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Dove v. Commissioner of Social Security

United States District Court, N.D. Ohio, Eastern Division

July 24, 2018

DOUGLAS R. DOVE, Plaintiff,


          William H. Baughman, Jr. United States Magistrate Judge


         Before me[1] is an action for judicial review of the final decision of the Commissioner of Social Security denying the applications of the plaintiff, Douglas R. Dove, for supplemental security income and disability insurance benefits.[2] The Commissioner has answered[3] and filed the transcript of the administrative record.[4] Under my initial[5] and procedural[6] orders, the parties have briefed their positions[7] and filed supplemental charts[8] and the fact sheet.[9] They have participated in a telephonic oral argument.[10]


         A. Background facts and decision of the Administrative Law Judge (“ALJ”)

         Dove, who was 54 years old at the time of the administrative hearing, [11] graduated high school and has an associate's degree in medical assisting.[12] His past relevant employment history includes work as a phlebotomist, an emergency medical technician, a molding machine operator, a material handler, and a robotic welder.[13]

         The Administrative Law Judge (“ALJ”), whose decision became the final decision of the Commissioner, found that Dove had severe impairments consisting of “status-post remote lumbar microdiscectomy times three, with degenerative changes and multilevel foraminal narrowing; cervical degenerative disc disease; status-post distal bicep tendon rupture and repair in 2013, with resulting issues involving the lateral antebrachial cutaneous nerve; obesity; and headaches (20 CFR 404.1520(c) and 416.920(c)).”[14]

         The ALJ made the following finding regarding Dove's residual functional capacity:

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) and 416.967(b) in that the claimant can lift, carry, push, and pull 20 pounds occasionally and 10 pounds frequently. He can sit for six hours out of an eight hour workday and can stand and/or walk for four hours out of an eight hour workday. He must have the ability to alternate between sitting and standing every 30 minutes, at his option, for one to two minutes, so long as he is not off-task or has to leave the vicinity of the workstation. The claimant cannot move his head to the extreme ranges of motion, but can move his torso to accommodate. He can never climb ladders, ropes, or scaffolds, or crawl, and can occasionally crouch and stoop, and frequently climb ladders and stairs. He can frequently handle and feel with the dominant right upper extremity. He cannot work in an environment with more than loud exposure as defined by the DOT. The claimant cannot perform direct public service work, but can be in the vicinity of the general public on a frequent basis. He can have frequent contact with coworkers but no team or tandem tasks.[15]

         The ALJ decided that this residual functional capacity precluded Dove from performing his past relevant work as a phlebotomist, an EMT, a molding machine operator, a material handler, and a robotic welder.[16]

         Based on an answer to a hypothetical question posed to the vocational expert (“VE”) at the hearing setting forth the residual functional capacity finding quoted above, the ALJ determined that a significant number of jobs existed nationally that Dove could perform.[17]The ALJ, therefore, found Dove not under a disability.[18]

         B. Issues on judicial review

         Dove 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, Dove presents the following issues for judicial review:

• The ALJ did not meet her burden at Step Five of the Sequential Evaluation.
• The ALJ failed to state valid reasons for not incorporating the totality of the opinion of treating source Seema Apuri, M.D.
• The ALJ did not properly evaluate Dove's subjective symptoms.[19]

         The Court concludes that the ALJ's finding of no disability is supported by substantial evidence and, therefore, must be affirmed.


         A. Applicable legal principles

         1. 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. 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.[20]

         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.[21] The court may not disturb the Commissioner's findings, even if the preponderance of the evidence favors the claimant.[22]

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

         2. The treating source rule

         The regulations of the Social Security Administration require the Commissioner to give more weight to opinions of treating sources than to those of non-treating sources under appropriate circumstances.

Generally, we give more weight to opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations.[23]

         If such opinions are “well-supported by medically acceptable clinical and laboratory diagnostic techniques” and “not inconsistent with the other substantial evidence in [the] case record, ” then they must receive “controlling” weight.[24]

         The ALJ has the ultimate responsibility for determining whether a claimant is disabled.[25] Conclusory statements by the treating source that the claimant is disabled are not entitled to deference under the regulation.[26]

         The regulation does cover treating source opinions as to a claimant's exertional limitations and work-related capacity in light of those limitations.[27] Although the treating source's report need not contain all the supporting evidence to warrant the assignment of controlling weight to it, [28] nevertheless, it must be “well-supported by medically acceptable clinical and laboratory diagnostic techniques” to receive such weight.[29] In deciding if such supporting evidence exists, the Court will review the administrative record as a whole and may rely on evidence not cited by the ALJ.[30]

         In Wilson v. Commissioner of Social Security, [31] the Sixth Circuit discussed the treating source rule in the regulations with particular emphasis on the requirement that the agency “give good reasons” for not affording controlling weight to a treating physician's opinion in the context of a disability determination.[32] The court noted that the regulation expressly contains a “good reasons” requirement.[33] The court stated that to meet this obligation to give good reasons for discounting a treating source's opinion, the ALJ must do the following:

• State that the opinion is not supported by medically acceptable clinical and laboratory techniques or is inconsistent with other evidence in the case record.
• Identify evidence supporting such finding.
• Explain the application of the factors listed in 20 C.F.R. § 404.1527(c)(2) to determine the weight that should be given to the treating source's opinion.[34]

         The court went on to hold that the failure to articulate good reasons for discounting the treating source's opinion is not harmless error.[35] It drew a distinction between a regulation that bestows procedural benefits upon a party and one promulgated for the orderly transaction of the agency's business.[36] The former confers a substantial, procedural right on the party invoking it that cannot be set aside for harmless error.[37] It concluded that the requirement in § 1527(c)(2) for articulation of good reasons for not giving controlling weight to a treating physician's opinion created a substantial right exempt from the harmless error rule.[38]

         The Sixth Circuit in Gayheart v. Commissioner of Social Security[39] recently emphasized that the regulations require two distinct analyses, applying two separate standards, in assessing the opinions of treating sources.[40] This does not represent a new interpretation of the treating physician rule. Rather, it reinforces and underscores what that court had previously said in cases such as Rogers v. Commissioner of Social Security, [41]Blakley v. Commissioner of Social Security, [42] and Hensley v. Astrue.[43]

         As explained in Gayheart, the ALJ must first consider if the treating source's opinion should receive controlling weight.[44] The opinion must receive controlling weight if (1) well-supported by clinical and laboratory diagnostic techniques and (2) not inconsistent with other substantial evidence in the administrative record.[45] These factors are expressly set out in 20 C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2). Only if the ALJ decides not to give the treating source's opinion controlling weight will the analysis proceed to what weight the opinion should receive based on the factors set forth in 20 C.F.R. §§ 404.1527(c)(2)(i)-(ii), (3)-(6) and §§ 416.927(c)(2)(i)-(ii), (3)-(6).[46] The treating source's non-controlling status notwithstanding, “there remains a presumption, albeit a rebuttable one, that the treating physician is entitled to great deference.”[47]

         The court in Gayheart cautioned against collapsing these two distinct analyses into one.[48] The ALJ in Gayheart made no finding as to controlling weight and did not apply the standards for controlling weight set out in the regulation.[49] Rather, the ALJ merely assigned the opinion of the treating physician little weight and explained that finding by the secondary criteria set out in §§ 404.1527(c)(2)(i)-(ii), (3)-(6) of the regulations, [50] specifically the frequency of the psychiatrist's treatment of the claimant and internal inconsistencies between the opinions and the treatment reports.[51] The court concluded that the ALJ failed to provide “good reasons” for not giving the treating source's opinion controlling weight.[52]

But the ALJ did not provide “good reasons” for why Dr. Onady's opinions fail to meet either prong of this test.
To be sure, the ALJ discusses the frequency and nature of Dr. Onady's treatment relationship with Gayheart, as well as alleged internal inconsistencies between the doctor's opinions and portions of her reports. But these factors are properly applied only after the ALJ has determined that a treating-source opinion will not be given controlling weight.[53]

         In a nutshell, the Wilson/Gayheart line of cases interpreting the Commissioner's regulations recognizes a rebuttable presumption that a treating source's opinion should receive controlling weight.[54] The ALJ must assign specific weight to the opinion of each treating source and, if the weight assigned is not controlling, then give good reasons for not giving those opinions controlling weight.[55] In articulating good reasons for assigning weight other than controlling, the ALJ must do more than state that the opinion of the treating physician disagrees with the opinion of a non-treating physician[56] or that objective medical evidence does not support that opinion.[57]

         The failure of an ALJ to follow the procedural rules for assigning weight to the opinions of treating sources and the giving of good reason for the weight assigned denotes a lack of substantial evidence even if the decision of the ALJ may be justified based on the record.[58] The Commissioner's post hoc arguments on judicial review are immaterial.[59]

         Given the significant implications of a failure to properly articulate (i.e., remand) mandated by the Wilson decision, an ALJ should structure the decision to remove any doubt as to the weight given the treating source's opinion and the reasons for assigning such weight. In a single paragraph the ALJ should state what weight he or she assigns to the treating source's opinion and then discuss the evidence of record supporting that assignment. Where the treating source's opinion does not receive controlling weight, the decision must justify the assignment given in light of the factors set out in §§ 404.1527(c)(2)(i)-(ii), (3)-(6). The Sixth Circuit has identified certain breaches of the Wilson rules as grounds for reversal and remand:

• the failure to mention and consider the opinion of a treating source, [60]
• the rejection or discounting of the weight of a treating source without assigning weight, [61]
• the failure to explain how the opinion of a source properly considered as a treating source is weighed (i.e., treating v. examining), [62]
• the elevation of the opinion of a nonexamining source over that of a treating source if the nonexamining source has not reviewed the opinion of the treating source, [63]
• the rejection of the opinion of a treating source because it conflicts with the opinion of another medical source without an explanation of the reason therefor, [64] and
• the rejection of the opinion of a treating source for inconsistency with other evidence in the record without an explanation of why “the treating physician's conclusion gets the short end of the stick.”

          The Sixth Circuit in Blakley[65] expressed skepticism as to the Commissioner's argument that the error should be viewed as harmless since substantial evidence exists to support the ultimate finding.[66] Specifically, Blakley concluded that “even if we were to agree that substantial evidence supports the ALJ's weighing of each of these doctors' opinions, substantial evidence alone does not excuse non-compliance with 20 C.F.R. § 404.1527(c)(2) as harmless error.”[67]

         In Cole v. Astrue, [68] the Sixth Circuit reemphasized that harmless error sufficient to excuse the breach of the treating source rule only exists if the opinion it issues is so patently deficient as to make it incredible, if the Commissioner implicitly adopts the source's opinion or makes findings consistent with it, or if the goal of the treating source regulation is satisfied despite non-compliance.[69]

         3. Subjective ...

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