Barnett v. Social Security Administration

Filing 18

REPORT AND RECOMMENDATION: For the reasons stated above, the undersigned recommends that the plaintiff's motion for judgment on the record 13 be GRANTED and Plaintiff's claims be REMANDED for reconsideration. Signed by Magistrate Judge Joe Brown on 3/11/14. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NORTHEASTERN DIVISION

Kimberly Kay Barnett,

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Plaintiff,
vs.
Carolyn Colvin,
Commissioner of
Social Security

CASE No. 1:13-cv-0047
SENIOR JUDGE NIXON
MAGISTRATE JUDGE BROWN

Defendant.
To: The Honorable John T. Nixon, Senior United States District Judge
Report and Recommendation
This action was brought, pursuant to 42 U.S.C. §§ 405(g), to obtain judicial review of the
final, unfavorable, decision of the Social Security Administration (“SSA”) by the SSA
Commissioner (“the Commissioner”) regarding plaintiff’s application for Disability Insurance
Benefits (“DIB”) under Title XVI of the Supplemental Social Security Income Act (“SSI”) 42
U.S.C. §§ 416(i), 1382(c). For the reasons explained below, the undersigned RECOMMENDS
that the Plaintiff’s motion for judgment on the record be GRANTED and the case be
REMANDED to the Commissioner for reconsideration.
I.

PROCEDURAL HISTORY

Kimberly Kay Barnett (“Plaintiff”) initially filed for DIB under Title XVI of the Social
Security Act, 42 U.S.C. § 1382(c), on July 21, 2008. (Docket Entry 11 (“Doc. 11”), p. 56.)
Plaintiff’s original claim to DIB was based upon the adverse effects of asthma, and was
disapproved on August 27, 2008. (Doc. 11 pp. 56, 59.) Plaintiff subsequently filed for DIB on
October 22, 2009, and, as with her first application, Plaintiff’s claim was disapproved on March

8, 2010 and again upon reconsideration on June 7, 2010. (Doc. 11 pp. 56, 58, 134-36.) On July
15, 2010, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), Troy M.
Patterson. (Doc. 11 p. 37.) The hearing was conducted on October 15, 2011. (Doc. 11 p. 37)
Present for the hearing were Plaintiff, her attorney David Downard, and vocational expert
(“VE”) Tyra Watts. (Doc. 11 p. 13.) In his review of Plaintiff’s claims, the ALJ considered
many medical issues clearly documented in Plaintiff’s medical records—asthma, allergies,
GERD, dermatitis, anemia, benign fibrocystic breast disease, allergic rhinitis, allergic
conjunctivitis, tachycardia, high blood pressure, a ruptured right eardrum, depression, vertigo,
fibromyalgia, and chronic pain and fatigue. (Doc. 11 pp. 15, 17-23.)
The ALJ denied Plaintiff’s application for DIB on October 31, 2011 and Plaintiff
requested review of the ALJ’s determination on December 27, 2011. (Doc. 11 pp. 6-8, 10-25.)
The SSA Appeals Council denied review of the ALJ’s determination on April 16, 2013,
rendering the ALJ’s decision the Commissioner’s final determination. (Doc. 11 pp. 1-3.)
Plaintiff brought this action in federal district court on May 13, 2013 seeking judicial
review of the Commissioner’s decision. (Doc. 1.) The Commissioner filed an answer and a
copy of the administrative record on July 22, 2013. (Doc. 10, 11.) On August 23, 2013, Plaintiff
moved for judgment on the administrative record (Doc. 13), and the Commissioner responded on
September 23, 2013. (Doc. 14.) Plaintiff filed reply to the Commissioner’s response on October
3, 2013. (Doc. 16.)
This matter is properly before the court.
II.

THE RECORD BELOW

A. Medical Evidence

2

The record reflects that Plaintiff was diagnosed with asthma and a myriad of allergies in
February of 2004 and was prescribed albuterol and Advair to control those conditions. (Doc. 11
p. 287.) In June of 2007, however, Plaintiff proved unable to tolerate corticosteroids; prompting
her treating physician to prescribe Foradil in place of Advair and to supplement Plaintiff’s
allergy treatment with Singulair. (Doc. 11 pp. 284, 372.) At that time, Plaintiff began to
complain of chronic fatigue. (Doc. 11 p. 284.)
In conjunction with Plaintiff’s initial DIB claim, she was examined on August 18, 2008,
by Dr. Darrel Rinehart, a Disability Determination Services (“DDS”) expert who practices
internal medicine. Dr. Rinehart noted that Plaintiff complained of asthma, GERD, and vertigo,
which were generally well controlled with medication. Dr. Rinehart noted that Plaintiff had full
range of motion in all joints and that she could “typically walk up to two blocks at her own pace.
She can sit and stand really relatively well. She is a little limited with her lifting.” Based upon
these observations, Dr. Rinehart concluded that Plaintiff “has no impairment related physical
limitations.” (Doc. 11 pp. 274-76.) Likewise, on August 27, 2008, Dr. James N. Moore, also a
DDS expert, 1 concluded from a review of Plaintiff’s medical files that her asthma, acid reflux,
vertigo, and high blood pressure were non-severe and well controlled with medication. (Doc. 11
p. 280.)
On January 12, 2009, Plaintiff presented to her treating physician with diffuse joint pain
and an increase in depression in addition to asthma, allergies, Gastroesophageal Reflux Disease
(“GERD”), and anemia. (Doc. 11 p. 283.) Plaintiff’s allergy medication was changed from
Singulair to Zyrtec to relieve her depression. (Doc. 11 p. 283.) On November 9, 2009, despite
taking Allegra each morning, Plaintiff complained of “severe allergic eye symptoms” and a “rash
1

Dr. Moore indicated a specialty code of “12” on the MSS which he completed on August 27, 2008. According
to SSA Program Operations Manual System (“POMS”) DI 26510.090(C) & (D) (“POMS”), a specialty code of
12 corresponds to family or general practice.

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to [her] bilateral legs.” 2 (Doc. 11 p. 281.) Plaintiff’s physician prescribed Patanol to resolve
Plaintiff’s eye allergy and discontinued the iron supplement she took for anemia as it was the
likely source of Plaintiff’s rash. (Doc. 11 p. 281-82.)
On February 26, 2010, Dr. Marvin H. Cohn, a DDS expert, 3 reviewed Plaintiff’s medical
records and concluded that Plaintiff experienced no exertional, postural, or manipulative
limitations. (Doc. 11 pp. 314-20.) According to Dr. Cohn’s assessment, Plaintiff’s asthma,
allergies, dermatitis, GERD, and iron deficiency, were all well controlled with medications;
Plaintiff experienced no weaknesses, her strength was normal; and the record indicated she had a
full range of motion with normal stability, strength, and tone. (Doc. 11 p. 321.) Dr. Cohn did
note, however, that Plaintiff should “avoid all exposure to fumes, gases, odors and poor
ventilation due to her diagnosis of asthma & allergies.”

(Doc. 11 p. 321.)

Dr. Cohn’s

assessment was confirmed by Dr. Carolyn M. Parrish M.D. on June 5, 2010, despite “worsening
of symptoms” and the addition of a left breast cyst and “musculoskeletal type pain” noted
subsequent to Dr. Cohn’s review. (Doc. 11 p. 347.) Just as with Dr. Cohn’s opinion, Dr.
Parrish’s conclusions were drawn from her review of Plaintiff’s medical record at that time.
By July of 2010, Plaintiff suffered from fibrocystic breast disease, a B12 deficiency,
asthma, allergies, anemia, GERD, and chronic fatigue and pain. (Doc. 11 p. 368.) On July 27,
2010, Dr. Gannon, Plaintiff’s treating physician, observed that a recent ultrasound revealed a
“significant cyst” in Plaintiff’s left breast and that Plaintiff’s breasts were “quite tender to
palpation” despite experiencing “some assistance” from Lodine 4 and Vitamin E. (Doc. 11 p.
2

At some time prior to November of 2009, Plaintiff’s allergy prescription was altered from Zyrtec to Allegra for
an unspecified reason.

3

Dr. Cohn indicated a specialty code of “19” on the MSS which he completed on February 26, 2010. (Doc. 11
p. 322.) According to POMS DI 26510.090(C) & (D), a specialty code of 19 refers to internal medicine.

4

Lodine is a non-steroidal
http://www.drugs.com/lodine.html.

anti-inflammatory

4

drug

prescribed

to

treat

pain.

See

369.) Dr. Gannon also noted that all of Plaintiff’s allergies, including the rash on Plaintiff’s
ankles, were “uncontrolled” despite attempting “multiple different treatment modalities,
including Zantac, Benadryl, Allegra, [and] Medrol dosepack.” (Doc. 11 p. 366.) Dr. Gannon
discontinued Patanol for treatment of Plaintiff’s eye allergies and initiated treatment with
Patanase instead. (Doc. 11 p. 367.) Dr. Gannon also prescribed B12 injections to counteract
Plaintiff’s chronic fatigue, but consistent with her “history of having allergic reactions to
medications,” the combination of B12 injections and Patanase resulted in “a rash on her bilateral
forearms and her back.” (Doc. 11 p. 367.) Both treatments were discontinued.
In October of 2010, Plaintiff presented to Dr. Gannon with aches, nausea, and vomiting.
She and Dr. Gannon discussed the likelihood that Plaintiff may have fibromyalgia. According to
Dr. Gannon’s case notes, Plaintiff was seen at the “Hope Free Clinic in Nashville, where they
suggested that maybe she has fibromyalgia.” (Doc. 11 p. 364.) Dr. Gannon observed that
Plaintiff “had negative ANA and rheumatoid factor in the past” and was currently taking Celexa.
(Doc. 11 p. 364.)

The following month, Dr. Gannon noted that Plaintiff complained “of

myalgias throughout her entire body,” had “many trigger points” associated with fibromyalgia,
and current blood work showed “negative rheumatoid factor and a negative ANA.” (Doc. 11 p.
362.)

Dr. Gannon discontinued Celexa and prescribed Cymbalta at “30mg for one week and

then 60 mg thereafter” to treat Plaintiff’s fibromyalgia and provided samples of these drugs
while Plaintiff “complet[ed] patient assistance paperwork in order to have [her new
prescriptions] covered [under TennCare] as she does not have insurance.” (Doc. 11 p. 363.)
In January of 2011, Plaintiff reported to Dr. Gannon that Cymbalta was ineffective at
controlling her fibromyalgia. (Doc. 11 p. 360.) Dr. Gannon observed that Plaintiff appeared
more depressed than normal and experienced pain at 8 on a possible scale of 10. (Doc. 11 p.

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360.)

According to Dr. Gannon’s treatment notes, the pain associated with fibromyalgia

rendered Plaintiff unable to “cut her food and open jars” or to attend church due to an inability to
sit stationary for prolonged periods of time. (Doc. 11 p. 360.) Dr. Gannon provided Plaintiff
with samples of Advair because she was “overdue for her Allegra refill,” discontinued Cymbalta
in favor of Savella to treat Plaintiff’s fibromyalgia, and referred Plaintiff to a rheumatologist, Dr.
Emilio Rodriguez, for a consultative exam. (Doc. 11 p. 361.)
Dr. Rodriguez’ case notes from his initial exam of Plaintiff reveal that she presented with
joint pain and stiffness bilaterally, neck pain and stiffness, numbness, and pain in her breasts due
to fibrocystic disease. (DE 11 at p. 396.) Dr. Rodriguez identified sixteen different “trigger”
points commonly associated with fibromyalgia and observed that Plaintiff’s lab test reports
dating back to 2010 were unremarkable. (Doc. 11 p. 397-98.) As a result, Dr. Rodriguez
ordered additional tests of Plaintiff’s creatine and thyroid stimulating hormone levels to rule out
conditions that could mirror fibromyalgia. (Doc. 11 p. 397-98.) Ultimately, Dr. Rodriguez
concurred with Dr. Gannon’s diagnosis and her decision to prescribe Savella. (Doc. 11 p. 398.)
However, Dr. Rodriguez recommended a dosage of 50mg rather than 60mg as Dr. Gannon
initially planned. (Doc. 11 p. 398.)
On March 4, 2011, Dr. Rodriguez noted some improvement in Plaintiff’s symptoms, but
that Plaintiff experienced increased depression, insomnia, and vertigo while taking Savella.
(Doc. 11 p. 392.) Dr. Rodriguez also prescribed Tylenol Extra-Strength to help with Plaintiff’s
joint pain and referred her to a specialist, Dr. Stewart, for assessment of vertigo and a
psychiatrist for treatment of her depression. (Doc. 11 p. 392.) Dr. Gannon’s treatment notes
from March 8, 2011, reveal that Plaintiff was doing “fairly well on Savella” but her depression
was more severe than when she took Celexa. (Doc. 11 pp. 358-59.) Plaintiff reported that

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although she “ha[d] not tried taking [Tylenol] on a regular basis, [it] help[s] somewhat” now that
she was taking it. (Doc. 11 p. 358.) Dr. Gannon offered a referral to a psychiatrist to aid with
Plaintiff’s depression if her family could afford it. (Doc. 11 p. 358.) When asked to help
Plaintiff acquire a handicap parking decal, Dr. Gannon informed Plaintiff that she did not qualify
for one. 5
Six days later, on March 14th, Dr. Gannon saw Plaintiff again due to tachycardia, elevated
blood pressure, and vertigo. (Doc 11 pp. 356-57.) During the exam, Plaintiff’s blood pressure
and pulse were elevated from their March 8th states—108/74 and 64—to 150/90 and 100. (Doc.
11 pp. 356-57.) Although Dr. Gannon did not associate these developments with Savella, she
did reduce Plaintiff’s dosage from 50mg to 25mg until Plaintiff’s vertigo consult with Dr.
Stewart at the end of the month. (Doc. 11 p. 356.) Dr. Gannon offered an earlier consult with
two different vertigo specialists and gave Plaintiff the name and number of a psychiatrist. (Doc.
11 p. 356.) Plaintiff was to call Dr. Gannon if she elected to see a vertigo specialist earlier than
her scheduled appointment with Dr. Stewart. (Doc. 11 p. 356.)
Dr. Rodriguez’ exam notes from April 26, 2011, indicate that Plaintiff ultimately proved
intolerant of Savella and that she was being treated with Flexeril—a muscle relaxant—rather
than the traditional course of anti-depressants. (Doc. 11 p. 389.) Treatment notes indicate that
Plaintiff’s symptoms were worsening with the change and she was experiencing “sensitivity to
light, sensitivity to noise, insomnia, stiffness, difficulty remembering, swelling of feet and hands,
muscle spasms, fatigue and leg cramps.” (Doc. 11 p. 389.) In response, Dr. Rodriguez doubled
Plaintiff’s dosage of Flexeril from 10mg to 20mg per day. (Doc. 11 p. 391.)

5

The standards for acquiring a handicap placard are much more restrictive than those for DIB benefits. Under
Tennessee Law, an individual is only entitled to a handicap placard where they are paraplegic, an amputee, or
unable to “walk two hundred feet (200’) without stopping to rest.” Tenn. Code. Ann. 55-21-102.

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Treatment notes from June 14, 2011, indicate that the increased dosage of Flexeril
provided a “mild improvement,” but that Plaintiff could not tolerate a higher dosage due to
adverse side effects. (Doc. 11 p. 385.) Despite this “mild improvement,” Plaintiff experienced
“difficulties with humidity and weather changes” in addition to the symptoms previously noted.
(Doc. 11 p. 385.) At the conclusion of her normal follow-up exam, Dr. Rodriguez performed a
“disability exam” and completed a Medical Source Statement (Physical) (“MSS”) for use in
Plaintiff’s pursuit disability benefits. (Doc. 11 p. 387.)
According to Dr. Rodriguez’ assessment at that time, Plaintiff could lift and carry 10
pounds occasionally but never more than that.

Plaintiff could sit for 20 minutes without

interruption and stand or walk for 30 minutes before needing to rest. Plaintiff could sit for a total
of 2 hours per day, stand for a total of 2 hours per day, or walk for a total of two hours per day
without assistance. Dr. Rodriguez concluded that Plaintiff could occasionally use her hands and
feet to perform work activities despite the numbness in her hands. She could also climb stairs
and ramps or stoop occasionally but should never climb ladders or scaffolds or perform work
activities that require her to balance, kneel, crouch, or crawl. (Doc. 11 pp. 352-53.)
As to mobility, Dr. Rodriguez concluded that Plaintiff could ambulate without assistance,
walk a block at a reasonable pace or on rough or uneven surfaces, use standard public
transportation, and climb a few steps at a reasonable pace with the use of a single handrail. Dr.
Rodriguez also opined that Plaintiff cannot perform activities like shopping or travel without a
companion for assistance at any time. (Doc. 11 pp. 354-56.) Dr. Rodriguez also concluded that
Plaintiff could accomplish many mundane tasks such as prepare a simple meal that did not
require her to open jars or cans, feed herself, take care of her hygiene, and sort, handle or use

8

paper files. The stated basis of Dr. Rodriguez’ opinion is his expertise as a rheumatologist and
his knowledge of the effects of fibromyalgia coupled with asthma. (Doc. 11 p. 356.)
These results remained consistent through Plaintiff’s next appointment with Dr.
Rodriguez on August 16, 2011. (Doc. 11 pp. 382-84.) Treatment notes from Plaintiff’s last visit
with Dr. Gannon on September 7, 2011, note no new symptoms and reflect the changes in
Plaintiff’s medications ordered by Dr. Rodriguez. (Doc. 11 pp. 354-55.)
B. Testimonial Evidence
1. Plaintiff’s Testimony
Plaintiff testified at the hearing that she was 34 years of age and has a high school
education. (Doc. 11 p. 37-38.) She lived at home with her parents and her twin sister. (Doc. 11
p. 39.) According to her testimony, Plaintiff had not been gainfully employed since moving to
Tennessee from Texas, but did act as “an unpaid receptionist” at her sister’s beauty salon
occasionally until August of 2009. Plaintiff’s duties there consisted of answering the phones and
dealing with solicitors on the days that her sister was “tied up doing perms.” (Doc. 11 p. 38.)
Plaintiff testified that she could engage in a few chores around the house such as making
her bed, putting “cups in the dishwasher,” or going for brief walks in the cul-de-sac. However,
her asthma prevented her from being exposed to harsh cleaning chemicals and the pain
associated with fibromyalgia prevented her from opening jars when preparing meals. (Doc. 11 p.
40.) Although Plaintiff confirmed reports included in pain and fatigue questionnaires from 2008,
2009, and early 2010 (Doc. 11 pp. 172-75, 197-203, 225-34), she testified that her social and
recreational activities were severely impaired subsequent to being diagnosed with fibromyalgia.
According to Plaintiff’s testimony, while she had regularly gone shopping with her sister
at Walmart, attended church services, and attended one BMX event each summer prior to being

9

diagnosed with fibromyalgia (Doc. 11 p. 40-42.), she had not worked consistently at her sister’s
beauty salon since August of 2009 and had not attended a church service or a BMX event in
more than a year prior to the hearing. Further, while she was still able to accompany her sister to
Walmart on Mondays, she could no longer walk all of the aisles. (Doc. 11 p. 41-44.) When
asked about her exertional limitations, Plaintiff claimed that she could sit comfortably for 20
minutes at a time and push that to 45 minutes but would be paying a price to do so. (Doc. 11 p.
47.) Plaintiff could walk or stand for 30 minutes without rest, drive a car but could not ride as a
passenger without experiencing motion sickness, and could not open bottles or jars. (Doc. 11 pp.
46-47.)
When asked, Plaintiff responded that her fibromyalgia proved the most challenging of her
medical problems and described the pain as “excruciating” and the fatigue as debilitating. Doc.
11 pp. 45, 47.) According to her testimony, these conditions were aggravated by her inability to
take the anti-depressants initially prescribed to her; relegating her treatment to muscle relaxers
and Tylenol Extra-Strength for pain. (Doc. 11 pp. 41, 45-46.)
2. Vocational Expert’s Testimony
The ALJ posed the following hypothetical to the VE for his assessment:
assume an individual of the same age, education, and work experience as our
claimant, and further assume this individual has a residual functional capacity for
work at the light exertional level with the following additional limitations: no
concentrated exposure to pulmonary irritants, such as fumes, smoke, dust, gases,
etc., no exposure to unprotected heights or dangerous machinery, no production
rate pace work, and jobs involving only superficial interpersonal contact with
coworkers and the public? Could such an individual perform any work that exists
in the economy?
(Doc. 11 p. 47-48.) According to the VE, no work existed in the national or Tennessee economy
to accommodate this classification due to the product-rate pace work restriction. (Doc. 11 p. 48.)
Without the production-rate pace work requirement, the ALJ testified that work as a “tag strainer

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. . . or floor worker” is available to Plaintiff. (Doc. 11 p. 50.) According to the VE’s testimony,
both positions exist in sufficient numbers in the national or state economies to satisfy the SSA
regulations. (Doc. 11 p. 50.)
III.

ANALYSIS

A. Standard of Review
The District Court’s review of the Commissioner’s denial of DIB is limited to a
determination of whether those findings are supported by substantial evidence and whether
correct legal standards were applied. 42 U.S.C. § 405(g); Cole v. Astrue, 661 F.3d 931, 937 (6th
Cir. 2011). A finding of substantial evidence does not require all the evidence in the record to
preponderate in favor of the ALJ’s determination, but does require more than a mere scintilla of
support for a denial of DIB. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
The ALJ’s determination is entitled to deference where “a reasonable mind might accept
[evidence in the record] as adequate to support” the ALJ’s determination even though it could
also support a different conclusion. Rogers, 486 F.3d at 241; Her v. Comm’r of Soc. Sec., 203
F.3d 388, 389-90 (6th Cir. 1999). “[F]ailure to follow the rules” promulgated to control the
process of benefit determination “denotes a lack of substantial evidence, even where the ALJ’s”
determination is otherwise supportable. Cole, 661 F.3d at 937 (quoting Blakely v. Comm’r of
Soc. Sec., 581 F.3d 399, 407 (6th Cir. 2009)).
B. Assignments of Error
Plaintiff asserts that the ALJ’s treatment of the opinion of her treating physician, Dr.
Emilio Rodriguez, and her credibility lack substantial evidence, and that the RFC finding by the
ALJ does not represent a function-by-function assessment of her medical conditions. However,
because the Magistrate Judge finds that the ALJ’s treatment of relevant medical opinion

11

evidence does not conform to the regulations that control that process, the Magistrate Judge has
not considered Plaintiff’s claims over the ALJ’s RFC assessment or his finding in regard to her
credibility.
In his consideration of the medical opinion evidence, the ALJ denied controlling weight to
the opinion of Dr. Rodriguez, a treating physician, and, in fact, afforded that opinion less weight
than any of the four DDS experts, one examining source and three nonexamining sources.
According to Plaintiff, the reasons advanced by the ALJ to deny Dr. Rodriguez’ opinion
controlling weight are insufficient. (Plaintiff’s M., DE 13-1, pp. 6-9.) Further, even if Dr.
Rodriguez’ opinion is not entitled to controlling weight, Plaintiff argues that his opinion is
certainly due relatively more weight than the opinions of the DDS experts. (Plaintiff’s M., DE
13-1, pp. 9-13.) In response, the Commissioner argues that the ALJ’s determination is supported
by the record, and that the inconsistencies noted by the ALJ justify the weight afforded to Dr.
Rodriguez’ opinion. (Defendant’s Response, DE 14, pp. 3-10.) The Magistrate Judge disagrees.
“Treating-source opinions must be given controlling weight″ if two conditions
are met: (1) the opinion is well-supported by medically acceptable clinical
and laboratory diagnostic techniques″; and (2) the opinion is not inconsistent
with the other substantial evidence in [the] case record.″ 20 C.F.R. §
404.1527(c)(2). If the Commissioner does not give a treating-source opinion
controlling weight, then the opinion is weighed based on the length, frequency,
nature, and extent of the treatment relationship, id., as well as the treating
source’s area of specialty and the degree to which the opinion is consistent with
the record as a whole and is supported by relevant evidence, Id. §
404.1527(c)(2)-(6).
The Commissioner is required to provide good reasons″ for discounting the
weight given to a treating-source opinion. Id. §404.1527(c)(2). 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.”
Soc. Sec. Rul. No. 96-2p, 1996 LEXIS 9 at *12, 1996 (Soc. Sec. Admin. July 2,
1996). This procedural requirement ensures that the ALJ applies the treating
physician rule and permits meaningful review of the ALJ’s application of the
rule.″ (quoting Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).

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Gayheart, 710 F.3d at 376.
In assessing the opinions of the various experts to consider Plaintiff’s physical
impairments, the ALJ reasoned:
[O]n August 18, 2008, and in conjunction with the claimant's prior application,
consultative examiner Darrel Rinehart, M.D., stated that the claimant's ability to
perform work activities was not limited due to any physical impairment. First, the
undersigned notes that new evidence has been admitted into the record since Dr.
Rinehart rendered his medical opinion. Second, Dr. Rinehart's opinion is
inconsistent with the claimant's medical records. For instance, the medical records
show a history of asthma attacks when the claimant is exposed to pulmonary
irritants, which conflicts with Dr. Rinehart's opinion that the claimant's ability to
perform work activities is not limited due to any physical impairment. Since Dr.
Rinehart's opinion is inconsistent with the claimant's medical records, the
undersigned assigns it little weight.
On August 27, 2008, and in conjunction with the claimant's prior application,
non-examining state agency physician James Moore, M.D., stated that the
claimant had no severe medically determinable impairment. First, the undersigned
notes that new evidence has been admitted into the record since Dr. Moore
rendered his opinion. Second, Dr. Moore was a non-examining physician, who
never had the opportunity to examine, or even meet with and question, the
claimant. Finally, Dr. Moore's opinion is inconsistent with the claimant's medical
records. For instance, the claimant has been diagnosed with multiple medically
determinable physical impairments (asthma, vertigo, and fibromyalgia) by several
different physicians. Therefore, the undersigned assigns little weight to the
medical opinion of Dr. Moore.
In the medical source statement dated February 26, 2010, state agency physician
Marvin Cohn, M.D., concluded that the claimant had no limitations except that
the claimant must avoid all exposure to fumes, odors, dusts, gases, etc. On June 5,
2010, state agency physician Carolyn Parrish, M.D., affirmed the medical source
statement by Dr. Cohn. First, Dr. Cohn and Dr. Parrish were non-examining
physicians, who never had the opportunity to examine, or even meet with and
question, the claimant. Furthermore, while the environmental limitation included
in these medical source statements is consistent with the claimant's medical
records and the above stated residual functional capacity, these medical source
statements are inconsistent with the claimant's medical records regarding the
claimant's vertigo and fibromyalgia, which are well documented in the claimant's
medical treatment notes and accounted for in the above-stated residual functional
capacity. Therefore, the undersigned assigns some weight to the medical opinions
of Dr. Cohn and Dr. Parrish.
The medical source statement dated June 14, 2011, by treating physician Emilio
Rodriguez, M.D., that the claimant is disabled is inconsistent with the record as a

13

whole, and therefore, is not given controlling weight. In his medical source
statement, Dr. Rodriguez opines that the claimant cannot perform shopping
activities. However, the claimant has stated that she goes shopping at Walmart on
a regular basis. Dr. Rodriguez also stated that the claimant cannot hear and
understand simple instructions due to a right ear injury. However, the claimant
was able to answer questions during the hearing, and the claimant has stated that
she answered phone calls for her family's hair salon. Furthermore, in the same
medical source statement, Dr. Rodriguez states that the claimant can use a
telephone to communicate, which is inconsistent with the inability to hear and
understand simple instructions and to communicate simple information. Thus, it
appears that Dr. Rodriguez relied on the subjective report of symptoms and
limitations provided by the claimant, and seemed to accept as true most, if not all,
of what the claimant reported. Yet, as explained elsewhere in this decision, there
exist good reasons for questioning the reliability of the claimant's subjective
complaints. Finally, while Dr. Rodriguez is a treating physician, he has only seen
the patient three times in approximately five months, and Dr. Rodriguez rendered
his medical source statement after seeing the claimant only twice. Therefore, the
undersigned assigns little weight to the medical opinion of Dr. Rodriguez because
it is inconsistent with the record as a whole.
(Doc. 11 p. 22-23.)
As noted above, the ALJ did not find Dr. Rodriguez’ opinion unsupported by objective
medical evidence. Rather, the ALJ found substantial evidence—that Plaintiff “goes shopping at
Walmart on a regular basis” and could hear and communicate at the hearing—contrary to Dr.
Rodriguez’ opinion. Contrary to the ALJ’s finding, however, these activities are not contrary to
Dr. Rodriguez’ opinion.
According to the regulations, the relevant inquiry is not whether Plaintiff can go shopping
but whether she can do the activities of daily living to which she admits on a “regular and
continuous basis.” 1996 S.S.R. 96-8p, LEXIS 5, 1; See Gayheart, 731 F.3d at 377 (finding that a
claimant’s ability to leave home, drive, go shopping with his wife, and visit relatives does not
necessarily indicate that a claimant is able to engage in those activities on a sustained and
continuous basis). Regular and continuous, according to the regulations, refer to the duration of
physical exertion rather than frequency. 1996 S.S.R. 96-8p, LEXIS 5, 1.

14

Plaintiff’s ability to accompany her sister to Walmart regularly—each Monday for an
hour and a half—is not inconsistent with Dr. Rodriguez’ opinion that she is unable to do so
“more than two thirds of the time [or] 8 hours a day, for 5 days a week, or an equivalent work
schedule.” 1996 S.S.R. 96-8p, LEXIS 5, 1. Nor is Plaintiff’s ability to attend church services for
two hours on a Sunday, or attend a BMX event for four hours one day a year. Moreover, the
ALJ’s assessment focuses upon Plaintiff’s claims prior to a diagnosis of fibromyalgia without
consideration of the fact that she had not worked at her sister’s beauty salon since August of
2009 and had not attended church or a BMX event in more than a year prior to the hearing. See
Gayheart, 710 F.3d at 378 (finding that an ALJ’s selective “focus on isolated pieces of the record
is an insufficient basis” for discounting the opinion of a treating source). 6
Likewise, as Plaintiff asserts, while Dr. Rodriguez indicated that Plaintiff is unable to
hear and understand simple instructions on the MSS form, he qualified this statement by noting
that Plaintiff had damage to her right ear drum but is able to communicate via the telephone.
(A.R., DE-11, p. 356.) It is clear, contextually, that Dr. Rodriguez did not assert that Plaintiff
was incapable of hearing as the ALJ inferred. Moreover, Plaintiff’s partial hearing loss is
irrelevant to Dr. Rodriguez’ ultimate opinion. The limitations described by Dr. Rodriguez are
attributable to fibromyalgia, his specialty and area of expertise. (A.R., DE-11, p. 356.) Given
that Dr. Rodriguez noted Plaintiff’s hearing problem despite his lack of familiarity with hearing
issues is more a testament to his knowledge of Plaintiff’s medical history than it is an
inconsistency.
6

Although the Magistrate Judge does not reach the issue of the ALJ’s credibility finding with regard to Plaintiff,
the Magistrate Judge notes an apparent “selective” approach taken by the ALJ in his view of the record and his
reasoning over Plaintiff’s subjective complaints. On remand, the ALJ is cautioned that the approach mandated
by regulations is a comprehensive one that considers all of Plaintiff’s medical conditions, both severe and nonsevere, the impact of treatment regimens on all of Plaintiff’s medical conditions, and her response to those
treatments. A “selective” approach that “focus[es] on isolated pieces of the record” denotes a lack of
substantial evidence. See Gayheart, 736 F.3d 365, 378 (6th Cir. 2013), SSR 96-8p, 1996 LEXIS 5 at * 13-18.

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As such, the Magistrate Judge finds that the ALJ failed to cite substantial evidence that
contradicts Dr. Rodriguez’ opinion, and, thus, the reasons advanced by the ALJ are insufficient
to support a finding that Dr. Rodriguez’ opinion is not entitled to controlling weight.
Nevertheless, even if Dr. Rodriguez’ opinion is not entitled to controlling weight, it is still
clearly entitled to significant weight according to the regulations that cabin the ALJ’s discretion
in weighing the opinions of varying medical professionals.
In addition to regulating the overall DIB determination process, the Commissioner has
“elected to impose certain standards on the treatment of medical source evidence.” Gayheart,
710 F.3d at 375 (citing 20 C.F.R. §§ 404.1512, 1513, 1520). Contrary to the Commissioner’s
assertion here, the record alone is not the only determinative factor in assessing the validity of a
medical source opinion. Rather, the determination of what weight is to be given the opinions of
medical experts is based upon seven distinct factors that consider the medical professional’s
proximity to the claimant’s symptoms and the resultant impact on a claimant’s functionality.
Gayheart, 770 F.3d at 376 (citing 20 C.F.R. § 404.1527(c)(2)-(6)).
Presumptively, the opinions of treating sources, such as Drs. Gannon and Rodriguez, are
entitled to greater weight than nontreating sources—examining and nonexamining sources—
because they are better “able to provide a detailed, longitudinal picture of [a claimant’s] medical
impairments.” 20 C.F.R. § 404.1527(c)(2). Likewise, examining sources presumptively warrant
more weight than nonexamining sources. Id. This hierarchy can be altered, however, based
upon the duration and extent of the treatment relationship between the source and patient, how
well the opinion is grounded in the record, the consistency of the opinion with the record,
whether the opinion is from a specialist or a general practitioner, and other relevant factors. 20

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C.F.R. §§ 404.1527(c)(2)-(6). Consideration of these factors between Dr. Rodriguez and the
DDS experts weigh heavily in favor of Dr. Rodriguez.
Unlike all of the DDS experts, Dr. Rodriguez’ opinion is based upon a complete medical
record and is well grounded in the record as a whole. While the ALJ characterized the opinions
of Drs. Cohn and Parrish as being “inconsistent with the claimant's medical records regarding the
claimant's vertigo and fibromyalgia,” both of these opinions were formed nearly one year prior to
Dr. Gannon’s diagnosis of fibromyalgia and Dr. Rodriguez’ confirmation of that diagnosis.
(Doc. 11, p. 23.) Also unlike the DDS experts, Dr. Rodriguez is not only a treating source but a
specialist in the treatment of fibromyalgia. Most important here, however, is the fact that Dr.
Rodriguez’ treatment relationship with Plaintiff was considerably more than cursory as the ALJ
implied. 7
Dr. Rodriguez confirmed a diagnosis of fibromyalgia in January of 2011 through
informed consideration of Plaintiff’s complete medical history, identification of multiple
symptoms characteristic to the disease, and elimination of alternative sources of those symptoms
through acceptable medical techniques. Over the six months prior to expressing his opinion, Dr.
Rodriguez chronicled the progression of Plaintiff’s fibromyalgia, made multiple changes in
Plaintiff’s medications, referred her to other specialists, and assessed her physical limitations
through an examination of those limitations. After eight months of treatment, Dr. Rodriguez’
findings were that Plaintiff achieved only “mild improvement” in her ever progressing
symptoms, due primarily to an inability to tolerate approved treatment regimens. Plaintiff’s
7

Inexplicably, Plaintiff’s counsel failed to draw attention, either in their brief here or in their request for
reconsideration (Doc. 11 pp. 6-8), to the ALJ’s clearly erroneous finding in regard to Dr. Rodriguez’ treatment
history of Plaintiff. Likewise, perhaps intent on leaving well enough alone, counsel for the Commissioner also
failed to draw attention to the ALJ’s error or to explain it away. Nevertheless, in assessing the relationship
between Dr. Rodriguez and Plaintiff, the ALJ committed clear error when he dismissed Dr. Rodriguez’ opinion
because he saw Plaintiff “three times in approximately five months, and [] rendered his medical source
statement after seeing [her] only twice.” The record clearly reflects that Dr. Rodriguez saw Plaintiff at least
five times and rendered his opinion after Plaintiff’s fourth visit. (Doc. 11 pp. 378-393.)

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condition did not improve through the use of Celexa and Cymbalta, she was unable to tolerate
Savella, and, although she is able to tolerate Flexoril, Plaintiff is unable to tolerate a sufficiently
high dosage to significantly improve her symptoms.
The Magistrate Judge finds that Dr. Rodriguez is a treating source and is a specialist in
his field. His knowledge of Plaintiff’s past medical history is current, and the length, frequency,
and depth of his treatment is extensive. As a result, Dr. Rodriguez’ treatment notes provide a
longitudinal picture of the diagnosis and progression of Plaintiff’s fibromyalgia that is consistent
with those of Plaintiff’s primary care physician. As such, under the regulations promulgated to
control the ALJ’s weighting of medical opinion evidence, Dr. Rodriguez’ opinion is entitled to
more than “little weight” and substantially more weight than any of the DDS experts who were
nontreating and nonexamining sources with a limited and incomplete knowledge of Plaintiff’s
medical history.
IV.

CONCLUSION

For the foregoing reasons, the Magistrate Judge finds the ALJ’s consideration of medical
opinion evidence from Dr. Emilio Rodriguez was not conducted in a manner consistent with the
regulations promulgated to control that consideration. As such, the ALJ’s failure to follow the
“regulations denotes a lack of substantial evidence” and dictates that Plaintiff’s case be
remanded to the Commissioner for reconsideration. Cole, 661 F.3d at 937.
V.

RECOMMENDATION

For the reasons stated above, the undersigned recommends that the plaintiff’s motion for
judgment on the record (DE 13) be GRANTED and Plaintiff’s claims be REMANDED for
reconsideration.

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The parties have fourteen (14) days of being served with a copy of this R&R to serve and
file written objections to the findings and recommendation proposed herein. A party shall
respond to the objecting party’s objections to this R&R within fourteen (14) days after being
served with a copy thereof. Failure to file specific objections within fourteen (14) days of receipt
of this R&R may constitute a waiver of further appeal. Thomas v. Arn, 474 U.S. 140, reh’g
denied, 474 U.S. 111 (1986); Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004).
ENTERED this 11th day of March, 2014.

/s/Joe B. Brown
Joe B. Brown
Magistrate Judge

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