# Frost v. Commissioner of Social Security

> District Court, S.D. Ohio · September 30, 2019

URL: https://www.frixlaw.com/law-library/cases/10374002

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** September 30, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

DWANNA FROST, :
Plaintiff, : Case No. 3:18-cv-70
vs, : JUDGE WALTER H. RICE
COMMISSIONER OF SOCIAL SECURITY, :
Defendant. :

DECISION AND ENTRY REJECTING REPORT AND RECOMMENDATIONS
OF UNITED STATES MAGISTRATE JUDGE (DOC. #12); SUSTAINING
DEFENDANT’S OBJECTIONS THERETO (DOC. #17); RECOMMITTING
MATTER TO UNITED STATES MAGISTRATE JUDGE FOR INITIAL
DETERMINATION ON PLAINTIFF’S FIRST STATEMENT OF ERROR

Plaintiff has brought this action pursuant to 42 U.S.C. § 405(g) to review a
decision of the Defendant Commissioner denying Plaintiff's application for Social
Security disability benefits. On December 18, 2018, the United States Magistrate
Judge filed a Report and Recommendations (Doc. #12), recommending that the
Commissioner’s non-disability finding be deemed unsupported by substantial
evidence and reversed, and that this matter be remanded to the Commissioner under
the Fourth Sentence of 42 U.S.C. 8 405(g) for an immediate award of benefits.
The Commissioner has filed Objections to the Report and Recommendations (Doc.

#17). For the reasons set forth below, the Court sustains those Objections and
recommits the matter to the Magistrate Judge for further proceedings.
In reviewing the Commissioner’s decision, the Magistrate Judge's task is to
determine if that decision is supported by "substantial evidence." 42 U.S.C.
§ 405(g). Under 28 U.S.C. § 636(b)(1)(C), this Court, upon objections being made
to the Magistrate Judge’s Report and Recommendations, is required to make a de
novo review of those portions of the report to which proper objections have been
made. This de novo review, in turn, requires this Court to re-examine all the
relevant evidence previously reviewed by the Magistrate Judge to determine
whether the findings “are supported by substantial evidence.” Va/ley v. Comm’r of
Soc. Sec., 427 F.3d 388, 390 (6th Cir. 2005).
This Court’s sole function is to determine whether the record as a whole
contains substantial evidence to support the Commissioner’s decision. The
Commissioner’s findings must be affirmed if they are supported by “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)
(quoting Conso/. Edison Co. v. N.L.A.B., 305 U.S. 197, 229, 59 S.Ct. 206, 83
L.Ed.2d 126 (1938). “Substantial evidence means more than a mere scintilla, but
only so much as would be required to prevent a directed verdict.” Foster v.
Bowen, 853 F.2d 483, 486 (6th Cir. 1988). To be substantial, the evidence “must
do more than create a suspicion of the existence of the fact to be established. .. .

[I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict
when the conclusion sought to be drawn from it is one of fact for the jury.”
LeMaster v. Sec’y of Health & Human Servs., 802 F.2d 839, 840 (6th Cir. 1986)
(quoting N.L.A.B. v. Columbian Enameling and Stamping Co., 306 U.S. 292, 300,
59 S.Ct. 501, 83 L.Ed. 660 (1939)).
In determining “whether there is substantial evidence in the record . . . we
review the evidence in the record taken as a whole.” Wilcox v. Sullivan, 917 F.2d
272, 276-77 (6th Cir. 1980) (citing Allen v. Califano, 613 F.2d 139, 145 (6th Cir.
1980)). However, the Court “may not try the case de novo[:] nor resolve conflicts
in evidence[;] nor decide questions of credibility. Jordan v. Comm’r of Soc. Sec.,
948 F.3d 417, 422 (6th Cir. 2008) (quoting Garner v. Heckler, 745 F.2d 383, 387
(6th Cir. 1984)), “The findings of the Commissioner are not subject to reversal
merely because there exists in the record substantial evidence to support a different
conclusion.” Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Rather, if the
Commissioner's decision “is supported by substantial evidence, then we must affirm
the [Commissioner's] decision[,] even though as triers of fact we might have arrived
at a different result.” E/kins v. Sec’y of Health and Human Servs., 658 F.2d 437,
439 (6th Cir. 1981) (citing Moore v. Califano, 633 F.3d 727, 729 (6th Cir. 1980)).
Plaintiff suffers from hidradenitis, which is recurrent cysts, particularly under
her arms and in her groin area, depressive disorder, anxiety disorder, posttraumatic
stress disorder, cocaine dependence and cannabis abuse. Doc. #7-9, PagelD#808.

This Court reversed the Administrative Law Judge's (“ALJ’s”) first non-disability
finding and remanded the case for further proceedings. On remand, the ALJ again
determined that Plaintiff is not disabled, and has the residual functional capacity
(“RFC") to perform light work with numerous restrictions. /d. at PagelD##808-12.
Plaintiff alleges that the ALJ erred in: (1) finding that her impairments did not
meet or equal Listing 8 8.06; and (2) in evaluating medical evidence and medical
source opinions. The Magistrate Judge addressed only the second alleged error,
finding it dispositive. Doc. #12, PagelD#1772.
This second alleged error centers on the treating physician rule. If well-
supported and not inconsistent with the other substantial evidence in the case
record, a treating physician’s opinion concerning the nature and severity of the
claimant's impairments must be given controlling weight. LaRiccia v. Comm’r of
Soc. Sec., 549 F. App’x 377, 384 (6th Cir. 2013). If the ALJ does not afford a
treating source's opinion controlling weight, the ALJ must “must apply certain
factors—namely, the length of the treatment relationship and the frequency of
examination, the nature and extent of the treatment relationship, supportability of
the opinion, consistency of the opinion with the record as a whole, and the
specialization of the treating source—in determining what weight to give the
opinion.” /d. at 385 (quoting Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544
(6th Cir. 2004)). The ALJ must give “good reasons” for rejecting the opinion of a
treating source. /d.

Here, the Magistrate Judge found that the ALJ failed to give good reasons for
not giving controlling weight to the opinions of Plaintiff's two treating physicians,
Morris Brown, M.D., and Michael Elrod, D.O. According to the Magistrate Judge,
the ALJ discounted their opinions for other reasons prior to determining whether
they were well-supported and not inconsistent with other substantial evidence in the
record, and essentially substituted her own medical judgment for theirs.
The Commissioner objects to the Magistrate Judge’s findings. For the
reasons set forth below, the Court SUSTAINS the Commissioner's Objections.
A.
The Court turns first to Dr. Elrod’s opinion. On January 5, 2012, he opined
that, because of the hidradenitis, Plaintiff would have difficulty with sustained
sitting, lifting, reaching, using the right hand or using bilateral arms on a sustained
basis. Doc. #7-7, PagelD#458. The ALJ gave “little weight” to this opinion. She
first noted that Dr. Elrod had last seen Plaintiff on October 11, 2011, shortly after
Plaintiff had a cyst excised and before she had any physical therapy.
The ALJ then noted that Dr. Hicks, who performed subsequent excisions of
later cysts, noted that Plaintiff had recovered well after each procedure. Doc. #7-
9, PagelD#820. She gave his opinion significant weight. Moreover, after 2012,
Plaintiff had only two other surgical removals of cysts. Doc. #7-9, PagelD#814.
The ALJ noted that Plaintiff’s cyst condition was “minimal or nonexistent for much
of the record.” Doc. #7-9, PagelD#820. The ALJ concluded that, although the

restrictions cited by Dr. Elrod may have been applicable immediately after Plaintiff's
surgery, it was “not realistic that she would have difficulty with these activities
most of the time.” /d. For these reasons, the ALJ refused to include Dr. Elrod’s
suggested restrictions in the RFC.
In other words, although Dr. Elrod’s opinion was supported by the medical
evidence immediately following Plaintiff’s surgery, it was inconsistent with other
substantial evidence in the case record, including the opinion of Dr. Hicks who
actually performed many of the surgeries and noted that Plaintiff recovered well
after each excision. The Court agrees with the Commissioner that the ALJ gave
good reasons for not giving controlling weight to Dr. Elrod’s opinion.
The Magistrate Judge found that the ALJ substituted her medical judgment
for that of Dr. Elrod by independently determining that these restrictions would be
intermittent; he noted that Plaintiff had sixteen surgeries over the course of one
year. As the Commissioner points out, however, the Magistrate Judge failed to
address Dr. Hicks’ statement that Plaintiff recovered well after each surgery or the
fact that, after 2012, Plaintiff required only two more excisions. The Magistrate
Judge also failed to discuss the fact that Dr. Hicks did not find Plaintiff to be
disabled. Based on the evidence presented to the ALJ, she reasonably concluded
that Dr. Elrod’s restrictions were not entitled to controlling weight.

B.
Dr. Brown, Plaintiff's family physician, provided a statement dated March 25,
2016, indicating that Plaintiff was “medically frail” due to her severe axillary
hidradenitis. He noted no functional limitations and offered no opinion about her
ability to work. Doc. #7-16, PagelD#1714. The ALJ gave this statement no
weight, because the term “medically frail” does not equate to a disability and says
nothing of the severity of the condition. The ALJ further noted that Plaintiff's
condition is sporadic and she gets relief quickly when a cyst is excised. Doc. #7-9,
PagelD#820.
Dr. Brown also completed interrogatories dated June 6, 2016. He indicated
that he had treated Plaintiff for hidradenitis and depression. He opined that her
impairments would affect her attendance at work and her ability to withstand the
pressure of meeting normal work standards of productivity and accuracy. Doc. #7-
16, PagelD#1716. Nevertheless, he stated that her impairments would not affect
lifting, carrying, standing, walking, sitting or postural activities, and that she could
lift 10 pounds and sit or stand for eight hours a day. He also opined that she
would likely be absent more than three times a month. Dr. Brown concluded that
Plaintiff did not have the residual functional capacity to perform even sedentary
work on a sustained basis. Doc. #7-16, PagelD#1717-21. The vocational expert
testified at the hearing that even two absences a month would render Plaintiff
ineligible for competitive employment. Doc. #7-9, PagelD##899-900.

The ALJ gave Dr. Brown's June 6, 2016, opinion little weight. She pointed
to numerous restrictions that were unsupported by any objective findings in the
record. For example, his statements that Plaintiff could lift or carry no more than
10 pounds, was unable to do even sedentary work, would be absent more than
three times a month, and had certain environmental restrictions were not supported
by any objective findings.
The ALJ also noted that Dr. Brown's answers to the interrogatories were
internally inconsistent. For example, even though he stated that her impairments
did not affect her ability to lift or carry, he then limited her to lifting and carrying no
more than 10 pounds. Even though her stated that she could sit or stand for eight
hours a day, he nevertheless finds that she cannot perform sedentary work.
To the extent that some of Dr. Brown's findings were based on his
psychological evaluation of Plaintiff, the ALJ noted that Dr. Brown is not a mental
health professional. Moreover, his medical records indicate that the brief mental
status observations that he conducted of Plaintiff were regularly, if not always,
normal. The medical records were therefore inconsistent with his opinion that
Plaintiff's depression rendered her completely unable to work. The ALJ also noted
that Dr. Brown made no mention of Plaintiff's substance abuse issues. Doc. #7-9,
PagelD#820-21.
Again, the Magistrate Judge found that the ALJ discounted Dr. Brown's
opinions without first determining whether they were well-supported and not

inconsistent with the other substantial evidence in the case record. He further
found that she failed to articulate good reasons for not giving Dr. Brown's opinion
controlling weight.
Again, the Court disagrees. The ALJ explained at length why she believed
that Dr. Brown’s opinion concerning the nature and severity of Plaintiff's
impairments was not well-supported. Moreover, she explained not only why his
opinion was inconsistent with other substantial record evidence, but she also
pointed out all of the internal inconsistencies in the interrogatories.
This Court has previously held that “[l]ack of objective support /e.g., from
treatment notes) for a treating source’s opinion, and inconsistency of that opinion
with other evidence of record, are valid reasons for both refusing to assign
controlling weight to an opinion at step one of the treating rule and for discounting
the opinion’s weight at step two. 20 C.F.R. § 404.1527(c)(2-4)." Sanders v.
Berryhill, No. 3:16-cv-263, 2017 WL 10808813, *2 (S.D. Ohio Aug. 15, 2017).
In the Court's view, the ALJ properly applied the treating physician rule and
gave good reasons for refusing to give Dr. Brown’s opinion controlling weight.
C.
For the reasons set forth above, the Court SUSTAINS the Commissioner’s
Objections to the Report and Recommendations (Doc. #17) and REJECTS the
Magistrate Judge’s Report and Recommendations (Doc. #12), as it relates to
Plaintiff's Second Assignment of Error, the weighing of medical source opinions.

Given that the Magistrate Judge has not yet made any determination concerning
Plaintiff's First Statement of Error, .e., whether the ALJ erred in finding that
Plaintiff's impairments did not meet or equal Listing § 8.06, the Court RECOMMITS
this matter to Magistrate Judge Newman for a Report and Recommendation on that
issue.

September 28, 2019 L... c? ee
WALTER H. RICE, JUDGE
UNITED STATES DISTRICT COURT

10

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10374002. Public record. Not legal advice.