Hobson v. Social Security Administration

Filing 19

MEMORANDUM signed by District Judge Aleta A. Trauger on 7/31/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(ab)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
STACEY MICHELLE HOBSON,
Plaintiff,
v.
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NANCY BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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No. 3:15-cv-01050
Judge Trauger

MEMORANDUM
Pending before the court is Plaintiff Stacey Michelle Hobson’s Motion for Judgment on
the Administrative Record (“Motion”) (Docket No. 14), filed with a Memorandum in Support
(Docket No. 15).

Defendant Commissioner of Social Security (“Commissioner”) filed a

Response in Opposition to Plaintiff’s Motion (Docket No. 16). The court hereby withdraws the
reference to the Magistrate Judge. Upon consideration of the parties’ filings and the transcript of
the administrative record (Docket No. 10), 2 and for the reasons set out herein, the Plaintiff’s
Motion (Docket No. 14) will be granted to the extent the case will be reversed and remanded
pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this
Memorandum.
I.

Introduction

Hobson filed an application for Disability Insurance Benefits (“DIB”) under Title II of
the Social Security Act and an application for supplemental security income (“SSI”) under Title

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Nancy Berryhill became Acting Commissioner for the Social Security Administration on January 23, 2017.
Referenced hereinafter by page number(s) following the abbreviation “Tr.”

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XVI on November 7, 2011, both alleging a disability onset of March 12, 2011.

(Tr. 4.)

Hobson’s claim was denied at the initial and reconsideration stages of state agency review.
Hobson subsequently requested de novo review of her case by an Administrative Law Judge
(“ALJ”). Hobson appeared and testified at a hearing held on February 26, 2014. (Tr. 72–107.)
At this hearing, testimony was also received from a vocational expert (“VE”). (Tr. 101–07.)
The ALJ then requested a post-hearing consultative examination. (Tr. 4.) Hobson attended the
exam with Dr. Terrence Leveck, and the report of that examination was proffered to Hobson’s
representative. (Tr. 4.) A subsequent hearing was held on May 28, 2014, due to unusual
circumstances that arose regarding the VE after the February 26 hearing. 3

(Tr. 35–71.)

Testimony from a different VE was received during this subsequent hearing. (Tr. 57–70.)
Hobson was represented by counsel at both hearings. At the conclusion of the second hearing,
the matter was taken under advisement until August 22, 2014, when the ALJ issued a written
decision finding Hobson not disabled.

(Tr. 1–25.)

That decision contains the following

enumerated findings:
1. The claimant meets the insured status requirements of the Social Security Act through
June 30, 2015.
2. The claimant has not engaged in substantial gainful activity since March 12, 2011, the
alleged onset date (20 C.F.R. 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: obesity, fibromyalgia,
degenerative disc disease of the cervical spine, osteoarthritis, myopathy,
hypertension, hypo-bladder, chronic fasciitis, myositis, neuropathy, and anxiety,
depression, and adjustment disorder (20 C.F.R. 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 C.F.R. Part
404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525, 404.1526, 416.920(d),
416.925 and 416.926).
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The details of these circumstances are discussed in the ALJ’s decision. (Tr. 4–5.)

2

5. After careful consideration of the entire record, … the claimant has the residual
functional capacity to perform sedentary work as defined in 20 C.F.R. 404.1567(a)
and 416.967(a) except she can no more than occasionally lift 10 pounds, and
frequently lift 5 pounds. Standing and [/] or walking are limited to two hours per day
and walking will require the aid of a cane. Sitting can be performed from six to eight
hours per day, and postural activities can be performed on an occasional basis with no
use of ladders, no kneeling, and no crawling. The claimant can perform frequent
reaching and handling. The claimant should avoid concentrated exposure to extreme
temperature, vibrations, fumes, dust, gases, inhalants, and hazards. She can
understand[,] remember and carry out detailed tasks and instructions, but should have
no interaction with the public, occasional interaction with supervisors and coworkers
and can adapt to no more than gradual and infrequent change.
6. The claimant is unable to perform any past relevant work (20 C.F.R. 404.1565 and
416.965).
7. The claimant was born on January 27, 1980 and was 31 years old, which is defined as
a younger individual age 18-44, on the alleged disability onset date (20 C.F.R.
404.1563 and 416.963).
8. The claimant has at least a high school education and is able to communicate in
English (20 C.F.R. 404.1564 and 416.964).
9. Transferability of job skills is not an issue in this case because the claimant’s past
relevant work is unskilled (20 C.F.R. 404.1568 and 416.968).
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 C.F.R. 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 12, 2011, through the date of this decision (20 C.F.R. 404.1520(g) and
416.920(g)).
(Tr. 7, 9, 17–19.)
On July 31, 2015, the Appeals Council denied Hobson’s request for review of the ALJ’s
decision (Tr. 26–31), thereby rendering that decision the final decision of the SSA. This civil
action was thereafter timely filed, and the court has jurisdiction. 42 U.S.C. § 405(g).

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II.

Review of the Record

Despite having a duty to do so, Hobson has failed to provide a sufficient summary of the
medical record. The Commissioner has adopted the facts as set forth by the ALJ, which, as
discussed below, the court finds to also be inadequate. In light of these unique circumstances,
and considering the substantial size of the record, the court will instead refer to the relevant
medical record evidence in its analysis.
III.

Conclusions of Law

A. Standard of Review
Judicial review of “any final decision of the Commissioner of Social Security made after
a hearing” is authorized under section 205(g) of the Social Security Act, which empowers the
district court “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). This court reviews the final decision
of the Commissioner to determine whether substantial evidence supports that agency’s findings
and whether it applied the correct legal standards. Miller v. Comm’r of Soc. Sec., 811 F.3d 825,
833 (6th Cir. 2016). Substantial evidence means “‘more than a mere scintilla’ but less than a
preponderance; substantial evidence is such ‘relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” Id. (quoting Buxton v. Halter, 246 F.3d 762, 772
(6th Cir. 2001)). In determining whether substantial evidence supports the agency’s findings, a
court must examine the record as a whole, “tak[ing] into account whatever in the record fairly
detracts from its weight.” Brooks v. Comm’r of Soc. Sec., 531 F. App’x 636, 641 (6th Cir. 2013)
(quoting Garner v. Heckler, 745 F.2d 383, 388 (6th Cir. 1984)). The agency’s decision must
stand if substantial evidence supports it, even if the record contains evidence supporting the
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opposite conclusion. See Hernandez v. Comm’r of Soc. Sec., 644 F. App’x 468, 473 (6th Cir.
2016) (citing Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)).
Accordingly, this court may not “try the case de novo, resolve conflicts in evidence, or
decide questions of credibility.” Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 713 (6th Cir.
2012) (quoting Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007)). Where, however, an ALJ
fails to follow agency rules and regulations, the decision lacks the support of substantial
evidence, “even where the conclusion of the ALJ may be justified based upon the record.”
Miller, 811 F.3d at 833 (quoting Gentry v. Comm’r of Soc. Sec., 741 F.3d 708, 722 (6th Cir.
2014)).
B. The Five-Step Inquiry
The claimant bears the ultimate burden of establishing entitlement to benefits by proving
his or 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. § 423(d)(1)(A). The claimant’s “physical or mental impairment” must “result[] from
anatomical, physiological, or psychological abnormalities which are demonstrable by medically
acceptable clinical and laboratory diagnostic techniques.” Id. § 423(d)(3). The agency considers
a claimant’s case under a five-step sequential evaluation process, described by the Sixth Circuit
Court of Appeals as follows:
1. A claimant who is engaging in substantial gainful activity will not be found to be
disabled regardless of medical findings.
2. A claimant who does not have a severe impairment will not be found to be disabled.
3. A finding of disability will be made without consideration of vocational factors, if a
claimant is not working and is suffering from a severe impairment which meets the
duration requirement and which meets or equals a listed impairment in Appendix 1 to
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Subpart B of the Regulations. Claimants with lesser impairments proceed to step
four.
4. A claimant who can perform work that he has done in the past will not be found to be
disabled.
5. If a claimant cannot perform his past work, other factors including age, education,
past work experience and residual functional capacity must be considered to
determine if other work can be performed.
Parks v. Soc. Sec. Admin., 413 F. App’x 856, 862 (6th Cir. 2011) (citing Cruse v. Comm’r of
Soc. Sec., 502 F.3d 532, 539 (6th Cir. 2007)); 20 C.F.R. §§ 404.1520, 416.920. The claimant
bears the burden through step four of proving the existence and severity of the limitations her
impairments cause and the fact that she cannot perform past relevant work; however, at step five,
“the burden shifts to the Commissioner to ‘identify a significant number of jobs in the economy
that accommodate the claimant’s residual functioning capacity[.]” Kepke v. Comm’r of Soc.
Sec., 636 F. App’x 625, 628 (6th Cir. 2016) (quoting Warner v. Comm’r of Soc. Sec., 375 F.3d
387, 390 (6th Cir. 2004)).
The agency can carry its burden at the fifth step of the evaluation process by relying on
the Medical-Vocational Guidelines, otherwise known as “the grids,” but only if a nonexertional
impairment does not significantly limit the claimant, and then only when the claimant’s
characteristics precisely match the characteristics of the applicable grid rule. See Anderson v.
Comm’r of Soc. Sec., 406 F. App’x 32, 35 (6th Cir. 2010); Wright v. Massanari, 321 F.3d 611,
615–16 (6th Cir. 2003).

Otherwise, the grids only function as a guide to the disability

determination. Wright, 321 F.3d at 615–16; see Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir.
1990). Where the grids do not direct a conclusion as to the claimant’s disability, the agency
must rebut the claimant’s prima facie case by coming forward with proof of the claimant’s
individual vocational qualifications to perform specific jobs, typically through vocational expert
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testimony. Anderson, 406 F. App’x at 35; see Wright, 321 F.3d at 616 (quoting SSR 83-12, 1983
WL 31253, *4 (Jan. 1, 1983)).
When determining a claimant’s residual functional capacity (“RFC”) at steps four and
five, the agency must 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); Glenn v. Comm’r of Soc. Sec., 763 F.3d 494, 499 (6th Cir. 2014) (citing 20 C.F.R.
§ 404.1545(e)).
C. Plaintiff’s Statement of Errors
1. Severe Impairments
Hobson’s first argument is that the ALJ erred by failing to properly consider each of her
severe impairments. At step two of the sequential evaluation process, “the ALJ must find that
the claimant has a severe impairment or impairments” to be disabled. Farris v. Sec’y of Health
& Human Servs., 773 F.2d 85, 88 (6th Cir. 1985); see 20 C.F.R. § 404.1520(a)(4)(h). “[A]n
impairment is considered ‘severe’ unless ‘the [claimant’s] impairment(s) has no more than a
minimal effect on his or her physical or mental ability(ies) to perform basic work activities.”
Winn v. Comm’r of Soc. Sec., 615 F. App’x 315, 324 (6th Cir. 2015) (quoting SSR 85-28). As
such, “the claimant’s burden of establishing a ‘severe’ impairment during the second step of the
disability determination process is a ‘de minimis hurdle.’” Id. at 324–25 (quoting Higgs v.
Bowen, 880 F.2d 860, 862 (6th Cir. 1988)). “Under [this] prevailing de minimis view, an
impairment can be considered not severe only if it is a slight abnormality that minimally affects
work ability regardless of age, education, and experience.” Id. at 325 (quoting Higgs, 880 F.2d
at 862).

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“[O]nce any one impairment is found to be severe, the ALJ must consider both severe
and nonsevere impairments in the subsequent steps.” McGlothin v. Comm’r of Soc. Sec., 299 F.
App’x 516, 522 (6th Cir. 2008) (citing Anthony v. Astrue, 266 F. App’x 451, 457 (6th Cir.
2008)); 20 C.F.R. § 416.945(a)(2). Therefore, it is “legally irrelevant” that an impairment was
determined to be nonsevere if the ALJ finds other severe impairments. See McGlothin, 299 F.
App’x at 522 (reasoning that “because the ALJ found that [plaintiff] has some severe
impairments, he proceeded to complete steps three through five of the analysis. It then became
‘legally irrelevant’ that her other impairments were determined to be not severe.”) (quoting
Higgs, 880 F.2d at 862). As explained by the Sixth Circuit,
[a]n ALJ’s failure to find a severe impairment where one exists
may not constitute reversible error where the ALJ determines that a
claimant has at least one other severe impairment and continues
with the remaining steps of the disability evaluation. This rule is
predicated on the notion that the ALJ “properly could consider
claimant’s [non-severe impairments] in determining whether
claimant retained sufficient residual functional capacity to allow
[him] to perform substantial gainful activity.”
Winn, 615 F. App’x at 326 (citing Maziarz v. Sec’y of Health & Human Servs., 837 F.2d 240,
244 (6th Cir. 1987)); see also Fisk v. Astrue, 253 F. App’x 580, 583 (6th Cir. 2007) (holding that
an ALJ’s failure to find an impairment severe at step two is not reversible error, if the ALJ
“considers all of a claimant’s impairments in the remaining steps of the disability
determination.”); 20 C.F.R. § 404.1523 (stating that, when making a disability determination, the
Regulations require that, if one severe impairment exists, the Commissioner “will consider the
combined effect of all of your impairments without regard to whether any such impairment, if
considered separately, would be of sufficient severity.”).

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In the present case, the ALJ found that Hobson had severe obesity, fibromyalgia,
degenerative disc disease of the cervical spine, osteoarthritis, myopathy, hypertension, hypobladder, chronic fasciitis, myositis, neuropathy, anxiety, depression, and adjustment disorder
impairments during the relevant period. (Tr. 7.) Hobson claims that her lumbar spine disorder,
right sciatica, and tremors of the hands should also have been found to be severe. (Docket No.
15, p. 7.) Even assuming Hobson is correct, the court finds that any error in this regard was
harmless. The ALJ found thirteen conditions constituted severe impairments and then continued
on with the disability analysis. (See Tr. 7.) Thus, Hobson succeeded at step two. Further, the
ALJ considered both her severe and nonsevere impairments when determining her RFC, as
evidenced by his discussion of her lower back pain, right sciatica, and hand tremors. (Tr. 10–
14.) The court also notes that Hobson does not argue which, if any, additional functional
limitations would have been supported by the record. Therefore, Hobson’s claim of reversible
error fails, since it is “legally irrelevant” that the ALJ classified these impairments as nonsevere.
Hobson also claims that the ALJ failed to properly discuss how obesity affects her ability
to work, as allegedly required by SSR 02-1p. (Docket No. 15, pp. 9–10.) However, her reliance
on SSR 02-01p is misplaced. SSR 02-01p explains the Administration’s policy on the evaluation
of obesity. The ruling serves to “remind adjudicators to consider [obesity’s] effects when
evaluating disability.” SSR 02-01p. According to the Sixth Circuit,
Social Security Ruling 02-01p does not mandate a particular mode
of analysis. It only states that obesity, in combination with other
impairments “may” increase the severity of other limitations. It is
a mischaracterization to suggest that Social Security Ruling 02-01p
offers any particular mode of analysis for obese disability
claimants.
Bledsoe v. Barnhart, 165 F. App’x 408, 411–12 (6th Cir. 2006).
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Here, the ALJ properly accounted for the effects that obesity has on Hobson’s ability to
perform sedentary work. He found her obesity to be a severe impairment. (Tr. 7.) Hobson has
offered no evidence or argument that a restriction resulting from her obesity required greater
limitations than those found by the ALJ in his assessment. See Lyons v. Astrue, No. 3:10-cv-502,
2012 WL 529587, at *4 (E.D. Tenn. Feb. 17, 2012) (noting that “plaintiff has not offered any
evidence or argument, either in her objection or her initial motion, that a restriction resulting
from her obesity required greater limitations than those found by the ALJ in his RFC
determination.”).

The court finds that the ALJ sufficiently accounted for the impact that

Hobson’s obesity has on her ability to perform sedentary work.
2. Treating Physician Rule
Hobson’s next two arguments are that the ALJ erred by failing to give controlling weight
to the opinions of her treating physicians, Dr. Clarissa Arthur and Dr. Hemal Mehta, 4 as well as
failing to provide good reasons for doing so and that the ALJ failed to properly consider the
opinion of the consultative examiner, Dr. Terrence Leveck. (Docket No. 15, pp. 10–14.) The
Commissioner disagrees, arguing that the ALJ’s assignment of weight was supported by
substantial evidence and comports with applicable law. (Docket No. 16, pp. 7–12.)
The administrative regulations implementing the Social Security Act impose standards on
the weighing of medical source evidence. Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011).
The significant deference accorded to the Commissioner’s decision is conditioned on the ALJ’s
adherence to these governing standards. In Gentry v. Commissioner of Social Security, the Sixth

4

The Commissioner has not contested that Drs. Arthur and Mehta are Hobson’s treating physicians, as so defined in
20 C.F.R. § 416.902.

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Circuit re-stated the responsibilities of the ALJ in assessing medical evidence in the record in
light of the treating source rule:
Chief among these is the rule that the ALJ must consider all
evidence in the record when making a determination, including all
objective medical evidence, medical signs, and laboratory findings.
20 C.F.R. § 404.1520(a)(3); 20 C.F.R. § 404.1512(b); 20 C.F.R. §
404.1513. The second is known as the “treating physician rule,”
see Rogers, 486 F.3d at 242, requiring the ALJ to give controlling
weight to a treating physician’s opinion as to the nature and
severity of the claimant’s condition as long as it “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(d)(2)
(language moved to 20 C.F.R. § 404.1527(c)(2) on March 26,
2012). The premise of the rule is that treating physicians have the
best detailed and longitudinal perspective on a claimant’s condition
and impairments and this perspective “cannot be obtained from
objective medical findings alone.” 20 C.F.R. § 416.927(d)(2)
(language moved to 20 C.F.R. § 416.927(c)(2) on March 26,
2012). Even when not controlling, however, the ALJ must
consider certain factors, including the length, frequency, nature,
and extent of the treatment relationship; the supportability of the
physician’s conclusions; the specialization of the physician; and
any other relevant factors. Rogers, 486 F.3d at 242. In all cases,
the treating physician’s opinion is entitled to great deference even
if not controlling. Id. The failure to comply with the agency’s
rules warrants a remand unless it is harmless error. See Wilson,
378 F.3d at 545–46.
741 F.3d 708, 723 (6th Cir. 2014).
The Sixth Circuit has also made clear that an ALJ may not determine the RFC by failing
to address portions of the relevant medical record or by selectively parsing that record—i.e.,
“cherry-picking” it—to avoid analyzing all of the relevant evidence. Id. at 724 (citing Minor v.
Comm’r of Soc. Sec., 513 F. App’x 417, 435 (6th Cir. 2013) (reversing where the ALJ “cherrypicked select portions of the record” rather than doing a proper analysis); Germany-Johnson v.
Comm’r of Soc. Sec., 313 F. App’x 771, 777 (6th Cir. 2008) (finding error where the ALJ was
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“selective in parsing the various medical reports.”)). This is particularly so when the evidence
ignored is from a treating physician. Ignoring medical evidence from a treating source in
fashioning the RFC, without a proper analysis of why such action is taken, cannot be harmless
error because it “undermines [the ALJ’s] decision” to overlook evidence that could have
potentially supported a more restrictive RFC or even a finding of disability. Gentry, 741 F.3d at
729 (citations omitted); Grubbs v. Comm’r of Soc. Sec., No. 12–14621, 2014 WL 1304716, at *2
(E.D. Mich. Mar. 31, 2014) (“The absence of a review of treatment records from a treating
source and the lack of analysis of such made it impossible for the ALJ to properly assess whether
the Plaintiff was disabled and/or whether Plaintiff had the residual functional capacity to do any
work.”).
Kristina Greene
In the present case, the ALJ relied heavily upon the opinion of Kristina Greene, a
physician’s assistant at Comprehensive Rheumatology Care who routinely saw Hobson. (Tr.
14.) In assigning “great weight” to Ms. Greene’s opinion, the ALJ stated:
[Greene] specializes in rheumatology care and has been the
claimant’s primary health care provider regarding her
musculoskeletal issues. A letter received from Ms. Greene PA-C
of Comprehensive Rheumatology stated that the claimant was
being treated for chronic fasciitis and may require more frequent
breaks at work if she is standing or doing physical activity for long
periods. However, she indicated that sedentary activity would be
possible (Exhibit 19F, pg. 4). This opinion indicates that the
claimant does not need frequent breaks to perform sedentary tasks.
This assessment is consistent with the treatment records as a
whole.
(Tr. 14.) The letter referenced by the ALJ is the last in a series of four that Greene wrote on
Hobson’s behalf. The first states that Hobson is being treated for myositis and discusses its traits
and symptoms (Tr. 494); the second does the same for seronegative rheumatoid arthritis (Tr.
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495); and the third does the same for fibromyalgia and polyarthralgia (Tr. 496). The last letter
reads, in relevant part:
[Hobson] suffers from chronic fasciitis. Her diagnosis was
determined after several lab tests showed elevated CPK enzymes.
A muscle biopsy confirmed her diagnosis of myositis. [Hobson] is
on prednisone and this is a long term condition that will require
lifelong treatment. She has weakness in her muscles in both her
upper and lower extremities but her legs are affected the most. Her
disease also causes fatigue. She may require more frequent breaks
at work if she is standing or doing physical activity for long
periods of time. Sedentary activity would be better for her
myalgias.
(Tr. 497 (emphasis added).) The ALJ used his assessment of Greene’s opinion to discount the
portions of Dr. Arthur and Dr. Mehta’s opinions, which he believed to be inconsistent. However,
there are issues with this.
As a preliminary matter, Greene, as a physician’s assistant, is not an acceptable medical
source. See SSR 06-03p; Hollingsworth v. Astrue, No. 1:09-cv-0031, 2010 WL 2901830, at *3
(M.D. Tenn. July 15, 2010). An ALJ may use evidence from unacceptable medical sources to
show the severity of a claimant’s impairment and how it affects her ability to function.
However, unlike acceptable medical sources, information from unacceptable medical sources
cannot establish the existence of a medically determinable impairment, give medical opinions, or
be considered treating sources whose medical opinions may be entitled to controlling weight.
SSR 06-03p.
Greene’s statement regarding “sedentary activity” is simply a broad, general
recommendation—not a medical opinion that Hobson can perform the exertional demands of
sedentary work. It is important to note that “sedentary work” is a legal term of art with a specific

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definition 5, and the task of determining whether a claimant is capable of such work is reserved
exclusively for the ALJ. Poe v. Comm’r of Soc. Sec., 342 F. App’x 149, 157 (6th Cir. 2009)
(citing 20 C.F.R. §§ 404.1546(c), 416.946(c)) (“The responsibility for determining a claimant’s
residual functional capacity rests with the ALJ, not a physician.”). Greene’s letter neither
provides examples of what “sedentary activity” would constitute, nor does it contain any opinion
regarding Hobson’s functional abilities, such as whether Hobson would be able to sit for an
extended duration. In addition, Greene’s opinion regarding sedentary activity only referred to
Hobson’s “myalgias.” Notably, the ALJ found that Hobson suffers from thirteen distinct severe
impairments. Despite this, the ALJ overstates selected portions of Ms. Greene’s letter and relies
upon it as though it establishes that Hobson is capable of “sedentary work” as defined in the
regulations. For example, the ALJ paraphrased Ms. Greene’s final sentence at least twice,
stating “the opinion of Ms. Green[e] that the claimant can sustain sedentary functionality,” or
“the opinion of Ms. Greene … that [Hobson] can perform sedentary duties.” (Tr. 15.)

Overall,

the ALJ’s reliance upon and mischaracterization of Greene’s statements as establishing Hobson’s
ability to perform sedentary work is not substantially supported and is erroneous, insofar as the
ALJ utilized two general statements of limited scope from one of Greene’s letters to discredit
opinions from Hobson’s treating physicians, Drs. Arthur and Mehta, and from her consultative
examiner, Dr. Leveck.

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“Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like
docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain
amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and
standing are required occasionally and other sedentary criteria are met.” 20 C.F.R. §§ 404.1567(a), 416.967(a).

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Dr. Clarissa Arthur
Dr. Arthur was Hobson’s primary care physician. In partially discounting her opinion,
the ALJ stated:
Dr. Clarissa Arthur provided an assessment of the claimant’s
ability to do work related activities (Exhibit 14-F). Her opinion is
found to be overly restrictive. She limited the claimant to never
stooping, crouching, or climbing stairs. She also indicated that the
claimant needs to lie down for two hours in an eight-hour day, or
change position at will. As with Ms. Greene’s assessment, these
limitations appear to relate only toward the claimant’s ability to
stand and walk for extended durations. This conclusion is strongly
supported [by] Dr. Arthur’s assessment that the claimant has an
unlimited ability to sit. It is also supported by the fact that Dr.
Arthur’s explanation of the claimant’s limitations focused
primarily on her difficulty to get into a kneeling position and to
stand thereafter and her occasional use of a cane to ambulate.
Dr. Clarissa Arthur opined that the claimant has no sitting
limitations and has no handling or feeling limitations. These
assessments are given great weight because they are consistent
with the opinion of Ms. Greene that the claimant can sustain
sedentary functionality. The other limitations regarding lifting and
the need for extended breaks and absences all appear to relate to
the claimant’s standing and walking limitations, not her unlimited
ability to sit. As a result, these limitations are given no weight in
relation to the claimant’s ability to perform sedentary work from a
sitting position.
(Tr. 15.) This is insufficient.
The ALJ’s explanation does not comport with the procedural requirements of
§ 1527(c)(2); namely, he did not apply the requisite § 1527(c)(2) factors, such as the length of
the treatment relationship and frequency of examination or the nature and extent of the treatment
relationship. This leaves out crucial information, such as the fact that Dr. Arthur was Hobson’s
primary care physician and treated her regularly for at least two years. The only factors the ALJ

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seemed to consider were the overall consistency of her opinion with her own treatment records
and the record as a whole. However, there are issues with the ALJ’s analysis here as well.
For example, the ALJ’s assertion that Dr. Arthur opined that Hobson has an unlimited
ability to sit is misleading, due to a lack of context. Dr. Arthur did in fact opine that Hobson had
no limit in her ability to sit with normal breaks during an eight-hour day. (Tr. 418.) However,
under the next question, which referred to patients who must periodically alternate sitting,
standing, or walking to relieve discomfort, Dr. Arthur stated that Hobson could only sit for 30–
45 minutes before changing positions; could stand for 15–20 minutes before changing positions;
must walk around every 5–10 minutes for 5 minutes; and needs the opportunity to shift at will
from sitting or standing/walking. (Tr. 418.) Dr. Arthur’s opinion also notes that Hobson often
needs to lie down at unpredictable intervals, at least 2–3 hours of an 8 hour shift; that Hobson
should never twist, stoop, crouch, climb stairs, or climb ladders; and that she will be absent more
than four days a month due to her impairments. (Tr. 418–19.) Inexplicably, the ALJ categorized
three of these restrictions (i.e., never performing postural activities, needing to lie down for two
hours in an eight hour shift, and change positions at will) as pertaining “only to [Hobson’s]
ability to stand and walk for extended durations” and thus gave them no weight. (Tr. 15.)
It is concerning that the ALJ concluded that Dr. Arthur meant Hobson’s ability to sit was
unlimited, without mentioning the severe restrictions Dr. Arthur included, in the very next
section, which would directly limit Hobson’s ability to sit without interruption. In fact, the
limitations Dr. Arthur placed on Hobson’s physical activity precluded sedentary work under
Social Security guidelines and Sixth Circuit case law, which has repeatedly held that sedentary
work requires the ability to sit for extended periods of time and is precluded by an impairment,
or combination of impairments, which require the claimant to alternate frequently between
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sitting and standing. See, e.g., Preston v. Sec’y of Health & Human Servs., 854 F.2d 815, 819
(6th Cir. 1988); Wages v. Sec’y of Health & Human Servs., 755 F.2d 495, 497–499 (6th Cir.
1985). It is clear from Dr. Arthur’s restrictions that Hobson could not maintain any one position
(e.g., sitting or standing) for any significant length of time; she has to be able to move about as
needed. As stated in Wages, “[t]he concept of sedentary work contemplates substantial sitting as
well as some standing and walking. Alternating between sitting and standing, however, may not
be within the definition of sedentary work.” Wages, 755 F.2d at 498; accord, Howse v. Heckler,
782 F.2d 626, 628 (6th Cir. 1986); see also SSR 83-10, 83-12. Indeed, a number of Dr. Arthur’s
restrictions would preclude Hobson from being able to perform sedentary work, such as her
frequent absences due to her impairments and her manual dexterity related limitations 6. Yet, the
ALJ does not acknowledge this limitation either.

Such selective parsing of the opinion,

particularly when combined with the lack of analysis of the relevant portions of the record and
failure to properly apply the requisite factors, illustrates the lack of substantial evidence
supporting the ALJ’s decision. Therefore, the court finds that the ALJ violated the treating
physician rule with respect to Dr. Arthur.
Dr. Hemal Mehta
With respect to the opinion of Hobson’s second treating physician, Dr. Hemal Mehta, the
ALJ stated:
In regards to the claimant’s physical conditions, Dr. Hermal [sic]
Mehta provided a medical opinion of the claimant’s ability to do
work related activity. His opinion is given no weight. He opined
that the maximum amount the claimant could lift is less than ten
6

In Faison v. Sec’y of Health & Human Servs., 679 F.2d 598, 599 (6th Cir. 1982), the court took judicial notice that
sedentary jobs, while requiring less strength than other jobs, also require more manual dexterity and speed than other
jobs. Additionally, one of the vocational experts testified that a claimant who was only capable of occasional
handling and fingering would be unable to perform sedentary work. (Tr. 61.)

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pounds and that she could sit for three hours in an eight-hour day.
This is inconsistent with the opinion of Dr. Arthur who states the
claimant has no limit in her ability to sit (Exhibit 14-F). It is also
inconsistent with the opinion of the consultative examiner Dr.
Thomas [sic] Leveck who opines that the claimant is capable of
sitting for eight hours in an eight-hour day. It is further
inconsistent with the opinion of Ms. Greene, the claimant’s
primary care provider, that she can perform sedentary duties.
Dr. Hermal [sic] Mehta provided additional limitations and he
stated that his support for these limitations was the diagnosis of
rheumatoid arthritis with chronic pain. Although the claimant has
been diagnosed with rheumatoid arthritis and has pain in multiple
joints, the diagnosis itself does not provide sufficient support for
the severity of limitations he has expressed. Moreover, his
opinions are also inconsistent with the claimant’s own reports in
her Mental Health Questionnaires (Exhibit 9-F, 18-F, and 30-F).
(Tr. 15.) The ALJ’s decision to accord zero weight to Dr. Mehta’s opinion violates the treating
physician rule.
First, even assuming that the ALJ properly declined to give Dr. Mehta’s opinion
controlling weight, he failed to give “good reasons” for giving the opinion “no weight.” Namely,
he did not balance § 1527(c)(2)’s requisite factors, such as the length of the treatment
relationship and frequency of the examination, the nature and extent of the treatment
relationship, and specialization of the treating source. The only factors that the ALJ did seem to
consider were the consistency of the opinion with the record. However, there are issues with the
ALJ’s analysis here as well. The ALJ stated that Dr. Mehta’s opinion that the maximum weight
Hobson could lift was less than ten pounds and that she could only sit for three hours in an eighthour day was inconsistent with Dr. Arthur’s opinion that Hobson has no limit in her ability to sit.
(Tr. 15.) As discussed above, the ALJ’s oversimplified and cherry-picked interpretation of Dr.
Arthur’s opinion does not accurately reflect the content of the opinion. Furthermore, the ALJ’s
contention of inconsistency is undercut because it does not account for any of the consistencies.
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To the contrary, a comparison of the two opinions shows that they are substantially similar. For
example, both doctors opined that the maximum weight Hobson could lift was less than ten
pounds; her maximum ability to stand was about two hours or less; her ability to reach, handle,
finger, and push/pull were all affected by her impairments; and she would miss work more than
four days per month due to her impairments. (Tr. 418–19, 708–10.)
It is also notable that, although the ALJ chose to discount the entirety of Dr. Mehta’s
opinion, some of Dr. Mehta’s findings are unmistakably present among the various limitations
identified by the ALJ in determining Hobson’s RFC. For instance, the ALJ states in his RFC
finding that “postural activities can be performed on an occasional basis with no use of ladders,
no kneeling, and no crawling.” (Tr. 9.) Dr. Arthur opined that Hobson could never perform any
of the postural activities, yet Dr. Mehta opined that she could occasionally twist or stoop, but
never crouch or climb ladders or stairs. (Tr. 419, 709.) Both doctors recommended that she
never kneel. (Tr. 419, 709.) The ALJ provides no rationale for why he chose to implicitly adopt
portions of Dr. Mehta’s opinion after allocating it no weight. Overall, the ALJ’s rationale for
discounting Dr. Mehta’s opinion based on its alleged inconsistency with the opinion of Dr.
Arthur is flawed.
Similarly, the ALJ erred by discounting Dr. Mehta’s opinion on the grounds that it was
“inconsistent with the opinion of the consultative examiner Dr. Thomas [sic] Leveck who opines
that the claimant is capable of sitting for eight hours in an eight-hour day.” (Tr. 15.) As a
threshold matter, the ALJ accorded little weight to Dr. Leveck’s opinion; therefore, it is odd that
the ALJ would use it to discount Dr. Mehta’s opinion. The ALJ also failed to account for the
numerous consistencies between the opinions. For example, Dr. Leveck and Dr. Mehta (as well
as Dr. Arthur) both opine that the maximum weight Hobson could lift was less than ten pounds;
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that Hobson would have issues with reaching and pushing/pulling; and that she should never
kneel, balance, crawl, or climb stairs or ladders. (Tr. 708–10, 828–33.) Moreover, the Sixth
Circuit has repeatedly held that the opinions of a treating physician are generally entitled to
greater weight than the contrary opinions of a consulting physician who has examined the
claimant on only a single occasion. Rogers v. Commissioner, 486 F.3d 234, 242 (6th Cir. 2007).
In addition, as stated above, it was improper to discount Dr. Mehta’s opinion on the
ground that it was inconsistent with the opinion of Greene, a nonacceptable medical source, that
Hobson “can perform sedentary duties.” It is also notable that Dr. Mehta’s opinion is dated
December 20, 2013, almost a full year after Ms. Greene’s November 29, 2012 opinion (Tr.
710)—a fact which the ALJ neglects to mention in his analysis.
Aside from the inconsistencies with other opinions, as discussed above, the ALJ also
discounted Dr. Mehta’s opinion on the grounds that the diagnosis of rheumatoid arthritis itself
was insufficient to support the severity of limitations. Yet he failed to properly address the
treatment records, which consistently documented symptoms such as persistent multiple joint
and muscle pain, decreased range of motion, and swelling in her hands. (Tr. 672, 678, 683, 700,
703, 706.) The ALJ finally stated that Dr. Mehta’s opinion was inconsistent with Hobson’s
reports in her Mental Health Questionnaires, but after reviewing the Questionnaires, the court
was unable to find any such inconsistencies. Rather, Hobson consistently reported difficulties
with most of her daily activities, such as walking, dressing, and participating in recreational
sports. (E.g., Tr. 382, 385, 388, 391.) Finally, the ALJ did not appear to acknowledge Dr.
Mehta as a treating physician, let alone discuss his specialty (pain management), how long he
had been treating Hobson (since April 2013), or how frequent her visits were (monthly).

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In light of the substantial defects in the ALJ’s decision identified above, the court is not
persuaded by the remaining justifications offered by the Commissioner in support of its
argument that the ALJ properly evaluated Dr. Arthur and Dr. Mehta’s opinions. It is disturbing
that the ALJ appears to only reference evidence in the record that supports one outcome: a
finding that Hobson is not disabled. Because the ALJ failed to follow procedural regulations
designed to protect Hobson, the court does not find this procedural failure to be a harmless error
and thus reverses the ALJ’s decision. See McLean v. Comm’r of Soc. Sec., 360 F. Supp. 2d 864,
872 (E.D. Mich. 2005) (citing Wilson, 378 F.3d at 547–48) (“The error is not harmless when the
reviewing court is hampered by the lack of explanation and the rejected evidence could very well
establish disability, as here.”).
Hobson also argues that the ALJ erred in his weighing of Dr. Leveck’s opinion. (Docket
No. 15, pp. 14–16.) The ALJ stated that he accorded little weight to Dr. Leveck’s opinion in part
because of its inconsistencies with the opinions of other treating professionals—specifically, the
opinions of Dr. Arthur and Greene. (Tr. 16.) Since the court finds that the ALJ’s analysis
violated the treating physician rule, it is not necessary to address this argument, or Hobson’s
other remaining arguments, because even if the assignment of error had merit, the result would
be the same, i.e., remand for further proceedings. See Mays v. Comm’r of Soc. Sec., No. 1:14-cv647, 2015 WL 4755203, at *13 (S.D. Ohio Aug. 11, 2015) (Report and Recommendation)
(Litkovitz, M.J.), adopted, 2015 WL 5162479 (S.D. Ohio Sept. 3, 2015).

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IV.

Conclusion

For the reasons stated herein, Plaintiff’s Motion for Judgment on the Record (Docket No.
14) will be granted and an appropriate Order entered.
ENTER this 31st day of July 2017.

_______________________________
ALETA A. TRAUGER
UNITED STATES DISTRICT JUDGE

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