Hudson-Kane v. Social Security Administration

Filing 24

MEMORANDUM OPINION OF THE COURT. Signed by Magistrate Judge Barbara D. Holmes on 3/28/17. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
LINDA HUDSON-KANE
v.
NANCY A. BERRYHILL 1
Acting Commissioner of Social Security

)
)
)
)
)
)

No. 3:13-0026

MEMORANDUM
Plaintiff filed 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”),
denying Plaintiff’s claim for a period of disability, Disability Insurance Benefits (“DIB”), and
Supplemental Security Income (“SSI”), as provided under Titles II and XVI of the Social
Security Act (“the Act”). The case is currently pending on Plaintiff’s motion for judgment on the
administrative record (Docket Entry No. 12), to which Defendant has responded (Docket Entry
No. 17). Plaintiff has also filed a subsequent reply to Defendant’s response (Docket Entry
No. 18). This action is before the undersigned for all further proceedings pursuant to the consent
of the parties and referral of the District Judge in accordance with 28 U.S.C. § 636(c) (Docket
Entry No. 23).
Upon review of the administrative record as a whole and consideration of the parties’
filings, Plaintiff’s motion is GRANTED. For the reasons stated herein, the Court REVERSES
the decision of the Commissioner and REMANDS this case for further administrative
proceedings.

1

Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23, 2017.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for
former Acting Commissioner Carolyn W. Colvin as the defendant in this suit.

I. INTRODUCTION
Plaintiff filed applications for a period of disability, DIB, and SSI on June 4, 2009. See
Transcript of the Administrative Record (Docket Entry No. 10) at 49-50. 2 She alleged a
disability onset date of June 17, 2005. AR 49-50. 3 Plaintiff asserted that she was unable to work
because of mental impairments. AR 57. 4
Plaintiff’s applications were denied initially and upon reconsideration. AR 49-52.
Pursuant to her request for a hearing before an administrative law judge (“ALJ”), Plaintiff
appeared with counsel and testified at a hearing before ALJ Scott Shimer on July 27, 2011.
AR 32. On September 16, 2011, the ALJ denied the claim. AR 9-11. On November 9, 2012, the
Appeals Council denied Plaintiff’s request for review of the ALJ’s decision (AR 1-6), thereby
making the ALJ’s decision the final decision of the Commissioner. This civil action was
thereafter timely filed, and the Court has jurisdiction. 42 U.S.C. § 405(g).

II. THE ALJ FINDINGS
The ALJ issued an unfavorable decision on September 16, 2011. AR 9-11. Based upon
the record, the ALJ made the following enumerated findings:
1. The claimant meets the insured status requirements of the Social Security Act
through March 31, 2013.
2. The claimant has not engaged in substantial gainful activity since March 9,
2009, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
2

The Transcript of the Administrative Record is hereinafter referenced by the abbreviation “AR”
followed by the corresponding page number(s) as numbered in large black print on the bottom right
corner of each page. All other filings are hereinafter referenced by the abbreviation “DE” followed by the
corresponding docket entry number and page number(s) where appropriate.
3

This was later amended to March 9, 2009. AR 12.

4

The Commissioner also found evidence of back pain and hypertension. AR 57.

2

3. The claimant has the following severe impairments: Hypertension[;]
Gastroesophageal Reflux Disease; Anxiety Disorder; Depressive Disorder;
Substance Abuse (20 CFR 404.1520(c) and 416.920(c)).
***
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 lift and/or carry 50 pounds
occasionally and 25 pounds frequently, and perform other functions and tasks
consistent with medium work as defined in 20 CFR 404.1567(c) and
416.967(c), except as follows: She is limited to jobs that do not involve the
climbing of ropes, ladders or scaffolds, with no exposure to unprotected
heights or around hazardous moving machinery. From a mental perspective,
the claimant is further limited to work involving simple, repetitive, routine
tasks, with only occasional contact with the general public, and only gradual
and infrequent workplace changes.
***
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565
and 416.965).
7. The claimant was born on August 23, 1950 and was 58 years old, which is
defined as an individual of advanced age, on the amended alleged disability
onset date. The claimant subsequently changed age category to closely
approaching retirement age (20 CFR 404.1562 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
3

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 March 9, 2009 (the amended alleged onset date), through the date of
this decision (20 CFR 404.1520(g) and 416.920(g)).
AR 14-25.

III. REVIEW OF THE RECORD
The parties and the ALJ have thoroughly summarized and discussed the medical and
testimonial evidence of the administrative record. Accordingly, the Court will discuss those
matters only to the extent necessary to analyze the parties’ arguments.

IV. DISCUSSION AND CONCLUSIONS OF LAW
A. Standard of Review
The determination of disability under the Act is an administrative decision. The only
questions before this Court upon judicial review are: (i) whether the decision of the
Commissioner is supported by substantial evidence, and (ii) whether the Commissioner made
legal errors in the process of reaching the decision. 42 U.S.C. § 405(g). See Richardson v.
Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971) (adopting and defining
substantial evidence standard in context of Social Security cases); Kyle v. Comm’r of Soc. Sec.,
609 F.3d 847, 854 (6th Cir. 2010). The Commissioner’s decision must be affirmed if it is
supported by substantial evidence, “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)); Jones v. Comm’r of
4

Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003); Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90
(6th Cir. 1999).
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,
402 U.S. at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 83 L.
Ed. 126 (1938)); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007); LeMaster v.
Weinberger, 533 F.2d 337, 339 (6th Cir. 1976) (quoting Sixth Circuit opinions adopting
language substantially similar to that in Richardson).
The Court’s review of the Commissioner’s decision is limited to the record made in the
administrative hearing process. Jones v. Secretary, 945 F.2d 1365, 1369 (6th Cir. 1991). A
reviewing court may not try the case de novo, resolve conflicts in evidence, or decide questions
of credibility. See, e.g., Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984) (citing 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. 42 U.S.C. § 405(g). See, e.g., Houston v. Sec’y of Health &
Human Servs., 736 F.2d 365, 366 (6th Cir. 1984).
B. Determining Disability at the Administrative Level
The claimant has the ultimate burden of establishing an entitlement to benefits by proving
her “inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than 12 months.” 42
U.S.C. § 432(d)(1)(A). The asserted impairment(s) must be demonstrated by medically
acceptable clinical and laboratory diagnostic techniques. See 42 U.S.C. §§ 432(d)(3) and
5

1382c(a)(3)(D); 20 C.F.R. §§ 404.1512(a), (c), and 404.1513(d). “Substantial gainful activity”
not only includes previous work performed by the claimant, but also, considering the claimant’s
age, education, and work experience, any other relevant work that exists in the national economy
in significant numbers regardless of whether such work exists in the immediate area in which the
claimant lives, or whether a specific job vacancy exists, or whether the claimant would be hired
if she applied. 42 U.S.C. § 423(d)(2)(A).
In the proceedings before the Social Security Administration, the Commissioner must
employ a five-step, sequential evaluation process in considering the issue of the claimant’s
alleged disability. See Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001); Abbot
v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). First, the claimant must show that she is not
engaged in “substantial gainful activity” at the time disability benefits are sought. Cruse v.
Comm’r of Soc. Sec., 502 F.3d 532, 539 (6th Cir. 2007); 20 C.F.R. §§ 404.1520(b), 416.920(b).
Second, the claimant must show that she suffers from a severe impairment that meets the 12month durational requirement. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). See also
Edwards v. Comm’r of Soc. Sec., 113 F. App’x 83, 85 (6th Cir. 2004). Third, if the claimant has
satisfied the first two steps, the claimant is presumed disabled without further inquiry, regardless
of age, education or work experience, if the impairment at issue either appears on the regulatory
list of impairments that are sufficiently severe as to prevent any gainful employment or equals a
listed impairment. Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006); 20 C.F.R.
§§ 404.1520(d), 416.920(d). A claimant is not required to show the existence of a listed
impairment in order to be found disabled, but such showing results in an automatic finding of
disability that ends the inquiry. See Combs, supra; Blankenship v. Bowen, 874 F.2d 1116, 1122
(6th Cir. 1989).
6

If the claimant’s impairment does not render her presumptively disabled, the fourth step
evaluates the claimant’s residual functional capacity in relationship to her past relevant work.
Combs, supra. “Residual functional capacity” (“RFC”) is defined as “the most [the claimant] can
still do despite [her] limitations.” 20 C.F.R. §§ 404.1545(a)(1). In determining a claimant’s RFC,
for purposes of the analysis required at steps four and five, the ALJ is required to consider the
combined effect of all the claimant’s impairments, mental and physical, exertional and
nonexertional, severe and nonsevere. See 42 U.S.C. §§ 423(d)(2)(B), (5)(B); Foster v. Bowen,
853 F.2d 483, 490 (6th Cir. 1988). At the fourth step, the claimant has the burden of proving an
inability to perform past relevant work or proving that a particular past job should not be
considered relevant. Cruse, 502 F.3d at 539; Jones, 336 F.3d at 474. If the claimant cannot
satisfy the burden at the fourth step, disability benefits must be denied because the claimant is
not disabled. Combs, supra.
If a claimant is not presumed disabled but shows that past relevant work cannot be
performed, the burden of production shifts at step five to the Commissioner to show that the
claimant, in light of the claimant’s RFC, age, education, and work experience, can perform other
substantial gainful employment and that such employment exists in significant numbers in the
national economy. Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005)
(quoting Walters v. Comm’r of Soc. Sec., 402 F.3d 525, 529 (6th Cir. 1997)). See also Felisky v.
Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994). To rebut a prima facie case, the Commissioner must
come forward with proof of the existence of other jobs a claimant can perform. Longworth, 402
F.3d at 595. See also Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 528 (6th Cir. 1981),
cert. denied, 461 U.S. 957, 103 S. Ct. 2428, 77 L. Ed. 2d 1315 (1983) (upholding the validity of
the medical-vocational guidelines grid as a means for the Commissioner of carrying his burden
7

under appropriate circumstances). Even if the claimant’s impairments prevent the claimant from
doing past relevant work, if other work exists in significant numbers in the national economy that
the claimant can perform, the claimant is not disabled. Rabbers v. Comm’r of Soc. Sec., 582 F.3d
647, 652 (6th Cir. 2009). See also Tyra v. Sec’y of Health & Human Servs., 896 F.2d 1024,
1028-29 (6th Cir. 1990); Farris v. Sec’y of Health & Human Servs., 773 F.2d 85, 88-89 (6th Cir.
1985); Mowery v. Heckler, 771 F.2d 966, 969-70 (6th Cir. 1985).
If the question of disability can be resolved at any point in the sequential evaluation
process, the claim is not reviewed further. 20 C.F.R. § 404.1520(a)(4). See also Higgs v. Bowen,
880 F.2d 860, 863 (6th Cir. 1988) (holding that resolution of a claim at step two of the evaluative
process is appropriate in some circumstances).
C. The ALJ’s Five-Step Evaluation of Plaintiff
In the instant case, the ALJ resolved Plaintiff’s claim at step five of the five-step process.
The ALJ found that Plaintiff met the first two steps, but determined at step three that Plaintiff
was not presumptively disabled because she 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. 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 work with express limitations to account for her severe impairments, and that
considering her age, education, work experience, and RFC, there are jobs that exist in significant
numbers in the national economy that Plaintiff can perform. AR 14-25.
D. Plaintiff’s Assertions of Error
Plaintiff argues that the ALJ erred by (1) finding that she has the RFC to perform medium
work; (2) improperly discounting the mental medical source statement (“MSS”) completed by
8

Dr. Phaythoune Chothmounethinh; (3) failing to find all of Plaintiff’s alleged impairments to be
severe; (4) improperly evaluating Plaintiff’s credibility; and (5) failing to include in the RFC an
accommodation allowing Plaintiff to elevate her legs. DE 12-1 at 1-2. Plaintiff therefore requests
that this case be reversed and benefits awarded, or, alternatively, remanded pursuant to sentence
four of 42 U.S.C. § 405(g) for further consideration. Id. at 12-13.
Sentence four of 42 U.S.C. § 405(g) states the following:
The court shall have power to enter, upon the pleadings and transcript of the
record, a judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the cause for a
rehearing.
42 U.S.C. § 405(g), 1383(c)(3). “In cases where there is an adequate record, the
[Commissioner’s] decision denying benefits can be reversed and benefits awarded if the decision
is clearly erroneous, proof of disability is overwhelming, or proof of disability is strong and
evidence to the contrary is lacking.” Mowery v. Heckler, 771 F.2d 966, 973 (6th Cir. 1985).
Furthermore, a court can reverse the decision and immediately award benefits if all essential
factual issues have been resolved and the record adequately establishes a claimant’s entitlement
to benefits. Faucher v. Secretary, 17 F.3d 171, 176 (6th Cir. 1994). See also Newkirk v. Shalala,
25 F.3d 316, 318 (1994). The Court will address each of Plaintiff’s assertions of error below.
1. The RFC. 5
Plaintiff contends that the ALJ committed reversible error by finding that she can
perform work at the medium level. Plaintiff’s claims that, because “[t]here is simply no
[m]edium RFC from any physician in the file,” the ALJ should have retained the services of a
5

Plaintiff’s fifth assertion of error alleges that the RFC improperly failed to include a requirement
that she be allowed to elevate her legs due to swelling. DE 12-1 at 12. Because this relates to the ALJ’s
RFC determination, and due to the extreme brevity of Plaintiff’s argument, the Court will address this
argument as part of the discussion of this assertion of error.

9

physician to perform a physical examination of Plaintiff prior to assigning the RFC. DE 12-1 at
7. Plaintiff also states that “[i]t seems quite optimistic to find” that, given her age, height, and
weight, she would be able to perform the physical requirements of a medium level of work. Id.
Plaintiff’s arguments are completely unpersuasive. For one, Plaintiff fails to cite any
medical evidence to support her contention that the assigned RFC is “quite optimistic.” Plaintiff
relies solely on conjecture, which falls well short of her burden to prove the existence of a
disabling condition. See Key v. Callahan, 109 F.3d 270, 274 (6th Cir. 1997) (“Claimant has the
ultimate burden of proving the existence of a disability.”) (citing Richardson v. Heckler, 750
F.2d 506, 509 (6th Cir. 1984)). Plaintiff’s contention that her age, weight, and height preclude a
finding that she is capable of medium work is not only unfounded, but also, as noted by
Defendant, contrary to Social Security Ruling (“SSR”) 96-8p, which holds the following: “Age
and body habitus are not factors in assessing RFC. It is incorrect to find that an individual has
limitations beyond those caused by his or her medically determinable impairment(s) … due to
such factors as age and natural body build.” 1996 WL 374184, at *1 (July 2, 1996).
Plaintiff next references the ALJ’s determination that hypertension and gastroesophageal
reflux represent severe impairments (DE 12-1 at 7), but fails to explain how such impairments
demonstrate an inability to perform the physical tasks of medium work defined by 20 C.F.R.
§ 404.1567(c), as is required to prove disability. See Hill v. Comm’r of Soc. Sec., 560 F. App’x
547, 551 (6th Cir. 2014) (“[D]isability is determined by the functional limitations imposed by a
condition, not the mere diagnosis of it.”) (internal citation omitted). Indeed, Plaintiff cites no
evidence suggesting that the RFC inaccurately reflects her physical abilities, thus leaving the
Court without a basis from which to find that the RFC is not supported by substantial evidence.
See Keitz v. Astrue, No. 09-169, 2010 WL 2791570, at *3 (E.D. Ky. July 14, 2010) (“[T]he
10

ALJ’s RFC determination was supported by substantial evidence. No treating physician limited
[the claimant’s] physical activity and she did not show that her physical and mental impairments
caused more restrictive limitations than the ALJ found.”).
Plaintiff similarly fails to cite any regulation or case law that would have required the
ALJ to order a consultative examination to address her alleged physical impairments. The Court
reiterates that the burden is on Plaintiff, and not the ALJ, to demonstrate that Plaintiff suffers
from a disabling condition. Trandafir v. Comm’r of Soc. Sec., 58 F. App’x. 113, 115 (6th Cir.
2003) (citing 20 C.F.R. § 404.1512(a)); see also Landsaw v. Sec’y of Health & Human Servs.,
803 F.2d 211, 214 (6th Cir. 1986) (“The burden of providing a complete record, defined as
evidence complete and detailed enough to enable the [Commissioner] to make a disability
determination, rests with the claimant.”) (internal citation omitted). Moreover, the regulation
authorizing the Commissioner to retain a medical source to perform a consultative examination,
20 C.F.R. § 404.1512(e), is discretionary in nature: “We may ask you to attend one or more
consultative examinations at our expense” (emphasis added). See also Foster v. Halter, 279 F.3d
348, 355 (6th Cir. 2001) (“[T]he regulations do not require an ALJ to refer a claimant to a
consultative specialist, but simply grant him the authority to do so[.]”) (quoting Landsaw, 803
F.2d at 214).
After discussing the lack of evidence to support a finding that any of Plaintiff’s alleged
physical impairments were disabling (AR 20-23), and discussing the two State agency physician
assessments that found Plaintiff was suffering from no physical impairment (AR 23), the ALJ
appropriately exercised his discretion to forego the services of a consultative examiner. The
Court also notes that the ALJ ascribed an RFC that was more favorable to Plaintiff than any
evidence suggested, which was “done in order to credit [Plaintiff’s] statements regarding
11

weakness and fatigue ….” AR 23. The Court therefore finds no merit in Plaintiff’s assertion of
error.
Plaintiff additionally argues that the ALJ erred by failing to include a limitation in the
RFC relating to alleged swelling in her leg. As evidence, Plaintiff points to two office notes
documenting her treatment at Covenant Family Practice (“Covenant”), which include a reference
to pedal edema in July and December of 2009 (AR 255, 353), and a recommendation by a
physician assistant on July 10, 2009 that Plaintiff “elevate [her] legs[.]” AR 256. Plaintiff claims
that the ALJ’s failure to “take this limitation into consideration” warrants reversal of the
Commissioner’s decision. DE 12-1 at 12. However, Plaintiff again falls short of offering
sufficient support to demonstrate the existence of a disabling condition, the burden of which
belongs to her.
As discussed above, Plaintiff must demonstrate functional limitations caused by a
condition, and the mere diagnosis of pedal edema “says nothing about the severity of the
condition.” Higgs, 880 F.2d at 863. Moreover, pedal edema is not even included in the listed
diagnoses from the December 2009 note, which include hypertension, anxiety, insomnia, and
osteoarthritis (AR 354), but is instead recorded as a “current problem” alleged by Plaintiff.
AR 353. There is no actual discussion of pedal edema or swelling of the leg by the treating
physician in the office note. The only other record referenced by Plaintiff, the July 2009 note,
includes a recommendation that Plaintiff “resume [hypertension medication], elevate legs, limit
sodium intake,” and follow up if her symptoms do not improve. AR 256. However, there was no
discussion of pedal edema during any subsequent treatment at Covenant, nor any mention that
Plaintiff would need to continue elevating her feet. AR 242-52. There is thus no indication that

12

pedal edema represents a disabling condition that meets the one-year durational requirement of
20 C.F.R. § 404.1505(a).
Additionally, this single recommendation by a physician assistant to “elevate legs” in
July of 2009 does not constitute an opinion from a treating physician or other acceptable medical
source regarding the severity of Plaintiff’s condition. See LaRiccia v. Comm’r of Soc. Sec., 549
F. App’x 377, 386 (6th Cir. 2013) (“[A] physician assistant[] is not an acceptable medical
source.”) (citing 20 C.F.R. § 404.1513(a)). There is no opinion from a treating physician
indicating a need to limit Plaintiff physically, and therefore no evidence that undermines the
ALJ’s RFC with respect to Plaintiff’s physical capacities. Accordingly, the Court rejects this
assertion of error.
2. The opinion of Dr. Phaythoune Chothmounethinh.
Plaintiff next argues that the ALJ erred by discounting the opinion of Dr. Phaythoune
Chothmounethinh regarding her mental impairments, as contained in a mental medical source
statement (“MSS”) he completed on July 11, 2011. AR 293-95. In the MSS,
Dr. Chothmounethinh opined that Plaintiff has “marked” limitations in numerous areas of mental
functioning, including her ability to make judgments on simple work-related decisions,
understand and remember complex instructions, respond appropriately to usual work situations,
and interact appropriately with the public, coworkers, and a supervisor. AR 293-94. Plaintiff
claims that the ALJ failed to provide “good reasons” for rejecting the opinion of
Dr. Chothmounethinh, a treating physician. DE 12-1 at 8-9.
Plaintiff notes that pursuant to SSR 96-2p, a treating source’s medical opinion is given
controlling weight if it is “well-supported” and “not inconsistent” with other substantial evidence

13

in the record. 1996 WL 374188, at *2 (July 2, 1996). 6 Notably, Plaintiff does not actually argue
that the ALJ erred by failing to accord controlling weight to Dr. Chothmounethinh’s opinion,
which is the subject of SSR 96-2p. Plaintiff instead claims solely that the ALJ failed to provide
good reasons for rejecting the opinion, which is a requirement contained in 20 C.F.R.
§ 404.1527(c)(2): “We will always give good reasons … for the weight we give your treating
source’s opinion.” Defendant correctly observes that Plaintiff fails to specifically address the
insufficiencies of any of the reasons cited by the ALJ in support of his decision to reject
Dr. Chothmounethinh’s opinion. Indeed, Plaintiff’s brief references no evidence in the record to
support the assertion that the ALJ violated the treating physician rule, but instead merely quotes
language from a prior Sixth Circuit opinion. DE 12-1 at 8-9.
While Plaintiff’s failure to provide any evidentiary support for her argument is
“puzzling[],” as described by Defendant, the Court is equally mystified by Plaintiff’s failure to
supplement her argument in her reply brief even after Defendant specifically highlighted this
issue in its response. DE 17 at 11. Plaintiff’s reply brief instead recites another Sixth Circuit
case, but without addressing how that authority applies to the facts of this case, and references
two judicial opinions, for which inadequate citations were provided and as a result, the Court
cannot review the quoted opinions. DE 18 at 3-4.
Notwithstanding the paucity of Plaintiff’s argument, the Court finds that the ALJ did, in
fact, fail to provide “good reasons” for rejecting the opinion contained in Dr. Chothmounethinh’s
MSS. The ALJ provided the following justification for his decision:
6

This rule, known as the “treating physician rule,” is derived from 20 C.F.R. § 404.1527(c)(2):
“If we find that a treating source’s opinion on the issue(s) of the nature and severity of your impairment(s)
is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in your case record, we will give it controlling weight.”

14

[T]he conclusions of Dr. [Chothmounethinh] are not supported by his own
objective findings, as they were largely unremarkable, especially during the later
interval of remission, and more particularly from a psychiatric standpoint.
Moreover, Dr. [Chothmounethinh] implicitly acknowledged noncompliance with
treatment, albeit for financial reasons, with the earlier records signifying that her
original medications were helping with her condition. Finally, the statement does
not fully take into account the claimant’s prior substance use and its remission
later into the relevant period. For these reasons, there is not an adequate basis to
provide controlling or even significant weight to Dr. [Chothmounethinh’s]
conclusions.
AR 23. With respect to Dr. Chothmounethinh’s objective findings, the office notes certainly
demonstrate more than “unremarkable” findings. Although Plaintiff fails to cite any such notes in
either of her briefs, the record indicates that Plaintiff treated with Dr. Chothmounethinh between
October of 2010 and June of 2011. AR 299-315. It is true that Plaintiff denied any depressive
symptoms during office visits in December of 2010 and January of 2011. AR 310-15.
Nevertheless, during each one of these visits, Dr. Chothmounethinh opined that Plaintiff was
exhibiting symptoms of “anhedonia and sadness,” and noted that such symptoms were present in
Plaintiff’s daily life “about half the time.” AR 310, 313, 320, 323, 328.
Additionally, the record shows that Plaintiff presented with a “moderate degree of
depression” during subsequent office visits in February, March, May, and June of 2011. AR 299,
302, 305, 308. In October of 2010, she was positive for “anxiety, depression and feelings of
stress.” AR 317. During a visit in February of 2011, Dr. Chothmounethinh noted that Plaintiff’s
symptoms of anhedonia and sadness were “frequent, and present most days.” AR 299. In May of
2011, Dr. Chothmounethinh noted that while a prescription of Lexapro had shown improvement
in Plaintiff’s depressive symptoms during the first two months it was taken, her symptoms were
currently “worsening again.” AR 305. In each of Plaintiff’s final three office visits at Covenant,
Dr.Chothmounethinh also noted that Plaintiff demonstrated a “decreased ability to concentrate,”
15

a diagnosis that he cited in support of his MSS, as well as fatigue and sadness. AR 294, 302, 305,
308. While the Court stops short of determining whether these findings support the severity of
the limitations ascribed in the MSS, the Court finds that the ALJ’s characterization of such
findings as “unremarkable” is erroneous.
The ALJ’s second stated reason for rejecting Dr. Chothmounethinh’s opinion, Plaintiff’s
noncompliance with treatment due to her inability to afford prescribed medication, is
undermined by SSR 82-59. This ruling states, in part, that when the Commissioner makes a
determination that there has been a “failure” to follow prescribed treatment, as is the case here, a
determination “must also be made as to whether or not failure to follow prescribed treatment is
justifiable.” 1982 WL 31384, at *1 (1982). The ruling further states that one such justifiable
cause is that the claimant “is unable to afford prescribed treatment which he or she is willing to
accept[.]” Id. at * 4. Dr. Chothmounethinh specifically referenced Plaintiff’s inability to afford
the medication prescribed for her depressive symptoms in his office notes (AR 302), which
Plaintiff confirmed during her hearing. AR 39. In a letter dated July 8, 2011,
Dr. Chothmounethinh reiterated that Plaintiff “has been unable to afford any adjunct medications
for her condition.” AR 296. Despite this evidence, and despite conceding that Plaintiff’s
noncompliance with her treatment was “for financial reasons” (AR 23), the ALJ nevertheless
used Plaintiff’s poverty as basis for rejecting Dr. Chothmounethinh’s opinion, which the Court
finds unreasonable. Cf. Marks v. Colvin, No. 3:15-cv-339, 2016 WL 4411427, at *3 (S.D. Ohio
Aug. 19, 2016) (holding that ALJ’s failure to consider whether Plaintiff’s noncompliance with
treatment was due to a “good reason” was not harmless error in light of evidence indicating that
the claimant “ran out of medication and could not afford to buy more”); see also Taylor v.
Bowen, 782 F.2d 1294, 1298 (5th Cir. 1986) (“To a poor person, a medicine that [s]he cannot
16

afford to buy does not exist.”); Taylor v. Bowen, 782 F.2d 1294, 1298 (5th Cir. 1986) (“If … the
claimant cannot afford the prescribed treatment and can find no way to obtain it, the condition
that is disabling in fact continues to be disabling in law.”); Lovejoy v. Heckler, 790 F.2d 1114,
1117 (4th Cir. 1986) (failure to follow prescribed treatment does not preclude a finding of
disability “when that failure is justified by lack of funds”).
The ALJ additionally faults Dr. Chothmounethinh’s MSS for failing to “take into account
[Plaintiff’s] prior substance use and its remission later into the relevant period.” AR 23. The ALJ
references Plaintiff’s testimony that she has experienced two relapses since undergoing drug
rehabilitation in 2009, with her most recent relapse occurring approximately one year prior to her
hearing in July of 2011. AR 15, 21-22, 38-39. The Court notes that much of the ALJ’s opinion is
dedicated to Plaintiff’s struggles with substance abuse. AR 15, 17, 20-23.
The problem with rejecting Dr. Chothmounethinh’s MSS based on Plaintiff’s “prior
substance abuse” (AR 23) is that the ALJ assumes, without supporting evidence, that such “prior
substance abuse” negates Dr. Chothmounethinh’s findings. It was certainly within the ALJ’s
purview to consider Plaintiff’s substance abuse, especially in light of the report documenting her
consultative examination with Dr. Thelma Foley, in which Dr. Foley stated that Plaintiff “has the
educational competence to handle her funds although she would probably spend some of it on
drugs.” AR 267. However, Dr. Foley’s examination took place nearly two years before
Dr. Chothmounethinh completed the MSS. AR 32, 265. The ALJ later appeared to accept
Plaintiff’s hearing testimony that she had not had a relapse in approximately one year. AR 15,
38-39.

Nevertheless,

the

ALJ

dismissed

Dr.

Chothmounethinh’s

findings

despite

Dr. Chothmounethinh’s awareness of Plaintiff’s “prior substance abuse” at the time he
completed the MSS, as evidenced by the consistent documentation of Plaintiff’s involvement in
17

drug rehabilitation throughout his office notes. AR 299-300, 303, 306, 311, 314. Additionally,
there is no indication that the ALJ considered Plaintiff’s mental limitations following her most
recent relapse. See Bartley v. Barnhart, 117 F. App’x 993, 998 (6th Cir. 2004) (“The ALJ
remains free ... to consider the limitations of a mental condition when such limitations exist after
a claimant stops abusing substances, regardless of the causal relationship between the mental
illness and substance abuse.”)
The ALJ’s error is compounded by his failure to explain the weight accorded to
Dr. Foley’s opinion regarding Plaintiff’s mental condition. The ALJ cites the report documenting
Dr. Foley’s consultative examination numerous times in the opinion (AR 15, 17, 19, 22),
focusing primarily on Dr. Foley’s statement that Plaintiff “would probably spend some of [an
award] on drugs.” AR 267. The ALJ credited Dr. Foley’s determination that Plaintiff has only
mild impairment in her ability to concentrate, yet proceeded to discount Dr. Foley’s opinion with
respect to persistence based on Plaintiff’s alleged substance abuse: “[Dr. Foley] went on to say
the claimant had questioned but adequate persistence, but this must be viewed in the broader
context of the claimant’s substance use and the view that she will at some point resume its use.”
AR 17. There is no explanation, however, as to why substance abuse undermines Dr. Foley’s
finding with respect to persistence, especially since Dr. Foley was well aware of this issue at the
time she issued her opinion. Nor did the ALJ question the vocational expert during the hearing as
to the impact of substance abuse on Plaintiff’s ability to gain employment. Cf. Smith v. Comm’r
of Soc. Sec., 572 F. App’x 363, 368 (6th Cir. 2014) (“In compliance with the Social Security
Regulations, the ALJ was entitled to rely on [a reviewing psychologist’s] testimony, as well as
on the testimony of the vocational expert, in determining that [the claimant] was impaired but not
disabled when he complied with his prescribed treatment and did not use drugs or alcohol.”).
18

The ALJ clearly determined that Plaintiff has a substance abuse problem based on his
finding that “Substance Abuse” represents a severe impairment (AR 14), as well as his decision
to either discount or reject the opinions of the only two examiners in the record based on
substance abuse. AR 15, 23. By doing so, the ALJ found that substance abuse was a contributing
factor to the determination of whether Plaintiff suffers from a disability. However, such a finding
is improper without first evaluating a claimant’s drug addiction pursuant to the relevant
regulation, 20 C.F.R. § 404.1535. 7 See Williams v. Barnhart, 338 F. Supp. 2d 849, 862 (M.D.
Tenn. 2004) (“To find that drug addiction is a contributing factor material to the determination of
disability without first finding the claimant disabled … is to put the cart before the horse.”). This
regulation states in relevant part:
If we find that you are disabled and have medical evidence of your drug addiction
or alcoholism, we must determine whether your drug addiction or alcoholism is a
contributing factor material to the determination of disability.
20 C.F.R. § 404.1535(a) (emphasis added). The plain language of this regulation therefore makes
a finding of disability a “condition precedent” to the evaluation of a claimant’s drug or alcohol
addiction. Brueggemann v. Barnhart, 348 F.3d 689, 693 (8th Cir. 2003)) (internal citation
omitted). Indeed, the ALJ “must reach this determination initially … using the standard five-step
approach described in 20 C.F.R. § 404.1520 without segregating out any effects that might be
due to substance use disorders.” Id. at 694; see also Williams, 338 F. Supp. 2d at 862 (holding
that the five-step sequential evaluation process contained in 20 C.F.R. § 404.1520 must be

7

This regulation implements the standard articulated in 42 U.S.C. § 423(d)(2)(C), which states
that, “[a]n individual shall not be considered to be disabled for purposes of this subchapter if alcoholism
or drug addiction would (but for this subparagraph) be a contributing factor material to the
Commissioner’s determination that the individual is disabled.”

19

undertaken “before any consideration is given to whether drug addiction is the cause of such
disability.”).
In the instant case, there is no indication that the ALJ took such measures. In fact, the
ALJ failed to even cite 20 C.F.R. § 404.1535, an omission that at least one court in this circuit
has deemed reversible error:
[The] ALJ’s failure to cite the operative substance abuse regulation anywhere in
his decision was not a mere drafting oversight, but accurately reflected his failure
to follow the procedures prescribed there. The Commissioner has duly
promulgated regulations in this area, which the ALJ may not silently disregard.
Lynch v. Comm’r of Soc. Sec., No. 1:12-cv-075, 2013 WL 264670, at *8 (S.D. Ohio Jan. 23,
2013), report and recommendation adopted, No. 1:12-cv-75, 2013 WL 588888 (S.D. Ohio Feb.
14, 2013) (internal citation omitted). The ALJ therefore “improperly conflated the sequential
analysis by discounting the effects of plaintiff’s substance abuse issues prior to making a
determination of disability.” Lynch, 2013 WL 264670, at *8.
The Commissioner has argued in previous cases that it is unnecessary for the ALJ to
determine whether a claimant’s substance abuse was a contributing factor to disability when the
ALJ ultimately determines that the claimant is not disabled. See Parker v. Comm’r of Soc. Sec.,
No. 12-cv-14316, 2014 WL 902692, at *10 (E.D. Mich. Mar. 7, 2014). While such an argument
“has some appeal,” id., it cannot be disputed that the ALJ in this case failed to analyze Plaintiff’s
impairments under the five-step sequential evaluation process “without segregating out any
effects that might be due to substance use disorders.” Brueggemann, 348 F.3d at 694. As in the
Parker case, the ALJ continually factored Plaintiff’s alleged substance abuse into consideration
throughout the five-step analysis. AR 15, 17, 20-23. This included a discussion as to the ALJ’s
determination that insomnia did not represent a severe impairment at step two of the evaluation:
20

Accepting the claimant’s testimony that she has not had a relapse with respect to
any substance in about a year, this overlaps closely to the recent period where the
claimant’s insomnia was no longer mentioned in the treatment notes ... This being
the case, even assuming the claimant’s insomnia is a medically determinable
impairment, the evidence does not support a finding that it is presently severe, nor
does it support a finding that it would be severe at any other time if there had been
increased compliance with treatment and advice, especially her past substance
use.
AR 15. Consideration of drug addiction was error at this point in the ALJ’s evaluation, as the
ALJ’s determination must first be based on substantial evidence of Plaintiff’s functional
limitations “without deductions for the assumed effects of substance use disorders.” Williams,
338 F. Supp. 2d at 863 (quoting Brueggmann, 348 F.3d at 693-95).
Finally, the Court notes that the ALJ incorrectly interpreted Dr. Chothmounethinh’s
stated support for his MSS findings. The ALJ erroneously claims that Dr. Chothmounethinh’s
MSS states that Plaintiff exhibited “[d]epression with anxiety with significant improvement in
memory, concentration and mood.” AR 22 (emphasis added). While Plaintiff does not raise this
issue in her brief, the statement referenced by the ALJ actually states that Plaintiff demonstrated
“[d]epression with anxiety with significant impairment in memory, concentration and mood.”
AR 294 (emphasis added). This is confirmed by an accompanying letter submitted by
Dr. Chothmounethinh, in which he states that Plaintiff “continues to have significant problems
with memory, concentration, and mood[.]” AR 296. This misreading is not insignificant, as the
ALJ proceeded to intimate that Dr. Chothmounethinh’s MSS was internally inconsistent by
mistakenly observing that Dr. Chothmounethinh had “curiously” written that Plaintiff had
showed “improvement” despite recommending severe functional limitations. AR 22. This error
is therefore not harmless, and, in conjunction with the ALJ’s failure to provide good reasons for
rejecting the MSS, warrants remand of this case for further consideration.
21

Defendant correctly observes that Plaintiff’s brief fails to allege any flaws in the ALJ’s
stated reasons for rejecting Dr. Chothmounethinh’s opinion, nor does it “challenge the
sufficiency of the evidence underlying those reasons.” DE 17 at 11. 8 The Court also reiterates
that Plaintiff’s reply brief, which was presumably filed to address the arguments presented in
Defendant’s response, makes no attempt to respond to these allegations. Nor does Plaintiff raise
in either of her filings any of the issues discussed above regarding the shortcomings of the ALJ’s
findings with respect to Dr. Chothmounethinh’s MSS. Nevertheless, the Court concludes that the
ALJ violated 20 C.F.R. § 404.1527(c)(2) by failing to provide good reasons for rejecting
Dr. Chothmounethinh’s opinion, which necessitates reversal of the Commissioner’s decision. See
Friend v. Comm’r of Soc. Sec., 374 F. App’x 543, 551 (6th Cir. 2010) (“We will reverse and
remand a denial of benefits, even though ‘substantial evidence otherwise supports the decision of
the Commissioner,’ when the ALJ fails to give good reasons for discounting the opinion of the
claimant's treating physician.”) (quoting Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 543-46
(6th Cir. 2004)). Additionally and alternatively, the Court finds that the ALJ erred by failing to
appropriately consider Plaintiff’s alleged substance abuse pursuant to 20 C.F.R. § 404.1535.
3. Whether the ALJ failed to consider all of Plaintiff’s impairments.
Plaintiff’s next assertion of error briefly contends that the ALJ erred by failing to find
that several other alleged conditions represent severe impairments. DE 12-1 at 9. Plaintiff claims
that the ALJ “fail[ed] to provide sufficient reasons” for determining that her backache, “urge
8

Noticeably absent from the ALJ’s opinion and Defendant’s brief is the fact that
Dr. Chothmounethinh is a family practitioner (AR 295) and not a mental health specialist, which has
bearing on the ALJ’s evaluation of the treating physician’s opinion. See Kester v. Astrue, No. 3:07-cv0423, 2009 WL 275438, at *7 (S.D. Ohio Feb. 3, 2009) (“That [a family practitioner] is not ‘certified’ in
the area of mental health treatment is a proper factor to use in the evaluation of his opinions, but it is not
the only factor.”).

22

incontinence,” malaise and fatigue, pedal edema, osteoarthritis, insomnia, and hypertension did
not constitute severe impairments. Id. The Court declines to address this argument, however, in
light of its decision to reverse the Commissioner’s decision and remand for an additional
hearing.
4. Plaintiff’s credibility.
Plaintiff asserts that the ALJ violated SSR 96-7p by failing to properly evaluate her
credibility. 9 Plaintiff claims that the ALJ’s “single, conclusory statement” that he utilized the
criteria outlined in SSR 96-7p was insufficient to satisfy the actual criteria contained therein.
DE 12-1 at 10-11. Plaintiff additionally argues that the ALJ unfairly discounted her credibility
based on her ability to perform specific activities of daily living “on a very minimal basis.” Id. at
11.
As an initial matter, the Court notes the incongruity of Plaintiff’s argument. Plaintiff first
faults the ALJ for making a “single, conclusory statement,” but then proceeds to critique the very
reasons provided by the ALJ for discounting Plaintiff’s credibility. Id. at 11. Those two
arguments cannot logically co-exist. Moreover, while the ALJ indeed discussed Plaintiff’s “mild
restriction” with respect to her activities of daily living (DE 17), 10 the thrust of his credibility
determination focused largely on the lack of evidence to support her claims of disabling pain, the
inconsistency between the few records provided by Plaintiff and her allegations, and the
9

SSR 96-7p has been superseded by SSR 16-3p, which became effective on March 28, 2016.
However, Plaintiff’s complaint was filed in January of 2013, therefore SSR 96-7p applies to the
undersigned’s analysis of this claim.
10

The Court also notes that Plaintiff does not actually identify any of the daily activities that the
ALJ allegedly cited to discredit her testimony. Plaintiff instead provides a broad statement that, “[b]y
focusing on these few activities of daily living, the ALJ ignored the medical evidence which shows that
the Plaintiff is disabled.” DE 12-1 at 11. Plaintiff also fails however to reference any such evidence that
demonstrates disability.

23

discrepancies in Plaintiff’s claims regarding the termination of her last job. AR. 19-20. With
respect to the latter, the ALJ noted that Plaintiff initially claimed that she stopped working
because she “could no longer do the job” (AR 141), yet later stated during a consultative
examination that she stopped working because her employer “wouldn’t give her a day off to
attend her cousin’s funeral.” AR 266. In two other versions, Plaintiff stated that she lost her job
because she was accused of attempting to bribe a supervisor (AR 203), and that she was
terminated when she started methadone treatment. AR 266. Regardless, the Court declines to
make a finding with respect to the ALJ’s credibility determination in light of its decision to
remand for an additional hearing.

V. CONCLUSION
For all of the above reasons, Plaintiff’s motion for judgment on the administrative record
(DE 12) is GRANTED. The Court hereby REVERSES the decision of the Commissioner and
REMANDS this case for further proceedings consistent with this ruling
An appropriate Order will accompany this memorandum.

__________________________
BARBARA D. HOLMES
United States Magistrate Judge

24