Huff v. Commissioner of Social Security, No. 3:2018cv00057 - Document 19 (S.D. Ohio 2019)
Court Description: DECISION AND ENTRY: (1) REVERSING THE ALJS NON-DISABILITY FINDING AS UNSUPPORTED BY SUBSTANTIAL EVIDENCE; (2) REMANDING THIS CASE UNDER THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR FURTHER PROCEEDINGS; AND (3) TERMINATING THIS CASE ON THE COURTS DOCKET. Signed by Magistrate Judge Michael J. Newman on 4/9/19. (kma)
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Huff v. Commissioner of Social Security Doc. 19 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON MICHELLE L. HUFF, Plaintiff, Case No. 3:18-cv-57 vs. COMMISSIONER OF SOCIAL SECURITY, Magistrate Judge Michael J. Newman (Consent Case) Defendant. ______________________________________________________________________________ DECISION AND ENTRY: (1) REVERSING THE ALJ’S NON-DISABILITY FINDING AS UNSUPPORTED BY SUBSTANTIAL EVIDENCE; (2) REMANDING THIS CASE UNDER THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR FURTHER PROCEEDINGS; AND (3) TERMINATING THIS CASE ON THE COURT’S DOCKET ______________________________________________________________________________ This Social Security disability benefits appeal is before the undersigned for disposition based upon the parties’ consent. Doc. 10, 11. At issue is whether the Administrative Law Judge (“ALJ”) erred in finding Plaintiff not “disabled” and therefore unentitled to Supplemental Security Income (“SSI”). This case is before the Court on Plaintiff’s Statement of Errors (doc. 12), the Commissioner’s memorandum in opposition (doc. 15), Plaintiff’s reply (doc. 16), the administrative record (doc. 7), 1 and the record as a whole. I. A. Procedural History Plaintiff filed for SSI alleging a disability onset date of June 30, 2009. PageID 56. Plaintiff claims disability as a result of a number of alleged impairments including, inter alia, degenerative disc disease, depression, and anxiety. PageID 41. 1 Hereafter, citations to the electronically-filed administrative record will refer only to the PageID number. 1 Dockets.Justia.com After an initial denial of her application, Plaintiff received a hearing before ALJ Mark Hockensmith on August 10, 2016. PageID 98-122. The ALJ issued a written decision on November 1, 2016 finding Plaintiff not disabled. PageID 39-51. Specifically, the ALJ found at Step Five that, based upon Plaintiff’s residual functional capacity (“RFC”) to perform a reduced range of light work, 2 “there are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform[.]” PageID 43-51. 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 29-31. 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 Plaintiff’s Statement of Errors (doc. 12) and the Commissioner’s memorandum in opposition (doc. 15). The undersigned incorporates the foregoing and sets forth the facts relevant to this appeal herein. II. A. Standard of Review The Court’s inquiry on a Social Security appeal is to determine (1) whether the ALJ’s nondisability 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 2 Light work “involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds” and “requires a good deal of walking or standing, or . . . sitting most of the time with some pushing and pulling of arm or leg controls.” 20 C.F.R. § 416.967(b). An individual who can perform light work is presumed also able to perform sedentary work. Id. 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. § 416.967(a). 2 (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. § 416.920(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: 3 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. § 416.920(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 her Statement of Errors, Plaintiff argues that the ALJ erred in (1) weighing the opinion of her treating physician, Matthew Noordsij-Jones, M.D.; (2) weighing the opinion of her treating mental health nurse; and (3) weighing the opinion of the state agency’s consulting examiners. PageID 1148. Finding error in the ALJ’s assessment of Dr. Noordsij-Jones’s opinion, the undersigned would direct that the ALJ consider Plaintiff’s remaining arguments on remand. Under the regulations in effect prior to March 27, 2017, 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. § 416.927(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 4 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 opinions, consistency of the opinions 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. § 416.927(c). 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. “The 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)). Plaintiff’s treating physician, Matthew Noordsij-Jones, M.D., issued an opinion on August 5, 2016. PageID 1128. Based on a diagnosis of “chronic low back pain with severe radiculopathy symptoms” and “severe anxiety and depression,” Dr. Noordsij-Jones opined that Plaintiff can stand for 15 minutes at one time, sit for 30 minutes at one time, and work for only one hour per day. Id. He found that Plaintiff could never bend or stoop and could only occasionally balance. Id. Ultimately, Dr. Noordsij-Jones concluded that Plaintiff could not perform full-time competitive work on a sustained basis without missing work more than two times a month or being off task more than 15% of the workday. PageID 1129. The ALJ afforded Dr. Noordsij-Jones opinion “little weight,” dismissing it as an opinion with “several extreme limitations that are not supported by the record.” PageID 48. Despite 5 acknowledging Dr. Noordsij-Jones’s status as a treating physician, the ALJ erred by failing to specifically set forth the relevant controlling weight analysis. Such a failure is reversible error because “it deprives the Court of the opportunity to meaningfully 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). Rather, the ALJ omitted the first step of the controlling weight test, and instead analyzed the “[s]upportability” factor found at 20 C.F.R. § 416.927(c)(3) (“The more a medical source presents relevant evidence to support a medical opinion, particularly medical signs and laboratory findings, the more weight we will give that medical opinion”). As noted by the Court on numerous occasions, the “supportability” factor set forth in 20 C.F.R. § 416.927(c)(3) is not part of the controlling weight analysis. Lutz v. Comm’r of Soc. Sec., No. 3:16-CV-210, 2017 WL 3140878, at *3 (S.D. Ohio July 25, 2017), report and recommendation adopted, No. 3:16-CV-210, 2017 WL 3432725 (S.D. Ohio Aug. 9, 2017); Dunham v. Comm’r of Soc. Sec., No. 3:16-CV-414, 2017 WL 4769010, at *4 (S.D. Ohio Oct. 20, 2017), report and recommendation adopted sub nom. Dunham v. Berryhill, No. 3:16-CV-414, 2018 WL 502715 (S.D. Ohio Jan. 22, 2018); Caraway v. Comm’r of Soc. Sec., No. 3:16-CV-138, 2017 WL 3224665, at *4 (S.D. Ohio July 31, 2017), report and recommendation adopted sub nom. Caraway v. Berryhill, No. 3:16-CV-138, 2017 WL 3581097 (S.D. Ohio Aug. 17, 2017); Hall v. Comm’r of Soc. Sec., No. 3:17-CV-345, 2018 WL 3386311, at *4 (S.D. Ohio July 12, 2018), report and recommendation adopted, No. 3:17-CV-345, 2018 WL 3636590 (S.D. Ohio July 31, 2018); Wolder v. Comm’r of Soc. Sec., No. 3:16-CV-00331, 2017 WL 2544087, at *4 (S.D. Ohio June 13, 2017), report and recommendation adopted, No. 3:16-CV-331, 2017 WL 2819882 (S.D. Ohio June 28, 2017); Warren v. Comm’r of Soc. Sec., No. 3:16-CV-00099, 2017 WL 480405, at *4 (S.D. Ohio Feb. 6, 2017), report and recommendation 6 adopted, No. 3:16-CV-99, 2017 WL 1019508 (S.D. Ohio Mar. 14, 2017); Klein v. Comm’r of Soc. Sec., No. 3:14-CV-78, 2015 WL 4550786, at *6 (S.D. Ohio Mar. 24, 2015). Instead, the supportability factor under 20 C.F.R. § 416.927(c)(3) “is one applied after the ALJ decides to ‘not give the treating source’s medical opinion controlling weight.’” Lutz, No. 3:16-CV-210, 2017 WL 3140878, at *3; see also 20 C.F.R. § 416.927(c)(2) (stating that the supportability factor in paragraph (c)(3) is applied when the ALJ does “not give the treating source’s medical opinion controlling weight”); see also Gayheart, 710 F.3d at 376 (noting that this factor is “properly applied only after the ALJ has determined that a treating-source opinion will not be given controlling weight”). Even if the ALJ were properly assessing the supportability factor, the ALJ nevertheless erred. Specifically, the ALJ found Dr. Noordsij-Jones’s disability opinion unsupported because other medical evidence of record suggests “that the claimant ambulates with a normal gait, has full muscle strength, and does generally not appear to be in acute distress.” PageID 48. The medical records the ALJ cited, however, do not constitute substantial evidence. As a preliminary matter, two of the citations contradict the ALJ’s assertion and actually document “gait disturbance.” Id. (citing PageID 301). The other records the ALJ cited highlight a diagnosis of a herniated disc that prompted emergency back surgery. Id. (citing PageID 370). The remaining records cited by the ALJ were medical records generated from hospital visits where Plaintiff was seeking treatment for ailments unrelated to this Social Security claim. See e.g., PageID 483 (chief complaint: “flu-like symptoms”), 815 (chief complaint: “right eye problem”), 825 (chief complaint: “facial swelling”), 831 (chief complaint: “shoulder injury”), 839 (chief complaint: nasal congestion and cough), 997 (chief complaint: “intractable nausea and vomiting”). Where Plaintiff was seeking treatment for her degenerative disc disease (one of the medical impairments here at issue), medical records consistently demonstrate abnormal clinical findings supportive of Dr. Noordsij-Jones’s opinion. 7 See e.g., PageID 307, 312, 345, 350, 486, 1014, 1019, 1026 (noting reduced strength flexion and extension, pain with straight leg raising, joint swelling, numbness in extremities, and lumbar spine tenderness). The ALJ’s election -- to focus exclusively on the normal portions of Plaintiff’s medical records -- was also error. Hawthorne v. Comm’r of Soc. Sec., No. 3:13–cv–179, 2014 WL 1668477, at *11 (S.D. Ohio Apr. 25, 2014) (citing Loza v. Apfel, 219 F.3d 378, 393 (5th Cir.2000)). Having failed to properly conduct a controlling weight analysis of Dr. Noordsij-Jones’s opinion, the non-disability finding by the ALJ here at issue must be reversed. 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 the 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. For the foregoing reasons, IT IS ORDERED THAT: (1) the Commissioner’s nondisability finding is unsupported by substantial evidence, and REVERSED; (2) this matter is REMANDED to the Commissioner under the Fourth Sentence of 42 U.S.C. § 405(g) for proceedings consistent with this opinion; and (3) this case is TERMINATED on the docket. IT IS SO ORDERED. 8 Date: /s Michael Newman Michael J. Newman United States Magistrate Judge April 9, 2019 9
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