Shoults v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ANNE M. SHOULTS, :

: Case No. 2:19-cv-01425

Plaintiff, :

: JUDGE ALGENON L. MARBLEY

v. :

: Magistrate Judge Jolson

COMMISSIONER OF SOCIAL SECURITY, :

:

:

Defendant. :

OPINION & ORDER

I. INTRODUCTION

This matter is before the Court for consideration of Plaintiff’s Objection, (ECF No. 17), to

the Magistrate Judge’s March 16, 2020 Report and Recommendation, (ECF No. 16),

recommending that the Court overrule Plaintiff’s Statement of Errors, (ECF No. 16), and that

judgement be entered in favor of Defendant Commissioner of Social Security. Plaintiff entered an

Objection on March 3, 2020. (ECF No. 17). Upon independent analysis by the Court, and for the

reasons set forth below, Plaintiff’s Objection is hereby SUSTAINED. Accordingly, the

Commissioner’s decision is REVERSED and REMANDED pursuant to 42 U.S.C. § 405(g) for

further proceedings in accordance with this decision.

II. BACKGROUND

On January 20, 2015, Plaintiff filed a Title II application for a period of disability and

disability insurance benefits. Additionally, Plaintiff protectively filed a Title XVI application for

supplemental security income. (ECF No. 9-2 at 14). Both applications alleged Plaintiff’s disability

began on August 31, 2014. (ECF No. 9-2 at 14). Both claims were denied initially on September

30, 2015, and again on reconsideration on December 28, 2015. Thereafter, on January 22, 2016,

Plaintiff filed a written request for a hearing. (ECF No. 9-2 at 14). Plaintiff appeared and testified

at a hearing held on September 28, 2017 in Columbus, Ohio. Subsequently, Plaintiff appeared and

testified at a second hearing on March 13, 2018 in Columbus, Ohio. On June 25, 2018, the ALJ

issued a decision denying Plaintiff’s application for Social Security benefits. (ECF No. 9-2 at 2).

The Appeals Council denied Plaintiff’s request for review, making the ALJ’s decision the final

decision of the Commissioner. (ECF No. 16 at 2).

On April 15, 2019, Plaintiff filed the instant case seeking a review of the Appeal Council’s

decision. (ECF No. 16 at 2). On September 3, 2019, the Commissioner filed the administrative

record. (ECF No. 9-2 at 4). In the administrative opinion, the ALJ followed the Social Security

Administration’s five-step sequential evaluation process to determine whether an individual is

disabled. 20 C.F.R. § 404.1520(a) and 416.920(a). At step one, the ALJ determined that Plaintiff

had not engaged in substantial gainful activity since August 31, 2014, the alleged onset date. At

step two, the ALJ determined that Plaintiff had the following severe impairments: degenerative

disc disease, hypertension, asthma, major depressive disorder, generalized anxiety disorder, and

panic disorder with agoraphobia. At step three, the ALJ determined that Plaintiff did not have an

impairment or combination of impairments that met or was the medical equivalent of the severity

of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d),

404.1525, 404.1526, 416.920(d), 416.925 and 416.926). Prior to step four, the ALJ determined

that Plaintiff had the residual functional capacity to do the following: “perform light work, as

defined in 20 CFR 404.1567(b) and 416.867, except sit for a total of six hours in an eight-hour

day, stand and/or walk for a total of four hours in an eight-hour day; occasionally climb ramps and

stairs; never climb ladders, ropes, or scaffolds; occasionally stoop, kneel, crouch, and crawl; no

exposure to moving machinery or unprotected heights; occasional exposure to dust, fumes, gases,

and extreme cold; no commercial driving; retains the ability to remember and carry out simple

repetitive tasks; able to respond appropriately to supervisors and coworkers in a task oriented

setting with only occasional public contact and occasional interaction with coworkers; able to

adapt to simple changes and avoid hazards in a setting without strict production quotas.” (ECF

No. 9-2 at 19-20). At step four, the ALJ determined that Plaintiff was unable to perform any past

relevant work (20 CFR 404.1564 and 416.965); however, at step five, considering Plaintiff’s age,

education, work experience, and residual functioning capacity, the ALJ determined that there were

jobs that existed in significant numbers in the national economy that Plaintiff could perform (20

CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).

In this action, Plaintiff alleged that the ALJ erred by: (1) failing to evaluate properly the

opinions of her treating physician, Dr. Virostko; and (2) improperly discrediting the opinions of

her consultative examiners, Dr. Offutt and Dr. Barwick. (ECF No. 17). On March 16, 2020, the

Magistrate Judge issued a Report and Recommendation, recommending that the ALJ’s decision

be affirmed and that judgement be entered in favor of the Commissioner. Plaintiff has Objected

to the Report and Recommendation. This matter is now ripe for review. (See ECF No. 12, 14,

15).

III. STANDARD OF REVIEW

Upon objection, this Court must conduct “a de novo determination of those portions of the

report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C.

§ 636 (b)(1); see also Fed. R. Civ. P. 72(b). The review “is limited to determining whether the

Commissioner’s decision is ‘supported by substantial evidence and was made pursuant to proper

legal standards.’” Ealy of Comm’r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quoting Rogers

v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)).

To constitute substantial evidence, the evidence must be relevant to the extent that a

reasonable mind might accept it as adequate to support a conclusion. Richardson v. Perales, 402

U.S. 389, 401 (1971); Ellis v. Schweicker, 739 F.2d 245, 248 (6th Cir. 1984). In determining

whether the Commissioner's findings are supported by substantial evidence, the Court must

consider the record as a whole. Garner v. Heckler, 745 F.2d 383, 388 (6th Cir. 1984).

Additionally, the Court must “‘take into account whatever in the record fairly detracts from its

weight.’” Beavers v. Sec'y of Health, Educ. & Welfare, 577 F.2d 383, 387 (6th Cir. 1978) (quoting

Univ. Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)). The findings of the Commissioner,

however, are not subject to reversal merely because there exists in the record substantial evidence

to support a different conclusion. Buxton v. Halter, Comm'r of Soc. Sec., 246 F.3d 762, 772 (6th

Cir. 2001).

Notwithstanding the above, “‘a decision of the Commissioner will not be upheld where the

[Social Security Administration] fails to follow its own regulations and where that error prejudices

a claimant on the merits or deprives the claimant of a substantial right.’” Rabbers v. Comm'r of

Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) (quoting Bowen v. Comm'r of Soc. Sec., 478 F.3d 742,

746 (6th Cir. 2007)). Moreover, “[a]n ALJ’s failure to follow agency rules and regulations denotes

a lack of substantial evidence, even where the conclusion of the ALJ may be justified based upon

the record.” Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011) (internal quotations and citation

omitted); see Gayheart v. Comm'r of Soc. Sec., 710 F.3d 365, 374 (6th Cir. 2013), reh'g denied

(May 2, 2013).

IV. LAW & ANALYSIS

Plaintiff Objects to the ALJ’s decision for the following reasons: (1) the ALJ failed to

evaluate properly the opinion of her treating physician, Dr. Virostko; and (2) the ALJ should have

followed up with Dr. Offutt and Dr. Barwick after determining their opinions were “somewhat

vague.”

A. ALJ’s Evaluation of Dr. Virostko’s Opinion

According to the “treating source rule,” physicians who have a long-standing treatment

relationship with an individual are better equipped to provide a complete picture of the individual’s

health and treatment history. 20 C.F.R. § 404.1527(c)(2). When assessing the medical evidence

in a claimant’s file, the ALJ must give special attention to the findings of the claimant’s treating

source(s) and decide whether these findings are entitled to controlling weight. See Wilson v.

Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). Courts within the Sixth Circuit have

consistently followed a two-step analysis to determine if a treating physician’s opinion is entitled

to controlling weight. Allums v. Comm’r of Soc. Sec., 975 F. Supp. 2d 823, 832 (N.D. Ohio 2013).

First, opinions from treating physicians are entitled to controlling weight if the opinion is (1) “well-

supported by medically acceptable clinical and laboratory diagnostic techniques,” and (2) “not

inconsistent with the other substantial evidence in the case record.” 20 C.F.R. § 404.1527(c)(2).

Second, if an ALJ does not give a treating physician’s opinion controlling weight, they must

determine the opinion’s weight and provide “good reasons” for the decision, applying the bevy of

factors set forth in § 404.1527(c)(2)-(6). Blakely v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th

Cir. 2009). A decision is subject to remand if the ALJ does not evaluate the first step of the

“controlling weight” analysis. Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013).

Although the ALJ may reach the same conclusion on remand, prejudice towards plaintiffs will be

avoided because they will gain a clear understanding of the ALJ’s rationale and procedure. Cole

v. Astrue, 661 F.3d 931, 940 (6th Cir. 2011).

Plaintiff argues that the ALJ’s “controlling weight” analysis was improper. (ECF No. 17

at 2-3). Namely, Plaintiff contends that the ALJ’s failure to analyze whether Dr. Virostko’s

opinions were unsupported by the record or inconsistent with other substantial evidence renders

the ALJ’s analysis incomplete.

Here, the ALJ cited several factors to justify the decision to classify Dr. Virostko’s opinion

as “somewhat vague,” including that his opinion was fairly vague and conclusory, that his opinion

was provided one year after he last treated Plaintiff, that Plaintiff came to him after a one-year

treatment gap asking him if he was “on board” to complete forms for disability, and that the

ultimate issue of determining disability is a finding reserved for the Commissioner. (ECF No. 9-

2 at 29). As Plaintiff argues, however, the ALJ did not analyze whether Dr. Virostko’s opinion

was: (1) unsupported by medically acceptable clinical and laboratory diagnostic techniques; or (2)

inconsistent with the other substantial evidence in the case record. By omitting the first step of

this two-part analysis, the ALJ failed to follow agency rules. See Gayheart, 710 F.3d at 376 (“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.”). Because this omission equates to a lack of

substantial evidence supporting the ALJ’s decision, and because there is no basis to find such an

omission harmless, Plaintiff’s Objection is SUSTAINED. See Cole, 661 F.3d at 939-40 (“The

ALJ’s failure to follow rules and regulations ‘denotes a lack of substantial evidence, even where

the conclusion of the ALJ may be justified based upon the record.”). Accordingly, the

Commissioner’s decision is REVERSED and REMANDED pursuant to 42 U.S.C. § 405(g) for

further proceedings in accordance with this decision.

B. ALJ’s Evaluation of the Consultative Examiners.

In addition to Dr. Virostko, Ms. Shoults was examined by both Dr. Offutt and Dr. Barwick.

(ECF. 9-2 at 28). The ALJ concluded that the opinions of both doctors were “somewhat vague.”

For example, the ALJ determined that while Dr. Offutt indicated that Plaintiff had limitations, she

failed to express the degree of such limitations in vocationally relevant terms. Id. Similarly, the

ALJ determined that Dr. Barwick’s opinion failed to describe with specificity the limits

surrounding Plaintiff’s abilities. Id. As a result, both opinions were given “some weight.” Id.

Plaintiff contends that, before giving the opinions “some weight,” the ALJ should have

followed up with both doctors. (ECF No. 17 at 4). But an agency is required to re-contact a

consultative examiner only if the report is “inadequate or incomplete.” 20 C.F.R. § 404.1519p(b).

A complete and adequate report will generally include: (i) the claimant’s chief complaint(s); (ii) a

detailed description, within the area of the examiner’s specialty, of the history of such

complaint(s); (iii) a description and disposition of pertinent findings from examination or testing;

(iv) the results of any testing performed; (v) the claimant’s diagnosis and prognosis; and (vi) a

medical opinion. Baker v. Comm’r of Soc. Sec., No. 2:19-cv-4323, 2020 U.S. Dist. LEXIS 80604,

at *24 (S.D. Ohio May, 7, 2020).

1. Dr. Offutt – Physical Evaluation

In May 2015, Dr. Offutt performed a physical consultative evaluation of Plaintiff. (See Tr.

626-34). Based upon her evaluation, Dr. Offutt opined that Plaintiff's ability to bend, stoop,

lift/carry, walk, crawl, squat, and push/pull heavy objects would be severely impaired due to her

current back, leg, and neck pain. (Tr. 630). The ALJ assigned this opinion some weight because

the ALJ found Dr. Offutt's opinion to be somewhat vague. (Tr. 24, 27). More specifically, he

determined that while Dr. Offutt indicated that Plaintiff had limitations, she failed to express the

degree of such limitations in vocationally relevant terms. (Tr. 27). Plaintiff asserts that, given

these circumstances, the ALJ should have re-contacted Dr. Offutt for clarification, pursuant to 20

C.F.R. § 404.1519p. (ECF. 12 at 11).

Contrary to Plaintiff’s position, Dr. Offutt's report was complete and adequate. As noted

in the Magistrate Judge’s Report and Recommendation, Dr. Offutt’s report included a discussion

of Plaintiff's subjective complaints, a history of her impairments, objective findings from the

examination, and diagnoses. (Tr. 626-34). Moreover, Dr. Offutt determined that Plaintiff’s ability

to bend, stoop, lift/carry, walk, crawl, squat and push/pull heavy objects would be severely

impaired due to her current back, leg, and neck pain. (Tr. 630); see Baker, 2020 U.S. Dist. LEXIS

80805 at *24-25 (holding a report was complete and adequate where it recapped Plaintiff’s

subjective complaints and medical history, summarized the findings and described the

examination, and identified a diagnosis and probable restrictions for work-related activities). Dr.

Offutt’s failure to define “impaired” does not render her report inadequate or incomplete. See

Dooley v. Comm’r of Soc. Sec., 656 F. App’x 113, 122 (6th Cir. 2016) (finding a consultative

examiner’s failure to clarify Plaintiff’s limitations against “excessive” bending, kneeling, or

squatting did not render the examiner’s report incomplete). Accordingly, the ALJ’s decision not

to re-contact Dr. Offutt was appropriate.

2. Dr. Barwick – Psychological Evaluation

In September 2015, Dr. Barwick performed a psychological consultative evaluation of

Plaintiff. (Tr. 635-42). Plaintiff reported symptoms relating to depression and anxiety (Tr. 636-

37), but she denied any involvement in mental health counseling and indicated that her primary

care physician managed her psychotropic medications. (Tr. 637). According to Dr. Barwick,

Plaintiff was tearful during her examination, but she was polite and cooperative; neat and clean

with adequate grooming and hygiene; had normal speech; was not easily distracted; was alert and

oriented; recalled six digits forward; could recall three of three words after a brief delay; did serial

threes without errors; and performed basic arithmetic. (Tr. 638). Dr. Barwick estimated that

Plaintiff had average intellectual functioning and that her judgment and insight were intact. (Tr.

639). Ultimately, Dr. Barwick diagnosed Plaintiff with severe major depressive disorder,

generalized anxiety disorder, and panic disorder with agoraphobia. (Id.). Dr. Barwick maintained

that Plaintiff’s ability to understand, remember, and carry out instructions, and to respond

appropriately to supervision and to coworkers in a work setting was intact. (Id.). But Dr. Barwick

noted that Plaintiff's abilities in maintaining attention and concentration, maintaining persistence,

and pace, and performing simple and multi-step tasks was limited. (Id.). Along those same lines,

Dr. Barwick opined that Plaintiff's ability to respond appropriately to work pressures in a work

setting was limited. (Id.). The ALJ gave Dr. Barwick's opinion concerning Plaintiff's mental

limitations "some weight." (Tr. 25-27). The ALJ reasoned that Dr. Barwick's opinion was

consistent with her examination findings, but that the opinion was somewhat vague and non-

specific in explaining the extent of Plaintiff's limitations in certain areas. (Tr. 27).

Again, contrary to Plaintiff’s position, Dr. Barwick's report was complete and adequate. It

included a discussion of Plaintiff's impairments and subjective complaints, the mental status

examination findings, and the Doctor’s diagnoses and prognosis. (Tr. 635-41); see Hamilton v.

Comm’r of Soc. Sec., No. 1:15-cv-945, 2016 U.S. Dist. LEXIS 124425, at *16 (W.D. Mich. Sept.

14 2016) (holding that a psychologist’s opinion, although somewhat vague, was complete and

adequate where it provided a history of Plaintiff’s illness and subjective complaints, observations

about Plaintiffs mental status, answers to questioning, and diagnoses and a prognosis). It follows

that the ALJ’s decision not to re-contact Dr. Barwick was appropriate. See Dooley v. Comm’r of

Soc. Sec., 656 F. App’x 113, 122 (6th Cir. 2016) (holding that the ALJ was not required to contact

a consultative examiner where the ALJ found the opinion to be vague and unsupported by the

evidence); Ingram vy. Berryhill, No. 1:17-CV-2163, 2018 WL 5634345, at *12 (N.D. Ohio Aug.

17, 2018) (holding that the ALJ had no duty to request clarification from consultative examiner

although he found opinion vague).

V. CONCLUSION

Based on the foregoing, Plaintiff's Objection (ECF No. 17) to the Magistrate Judge’s

Report and Recommendation is SUSTAINED. Accordingly, the Commissioner’s decision is

REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further

proceedings in accordance with this decision.

IT IS SO ORDERED. ii 4 2

ALGENON L/MARBLEY.~—————__

CHIEF UNITED STATES DISTRICT JUDGE

DATED: August 18, 2020

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