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Patricia Kuntz v. Commissioner of Social Security

November 14, 2011


The opinion of the court was delivered by: William H. Baughman, Jr. Magistrate Judge



This is an action for judicial review of the final decision of the Commissioner of Social Security denying the application of the plaintiff, Patricia Kuntz, for disability insurance benefits.*fn1 The parties have consented to magistrate judge's jurisdiction.*fn2

This case essentially turns on the related issues of whether the Administrative Law Judge (ALJ) failed to assign sufficient weight to the residual functional capacity (RFC) opinion of a treating physician, and then failed to adequately articulate the reasons for that decision. Because, as will be stated below, I will conclude that the ALJ in this case did not comply with the applicable regulations on these points, as understood by the Sixth Circuit, I will find that the Commissioner's decision is not supported by substantial evidence and that the matter must be remanded.


The essential facts are straightforward. The ALJ found that Kuntz had severe impairments consisting of neuropathy of the right upper extremity, chronic headaches, and depression.*fn3 Based on these impairments, the ALJ made the following finding regarding Kuntz's RFC:

After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b). Specifically, the claimant can lift, carry, push and pull up to 20 pounds occasionally, 10 pounds frequently, stand for 4 hours in an 8 hour workday, walk for 4 hours in an 8 hour workday, and sit for 6 hours in an 8 hour workday. However, the claimant's impairments are such that she is unable to perform work that requires more than frequent handling on the right dominant side, nor that which requires more than occasional reaching with her right dominant arm above shoulder level. The claimant is unable to perform work that requires any climbing of ladders, ropes or scaffolds. Finally, as a result of the side effects of some of her medications, the claimant would be off task 5% of the time during the workday.*fn4 The ALJ decided that this RFC precluded Kuntz from performing her past relevant work as a sales associate, department manager, and an assistant manager.*fn5

Following an answer to a hypothetical question posed to the vocational expert at the hearing setting forth the residual functional capacity finding quoted above, the ALJ determined that a significant number of jobs existed locally and nationally that Kuntz could perform.*fn6 The ALJ, therefore, found Kuntz not under a disability.*fn7

Kuntz asks for reversal of the Commissioner's decision on the ground that it does not have the support of substantial evidence in the administrative record. Specifically, as noted, Kuntz argues first that the ALJ improperly assigned "little weight" to the 2008 RFC opinion of Eugene Pogorelic, D.O., a treating physician.*fn8 Kuntz maintains that Dr. Pogorelic's RFC analysis was significantly more limited than that ultimately adopted by the ALJ and that the ALJ had no basis for discounting the opinion of a treating source in favor of the opinions of two state agency reviewing physicians.*fn9 In addition, Kuntz asserts that the ALJ failed to conduct a proper pain and credibility analysis as required by the regulations and relevant case law.*fn10


A. Standard of review -- substantial evidence

The Sixth Circuit in Buxton v. Halter reemphasized the standard of review applicable to decisions of the ALJs in disability cases:

Congress has provided for federal court review of Social Security administrative decisions. 42 U.S.C. § 405(g). However, the scope of review is limited under 42 U.S.C. § 405(g): "The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive...." In other words, on review of the Commissioner's decision that claimant is not totally disabled within the meaning of the Social Security Act, the only issue reviewable by this court is whether the decision is supported by substantial evidence. Substantial evidence is " 'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' "

The findings of the Commissioner are not subject to reversal merely because there exists in the record substantial evidence to support a different conclusion. This is so because there is a "zone of choice" within which the Commissioner can act, without the fear of court interference.*fn11

Viewed in the context of a jury trial, all that is necessary to affirm is that reasonable minds could reach different conclusions on the evidence. If such is the case, the Commissioner survives "a directed verdict" and wins.*fn12 The court may not disturb the Commissioner's findings, even if the preponderance of the evidence favors the claimant.*fn13

I will review the findings of the ALJ at issue here consistent with that ...

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