NOT RECOMMENDED FOR PUBLICATION File Name: 18a0399n.06
No. 17-4247
UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Aug 08, 2018 DEBORAH S. HUNT, Clerk DOROTHY M. DUGAN, ) ) Plaintiff-Appellant, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE COMMISSIONER OF SOCIAL SECURITY, ) SOUTHERN DISTRICT OF ) OHIO Defendant-Appellee. )
BEFORE: ROGERS and BUSH, Circuit Judges; WATSON, District Judge.*
WATSON, District Judge. Dorothy Dugan appeals the magistrate judge’s decision and
entry affirming the decision of the Commissioner of Social Security (“Commissioner”), which
denied her claim for disability and supplemental security income benefits under the Social Security
Act. For the following reasons, we affirm the magistrate judge’s decision.
I.
In January 2001, Dugan filed applications for disability insurance benefits (“DIB”) and
supplemental security income (“SSI”), alleging disability as of February 25, 1999, based on several
impairments including degenerative disc disease of the lumbar spine, degenerative disc disease of
the cervical spine, and carpal tunnel syndrome, among others. After an initial denial of her
application, Dugan’s application proceeded to an evidentiary hearing before administrative law
* The Honorable Michael H. Watson, United States District Judge for the Southern District of Ohio, sitting by designation. No. 17-4247, Dugan v. Comm’r of Soc. Sec.
judge (“ALJ”) James I. K. Knapp. On May 10, 2001, ALJ Knapp issued a written decision finding
Dugan was not disabled. ALJ Knapp concluded that Dugan had the residual functional capacity
(“RFC”) to perform a reduced range of light work, including her previous work as an electronics
assembler. The Appeals Council declined to review ALJ Knapp’s decision, and Dugan did not
appeal in federal court. Thus, ALJ Knapp’s non-disability finding became the final decision of
the Commissioner with respect to Dugan’s initial application on May 11, 2002.
In September 2002, Dugan filed new applications for DIB and SSI, again alleging disability
as of February 25, 1999. The alleged disability onset date was May 11, 2002, the date of ALJ
Knapp’s prior non-disability finding. After an initial denial of her new application, Dugan
received a hearing before ALJ Daniel R. Shell on February 11, 2005. On November 8, 2005, ALJ
Shell issued a written decision finding Dugan was not disabled. ALJ Shell concluded that, based
on Dugan’s RFC to perform a reduced range of sedentary work, she could perform a significant
number of jobs in the national economy. Thereafter, the Appeals Council declined Dugan’s
request for review of ALJ Shell’s November 2005 decision. On appeal to the federal district court,
however, the district judge reversed ALJ Shell’s non-disability finding, affirming the magistrate
judge’s recommendation to remand to the Commissioner to make further factual determinations
that were vocationally significant, such as assessing Dugan’s ability to look down. Dugan v.
Astrue, No. 3:07-CV-159, 2008 WL 783382, at *1 (S.D. Ohio Mar. 20, 2008); see also Dugan v.
Astrue, No. 3:07-CV-159, 2008 WL 755274, at *2 (S.D. Ohio Feb. 28, 2008).
On the first remand from the district court, Dugan received a second hearing before ALJ
Shell on November 12, 2008. On December 19, 2008, ALJ Shell issued a second written decision,
once again finding Dugan was not disabled. In his second decision, ALJ Shell found, contrary to
his first decision, that Dugan was capable of performing light work and, based on such an RFC,
-2- No. 17-4247, Dugan v. Comm’r of Soc. Sec.
that “there are jobs that exist in significant numbers in the national economy that [Dugan] can
perform[.]” The Appeals Council denied Plaintiff’s request for review of ALJ Shell’s second
decision, and Dugan again appealed to the federal district court. On appeal, the district judge
remanded the matter to the Commissioner for additional administrative proceedings with
instruction to “(1) re-evaluate the medical source opinions of record under the legal criteria set
forth in the Commissioner’s Regulations, Rulings and applicable caselaw; and (2) reconsider,
under the required sequential evaluation procedure, whether Dugan was under a disability and thus
eligible for SSI.” Dugan v. Astrue, No. 3:09-CV-199, 2010 WL 3365701, at *1–2 (S.D. Ohio Aug.
23, 2010).
On the second remand from the district court, Dugan received a hearing before ALJ Amelia
G. Lombardo on June 14, 2011. ALJ Lombardo issued a written decision on October 13, 2011.
ALJ Lombardo found Dugan was disabled as of July 1, 2009, but not disabled before that date. As
to Dugan’s non-disability status before July 1, 2009, ALJ Lombardo found that Dugan was capable
of a reduced range of light work and that a significant number of jobs existed in the national
economy that Dugan could perform, such that a finding of disability was not warranted before July
1, 2009.
On January 9, 2013, the Appeals Council assumed jurisdiction and remanded the case back
to ALJ Lombardo. Pursuant to the remand order, ALJ Lombardo was instructed to: (1) reconsider
Dugan’s disability status from May 11, 2002, in light of ALJ Knapp’s May 10, 2002 decision and
Drummond v. Commissioner of Social Security, 126 F.3d 837 (6th Cir. 1997); (2) provide an
assessment of what weight should be assigned to an October 2002 medical opinion; and (3) obtain
medical expert testimony regarding the medical evidence about the presence of rheumatoid
arthritis.
-3- No. 17-4247, Dugan v. Comm’r of Soc. Sec.
On the third remand, Dugan received another hearing before ALJ Lombardo on January 2,
2014. ALJ Lombardo then issued her second written decision on April 25, 2014, again finding
Dugan was not disabled from May 11, 2002 through June 30, 2009. ALJ Lombardo found that
“there are jobs that exist in significant numbers in the national economy that [Plaintiff] can
perform” based on Dugan’s RFC to perform light work.
On Dugan’s request for review, the Appeals Council found her exceptions to ALJ
Lombardo’s decision untimely, thereby making ALJ Lombardo’s April 25, 2014 non-disability
finding the final administrative decision of the Commissioner on Dugan’s second application.
Dugan then requested an extension of time to file a civil action, which the Appeals Council granted.
On appeal to the federal district court, the magistrate judge reviewed the case for disposition based
on the parties’ consent. The magistrate judge affirmed the ALJ’s non-disability findings as
supported by substantial evidence. This appeal follows.
II.
We review a district court’s decision in social security cases de novo. Valley v. Comm’r of
Soc. Sec., 427 F.3d 388, 390 (6th Cir. 2005) (citing Crum v. Sullivan, 921 F.2d 642, 644 (6th Cir.
1990)). But we review an ALJ’s underlying findings “to determine whether they are supported by
substantial evidence.” Id. at 390–91 (citing 42 U.S.C. § 405(g); Walters v. Comm’r of Soc. Sec.,
127 F.3d 525, 528 (6th Cir. 1997)). “A decision is supported by substantial evidence where a
reasonable mind could find that the evidence is adequate to support the conclusion reached.”
Valley, 427 F.3d at 391 (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). Although the
substantial evidence standard is deferential, it is not trivial. We must “‘take into account whatever
in the record fairly detracts from [the] weight’” of the Commissioner’s decision. TNS, Inc. v.
NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting Universal Camera Corp. v. NLRB, 340 U.S.
-4- No. 17-4247, Dugan v. Comm’r of Soc. Sec.
474, 487 (1951)). Nevertheless, “if substantial evidence supports the ALJ’s decision, this Court
defers to that finding ‘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)). Finally, even if the ALJ’s decision
meets the substantial evidence standard, “‘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.’” Rabbers v.
Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) (quoting Bowen v. Comm’r of Soc. Sec.,
478 F.3d 742, 746 (6th Cir. 2007)).
The Social Security Act provides for payment of benefits to people who have become
disabled. See 42 U.S.C. §§ 423(a)(1)(E), 1382(a)(1). To receive disability benefits and
supplemental social security income, an applicant must demonstrate that she is “[unable] 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 twelve months.” Id. §§ 423(d)(1)(A), 1382c(a)(3)(A).
Social Security regulations require ALJs to resolve a disability claim through a five-step
sequential evaluation of the evidence. See 20 C.F.R. § 416.920(a)(4). Although a dispositive
finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th
Cir. 2007), if fully considered, the sequential review considers and answers five questions:
1. Is 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, 20 C.F.R. Subpart P, Appendix 1? 4. Considering the claimant’s residual functional capacity, can the claimant perform his or her past relevant work?
-5- No. 17-4247, Dugan v. Comm’r of Soc. Sec.
5. Considering the claimant’s age, education, past work experience, and residual functional capacity, can the claimant perform other work available in the national economy?
See 20 C.F.R. § 16.920(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009);
Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001). “The claimant bears the burden of proof
through step four; at step five, the burden shifts to the Commissioner.” Rabbers, 582 F.3d at 652
(citing Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003)). “An unsuccessful
applicant may appeal the decision through the administrative review process and eventually to an
Article III court. At that point, the inquiry on that application ends.” Earley v. Comm’r of Soc.
Sec., No. 17-4007, 2018 WL 3134547, at *2 (6th Cir. 2018).
III.
In this appeal, Dugan challenges ALJ Lombardo’s non-disability finding for the period
from May 11, 2002 to July 1, 2009, reasserting essentially the same three issues raised before the
magistrate judge. She contends that: (1) ALJ Lombardo improperly rejected the application of res
judicata by finding that Dugan’s condition had improved during the time period at issue; (2) ALJ
Lombardo improperly weighed the opinions of Dugan’s treating physicians; and (3) ALJ
Lombardo’s finding regarding Dugan’s manipulative ability was not supported by substantial
evidence. Dugan’s arguments are without merit.
A. Finding of Medical Improvement and Administrative Res Judicata
“[T]he principles of res judicata can be applied against the Commissioner.” Drummond v.
Comm’r of Soc. Sec., 126 F.3d 837, 842 (6th Cir. 1997). “When the Commissioner has made a
final decision concerning a claimant’s entitlement to benefits, the Commissioner is bound by this
determination absent changed circumstances.” Id. In such cases, “[a]bsent evidence of an
-6- No. 17-4247, Dugan v. Comm’r of Soc. Sec.
improvement in a claimant’s condition, a subsequent ALJ is bound by the findings of a previous
ALJ.” Id.
Dugan makes two arguments invoking Drummond. Dugan first contends that ALJ
Lombardo erred in finding that, because Dugan’s condition had improved, the ALJ was not bound
by ALJ Knapp’s May 10, 2002 RFC finding. Second, Dugan insists that ALJ Lombardo’s finding
of improvement was unreasonable in light of ALJ Shell’s November 8, 2005 decision and RFC
finding. Neither argument has merit.
In the April 25, 2014 decision, ALJ Lombardo set forth a detailed discussion regarding the
application of Drummond in Dugan’s case with respect to ALJ Knapp’s May 10, 2002 decision.
Along with her full discussion of the medical record and opinion evidence, the ALJ found that
“[t]he record documents medical improvement in [Dugan’s] conditions” from 2002 to ALJ
Lombardo’s 2014 decision, and, accordingly, ALJ Knapp’s 2002 RFC finding was “not applicable
for any relevant period since May of 2002.” In particular, ALJ Lombardo found that “objective
testing, including MRI scans, showed resolution of the previously demonstrated herniated disc,”
and no stenosis or muscle weakness. Moreover, physical exams showed normal sensation,
reflexes, and motor strength. Finally, the state-agency consultant opined that the functional
restrictions of the 2002 decision were no longer applicable as new evidence showed that medical
improvement had occurred. Thus, ALJ Lombardo ultimately concluded that:
The record demonstrates that medical improvement has occurred to the extent that the record no longer contains clinical or objective findings that restrict the claimant to a reduced range of sedentary work activity. Therefore, a significant change in the nature, character, and severity of the claimant’s medical conditions has occurred since the issuance of the May 10, 2002, Decision of an Administrative Law Judge and the mandates of [Drummond] do not apply to this Decision.
In short, ALJ Lombardo appropriately considered administrative res judicata and had substantial
evidence to support her finding of improved conditions. Therefore, Dugan’s first argument fails.
-7- No. 17-4247, Dugan v. Comm’r of Soc. Sec.
Dugan’s second argument under Drummond is also a non-starter. ALJ Shell’s November
8, 2005 decision was remanded by both the Appeals Council and the district court; thus, it was not
binding and had no res judicata effect. See C.F.R. § 404.955 (“the decision of the [ALJ] is binding
. . . unless . . . the Appeals Council reviews your case . . . [or] the Appeals Counsel denies your
request for review, and you seek judicial review of your case by filing an action in a Federal district
court[.]”).
B. Treating Physician Opinions
In her second issue on appeal, Dugan argues that ALJ Lombardo failed to properly weigh
“multiple treating source opinions.” Specifically, she claims that ALJ Lombardo’s analysis of the
opinions of Drs. Adams, Schleicher, and Kleinhenz, respectively, was “inadequately specific” and
“impermissibly vague.” In addition, Dugan argues that the ALJ did not meaningfully weigh Dr.
White’s assessment that Dugan’s physical condition did not improve after 2002. Dugan concludes
that the ALJ’s failure to apply the correct legal standards denotes a lack of substantial evidentiary
support, and therefore the non-disability finding should be reversed.
ALJs must adhere to certain governing standards when assessing the medical evidence
supplied in support of a claim. “Key among these is that greater deference is generally given to
the opinions of treating physicians than to those of non-treating physicians, commonly known as
the treating physician rule.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242–43 (6th Cir. 2007)
(citing Soc. Sec. Rul. 96–2p, 1996 WL 374188 (July 2, 1996)); Wilson v. Comm’r of Soc. Sec.,
378 F.3d 541, 544 (6th Cir. 2004)). Generally, treating physicians are “the medical professionals
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”; thus, their opinions are generally given more weight than those of non-
-8- No. 17-4247, Dugan v. Comm’r of Soc. Sec.
treating physicians. Id. Therefore, “if the opinion of the treating physician as to the nature and
severity of a claimant’s conditions is ‘well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with other substantial evidence in [the]
case record,’ then it will be accorded controlling weight.” Id. (quoting Wilson, 378 F.3d at 544);
see also 20 C.F.R. § 404.1527(c)(2).
If a treating physician’s opinion is not given controlling weight, the ALJ must provide
“good reasons” as to the weight given instead. 20 C.F.R. § 404.1527(c)(2). “These reasons must
be ‘supported by the evidence in the case record, and must be sufficiently specific to make clear
to any subsequent reviewers the weight the adjudicator gave to the treating source’s medical
opinion and the reasons for that weight.’” Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376
(6th Cir. 2013) (quoting Soc. Sec. Rul. No. 96–2p, 1996 WL 374188, at *5 (July 2, 1996)).
To demonstrate “good reasons,” the ALJ must weigh certain factors (the Wilson factors) in
determining how much weight to afford a treating physician’s opinion. See Wilson, 378 F.3d at
544 (listing factors for the ALJ to consider to determine what weight is appropriate, including the
length, frequency, nature, and extent of the treatment relationship; the supportability of the
opinion; the consistency of the opinion with the record as a whole; the specialization of the
physician; and any other relevant factors). “A failure to follow the procedural requirement ‘of
identifying the reasons for discounting the opinions and for explaining precisely how those reasons
affected the weight accorded the opinions denotes a lack of substantial evidence, even where the
conclusion of the ALJ may be justified based upon the record.’” Friend v. Comm’r of Soc. Sec.,
375 F. App’x 543, 551 (6th Cir. 2010) (quoting Rogers, 486 F.3d at 243).
Under the standards above, ALJ Lombardo provided “good reasons” for her determinations
of how much weight to give to the treating physicians’ opinions, and her conclusions in light of
-9- No. 17-4247, Dugan v. Comm’r of Soc. Sec.
her analysis and weighing of the medical and opinion evidence was supported by substantial
evidence.
First, contrary to Dugan’s contention that ALJ Lombardo did not “meaningfully weigh”
Dr. White’s assessment, the ALJ did provide sufficiently specific “good reasons,” supported by
the evidence in the record, for assigning Dr. White’s assessment “little weight.” In particular, the
ALJ explained that she discounted Dr. White’s opinion because: (1) the ability to sit, stand, and
walk a total of eight hours is not inconsistent with the ability to perform substantial gainful activity;
(2) Dr. White’s assessment cited his prior records as the basis for his assessment, but his records
“document no independent signs of functional impairment and are remarkable only for the
claimant’s subjective complaints”; and (3) although Dr. White opined that Dugan suffered from
anxiety and depression, Dr. White is not a mental health professional. These are sufficiently good
reasons for assigning Dr. White’s opinion little weight. See Wilson, 378 F.3d at 544 (finding the
supportability of the opinion and consistency of the opinion with the record as a whole are factors
to be considered).
The same is true of ALJ Lombardo’s reasons for the weight given to the opinions of Drs.
Adams, Kennedy-Schleicher, and Kleinhenz. After a detailed statement of the standard to be
applied to treating physicians’ opinions and a full discussion of the reasons for the weight to be
given to the opinions of treating physicians Drs. White, Hoffman, Hutson, and Griffin, ALJ
Lombardo then discussed the opinions of Drs. Adams, Kennedy-Schleicher, and Kleinhenz,
finding that:
The record contains several other basic medical assessments purporting to establish disability on behalf of the claimant, including Dr. Adams, a Dr Kennedy Schlecher, and a Dr Heather Kleinhenz . . . . However, for the same reasons set forth above relative to the other medical opinions, specifically that they are not supported by the weight of the evidence and are based almost completely on the unquestioned
-10- No. 17-4247, Dugan v. Comm’r of Soc. Sec.
acceptance of the claimant’s subjective complaints, those assessments are, likewise, entitled to little, if any, adjudicative weight.
Although the ALJ gives less description of the opinions provided by Drs. Adams,
Kennedy-Schleicher, and Kleinhenz, her discussion regarding the opinions’ reliance on Dugan’s
subjective complaints is sufficient to meet the “good reasons” standard. See Tilley v. Comm’r of
Soc. Sec., No. 09-6081, 2010 WL 3521928, at *6 (6th Cir. Aug. 31, 2010) (indicating that, under
Blakley and Wilson, an ALJ is not required to explicitly address all of the six factors within 20
C.F.R. § 404.1527(d)(2) for weighing medical opinion evidence within the written decision);
Boseley v. Comm’r of Soc. Sec., 397 F. App’x 195, 199 (6th Cir. 2010) (“Neither the ALJ nor the
Council is required to discuss each piece of data in its opinion, so long as they consider the
evidence as a whole and reach a reasoned conclusion.”) In addition to incorporating by
reference the rationale previously discussed in the decision, ALJ Lombardo provided two clear
reasons for her conclusion that the opinions of Drs. Adams, Kennedy-Schleicher, and Kleinhenz
were entitled little weight: (1) the opinions were not supported by the weight of the evidence, as
the ALJ detailed in the previous paragraph; and (2) “they [were] based almost completely on the
unquestioned acceptance of the claimant’s subjective complaints.” These reasons are enough,
especially when viewed in tandem with the ALJ’s finding that Dugan’s statements regarding “the
intensity, persistence and limiting effects” of her symptoms lacked credibility given “the
objective evidence and clinical findings of record” and Dugan’s “history of malingering and
exaggerating her complaints without any explanation or basis.” See Smith v. Comm’r of Soc.
Sec., 482 F.3d 873, 877 (6th Cir. 2007) (indicating that ALJs may discount physicians’ opinions
based on claimant’s subjective complaints where claimant is not credible). The reasons set forth
are sufficient under the “good reasons” standard.
-11- No. 17-4247, Dugan v. Comm’r of Soc. Sec.
C. Evaluation of Manipulative Ability
In her final argument on appeal, Dugan contends that ALJ Lombardo’s finding with respect
to her manipulative ability––that she is able to perform frequent handling and fingering––is not
supported by substantial evidence. Dugan claims that, in light of the opinion of Dr. Stephen
Duritsch, she should be limited instead to occasional handling and fingering.
ALJ Lombardo’s finding regarding Dugan’s manipulative ability was supported by
substantial evidence. In making her determination, the ALJ reviewed medical evidence and
medical opinions, including those of Drs. Danopulos and Duritsch. ALJ Lombardo found that
Dugan had a history of carpal tunnel syndrome, but that it was surgically remedied, as
demonstrated by the physical examinations by Drs. Danopulos and Duritsch, who each
documented normal grip strength, as well as normal grasp, pinch, manipulation, and coordination.
Although Dr. Duritsch opined that Dugan was limited in her ability to use the upper extremities,
ALJ Lombardo determined that such a conclusion directly contradicted Dr. Duritsch’s own clinical
findings, as well as those of Dr. Danopulos––that Dugan had normal grip strength, grasp pinch,
manipulation, and coordination. ALJ Lombardo also acknowledged Dugan’s testimony that she
experiences difficulty using her hands. Ultimately, though, the ALJ found that “the objective
medical evidence demonstrates that claimant’s carpal tunnel syndrome was successfully treated
without significant residual impairment.”
Moreover, the ALJ’s decision was otherwise supported by substantial evidence. Here, ALJ
Lombardo considered Dr. Griffin’s opinion in making the RFC determination, contrary to Dugan’s
assertion. The ALJ explained that Dr. Griffin’s treatment notes of Dugan stated “severe active
synovitis in joints and wrists” during every visit, but that the note appeared to be boilerplate
documentation. Further, as ALJ Lombardo discussed, such an observation had not been made by
-12- No. 17-4247, Dugan v. Comm’r of Soc. Sec.
any other treating or examining source. ALJ Lombardo then identified five other medical opinions
that did not find severe or active synovitis. For example, Dr. Houser also indicated that Dugan
only had some reasonable limitation in the use of her hands and fingers, but that these were
“certainly not disabling.” The ALJ also pointed out that, at times when Dugan was receiving
infusion treatments for the condition, she missed treatments, did not take prescribed medication,
and was able to do activities such as driving and cleaning. Based on these findings, the ALJ
concluded that a limitation to frequent fingering and handling appropriately accounted for the
medical evidence and the well supported testimony. In light of this discussion, substantial
evidence supports the ALJ’s conclusion regarding Dugan’s manipulative ability.
IV.
For these reasons, we AFFIRM the magistrate judge’s decision.
-13-