Whittaker v. Social Security Administration

Filing 19

REPORT AND RECOMMENDATION re 15 MOTION for Judgment on the Pleadings In a Social Security Appeal filed by Laurie A. Whittaker. For the above stated reasons, it is recommended that Plaintiff's motion for judgment on the administrative re cord (DE 15) be GRANTED and the Commissioner's decision be REVERSED and REMANDED for a new hearing and determination consistent with this opinion. OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Court within fourte en (14) days of the date of service of this Report and Recommendation or further appeal is waived. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Poorly drafted objecti ons, general objections, or objections that require a judge's interpretation should be afforded no effect and are insufficient to preserve the right of appeal. Signed by Chief Judge Waverly D. Crenshaw, Jr on 5/10/2018. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NORTHEASTERN DIVISION
LAURIE A. WHITTAKER
v.
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION 1

To:

)
)
)
)
)
)

No. 2:17-0036

The Honorable Waverly D. Crenshaw, Chief District Judge

REPORT AND RECOMMENDATION
Pending before the Court is Plaintiff’s motion for judgment on the administrative record.
See Docket Entry (“DE”) 15. Plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3) to obtain judicial review of the final decision of the Social Security Administration
(“Commissioner”). At issue is whether the administrative law judge (“ALJ”) erred in finding that
Plaintiff was “not disabled,” and therefore not entitled to a period of disability, Disability
Insurance Benefits (“DIB”), or Supplemental Security Income (“SSI”). (See Administrative
Transcript (“Tr.”) at 17-19). 2 This matter has been referred to the undersigned, pursuant to 28
U.S.C. § 636(b), for initial consideration and a report and recommendation. See DE 6.

1

Nancy A. Berryhill was the Acting Commissioner of Social Security beginning January 23,
2017. However, her acting status ended as a matter of law pursuant to the Federal Vacancies Reform Act,
5 U.S.C. § 3345 et seq. Pursuant to Fed. R. Civ. P. 17(d), a public officer who is sued in an official
capacity may be designated by official title rather than by name. Since Ms. Berryhill is no longer the
Acting Commissioner, the Clerk is DIRECTED to identify Defendant by the official title rather than by
name.
2

The Transcript of the Administrative Record is hereinafter referenced by the abbreviation “Tr.”
followed by the corresponding page number(s) as denoted by the large black print on the bottom right
corner of each page.

Upon review of the administrative record and consideration of the parties’ filings, I
recommend that Plaintiff’s motion (DE 15) be GRANTED, the decision of the Commissioner be
REVERSED, and this matter be REMANDED for further administrative proceedings consistent
with this Report.
I.

FACTS AND PROCEDURAL HISTORY

Plaintiff protectively filed an application for DIB and SSI on August 8, 2013 due to
bipolar disorder, fibromyalgia, osteoporosis, peripheral artery disease, and arthritis, with an
alleged disability onset date of January 15, 2010. (Tr. 121-22, 163). 3 Her application was denied
initially and upon reconsideration. (Tr. 121-22, 159-60). Pursuant to her request for a hearing
before an ALJ, Plaintiff appeared with counsel and testified at a hearing before ALJ George L.
Evans, III on December 16, 2015. (Tr. 42). On March 2, 2016, the ALJ denied the claim. (Tr. 1719). On April 5, 2017, the Appeals Council denied Plaintiff’s request for a review of the ALJ’s
decision. (Tr. 1-3). Therefore, the ALJ’s decision stands as the final determination of the
Commissioner.
As part of the decision, the ALJ made the following enumerated findings:
1. The claimant meets the insured status requirements of the Social Security Act
through June 30, 2017.
2. The claimant has not engaged in substantial gainful activity since June 16, 2014,
the amended alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: back pain; arthritis;
fibromyalgia; peripheral arterial disease of the lower extremities; obesity;
vestibular hypofunction; depressive disorder; and adjustment disorder with
anxiety (20 CFR 404.1520(c) and 416.920(c)).

3

Plaintiff subsequently amended the alleged onset date to June 16, 2014 after it was revealed that
she had significant reported earnings through 2014. (Tr. 22).
2

4. The claimant does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined in
20 CFR 404.1567(b) and 416.967(b). The claimant can stand for a total of four
hours in an eight-hour workday; can walk for a total of two hours in an eight-hour
workday; can sit for four hours in an eight-hour workday; requires the ability to
change position every 30 minutes; can never climb or crawl; can occasionally
bend, stoop, or crouch; can occasionally operate foot controls; should avoid all
exposure to heights, hazards, and operating a motor vehicle; can work in jobs with
a specific vocational and preparation (SVP) rating of 3 or less; and should avoid
work involving public interaction and work that depends upon close interaction
with supervisors and coworkers.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and
416.965).
7. The claimant was born on December 16, 1964 and was 49 years old, which is
defined as a younger individual age 18-49, on the alleged disability onset date.
The claimant subsequently changed age category to closely approaching advanced
age (20 CFR 404.1563 and 416.963).
8. The claimant has at least a high school education and is able to communicate in
English (20 CFR 404.1564 and 416.964.
9. Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a finding
that the claimant is “not disabled,” whether or not the claimant has transferable
job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the national
economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969,
and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security
Act, from June 16, 2014, through the date of this decision (20 CFR 404.1520(g)
and 416.920(g)).
(Tr. 22-34).
3

On appeal, Plaintiff submits two assertions of error: (1) that the residual functional
capacity (“RFC”) determination is not supported by substantial evidence; and (2) that the ALJ’s
step five determination was not supported by substantial evidence. DE 15-1 at 3. Plaintiff
therefore requests that this case be reversed and remanded pursuant to sentence four of 42 U.S.C.
§ 405(g) for further consideration. Id. at 18.
II.

ANALYSIS

A. Standard of Review
On appeal, the Court is charged with determining whether the ALJ’s decision is
supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is defined as “more
than a mere scintilla” and “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d
842 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 83 L. Ed.
126 (1938)). If substantial evidence supports the ALJ’s decision, that decision must be affirmed
“even if there is substantial evidence in the record that would have supported an opposite
conclusion.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting Key v.
Callahan, 109 F.3d 270, 273 (6th Cir. 1997)). As explained by the Sixth Circuit:
The Commissioner’s findings are not subject to reversal merely because
substantial evidence exists in the record to support a different conclusion. The
substantial evidence standard presupposes that there is a “zone of choice” within
which the Commissioner may proceed without interference from the courts. If the
Commissioner’s decision is supported by substantial evidence, a reviewing court
must affirm.
Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994).
The Commissioner employs a five-step sequential evaluation process in considering
whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a), 416.920(a). If the issue of disability
can be resolved at any point in the evaluation process, the ALJ does not proceed to the next step
4

and the claim is not reviewed further. Id. §§ 404.1520(a)(4), 416.920(a)(4). At step one, the
claimant must show that she is not engaged in “substantial gainful activity” at the time disability
benefits are sought; at step two, the ALJ considers whether one or more of the claimant’s alleged
impairments are “severe” in nature; at step three, the ALJ determines whether the impairments at
issue meet or equal one of the Listings contained in the regulatory List of Impairments; at step
four, the ALJ considers the claimant’s residual functional capacity (“RFC”) and determines
whether the claimant can still perform past relevant work; and at step five, the burden of proof
shifts to the ALJ to assess whether the claimant, after establishing that past relevant work is no
longer possible, is capable of performing other types of work. Id. §§ 404.1520(a)(4)(i)-(v),
416.920(a)(4)(i)-(v).
If the ALJ determines at step four that the claimant can perform past relevant work, the
claimant is deemed “not disabled” and the ALJ need not complete the remaining steps of the
sequential analysis. Id. §§ 404.1520(a), 416.920(a). “Past relevant work” is defined as work that
claimants have done within the past fifteen years that is “substantial gainful activity” and that
lasted long enough for the claimant to learn to do it. Combs v. Comm’r of Soc. Sec., 459 F.3d
640, 643 (6th Cir. 2006) (citing 20 C.F.R. § 404.1560(b)(1)). If the claimant is incapable of
performing past relevant work, however, the ALJ proceeds to step five to determine whether, in
light of the claimant’s RFC, age, education, and work experience, the claimant can perform other
substantial gainful employment and whether such employment exists in significant numbers in
the national economy. In determining a claimant’s RFC, the ALJ is required to consider the
combined effect of all of the claimant’s impairments, mental and physical, severe and nonsevere.
See 42 U.S.C. §§ 423(d)(2)(B), (5)(B).

5

The Court’s review of the Commissioner’s decision is limited to the record made during
the administrative hearing process. Willbanks v. Sec’y of Health & Human Servs., 847 F.2d 301,
303 (6th Cir. 1988). A reviewing court may not try the case de novo, resolve conflicts in
evidence, or decide questions of credibility. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir.
1984) (Myers v. Richardson, 471 F.2d 1265, 1268 (6th Cir. 1972)). The Court must accept the
ALJ’s explicit findings and determination unless the record as a whole is without substantial
evidence to support the ALJ’s determination. Houston v. Sec’y of Health & Human Servs., 736
F.2d 365, 366 (6th Cir. 1984) (citing 42 U.S.C. § 405(g)).
B. The Commissioner’s Decision
The ALJ resolved the current Plaintiff’s claim at step five of the five-step process.
Although Plaintiff was found to have met the first two steps, the ALJ determined at step three
that Plaintiff did not have an impairment or combination of impairments that met or medically
equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix
1, and was therefore not presumptively disabled. At step four, the ALJ found that Plaintiff was
unable to perform any past relevant work. At step five, the ALJ found that Plaintiff’s RFC
allowed her to perform light work with express limitations to account for her severe
impairments, and that there were jobs that existed in significant numbers in the national economy
that Plaintiff could perform despite such limitations. (Tr. 22-34).
C. Assertions of Error
1. The RFC.
Plaintiff’s first assertion of error includes three separate errors allegedly committed by
the ALJ in formulating the RFC: (a) the ALJ failed to properly weigh the opinion of Dr. Brian
McKinnon; (b) the ALJ failed to provide good reasons for discounting the opinion of Dr.
6

Michael Cox; and (c) the ALJ violated Social Security Ruling (“SSR”) 12-2p by failing to
properly consider the severity of her fibromyalgia. DE 15-1 at 3. The Court will address each of
these claims in turn.
On September 4, 2015, Dr. McKinnon, who was seen on a single occasion upon referral
from Dr. Thuy Ngo, issued a “Statement of Claim for Disability Benefits” asserting that Plaintiff
“cannot work or drive due to dizziness.” (Tr. 762-63). However, the ALJ failed to reference this
report anywhere in his opinion, which, according to Defendant, was harmless error. Conversely,
Plaintiff claims that the ALJ violated 20 C.F.R. § 404.1527 4 by failing to consider this opinion in
light of Dr. McKinnon’s status as a “treating physician and specialist in neurology.” DE 15-1 at
9.
The regulation cited by Plaintiff contains what is commonly known as the “treating
physician rule,” which requires an ALJ to give controlling weight to an opinion provided by a
treating physician if the opinion is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in
[the] case record.” 20 C.F.R. § 404.1527(c)(2). 5 Even if the ALJ does not accord controlling
weight to a treating physician’s opinion, the ALJ must still consider the amount of weight to give
the opinion. Karger v. Comm’r of Soc. Sec., 414 F. App’x 739, 751 (6th Cir. 2011) (quoting
Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 550 (6th Cir. 2010)). The reasons provided by
the ALJ for such weight allocation “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

4

20 C.F.R. § 416.927, which applies to claims for SSI, is analogous to 20 C.F.R. § 404.1527,
which applies to claims for DIB. For ease of reference, the Court refers solely to 20 C.F.R. § 404.1527.
5

The treating physician rule applies to all Social Security claims filed before March 27, 2017,
such as the instant one. See 82 Fed. Reg. 15263-01, 2017 WL 1105348 (Mar. 27, 2017).
7

adjudicator gave to the treating source’s medical opinion.” Reagan v. Colvin, 47 F. Supp. 3d 648,
654 (E.D. Tenn. 2014) (quoting Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir.
2013)).
Despite the ALJ’s failure to explicitly address Dr. McKinnon’s opinion, the undersigned
finds that such an omission does not warrant remand in the instant matter. The Court first
highlights the Sixth Circuit’s clarification that the treating physician rule is based on the
assumption that a provider who has treated a claimant over a long period of time “will have a
deeper insight into the medical condition of the claimant than will a person who has examined a
claimant but once[.]” Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994). In contrast, Dr.
McKinnon saw Plaintiff, upon referral, on just one occasion in August of 2015. (See Tr. 762,
819-22). His opinion is therefore not subject to the treating physician rule. See Kornecky v.
Comm’r of Soc. Sec., 167 F. App’x 496, 506 (6th Cir. 2006) (“[A] single visit does not constitute
an ongoing treatment relationship.”).
Moreover, while the ALJ is certainly required to consider all medical opinions included
in the administrative record, Keeton v. Comm’r of Soc. Sec., 583 F. App’x 515, 528 (6th Cir.
2014), there is no requirement that the ALJ explicitly discuss each piece of evidence. See
Daniels v. Comm’r of Soc. Sec., 152 F. App’x 485, 489 (6th Cir. 2005) (“[A]n ALJ’s failure to
cite specific evidence does not indicate that it was not considered.”) (internal citation omitted).
This is especially true for an opinion that lists only “cannot work or drive due to dizziness” as
“functional limitations” (Tr. 763), the former of which has little value in a Social Security claim.
See Gaskin v. Comm’r of Soc. Sec., 280 F. App’x 472, 475 (6th Cir. 2008) (“[T]he ultimate
determination of disability is a matter reserved to the Commissioner.”). Plaintiff’s argument is
further undermined by the ALJ’s inclusion of a prohibition on “operating a motor vehicle” in the
8

RFC (Tr. 25), thus accounting for the only functional limitation included in Dr. McKinnon’s
opinion.
Plaintiff offers a more tenable position with respect to the opinion of Dr. Michael Cox,
who completed a “Physical Assessment” form which opined that Plaintiff would be unable to sit
for more than four hours per eight-hour workday, stand and walk for more than two hours per
eight-hour workday, lift and carry more than 10 pounds on a “frequent” basis, 6 or use her hands,
arms, or fingers for more than 50% of an eight-hour workday. (Tr. 869). The ALJ accorded
“little weight” to this opinion, stating that Dr. Cox’s opinion “is not supported by the treatment
record and is not consistent with other opinions of record or with the record as a whole.” (Tr.
30). Plaintiff argues that this explanation fails to satisfy the “good reasons” requirement of 20
C.F.R. § 404.1527(c)(2).
The Court notes initially that Dr. Cox’s “Physical Assessment” form lacks any significant
support for the restrictions contained therein. The opinion primarily consists of checked boxes
unaccompanied by explanation or citation to any objective findings, both of which weigh against
his ultimate conclusions. See 20 C.F.R. § 404.1527(c)(3) (“The more a medical source presents
relevant evidence to support an opinion, particularly medical signs and laboratory findings, the
more weight we will give that opinion. The better an explanation a source provides for an
opinion, the more weight we will give that opinion.”). Additionally, Dr. Cox’s suggestion that
Plaintiff’s current medications “can cause [a] lack of concentration [due to] dizziness” appears to
be contradicted by the myriad of encounters with treating providers during which Plaintiff
reported that she experienced no side effects from her medication. (See Tr. 683, 687, 692, 710,
715, 719, 723, 735, 740, 744).
6

“Frequently” is defined as between “1/3 – 2/3 of the 8-hour workday.” (Tr. 869).
9

Nevertheless, the undersigned agrees that the assigned RFC is not supported by
substantial evidence. As noted by Plaintiff, the only other opinion from an examining physician
that involves physical limitations comes from the report completed by Dr. Terrence Leveck
following his consultative examination in November of 2013. (See Tr. 383). This report
concluded that, during an eight-hour workday, Plaintiff could sit for eight hours, stand for six
hours with frequent rest, walk for 10 minutes at a time, and “occasionally” lift and carry five
pounds. (Tr. 386). The ALJ granted this opinion “partial” weight but only explicitly rejected the
five-pound lift and carry restriction, which he concluded was “too restrictive and not supported
by the essentially normal examination or the longitudinal medical record.” (Tr. 30). The ALJ
failed, however, to consider Dr. Leveck’s additional restrictions limiting Plaintiff to just 10
minutes of walking at a time and standing for six hours with frequent rest. Such an omission does
not necessarily constitute reversible error, as an ALJ is not required to adopt a medical opinion
“verbatim” even if that opinion has been accorded great weight. Reeves v. Comm’r of Soc. Sec.,
618 F. App’x 267, 275 (6th Cir. 2015). Yet the ALJ must explain the weight given to the opinion
of an examining physician in a way that permits meaningful review of his reasoning. See
Wilburn v. Astrue, No. 3:10-0008, 2010 WL 6052397, at *6 (E.D. Tenn. Sept. 13, 2010), report
and recommendation adopted, 2011 WL 891022 (E.D. Tenn. Mar. 11, 2011) (“Though the
opinions of examining physicians are not entitled to as great a weight as those of treating
physicians, the ALJ must, nonetheless, explain the weight given to opinions of examining
sources.”). Here, the ALJ simply ignored Dr. Leveck’s additional limitations involving frequent
rest and limited walking without any explanation, an oversight that is not immaterial. See Cox v.
Comm’r of Soc. Sec., 615 F. App’x 254, 258 (6th Cir. 2015) (holding that the ALJ’s failure to

10

explain the weight given to treating and examining physicians prevented “meaningful[] review
the ALJ’s actual reasoning,” thus requiring remand).
The ALJ’s failure in this regard is compounded by his inconsistent consideration of
Plaintiff’s initial applications for DIB and SSI, which were filed on July 12, 2007 and ultimately
denied by a separate ALJ on January 14, 2010. (See Tr. 72-75). Pursuant to relevant Sixth Circuit
precedent, a prior administrative determination regarding a claimant’s past work is binding in
any subsequent administrative proceeding, Dennard v. Sec’y of Health & Human Servs., 907
F.2d 598 (6th Cir. 1990), and an ALJ in such a subsequent proceeding is similarly bound by the
first ALJ’s RFC findings unless there is evidence of an improvement in the claimant’s condition.
Drummond v. Comm’r of Soc. Sec., 126 F.3d 837 (6th Cir. 1997). 7 Therefore, the subsequent
ALJ “is bound by the legal and factual findings of a prior ALJ unless the claimant presents new
and material evidence that there has been either a change in the law or a change in the claimant’s
condition.” Blankenship v. Comm’r of Soc. Sec., 624 F. App’x 419, 425 (6th Cir. 2015).
In the instant case, the ALJ found such new and material evidence and thus determined
that “some departure from the findings of the prior [ALJ’s] decision is warranted.” (Tr. 27). The
first ALJ found that Plaintiff was able to perform light work in jobs that did not require working
closely with other individuals. (Tr. 78). The current ALJ similarly found that Plaintiff was able to
perform light work, 8 but determined that Plaintiff was subject to several additional physical

7

Following Dennard and Drummond, the Commissioner adopted Acquiescence Rulings 98-3(6)
and 98-4(6), which built on these opinions by mandating that an ALJ in a subsequent disability claim
cannot make a different finding as to a claimant’s past relevant work or RFC “unless new and additional
evidence or changed circumstances provide a basis for a different finding[.]” 1998 WL 283901, at *2
(June 1, 1998); 1998 WL 283902, at *3 (June 1, 1998).
8

The regulations define this exertional level in the following way: “Light work involves lifting
no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.
Even though the weight lifted may be very little, a job is in this category when it requires a good deal of
walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or
11

restrictions that pertained to standing, walking, sitting, climbing, crawling, bending, stooping,
and crouching. (Tr. 25). He also limited Plaintiff to “occasional” operation of foot controls and
jobs that allow Plaintiff to change position every 30 minutes. (Tr. 25-26). While the ALJ was
certainly permitted to formulate this more restrictive RFC as part of his analysis, his findings
appear to conflict with his decision to accord “significant weight” to the opinions of two State
agency physicians, Drs. Michael Ryan and Thomas Thrush, both of whom concluded that the
RFC from the first ALJ’s opinion should be adopted. (See Tr. 98, 101-02, 133-34, 151-53).
More vexing still, the ALJ failed to provide any meaningful explanation for elevating the
opinions of these non-examining State agency physicians over those offered by treating and
examining physicians, which is relevant since the opinion of an examining source “is generally
given greater weight than the opinion of a non-examining source.” Keeton, 583 F. App’x at 528.
He instead granted the State agency opinions significant weight based on their “consistent[cy] ...
with the medical record as a whole and with the provisions of Drummond []; Dennard []; and
Social Security Acquiescence Rulings 98-3(6) and 98-4(6)” (Tr. 31), a statement that not only
conflicts with his decision not to adopt the prior ALJ’s RFC, but also suggests that his analysis of
these non-examining physicians’ opinions was much less meticulous than his evaluation of the
opinions provided by treating and examining physicians. See Gayheart v. Comm’r of Soc. Sec.,
710 F.3d 365, 379 (6th Cir. 2013) (“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.”).

leg controls. To be considered capable of performing a full or wide range of light work, you must have
the ability to do substantially all of these activities. If someone can do light work, we determine that he or
she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity
or inability to sit for long periods of time.” 20 C.F.R. § 404.1567(b).
12

Furthermore, the ALJ accorded greater weight to these non-examining opinions without
acknowledging the voluminous amount of treatment that Plaintiff continued to receive for
approximately two years after these opinions were issued. This included records documenting
treatment with Dr. Emilie Riddle (Tr. 421-35, 465-67), Dr. Lewis Wilson (Tr. 589-92), the
University of Tennessee Medical Center (Tr. 593-600), Dr. Thuy Ngo (Tr. 679-81), Tennessee
Spine and Joint (Tr. 682-751), Emory Healthcare (Tr. 836-44), and Dr. Joel Hart (Tr. 845-64), as
well as with Dr. McKinnon and Dr. Cox, none of which were available to the State agency
physicians. The ALJ scarcely discussed any of this evidence in his opinion (see Tr. 27-28),
which undermines his decision to reject Dr. Cox’s findings based on their alleged incompatibility
with the “treatment record.” (Tr. 30). See also Blakley, 581 F.3d at 409 (“[B]ecause much of the
over 300 pages of medical evidence reflects ongoing treatment and notes by [the claimant’s]
treating sources, we require some indication that the ALJ at least considered these facts before
giving greater weight to an opinion that is not based on a review of a complete case record).”
The ALJ’s rejection of Dr. Cox’s opinions thus fails to satisfy the “good reasons” requirement.
The Court pauses to note that Plaintiff’s additional claim, that the ALJ violated SSR 122p (DE 15-1 at 14-15), is without merit. Plaintiff faults the ALJ for “focus[ing] on the lack of
objective medical evidence in the record” (id. at 14), but fails to explain how such analysis
infringes on any aspect of SSR 12-2p. Indeed, Plaintiff fails to cite any portion of SSR 12-2p,
which is particularly damaging to her argument given that the ruling mandates that the ALJ
consider objective evidence in evaluating fibromyalgia:
As with any claim for disability benefits, before we find that a person with ...
[fibromyalgia] is disabled, we must ensure there is sufficient objective evidence to
support a finding that the person’s impairment(s) so limits the person’s functional
abilities that it precludes him or her from performing any substantial gainful
activity.
13

2012 WL 3104869, at *2 (July 25, 2012). Plaintiff additionally argues that the ALJ “should have
consulted a medical expert” to determine whether her condition met Listing 14.09D (DE 15-1 at
16), 9 yet does little more than provide a general citation to 20 C.F.R. § 404.1526 without
identifying any authority requiring the ALJ to take such action. This flimsy contention is
therefore rejected. See Kuhn v. Washtenaw Cty., 709 F.3d 612, 624 (6th Cir. 2013) (“This court
has consistently held that ... arguments adverted to in only a perfunctory manner[] are waived.”).
Notwithstanding this deficiency, the Court concludes that reversal of the Commissioner’s
decision is necessary. In considering the amount of weight to afford a treating physician’s
opinion, the ALJ must provide an explanation that is “sufficiently specific to make clear to any
subsequent reviewers the weight the adjudicator gave to the treating source’s medical opinion
and reasons for that weight.” Johnson-Hunt v. Comm’r of Soc. Sec., 500 F. App’x 411, 418 (6th
Cir. 2012) (quoting Helm v. Comm’r of Soc. Sec. Admin., 405 F. App’x 997, 1000 (6th Cir.
2011)). The ALJ’s dismissal of Dr. Cox’s opinion based on a broad reference to the “treatment
record” and “other opinions of record” fails to fulfill this duty, as discussed supra. Moreover, the
ALJ was required to “articulate how the evidence in the record supports the RFC determination
... and explain the resolution of any inconsistencies in the record.” Delgado v. Comm’r of Soc.
Sec., 30 F. App’x 542, 547-48 (6th Cir. 2002) (internal citation omitted). The ALJ failed in this
regard by failing to provide any meaningful support for the physical limitations incorporated into
the RFC, which is crucial in light of his significant departure from the prior ALJ’s findings
9

Listing 14.09 is one of the impairments included in 20 C.F.R. § 404, Subpart P, Appendix 1 and
contains specific criteria that, if met by the claimant, would direct the Commissioner to find the claimant
“disabled without considering [her] age, education, and work experience.” Johnson v. Sec’y of Health &
Human Servs., 794 F.2d 1106, 1110 (6th Cir. 1986) (quoting 20 C.F.R. § 404.1520(d)). If the claimant
has a listed impairment but does not meet the criteria, the ALJ can still find that the impairment is
“medically equivalent” to the listing in question if the claimant has “other findings related to [the]
impairment that are at least of equal medical significance to the required criteria.” 20 C.F.R. §
404.1526(b)..
14

despite granting “significant weight” to multiple medical opinions that adopted such prior
findings. See Brogan v. Comm’r of Soc. Sec., No. 3:14-cv-714, 2015 WL 350387, at *14 (N.D.
Ohio Jan. 23, 2015) (finding remand necessary because the ALJ’s opinion “makes it unclear to
what extent [the] ALJ [] considered the prior ALJ’s decision in formulating Plaintiff’s RFC”).
The Sixth Circuit has held that an ALJ’s failure to follow proper legal standards denotes a lack of
substantial evidence “even where the conclusion of the ALJ may be justified based upon the
record.” Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011) (internal citation omitted). The Court
therefore finds that the RFC is not supported by substantial evidence, and thus recommends
reversal and remand for additional proceedings. See Morgan v. Astrue, No. 10-207-KSF, 2011
WL 2292305, at *8 (E.D. Ky. June 8, 2011) (“Where … there is insufficient support for the
ALJ’s findings, the appropriate remedy is reversal and a sentence-four remand for further
consideration.”).
2. The ALJ’s Step Five Finding.
Plaintiff next argues that the ALJ’s step five determination was not supported by
substantial evidence (DE 15-1 at 16), yet primarily argues that the ALJ erred by failing to
include limitations in the RFC pertaining to short-term memory loss. Id. at 17. Because the Court
has already determined that remand is necessary in light of the errors described above, this
assertion of error is rendered moot.
III. CONCLUSION
For the above stated reasons, it is recommended that Plaintiff’s motion for judgment on
the administrative record (DE 15) be GRANTED and the Commissioner’s decision be
REVERSED and REMANDED for a new hearing and determination consistent with this
opinion.
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OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Court
within fourteen (14) days of the date of service of this Report and Recommendation or further
appeal is waived. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); United
States v. Walters, 638 F.2d 947 (6th Cir. 1981). Poorly drafted objections, general objections, or
objections that require a judge’s interpretation should be afforded no effect and are insufficient to
preserve the right of appeal. See Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 509
(6th Cir. 1991). A party may file a response to another party’s objections within fourteen (14)
days after being served with a copy thereof. Fed. R. Civ. P. Rule 72(b).

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