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Osborne v. Colvin

United States District Court, N.D. Ohio

March 6, 2017

WILLIAM F. OSBORNE, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION & ORDER [RESOLVING DOCS. 15, 17, 21]

          JAMES S. GWIN UNITED STATES DISTRICT JUDGE.

         I. Introduction

         Plaintiff William Osborne challenges the denial of his application for Period of Disability (“POD”), Disability Insurance Benefits (“DIB”), and Supplemental Security Income (“SSI”).[1]Magistrate Judge Jonathan D. Greenberg recommends affirming the Administrative Law Judge's (“ALJ”) denial of benefits.[2] For the reasons stated below, this Court GRANTS IN PART the Plaintiff's objections, REVERSES the ALJ's decision, and REMANDS the ALJ's decision for further proceedings consistent with this order.

         II. Background

         At its core, this case deals with whether ALJ Edmund Round properly followed a remand order when he concluded that Plaintiff Osborne was not disabled from April 30, 2003 through March 27, 2011.[3]

         On March 27, 2008, Osborne filed applications for POD, DIB, and SSI, alleging a disability onset date of April 30, 2003. Plaintiff claimed he was disabled due to grand mal seizures, liver and pancreas damage, epilepsy, lower back pain, depression, anxiety, and short term memory loss.[4]

         ALJ Kurt Ehrman denied Osborne's applications, [5] so he appealed the decision to the Northern District of Ohio.[6] On September 17, 2013, Magistrate Judge Kathleen Burke reversed and remanded ALJ Ehrman's decision.[7]

         On remand, a new ALJ, Edmund Round, denied Osborne benefits. ALJ Round concluded that Osborne was not disabled from April 30, 2003 through March 27, 2011.[8] Osborne challenged ALJ Round's decision in this Court on October 30, 2015.[9]

         On October 20, 2016, Magistrate Judge Jonathan Greenberg recommended affirming ALJ Round's denial of benefits.[10] On December 14, 2016, Plaintiff Osborne filed four objections to the report and recommendation (“R&R”).[11] This Court reviews Osborne's objections de novo.[12]

         III. Legal Standard

         In reviewing an ALJ's disability determination under the Social Security Act, a district court reviews whether the ALJ's decision is “supported by substantial evidence and [is] made pursuant to proper legal standards.”[13] Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”[14]

         A district court is limited in what it can review. Specifically, a district court should not try to resolve “conflicts in evidence or decide questions of credibility.”[15] A district court also may not reverse an ALJ's decision when substantial evidence supports it, even if the court would have made a different decision.[16] District courts review decisions of administrative agencies for harmless error.[17]

         Substantial evidence is more than a scintilla of evidence, but less than a preponderance.[18]This Court cannot reverse the ALJ's decision, even if substantial evidence exists in the record that would have supported an opposite conclusion, so long as substantial evidence supports the ALJ's conclusion.[19]

         IV. Discussion

         Plaintiff Osborne objects to Magistrate Greenberg's R&R. Osborne says that ALJ Round violated Magistrate Burke's remand instruction. Osborne says that Magistrate Buke asked ALJ Round to better explain how Osborne could still work despite his limitations and Round failed to do so.[20] Osborne also argues that ALJ Round improperly evaluated the opinions of three doctors who examined him-Drs. Ahan, Korick, and Zeck. The Court examines these objections in turn.

         A. ALJ Round violated Magistrate Burke's remand instruction

         Plaintiff says that, on remand, ALJ Round failed to follow Magistrate Burke's remand instruction to address Osborne's residual functional capacity (“RFC”).[21]

         In disability cases, a claimant's RFC is his ability to do physical and mental work activities on a sustained basis despite limitations from his impairments.[22] The RFC is important because an ALJ uses it to determine whether a claimant can participate in the workforce or is disabled.[23] An ALJ relies on medical testimony to determine a claimant's RFC.

         In his original decision, ALJ Ehrman found that Osborne was moderately limited in concentration, persistence, and pace.[24] Ehrman did not, however, sufficiently explain this finding when he determined Osborne's RFC. In effect, Ehrman failed to explain why Plaintiff could still work despite these limitations in concentration, persistence, and pace. Therefore, on remand, Magistrate Burke instructed that:

[T]he ALJ should provide further explanation as to how he accounted in the RFC for his findings of moderate limitations in concentration, persistence and pace, or alternatively, explain why additional restrictions beyond simple, routine, and repetitive tasks and occasional supervision were not necessary.[25]

         On remand, ALJ Round also concluded that the Plaintiff has moderate difficulties with concentration, persistence, and pace.[26] Plaintiff Osborne says that ALJ Round made the same mistake as ALJ Ehrman-Round failed to sufficiently account for Osborne's moderate limitations in concentration, persistence, and pace when Round crafted Osborne's RFC.[27]

         “[O]n the remand of a case after appeal, it is the duty of the . . . agency from which appeal is taken, to comply with the mandate of the court and to obey the directions therein without variation and without departing from such directions.”[28] “Deviation from the court's remand order in subsequent administrative proceedings is itself legal error, subject to reversal on further judicial review.”[29] “[T]he administrative law judge may not do anything expressly or impliedly in contradiction to the district court's remand order.”[30] However, “[t]hese cases do not preclude the ALJ from acting in ways that go beyond, but are not inconsistent with, the district court's opinion.”[31]

         ALJ Round failed to comply with Magistrate Burke's remand order. ALJ Round never explained “how he accounted in RFC for his findings of moderate limitations in concentration, persistence and pace.”[32] ALJ Round and ALJ Ehrman's decisions each suffer the same hole: neither establishes how their respective RFCs account for Osbourne's limited concentration, persistence and pace. Each decision lists medical professionals' findings regarding Osborne's concentration, persistence, and pace, but neither decision uses those findings to explicitly account for concentration, persistence, and pace in its RFC recommendation.[33]

         This error is not harmless.

         On one hand, the error seems formalistic. In his original decision, ALJ Ehrman wrote “Thus, the RFC accounts for the claimant's limitation with focusing and concentrating by requiring occasional supervision.”[34] Perhaps Ehrman could have avoided Magistrate Burke's original remand if he had added persistence and pace to that sentence as well as a few lines of analysis. Likewise, ALJ Round's decision would probably have complied with the remand if he spent a few sentences explicitly connecting the medical professionals' findings on Osborne's concentration, persistence, and pace with his RFC recommendation.

         On the other hand, thorough consideration of Plaintiff Osborne's concentration, persistence, and pace capabilities could be outcome determinative. The extensive record indicates that this is a close case.[35] After connecting Osborne's concentration, persistence, and pace limitations to his RFC, an ALJ could conclude that Osborne could not work from April 30, 2003 through March 27, 2011.

         Therefore, this Court remands this case back to the ALJ with the same instructions Magistrate Burke gave: The ALJ should provide further explanation as to how he accounted in the RFC for his findings of moderate limitations in concentration, persistence and pace, or alternatively, explain why additional restrictions beyond simple, routine, and repetitive tasks and occasional supervision were not necessary.

         B. ALJ Round stated “good reasons” for discounting Dr. Ahn's opinion

         Plaintiff Osborne argues that ALJ Round failed to give good reasons for discounting the opinion of Dr. Ahn, Osborne's treating psychiatrist, when Round decided that Osborne was not disabled.[36] Dr. Ahn had stated that Osborne was “markedly” limited in interacting appropriately with others, keeping a regular work schedule, performing work activities at a reasonable pace, and maintaining attention for two-hour periods of time.[37] This Court, however, agrees with Magistrate Judge Greenberg: ALJ Round supported his decision to discount Dr. Ahn's opinion with “good reasons.”

         Under the treating physician rule, “treating source opinions must be given ‘controlling weight' if two conditions are met: (1) the opinion ‘is well-supported by medically acceptable clinical and laboratory diagnostic techniques'; and (2) the opinion ‘is not inconsistent with the other substantial evidence in [the] case record.'”[38]

         An ALJ can give a treating source's opinion less than controlling weight, however, if he gives “good reasons” for doing so. “Good reasons” are reasons that are sufficiently specific to make clear to any subsequent reviewers the weight given to the treating physician's opinion and the reasons for that weight.[39]

         In deciding the weight give to a treating physician's opinion, the ALJ must consider factors such as (1) the length of the treatment relationship and the frequency of the examination, (2) the nature and extent of the treatment relationship, (3) the supportability of the opinion, (4) the consistency of the opinion with the record as whole, (5) the specialization of the source, and (6) any other factors that tend to support or contradict the opinion.[40] An ALJ is not required to provide “an exhaustive factor-by-factor analysis.”[41]

         ALJ Round's stated reasons for discounting Dr. Ahn's opinion constitute “good reasons.” Round noted that Dr. Ahn had only treated Osborne for four months when Dr. Ahn made the diagnoses in question.[42] Furthermore, Round discounted Dr. Ahn's findings because they were “not supported by Dr. Ahn's subsequent treatment notes which establish that the claimant was ...


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