Cyrus v. Commissioner of Social Security

• Court: District Court, S.D. Ohio
• Decided: November 6, 2019
• Docket: 3:18-cv-00226
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON

MASON A. CYRUS,

Plaintiff, Case No. 3:18-cv-226

vs.

COMMISSIONER OF SOCIAL SECURITY, District Judge Walter H. Rice Magistrate Judge Michael J. Newman Defendant. ______________________________________________________________________________

REPORT AND RECOMMENDATION1 THAT: (1) THE NON-DISABILITY FINDING AT ISSUE BE FOUND UNSUPPORTED BY SUBSTANTIAL EVIDENCE, AND REVERSED; (2) THIS MATTER BE REMANDED TO THE COMMISSIONER UNDER THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR FURTHER PROCEEDINGS; AND (3) THIS CASE BE CLOSED ______________________________________________________________________________

This is a Social Security disability benefits appeal. At issue is whether the Administrative Law Judge (“ALJ”) erred in finding Plaintiff not “disabled” and therefore unentitled to Disability Insurance Benefits (“DIB”) and/or Supplemental Security Income (“SSI”).2 This case is before the Court on Plaintiff’s Statement of Errors (doc. 10), the Commissioner’s memorandum in opposition (doc. 14), Plaintiff’s reply (doc. 15), the administrative record (doc. 8),3 and the record as a whole. I. A. Procedural History Plaintiff filed for DIB and SSI alleging a disability onset date of June 18, 2007. PageID 48. Plaintiff claims disability as a result of a number of alleged impairments including, inter alia, residuals

1 Attached hereto is a NOTICE to the parties regarding objections to this Report and Recommendation. 2 “The Commissioner’s regulations governing the evaluation of disability for DIB and SSI are identical . . . and are found at 20 C.F.R. § 404.1520, and 20 C.F.R. § 416.920 respectively.” Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). Citations in this Report and Recommendation to DIB regulations are made with full knowledge of the corresponding SSI regulations, and vice versa. 3 Hereafter, citations to the electronically-filed administrative record will refer only to the PageID a crush injury to the right lower extremity including reflex sympathetic dystrophy4 (“RSD”), degenerative joint disease of the shoulders, an anxiety disorder, and depression. PageID 52. After an initial denial of his application, Plaintiff received a hearing before ALJ Gregory G. Kenyon on February 23, 2017. PageID 72-112. The ALJ issued a written decision on June 30, 2017 finding Plaintiff not disabled. PageID 48-62. Specifically, the ALJ found at Step Five that, based upon Plaintiff’s residual functional capacity (“RFC”) to perform a reduced range of sedentary work,5 “there are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform[.]” PageID 55-62. Thereafter, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s non- disability finding the final administrative decision of the Commissioner. PageID 34-36. See Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993). Plaintiff then filed this timely appeal. Cook v. Comm’r of Soc. Sec., 480 F.3d 432, 435 (6th Cir. 2007). B. Evidence of Record

The evidence of record is adequately summarized in the ALJ’s decision (PageID 48-62), Plaintiff’s Statement of Errors (doc. 10), the Commissioner’s memorandum in opposition (doc. 14), and Plaintiff’s reply (doc. 15). The undersigned incorporates all of the foregoing and sets forth the facts relevant to this appeal herein.

4 “Generally speaking, reflex sympathetic dystrophy is a deep pain and loss of mobility in an extremity caused by extreme contraction or dilation of blood vessels, which in turn alters the nutritional supply to nerves within the body. It is often the result of a localized injury to the body.” Burns v. City of Columbus, Dep't of Pub. Safety, Div. of Police, 91 F.3d 836, 839 n.1 (6th Cir. 1996). 5 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.” 20 C.F.R. § 404.1567(a). II. A. Standard of Review The Court’s inquiry on a Social Security appeal is to determine (1) whether the ALJ’s non- disability finding is supported by substantial evidence, and (2) whether the ALJ employed the correct legal criteria. 42 U.S.C. § 405(g); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742,745-46 (6th Cir. 2007). In performing this review, the Court must consider the record as a whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). When substantial evidence supports the ALJ’s denial of benefits, that finding must be affirmed, even if substantial evidence also exists in the record upon which the ALJ could have found Plaintiff disabled. Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Thus, the ALJ has a “‘zone of choice’ within which he [or she] can act without the fear of court interference.” Id. at 773.

The second judicial inquiry -- reviewing the correctness of the ALJ’s legal analysis -- may result in reversal even if the ALJ’s decision is supported by substantial evidence in the record. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009). “[A] decision of the Commissioner will not be upheld where the [Social Security Administration] fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right.” Bowen, 478 F.3d at 746. B. “Disability” Defined To be eligible for disability benefits, a claimant must be under a “disability” as defined by the Social Security Act. 42 U.S.C. § 423(d)(1)(A). Narrowed to its statutory meaning, a “disability” includes physical and/or mental impairments that are both “medically determinable” and severe enough to prevent a claimant from (1) performing his or her past job and (2) engaging in “substantial gainful activity” that is available in the regional or national economies. Id. Administrative regulations require a five-step sequential evaluation for disability determinations. 20 C.F.R. § 404.1520(a)(4). Although a dispositive finding at any step ends the ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), the complete sequential review poses five questions: 1. Has the claimant engaged in substantial gainful activity?;

2. Does the claimant suffer from one or more severe impairments?;

3. Do the claimant’s severe impairments, alone or in combination, meet or equal the criteria of an impairment set forth in the Commissioner’s Listing of Impairments (the “Listings”), 20 C.F.R. Subpart P, Appendix 1?;

4. Considering the claimant’s RFC, can he or she perform his or her past relevant work?; and

5. Assuming the claimant can no longer perform his or her past relevant work -- and also considering the claimant’s age, education, past work experience, and RFC -- do significant numbers of other jobs exist in the national economy which the claimant can perform?

20 C.F.R. § 404.1520(a)(4); see also Miller v. Comm’r of Soc. Sec., 181 F. Supp.2d 816, 818 (S.D. Ohio 2001). A claimant bears the ultimate burden of establishing disability under the Social Security Act’s definition. Key v. Comm’r of Soc. Sec., 109 F.3d 270, 274 (6th Cir. 1997). III. In his Statement of Errors, Plaintiff argues that the ALJ erred in: (1) evaluating the opinions of his treating physicians; (2) evaluating the opinion of the state agency’s examining physician; and (3) evaluating his supposed lack of treatment. Doc. 10 at PageID 882. Agreeing with Plaintiff’s first assignment of error, the undersigned would direct the ALJ to consider Plaintiff’s remaining arguments on remand. Until March 27, 2017, “the Commissioner’s regulations [that apply to this appeal] establish[ed] a hierarchy of acceptable medical source opinions[.]” Snell v. Comm’r of Soc. Sec., No. 3:12-cv-119, 2013 WL 372032, at *9 (S.D. Ohio Jan. 30, 2013). In descending order, these medical source opinions are: (1) treaters; (2) examiners; and (3) record reviewers. Id. Under the regulations then in effect, the opinions of treaters are entitled to the greatest deference because they “are likely to be . . . most able to provide a detailed, longitudinal picture of [a claimant’s] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations[.]” 20 C.F.R. § 404.1527(c)(2). A treater’s opinion must be given “controlling weight” if “well-supported by medically acceptable clinical and laboratory diagnostic techniques and . . . not inconsistent with the other substantial evidence in [the] case record.” LaRiccia v. Comm’r of Soc. Sec., 549 F. App’x 377, 384 (6th Cir. 2013). Even if a treater’s opinion is not entitled to controlling weight, “the ALJ must still determine how much weight is appropriate by considering a number of factors, including the length of the treatment relationship and the frequency of examination, the nature and extent of the treatment relationship, supportability of the opinion, consistency of the opinion with the record as a whole, and any specialization of the treating physician.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see also 20 C.F.R. § 404.1527(c).6

After treaters, “[n]ext in the hierarchy are examining physicians and psychologists, who often see and examine claimants only once.” Snell, 2013 WL 372032, at *9. Record reviewers are afforded the least deference and these “non-examining physicians’ opinions are on the lowest rung of the hierarchy of medical source opinions.” Id. Put simply, “[t]he regulations provide progressively more rigorous tests for weighing opinions as the ties between the source of the opinion and the individual [claimant] become weaker.” Id. (citing SSR 96-6p, 1996 WL 374180, at *2 (July 2, 1996)). In the absence of a controlling treating source opinion, an ALJ must “evaluate all medical opinions” with regard to the factors set forth in 20 C.F.R. § 404.1527(c), i.e.,

6 In essence, “opinions of a treating source . . . must be analyzed under a two-step process, with care being taken not to conflate the steps.” Cadle v. Comm’r of Soc. Sec., No. 5:12-cv-3071, 2013 WL 5173127, at *5 (N.D. Ohio Sept. 12, 2013). Initially, “the opinion must be examined to determine if it is entitled to controlling weight” and “[o]nly if . . . the ALJ does not give controlling weight to the treating physician’s opinion is the opinion subjected to another analysis based on the particulars of” 20 C.F.R. § 404.1527. Id. length of treatment history; consistency of the opinion with other evidence; supportability; and specialty or expertise in the medical field related to the individual’s impairment(s). Walton v. Comm’r of Soc. Sec., No. 97-2030, 1999 WL 506979, at *2 (6th Cir. June 7, 1999). Here, the record contains two opinions written by Plaintiff’s treating physicians. First, Meghan Brewster, M.D., Plaintiff’s primary care physician, opined in June 2016 that Plaintiff suffered from severe to extreme pain due to his RSD and Complex Regional Pain Syndrome (“CRPS”). PageID 809. As a result, Dr. Brewster concluded that Plaintiff would have “extreme”7 restrictions in activities of daily living and in difficulty in maintaining social functioning; would have deficiencies of concentration, persistence or pace; and could work less than one hour per day. PageID 810. Ultimately, Dr. Brewster concluded that Plaintiff would be unable to perform full-time competitive work over a sustained basis without being off task more than 15% of the workday due to his impairments or treatment for the same. PageID 811. That same month, Townsend Smith, M.D., Plaintiff’s treating pain management specialist,

authored an opinion regarding Plaintiff’s functional abilities that essentially mirrored that of Dr. Brewster’s. PageID 812-14. For example, Dr. Smith also opined that Plaintiff suffered from severe and extreme pain due to his RSD; that Plaintiff had extreme restrictions of activities of daily living; and that Plaintiff could work only one hour per day. PageID 811-12. The ALJ assigned both treating opinions “little weight,” PageID 57, and, by doing so, committed reversible error. Initially, the undersigned notes that the ALJ erred in failing to specifically acknowledge Dr. Brewster and Dr. Smith as treating physicians, mention the applicable concept of controlling weight, or decline to give their opinions controlling weight. Id. As noted by this Court on numerous occasions, such a failure mandates reversal because it “deprives the Court of the opportunity to meaningfully

7 Whereas “mild” and “moderate” functional limitations are generally considered “non-disabling,” see Sims v. Comm’r of Soc. Sec., 406 F. App’x 977, 980 (6th Cir. 2011), “marked” and “extreme” limitations are suggestive of disability. See 20 C.F.R. Pt. 416, Subpt. P, App. 1 § 12.00(C); Lankford v. Sullivan, 942 F.2d 301, 307 (6th Cir. 1991). review whether [the ALJ] undertook the ‘two-step inquiry’ required when analyzing treating source opinions.” Marks v. Colvin, 201 F. Supp. 3d 870, 882 (S.D. Ohio 2016); Hatton v. Comm’r of Soc. Sec., No. 3:18-CV-008, 2018 WL 4766963, at *4 (S.D. Ohio Oct. 3, 2018), report and recommendation adopted, No. 3:18-CV-8, 2018 WL 5084758 (S.D. Ohio Oct. 18, 2018); Reese v. Comm’r of Soc. Sec., No. 3:17-CV-283, 2018 WL 2381896, at *3 (S.D. Ohio May 25, 2018). Even assuming the ALJ properly declined to afford controlling weight to the opinions of Plaintiff’s treating physicians, the ALJ nevertheless erred. In simultaneously weighing the opinions of Drs. Brewster and Smith, the ALJ could not have properly analyzed the opinions under the regulatory factors of 24 C.F.R. §§ 404.1527(c)(1)-(2); (5), which necessarily require separate analysis. For example, Drs. Brewster and Smith have different treating relationships with Plaintiff and different specialties. 24 C.F.R. § 404.1527(c)(2)(i) (“[T]he longer a treating source has treated you and the more times you have been seen by a treating source, the more weight we will give to the source's medical opinion); 24 C.F.R. § 404.1527(c)(5) (“We generally give more weight to the medical opinion

of a specialist about medical issues related to his or her area of specialty than to the medical opinion of a source who is not a specialist”). The ALJ’s failure to properly perform either the first or second step of the controlling weight analysis warrants remand. Finally, the undersigned notes that the only other medical opinion of record is that of Damian Danopulos, M.D. Dr. Danopulos opined that Plaintiff had no impairments which would “interfere with any work-related activity.” PageID 467. Therefore, the ALJ’s RFC determination -- that Plaintiff is capable of performing only a limited range of sedentary work -- is inconsistent with the opinions of Plaintiff’s treating physicians and, also, the opinion of the state agency examining physician. In other words, because the ALJ’s RFC determination was made without the support of any of the medical opinions of record, it is not supported by substantial evidence. Hale v. Comm’r of Soc. Sec., 307 F. Supp. 3d 785, 793 (S.D. Ohio 2017) (citing Casey v. Astrue, 503 F.3d 687, 697 (8th Cir. 2007) (“[T]he RFC is ultimately a medical question that must find at least some support in the medical evidence of record); see also Isaacs v. Astrue, No. 1:08-CV-00828, 2009 WL 3672060, at *10 (S.D. Ohio Nov. 4, 2009) (“The residual functional capacity opinions of treating physicians, consultative physicians, and medical experts who testify at hearings are crucial to determining a claimant’s RFC”) (internal citations omitted)). IV. When, as here, the ALJ’s non-disability determination is unsupported by substantial evidence, the Court must determine whether to reverse and remand the matter for rehearing or to reverse and order an award of benefits. The Court has authority to affirm, modify or reverse the Commissioner’s decision “with or without remanding the cause for rehearing.” 42 U.S.C. § 405(g); Melkonyan v. Sullivan, 501 U.S. 89, 100 (1991). Generally, benefits may be awarded immediately “only if all essential factual issues have been resolved and the record adequately establishes a plaintiff’s entitlement to benefits.” Faucher v. Sec’y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994); see also Abbott v. Sullivan, 905 F.2d 918, 927 (6th Cir. 1990); Varley v. Sec’y of Health &

Human Servs., 820 F.2d 777, 782 (6th Cir. 1987). In this instance, evidence of disability is not overwhelming, and a remand for further proceedings is necessary. V. IT IS THEREFORE RECOMMENDED THAT: (1) the Commissioner’s non-disability finding be found unsupported by substantial evidence, and REVERSED; (2) this matter be REMANDED to the Commissioner under the Fourth Sentence of 42 U.S.C. § 405(g) for further proceedings; and (3) this case be CLOSED.

Date: 11/6/2019 s/ Michael J. Newman Michael J. Newman United States Magistrate Judge NOTICE REGARDING OBJECTIONS Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the proposed findings and recommendations within FOURTEEN days after being served with this Report and Recommendation. This period is not extended by virtue of Fed. R. Civ. P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system. If, however, this Report and Recommendation was served upon you by mail, this deadline is extended to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d). Parties may seek an extension of the deadline to file objections by filing a motion for extension, which the Court may grant upon a showing of good cause. Any objections filed shall specify the portions of the Report and Recommendation objected to, and shall be accompanied by a memorandum of law in support of the objections. If the Report and Recommendation is based, in whole or in part, upon matters occurring of record at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District Judge

otherwise directs. A party may respond to another party’s objections within FOURTEEN days after being served with a copy thereof. As noted above, this period is not extended by virtue of Fed. R. Civ. P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system. If, however, this Report and Recommendation was served upon you by mail, this deadline is extended to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d). Failure to make objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).