CRYSTAL E. J. v. COMMISSIONER OF SOCIAL SECURITY
Civil Action 2:21-cv-4861
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION
July 12, 2022
Chief Judge Algenon L. Marbley; Magistrate Judge Elizabeth P. Deavers
PAGEID #: 1088
Plaintiff, Crystal E. J., brings this action under
Plaintiff protectively filed her applications for DIB and SSI on June 3, 2019, alleging that she has been disabled since December 31, 2005, due to fibromyalgia, osteoarthritis, degenerative disc disease, depression, PTSD, anxiety, borderline personality disorder, ulcers and bladder leakage, and restless leg syndrome. (R. at 215-228, 244.) Plaintiff‘s applications were denied initially in September 2019 and upon reconsideration in November 2019. (R. at 82-115, 122-143.) Plaintiff sought a de novo hearing before an administrative law judge. (R. at 144.) Plaintiff, who was represented by counsel, appeared and testified at a telephone hearing held on August 27, 2020. (R. at 35-62.) A Vocational Expert (“VE“) also appeared and testified. (Id.) On October 28, 2020, administrative law judge Julianne Hostovich (the “ALJ“) issued decision finding that Plaintiff has not been under a disability since June 3, 2019, the amended alleged onset date. (R. at 13-34.) The Appeals Council denied Plaintiff‘s request for review and adopted the ALJ‘s decision as the Commissioner‘s final decision. (R. at 1-7.) This matter is properly before this Court for review.
II. HEARING TESTIMONY
The ALJ summarized Plaintiff‘s relevant hearing testimony and statements to the agency as follows:
[Plaintiff] alleged that her physical and mental conditions affect her ability to function on a daily basis. Specifically, [Plaintiff] reported that she experiences pain in her neck and arms that makes it difficult for her to sleep, lift pots and pans to cook, and groom herself. She expressed difficulty squatting, bending, reaching, kneeling, climbing stairs, using her hands, and completing tasks. She also stated that she can only walk a few feet to the end of her trailer before having to stop and rest for ten (10) to fifteen (15) minutes. [Plaintiff] also indicated that she requires reminders to take prescribed medication, experiences emotional instability, and can only concentrate for an hour at a time. She reported that she does not handle stress or changes in routine well and that she occasionally becomes angry and cries when
dealing with authority figures. [Plaintiff] also averred that she has difficulty being around others, always feeling like they are judging her.
(R. at 24 (internal citations omitted).)
III. MEDICAL RECORDS
The ALJ summarized Plaintiff‘s relevant medical records as follows:
[Plaintiff] has a history of cervical spine issues; following a report of left sided-body numbness, a March 2011 MRI showed a relatively acute moderately prominent left posterolateral disk herniation with likely compression on the left aspect of the anterior spinal cord and without foraminal stenosis. Updated diagnostic testing in March 2, 2018 demonstrated degenerative changes at C5-6. Although [Plaintiff] continued to complain of neck pain, her physical examination findings were vague, noting decreased range of motion, tenderness, bony tenderness, pain and spasm. In addition, her treatment has been conservative in nature. Overall, the medical record of evidence does not contain significant physical examination findings regarding [Plaintiff‘s] cervical spine issues to warrant further limitations than those stated above. In fact, since the amended alleged onset date, [Plaintiff] has received very little treatment specifically for her neck.
Just prior to the amended alleged onset date in April of 2019, [Plaintiff] was involved in an accident while riding a motorcycle; she reported to the Emergency Room complaining of left arm pain and diagnostic testing showed minimal degenerative changes around the AC joint. However, her physical examination at that time showed no signs of injury, normal range of motion, no noted deformity, normal strength and sensation, and no swelling. She has reported a history of left shoulder pain, especially with activity, such as waxing her car, and upon examination showed decreased left arm and hand strength and a decreased range of motion of her neck and shoulder. She has been prescribed medication and referred to physical therapy; however, there are no physical therapy session notes of record.
[Plaintiff] has continued to report arm and neck pain. Diagnostic testing of [Plaintiff‘s] shoulder in August of 2019 showed no acute abnormality and only mild AC degenerative changes. Physical examinations show a decreased range of motion, tenderness to palpation, crepitus, pain, and spasm of the left shoulder and cervical back and decreased strength of the left shoulder and she has been prescribed medication.
Her treating provider has continued to document chronic neck and left shoulder pain with a limited range of motion.
With regard to her mental health conditions, [Plaintiff] has been diagnosed with depression, anxiety, and borderline personality disorder, for which she has engaged in medication management and individual counseling. Prior to the amended alleged
onset date, [Plaintiff] has a history of self-harming behaviors, like using a cat to scratch her and a psychiatric hospitalization in 2018 as a result of threats of self-harm, an abusive past, stress, and substance use. [Plaintiff‘s] treatment records document a history of mood instability, anxiety surrounding her abusive relationship, and irritability. However, her mental status examinations are generally unremarkable, showing that she is oriented in all spheres, with intact memory, concentration, judgement, and insight, an intact thought process, and calm motor activity. Further, during her assessment in March of 2019, [Plaintiff] reported that she believed her mental health had stabilized.
On August 23, 2019, [Plaintiff] underwent a psychological consultative examination with Ryan Wagner, Psy.D. [Plaintiff] reported constant symptoms of depression, low energy and fatigue, experiences panic attacks, and is easily overwhelmed. She has a history of suicide attempts and was engaged in counseling services. Dr. Wagner noted that rapport was easily established and that [Plaintiff] presented with adequate grooming, clear and logical thought processes, and clear, well-articulated speech. Her thought content was noticeable for mood swings, depression, and anxiety and she exhibited a restricted emotional range. Her mental status examination showed she was oriented in all spheres, was able to recall aspects of her upbringing, and could repeat six (6) digits forward and three (3) digits backward, but was not able to recall any of three (3) words after a five (5) minute delay. She mentally calculated simple mathematical equations, but struggled with fractions, could only calculate one iteration of serial sevens in thirty (30) seconds, and completed serial threes in fifteen (15) seconds with one (1) error. She was documented as having an intact fund of information and sufficient judgment, but limited insight into her difficulties. Ultimately, Dr. Warner diagnosed [Plaintiff] with recurrent, mild depressive disorder with anxious distress and borderline personality disorder.
(R. at 24-25 (internal citations omitted).)
IV. ADMINISTRATIVE DECISION
On October 28, 2020, the ALJ issued her decision. (R. at 13-34.) At step one of the sequential evaluation process,3 the ALJ found that Plaintiff has not engaged in substantially
Before proceeding to step four, the ALJ set forth Plaintiff‘s residual functional capacity (“RFC“) as follows:
After careful consideration of the entire record, the [ALJ] finds that [Plaintiff] has the residual functional capacity to perform light work as defined in
20 CFR 416.967(b) except she is limited to frequent climbing of ramps and stairs, balancing, kneeling, crouching, crawling, and reaching in all directions with the bilateral upper extremities and can occasionally stoop, but can never climb ladder, ropes, or scaffolds. [Plaintiff] can have frequent exposure to fumes, odors, dusts, gases, and poor ventilation and must avoid all exposure to workplace hazards, such as unprotected heights and dangerous machinery. She can perform simple, routine tasks involving only simple, work-related decisions and has the ability to adapt to routine, workplace changes. The work cannot involve fast pace or strict production quota work or direct interaction with the public. [Plaintiff] is capable of work involving no more than occasional contact with coworkers and supervisors.
(R. at 23.) At step four of the sequential process, the ALJ determined that Plaintiff has no past relevant work. (R. at 27.) Then, relying on the VE‘s testimony, the ALJ concluded at step five
V. STANDARD OF REVIEW
When reviewing a case under the Social Security Act, the Court “must affirm the Commissioner‘s decision if it is supported by substantial evidence and was made pursuant to proper legal standards.” Rabbers v. Comm‘r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) (quoting Rogers v. Comm‘r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also
Although the substantial evidence standard is deferential, it is not trivial. The Court must “‘take into account whatever in the record fairly detracts from [the] weight’ of the Commissioner‘s decision.” TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial evidence supports the ALJ‘s decision, this Court defers to that finding ‘even if there is substantial evidence in the record that would have supported an opposite conclusion.‘” Blakley v. Comm‘r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)). Finally, even if the ALJ‘s decision meets the substantial evidence standard, “a decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right.”
VI. ANALYSIS
In her Statement of Errors, Plaintiff asserts that the ALJ failed to properly evaluate and account for the opinions provided by Heather Gillespie, APRN, Plaintiff‘s primary care provider. (ECF No. 10 at PAGEID ## 1054-1059). For the reasons discussed below, the Undersigned agrees.
A claimant‘s RFC is an assessment of “the most [a claimant] can still do despite [his] limitations.”
(2) Medical opinion. A medical opinion is a statement from a medical source about what you can still do despite your impairment(s) and whether you have one or more impairment-related limitations or restrictions . . . .
(i) Your ability to perform physical demands of work activities, such as sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical functions (including manipulative or postural functions, such as reaching, handling, stooping, or crouching);
(ii) Your ability to perform mental demands of work activities, such as understanding; remembering; maintaining concentration, persistence, or pace; carrying out instructions; or responding appropriately to supervision, co-workers, or work pressures in a work setting;
(iii) Your ability to perform other demands of work, such as seeing, hearing, or using other senses; and
(iv) Your ability to adapt to environmental conditions, such as temperature extremes or fumes . . . .
The governing regulations include a section entitled “[h]ow we consider and articulate medical opinions and prior administrative medical findings for claims filed on or after March 27, 2017.”
The regulations explicitly indicate that the “most important factors” to consider are supportability and consistency.
The applicable regulations provide the following guidance for how ALJs should evaluate the “supportability” and “consistency” of medical source opinions and prior administrative findings:
(1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be.
(2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.
Against that backdrop, the ALJ provided the below discussion and analysis of Ms. Gillespie‘s opinions:
The undersigned also reviewed the August 9, 2020 opinion of [Plaintiff‘s] treating provider Heather Gillespie, APRN. Ms. Gillespie completed a mental Medical Source Statement indicating the claimant experiences moderate restrictions relating to interaction with others and concentration and marked limitations in remembering procedures and instructions, awareness of hazards, emotional stability, maintaining personal appearance and hygiene, and tolerating customary work pressures. She also opined that [Plaintiff] would be absent more than two (2) days per month and working a full time job would likely cause deterioration of [Plaintiff‘s] mental health condition. The undersigned agrees that the record supports up to moderate limitations in [Plaintiffs] mental functioning. However, no marked limitations are warranted based upon the evidence of record and [Plaintiffs] continued independence in activities of daily living. Further, there is no evidence of record supporting a determination that [Plaintiff] would experience mental deterioration or be absent excessively if working full time. [Plaintiff] does not suffer from repeated episodes of decompensation of her condition that causes inpatient hospitalization. Therefore, this opinion was found somewhat persuasive.
Ms. Gillespie also completed a physical Medical Source Statement limited the claimant to a less than full range of sedentary work with limited reaching, handling, and fingering and postural restrictions for less than eight (8) hours per day. While the undersigned recognizes that this opinion was issued by a treating provider with first hand knowledge of [Plaintiffs] conditions, these significant restrictions are not supported by the evidence of record as a whole. [Plaintiff] remains independent in her self-care and activities of daily living, supporting her ability to perform light exertional work. Therefore, this opinion was found to hold little persuasive value.
(R. at 27 (emphasis added; internal citations omitted).) With this discussion, the ALJ failed to
The Commissioner does not dispute this, and instead argues (in various ways) that the ALJ properly considered the consistency of Ms. Gillespie‘s opinions against the record. (See ECF No. 13 at PAGEID ## 1070-1080.) The Commissioner argues that “the ALJ‘s decision, read as a whole, demonstrates her consideration of the supportability and consistency factors in evaluating Ms. Gillespie‘s opinions,” but the Undersigned disagrees. (ECF No. 13 at PAGEID # 1079.) In fact, the Commissioner‘s very next sentence reveals that the Commissioner is improperly conflating the supportability and consistency factors, as the Commissioner argues that “[t]he ALJ provided ample evidence throughout the decision that was not consistent with and did not support the disabling limitations provided in Ms. Gillespie‘s opinions.” (Id.) Even assuming, arguendo, that the ALJ adequately evaluated the inconsistency of Ms.
The Commissioner‘s opinion that the ALJ was justified in discrediting Ms. Gillespie‘s opinion because her objective observations did not support her opinions is just that – the Commissioner‘s opinion. But the question is not whether the Court can justify the ALJ‘s conclusion, it is if the ALJ‘s decision “was made pursuant to proper legal standards.” Rabbers, 582 F.3d at 651. And to this end, the Commissioner does nothing to rebut Plaintiff‘s argument that under the applicable regulations, the ALJ had a duty to discuss the supportability factor when determining the persuasiveness of Ms. Gillespie‘s opinion. Indeed, the relevant regulation reads as follows:
The factors of supportability (paragraph (c)(1) of this section) and consistency (paragraph (c)(2) of this section) are the most important factors we consider when we determine how persuasive we find a medical source‘s medical opinions or prior administrative medical findings to be. Therefore, we will explain how we considered the supportability and consistency factors for a medical source‘s medical opinions or prior administrative medical findings in your determination or decision. We may, but are not required to, explain how we
considered the factors in paragraphs (c)(3) through (c)(5) of this section, as appropriate, when we articulate how we consider medical opinions and prior administrative medical findings in your case record.
Given this, it is well settled that the ALJ‘s failure to discuss the supportability of Ms. Gillespie‘s opinion requires remand, because “without fuller explanation, this court cannot engage in meaningful review of the ALJ‘s decision.” Reed v. Comm‘r of Soc. Sec., No. 3:20-CV-02611-CEH, 2021 WL 5908381, at *6 (N.D. Ohio Dec. 14, 2021) (quoting Todd v. Comm‘r of Soc. Sec., No. 3:20-cv-1374, 2021 WL 2535580, at *8 (N.D. Ohio June 3, 2021)); see also Jacob B. v. Comm‘r of Soc. Sec., No. 1:20-CV-617, 2022 WL 130761, at *8 (S.D. Ohio Jan. 14, 2022) (“In the absence of a sufficient explanation of supportability and consistency with the record as a whole, the Court cannot conclude that the ALJ‘s consideration of Dr. Rush‘s opinion is supported by substantial evidence . . . . Accordingly, the ALJ‘s decision must be reversed and remanded for further proceedings to properly analyze Dr. Rush‘s medical opinions pursuant to
In sum, from a review of the record as a whole, the Undersigned concludes that substantial evidence supports the ALJ‘s decision denying benefits. Based on the foregoing, it is therefore, RECOMMENDED that the Court REVERSE the Commissioner of Social Security‘s non-disability finding and REMAND this case to the Commissioner and the ALJ under Sentence Four of
VIII. PROCEDURE ON OBJECTIONS
If any party seeks review by the District Judge of this Report and Recommendation, that party may, within fourteen (14) days, file and serve on all parties objections to the Report and Recommendation, specifically designating this Report and Recommendation, and the part in question, as well as the basis for objection.
The parties are specifically advised that the failure to object to the Report and Recommendation will result in a waiver of the right to de novo review by the District Judge and waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat‘l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate judge‘s recommendations constituted a waiver of [the defendant‘s] ability to appeal the district court‘s ruling“); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that defendant waived appeal of district court‘s denial of pretrial motion by failing to timely object to magistrate judge‘s report and recommendation). Even when timely objections are filed, appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge‘s report, which fails to specify the
Dated: July 12, 2022
/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE
Notes
- Is the claimant engaged in substantial gainful activity?
- Does the claimant suffer from one or more severe impairments?
- Do the claimant‘s severe impairments, alone or in combination, meet or equal the criteria of an impairment set forth in the Commissioner‘s Listing of Impairments,
20 C.F.R. Subpart P, Appendix 1 ? - Considering the claimant‘s residual functional capacity, can the claimant perform his or her past relevant work?
- Considering the claimant‘s age, education, past work experience, and residual functional capacity, can the claimant perform other work available in the national economy?