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Rutherford v. Commissioner of Social Security

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

July 17, 2019

AUDREY JEAN RUTHERFORD, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM OPINION & ORDER

          William H. Baughman, Jr. United States Magistrate Judge.

         Introduction

         Before me[1] is an action by Audrey Jean Rutherford under 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of Social Security denying her application for supplemental security income.[2] Because the ALJ's no disability finding lacks the support of substantial evidence, this matter is reversed and remanded for further administrative proceedings consistent with this opinion.

         Issue Presented

         This case presents the following issue for review:

• State agency reviewing physicians gave residual functional capacity (“RFC”) opinions in 2015. The ALJ issued her decision on July 18, 2017. Between the time of the state agency reviewing physicians' latest opinion and the date of decision, Rutherford continued treatment, generating additional medical records that the ALJ reviewed in making her decision. Rutherford did not come forward with a treating or acceptable source opinion regarding the post-2015 medical records. The ALJ did not obtain the opinion of an acceptable source to evaluate the post-August 2015 medical records. Rather, the ALJ relied upon, and gave great weight to, the outdated state agency reviewing physicians' opinions in formulating Rutherford's RFC. Does the RFC decision lack the support of substantial evidence for want of an updated source opinion?

         Analysis

         The record contains no treating source opinion. The only acceptable source opinions in the record are those of the state agency reviewing physicians.[3] The ALJ did not obtain the opinion of an acceptable source to evaluate the post-August 2015 medical records. Nor did Rutherford come forward with such an opinion. Based on the ALJ's review of the post-August 2015 medical records, she adopted the RFC opined by the state agency reviewing physicians.

         Rutherford argues that substantial evidence does not support the RFC because the ALJ reviewed raw medical data and did not “build an accurate and logical bridge between the evidence and the result.” She cites Deskins v. Commissioner of Social Security, [4] and that case provides the analytical framework that will control here. But Deskins, as clarified by Kinzys v. Commissioner of Social Security, [5] does not establish a bright-line rule. It is not enough that the record contains medical records generated after the date of the last acceptable source opinion that the ALJ evaluates without the assistance of an acceptable medical source. Additionally, those records must evidence a worsening of the severity of the claimant's impairment and an increase of the claimant's limitations that the ALJ as a lay person cannot properly evaluate without the opinion of an acceptable source.

         Rutherford's counsel admitted at the argument that substantial evidence, based on the state agency reviewing physicians' opinions, supports the RFC as of August 16, 2015. After that date, Rutherford continued to treat with multiple physicians and other sources, primarily for pain in her upper extremities and neck. According to the charts filed with Rutherford's brief, those sources and the approximate dates of treatment are as follows:

• Dr. Ways - October 2016[6]
• Physical therapist Duber - June to September 2016[7]
• Dr. Garven - September 2016[8]
• Dr. Santiago - December ...

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