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Dabney-Marquardt v. Commissioner of Social Security

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

July 31, 2018

ROBIN A. DABNEY-MARQUARDT, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM OPINION AND ORDER

          WILLIAM H. BAUGHMAN, JR. MAGISTRATE JUDGE

         Introduction

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

         Facts

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

         Dabney-Marquardt, who was 44 years old at the time of the administrative hearing, [10]is a high school graduate with a certificate in nursing.[11] She is married and lives with her husband and mother in law.[12] Her past relevant employment history includes work as a nurse assistant.[13]

         The Administrative Law Judge (“ALJ”), whose decision became the final decision of the Commissioner, found that Dabeny-Marquardt had severe impairments consisting of: obesity; diabetes mellitus; peripheral neuropathy; degenerative disc disease of the lumbar spine; chronic kidney disease; obstructive sleep apnea; anemia; absence seizures; and orthostatic hypertension.[14] The ALJ made the following finding regarding Dabney-Marquardt's residual functional capacity:

After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) except she must have an option to shift between sitting and standing for five minutes every hour and must use a can[e] when standing or walking. She can occasionally climb stairs and ramps but cannot climb ladders, ropes, or scaffolds. She can occasionally balance, stoop, and crouch but cannot kneel or crawl. She can reach in all directions, handle, finger, and feel.[15]

         The ALJ decided that this residual functional capacity precluded Dabney-Marquardt from performing her past relevant work.[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 Dabney-Marquardt could perform.[17] The ALJ, therefore, found Dabney-Marquardt not under a disability.[18]

         B. Issues on judicial review

         Dabney-Marquardt 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, Dabney-Marquardt presents the following issues for judicial review:

• The ALJ found at Step Four and Five that the plaintiff had the residual functional capacity for sedentary work. This finding is unsupported by substantial evidence because the ALJ failed to afford controlling weight to the evaluation of Dr. Kumar, a treating physician, and failed to provide specific reasons for the weight assigned that evaluation; the ALJ failed to include in the finding limitations cause by plaintiff's balance disorder, absence seizures, and dizziness.
• The ALJ found at Step Four and Five that the plaintiff had the residual functional capacity for sedentary work. This finding is unsupported by substantial evidence because the ALJ failed to consider the effects of plaintiff's obesity under Social Security Ruling 02-1p and the ALJ failed to include plaintiff's absenteeism.[19]

         For the reasons that follow, I will conclude that the ALJ's finding of no disability is supported by substantial evidence and, therefore, must be affirmed.

         Analysis

         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 regulatory requirement 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). 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).[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 20 C.F.R. §§ 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]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.[53] 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.[54] 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[55] or that objective medical evidence does not support that opinion.[56]

         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.[57] The ...


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