Wilson v. Social Security Administration, Commissioner of

Filing 19

MEMORANDUM AND ORDER: The Commissioner's Motion for Summary Judgment 16 is DENIED; and the Plaintiff's Motion for Judgment on the Pleadings 14 is GRANTED to the extent that this case shall be remanded to the Commissioner to evaluate Mr. Cardwell's opinion and to reevaluate the Plaintiff's work limitations. Signed by Chief District Judge Thomas A Varlan on 2/18/14. (ABF)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
LIBBY C. WILSON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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No.: 3:13-CV-84-TAV-CCS

MEMORANDUM AND ORDER
This case is before the Court on Plaintiff’s Motion for Judgment on the Pleadings
and Memorandum in Support [Docs. 14 & 15] and Defendant’s Motion for Summary
Judgment and Memorandum in Support [Docs. 16 & 17]. Plaintiff Libby C. Wilson
seeks judicial review of the decision of the Administrative Law Judge (“ALJ”), the final
decision of the Defendant Carolyn W. Colvin, Acting Commissioner of Social Security
(“the Commissioner”).
The Plaintiff filed her application for a period of disability and disability insurance
benefits under the Social Security Act on September 26, 2011, alleging disability since
June 1, 2008, due to degenerative disk disease of the lumbar spine. Her application was
denied initially and upon reconsideration.

Plaintiff then requested a hearing, which

was held before ALJ K. Dickson Grissom, in Knoxville, Tennessee, on May 2, 2012.
The Plaintiff was present and testified. The ALJ issued an unfavorable decision on
October 19, 2012, finding the Plaintiff was not disabled. The Appeals Council denied

Plaintiff’s request for review of that decision; thus, the decision of the ALJ became the
final decision of the Commissioner. The Plaintiff now seeks judicial review of the
Commissioner’s decision.
I.

ALJ FINDINGS
The ALJ made the following findings:
1. The claimant last met the insured status requirements of
the Social Security Act on September 30, 2008.
2. The claimant did not engage in substantial gainful activity
during the period from her alleged onset date of June 1, 2008
through her date last insured of September 30, 2008. (20
CFR 404.1571 et seq.).
3. Through the date last insured, the claimant had the
following medically determinable impairments: degenerative
disk disease of the lumbar spine (20 CFR 404.1521 et seq.).
4. Through the date last insured, the claimant did not have an
impairment or combination of impairments that significantly
limited the ability to perform basic work-related activities for
12 consecutive months; therefore, the claimant did not have a
severe impairment or combination of impairments (20 CFR
404.1521, et seq.).
5. The claimant was not under a disability, as defined in the
Social Security Act, at any time from June 1, 2008, the
alleged onset date, through September 30, 2008, the date last
insured (20 CFR 404.1520(c)).
[Tr. 10-12].

II.

DISABILITY ELIGIBILITY
To qualify for SSI benefits, plaintiff must file an application and be an “eligible

individual” as defined in the Act. 42 U.S.C. § 1382(a); 20 C.F.R. § 416.202. An
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individual is eligible for SSI benefits on the basis of financial need and either age,
blindness, or disability. See 42 U.S.C. § 1382(a).
“Disability” is the inability “[t]o 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 twelve months.” 42 U.S.C. § 1382c(a)(3)(A). An individual shall
be determined to be under a disability 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, regardless of whether such
work exists in the immediate area in which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he applied for work. 42 U.S.C. §
1382c(a)(3)(B).
Disability is evaluated pursuant to a five-step analysis summarized as follows:
1. If claimant is doing substantial gainful activity, he is not
disabled.
2. If claimant is not doing substantial gainful activity, his
impairment must be severe before he can be found to be
disabled.
3. If claimant is not doing substantial gainful activity and is
suffering from a severe impairment that has lasted or is
expected to last for a continuous period of at least twelve
months, and his impairment meets or equals a listed
impairment, claimant is presumed disabled without further
inquiry.
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4. If claimant’s impairment does not prevent him from doing
his past relevant work, he is not disabled.
5. Even if claimant’s impairment does prevent him from
doing his past relevant work, if other work exists in the
national economy that accommodates his residual functional
capacity and vocational factors (age, education, skills, etc.),
he is not disabled.
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997) (citing 20 C.F.R. §
404.1520). Plaintiff bears the burden of proof at the first four steps. Walters, 127 F.3d at
529. The burden shifts to the Commissioner at step five. Id. At the fifth step, the
Commissioner must prove that there is work available in the national economy that the
claimant could perform. Her v. Comm’r of Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999)
(citing Bowen v. Yuckert, 482 U.S. 137, 146 (1987)).
III.

STANDARD OF REVIEW
When reviewing the Commissioner’s determination of whether an individual is

disabled pursuant to 42 U.S.C. § 405(g), the Court is limited to determining “whether the
ALJ applied the correct legal standards and whether the findings of the ALJ are supported
by substantial evidence.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 405 (6th Cir.
2009) (citing Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)). If the ALJ applied the
correct legal standards and his findings are supported by substantial evidence in the
record, his decision is conclusive and must be affirmed. Warner v. Comm’r of Soc. Sec.,
375 F.3d 387, 390 (6th Cir. 2004); 42 U.S.C. § 405(g). Substantial evidence is “more
than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a
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reasonable mind might accept as adequate to support a conclusion.” Rogers v. Comm’r
of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quotation omitted); see also Richardson
v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison v. NLRB, 305 U.S. 197,
229 (1938)).
It is immaterial whether the record may also possess substantial evidence to
support a different conclusion from that reached by the ALJ, or whether the reviewing
judge may have decided the case differently. Crisp v. Sec’y of Health & Human Servs.,
790 F.2d 450, 453 n.4 (6th Cir. 1986). The substantial evidence standard is intended to
create a “‘zone of choice’ within which the Commissioner can act, without the fear of
court interference.” Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001) (quoting Mullen
v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)). Therefore, the Court will not “try the case
de novo, nor resolve conflicts in the evidence, nor decide questions of credibility.”
Walters, 127 F.3d at 528.
In addition to reviewing the ALJ’s findings to determine whether they were
supported by substantial evidence, the Court also reviews the ALJ’s decision to
determine whether it was reached through application of the correct legal standards and
in accordance with the procedure mandated by the regulations and rulings promulgated
by the Commissioner. See Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir.
2004). The Court may, however, decline to reverse and remand the Commissioner’s
determination if it finds that the ALJ’s procedural errors were harmless.

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An ALJ’s violation of the Social Security Administration’s procedural rules is
harmless and will not result in reversible error “absent a showing that the claimant has
been prejudiced on the merits or deprived of substantial rights because of the [ALJ]’s
procedural lapses.” Wilson, 378 F.3d at 546-47. Thus, an ALJ’s procedural error is
harmless if his ultimate decision was supported by substantial evidence and the error did
not deprive the claimant of an important benefit or safeguard. See id. at 547.
On review, Plaintiff bears the burden of proving his entitlement to benefits. Boyes
v. Sec’y. of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994) (citing Halsey v.
Richardson, 441 F.2d 1230 (6th Cir. 1971)).
IV.

POSITIONS OF THE PARTIES
The Plaintiff argues that the ALJ erred in two respects. First, the Plaintiff asserts

that the ALJ failed to consider the opinion of Plaintiff’s treating source, Albert Cardwell,
PA-C, in accordance with Social Security Ruling 06-03p. Second, the Plaintiff asserts
that the ALJ did not properly evaluate the Plaintiff’s credibility in accordance with Social
Security Ruling 96-7p.
The Commissioner argues that the ALJ’s decision is supported by substantial
evidence. More specifically, the Commissioner asserts that Mr. Cardwell’s opinion is not
supported by his treatment notes or the record as a whole and, therefore, any failure by
the ALJ to specifically address the opinion was harmless.

Additionally, the

Commissioner maintains that the ALJ properly considered all the evidence of record

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which did not support the Plaintiff’s subjective complaints of disabling pain or
limitations.
V.

ANALYSIS
The Court will address the Plaintiff’s allegations of error in turn.
A.

Albert Cardwell, PA-C

The Plaintiff argues that the ALJ’s failure to consider the December 2011 opinion
of physician assistant Albert Cardwell constitutes reversible error. Although the Plaintiff
concedes that Mr. Cardwell is not an “acceptable medical source” under the regulations,
the Plaintiff maintains that pursuant to Social Security Ruling 06-03p, the ALJ was
obligated to address and weigh Mr. Cardwell’s opinion.
On December 22, 2011, Mr. Cardwell completed a form entitled “Medical Source
Statement-Physical,” wherein Mr. Cardwell responded to a variety of short answer and
multiple-choice questions regarding the Plaintiff’s physical ability to do work. [Tr. 32832]. Mr. Cardwell opined that the Plaintiff’s impairments included moderate to severe
degenerative disc disease. [Tr. 332]. As a result, Mr. Cardwell opined that as of January
2008, the Plaintiff would not “be reliable in attending an 8-hour day, 40-hour workweek,
week after week, without missing more than 2 days per month” due to the Plaintiff’s
chronic back pain. [Tr. 328]. The Plaintiff was also reported to have problems with
stamina and endurance, sleep, and lapses in her memory and concentration. [Tr. 330].
Mr. Cardwell explained that the frequency of memory and concentration problems could
occur on a daily basis for several hours a day if the Plaintiff was on pain medication.
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[Id.]. Mr. Cardwell also opined that the Plaintiff would need to lie down during the
workday for variable amounts of time, would need more than three breaks during an
eight-hour period, and would miss at least half a day of work twice a month. [Tr. 331].1
As previously stated, the claimant has the burden of proving a claim of disability.
To meet this burden, the claimant may submit medical and non-medical evidence
documenting his or her alleged impairment.

20 C.F.R. § 404.1513.

Under the

regulations, medical evidence may be provided by “acceptable medical sources,” such as
licensed physicians or psychologists, or “others sources,” including other medical sources
such as physicians’ assistants, nurse practitioners, and therapists. Id. at § 404.1513(a)(1),
(d)(1). Although the regulations instruct the ALJ to consider evidence from “other
sources,” they do not instruct how such evidence should be evaluated. Social Security
Ruling 06-03p, however, provides guidance in this regard.
The ruling recognizes that,
[w]ith the growth of managed health care in recent years and
the emphasis on containing medical costs, medical sources
who are not “acceptable medical sources,” such as nurse
practitioners, physician assistants, and licensed clinical social
workers, have increasingly assumed a greater percentage of
the treatment and evaluation functions previously handled
primarily by physicians and psychologists. Opinions from
these medical sources, who are not technically deemed
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The Court notes that Mr. Cardwell did not provide an opinion regarding specific
exertional limitations in the following areas: the Plaintiff’s ability to sit, stand, and walk during
an eight-hour workday; the frequency and amount of weight, if any, the Plaintiff could lift and
carry; the Plaintiff’s ability to bend, stoop, squat, kneel, climb stairs, crawl, reach above
shoulders, walk on uneven surface, use right hand for fine manipulation, and use left hand for
fine manipulation; and finally, whether the Plaintiff’s impairment resulted in any environmental
restrictions. [Tr. 329-30].
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“acceptable medical sources” under our rules, are important
and should be evaluated on key issues such as impairment
severity and functional effects, along with the other relevant
evidence in the file.
Soc. Sec. Ruling 06-03p, 2006 WL 2329939, at *3 (2006). The ruling states that the
factors listed in 20 C.F.R. 404.1527(c)(2), which are used for evaluating the medical
opinions of “acceptable medical sources” when they are not given controlling weight,
remain guiding principles for determining the weight that should be given to opinions
from “other sources.” Id. These factors include: the frequency of examination, the
consistency of the opinion with other evidence, the amount of relevant evidence
supporting the opinion, the source’s area of expertise, and any other relevant factor that
supports or refutes the opinion. Id. at 4-5. However, not every factor need be weighed;
the particular facts of each case should dictate what factors are appropriate for
consideration in order to properly evaluate the opinion at hand. Id. at 5.
The ruling also provides guidance in regards to how an ALJ should explain his
consideration of “other source” evidence. Id. at 6. Because the regulations instruct that
all relevant evidence should be considered, the ALJ’s opinion “should reflect the
consideration of opinions from medical sources who are not ‘acceptable medical
sources.’” Id. at 6. Of particular significance, the ruling carefully points out that “there
is a distinction between what an adjudicator must consider and what the adjudicator must
explain.” Id. The ALJ “generally should explain the weight given to opinions from these
‘other sources,’ or otherwise ensure that the discussion of the evidence in the
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determination or decision allows a claimant or subsequent reviewer to follow the
adjudicator’s reasoning, when such opinions may have an effect on the outcome of the
case.” Id.
In Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 541 (6th Cir. 2007), although the
Sixth Circuit found that Social Security Ruling 06-03p was not binding on its review of
the ALJ’s decision as the ruling was promulgated after the decision was issued, the court
noted that “[a]s it stands, the ALJ’s decision was devoid of any degree of specific
consideration of nurse practitioner Hasselle’s functional assessments.”

The court

explained that, “[f]ollowing SSR 06-03P, the ALJ should have discussed the factors
relating to his treatment of Hasselle’s assessment, so as to have provided some basis for
why he was rejecting the opinion.” Id. In Hatfield v. Astrue, No. 3:07-CV-242, 2008
WL 2437673, at *3 (E.D. Tenn. June 13, 2008), Judge Phillips observed that the language
in Cruse was “indicative of strongly suggesting that the ALJ explain the weight, as
opposed to leaving the decision whether to explain to the ALJ’s discretion.”
In the present matter, the ALJ’s decision does not mention Mr. Cardwell’s
December 2011 opinion, much less explain the weight assigned to the opinion. Based
upon the complete disregard for Mr. Cardwell’s opinion, the Court finds that the ALJ
failed to comply with Social Security Ruling 06-03p and, therefore, the ALJ committed
reversible error. As the Plaintiff’s main treating source, the Court finds that it was
incumbent upon the ALJ to fully and fairly address the Plaintiff’s treatment with Mr.
Cardwell in making a disability determination. Discussing several of Mr. Cardwell’s
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treatment notes generated during the Plaintiff’s visits in 2008 did not fulfill or alleviate
the ALJ’s responsibilities under Social Security Ruling 06-03p. Moreover, the Court
observes that Mr. Cardwell’s December 2011 opinion is the only medical source
statement, or opinion of record for that matter, regarding the Plaintiff’s physical ability to
do work related activities. In short, the ALJ’s failure to follow his own administrative
rules prevents a subsequent reviewer to follow the ALJ’s reasoning for disregarding Mr.
Cardwell’s opinion. Because of the omission, the Court is unable to find that substantial
evidence supports the ALJ’s decision.2
A review of other Social Security disability cases reveals that the failure to address
and weigh the opinions of “other sources” is error. See Payne v. Astrue, No. 2:10-CV046, 2011 WL 540306, at *3-4 (E.D. Tenn. Feb. 7, 2011) (holding that the ALJ’s failure
to consider the opinion of the plaintiff’s treating chiropractor was a breach of the ALJ’s
duties and prevented the court from conducting a meaningful review); Maynor v. Astrue,
3:10-CV-168, 2011 WL 3207871, at *5 (E.D. Tenn. July 8, 2011) adopted by 3:10-CV168, 2011 WL 3206470, a *1 (E.D. Tenn. July 28, 2011) (finding that the ALJ’s failure to

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The Court notes that the Commissioner also argues that Mr. Cardwell’s opinion is
tenuous at best due to the date of the assessment. Although Mr. Cardwell’s assessment was
opined three years after the Plaintiff’s last date insured, the opinion relates back to the relevant
time period as Mr. Cardwell specifically indicated in his assessment that his opinion was based
upon the Plaintiff’s condition and treatment received prior to September 30, 2008. [Tr. 331].
Thus, the Commissioner’s argument in this respect is without merit. See Wirth v. Comm’r of
Soc. Sec., 87 F. App’x 478, 480 (6th Cir. 2003) (holding that post-dated evidence is relevant if it
“relate[s] back to the claimant’s condition prior to the expiration of her date last insured”) (citing
King v. Sec’y of Health and Human Servs., 896 F.2d 204, 205-06 (6th Cir. 1990)).
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expressly discuss a medical assessment completed by a nurse practitioner and a mental
assessment completed by a licensed social worker constituted procedural error); Sommer
v. Astrue, No. 3:10-CV-99, 2010 WL 5883653, at *4 (E.D. Tenn. Dec. 17, 2010) adopted
by No. 3:10-CV-99, 2011 WL 766264, at *1 (E.D. Tenn. Feb. 25, 2011) (finding that the
ALJ erred by not providing a basis for discounting the opinion of plaintiff’s nurse
practitioner) ; see also Boran ex rel. S.B. v. Astrue, No. 1:10CV1751, 2011 WL 6122953,
at *15 (N.D. Ohio Nov. 22, 2011) adopted by No. 1:10 CV 01751, 2011 WL 6122948, *1
(N.D. Ohio Dec. 9, 2011) (holding that the ALJ’s failure to discuss the opinions of
plaintiff’s mental health case managers denoted a lack of substantial evidence); Barnes v.
Comm’r of Soc. Sec., 12-CV-15256, 2013 WL 6328835, at *14 (E.D. Mich. Dec. 5,
2013) (finding that the failure to explain the weight assigned to a physician assistant’s
opinion in accordance with Social Security Ruling 06-03p was reversible error).
The Commissioner argues that the omission was harmless because Mr. Cardwell’s
opinion was inconsistent with his own treatment notes and other evidence in the record,
as well as the conservative nature of Plaintiff’s treatment. Although the Commissioner
makes some valid arguments, the ALJ’s decision did not consider, explain, or weigh Mr.
Cardwell’s opinion. The Court acknowledges the Commissioner’s arguments as to the
shortcomings and inconsistencies alleged as to Mr. Cardwell’s opinion, and it may well
be that the ALJ will agree with these assessments. If so, the Court can then evaluate the

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ALJ’s reasoning. However, the Court can neither substitute its own reasoning nor the
Commissioner’s proposed arguments for this omission. See Hyatt Corp. v. N.L.R.B., 939
F.2d 361, 367 (6th Cir. 1991) (rejecting appellate counsel’s post hoc rationalization for an
agency’s decision where no such explanation was enunciated in the decision, and holding
that “[c]ourts are not at liberty to speculate on the basis of an administrative agency’s
order”) (citations omitted). Without such reference, there is nothing for the Court to
evaluate in order to conduct a meaningful review of the disability determination. See
Blakley v. Comm’r Of Soc. Sec., 581 F.3d 399, 409 (6th Cir. 2009) (holding that “the
ALJ’s failure to follow the Agency’s procedural rule does not qualify as harmless error
where we cannot engage in ‘meaningful review’ of the ALJ’s decision”) (quoting Wilson,
378 F.3d at 544).
Accordingly, the Plaintiff’s allegation of error in this regard is well-taken. On
remand, the ALJ is to explain: (1) what weight, if any, he gives Mr. Cardwell’s
December 2011 opinion; (2) his basis and reasoning for the determination; and (3) what
effect, if any, it has on his overall decision.
B.

Plaintiff’s Credibility

Next, the Plaintiff argues that the ALJ did not perform a proper evaluation of the
Plaintiff’s credibility. More specifically, the Plaintiff contends that the ALJ’s failure to
address Mr. Cardwell’s opinion demonstrates that the ALJ did not fully evaluate the

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evidence of record in accordance with Social Security Ruling 96-7p.3 Because “[t]he
limitations assessed by Mr. Cardwell are indicative of disability, evince a severe
impairment, and bolster Plaintiff’s credibility,” the Plaintiff argues that the ALJ’s failure
to address Mr. Cardwell’s opinion was reversible error. [Doc. 15 at 6].
Having concluded that a remand is necessary in order for the ALJ to evaluate Mr.
Cardwell’s opinion, the Court need not address this remaining issue. Upon remand, it is
assumed that the ALJ will reevaluate the Plaintiff’s credibility regarding her subjective
complaints and/or limitations in light of the his treatment of Mr. Cardwell’s opinion.
However, to the extent that the Plaintiff is still unsatisfied in this regard, she is free to
raise the issue again on appeal.
VI.

CONCLUSION
Based upon the foregoing, the Commissioner’s Motion for Summary Judgment

[Doc. 16] is DENIED; and the Plaintiff’s Motion for Judgment on the Pleadings [Doc.

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The ruling provides, in pertinent part, the following:
[W]henever the individual’s statements about the intensity,
persistence, or functionally limiting effects of pain or other
symptoms are not substantiated by objective medical evidence, the
adjudicator must make a finding on the credibility of the
individual’s statements based on a consideration of the entire case
record. This includes the medical signs and laboratory findings,
the individual’s own statements about the symptoms, any
statements and other information provided by treating or
examining physicians or psychologists and other persons about the
symptoms and how they affect the individual, and any other
relevant evidence in the case record.

Soc. Sec. Ruling 96-7p, 1996 WL 374186, at *2 (1996).
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14] is GRANTED to the extent that this case shall be remanded to the Commissioner to
evaluate Mr. Cardwell’s opinion and to reevaluate the Plaintiff’s work limitations.
IT IS SO ORDERED.

s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE

ENTERED AS A JUDGMENT
s/ Debra C. Poplin
CLERK OF COURT

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