Hartel v. Social Security Administration
MEMORANDUM Signed by Magistrate Judge Barbara D. Holmes on 9/27/17. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)
IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
JERRY E. HARTEL
NANCY A. BERRYHILL 1
Acting Commissioner of Social Security
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 his claim for Disability Insurance Benefits (“DIB”), as provided under Title II 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. 16), to which Defendant has responded. Docket
Entry No. 21. Plaintiff has also filed a reply to the response. Docket Entry 24. 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 Nos. 26 and
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
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.
Plaintiff filed an application for DIB on May 7, 2010. See Transcript of the
Administrative Record (Docket Entry No. 12) at 95. 2 He alleged a disability onset date of June 7,
2009. AR 95. Plaintiff asserted that he was unable to work because of degenerative disc disease.
Plaintiff’s applications were denied initially and upon reconsideration. AR 95-96.
Pursuant to his request for a hearing before an administrative law judge (“ALJ”), Plaintiff
appeared with counsel and testified at a hearing before ALJ Frank L. Gregori on April 12, 2012.
AR 55. On May 11, 2012, the ALJ denied the claim. AR 40-42. On August 5, 2013, the Appeals
Council denied Plaintiff’s request for a review of the ALJ’s decision (AR 33-35), 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 May 11, 2012. AR 40-42. 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 December 31, 2014.
2. The claimant has not engaged in substantial gainful activity since June 7, 2009,
his alleged onset date (20 CFR 404.1571 et seq.).
Due to some irregular numbering in the administrative record, and in order to maintain
uniformity, the Transcript of the Administrative Record is hereinafter referenced by the abbreviation
“AR” followed by the corresponding page ID number(s) located at the bottom of each page in Docket
Entry No. 12, which are preceded in the electronic footer by “Page ID #.” All other filings are hereinafter
referenced by the abbreviation “DE” followed by the corresponding docket entry number and page ID
number(s), which are immediately preceded in the electronic footer by “Page ID #.”
3. The claimant has the following severe impairments: degenerative disc disease of
the lumbar spine, status-post left hemilaminectomy at L4-5, and status post
discectomy and laminectomy (20 CFR 404.1520(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, and 404.1526).
5. After careful consideration of the entire record, I find that the claimant has the
residual functional capacity to perform light work as defined in 20 CFR
404.1567(b). Specifically, the claimant can lift and carry up to 20 pounds
occasionally and 10 pounds frequently and stand, walk, and sit for six hours each
in an eight-hour workday, with normal breaks. He needs to have the option to
alternate between sitting and standing every 60 minutes. He can never climb
ladders, ropes, or scaffolds, but can occasionally climb ramps and stairs. He can
occasionally balance, stoop, kneel, crouch, and crawl, but must avoid
concentrated exposure to vibration.
6. The claimant is capable of performing past relevant work as a store manager and
restaurant manager. This work does not require the performance of work related
activities precluded by the claimant’s residual functional capacity. (20 CFR
7. The claimant has not been under a disability, as defined in the Social Security
Act, from June 7, 2009, through the date of this decision (20 CFR 404.1520(f)).
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.
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
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
his “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
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 he 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 he 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 he suffers from a severe impairment that meets the
12-month 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).
If the claimant’s impairment does not render him presumptively disabled, the fourth step
evaluates the claimant’s residual functional capacity in relationship to his past relevant work.
Combs, supra. “Residual functional capacity” (“RFC”) is defined as “the most [the claimant] can
still do despite [his] 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
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 four 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 he 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 able to
perform past relevant work as a store manager and a restaurant manager and thus concluded that
Plaintiff has not been under a disability since the alleged onset date of June 7, 2009. AR 45-51.
D. Plaintiff’s Assertions of Error
Plaintiff argues that the ALJ erred by (1) improperly evaluating Plaintiff’s credibility and
evidence regarding the severity of his impairments; (2) improperly evaluating Plaintiff’s
impairments under the criteria contained in Listing 1.04; (3) improperly evaluating the opinion of
a consultative examining physician; and (4) improperly weighing the opinion of Dr. Michael
Bosserman. DE 16-1 at 325-26. 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 360.
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
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 addresses each of Plaintiff’s assertions of error below.
1. The ALJ’s alleged mischaracterization of the evidence of record.
Plaintiff asserts that the ALJ “misrepresented and/or mischaracterized” evidence in the
record to undermine the severity of his alleged impairment and discount his credibility. Plaintiff
points to three statements in the ALJ’s opinion involving (1) evidence of stenosis in a lumbar
MRI, (2) Plaintiff’s lack of treatment since the alleged onset of his disability, and (3)
Dr. Pearline Butcher’s assessment of Plaintiff’s condition. DE 16-1 at 332-33.
Regarding the former, the ALJ made the following statement as part of his finding that
Plaintiff did not meet the requirements of Listing 1.04: “[T]here is no evidence that is
characterized by nerve root compression, spinal arachnoiditis, or lumbar spinal stenosis.” AR 46.
Despite this claim, Plaintiff notes that an MRI from November of 2008 revealed “mild to
moderate” central spinal canal and bilateral lateral recess stenosis at the L3-4 level. AR 292. As
for Plaintiff’s alleged lack of treatment, Plaintiff points to encounters at Nashville General
Hospital (“NGH”) on September 18, 2010, December 1, 2010, and March 2, 2011, all of which
took place after the alleged onset date of June 7, 2009. AR 293-307. With respect to the medical
source statement (“MSS”) completed by Dr. Butcher following an examination in February of
2012, the ALJ stated the following: “Dr. Butcher saw the claimant on only one occasion, and at
this time, no testing, laboratory reports, or review of treating records were discussed. The
claimant’s medical history was provided entirely by the claimant.” AR 49. Yet the results of
Plaintiff’s MRI were clearly discussed during Dr. Butcher’s examination. AR 314.
This unequivocally demonstrates that the ALJ made errors in describing the evidence of
record. However, the relevant issue is whether the ALJ applied the proper legal standards to his
analysis and provided substantial evidence to support his conclusions despite such errors. See
Key, 109 F.3d at 273 (“Our review is limited to determining whether the findings of the
Commissioner are supported by substantial evidence ... and whether the correct legal standards
were applied ... The decision of an ALJ is not subject to reversal, even if there is substantial
evidence in the record that would have supported an opposite conclusion, so long as substantial
evidence supports the conclusion reached by the ALJ.”) (internal citations omitted). Here,
Plaintiff argues that the ALJ’s inaccurate factual recitations influenced his ultimate finding that
Plaintiff’s condition did not meet the requirements of Listing 1.04, which is discussed below.
The only other issue raised by Plaintiff is the impact of the ALJ’s factual inaccuracies on his
credibility determination, which the Court addresses as follows.
The Court first notes that it is the role of the ALJ, and not a reviewing court, to evaluate
the credibility of a claimant. Rogers, 486 F.3d at 247 (internal citations omitted). The Sixth
Circuit has held that a reviewing court “should be particularly reluctant to substitute its judgment
of the credibility of the claimant for that of the ALJ, since the ALJ has seen the claimant in the
flesh and has had the opportunity to observe his demeanor.” Bailey v. Sec’y of Health & Human
Servs., 922 F.2d 841 (6th Cir. 1991) (citing Gooch v. Sec’y of Health and Human Servs., 833
F.2d 589, 592 (6th Cir. 1987) (per curiam), cert. denied, 484 U.S. 1075 (1988)) (internal
quotations omitted). However, “blanket assertions that the claimant is not believable will not
pass muster, nor will explanations as to credibility which are not consistent with the entire record
and the weight of the relevant evidence.” Rogers, 486 F.3d at 248.
Here, the ALJ acknowledged that Plaintiff was treated after June 7, 2009 based on his
discussion of Plaintiff’s treatment both at NGH and with Dr. Butcher, as well as his additional
statement that Plaintiff “has sought minimal medical treatment for his pain since his alleged
onset date.” AR 48 (emphasis added). The ALJ further stated that Plaintiff had not received
regular treatment from a physician “[s]ince this follow-up visit with the hospital in March
2011[.]” AR 48. Clearly, the ALJ was aware of Plaintiff’s treatment after the alleged onset date
despite the misleading statement that Plaintiff had not “sought any care or treatment from a
physician” since June 7, 2009. Therefore, the Court cannot find that the ALJ discounted
Plaintiff’s credibility based on a mistaken belief.
Further, notwithstanding the ALJ’s misleading statement that Plaintiff “has not sought
any care or treatment from a physician” since the alleged onset date (AR 48), the ALJ provided
ample justification for discounting Plaintiff’s credibility. The ALJ noted that despite the findings
from the 2008 MRI, which Plaintiff suggests support a finding of disability, Plaintiff’s treating
physician released him to regular duty work in February of 2009 and even noted that Plaintiff
would be able to “work beyond” a typical eight-hour shift. AR 47, 273. The ALJ also highlighted
the inconsistency of Plaintiff’s allegations of pain with his own reported daily activities and
noted that Plaintiff applied for and received unemployment benefits two years after the alleged
onset date (AR 48), a fact that weighs heavily against his claims of disabling pain beginning in
June of 2008. See Workman v. Comm’r of Soc. Sec., 105 F. App’x 794, 801-02 (6th Cir. 2004)
(“Applications for unemployment and disability benefits are inherently inconsistent ... There is
no reasonable explanation for how a person can claim disability benefits under the guise of being
unable to work, and yet file an application for unemployment benefits claiming that [he] is ready
and willing to work) (internal citation and quotations omitted); Siler v. Astrue, No. 11-391, 2012
WL 2603656, at *13 (E.D. Ky. July 5, 2012) (“When a claimant files for unemployment, he is
stating that he is ready, willing and able to work ... Yet, when a claimant files for disability
benefits, he is stating that he is unable to work ... Thus, it was reasonable for the ALJ to consider
Plaintiff’s inconsistent representations to the government in assessing his credibility.”) (internal
An ALJ’s credibility determination is “essentially unchallengeable.” Hernandez v.
Comm’r of Soc. Sec., 644 F. App’x 468, 476 (6th Cir. 2016) (citing Payne v. Commissioner of
Social Security, 402 F. App’x. 109, 113 (6th Cir. 2010)). Plaintiff’s reference to a single
ambiguous statement in the face of substantial evidence supporting the ALJ’s decision to
discount his credibility is not sufficient to overturn the determination. This assertion of error is
2. Listing 1.04.
As noted supra, Plaintiff argues that the ALJ mistakenly claimed that there was no
evidence in the administrative record of spinal stenosis. Plaintiff additionally claims that the
overall evidence of record demonstrates that his condition meets the requirements of Listing
1.04, subsection A. 3
As part of the Social Security Administration’s regulations, the Commissioner has crafted
a list of impairments containing various criteria that, if satisfied by the claimant, direct the
Commissioner to find the claimant “disabled without considering [his] 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)). Listing 1.04A involves disorders of the spine and requires
that the following criteria be demonstrated by the claimant:
Plaintiff does not argue that his condition satisfies the criteria contained in subsection B or C of
Evidence of nerve root compression characterized by neuro-anatomic distribution
of pain, limitation of motion of the spine, motor loss (atrophy with associated
muscle weakness or muscle weakness) accompanied by sensory or reflex loss and,
if there is involvement of the lower back, positive straight-leg raising test (sitting
20 C.F.R. § 404, Subpt. P, App. 1. Plaintiff correctly notes that, contrary to the ALJ’s statement
that there is “no evidence that is characterized by ... lumbar spinal stenosis” (AR 46), an MRI
from November of 2008 revealed evidence of spinal stenosis at the L3-4 level. AR 292.
Nevertheless, such an error may be deemed harmless unless the claimant “point[s] to specific
evidence that demonstrates he reasonably could meet or equal every requirement of the listing.”
Smith-Johnson v. Comm’r of Soc. Sec., 579 F. App’x 426, 432 (6th Cir. 2014). See also Sullivan
v. Zebley, 493 U.S. 521, 530, 110 S. Ct. 885, 107 L. Ed. 2d 967 (1990) (“For a claimant to show
that his impairment matches a listing, it must meet all of the specified medical criteria. An
impairment that manifests only some of those criteria, no matter how severely, does not
qualify.”) (emphasis in original); Naylor v. Comm’r of Soc. Sec., No. 2:15-cv-2817, 2016 WL
3995733, at *11 (S.D. Ohio July 26, 2016), report and recommendation adopted, 2016 WL
4398669 (S.D. Ohio Aug. 18, 2016) (“It is not sufficient to come close to meeting the conditions
of a Listing.”) (citing Dorton v. Heckler, 789 F.2d 363, 367 (6th Cir. 1989)).
Plaintiff attempts to establish that he meets all of the relevant criteria by pointing to
office visits on November 7, 2008, December 1, 2010, and February 15, 2012, during which
physical examinations revealed reduced forward flexion (AR 282), positive straight leg tests
(AR 282, 285, 301, 317), a loss of reflexes (AR 316), and a decrease in range of motion. AR 301,
317. The Court also notes that Plaintiff demonstrated a decreased range of motion during his
consultative examination with Dr. Bruce Davis on August 3, 2010 (AR 260), positive straight leg
tests during at least three other office visits between 2009 and 2010 (AR 274-75), muscle
weakness (AR 299), and sensory deficits. AR 274-75.
While such evidence suggests that some of the criteria of Listing 1.04A are satisfied, it
does not appear that Plaintiff has identified definitive evidence of nerve root compression.
Plaintiff relies heavily on the “mild” spinal stenosis finding contained in the 2008 lumbar MRI
report, 4 yet such a finding does not necessarily establish the presence of nerve root compression.
See Gliebe v. Astrue, No. 1:10-cv-002566, 2011 WL 7144817, at *19 (N.D. Ohio Dec. 30, 2011),
report and recommendation adopted, 2012 WL 275057 (N.D. Ohio Jan. 31, 2012) (“Plaintiff has
not produced evidence proving or suggesting nerve root compression but only stenosis ... Spinal
stenosis is a narrowing of the spinal column or a narrowing of the openings where the nerves
leave the spinal column, whereas nerve root compression is pressure on the nerve.”). See also
Barnes v. Comm’r of Soc. Sec., No. 12-cv-15256, 2013 WL 6328835, at *9 (E.D. Mich. Dec. 5,
2013) (“[Plaintiff’s] x-ray and CT scan show degenerative disc disease and spinal canal stenosis,
but there is no mention of nerve root compression in the radiologist’s reports.”). The record does
include evidence of sciatica, which is defined as “pain anywhere along the course of the sciatic
nerve,” Elsevier Saunders Dorland’s Illustrated Medical Dictionary 1678 (32nd ed. 2012), and
Plaintiff points to evidence that he participated in lumbar decompression therapy (AR 284-85),
which, as the term “decompression” suggests, can involve the “relief of pressure on a nerve.”
Elsevier Saunders Dorland’s Illustrated Medical Dictionary 475 (32nd ed. 2012). Nevertheless,
there is very limited evidence of muscle weakness in the record, which suggests that Plaintiff has
Plaintiff claims that the MRI showed “mild to moderate” spinal stenosis (DE 16-1 at 334);
however, the interpreting radiologist specifically described the finding as “mild central spinal ... stenosis”
in the “impression” section of the radiology report. AR 292 (emphasis added). As noted by Defendant,
even Dr. Butcher, who Plaintiff saw as part of a “disability examination” (AR 314, 317), noted that the
MRI in question revealed only “mild” spinal stenosis. AR 314.
failed to present a “substantial question about whether [he] meets a listing,” but has instead
offered “a mere toehold in the record on an essential element of the listing.” Sheeks v. Comm’r of
Soc. Sec. Admin., 544 F. App’x 639, 642 (6th Cir. 2013).
Notwithstanding the lack of robust evidence suggesting that all of the criteria for Listing
1.04A have been met, the Court finds that remand is necessary for additional consideration of the
evidence of record for the reasons articulated below.
3. The opinion of Dr. Butcher.
Plaintiff contends that the ALJ improperly discounted the MSS completed by Dr. Butcher
following her examination of Plaintiff in February of 2012. Dr. Butcher’s MSS included severe
physical restrictions that limit Plaintiff to occasional lifting and carrying of 10 pounds, sitting for
no more than three hours, and standing and walking for no more than two hours during an eighthour workday. AR 308-09.
The ALJ provided the following justification for discounting the opinion:
[Dr. Butcher’s] opinion has been considered, but has been given little weight.
Dr. Butcher saw the claimant on only one occasion, and at this time, no testing,
laboratory reports, or review of treating records were discussed. The claimant’s
medical history was provided entirely by the claimant. Additionally, it is assumed
that she was compensated for her opinion and that her findings were based
primarily upon the claimant’s own subjective complaints. Therefore, this opinion
has been given little weight.
AR 49. Plaintiff argues that these reasons are “completely baseless” and demonstrate that the
ALJ’s opinion is not supported by substantial evidence. DE 16-1 at 338. The Court agrees.
The ALJ’s opinion clearly contained numerous factual errors that the Court deemed
harmless, as discussed supra. However, none of the reasons provided for rejecting Dr. Butcher’s
opinion represent a reasonable basis on which to reject a medical opinion. The ALJ stresses that
Dr. Butcher examined Plaintiff on only one occasion, yet the same can be said of Dr. Bruce
Davis, whose opinion following a single consultative examination in August of 2010 was
“accorded significant weight.” AR 49, 259-61. The ALJ also minimizes Dr. Butcher’s findings
based on the fact that she was “compensated for her opinion,” a statement that could similarly be
attributed to Dr. Davis, whose opinion was procured by Defendant through the Department of
Disability Services (“DDS”). AR 259. Defendant attempts to distinguish the latter by engaging in
intellectual acrobatics, claiming that while DDS physicians are similarly compensated for their
opinions, such opinions are less “tainted” than those offered by one-time examiners such as
Dr. Butcher because DDS physicians “are paid the same ... no matter how they tend to assess
claimants.” DE 21 at 12. The Court is thoroughly unpersuaded by such reasoning as it unfairly
suggests that the claimant is required to seek out a provider based on the anticipated neutrality of
their prior opinions, a burden that is not similarly shouldered by the Commissioner. See Mullins
v. Colvin, No. 3:13-cv-00226, 2014 WL 1382552, at *6 (S.D. Ohio Apr. 8, 2014), report and
recommendation adopted sub nom. 2014 WL 4829543 (S.D. Ohio Sept. 29, 2014) (“If the
Regulations permitted ALJs to reject medical-source opinions based solely on who asked-or
paid-for them (a plaintiff or the Commissioner), the Regulations would frequently deprive the
Commissioner of the assistance provided by state agency medical sources and other program
physicians and psychiatrists.”).
Finally, the ALJ again errs by claiming that “no testing, laboratory reports, or review of
treating records were discussed” during Plaintiff’s encounter with Dr. Butcher. A simple review
of Dr. Butcher’s office note indicates that testing and treating records were at least discussed
based on Dr. Butcher’s reference to multiple MRI reports and the dates on which such studies
were conducted. AR 314. Indeed, Dr. Butcher describes the precise findings of both MRI reports,
which suggests that she reviewed them as part of her examination. AR 248, 292, 314. The Court
also notes that the ALJ’s emphasis on the alleged failure of Dr. Butcher to review relevant
medical records rings hollow in light of his decision to accord “a good deal of weight” to the
opinion of a state agency physician who did not review any treatment records beyond July of
2004, approximately five years before the alleged onset date. AR 49, 270. As such, unlike
Dr. Butcher, the state agency physician was not privy to the findings from the November 2008
MRI or any of the accompanying treatment, which undermines the ALJ’s decision to favor such
an opinion over Dr. Butcher’s MSS. Cf. Blakley, 581 F.3d at 406 (holding that because a nonexamining physician’s opinion was rendered before the claimant underwent significant
additional treatment, the Sixth Circuit “require[d] 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.”) (citing Fisk v. Astrue, 253 F. App’x 580, 585 (6th Cir. 2007)) (internal
It is true that the ALJ is permitted to reject the opinion of an examining physician without
providing “good reasons” as is required for opinions rendered by treating physicians. See
20 C.F.R. § 404.1527(c)(2). Nevertheless, “inaccuracies, incomplete analysis and unresolved
conflicts of evidence can serve as a basis for remand.” Karger v. Comm’r of Soc. Sec., 414 F.
App’x 739, 749 (6th Cir. 2011) (internal citation omitted). Here, the ALJ not only discounted
Dr. Butcher’s opinion based on inconsistent reasoning, but also misrepresented evidence to
undermine the opinion, which prevents the decision from enjoying the support of substantial
evidence. See Stanfield v. Colvin, No. 2:12-cv-213-KSF, 2013 WL 3935071, at *3 (E.D. Ky.
July 30, 2013) (“[A]n ALJ may not mischaracterize contrary evidence to support a conclusion.”)
(citing Cornett v. Benham Coal, Inc., 227 F.3d 569 (6th Cir. 2000)). This case should therefore
be remanded for additional consideration of the opinion evidence contained in the record.
4. The opinion of Dr. Bosserman.
Plaintiff finally argues that the ALJ improperly weighed the opinion of Dr. Michael
Bosserman, a treating physician, who opined on February 20, 2009 that Plaintiff could perform
“regular duty” work. AR 273. Plaintiff notes that while the ALJ included an accommodation for
“alternat[ing] between sitting and standing every 60 minutes” (AR 46), Dr. Bosserman actually
opined that Plaintiff should be able to “sit and rest his back ... as needed.” AR 273. However,
because the Court has found that remand is warranted for additional consideration of the opinion
evidence of record, which includes the opinion of Dr. Bosserman, the Court declines to take up
this assertion of error.
For the above stated reasons, Plaintiff’s motion for judgment on the administrative record
(DE 16) 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 accompanies this memorandum.
BARBARA D. HOLMES
United States Magistrate Judge
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