ALJ “because they are inconsistent
with the essentially normal functioning reflected [in] the examination notes outlined above, the
residual functioning demonstrated in the claimant’s reported daily activities, the lack of any
objective evidence showing a need for pain management with more than conservative measures
during the period of adjudication, and evidence showing the claimant to be neurologically stable
during the period of adjudication.” (Tr. 25).
The law governing the weight to be given to a treating physician’s opinion, often referred
to as the treating physician rule, is well settled: A treating physician’s opinion is entitled to
complete deference if it is “well-supported by medically acceptable clinical and laboratory
diagnostic techniques” and “not inconsistent with the other substantial evidence in [the] case
record.” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (quoting 20 C.F.R. §
404.1527(d)(2) (now (c)(2)) (alteration in original). Even if the ALJ determines that the treating
source’s opinion is not entitled to controlling weight, the opinion is still entitled to substantial
deference or weight commensurate with “the length of the treatment relationship and the
frequency of examination, the nature and extent of the treatment relationship, supportability of
the opinion, consistency of the opinion with the record as a whole, and the specialization of the

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treating source.” Simpson v. Comm’r of Soc. Sec., 344 F. App’x 181, 192-93 (6th Cir. 2009)
(quoting Wilson, 378 F.3d at 544; 20 C.F.R. § 404.1527(d)(2) (now (c)(2)); SSR 96-2p, 1996
WL 374188, at *4 (July 2, 1996)). The ALJ is not required to explain how he considered each of
these factors, but must nonetheless give “good reasons” for rejecting or discounting a treating
physician’s opinion. Francis v. Comm’r of Soc. Sec., 414 F. App’x 802, 804 (6th Cir. 2011).
These reasons must be “supported by the evidence in the case record, and must be sufficiently
specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating
source’s medical opinion and the reasons for that weight.” Wilson, 378 F.3d at 544 (quoting
SSR 96-2p, 1996 WL 374188, at *5). “[A] decision denying benefits ‘must contain specific
reasons for the weight given to the treating [physician’s] medical opinion.’” Sharp v. Barnhart,
152 F. App’x 503, 507 (6th Cir. 2005) (emphasis and second alteration in original) (quoting
Wilson, 378 F.3d at 544).
In Cole v. Astrue, 661 F.3d 931, 939 (6th Cir. 2011), the Sixth Circuit held: “[t]his Court
has made clear that ‘[w]e do not hesitate to remand when the Commissioner has not provided
“good reasons” for the weight given to a treating physician’s opinion and we will continue
remanding when we encounter opinions from ALJ’s that do not comprehensively set forth the
reasons for the weight assigned.’” Id. at 939 (alteration in original) (quoting Hensley v. Astrue,
573 F.3d 263, 267 (6th Cir. 2009)). In the same vein, the Sixth Circuit has also taken issue with
an ALJ merely stating that the treating physician’s opinion “conflicted with other evidence,”
noting the allegedly conflicting evidence must be specified and “must consist of more than the
medical opinions of the nontreating and nonexamining doctors. Otherwise the treating-physician
rule would have no practical force because the treating source’s opinion would have controlling
weight only when the other sources agreed with that opinion.” Gayheart v. Comm’r of Soc. Sec.,

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710 F.3d 365, 377 (6th Cir. 2013). The Sixth Circuit held “[a] more rigorous scrutiny of the
treating-source opinion than the nontreating and nonexamining opinions is precisely the inverse
of the analysis that the regulation requires.” Id. at 379. Although “a properly balanced analysis
might allow the Commissioner to ultimately defer more to the opinions of consultative doctors
than to those of treating physicians . . . the regulations do not allow the application of greater
scrutiny to a treating-source opinion as a means to justify giving such an opinion little weight.”
Id. at 379-80 (citations omitted).
Failure to give good reasons requires remand, even if the ALJ’s decision is otherwise
supported by substantial evidence, unless the error is de minimis. Wilson, 378 F.3d at 544, 547.
In Cole, the Sixth Circuit recognized that a violation of the “good reasons” rule could only be
harmless error under three circumstances: where the treating source opinion was patently
deficient such that it could not be credited; where the Commissioner adopted the opinion of the
treating source or made findings consistent with that opinion; or where the Commissioner
otherwise met the goal of the treating source regulation, 20 C.F.R. § 404.1527(c)(2). Cole, 661
F.3d at 940 (quoting Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 551 (6th Cir. 2010)).
While each case must be evaluated to determine if the required procedures have been
appropriately followed, an ALJ’s failure either to specify the weight afforded to a treating
physician or to outline sufficiently specific good reasons can be grounds for remand. Gayheart,
710 F.3d at 380; Cole, 661 F.3d at 939-40.
The ALJ failed to explicitly state that he was not assigning Dr. Wray’s opinion
controlling weight, but it is obvious he is not. “A finding that a treating source medical opinion .
. . is not entitled to controlling weight [does] not [mean] that the opinion should be rejected.”
Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 408 (6th Cir. 2009) (internal quotation marks

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omitted). “In addition to balancing the factors to determine what weight to give a treating source
opinion denied controlling weight, the agency specifically requires the ALJ to give good reasons
for the weight actually assigned.” Cole, 661 F.3d at 938.
The ALJ discussed Dr. Wray’s treatment and opinion, but gave only a meager and at least
partially inaccurate reason for discounting that opinion. The ALJ said he gave Dr. Wray’s
opinions only little weight to the extent they indicate functional limitations less than those
outlined in the ALJ’s RFC “because, to that extent, they are inconsistent with her own treatment
notes showing the claimant to be neurologically stable as of at least December 2012” (Tr. 25).
The ALJ’s decision indicates he found the extent of the limitations indicated by Dr. Wray’s
medical opinion was not well supported by her treatment records. The Commissioner argues that
while the note referenced by the ALJ does not specifically state that Plaintiff was neurologically
stable, the note stands for that premise that Plaintiff was neurologically stable because
neurological abnormalities were not noted on the form. Addressing the later report from 2013,
the Commissioner argues Dr. Wray made no connection between Plaintiff’s multiple sclerosis
and her fall. These rationalizations fall far short of meeting the treating physician rule. The ALJ
is required to provide a clear rationale for giving less than controlling weight to the treating
physician’s opinion. The ALJ did not explain how he interpreted this finding to support his
conclusion that Dr. Wray’s opinion was inconsistent with her treatment notes. As argued by
Plaintiff, “neurologically stable” does not necessarily equate to the absence of neurologic defects
previously diagnosed. The ALJ did not meet the goal of § 404.1527(c)(2) by providing a single
and inaccurate citation as his sole reason for giving Dr. Wray’s opinion little weight.
In the face of extensive records based on some six years of treatment and Dr. Wray’s
specific diagnoses and opinions, the ALJ’s generalized comment that her opinions were entitled

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to only little weight with no elaboration or detail about what he considered the once-cited
comment “neurologically stable” to mean in light of years of records, does not satisfy the
procedural requirements for rejecting a treating physician’s opinion set forth in § 404.1527(c)(2).
See Wilson, 378 F.3d at 546. As held in Wilson: “The requirement of reason-giving exists, in
part, to let claimants understand the disposition of their cases, particularly in situations where a
claimant knows that his physician has deemed him disabled and therefore might be especially
bewildered when told by an administrative bureaucracy that [he] is not.” Wilson, 378 F.3d at
544.
In spite of this flaw, “all essential factual issues” have not been resolved here and the
current record does not “adequately establish[]” Plaintiff’s entitlement to disability benefits.
Sharp, 152 F. App’x at 510-11 (quoting Faucher v. Sec’y of Health and Human Servs., 17 F.3d
171, 176 (6th Cir. 1994)). Under these circumstances, the matter is remanded for further fact
finding by the ALJ and for an opportunity to introduce additional evidence regarding the impact
of Plaintiff’s multiple sclerosis on her ability to work.
Plaintiff also raised other issues, including that the ALJ erred when he found Plaintiff did
not have an impairment or combination of impairments that meets or medically equals the
severity of Listing 11.09, the listing for multiple sclerosis. As this issue may be impacted by a
proper consideration and explanation of the weight given to Dr. Wray’s opinion and additional
evidence regarding the impact of Plaintiff’s multiple sclerosis on her ability to work, the Court
will not address it further at this time.
V.

CONCLUSION
Upon careful review of the administrative record and the parties’ arguments and for the

foregoing reasons,

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1) Plaintiff’s motion for summary judgment [Doc. 16] is
GRANTED IN PART and DENIED IN PART.
2) The Commissioner’s motion for summary judgment [Doc. 18]
is DENIED.
3) The Commissioner’s decision denying benefits is REVERSED
and REMANDED pursuant to Sentence Four of
42 U.S.C. § 405(g) for action consistent with this
Memorandum and Order.
SO ORDERED.
ENTER:
s/fâátÇ ^A _xx
SUSAN K. LEE
UNITED STATES MAGISTRATE JUDGE

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